MaaS: a (digital) revolution in the mobility sector
MaaS: a (digital) revolution in the mobility sector
The convergence of the mobility sector with competition law is becoming more pronounced. In our earlier Competition Flashback and blog, we delved into the cartel damages in the trucks cartel, and the current battle for liberalisation of the railway market. Another development in the mobility sector where competition law plays an increasingly prominent role is the EU-wide emergence of Mobility as a Service (“MaaS”).
MaaS is a type of service that revolves around the planning, booking, and payment of a ‘multimodal’ journey through a single app or website. A multimodal journey may consist of a combination of public transport, a shared car, scooter or bike, taxi or alternative transportation modes. Additional services such as parking, refuelling and charging can also be made available through MaaS. There is a growing demand among end-users in the mobility sector for enhanced convenience, aiming for a streamlined and personalised journey experience that is both up-to-date and optimised.
Functioning as a multi-sided digital platform, MaaS services bring together various mobility services, payment services, and travellers. This development, like other aspects of the digital economy, raises competition law concerns. The combination of vertically integrated and often dominant (public transport) companies, platform accessibility, interoperability, and the exchange of commercially sensitive information, make MaaS noteworthy from a competition law perspective. This blog explores some key points.
The essence of MaaS
As mentioned, MaaS aims to provide a personalised journey through integrating various mobility services. This is realised through a digital platform (“MaaS platform”) where consumers can fully plan, book and pay for their journeys. A MaaS platform is typically presented as either an application or website, like 9292.nl. The platform consists of two key components: the frontend, representing the user interface, and the backend, encompassing the technical infrastructure. The technical infrastructure facilitates the integration of services and products, including (real-time) information relating to use of these services and products (“mobility data”). This way, customers are offered a wide range of transportation options.
When MaaS functions effectively, it has the potential to enhance market dynamics within the mobility sector by directly linking supply with demand and creating more competition. By introducing variability on the supply side of mobility services, MaaS can streamline an inflexible transportation system. Beyond the typical market-related benefits, MaaS also brings additional advantages, such as enhancing accessibility in rural areas, mitigating congestion, and promoting more sustainable modes of transportation. The European Green Deal recognizes multimodal transportation as one of the main spearheads of environmentally friendly transportation.
Providers of MaaS services (“MaaS providers”) rely on mobility service providers, particularly public transportation and shared transportation providers (“transport companies”). MaaS providers can only offer an integrated selection of travel options if these transport companies authorise the inclusion of their services and products on the MaaS platform. Moreover, for the effective functioning of MaaS, it is imperative that transport companies supply relevant mobility data, encompassing e.g. travel times, delays, updates, occupancy rate in trains, congestion status of roads, and real-time availability of shared vehicles or charging stations. Without such vital information, MaaS providers cannot deliver (competitive) multimodal travel experiences.
Potential abuses of MaaS providers in Spain, Germany and Italy
Due to vertically integrated, dominant (public) transport companies with a dual role in MaaS, competition authorities in Europe have closely monitored MaaS since several years. Competition law concerns are primarily related to exclusionary abuses, particularly the denial of (effective) access to transport products and associated mobility data by these dominant companies.
Commission enforces commitments from Renfe
For instance, on 17 January 2024, the European Commission (“Commission”) concluded an investigation into Renfe, the Spanish national train operator, with binding commitments. Renfe functions not only as railway company but also as a MaaS provider, selling its tickets through various channels, including its own MaaS platform (dōcō). In addition, Renfe’s tickets are offered on other (third party) MaaS platforms in Spain, such as Omio.com.
The Commission’s investigation was prompted by concerns about Renfe’s refusal to grant competing ticket sellers, including MaaS providers, access to the complete range of tickets and (real-time) mobility data. Notably, Renfe did provide its own MaaS platform with access to all ticket options and associated mobility data. The Commission preliminary found that Renfe exploited its dominant position in the market for train passenger services in Spain and the market for online passenger rail ticket distribution in Spain.
