On 8 March 2024 the Düsseldorf Higher Regional Court decided to reject large parts of Deutsche Bahn AG’s (DB) request for summary proceedings against the Bundeskartellamt’s decision in its abuse proceedings against DB. On 26 June 2023 the Bundeskartellamt had ruled that DB was in violation of competition law due to abusing its market power in relation to mobility platforms. The authority had ordered DB to change certain practices and contractual clauses that it found to be restricting competition at the expense of rival mobility platforms (see press release of 28 June 2023).

Andreas Mundt, President of the Bundeskartellamt: “In this summary decision the Düsseldorf Higher Regional Court has confirmed the enforceability of large parts of our ruling against Deutsche Bahn. We therefore intend to continue to enforce our decision. The court’s decision is a boost for us in the main proceedings, which will continue before the Higher Regional Court.”

In particular, the following competition law obligations imposed on DB by the Bundeskartellamt remain enforceable:

1. DB must remove advertising bans from contracts with mobility platforms to enable them to use DB-specific terms for online and app-store advertising.
2. DB must remove the clauses prohibiting direct and indirect discounts and the passing on of commissions from all the contracts it has concluded with mobility platforms. This puts an end to the unequal treatment between third-party mobility platforms and DB itself, which in turn uses these means to advertise its own services. Individual targeted discount campaigns which impose additional risks on DB with regard to managing its trains’ passenger load are excluded from this.
3. DB must provide mobility platforms with continuous access to real-time data on train delays and cancellations in return for a reasonable fee equivalent to the costs incurred for providing data access. The access to data provided has to be non-discriminatory and comparable with DB’s own access to data.

Following a summary review, the court has upheld the Bundeskartellamt’s ruling that DB is required under competition law to pay the platforms a fee or commission for processing bookings and payments and for ticket sales. The Bundeskartellamt had also provided precise details as to the minimum amount of fees DB had to pay to the platforms. However, the court has serious doubts about the cost benchmark applied in this case and has suspended this obligation for the duration of the main proceedings.

The court did not grant leave to appeal the summary decision on points of law. A definitive decision on the legality of the obligations will be taken in the main proceedings. Following this decision, DB may lodge an appeal on points of law or an appeal against refusal to grant leave to appeal with the Federal Court of Justice.