European Commission prohibits proposed acquisition of eTraveli by Booking

The European Commission has prohibited, under the EU Merger Regulation, the proposed acquisition of Flugo Group Holdings AB (‘eTraveli') by Booking Holdings (‘Booking').

The acquisition would have allowed Booking to strengthen its dominant position on the market for hotel online travel agencies (‘OTAs') in the European Economic Area (‘EEA'). Booking did not offer remedies that were sufficient to address these concerns.

The Commission's investigation

The decision follows an in-depth investigation by the Commission of the transaction, which would have combined Booking and eTraveli, two leading providers of OTA services in a concentrated industry. Booking is the leading hotel OTA while eTraveli is one of the main providers of flight OTA services in Europe. Booking is also active in the market for metasearch services (‘MSS') mainly through its price comparison platform KAYAK.

OTAs provide an important intermediation service, matching demand and supply for travel services, which include accommodation, flights, car rentals, and attractions. In the EEA only, OTAs handle transactions worth more than €100 billion annually. Hotel OTA services are the largest and most profitable segment of the OTA market and are worth approximately €40 billion annually.

During the investigation, the Commission received feedback from a large number of stakeholders, including hotels and competing OTAs. Market participants were concerned that the transaction would strengthen Booking's dominant position on the market for hotel OTAs in the EEA, reduce competition and increase prices for hotels and, possibly, for consumers.

The Commission's decision

The Commission found that the transaction would have strengthened Booking's dominant position in the hotel OTA market, leading to higher costs for hotels and, possibly, for consumers. More specifically, the Commission found that:

  • Booking is the dominant hotel OTA in the EEA, which has been consistently growing over the past ten years to reach a market share above 60%. There is only one sizeable competitor in the market, which is however much smaller and mainly focused on the US market. Rival OTAs are not able to exert sufficient competitive price pressure on Booking, which is thus free to charge higher commissions to hotels than some of its main competitors. Moreover, Booking benefits from network effects as it has developed a significant scale in its hotel offering that, in turn, attracts an ever larger number of consumers.
  • The transaction would have allowed Booking to acquire a main customer acquisition channel. After accommodation, flight OTA services are the second largest OTA market and the closest complement to Booking's core hotel OTA business. Flight OTA services are an important customer acquisition channel for hotel OTAs as they generate a significant amount of traffic and are often the first step in the planning of a trip. On the flight OTA market, eTraveli is a best-in-class OTA and the number two player in the EEA. Booking could have leveraged eTraveli's capabilities to become the main flight OTA in Europe.
  • The transaction would have allowed Booking to expand its travel services ecosystem, which revolves around its hotel OTA business. A flight OTA product is a crucial growth avenue in this ecosystem as it would generate significant additional traffic to Booking's platform. This is because, among the different travel OTA services, flights have the highest chance to lead to the cross-selling of accommodation. These would have allowed Booking to benefit from existing customer inertia because a significant share of these additional consumers would have stayed on Booking's platforms. Therefore, the transaction would have made it more difficult for competitors to contest Booking's position in the hotel OTA market.
  • By increasing traffic to and sales by Booking's platforms, the transaction would have reinforced network effects and increased barriers to entry and expansion, making it harder for competing OTAs to develop a customer base capable of supporting a hotel OTA business. OTAs currently on a path to become full-fledged competitors may not be able to do so if the transaction goes ahead.
  • The strengthening of Booking's dominant position would have further increased its bargaining position towards hotels and diverted demand from cheaper sales channels to Booking. This could have resulted in higher cost for hotels and, possibly, consumers.

Booking's proposed remedies

The remedies offered by Booking did not adequately address the Commission's competition concerns so that it could be concluded that competition would be preserved on a lasting basis. Booking proposed to show flight customers a choice screen on the flight check-out page, which is the page shown to travellers after they purchase their flight tickets. In such choice screen, Booking offered to display multiple hotel offers from competing hotel OTAs, allowing customers clicking on the displayed offer to be redirected to the hotel OTA's website. The choice screen presented the following characteristics:

  • It would have been powered by KAYAK, Booking's metasearch service (‘MSS') service.
  • It would have been displayed on the Booking.com branded flight platform and on the eTraveli branded flight platform. It would have been shown to flight customers located in the EEA and to flight customers located outside the EEA and travelling in the EEA.
  • It would have displayed four hotel options offered by OTAs. A drop-down menu appearing under each of the four hotel options would have contained up to four additional offerings from other hotel OTAs for the same hotel.
  • The recommended OTA, that is the one appearing first, would have been the OTA offering the lowest price for each hotel. The KAYAK algorithm would have been used to: (i) select the four hotels shown in the choice screen; and (ii) select the additional OTAs shown in the drop-down menu for each accommodation. The KAYAK algorithm includes a bidding mechanism, meaning that Booking would have been remunerated by competitors for referrals from the choice screen.
  • Hotel OTAs could be displayed provided they meet the following criteria: (i) complying with KAYAK's technical and quality standards for OTA partners; and (ii) generating at least 60% of their total accommodation revenue from the sale of hotel rooms. Booking's offers could also be displayed.

