Advocate General: Booking.com qualifies as an ‘(online) travel agent’
The Advocate General has concluded to overturn the previous court ruling in the case between the mandatory pension fund for the travel industry (‘Bpf Reisbranche’) against Booking.com. According to the Advocate General, the activities of Booking.com and its employees fall within the definition of ‘(online) travel agent’ as included in the scope provisions of Bpf Reisbranche.
The pension scheme of the Dutch industry pension fund for the travel industry ('Bpf Reisbranche') is mandatory for companies and their employees working in the travel industry.
This case focuses on the question whether Booking.com qualifies as an '(online) travel agent' and therefore falls within the qualitative scope provisions of Bpf Reisbranche.
In the ministerial decree for Bpf Reisbranche, '(online) travel agent' is defined as follows: "the employer who professionally mediates in the realization of contracts in the field of travel in the broadest sense of the word, including contracts regarding transport, accommodation and package tours."
In 2014, Bpf Reisbranche informed Booking.com it was concluded that its company falls within the scope of Bpf Reisbranche. Booking.com disputed this conclusion and was eventually summoned by Bpf Reisbranche to appear before court.
Previous court rulings
Both previous courts have ruled that Booking.com is not an '(online) travel agent' as defined in the ministerial decree, because it does not 'actively mediate' between customer and accommodation provider, or at least is not 'actually involved' in the realization of travel contracts. Both rulings have been critically received in legal literature.
A cassation appeal has been lodged against the ruling of the court of appeal. The content of the (recently published) Advocate General’s Opinion is briefly discussed below. This Opinion is an independent 'advice' to the Supreme Court; the Supreme Court is not obliged to follow this advice.
Advocate General's Opinion
The Advocate General concludes to overturn the previous court of appeal ruling and to refer the case to another court of appeal.
According to the Advocate General, the court of appeal apparently assumed that there can only be 'mediation' (as mentioned in the mandatory decree) in case Booking.com itself makes a reservation with an accommodation provider. The Advocate General concludes that this is not in accordance with an objective interpretation of the term 'mediation'. It is sufficient that the activities of the intermediary are aimed at, or can contribute to, the realization of a contract. An 'active or advisory role' is not required.
Booking.com receives commission for making successful bookings through its website. It does not receive any reward just for placing an advertisement. In addition, Booking.com is available to customers with questions about their reservation (or about the accommodation provider) and is actively committed to ensuring that its customers are satisfied with their stay. Furthermore, Booking.com exerts influence on the pricing of the accommodation providers by prohibiting them from offering their accommodations cheaper on their own websites.
Finally, according to the Advocate General, the court of appeal seems to misunderstand that mediation does not imply 'exclusivity'. More traditional travel agents usually also do not stipulate exclusivity: they also let an accommodation provider offer its accommodation through other channels, and they allow the customer to book an accommodation outside of their own website. The latter circumstance is therefore insufficient to qualify Booking.com as (just) a 'digital notice board' (as referred to in the Duinzigt judgment of the Supreme Court, ECLI:NL:HR:2015:3099) instead of a travel agent ('mediator').
As mentioned before, the Supreme Court is not obliged to follow this Opinion from the Advocate General. A Supreme Court ruling could provide a 'precedent' with regard to comparable companies. We will inform you as soon as the Supreme Court has rendered its judgment.
Mathieu HalsemaSenior associate Attorney at law
Mathieu J.H. Halsema, attorney at law, is a member of the Employment & Benefits practice group in our Rotterdam office. He focuses on advice and legal proceedings regarding the scope of application of industry-wide regulations, such as collective labour agreements and collective pension regulations.T: +31 10 224 67 31 E: email@example.com
Robert GoedhartAssociate Transaction lawyer
Robert Goedhart, transaction lawyer, is a member of the Employment & Benefits practice group in our Rotterdam office. He focuses on advice and legal proceedings regarding the scope of application of mandatory industry-wide regulations in the Netherlands.T: +31 10 224 61 89 E: firstname.lastname@example.org