" 31A Commitments (1) Subsection (2) applies in a case where the CMA has begun an investigation under section 25 but has not made a decision (within the meaning given by section 31(2)). (2) For the purposes of addressing the competition concerns it has identified, the CMA may accept from such person (or persons) concerned as it considers appropriate commitments to take such action (or refrain from taking such action) as it considers appropriate. (3) At any time when commitments are in force the CMA may accept from the person (or persons) who gave the commitments- (a) a variation of them if it is satisfied that the commitments as varied will address its current competition concerns; (b) commitments in substitution for them if it is satisfied that the new commitments will address its current competition concerns. (4) Commitments under this section- (a) shall come into force when accepted; and (b) may be released by the CMA where- (i) it is requested to do so by the person (or persons) who gave the commitments; or (ii) it has reasonable grounds for believing that the competition concerns referred to in subsection (2) or (3) no longer arise. (5) The provisions of Schedule 6A to this Act shall have effect with respect to procedural requirements for the acceptance, variation and release of commitments under this section."
" 31B Effect of commitments under section 31A (1) Subsection (2) applies if the CMA has accepted commitments under section 31A (and has not released them). (2) In such a case, the CMA shall not- (a) continue the investigation, (b) make a decision (within the meaning of section 31(2)), or (c) give a direction under section 35, in relation to the agreement or conduct which was the subject of the investigation (but this subsection is subject to subsections (3) and (4)). (3) Nothing in subsection (2) prevents the CMA from taking any action in relation to competition concerns which are not addressed by commitments accepted by it. (4) Subsection (2) also does not prevent the CMA from continuing the investigation, making a decision, or giving a direction where- (a) it has reasonable grounds for believing that there has been a material change of circumstances since the commitments were accepted; (b) it has reasonable grounds for suspecting that a person has failed to adhere to one or more of the terms of the commitments; or (c) it has reasonable grounds for suspecting that information which led it to accept the commitments was incomplete, false or misleading in a material particular. (5) If, pursuant to subsection (4), the CMA makes a decision or gives a direction the commitments are to be treated as released from the date of that decision or direction."
"18. OTAs shall be free to offer Reductions in respect of Hotel Rooms at Hotel Properties located in the UK that are: (a) available to and redeemable by Closed Group Members who have made at least one Prior Booking with that OTA; (b) no greater than the level of commission earned by that OTA for the relevant Hotel Property by reference (at the choice of the OTA) to: (i) the level of commission for the particular transaction in respect of which a Reduction is being offered; or (ii) the aggregate commission earned for the relevant Hotel Property over the course of a time period determined by the OTA but not exceeding one year, starting from the Effective Date or such later date as the OTA chooses; and (c) available to EEA Residents in respect of Hotel Rooms at Hotel Properties located in the UK. 19. OTAs may publicise information regarding the availability of Reductions in a clear and transparent manner, including to price comparison websites and meta-search sites, subject to the following: (a) OTAs cannot publicise Specific Information about Reductions for any IHG Room to consumers who are not Closed Group Members, including on OTAs' own public websites and via price comparison websites and meta-search sites; and (b) any Other Hotel may prevent OTAs from publicising Specific Information about Reductions to consumers who are not Closed Group Members, including on OTAs' own public websites and via price comparison websites and meta-search sites. 20. IHG and/or any Other Hotel contracting with an OTA is entitled to require from that OTA such information as may reasonably be required to enable IHG or the Other Hotel to assess and verify compliance with paragraphs 18(a), 18(b) and 18(c). However, IHG and/or any Other Hotel may not impose any method of accounting on any OTA which may restrict, limit or impede the OTA from operating on the basis of arrangements which are consistent with the Principles. 21. OTAs shall not enter into or enforce any most favoured nation or equivalent provision as regards Reductions offered by Hotels to their respective Closed Group Members who have made at least one Prior Booking directly with that Hotel provided that: (a) such Reductions are only available to EEA Residents in respect of Hotel Rooms at Hotel Properties located in the UK; and (b) the Hotel does not publicise Specific Information about Reductions to consumers who are not Closed Group Members, including on the Hotel's own public website(s) and via price comparison websites and meta-search sites. 22. For the avoidance of doubt, the commitments do not in any way restrict: (a) the ability of Hotels to set the Headline Room Rates for their respective Hotel Rooms; or (b) benefits available to members of OTAs' and Hotels' existing loyalty schemes prior to the Effective Date."
