The Advocate Normal has concluded to overturn the prior courtroom ruling in the case involving the required pension fund for the journey market (‘Bpf Reisbranche’) versus Reserving.com. In accordance to the Advocate Normal, the actions of Booking.com and its employees tumble inside the definition of ‘(on line) journey agent’ as included in the scope provisions of Bpf Reisbranche.
The pension scheme of the Dutch industry pension fund for the vacation marketplace (‘Bpf Reisbranche’) is mandatory for companies and their staff doing work in the travel marketplace.
This scenario focuses on the issue irrespective of whether Scheduling.com qualifies as an ‘(on the net) travel agent’ and for that reason falls in just the qualitative scope provisions of Bpf Reisbranche.
In the ministerial decree for Bpf Reisbranche, ‘(on line) journey agent’ is defined as follows: “the employer who professionally mediates in the realization of contracts in the industry of vacation in the broadest feeling of the term, such as contracts with regards to transportation, accommodation and package excursions.”
In 2014, Bpf Reisbranche knowledgeable Scheduling.com it was concluded that its organization falls within just the scope of Bpf Reisbranche. Reserving.com disputed this conclusion and was finally summoned by Bpf Reisbranche to seem just before court docket.
Preceding court docket rulings
Both former courts have dominated that Reserving.com is not an ‘(on the net) journey agent’ as defined in the ministerial decree, since it does not ‘actively mediate’ involving customer and accommodation provider, or at least is not ‘actually involved’ in the realization of vacation contracts. Both equally rulings have been critically obtained in lawful literature.
A cassation appeal has been lodged in opposition to the ruling of the courtroom of attractiveness. The content of the (not long ago published) Advocate General’s Impression is briefly talked about below. This Feeling is an unbiased ‘advice’ to the Supreme Courtroom the Supreme Court docket is not obliged to abide by this guidance.
Advocate General’s View
The Advocate Standard concludes to overturn the prior court docket of appeal ruling and to refer the case to yet another court of charm.
According to the Advocate Basic, the court docket of attraction evidently assumed that there can only be ‘mediation’ (as described in the required decree) in situation Reserving.com by itself helps make a reservation with an accommodation company. The Advocate Common concludes that this is not in accordance with an objective interpretation of the expression ‘mediation’. It is adequate that the activities of the intermediary are aimed at, or can add to, the realization of a agreement. An ‘active or advisory role’ is not essential.
Scheduling.com receives commission for producing thriving bookings through its internet site. It does not get any reward just for positioning an advertisement. In addition, Booking.com is offered to buyers with questions about their reservation (or about the lodging provider) and is actively dedicated to making certain that its consumers are satisfied with their keep. On top of that, Reserving.com exerts influence on the pricing of the lodging companies by prohibiting them from offering their lodging cheaper on their own websites.
Ultimately, according to the Advocate Common, the court of charm would seem to misunderstand that mediation does not suggest ‘exclusivity’. More conventional journey brokers generally also do not stipulate exclusivity: they also let an accommodation service provider present its lodging as a result of other channels, and they let the purchaser to guide an accommodation outdoors of their own web page. The latter circumstance is as a result insufficient to qualify Scheduling.com as (just) a ‘digital notice board’ (as referred to in the Duinzigt judgment of the Supreme Court docket, ECLI:NL:HR:2015:3099) instead of a journey agent (‘mediator’).
As talked about prior to, the Supreme Courtroom is not obliged to observe this Belief from the Advocate Typical. A Supreme Court ruling could provide a ‘precedent’ with regard to comparable businesses. We will inform you as quickly as the Supreme Court docket has rendered its judgment.