GER: Cartel Office Accuses Deutsche Bahn of Market Power Abuse

Jul 21, 2023 Benn-Ibler Rechtsanwälte

The German Federal Cartel Office (hereinafter Bundeskartellamt) has accused German Railways (Deutsche Bahn, hereinafter DB) of abusing its market power. According to the Bundeskartellamt, DB is exploiting its key position. As a result, competition with other competing mobility platforms is being restricted. DB has been ordered to change certain contractual clauses and practices.

Mobility platforms offer their customers comparative information on travel routes with different and intermodal modes of transport, as well as the option of booking the corresponding tickets. Rail transport and DB's travel services play a central role here. For example, the platforms offer combinations of rail tickets with flights, car sharing, long-distance buses and even rental bikes. On the one hand, DB is the market-dominating public transport company in rail passenger transport; on the other hand, DB also operates its own market-strong mobility platform bahn.de as well as the DB Navigator app.

According to the Bundeskartellamt, DB uses its key market position to restrict competition from third-party mobility platforms. The Bundeskartellamt criticises DB’s lack of non-discriminatory access to necessary traffic data, such as train cancellations and delays. According to the Bundeskartellamt, the services of other mobility platforms would be inconceivable without the integration of Deutsche Bahn’s offers and traffic data. The clauses prohibiting advertising, vertical price fixing, extensive discount bans and the withholding of commissions for third-party platforms are considered anti-competitive. In addition, Deutsche Bahn refuses to provide other mobility platforms with continuous and non-discriminatory access to the necessary traffic data in real time.

The proceedings with DB could not be terminated by mutual agreement. The Bundeskartellamt has therefore now issued an official order requiring DB to refrain from the conduct complained of by the Bundeskartellamt and to amend those contractual clauses which could hinder the other mobility platforms as online partners.

Among other things, the following measures were imposed on DB:

• In future, DB’s online partners will be allowed to use their own discount offers, bonus points, or cashback programmes when selling rail tickets.
• In future, DB will have to pay mobility platforms that handle booking and payment processes for ticket sales a performance fee based on minimum cartel law standards.

Announcement of the Bundeskartellamt (26 June 2023)