Parity clauses vis-à-vis accommodation establishments to be prohibited in Switzerland
In the hotel sector, so-called parity clauses are widespread, according to which hotels are not allowed to offer available rooms on their hotel homepage at a lower price or with better offers and conditions than on online booking platforms. A distinction is made between “narrow” parity clauses, according to which hotels must offer at least as favourable a price on the respective hotel booking portal as on the hotel’s own website, and “wide” parity clauses, according to which hotels must also offer the same price on all other booking channels.
Competition authorities in Europe consider such clauses to be restricting competition between the different online platforms and between hotels. Therefore, in recent years, national competition authorities as well as the EU Commission and, in some EU Member States, legislators have acted against these clauses. While in some EU member states all types of parity clauses have been banned, in other EU member states the ban only extended to “wide” parity clauses.
Switzerland now also reacts to the parity clauses. On 16 November 2022, the Federal Council decided to bring into force on 1 December 2022 the amendments to the Federal Act against Unfair Competition (Bundesgesetzes gegen den unlauteren Wettbewerb (UWG), hereinafter “UCA”) that the Swiss legislator adopted on 17 June 2022. With the new regulation in the UCA, parity clauses regarding price, availability, or conditions in contracts between online booking platforms and accommodation providers will be prohibited. This means that accommodation providers in Switzerland will be free to set their own prices and offers from this date on.
According to the new Art. 8a UCA, anyone who, as an operator of an online platform for booking accommodation services, uses general terms and conditions of business which directly or indirectly restrict the setting of prices and offers by accommodation providers through parity clauses, namely regarding price, availability, or conditions, is acting unfairly. Art. 8a UCA is of a purely civil nature and does not contain any criminal sanctions. The applicants can defend themselves with the actions provided for in the UCA. These include the affected accommodation establishments, competitors as well as professional and trade associations. If collective interests are at stake, i.e. the economic interests of a majority of persons are affected, the federal government can also take legal action according to the press release of the Federal Council.
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