To address the Commission’s concerns, Renfe made a series of commitments in June 2023, which now have been made legally binding. As of 29 February 2024, Renfe is obligated to provide competing ticket sellers with access to the complete, current and future range of tickets, along with all the (real-time) data available on Renfe’s own platforms. Renfe is also prohibited from imposing unfair, unreasonable, or discriminatory commercial or technical conditions that hinder access to its content and data. Furthermore, any new content and data, as well as changes in technical specifications, must be announced at least 4 and 2 months before implementation, respectively. Additionally, Renfe must apply a less stringent Look-to-Book (“L2B”) ratio to competing ticket sellers. The L2B ratio reflects the relationship between the number of availability requests related to potential sale of tickets made by third parties into Renfe’s ticket sales system (‘look’) and the number of actual sales (‘book’) during a given period of time. Lastly, Renfe must not exceed the maximum Error Rate (“ER”) and the maximum margin for ticket unavailability (unavailability rate, “UR”). Implementing a maximum ER and UR contributes to increased reliability of sales through third-party platforms. All commitments are in force for an indefinite period and subject to review every 10 years.
Bundeskartellamt imposes measures on Deutsche Bahn
In Germany, the Bundeskartellamt (“Bka”) has ordered the German national train operator, Deutsche Bahn (“DB”) to change its conduct in the summer of 2023. In addition to its role as train operator, DB offers MaaS services via its app (DB Navigator). The Bka’s investigation, initiated in 2019, reveals that DB is leveraging its key position in the mobility market to restrict competition from other MaaS providers. For instance, DB failed to provide competing MaaS providers with continuous, non-discriminatory access to (real-time) essential information related to its train services. Consequently, these competitors lacked access to details on delays, cancellations, maintenance, etc. Moreover, DB imposed advertising bans and enforced resale price maintenance in contracts with competing MaaS providers, and refused to pay commissions to third party resellers for facilitating the booking and payment of a DB ticket.
Following lengthy negotiations, the Bka has ordered DB to cease its behaviour through a formal decision. Four compliance measures have been imposed. DB is now prohibited from applying advertising and discount bans, and is required to pay commissions to parties facilitating the booking, payment, or mediation processes for DB. Additionally, the Bka demands that DB, to ensure competitors have access to essential mobility data, implements fair terms, both technically and commercially, for providing this data within a specified timeframe. The Bka emphasises that DB and its partners retain the freedom to define the precise conditions. The implementation term for these measures has not yet commenced due to DB’s appeal against the Bka’s decision. DB asserts that the Bka’s decision contradicts the principle of commercial freedom.
Trenitalia’s commitments accepted by the Italian competition authority
In May 2023, the Italian Competition (“AGCM”) concluded a competition investigation into Trenitalia with commitments. Trenitalia holds a legal monopoly in the market for regional (“RG”) and inter-city (“IC”) rail travel in Italy. It also operates as a MaaS provider. Following a complaint received in March 2022 regarding Trenitalia’s practices, the AGCM officially initiated an investigation in July 2022.
The investigation revealed that Trenitalia was leveraging its dominant position in the RG and IC train travel market to extend and preserve its market power in the high-speed (“HS”) train travel market. In that market Trenitalia competes with Italo, which is the only other supplier of HS train services in Italy and a competing MaaS provider. Trenitalia refused to give Italo access to essential data relating to its RG and IC train services. This hindered Italo from offering a multimodal journey in which Trenitalia’s services were combined with its own HS train services.
Despite an agreement reached between Trenitalia and Italo during the AGCM investigation to eliminate these barriers, the AGCM asserted that Trenitalia persisted in distorting competition between the two vertically integrated train operators. Eventually, Trenitalia committed to providing Italo with access to essential data about its RG and IC tickets. In May 2023, AGCM officially declared these commitments binding, thereby concluding the investigation.
MaaS in the Netherlands
The recent examples discussed above illustrate how dominant transport companies – mainly national train operators – in Europe regularly display anti-competitive behaviour towards competing MaaS providers that depend on them. The Consumer and Market Authority (in Dutch: Autoriteit Consument en Markt, “ACM”) acknowledges these risks and has also previously expressed concerns. In its MaaS Market Study of 8 May 8 2021 (“Market Study”), the ACM highlights concerns about an undesirable winner-takes-all scenario, where a dominant (tech) company, such as a vertically integrated public transport entity, consolidates excessive power. This situation could lead to the exclusion of other companies, stifle innovation, and result in increased prices. The ACM previously voiced similar concerns in a few merger decisions, notably in NS/Pon and NS/Municipal Transport Companies. Public transport companies, in response, complained about potential revenue loss if their services were available on competing MaaS platforms. This reinforces the incentive to restrict (competing) MaaS providers’ access to their services, or impede competition in other ways.
