Spotlight on data protection and e-commerce law for hotels in Germany


All the questions

Data and hotel technology

The processing of customer data has been an obligation for hoteliers for many years. In accordance with the Federal Registration Law, every hotel guest must sign a form upon arrival containing specific personal data such as name, date of birth, nationality or address. Foreigners must prove their identity by providing a valid identity document. Hotels are required to retain the form for a period of one year after guests check out and to destroy or delete the data within three months of the expiry of the one year period.

Since the entry into force of the European General Data Protection Regulation (GDPR) on May 25, 2018, the legal obligations regarding the processing of personal data have increased even further. The impact of the GDPR is wide, as its scope is not limited to personal data processed by European actors but also applies outside the borders of the European Union, whenever the personal data of residents of EU are processed in connection with the goods or services offered. The GDPR has introduced new concepts and requirements regarding the authorizations to be obtained for data processing, information duties, data pseudonymization or the “right to be forgotten”. This has led to the need for businesses of all kinds to implement comprehensive procedures in handling data. Violations of obligations under the GDPR can result in substantial penalties of up to €20 million or 4% of global turnover.12 Hotel operations are faced with the processing of personal data on several levels, either on the basis of legal obligations as described above, or as part of regular operations (for example, in the reservation process, the activities of marketing or payment procedures). It is therefore necessary to ensure compliance with legal requirements and, in particular, to educate and train staff, establish appropriate IT systems, check and update data protection declarations and IT settings. , to obtain the required consent from customers or, if required by law, to appoint a data protection officer.

The hospitality sector is one of the industries with the most notable increases in digitalization in Germany.13 Digitization has had an impact that goes far beyond the processing of personal data. Over the past 20 years, internet-based platform services have emerged which have greatly affected the hospitality industry. Online reservation platforms have become one of the most important forms of distribution for hotel reservations. In 2016, already a third of all hotel reservations in Germany would go through these platforms.14 While the growth of such distribution channels is beneficial to both platforms and hotel operators, certain aspects of the relationship between these two players are the subject of legal discussions. In particular, the “best price clauses” which are often part of the general conditions applicable to agency contracts between platforms and hoteliers have been the subject of disputes for several years. Best price clauses limit the possibility for the hotelier to offer the public more advantageous rates than those available on the booking platform outside the platform. This practice was challenged by German antitrust authorities, arguing that it would represent unfair competition. In June 2019, the Higher Regional Court in Düsseldorf ruled that “narrow” best price clauses (i.e. clauses that prohibit the hotel’s website from offering better rates than those of the platform) are valid, arguing that they are necessary to ensure a fair and balanced exchange of services and benefits between the parties, considering that the platform would only receive remuneration when a reservation actually takes place.15 However, the dispute was not finally settled by this decision. In July 2020, the German Federal Court agreed to reconsider the appeal brought by the antitrust authorities against the decision of the Higher Regional Court of Düsseldorf16 and in its decision of May 2021 ruled that these clauses are not valid.17

Digitization has also enabled platform-based sharing economy companies to enter the market, mainly represented by Airbnb. These platforms quickly became a relevant player in the market, representing a substantial share of overnight stays in Europe. Like other platforms, they face legal discussions, particularly regarding the lower level of regulation applicable to them compared to the hotel industry or regarding their impact on local housing markets, which are particularly strained in large cities. Europeans. Various municipalities have issued regulations to control to some extent the use of private accommodation for commercial purposes, limiting, for example, the number of nights per month that individuals are allowed to rent accommodation to guests through these platforms.


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