Open markets for digital mobility services – Deutsche Bahn must end restrictions of competition

According to the Bundeskartellamt’s decision of 26 June 2023, Deutsche Bahn AG (DB) is in violation of competition law due to abusing its market power in relation to mobility platforms. The Bundeskartellamt has ordered Deutsche Bahn to change certain practices and contractual clauses.

Andreas Mundt, President of the Bundeskartellamt: “State-owned Deutsche Bahn, which is vertically integrated from network operation to ticket distribution, is the incumbent rail operator in Germany. The services of third-party mobility platforms making integrated route planning possible for passengers are not conceivable without including Deutsche Bahn’s offers and traffic data. Deutsche Bahn is therefore subject to abuse control under competition law and has to fulfil special obligations towards rival platforms. This specifically concerns data sharing, bans on advertising, vertical price specifications, far-reaching bans on discounts and the withholding of different commissions for third-party platforms. Without effective enforcement under competition law the business models of mobility platforms cannot function in competition with Deutsche Bahn.”

Mobility platforms offer their customers comparative information on itineraries involving different means of transport and transport operators as well as the option of integrated ticketing. In this context, rail transport and the transport services offered by DB play an important role. For example, mobility platforms allow passengers to combine train tickets with flights, carsharing, long-distance coach services or rental bikes.

Deutsche Bahn is not only a dominant rail operator, but it is also a strong mobility platform itself with its online portal bahn.de and its app DB Navigator. According to the Bundeskartellamt’s findings, DB uses its key position on the transport and infrastructure markets to restrict competition from third-party mobility platforms. In the authority’s view, DB’s clauses on advertising bans, vertical price specifications, far-reaching bans on discounts and the withholding of a commission for carrying out the payment process are anti-competitive. Following DB’s announcement made in the meantime that it no longer intended to pay mobility platforms an intermediary commission for arranging the ticket sales, the obligation to pay such a commission in accordance with antitrust compensation standards was also raised in the proceeding.

In addition, DB denies mobility platforms continuous and non-discriminatory real-time access to all the traffic data controlled by DB, which are essential for organising and booking journeys including different means of transport. This includes delay data for passenger rail services as well as data on train cancellations or cancelled or additional stops, the reasons for delays or cancellations, additional runs or replacement transport services, up-to-date information on platforms or platform changes and data on major disruptions.

The new EU rail passenger rights regulation, which has been in force since 7 June 2023, requires DB to share forecast data for the purpose of informing passengers. However, in the Bundeskartellamt’s view, this is not sufficient to end the violation of competition law. The EU rail passenger rights regulation does not cover all the necessary real-time data, nor does it regulate important commercial and technical aspects of implementing data access.

Andreas Mundt: “Following lengthy negotiations, a settlement agreement could not be reached, mainly due to individual commercial requirements. Consequently, to prevent possible practices of Deutsche Bahn favouring its own offers or providing less favourable conditions regarding access to forecast data, an official decision ordering Deutsche Bahn to stop engaging in such practices is needed. Deutsche Bahn also has to change a number of contractual clauses which may restrict competition at the expense of rival mobility platforms. We want to prevent Deutsche Bahn from expanding its dominance in passenger rail transport also to future mobility markets and from holding back innovative mobility service providers in favour of its own business interests.”

The measures the Bundeskartellamt has imposed on DB include the following:

- In future mobility platforms will be able to use DB-specific terms for online and app-store advertising without any contractual restrictions imposed by DB.

- In future DB’s online partners will be able to use their own discount campaigns, bonus points or cashback programmes when selling DB tickets. 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.

- In future DB will have to compensate mobility service providers based on minimum competition-law standards for carrying out the booking and payment processes on behalf of DB when selling train tickets. The same applies to the intermediary commission itself. The exact amount of the commission payments is subject to negotiations between DB and its contractual partners and was not part of the proceeding. 

- The rules under the new EU passenger rights regulation regarding the provision of real-time data will be supplemented, the implementation of the commercial and technical requirements in particular will be further regulated by way of specifications and data access will be made available also with regard to real-time data of third-party rail operators. Third-party access to data has to be non-discriminatory and comparable with DB’s own access to data.

Overall, the decision to end the competition-law violation is dynamic in order to stimulate competition for smart mobility services even more than has so far been the case. In view of the constitutionally protected freedoms enjoyed by companies, the Bundeskartellamt leaves it to the contractual partners themselves to agree on the contractual details and arrange the specific contractual conditions. Negotiations will be accompanied by a system of deadlines.

The restraints of competition which now are to be stopped also affect the interests of other transport companies which can also be found on rival mobility platforms. 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.

The Bundeskartellamt’s decision is not yet final. DB can appeal the decision to the Düsseldorf Higher Regional Court within one month.

The Bundeskartellamt has published detailed FAQs on the decision (see below).