JustBook-HRS preliminary injunction

DECISION VI-W (Kart) 1/12 33 O 16/12 LG Cologne


 * In the proceedings for a preliminary injunction

JBM JustBook Mobile GmbH, represented by its managing director Florian Waldmann, Bleitreustraße 4, 10623 Berlin, applicant and complainant, legal representatives: Dierks + Bohle Lawyers in 10829 Berlin

against

HRS - Hotel Reservation Service, Robert Ragge GmbH, represented by its managing director, Blaubach 32, 50676 Köln, defendant and respondent,

has the 1st antitrust division of the Higher Regional Court of Düsseldorf by the presiding judge at the Higher Regional Court Dr. J. Kühnen, the judge at the Higher Regional Court Dr. Maimann and the judge at the Higher Regional Court Lingrün on February 15, 2012 decided:


 * I. On immediate appeal by the applicant, the decision of the 33rd civil chamber of the Regional Court of Cologne of 27th January 2012 is modified and a preliminary injunction is issued without a hearing:


 * The defendant is on pain of a fine of € 250,000 for each infringement or, in the alternative, a term of imprisonment not exceeding six months, the latter on one of its respective directors, until a decision is reached in the main proceedings prohibited


 * 1. to cause its hotel partners, under reference to the contractually agreed best price guarantee within the meaning of § 4 lit. a) of its currently valid partnership agreement (contract conditions are valid from March 1, 2010) and § 5 lit a) of its partnership agreement valid from March 1, 2012, to raise rates for rooms offered to the applicant to the same level that is offered to the defendant.


 * 2. to cause its hotel partners, under reference to the contractually agreed best price guarantee within the meaning of § 4 lit. a) of its currently valid partnership agreement (contract conditions are valid from March 1, 2010) and § 5 lit a) of its partnership agreement valid from March 1, 2012, not to offer any room contingents to the applicant.


 * 3. to cause its hotel partners, under reference to the contractually agreed best price guarantee within the meaning of § 4 lit. a) of its currently valid partnership agreement (contract conditions are valid from March 1, 2010) and § 5 lit a) of its partnership agreement valid from March 1, 2012, to lower room rates offered to the defendant to the same level that is offered to the applicant.


 * I. The defendant shall bear the costs of the proceedings.


 * III. The value of the appeal proceedings is set to 25,000 €.

Reasons
 * The immediate appeal by the applicant is successful.


 * A. Rightfully the applicant challenges the best price guarantee as provided for in the partnership agreements of the defendant. This is a violation of § 1 GWB and void (§ 134 BGB).


 * § 1 GWB prohibits agreements between ventures, which have as their object or effect the prevention, restriction or distortion of competition. The best price guarantee, which the defendant requires its hotel partners to agree to in § 4 lit. a) of the currently valid partnership agreement and also in § 5 lit. a) of the agreement valid from March 1, 2012, constitutes infringement. It is a most favoured treatment clause that restrains intra-brand price competition of hotel reservations by restricting the pricing freedom of the defendant's hotel partners.  (cf.: Zimmer in Immenga/Mestmäcker, Wettbewerbsrecht GWB, 4th Edition, § 1 Rdnr. 399; Bechtold, GWB, 6th Edition, § 1 Rdnr. 59; Bahr in Langen/Bunte, Kommentar zum deutschen und eropäischen Kartellrecht, Band 1, 11th Edition, Anhang zu §§ 1 und 2 GWB Rdnr. 289; Nordemann in Loewenheim/Meessen/Riesenkampff, Kartellrecht, 2nd Edition, § 1 GWB Rdnr. 113). The competition of intermediation websites in relation to clients is not only founded on the individual hotel portfolio but also quite significantly it is based on the hotel prices offered. In any case the individual customer who has opted for a particular hotel will book it in general through the portal that offers him the lowest price. In these cases the best price guarantee does almost completely inhibit the emergence of competition between different portals. Thus the obligation of the contractually bound hotel partners to grant the defendant room rates at least as favorable as the rates offered to other reservation and travel websites noticeably reduces the overall competition of the booking portals among each other.


 * B. The decision on costs follows from § 91 ZPO.