The Berlin II Regional Court ruled in favor of 1,288 hotels seeking a declaratory judgment that Booking,com BV and its German subsidiary, Booking,com (Deutschland) GmbH, are jointly and severally liable to compensate 1,099 hotels for damages incurred individually as a result of the use of unlawful best price clauses since January 1, 2013.
The detailed press release of the Berlin court can be found below:
The plaintiffs' further claim, which sought, among other things, a declaration that booking commissions were to be refunded, was unsuccessful. The court was unable to determine the actual amount of damages incurred by the accommodation providers or whether these damages were directly attributable to the use of the best price clauses.
Booking.com BV, a public limited company under Dutch law, operates the booking platform of the same name. It receives a commission for each non-refundable accommodation booking, calculated as a percentage of the nightly rate. Booking.com (Germany) GmbH is responsible for managing the platform's German partners.
From the mid-2000s until June 30, 2015, Booking.com BV used so-called "wide best price clauses" in its contracts with accommodation providers. According to these clauses, accommodation providers had to offer their properties on the booking platform at the best available prices and conditions, taking into account all other distribution channels. From July 1, 2015, Booking.com BV used so-called "narrow best price clauses" in its contracts.
Under these clauses, accommodation providers selling directly to travelers were not permitted to offer lower prices than those on Booking.com. By decision of December 22, 2015, the German Federal Cartel Office ruled that the use of the so-called narrow best price clauses was anti-competitive and ordered their removal by January 31, 2016. The German Federal Court of Justice upheld this decision by ruling of May 18, 2021 (Case No.: KVR 54/20, BGHZ 230, 88).
In their lawsuit, the plaintiffs sought not only a declaratory judgment establishing liability for damages due to the use of best-price clauses, but also a declaration that the defendants were obligated to reimburse the booking commissions received between January 2006 and February 2025, insofar as these commissions were excessive as a result of the use of the inadmissible best-price clauses.
The court found the lawsuit admissible insofar as it sought a declaratory judgment establishing liability for damages due to the use of the best-price clauses. While a declaratory judgment action is generally inadmissible if the plaintiff can achieve their objective with a claim for payment, this also applies if quantifying damages would involve considerable effort and expense. However, if the development of damages is not yet complete at the time the lawsuit is filed and a final quantification of the damages is therefore not possible, an action for a declaratory judgment establishing liability is exceptionally permissible. The decisive factor is the submissions of the respective plaintiffs.
According to these submissions, the use of the best-price clauses contributed to significant market segmentation and oligopolization. The influence on the market structure continues beyond the period of use of the best price clauses. Such residual effects, according to the court, make it possible for the plaintiff operators to suffer ongoing damage, thus rendering the declaratory judgment action admissible.
In the Chamber's opinion, the plaintiff operators are also entitled to damages. Both the narrow and broad best-price clauses restrict competition, as these clauses limit the pricing freedom of accommodation providers and thus competition in the distribution of accommodation. This is already established for the narrow best-price clauses used by the defendants between July 2015 and January 2016 due to the binding effect of the final decision of the Federal Cartel Office of December 22, 2015.
Best price clauses deprive accommodation providers of the obvious opportunity to factor in the commission fees (averaging 10-15% of the room price) that they wouldn't incur when selling directly, and to use these savings to attract customers. They also make it more difficult for accommodation providers to manage capacity by directly marketing remaining rooms online at reduced prices. While they could make such offers if they simultaneously lowered their price on Booking.com, they would then have to pay the standard commission on the lower price for bookings made through Booking.com, thus significantly reducing their room for price reductions and consequently their chances of successfully marketing last-minute deals.
Insofar as the plaintiffs sought a declaration that commissions already paid were to be refunded, the court held the claim to be inadmissible. The plaintiffs should have filed a claim for specific payment, as commissions already paid constitute a closed matter.
In 70 cases, the court found the lawsuit inadmissible because proper authorization of the plaintiffs' legal representatives was not proven. In 118 cases, it could not be established that the plaintiffs were affected by the cartel violation through the use of the best-price clauses. In one case, the lawsuit was inadmissible for other reasons.
The judgment is not yet legally binding. The parties may appeal to the Higher Regional Court within one month of service of the judgment.
Berlin Regional Court II, Judgment of December 16, 2025, Case No. 61 O 60/24 Kart
