With its decision of 16 November 2022, the Federal Council has put Article 8a of the Swiss Unfair Competition Act (UCA) into force as of 1 December 2022. The article was adopted by the Swiss parliament in summer 2022. With this provision, so-called parity clauses in general terms and conditions (GTCs) between online booking platforms and hotels are prohibited. According to the dispatch of the Federal Council, general terms and conditions should be understood broadly with reference to the case law of the Federal Supreme Court. Individual agreements that contain pre-formulated clauses not having been negotiated in detail should be included as well.
Until 2015, online platforms such as Booking.com had regularly obliged partner hotels to not offer more favourable prices or better conditions on practically all distribution channels (in particular also other online platforms) than on the booking platform (so-called best price or most favoured nation clauses; MFN). The Swiss Competition Commission (COMCO) already clarified in 2015 that based on the Swiss Cartel Act, these so-called broad parity clauses can constitute inadmissible anticompetitive agreements. The new Article 8a UCA now prohibits all, also so-called narrow parity clauses via the rules against unfair competition. Therefore, the prohibition of undercutting prices or conditions «only» on the partner hotels’ direct distribution channels is inadmissible too. According to this Article, «anyone who, as the operator of an online platform for booking accommodation services, uses general terms and conditions which directly or indirectly restrict the setting of prices and offers by accommodation establishments by means of parity clauses, namely with regard to price, availability or conditions» is acting unfairly.
An inadmissible parity clause is void and can lead to claims for damages. However, Article 8a UCA does not provide for criminal sanctions. Affected hotels, competitors as well as professional and trade associations can file civil lawsuits against possible violations on the basis of the UCA. In addition, the Swiss Confederation can also file a lawsuit if collective interests (economic interests of a majority of people) are being affected.
The Federal Council’s press release can be found here (in German, French and Italian).
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