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The Supreme Court ruled that Booking.com is a travel agent, despite calling itself an IT platform. The decisive factor is the concept of “mediation” (Article 7:425 of the Dutch Civil Code): anyone who performs activities that are ancillary to the conclusion of an agreement acts as a mediator — even without being personally involved in the conclusion. For online platforms, this means that their self-chosen label does not determine which rules apply to them.
You book holiday accommodations via Booking.com. The company primarily calls itself an IT company, but the Industry Pension Fund for the Travel Sector (Bpf Reisbranche) argued that it is a travel agent. If that is the case, Booking.com is required to participate in the travel industry pension scheme. The Supreme Court ruled on the matter.
Sub-district court and court of appeal: not a travel agent
The sub-district court (ECLI:NL:RBAMS:2016:9040) previously ruled that Booking.com is not a travel agent, and the Amsterdam Court of Appeal (ECLI:NL:GHAMS:2019:1849) confirmed this. They examined the concept of “mediation”—a core characteristic of a travel agent—and the extent to which Booking.com is involved in the formation of the agreement. According to them, it merely concerned a digital platform where the agreement could be concluded, so that Booking.com did not fall under the mandatory participation decree. Bpf Reisbranche appealed to the Supreme Court.
The Supreme Court: indeed a travel agent
The Supreme Court rules differently (ECLI:NL:HR:2021:527), in line with the Advocate General, and refers to the meaning of mediation in Article 7:425 of the Dutch Civil Code. In short: mediation occurs when an intermediary performs activities that serve the conclusion of the agreement. The intermediary therefore does not need to be personally involved in that conclusion. Several elements point to mediation in this regard:
- Booking.com receives compensation upon the conclusion of the agreement, not for merely offering advertising space.
- The platform aims to encourage the conclusion of agreements, not to compare providers and then approach them outside the platform (although that is theoretically possible).
- The entire administrative process is handled via Booking.com.
In doing so, Booking.com acts as an intermediary and is a travel agent. However, this does not automatically mean that it is immediately required to participate in the pension fund: the Supreme Court overturns the ruling and remits the case. The Court of Appeal must now assess whether the remaining requirements have been met and, if so, from which date mandatory participation applies.
More attention for staff of online platforms
Online platforms are subject to an increasing number of regulations, and questions are also arising about how they treat their employees. The best-known example is Deliveroo's food delivery drivers, who, following intervention by the FNV, were found to be entitled to an employment contract. Anyone wishing to conquer the market with an online platform must therefore carefully consider the legal consequences.
Frequently Asked Questions
Why is Booking.com a travel agent according to the Supreme Court?
Because it acts as an intermediary within the meaning of Article 7:425 of the Dutch Civil Code: it performs activities that are ancillary to the conclusion of the booking, receives remuneration for this, and settles everything via the platform.
Does a company determine for itself which rules apply to it?
No. It is not the label (“IT company”) but the actual activity that is decisive. Anyone who acts as an intermediary in practice can be classified as a travel agent, regardless of what they call themselves.
Does Booking.com have to participate in the pension fund now?
That has not yet been decided. The Supreme Court referred the case back; the Court of Appeal must assess whether the other conditions have been met and from when.
Are you unsure under which rules your platform falls?
The classification of your activities determines your obligations. The legal experts at MKB Juristen help you map this out. View our expertise in corporate law or schedule an intake meeting .
