1. In a historic decision last week, the German Federal Cartel Office ruled that certain practices and contractual clauses in rail ticketing imposed by the dominant rail operator Deutsche Bahn (DB) are unlawful and anti-competitive, representing an abuse of market power.
2. At the same time, the EU Commission (EC) has been working on a new Multimodal Digital Mobility Services (MDMS) Regulation. Back in 2021, it identified that “planning and buying tickets for multimodal journeys is much too often too cumbersome”. The Inception Impact Assessment stressed the need “to establish frameworks for commercial agreements for services ‘re-selling’ mobility products”.
3. The Cartel Office backed up the EC’s original goals, ruling last week that mobility platforms cannot offer consumers “comparative information on … different transport operators” or the “option of integrated ticketing” “… without including Deutsche Bahn’s offers” and other relevant data.
4. HOWEVER, EU Transport Commissioner Vălean recently did a U-Turn, watering down the EC’s original MDMS plans. It is noticeable how DB’s lobby association said her new MDMS changes “strike the right balance” (POLITICO Pro (27 June 2023): “MEPs urge Commission to rethink plans to ease cross-border travel” (Author: Mari Eccles)).
5. Therefore – based on the German Cartel Office’s Ruling last week – it is very likely that the only balance that Commissioner Vălean’s new MDMS plans will strike is to continue to allow state rail incumbents to abuse their market power.
The original MDMS plans presented by Commissioner Vălean’s team in February 2023 were very ambitious, addressing the two key problems very well:
• The obligation for dominant rail operators to share all necessary data with independent MDMS digital platforms under FRAND commercial terms, so that these ‘One Stop Shop’ platforms can compare all options for passengers, integrate different operators into one journey and sell it as one transaction.
• The obligation for market dominant MDMS digital platforms belonging to the state rail incumbents (e.g. DB’s bahn.de) to show and sell new entrant rail operators, so that these platforms finally deliver the comparative information for consumers that has been woefully lacking so far.
Unfortunately, Commissioner Vălean’s new MDMS plans (from June 2023) now only contain ‘re-linking’ obligations (and not ‘re-selling’), so that independent MDMS must re-link consumers to book directly to the operator’s website instead. This will lead to increased friction for consumers as they will be forced to click through (and accept/refuse cookie policy again) and book on multiple different websites just for one journey. There will be no ‘One Stop Shops’ anymore.
The new plans also entail just Meta-Search Engines (e.g. Skyscanner) being obliged to show new operators, which makes no sense at all for passenger rail.
“We urge EU Transport Commissioner Vălean to revert back to the ambitious MDMS plans from February 2023. After all, in light of a very clear ruling by a National Competition Authority, it is very advisable that the EU authorities take this into account in future EU Regulation“.
ALLRAIL Secretary General Nick Brooks