Switzerland: Lex Booking - Switzerland further restricts the contractual freedom of online booking platforms

In brief

It is well known that online booking platforms often contractually restrict the freedom of accommodation providers to set their own prices for the accommodation offered (so-called "price-fixing clauses"). A newly adopted amendment to the Swiss Act against Unfair Competition (UCA) now limits these as well as other practices of online booking platforms.


Prohibition of wide price parity clauses since 2015

The general term "price-fixing clause" includes price parity clauses as well as clauses that an accommodation provider undertakes not to undercut a certain lower price specified by the platform operator. In the case of price parity clauses, a distinction must be made between narrow and wide price parity clauses. In the case of narrow price parity clauses, an accommodation provider undertakes vis-à-vis an online booking platform not to demand a lower price on its own website than on the online booking platform. In the case of wide price parity clauses, an accommodation provider undertakes not to offer lower prices on any other sales channel, i.e., not by email or telephone, or on another competing online booking platform.

In 2015, the Swiss Competition Commission prohibited operators of booking platforms from restricting accommodation providers in their offer policy by means of these so-called wide price parity clauses. The investigation focused on contractual clauses imposed by the platforms, according to which accommodation providers were not allowed to set lower prices or offer a larger number of rooms on any other distribution channel. Therefore, accommodation providers could not offer more favorable offers on distribution channels with lower commission rates. In a ruling of 19 October 2015, the Competition Commission considered the use of these contractual clauses to be a violation of the Swiss Cartel Act and hence prohibited them (see here).

Further restrictions of the contractual freedom of online booking platforms

In 2016, a member of the Swiss parliament requested that the Swiss Federal Council also prohibit so-called "narrow price-fixing clauses" in contracts concluded between online booking platforms and accommodation providers (see here). The Federal Council initially did not want to follow suit with this request but the majority of the Swiss parliament ordered the Federal Council to devise a draft of a new provision of the Swiss UCA.

The Federal Council, therefore, drafted a new Article 8a UCA, providing for a prohibition of the use of general terms and conditions by online booking platforms that restrict the pricing of accommodation providers by means of price parity clauses (see here). However, this draft was considered insufficient by parliament, which last week agreed on adding a prohibition of availability and condition parity clauses (see here).

As a consequence, the new Article 8a UCA will prohibit the use of general terms and conditions by online booking platforms, which directly or indirectly restrict the pricing and supply of accommodation providers through parity clauses, namely through price, availability or condition parity clauses. This means that online booking platforms will no longer be allowed to require accommodation providers to provide them with the same or better rates and conditions for the same accommodation with (at least) the same features, as made available by the hotels on their own online channels or any other (online and offline) channel.

While a minority of the Swiss parliament wanted to subject violations of this new Article 8a UCA to criminal sanctions, this was ultimately rejected. The use of parity clauses by online booking platforms is therefore merely subject to civil law sanctions and affects accommodation providers as well as competitors, professional or trade associations, and, if collective interests are at stake, the federal government may file a civil lawsuit against the concerned booking platforms.

Next steps

Both chambers of the Swiss parliament have approved the text of the new Article 8a UCA on 8 June 2022. It is now up to the Swiss Federal Council to decide the date on which these new restrictions for online booking platforms will enter into force.


Copyright © 2022 Baker & McKenzie. All rights reserved. Ownership: This documentation and content (Content) is a proprietary resource owned exclusively by Baker McKenzie (meaning Baker & McKenzie International and its member firms). The Content is protected under international copyright conventions. Use of this Content does not of itself create a contractual relationship, nor any attorney/client relationship, between Baker McKenzie and any person. Non-reliance and exclusion: All Content is for informational purposes only and may not reflect the most current legal and regulatory developments. All summaries of the laws, regulations and practice are subject to change. The Content is not offered as legal or professional advice for any specific matter. It is not intended to be a substitute for reference to (and compliance with) the detailed provisions of applicable laws, rules, regulations or forms. Legal advice should always be sought before taking any action or refraining from taking any action based on any Content. Baker McKenzie and the editors and the contributing authors do not guarantee the accuracy of the Content and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the Content. The Content may contain links to external websites and external websites may link to the Content. Baker McKenzie is not responsible for the content or operation of any such external sites and disclaims all liability, howsoever occurring, in respect of the content or operation of any such external websites. Attorney Advertising: This Content may qualify as “Attorney Advertising” requiring notice in some jurisdictions. To the extent that this Content may qualify as Attorney Advertising, PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME. Reproduction: Reproduction of reasonable portions of the Content is permitted provided that (i) such reproductions are made available free of charge and for non-commercial purposes, (ii) such reproductions are properly attributed to Baker McKenzie, (iii) the portion of the Content being reproduced is not altered or made available in a manner that modifies the Content or presents the Content being reproduced in a false light and (iv) notice is made to the disclaimers included on the Content. The permission to re-copy does not allow for incorporation of any substantial portion of the Content in any work or publication, whether in hard copy, electronic or any other form or for commercial purposes.