Online travel booking, illustration · © Onyango George / EA Hospitality Pulse, own work

Europe's hotels spent twenty years getting to court. East Africa was handed the law in December.

By Onyango George (OG)

Some 18,000 European hotels will be claiming damages from Booking.com this autumn over price parity clauses. A regional regulation in force across Kenya, Uganda and Rwanda since December already prohibits those clauses by name. Nobody in East African hospitality has opened the file.

On 23 February, in Livingstone, Zambia, the COMESA Competition Commission formally launched the most consequential piece of law written for East African hotel distribution in a decade, and almost nobody from East African hotel distribution was in the room. The audience was competition lawyers, officials and consumer advocates. Willard Mwemba, the Commission's chief executive, used the occasion to describe dark patterns, the design tricks that nudge a shopper into a decision they did not quite make, as "the supreme evil of consumer violations." Chileshe Mpundu Kapwepwe, COMESA's secretary general, framed the week more soberly. "Effective enforcement is not merely a legal exercise, it is an economic imperative," she said.

The regulations being launched had been in force for eleven weeks by then. The COMESA Competition and Consumer Protection Regulations 2025 take effect, under Regulation 84, upon approval of the Council of Ministers, and the Council approved them on 4 December 2025. Buried in Chapter Three, at Regulation 38, is a list of practices prohibited to any undertaking designated as a gatekeeper. The first item on that list reads: "imposing price or service parity clauses on business users."

Seven months later, in a different jurisdiction, a much louder version of the same fight reached a procedural milestone. Registration closed on 11 September for European hotels joining the collective damages action against Booking.com before the Amsterdam District Court. The claim was filed on 30 January with 3,087 hotels. By 30 July it carried 10,783, and the Stichting Hotel Claims Alliance, the Dutch foundation running it with the support of HOTREC and more than thirty national hospitality associations, expects a third and final expansion this autumn to roughly 18,000 properties. It covers the period from 2004 to 2024 and is expected to run to several billion euros.

"Hospitality businesses across Europe have recognised the detrimental effects of Booking.com's anti-competitive practices and are now seeking redress," said Alexandros Vassilikos, HOTREC's president, when the July expansion was announced. The legal footing is the Court of Justice of the European Union's judgment of 19 September 2024, which found that Booking.com's wide and narrow parity clauses were not ancillary restrictions that could be waved through as necessary to the platform's business. Two decades of contract terms became, retrospectively, a liability.

It is worth being exact about what the clauses did, because the East African version of this argument depends on the distinction. A wide parity clause stopped a hotel offering a lower rate on a rival platform. A narrow one stopped it offering a lower rate on its own website. The second is the expensive one. It does not cap commission. It removes the only lever a hotel has to make its direct channel worth building, which is the ability to be cheaper there. The invisible cost is twenty years of not developing the muscle.

Six days before the European registration deadline, HOTREC published the numbers that explain why this is a structural case rather than a grievance. Its European Hotel Distribution Study 2026, released on 17 September and drawn from 2,713 properties, found direct bookings at 51 per cent of volume and online travel agencies at 29.9 per cent. The OTA share was 19 per cent in 2013. Within that 29.9 per cent, Booking Holdings accounts for around 69 per cent of bookings, and Booking Holdings and Expedia Group together for more than 85 per cent of the European OTA market. "Hotels need digital platforms, but they also need genuine choice," Vassilikos said. "Growing concentration must not translate into growing dependency."

Booking.com's answer is not evasive, and it deserves to be stated in its own words. "We believe the claims about Booking.com's past use of parity clauses are incorrect and unjustified," the company said in a statement published on 16 February. It argues the clauses were standard practice for years, that they fostered competitive pricing and transparency rather than suppressing competition, and that 74 per cent of hoteliers say the platform makes their business more profitable. On harm it is unambiguous: "no court or regulatory authority has determined that partners or consumers have suffered loss."

The company also notes, correctly, that the clauses are gone. "Booking.com doesn't use parity clauses in Europe anymore," the statement reads, removed as part of its compliance with the EU's Digital Markets Act, and it is careful to characterise that as a policy decision rather than a concession.

Read that sentence again with a Zanzibar beach resort in mind. Europe. The clauses went where a law arrived to take them. That is not a complaint about the platform, which is behaving exactly as a rational commercial party behaves. It is a statement about where the relevant variable sits, and the relevant variable is not the hotel's negotiating skill. It is the jurisdiction.

Australia is the control group. The Amsterdam claim is limited to the European market, and consumer advocates there have been blunt about what that means. "We know that it's very unlikely we'll see similar court cases in Australia that will return money back into Australian pockets," Erin Turner, chief executive of the Consumer Policy Research Centre, told the ABC in May. Same platform, same contract architecture, no instrument, no remedy.