"The grounds on which an administrative act or decision can be called into question by judicial review are well-established i.e. the traditional grounds of illegality, irrationality and procedural impropriety. These principles were elaborated upon by Lord Diplock in Council of Civil Service Unions v Minister for Civil Service[1985] AC 374 , at 410: "
"51. Article 9 of Regulation No 1/2003 is characterised by a concern for procedural economy. The Commission resolves the competition problems identified by it without first establishing an infringement in cooperation with the undertakings concerned on the basis of their voluntary commitments. In the context of a decision under Article 7, on the other hand, it would possibly have to identify remedies itself, which would require it to undertake much more extensive and lengthy investigations and also a fuller assessment of the facts. 52. The distinctive features of Article 9 of Regulation No 1/2003 affect the examination of the proportionality of decisions on commitments adopted under that provision in two ways. 53. First, higher demands are to be made in the context of Article 9 of Regulation No 1/2003 as regards the appropriateness of the commitments which have been made binding. If such commitments are not manifestly appropriate for eliminating the competition problems identified by the Commission, the Commission is entitled to reject them. Only in this way is it possible to meet the objective of Article 9 of Regulation No 1/2003, which is to ensure a quick and effective resolution of the competition problems while avoiding a considerable investigation and assessment effort on the part of the Commission. The Commission is not required to agree to commitments the appropriateness of which could be assessed only after a thorough examination by the Commission. [...] 57. However, in this connection the Commission is required to take into consideration only alternatives which are equally appropriate as the commitments offered to it with a view to resolving the competition problems identified. Both the commitments actually offered and any alternatives to those commitments must therefore be manifestly appropriate for resolving the competition problems. 58. [...] In accordance with the spirit and purpose of Article 9 of Regulation No 1/2003, the assessment of alternatives is not intended to require any extensive and lengthy investigations or evaluations. In proceedings under Article 9 the Commission need not take into consideration alternatives whose appropriateness could not be established with sufficient certainty without such efforts. [...] 60. The general interest in finding an optimum solution from the point of view of speed and procedural economy justifies restricting the choice of possible measures in the context of Article 9 of Regulation No 1/2003. Undertakings which offer commitments consciously accept that their concessions may go beyond what the Commission itself might impose on them following a thorough examination in a decision under Article 7 of Regulation No 1/2003. In return, with the termination of the antitrust proceedings initiated against them, they are quickly given legal certainty and can avoid the finding of an infringement of competition rules which would be detrimental to them and possibly an impending fine. 61. Third parties will also generally benefit from the fact that an undertaking makes relatively far-reaching concessions to the Commission in order to avoid a decision imposing a prohibition. As the present case clearly illustrates, however, commitments under Article 9 of Regulation No 1/2003 may sometimes work to the detriment of the interests of a third party. This is the case in particular where the third party has relied on the continued existence of a practice of a dominant undertaking which gives rise to concerns from the point of view of competition law. However, such reliance deserves at most limited protection, having regard to the general interest in undistorted competition."
"77. The existence of a margin of assessment in economic matters does not mean that the Community judicature must refrain from reviewing the Commission's interpretation of information of an economic nature. Rather, it has the power to examine the material lawfulness of Commission decisions with a view to ascertaining that the facts have been accurately stated and that there has been no material error of assessment. It must not only establish whether the evidence relied on is factually accurate, reliable and consistent but also examine whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it."
"Before accepting the commitments or variation, the CMA must– (a) give notice under this paragraph; and (b) consider any representations made in accordance with the notice and not withdrawn."
"To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent London Borough Council, Ex p Gunning(1985) 84 LGR 168 ."
"It is for the courts, if this matter is brought before them, to decide what is a relevant consideration. If the decision maker wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, his decision cannot stand and he must be required to think again. But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense ( Associated Provincial Picture Houses Ltd. v Wednesbury Corporation[1948] 1 KB 223 )"
" Hotel online booking: Notice of intention to accept binding commitments to remove certain discounting restrictions for Online Travel Agents and Invitation to comment "
"Meta-search is the primary mechanism deployed by OTAs (including the smaller OTAs) to drive increased sales. By not allowing meta-search engines to display discounted comparison prices, there is, by definition, no open price competition as there will be no user-friendly way of the consumer shopping around for the best price. This is a retrograde step in a world where consumers rely heavily on technology to seamlessly trawl the prices of competing suppliers of identical products in order to find the best deal."
"What will this do to the operation of price comparison sites? Will they now all have to offer log-ins for people who are members of the closed groups? And if they were to do that, how would the price comparison sites know whether or not the visiting consumers were or were not bona fide members of the closed group? Furthermore, if closed groups proliferate, how will the price comparison sites cope with them all? And if the price comparison sites cannot cope with them all, these rules emasculate the potency of the price comparison sites, which is not good for competition."
"Although the commitments specifically permit price comparison sites to be notified where Closed Group discounts are available, we would be unable to include actual discounted prices within our search results. The effect of this would be a lack of clarity for consumers in respect of the pricing available for hotel rooms, and inaccurate results for members of Closed Groups. Even where Skyscanner is able to indicate to consumers that discounts may be available if they join a Closed Group, this information would not be meaningful for consumers. They would be required to click through to the OTA website and log in and search for the pricing data on the OTA site again, hindering their ability to easily and accurately compare pricing. [...] Although it is clearly encouraging that competition within the online travel industry is being considered, Skyscanner does not believe that the commitments proposed enhance competition within the travel sector. The commitments have the potential to undermine the value afforded to consumers by both meta-search sites and search engines within the travel sector, and disrupt a distribution channel which specifically encourages competition within the travel sector. This disruption will only increase as the use of Closed Groups proliferates, ultimately obstructing active participation in the travel sector by distribution models other than OTAs and hotels, discouraging potential new entrants to the meta-search market, thus negatively affecting competition further."
