Today, a Dutch judge suspended penalties by the Dutch Consumer authorities imposed 
to 3 large online travel agencies. “Price changes are the result of the dynamic 
nature of the market, over which the online travel agency has no influence.”

 The Dutch consumer enforcement agency (“ACM”) has imposed orders subject to incremental penalty payments on three online travel agencies and has decided to publish those orders. According to ACM, the travel agencies are violating unfair trading practices by displaying an entry-level price on package holidays that can still change upwards or downwards during the booking process. The court in preliminary relief proceedings understands the applicants‘ explanation to mean that the difference between the starting price first shown and the price shown after the price check is caused by changes in the availability or prices of the travel elements offered by the applicants’ suppliers. The entry-level price first shown was correct and current at the time the package holiday was placed on the website, but due to changes in availability and to dynamic or fluid pricing by the suppliers of the travel elements, this price has become obsolete. With the applicants, the interim relief judge considers that the ACM misinterprets the quoted part of the European Commission’s Guidelines on Unfair Commercial Practices Directive. Unmistakably, the Commission has in mind there the situation that the price changes during the booking process because price changes are the result of the dynamic nature of the market, over which the online travel agency has no influence

 In this case, as a remedy, the Commission points to making it clear to consumers the likelihood of sudden price changes when advertising prices. Rulings by the Advertising Code Committee and the Board of Appeal also explicitly recognise that sudden price changes may occur in the travel industry. Furthermore, the question of whether there are unfair commercial practices within the meaning of Section 6:193d(2), in conjunction with Section 6:193e(1) (introductory phrase and point (c)) and Section 6:193f (introductory phrase and point (c)) and Section 7: 502(1)(c) of the Dutch Civil Code also always – unlike in commercial practices as referred to in Article 6:193g of the Dutch Civil Code – the question can (and should) be raised whether, as a result of an omission, the average consumer takes or may take a decision about a contract, which he would otherwise not have taken (cf. ECLI:NL:CBB:2015:285, paragraphs 7.3 and 7.6). The applicants have disputed, on the basis of their own empirical research, that there is an omission whereby the average consumer takes or is able to take a decision on a contract that he would not otherwise have taken. Given the results of this research, there is also considerable doubt as to whether the average consumer is being led astray. Both the charges and the disclosure decisions are suspended.

 Although the court suspends the orders to incremental penalty, the ACM can appeal to this decision within 6 weeks.

 The complete Dutch text of this provisional arrangement can be found here (in Dutch): https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBROT:2024:9494

 The news item published by the ACM on this subject (in Dutch): https://www.acm.nl/nl/publicaties/acm-waarschuwt-consumenten-voor-prijsverspringingen-bij-vakantiereizen

 Tip: machine translations into English or German are reasonable accurate using Deepl (www.deelpl.com)