Which is what makes South Africa the most useful precedent on the continent. On 13 August 2024, the Competition Commission announced a settlement with Booking.com arising from its Online Intermediation Platforms Market Inquiry. The company agreed to remove "the wide and narrow price parity terms from all contracts with accommodation providers in South Africa." Crucially, it also agreed to remove those terms "from any criterion for participation in Booking.com's incentive programmes (Genius, Preferred Partner or Preferred Plus) or any other membership programmes," and to fund a programme to onboard and grow small and medium establishments owned by historically disadvantaged persons.

That second remedy is the one that does the work, and it is the one most operators misunderstand. Strike a parity clause out of a contract and a platform can still achieve the same outcome through visibility: price discipline becomes a condition of ranking rather than a condition of listing. Booking.com's own framing of these schemes is that "any additional programs that our partners choose to opt into for increased visibility and bookings are entirely optional." Optional is doing a great deal of work in a market where the platform supplies a third of the bookings.

South African operators understood immediately what they had been handed. "If a hotel wants to sell the lowest/best rate possible on their own website, they should be able to do so," said Graham Wood, chief operating officer of Sun International. Tshifhiwa Tshivhengwa, chief executive of the Tourism Business Council of South Africa, put it in occupancy terms: "A room not filled per night is a room lost and this agreement will allow businesses to price for higher occupancy."

Now read Regulation 38 again. It does not stop at parity. It also prohibits "imposing anti-steering provisions, or otherwise preventing business users from engaging consumers directly outside of a core platform," and, at paragraph (e), "differentiation in fees or treatment against small and medium enterprises." A regional regulation already in force across Kenya, Uganda, Rwanda and Burundi prohibits, in terms, both the clause South Africa negotiated away in 2024 and the visibility-programme workaround that South Africa had to negotiate away separately. Regulation 37 adds the fallback: abuse of economic dependence, which arises where switching possibilities "do not exist," and which expressly "does not require a dominant position in any market." Regulation 28 supplies the South African route itself, allowing the Commission, on the findings of a market inquiry, to "enter into agreements with undertakings to implement necessary remedies." Regulation 5 reaches any economic activity having an effect in two or more member states, which a platform selling Nairobi, Kampala and Kigali plainly does. Tanzania, which withdrew from COMESA on 2 September 2000, is outside all of it, so Zanzibar and the mainland would need the national route instead.

Kenya is building that national route in parallel, and it is further along than the coverage suggests. The Competition (Amendment) Bill 2026 was gazetted on 19 February and sponsored by Kimani Ichung'wah, the Leader of the Majority Party. Its memorandum states the object plainly: to broaden the Authority's mandate "in addressing anti-competitive conduct in digital markets and unfair market conduct arising from the abuse of superior bargaining position." The Bill's definition of digital activity expressly includes "online intermediation services, including online marketplaces." Booking platforms are not an edge case here. They are the named subject.

The operative provisions are new sections 40A to 40C, inserted as a Part headed Unfair Market Conduct. Section 4(6) defines a superior bargaining position as an imbalance in rights and obligations where "the counterparty cannot find a viable and satisfactory alternative in the market," and section 4(7) removes the need to establish dominance at all. Section 40B then lists the conduct, and the list reads like an audit of platform contracting: unilateral variation of terms without prior notice, demands for preferential terms unfavourable to the counterparty, service fees above competitive levels, unduly difficult conditions for terminating the service. Section 40B(4) tells the Authority what to weigh, and it is the degree of dependence, the possibility of changing counterpart, and whether the party under investigation is "an unavoidable trading partner." Under section 40C the Authority may act on its own initiative or on a complaint from any person. The sanction is not the headline figure of ten million shillings. It is the new section 91A, which allows an administrative penalty of up to ten per cent of the preceding year's gross annual turnover in Kenya, recoverable as a civil debt.

Two honest limits. Regulation 38 binds undertakings "designated as gatekeepers," and while the Regulations define the term, the published text sets out no designation procedure. Until someone is designated, the parity prohibition is a loaded instrument with no finger on it, and Regulation 37 or a market inquiry is the nearer path. Second, this is not an argument that applies evenly across East African hospitality. For a high-end Serengeti or Laikipia camp, the binding channel is the tour operator and the net rate, not the OTA, and no public figure exists for what share of East African room nights moves through platform distribution. That absence is itself telling. HOTREC can say 29.9 per cent because it surveyed 2,713 properties. Nobody has done that work here, and a regulator cannot act on a dependence it has no measurement of.

Which points at the only sensible thing to do this quarter, and it is not litigation. It is documentation, because both instruments are evidentiary and both ask the same question. Keep the current platform contract and every version of the visibility programme terms. Record what happened to ranking the last time a direct rate undercut the platform rate. Log the commission tier and what it was contingent on. Note every unilateral change to terms and whether notice was given, because that is section 40B(2)(d) and it is free to prove.

Europe's hotels will probably win something. It took them a judgment, a foundation, thirty associations, 18,000 claimants and twenty years of overpayment to get there, and the money, when it comes, goes to European balance sheets. East Africa was handed the prohibition before the harm had been fully priced, written into regional law in words a hotelier can read without a lawyer. The only thing standing between the region's operators and a remedy of their own is that nobody has yet written anything down.