The Commission conducted an extensive analysis of the proposed commitments, including testing their efficacy with the relevant market participants. The feedback received indicates that the proposed remedies were not sufficiently comprehensive and effective and did not eliminate entirely the identified competition concerns. In particular:

  • The selection and ranking of offers by competing hotel OTAs were not sufficiently transparent and non-discriminatory, because KAYAK – a subsidiary of Booking– would have been in control of several aspects of their implementation.
  • The offers from competing hotel OTAs would have been displayed only on the flight check-out page and not in other important cross-sell opportunities such as emails, notifications, or other pages of the website. Furthermore, the flight check-out page represents only a small share of the cross-sell opportunities that Booking could have pursued through the acquisition of eTraveli.
  • The commitments would have been difficult to monitor effectively, especially because of Kayak's algorithm working as a black box.

Based on this, the Commission found that the remedies offered by Booking were not sufficient to address the competition concerns and to prevent the transaction's detrimental effect on competition. As a result, the Commission has decided to block the proposed transaction.

Companies and products

Booking, headquartered in the US, operates OTA brands such as Booking.com, Rentalcars, Priceline and Agoda. In the EEA, Booking is mainly active in the provision of hotel OTA services under the Booking.com brand and, to a limited extent, in the provision of flight OTA services, which it sources from eTraveli. Moreover, Booking is active in the provision of MSS for accommodation, car rental and flights via its KAYAK business (including the brands KAYAK, Momondo, Cheapflights, HotelsCombined, among others). Booking provides access to its OTA accommodation functionalities, via commercial affiliated programmes, to certain rival OTAs that do not have the capability to offer such services.

eTraveli, headquartered in Sweden, operates an OTA via its brands Gotogate, My Trip, Seat24 and SuperSaver. eTraveli is primarily active as a flight OTA.

Merger control rules and procedure

The transaction was notified to the Commission on 10 October 2022, and the Commission opened an in-depth investigation on 16 November 2022. On 9 June 2023, the Commission sent a Statement of Objections to Booking.

The Commission has the duty to assess mergers and acquisitions involving companies with a turnover above certain thresholds (see Article 1 of the Merger Regulation) or for which it acquired jurisdiction by virtue of  referral from Member States (see Articles 4(5) and 22 of the Merger Regulation) and to prevent concentrations that would significantly impede effective competition in the EEA or any substantial part of it.

The vast majority of notified mergers do not pose competition problems and are cleared after a routine review. From the moment a transaction is notified, the Commission generally has 25 working days to decide whether to grant approval (Phase I) or to start an in-depth investigation (Phase II).

In the past ten years, the Commission has approved almost 3500 mergers. Today's prohibition is only the 11th merger that the Commission has blocked over the same period.

There are currently four ongoing Phase II merger investigations: (i) the proposed acquisition of Asiana by Korean Air; (ii) the proposed creation of a joint venture by Orange and MasMovil, (iii) the proposed acquisition of iRobot by Amazon; (iv) the proposed acquisition of Figma by Adobe. (source: europa.eu/photo: freepik.com)

Comments

Post a Comment

Editorial

Editorial
George Kazoleas, Lawyer

Top Stories

Ombudsman inquiry on Commission President’s text messages is a wake-up call for EU

Image
The European Ombudsman inquiry into the Commission’s handling of a request for text messages between its President and the CEO of a pharmaceutical company is a wake-up call for all EU institutions about ensuring accountability in an era of instant messaging. One year after the initial request by a journalist, the Commission has still not clarified whether messages reported to concern major vaccine procurement deals exist and whether the public is entitled to see them. The Ombudsman had asked the Commission, in a finding of maladministration in January, to conduct a more thorough search for the text messages. The Commission’s recent response failed to say whether it had looked directly and correctly for the text messages and if not, why not. While the response recognised that work-related text messages can be EU documents, it reiterated that the Commission’s internal policy is, in effect, not to register text messages. The Ombudsman has closed  the inquiry  and upheld...
Read more

Daily Mail publisher wins case against ‘success fees’ paid to lawyers (ECtHR)

Image
Obligation on publisher of the Daily Mail to pay substantial “success fees" in defamation and breach of privacy cases was excessive. The case Associated Newspapers Limited v. the United Kingdom (application no. 37398/21) concerned the fact that Associated Newspapers Limited the publisher of the Daily Mail and the Mail on Sunday had been obliged to pay extensive costs incurred by claimants who had successfully sued it in privacy and/or defamation proceedings following articles it had published in print or online in 2017 and 2019.  Since one of the claimants had entered into a conditional fee arrangement (CFA) with his legal representative, and both had taken out “after-the-event” (ATE) insurance, Associated Newspapers Limited had been liable not only for their base costs, but also for fee uplifts including the “success fee” in the CFA and for their ATE insurance premiums.  In Chamber judgment (12.11.2024) in the case, the European Court of Human Rights held, unanimously, that t...
Read more

