Fair competition for digital mobility services – Bundeskartellamt issues statement of objections against Deutsche Bahn due to possible hindrance of mobility platforms

The Bundeskartellamt has come to the preliminary conclusion that certain practices and contractual clauses used by Deutsche Bahn (DB) in relation to mobility platforms constitute an abuse of market power. Mobility platforms mainly offer online solutions for integrated route planning for which rail transport plays an important role. For example, mobility platforms allow passengers to combine train tickets with flights, carsharing, long-distance coach services or rental bikes. For these kinds of services, DB does not provide forecast data on passenger rail services, such as information on delays, the progress of a journey, cancellations or platform changes, which are essential for the development of such services. DB’s contractual restrictions addressed in the proceeding cover bans on advertising, price specifications for passenger tickets, far-reaching bans on discounts and possible discrimination against some mobility platforms with regard to the commission rate paid for ticket sales.

Andreas Mundt, President of the Bundeskartellamt: “Based on our preliminary assessment, Deutsche Bahn, which is vertically integrated from network operation to ticket distribution, is the dominant rail transport company in Germany. DB is therefore subject to abuse control under competition law and has to fulfil special obligations towards third parties, such as mobility service providers.

Many mobility services simply cannot be provided without involving DB. We therefore hold that mobility platforms are, for example, entitled to access train traffic data, such as information on delays or cancellations. Otherwise, their business models cannot work. Moreover, we have concerns about a number of contractual clauses used by DB which may hinder mobility platforms as DB’s online partners. We do not want one single company to dominate the market in the long term and hold back innovative mobility providers.”

In late 2019, the Bundeskartellamt initiated an abuse proceeding against DB due to violating Sections 19 and 20 of the German Competition Act (GWB) and Article 102 TFEU. Based on the current state of the investigation, DB plays a double role. On the one hand, the company is a powerful mobility platform with its online platform bahn.de and its app DB Navigator. In addition to selling its own tickets, DB itself offers combinations of various modes of transport and also sells third-party tickets for more than 50 associations of transport companies. On the other hand, as the leading rail transport company, DB has the possibility to use its key role to control the use of rail transport in third-party offers.

- For instance, DB prohibits its contractual partners from advertising their full range of services in search engines, app stores and social networks, that is from using terms that are specific to DB, thus preventing them from promoting their offers.
- When selling train tickets, DB’s online partners must not offer discount campaigns, bonus points or cashback programmes while DB itself uses these means to advertise its own offers.
- Many mobility platforms selling train tickets carry out the booking and payment processes on behalf of DB. The Bundeskartellamt is assessing whether DB is able to succeed in not having to pay an adequate commission for this service due to its market power.

Access to forecast data on railway services in Germany, such as information on delays and cancellations, is also important for mobility providers, but DB has so far refused to make such data available. However, these data cannot be obtained in any other way. The investigation results so far have shown that these forecast data on passenger rail services are crucial for organising and booking intermodal mobility chains, that is journeys including different means of transport. At present, DB reserves these data for itself and for a few selected mobility service providers such as Google.

Based on the current results, the restraints of competition also affect the interests of other transport companies which can also be found on the platforms of DB’s online partners. Especially for the significantly smaller and lesser known railway companies in Germany, mobility platforms can be an important channel to increase their reach and win customers for their transport services. If, however, passengers are always directed to DB’s channels, either directly or indirectly, alternative transport companies can reach only a few potential customers with their transport offers and DB’s market power is further strengthened also in the transport markets.
DB and mobility platforms admitted to the proceeding are now given the possibility to comment on the Bundeskartellamt’s preliminary findings