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On January 12, 2021, the National Commission on Markets and Competition (“CNMC”) dismissed T-BONET’s complaint against LA FOURCHETTE S.A.S (operating as “ElTenedor” in Spain) and GOOGLE INC. (“Google”). T-BONET, a restaurant company, claimed that Google unreasonably gave priority to ElTenedor’s reservation system over its own booking platform, thereby infringing articles 1 and 2 of the Spanish Competition Act (“LDC”).
The CNMC decided not to initiate sanctioning proceedings because it did not find (i) proof of possible anticompetitive effects; (ii) an agreement between ElTenedor and Google to prioritize ElTenedor’s reservation system; or (iii) abuse of dominance by ElTenedor in the relevant market.
ElTenedor has been a subsidiary of TripAdvisor since 2014, and it is the Spanish brand of the French company “La Fourchette S.A.S,” which offers a restaurant directory and a booking and table management system through its own site, mobile app and partner websites. ElTenedor and Google’s partnership allows users to click on “reserve with Google” to make reservations in hotels, restaurants and other establishments using any Google service (e.g., Google’s search engine or Google Maps).The “reserve with Google” feature is offered to restaurants that have subscribed to ElTenedor’s “Pro+” plan.
On November 16, 2018, T-BONET, a company specializing in creative dining that owns a restaurant in Alicante, filed a complaint before the CNMC claiming that Google Maps’ search engine gave priority to ElTenedor’s reservation system over the restaurant’s one. T-BONET added that its table bookings were offered through the “reserve with Google” feature despite the fact that the restaurant was not subscribed to that service.
T-BONET was using ElTenedor’s services and Google’s “My business” app simultaneously. However, although the restaurant had not purchased ElTenedor’s “Pro+” plan, the “reserve with Google” option was available from August 8 to December 17, 2018. On that date, ElTenedor requested that Google remove the feature, since it was not authorized. While the “reserve with Google” option was available, Google did not manage any table bookings for the restaurant through that online tool.
According to T-BONET, while both links were available (the restaurant’s and the ElTenedor’s “reserve with Google” option) Google unreasonably gave priority to ElTenedor’s link over its own due to an alleged agreement between ElTenedor and Google or to ElTenedor’s abuse of dominance.
Analysis based on article 1 LDC
First, under article 1 LDC, the CNMC considers it proven that ElTenedor, as a table booking and management platform, and T-BONET, as a restaurant, are competitors in the restaurant market.
However, the CNMC found that the agreements between ElTenedor and Google do not evidence any unequal or discriminatory treatment by Google with respect to table booking platforms and restaurants. T-BONET was also unable to prove that there was discriminatory treatment, and the CNMC has not received any other complaints from market operators. Although T-BONET proved that it had not requested the “reserve with Google” feature, no reservations were made through Google while the feature was available.
The CNMC found no evidence that the disputed conduct had any effects on the market. Therefore, the CNMC did not find an infringement of article 1 LDC.
Analysis based on article 2 LDC
Second, under article 2 LDC, the CNMC considers that the agreements submitted by ElTenedor include a clause, applicable by default, that entitles ElTenedor to establish unfavorable billing conditions for any restaurants refusing to be included in ElTenedor partner sites. However, the CNMC concludes that there is no proof that ElTenedor is using this clause, since the restaurants no longer posting the reservation feature on a partner site are not charged extra. The CNMC also found that “the facts are absolutely exceptional and have not been reported by other market operators,” so that the allegedly anticompetitive practices would not have a sufficient impact on the restaurant market.
The CNMC concludes that there is no evidence of abuse of dominance by ElTenedor under article 2 LDC. As a result, the CNMC decided not to initiate sanction proceedings; and to dismiss the complaint.
See the full CNMC resolution here: Case S/0004/19: GOOGLE EL TENEDOR
This post is also available in: Español