Recently, the ACM conducted research, commissioned by the Dutch government, into the wholesale train ticket policy of the national train operator, NS. The research assesses whether NS’ wholesale policy allows for a level playing field between the MaaS activities of NS, and those of third party resellers, such as MaaS providers. In its report, published in October 2023, the ACM concludes that NS’ policy is in principle suitable to safeguard a level playing field. NS applies a margin test to determine the distribution discount on wholesale prices for NS train tickets. As a result, third party MaaS providers that are as efficient as NS can match NS’ retail offer, and recover their (variable) costs. The ACM, however, notes that there is room for improvement in the calculation method for the distribution discount, in order for resellers to also recoup their fixed costs. That way, a true level playing field will arise. ACM’s research does not constitute a competition analysis. This raises the question whether this is the correct standard from a competition law perspective. Regardless, the outcome of this study is likely to play a role in the future granting of the 2025-2033 Main Railway Concession which includes requirements to be MaaS-proof (see also our previous blog).
In 2022, the Ministry of Infrastructure and Water Management (in Dutch: Ministerie van Infrastructuur en Waterstaat, “Ministry of IenW”) concluded the MaaS program after five years. Through seven MaaS pilots, the MaaS concept was tested in the Netherlands. The evaluation report identifies several challenges in the development and implementation of MaaS in the country. Among these challenges are the need for adjustments to the current concession policy, standardisation of mobility data exchange, and alignment of the MaaS concept in the Netherlands with (future) European regulations.
Companies operating in the mobility sector must not only consider competition rules but also sector-specific regulations. At the European level, significant legislation that pertains to MaaS has been enacted or revised in recent years. Below, we discuss the most relevant regulations.
The revision of the Intelligent Transport Systems Directive (“ITS Directive”) stemming from 2010 was approved by the European Parliament and the European Council on 24 October 2023. Intelligent Transport Systems (“ITS”) serve as the technological backbone of MaaS and play a crucial role in seamlessly integrating various modes of transportation. Through ITS, MaaS providers can share (real-time) information on availability, routes, and fares. The revised directive imposes obligations on Member States, such as promoting service interoperability, collaboration among companies active in the MaaS sector, and the availability of certain mobility data. While the ITS Directive does not impose obligations on MaaS providers or transport companies themselves, governments may, based on this directive, introduce obligations for transport companies. Since the directive has not been published and thus not yet entered into force, the two-year implementation period has not yet commenced.
Since the implementation of the ITS Directive in 2010, the Commission has adopted various delegated regulations to further clarify and achieve the specific objectives of the ITS Directive. Examples include the Multimodal Travel Information Services Regulation (“MMTIS Regulation”) and the recently revised Real-time Traffic Information Services Regulation (“RTTI Regulation”). These regulations compel governments and private entities to make certain mobility data available through a National Access Point (in the Netherlands this is called the ‘Nationaal Toegangspunt Mobiliteitsdata’, “NTM”). Currently, this obligation only applies to non-real-time mobility data that can easily be read and processed by a computer. Starting from 2025, mobility data containing real-time information must also be made available. The MMTIS Regulation is currently under revision. After this revision, obligations will be expanded, both in terms of the type of mobility data to be made available through the NTM and the manner in which that information should be provided.
To reduce fragmentation of mobility data within the EU, the Commission has proposed the establishment of the European Mobility Data Space (“EMDS”). The EMDS aims to provide a framework for interoperability among various sources of mobility data.
Finally, the Commission intended to propose the ‘Multimodal Digital Mobility Services’ Regulation (“MDMS Regulation”) in the fall of 2023 (after several postponements). The MDMS Regulation is anticipated to create a European framework governing the reservation, booking, payment and issuance of tickets for multimodal journeys. Despite the passing of the self-imposed deadline and pressure from the BEUC and several European travel organisations, the Commission has not submitted the proposal as of yet.
Overall, ensuring fair competition, data, and platform accessibility in the digitising mobility sector will require significant attention from competition authorities. Promoting multimodal mobility – and thus the concept of MaaS – is a crucial priority for the European Commission, as evident in its policy goals (such as the Green Deal). Due to the strong connection with national transportation systems, national competition authorities, such as the ACM and the Bka, are likely to continue playing a significant role in shaping the MaaS landscape in different member states.