On 17th January 2024, the European Commission announced its acceptance of commitments by Renfe to open up competition in Spanish online rail ticketing. This is a major development that reinforces non-discrimination obligations on online platforms and will likely set a precedent that applies to any organization with a dominant market position.
Renfe, the Spanish state-owned rail incumbent operator, sells its tickets either directly – via its own, proprietary websites and apps, or indirectly – through third-party ticketing platforms.
As such, it directly competes with third party platforms who provide ticketing services to customers through apps or websites. In order to compete effectively with Renfe’s online distribution channels, it is essential that these platforms have access to Renfe’s full content and real-time data. Access to this information allows them to provide innovative services and tailor their offers to customers’ needs. As a byproduct of increased competition in online rail ticketing, consumers benefit from more affordable services, with a broader range of options to choose from.
Nature of Breach
This development follows a formal investigation made by the Commission in April 2023, over concerns that Renfe was abusing its dominant position, in contravention of EU competition rules prescribed under Art 102 TFEU. Namely, the investigation related to Renfe’s refusal to provide rival ticketing platforms with:
- Full content concerning its range of tickets, discounts, and features; and
- Real-time data (pre-journey, on journey and post journey) related to its passenger rail transport services.
The Commission preliminarily found that Renfe’s refusal to provide its full content and real-time data may have prevented rival platforms from competing with Renfe’s own direct digital channels to the detriment of consumers. Such discriminatory behaviour may have breached Art 102, which prohibits the abuse of a dominant position that may affect trade within the EU and prevent or restrict competition.
Primarily, Renfe has committed to make available all current and future content and real-time data displayed on its own channels to third party ticketing platforms. This must be achieved by 29th February 2024.
In addition, the commitments contain a non-circumvention clause, whereby Renfe commits not to use any unfair, unreasonable, or discriminatory technical or commercial measures that would impede third party platforms’ access to and distribution of Renfe’s content and real-time data.
These commitments are vital in ensuring increased information symmetry between Renfe and competing third party ticketing platforms.
The commitments offered by Renfe will remain in force for an indefinite period, and a monitoring trustee appointed will report on Renfe’s compliance to the Commission for a period of 10 years. In the event of non-compliance, the Commission may impose a fine of up to 10% of Renfe’s worldwide turnover, without having to find an infringement of the EU antitrust rules.
The Renfe decision is the latest in a series to address anti-competitive practices across the European travel sector. It mirrors the landmark case brought by the German Bundeskartellamt against Deutsche Bahn for abusing its dominant position in relation to mobility platforms, and the Italian Competition Authority’s ongoing investigation into Ryanair.
It sets a clear-cut precedent against exclusionary practices by dominant platforms to restrict rivals’ access to data, through commercial or technical means. Although this decision follows a trend of cases in the European travel sector, it will likely have a significant cross-sector impact, with bearing on utilities, telecoms, and even digital markets.
Please contact Tim Cowen if you have any questions regarding the above.
The material contained in this article is only for general review of the topics covered and does not constitute any legal advice. No legal or business decision should be based on its content.
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