Action brought on 5 December 2023 – Booking Holdings v Commission

(Case T-1139/23)

Language of the case: English

Parties

Applicant: Booking Holdings Inc. (Norwalk, Connecticut, United States) (represented by: F. González Díaz and R. Snelders, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul the European Commission’s Decision C(2023) 6376 final of 25 September 2023 in Case COMP/M.10615 – Booking Holdings/eTraveli Group (the “Decision”);

order the Commission to bear its own costs and pay the applicant’s legal costs and other fees and expenses incurred in connection with this application.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

First plea in law, alleging that the Decision errs by departing without justification from the Non-Horizontal Merger Guidelines (“NHMG”)’s established anticompetitive foreclosure framework, and by mischaracterizing procompetitive benefits as anticompetitive effects.

-    Having acknowledged the NHMG should normally apply to this case, the Decision fails to apply them. The Decision does not give proper justification for doing this. Because the Commission is required to justify such a departure and failed to do so, the Decision erred by not applying the NHMG.

-    Even assuming the Decision had given adequate justification for deviating from the NHMG, the Decision’s theory of harm mischaracterizes procompetitive benefits as anticompetitive effects.

Second plea in law, alleging that the Decision errs by rejecting the parties’ legally binding and commercially successful cooperation at the time of the merger as the baseline counterfactual to instead rely on an inconceivable “zero-flights” counterfactual in which Booking.com (“Booking”) would not be present in flights at all.

The Decision erred by rejecting the parties’ ongoing and successful flights cooperation at the time of the merger as the relevant counterfactual.

Even assuming the Decision had been entitled to ignore the parties’ legally binding and ongoing cooperation, there was no basis for the Decision to take as a starting point for its competitive assessment a “zero-flights” counterfactual scenario, which inconceivably suggests the most likely outcome of the Transaction not proceeding is that Booking will exit flights entirely.

Third plea in law, alleging that the Decision errs by finding, even on its erroneous framework and flawed counterfactual, that the Transaction could result in a significant impediment to effective competition.

Even if the Decision had been entitled to depart from the NHMG and to adopt the patently wrong “zero-flights” counterfactual, the Decision’s competitive assessment commits multiple significant and obvious errors – including by applying an unlawful and markedly lower standard of intervention than set out in the Court’s case law; by significantly overstating the alleged impact of the Transaction, notably by miscalculating any possible market share increment the Transaction might cause; by failing to demonstrate that the Transaction would increase entry and expansion barriers as a result of increased network effects; by failing to account for obvious and significant ongoing competitive constraints; by badly mischaracterizing Booking’s commission rates and room prices; and by wrongly dismissing the Transaction’s demonstrable efficiencies.

____________