Summary of Commission Decision

of 21 February 2020

relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement

Case AT.40528 – Meliá (Holiday pricing)

(notified under document C(2020) 893)

(Only the English text is authentic)

(2020/C 182/07)

On 21 February 2020, the Commission adopted a decision relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003 (1) , the Commission herewith publishes the names of the parties and the main content of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets.

1. INTRODUCTION

(1) The Decision is addressed to Meliá Hotels International, S.A (hereafter “Meliá) for infringing Article 101 of the Treaty on the Functioning of the European Union (the ‘Treaty’) and Article 53 of the Agreement on the European Economic Area (‘EEA Agreement’).

(2) Between 1 January 2014 and 31 December 2015, Meliá participated in a single and continuous infringement concerning vertical contracts concluded by Meliá with tour operators that restricted active and passive sales of hotel accommodation.

2. PROCEDURE

(3) By decision of 2 February 2017, the Commission initiated proceedings pursuant to Article 2(1) of Regulation (EC) No 773/2004 against Meliá.

(4) On 5 August 2019, Meliá submitted a formal offer to cooperate in view of the adoption of a decision pursuant to Articles 7 and 23 of Regulation (EC) No 1/2003.

(5) On 4 November 2019, the Commission adopted a Statement of Objections addressed to Meliá. On 20 November 2019, Meliá submitted its reply to the Statement of Objections.

(6) The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 10 February 2020.

3. FACTS

(7) Meliá’s commercial relationships with tour operators for the distribution of hotel accommodation at Meliá’s holiday resorts are based on written contracts. Some of those contracts are based on Meliá’s standard terms and conditions (‘Meliá’s Standard Terms’).

(8) One of the clauses of Meliá’s Standard Terms (‘the Clause’) stated as follows: ‘APPLICATION MARKET: contract valid only and exclusively for the markets that are detailed in the observation 16. the hotel will be able to request to the agency/tour operator to verify the market of origin of any reservation on which it exist any reasonable doubt, in any case, if at the arrival of the clients to the hotel, it is verified that the country of residence of them is different than the one agreed as per contract, the hotel would be entitled to reject the reservation’.

(9) In the individual contracts with tour operators, Observation 16 was either empty or specified the country or countries for which the contract was valid.

(10) According to the information submitted by Meliá, 2 212 of Meliá’s contracts with tour operators in force in 2014 containing the Clause specified at least one EEA country in Observation 16. In 2015, that figure was 2 004 contracts. The contracts containing the Clause and specifying at least one EEA country in Observation 16 that were in force in 2014 and 2015 are together referred to as the ‘Relevant Contracts’.

4. LEGAL ASSESSMENT

(11) The Relevant Contracts constitute agreements within the meaning of Article 101(1) TFEU and Article 53(1) of the EEA Agreement.

(12) In the Relevant Contracts, Meliá and the contracting tour operators specified the territories to which each contract applied and thereby differentiated between European consumers on the basis of their country of residence.

(13) The content and the objective of the Clause of Meliá’s Standard Terms, in conjunction with Observation 16 of the Relevant Contracts was to restrict the ability of the tour operators to sell Meliá’s hotel accommodation to, and/or to respond to unsolicited requests from, consumers residing outside the country or countries specified in Observation 16.

(14) Accordingly, those agreements restricted the ability of the tour operators to freely sell the hotel accommodation in all EEA countries and therefore might have resulted in the partitioning of the internal market according to national borders. This conduct constitutes, by its very nature, a restriction of competition by object within the meaning of Article 101(1) of the Treaty.

(15) The Decision also finds that Meliá’s conduct is not exempted under Regulation (EU) No 330/2010, nor does it meet the conditions of Article 101(3) of the Treaty.

5. DURATION

(16) The Relevant Contracts were in force during 2014 and 2015. The duration of the infringement was from 1 January 2014 to 31 December 2015.

6. REMEDIES AND FINES

(17) Meliá confirmed that the necessary measures have been taken to bring the infringement to an end. However, it is necessary for the Commission to formally require Meliá to bring the infringement effectively to an end, if it has not already done so, and to refrain from any agreement or concerted practice which might have the same or a similar object or effect. The Decision also finds that the infringement was committed intentionally or at least negligently and that a fine needs to be imposed.

Basic amount of the fine

(18) In setting the fines, the Commission in principle takes into account the value of sales during the last full business year of the undertaking’s participation in the infringement. In this case, the Commission takes into account Meliá’s revenues for hotel accommodation services generated during 2015 and sold in accordance with Meliá’s Standard Terms, and where the contract between Meliá and the tour operator specified at least one EEA country in Observation 16.

Aggravating or mitigating circumstances

(19) There are no aggravating or mitigating circumstances present in this case.

Specific increase for deterrence

(20) In this case it is not necessary to apply any such increase

Application of the 10 % turnover limit

(21) The calculated fine does not exceed 10 % of Meliá’s total turnover.

Reduction of the fine in view of cooperation

(22) In order to reflect Meliá’s cooperation with the Commission beyond its legal obligation to do so, the basic amount of the fine is reduced by 30 % pursuant to point 37 of the Guidelines on Fines.

Final amount of the fine

(23) The final amount of the fine to be imposed on Meliá pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 is EUR 6 678 000.

(1) OJ L 1, 4.1.2003, p. 1.