Ruling on May 28, 2019
Authority: Court of appeal Amsterdam
Parties: Stichting bedrijfstakpensioenfonds voor de reisbranche / Booking.com
Subject: No compulsory participation of platform Booking.com in the occupational pension fund for the travel industry.
Summary of facts: By decision of the SZW state secretariat (the obligation decision), participation in Bpf Reisbranche has been made compulsory for employees aged 21 to 64 who are employed in the travel industry. Booking.com provides information on its website about the operation of the online reservation service. It states, among other things, that Booking.com itself does not offer the services on the website and therefore does not sell accommodation. When a booking is made via the website, a contractual relationship is entered directly with the provider of accommodation, whereby Booking.com communicates the reservation details to the provider and sends a confirmation e-mail to the booker. The booking service is free for the user. The payment is directly charged by the provider. Booking.com receives a commission from the provider after a booker has stayed with the provider's accommodation. In the first instance, Bpf Reisbranche has demanded a court order that Booking.com is obliged to participate in Bpf Reisbranche, since Booking.com falls under the term '(online) travel agent' as defined in the lighting decree because it mediates in the conclusion of agreements in the field of travel. The Subdistrict Court rejected the claims. He considered that "mediating" must mean an activity in which the intermediary intervenes in order to conclude a contract, and that this active role cannot be assigned to Booking.com in the conclusion of the individual travel contracts via the platform it operates. Bpf Reisbranche appeals against this decision.
Legal question: Whether the operator of the reservation platform Booking.com falls within the concept of travel agent of the operative provision of the Compulsory Decree of 23 December 1996?
Considerations: Next, in so far as the host and the guest are connected by means of an electronic platform without the intermediation service provider, on the one hand, or the host or guest, on the other, being present at the same time, that service constitutes a service which is provided electronically and at a distance. Indeed, at no point during the process of concluding the contracts between, on the one hand, Airbnb Ireland or Airbnb Payments UK and, on the other, the host or the guest, do the parties come into contact other than by means of the Airbnb Ireland electronic platform.
Ruling: The operation of an online booking platform such as Booking.com does not fall under the concept of "mediating in the conclusion of contracts".