"66. A meta-search site respondent submitted that the closed group and advertising restrictions envisaged by the Final Commitments would result in a lack of clarity for consumers with regard to price, and inaccurate search results for members of closed groups. It noted its belief that consumers are frequently driven by price, particularly in the case of making a hotel booking. Therefore, it considered that the Final Commitments have the potential to undermine the value of meta-search sites and search engines to consumers. 67. Furthermore, a meta-search site respondent requested that the Final Commitments be extended to relate to meta-search sites as well as OTAs and hotels, in those cases where a transactional booking does not take place on the meta-search website. It also requested that the Final Commitments allow discounts to be available after a prior purchase of any product offering, not only where there has been a previous hotel room booking."
"74. The Final Commitments allow hotels to prevent OTAs from publicising information regarding the specific level of discounts for a particular room to consumers who have not joined their closed groups, for example on price comparison websites and meta-search sites. There are similar restrictions on hotels publicising such information about the specific level of discounts from the headline rate they offer for a particular room without MFN provisions being enforced. However, OTAs and hotels are free to publicise information on the general availability of discounts in a clear and transparent manner, including to price comparison websites and meta-search sites (that is, to members and non-members). The OFT remains of the view that the Final Commitments, including the provisions relating to advertising, are sufficient to address its competition concerns, which relate to intra-brand competition and barriers to entry for OTAs. 75. The focus of the OFT's investigation has been restrictions on OTAs' discounting off the Room-Only Rate set by a hotel. The OFT has not investigated meta-search sites in this case and has made no assessment of whether similar restrictions may exist in this area. The OFT therefore does not consider it appropriate to extend the Final Commitments to meta-search sites, but also notes that transactional bookings, in relation to which discounts could be offered, do not take place on meta-search sites."
"(B)ooking of hotel accommodation by using the Internet has increased considerably over the past decade and is now the most commonly used method of booking hotel accommodation." (Annex 1, paragraph 1.8) "
"[...][T]he case team and I thought that Skyscanner's arguments were insufficiently substantiated for them to carry great weight." "
"I think sometimes, if you use the word "evidence" it obscures the real point which is that the OFT was talking about the overall material in front of it, and some of that material would have consisted of submissions which may have referred to existing facts. Other of that material would have consisted of submissions as to what might have happened, and one can imagine, for example, that if you were making a prediction as to what might occur, you could put in an economic model and that would be regarded as evidence."
"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court."
"(3) The CC, as decision-maker, must take reasonable steps to acquaint itself with the relevant information to enable it to answer each statutory question posed for it [...]: see e.g. Secretary of State for Education and Science v Tameside Metropolitan Borough Council[1977] AC 1014 , 1065B per Lord Diplock; Barclays Bank plc v Competition Commission[2009] CAT 27 at [24]. The CC "must do what is necessary to put itself into a position properly to decide the statutory questions": Tesco plc v Competition Commission[2009] CAT 6 at [139]. The extent to which it is necessary to carry out investigations to achieve this objective will require evaluative assessments to be made by the CC, as to which it has a wide margin of appreciation as it does in relation to other assessments to be made by it: compare, e.g., Tesco plc v Competition Commission at [138]-[139]. In the present context, we accept Mr Beard's primary submission that the standard to be applied in judging the steps taken by the CC in carrying forward its investigations to put itself into a position properly to decide the statutory questions is a rationality test: see R (Khatun) v Newham London Borough Council[2004] EWCA Civ 55 ;[2005] QB 37 at [34]-[35] and the following statement by Neill LJ in R v Royal Borough of Kensington and Chelsea, ex p. Bayani(1990) 22 HLR 406 , 415, quoted with approval in Khatun : "
"the various grounds for judicial review run together. The exercise of a power for an improper purpose may involve taking irrelevant considerations into account, or ignoring relevant considerations; and either may lead to an irrational result."
"Without the advertising restriction as a consumer you go to one website, you say, "
"Discounts may be available", "
"[F]reedom by OTAs to discount hotel accommodation without any restrictions may potentially have harmful effects by reducing the incentives of hotels to deal with OTAs (or to limit the number of OTAs that they deal with) thereby potentially damaging inter-brand competition, and chilling innovation in the development of new business models." (6.53) "
"A mechanism was proposed to allow OTAs and hotels to offer discounts that would not be publicly available and thus not subject to MFNs. This mechanism was the Closed Group. For this to be a potentially appropriate way of addressing the OFT's concerns, the OFT wanted to ensure that being a member was sufficiently easy so as not to discourage consumers from signing up."