Intellectual property: the figurative sign consisting of the phrase ‘RUSSIAN WARSHIP, GO F* *K yourself’ in Russian and English cannot be registered as an EU trade mark

Image
In its Judgment in Case T-82/24 (Administration of the State Border Guard Service of Ukraine v EUIPO) (RUSSIAN WARSHIP, GO F**K YOURSELF) the General Court ruled that the figurative sign consisting of the phrase ‘RUSSIAN WARSHIP, GO F* *K yourself’ in Russian and English cannot be registered as an EU trade mark. That phrase, which has become a symbol of Ukraine’s fight against Russian aggression, is not perceived as an indication of a commercial origin.  The Administration of the State Border Guard Service of Ukraine (Kyiv, Ukraine) requests the General Court of the European Union to annul the decision of the European Union Intellectual Property Office (EUIPO) of 1 st December 2023, which refused registration of the following figurative sign as an EU trade mark: ‘RUSSIAN WARSHIP, GO F* *K yourself’ That mark is a war cry uttered by the Ukrainian border guard on Snake Island on 24th February 2022, the first day of the full-scale Russian invasion of Ukraine. Registration was sou...
Read more

ECtHR elects a new Vice-President of the Court and two new Section Presidents

Image
The European Court of Human Rights has elected on 23.9.2024 a new Vice-President of the Court – Judge Ivana Jelić (elected in respect of Montenegro). She will take up her duties on 1 November 2024.  The Court has also elected at the same date two new Section Presidents – Judges Lado Chanturia (elected in respect of Georgia) and Ioannis Ktistakis (elected in respect of Greece). They will also take up their duties on 1 November 2024. Ivana Jelić was born on 17 March 1975 in Podgorica, Montenegro and was elected Judge of the European Court of Human Rights on 12 July 2018. Lado Chanturia was born on 14 April 1963 in Tsalenjikha, Georgia, was elected Judge of the European Court of Human Rights on 8 January 2018 and is Vice-President of Section since 18 May 2023. Ioannis Ktistakis was born on 3 January 1971 in Thebes, Greece and was elected Judge of the European Court of Human Rights on 8 March 2021. (source/photo: echr.coe.int) Read more here
Read more

The banks Crédit agricole and Credit Suisse participated in a cartel in the sector for suprasovereign bonds, sovereign bonds and public agency bonds denominated in US dollars

Image
According to the Judgment of the General Court in Cases T-386/21 (Crédit agricole and Crédit agricole Corporate and Investment Bank v Commission) and T-406/21 (UBS Group and Credit Suisse Securities (Europe) v Commission), the banks Crédit agricole and Credit Suisse participated in a cartel in the sector for suprasovereign bonds, sovereign bonds and public agency bonds denominated in US dollars (‘SSA Bonds’).  The General Court of the European Union confirms the Commission’s finding of an infringement and maintains the amount of the fines imposed in 2021. In 2018, the European Commission initiated proceedings for infringement of the competition rules involving Deutsche Bank, Bank of America, Crédit agricole and Credit Suisse (now UBS Group [1] ).  In 2021, the Commission found that those banks had entered into an agreement on the secondary market for suprasovereign, sovereign and agency bonds denominated in dollars (SSA bonds). According to the Commission, traders employed by ...
Read more

European Ombudsman asks Commission to publish details of its handling of senior staff move to law firm

Image
The European Ombudsman has asked the European Commission to publish details about how it has handled the planned move by a former director in its competition department to the Brussels office of a US corporate law firm as a partner. Any restrictions that have been placed on the activities of the former director to mitigate potential conflicts of interest should be made public without delay, said the Ombudsman. She noted that public information about the move came from the law firm and gives the impression that the Commission has allowed a senior official to work for a company that anticipates major benefits from their inside knowledge.  The Ombudsman also noted that the Commission declined to give details about the individual’s professional experience despite the fact that the law firm itself has put out a press release detailing it. The Ombudsman has previously criticised a tendency in the EU administration to underestimate the potential negative effects of staff moves to th...
Read more

A national court is not required to apply a decision of its constitutional court that infringes EU law (ECJ)

Image
In its Judgment of 26.9.2024 in Case C-792/22 (Energotehnica) the Court of Justice ruled as regards the right to an effective remedy that a national court is not required to apply a decision of its constitutional court that infringes EU law. In such a case, the national court may not be penalised.  Following the death of an electrician by electrocution during a maintenance operation, an administrative procedure was initiated against his employer. At the same time, criminal proceedings for negligence and manslaughter were initiated against the supervisor. The victim’s next of kin also became civil parties to the criminal proceedings.  The administrative court hearing the dispute concluded that the present case did not involve an ‘accident at work’. It annulled the administrative penalties imposed on the employer. According to national legislation, as interpreted by the Romanian Constitutional Court, that administrative decision prevents the criminal court from reconsidering whe...
Read more