1. CASE SUMMARY
A. Summary of facts
Meliá, an undertaking with registered office in Spain, is one of the largest hotel companies in the world and the largest hotel chain in Spain in both resort and city hotels. Its business model comprises three divisions, namely Hotels, Real Estate and Club Meliá. This decision concerns the Hotels division.
The case concerned agreements regarding hotel accommodation concluded between Meliá and certain tour operators (Kuoni, REWE, Thomas Cook and TUI), which sourced accommodation from Meliá and distributed it to consumers.
From 1 January 2014 to 31 December 2015, approximately 30% of the contracts governing the commercial relationship between Meliá and the tour operators contained a clause according to which the contracts were valid only for reservations of consumers who were resident in specified countries. If Meliá established that the country of residence of the consumer was not among those listed in the contract, Meliá was entitled to reject the reservation.
B. Notes on case history
C. Legal analysis
C.1 - Article 101(1) TFEU – object restrictions
The infringement involves the implementation and enforcement of a series of agreements aimed at restricting active and passive cross-border sales hotel accommodation. Such conduct has as its object the restriction of competition within the meaning of Article 101(1) TFEU. The Commission concluded that Meliá's practices partitioned the single market and prevented the tour operators in the EEA from freely selling hotel accommodation cross-border, to the ultimate detriment of consumers.
The Commission confirmed that it is irrelevant whether the restrictive clauses have been enforced. (§42)
The Commission considered that the infringement by Meliá was a single and continuous infringement, because of the existence of a similar pattern in 2014 and 2015, the use of the same standard terms and the identical object of the contracts. (§52)
Lastly, the Commission emphasized that the cross-border sales restrictions in the contracts were liable to affect trade between Member States, since this was the very purpose of the contracts. Therefore, the contracts had an appreciable effect on trade between Member States and between contracting parties to the EEA Agreement. (§54)
C.2 - Article 101(3) TFEU – no block or individual exemption
The Commission confirmed that, due to the hardcore nature of the restrictions, Regulation 330/2010 (the Vertical Block Exemption Regulation or ‘VBER’ at that time) did not apply.
Despite the presence of a hardcore restriction in an agreement, the conduct could however possibly still be exempted under Article 101(3) TFEU or Article 53(3) of the EEA Agreement.
In this case, however, the Commission decided that the conditions for such an individual exemption were not fulfilled. The main reasons were that:
- Meliá did not provide any arguments in this respect;
- the contracts did not directly address the efficiencies sought by Meliá;
- consumers would not get a fair share of the resulting benefit; and
- clauses that restrict the ability of tour operators to sell accommodation to consumers outside of specified country/countries were not indispensable for improving the efficiency of Meliá hotel accommodation.
C.3 - Article 101(3) TFEU – no block or individual exemption
When determining the amount of the fine, the Commission noted that account should be taken of the fact that restrictions of active and passive sales restrict competition by their very nature and that the restriction covered the whole EEA. At the same time, the Commission noted that vertical restraints are generally less harmful than horizontal ones.
After a fine reduction of 30% in view of the cooperation provided by Meliá, a fine of EUR 6,678,000 was imposed on Meliá.