Communication from the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case AT. 40735 – Online rail ticket distribution in Spain 2023/C 224/01
Date: 2023-06-27
Institutions: European Commission
Subjects: EU competition policy, Spain, carriage of passengers, control of restrictive practices, dominant position, electronic commerce, rail transport, ticket








C_2023224EN.01000101.xml










27.6.2023   


EN


Official Journal of the European Union


C 224/1






Communication from the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case AT. 40735 – Online rail ticket distribution in Spain
(2023/C 224/01)
1.   Introduction









(1)


According to Article 9 of the Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (1), the Commission may decide – in cases where it intends to adopt a decision requiring that an infringement is brought to an end and the parties concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment – to make those commitments binding on the undertakings. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the Commission. According to Article 27(4) of the same Regulation, the Commission shall publish a concise summary of the case and the main content of the commitments. Interested parties may submit their observations within the time limit fixed by the Commission.




2.   Summary of the Case









(2)


On 28 April 2023, the Commission initiated proceedings within the meaning of Article 2(1) of Regulation (EC) No 773/2004 of 7 April 2004 against Renfe-Operadora, E.P.E and Renfe Viajeros, S.M.E., S.A. (hereinafter referred together as ‘Renfe’) concerning an alleged infringement of Article 102 of the Treaty on the Functioning of the European Union (‘TFEU’). On the same day, the Commission adopted a preliminary assessment within the meaning of Article 9(1) of Regulation (EC) No 1/2003.












(3)


The preliminary assessment sets out the Commission’s concerns that Renfe may have abused its dominant position by refusing to supply all its content and real-time data to third-party ticketing platforms (2) active in Spain. Content refers to all types of tickets, discounts and functionalities (e.g., possibility to process customers’ reimbursement claims). Real-time data refers to information related to passenger rail transport services operated by Renfe, and it can be pre-journey (e.g., platform number), on-journey (e.g., disruptions) or post-journey (e.g., information on delays that is needed to submit a compensation claim).












(4)


According to the preliminary assessment, Renfe is dominant (i) in the upstream market for the provision of passenger rail transport services in Spain, where Renfe operates as a passenger rail carrier, and (ii) in the downstream market for the online distribution of passenger rail tickets in Spain, where Renfe operates via Renfe’s website, Renfe’s apps and Renfe’s mobility platform ‘dōcō’. In this downstream market, Renfe competes with third-party ticketing platforms (i.e., online travel agencies or travel management companies).












(5)


In the preliminary assessment, the Commission considered that Renfe may have abused its dominant position, in breach of Article 102 of the Treaty, by refusing to grant to third-party ticketing platforms the requested access to the full content and real-time data that are available on Renfe’s own online distribution channels, which may have impeded their ability to create their own product, to innovate, and to exercise effective competition on the downstream market for online rail ticketing services in Spain.




3.   The Main Content of the Offered Commitments









(6)


Renfe does not acknowledge any infringement to competition law and disagrees with the preliminary concerns raised by the Commission in the Preliminary Assessment, but has nevertheless offered commitments pursuant to Article 9 of Regulation (EC) No 1/2003, to meet the Commission’s competition concerns.












(7)


The key elements of the commitments offered by Renfe are as follows:






a)


Renfe undertakes to make available for third-party ticketing platforms all the content and real-time data (3) that is available on the Effective Date (4) or that may become available on any of its own online channels, including its mobility platform dōcō, after the Effective Date. Renfe’s commitments would therefore be dynamic, and not limited to content or real-time data already provided by Renfe through its own online channels.










b)


To implement the commitments, Renfe undertakes to make available for third-party ticketing platforms any Renfe content or real-time data available on Renfe’s own online channels and/or Renfe’s mobility platform (such as dōcō) on the Effective Date by, at the latest, 29 February 2024. As an exception, for the content or real-time data which requires launching a tender procedure to give access to third-party ticketing platforms, Renfe undertakes to give access to such content or real-time data at the latest by 30 June 2024; however (i) real time information on scheduled incidences affecting tickets that have already been sold will be available by 30 November 2024, and (ii) tickets for Luxury Tourist Trains and Leisure Tourist Trains will be available by 31 December 2024.










c)


As regards Renfe content or real-time data that may become available to third-party ticketing platforms after the Effective Date, to allow third-party ticketing platforms to prepare their IT systems, Renfe commits to announce at the same time to third-party ticketing platforms and dōcō the inclusion of any new Renfe content or real time-data 4 months in advance, and will also communicate at the same time to both the technical specifications required to adapt their systems 1 month in advance until 31 December 2024 and 2 months in advance after 31 December 2024. The 1-month advance notice deadline is aimed at ensuring compliance with the commitments described in b) related to access to content and real-time data available on Renfe’s own online channels but not yet available on third-party ticketing platforms on the Effective Date. The 2-month deadline would apply to future content and real-time data (content and real-time data not available on Renfe’s own online channels on the Effective Date).










d)


Renfe undertakes not to require from third-party ticketing platforms a maximum monthly average Look-to-Book ratio (‘L2B’) (5) lower than 140. The minimum value for the maximum monthly average L2B would be periodically reviewed and may be modified by the Commission in response to a request by Renfe. In justified cases, if a third-party ticketing platform exceeded the L2B ratio, Renfe may suspend the platform’s access to its IT system.










e)


Renfe commits to a maximum Error Rate (6) of 14,23 %. That maximum value would be periodically reviewed and may be modified by the Commission in response to a request by Renfe. In the event of non-compliance with the maximum Error Rate, Renfe undertakes to make the necessary efforts to analyse the causes and implement the necessary technical measures to resolve them as soon as possible.










f)


Renfe commits to appoint a Monitoring Trustee that will monitor and report to the Commission on the implementation of the commitments for a period of ten years.










g)


Renfe commits to not in any way circumvent or attempt to circumvent the commitments directly or indirectly by any action or omission.










h)


The commitments shall remain in force for an indefinite period starting from the Effective Date.
















(8)


The commitments are published in full in English on the website of the Directorate-General for Competition at:






 


https://ec.europa.eu/competition-policy/index_en








4.   Invitation to make Comments









(9)


Subject to market testing, the Commission intends to adopt a decision under Article 9(1) of Regulation (EC) No 1/2003 declaring binding the commitments summarised above and published on the Internet, on the website of the Directorate-General for Competition, to be binding.












(10)


In accordance with Article 27(4) of Regulation 1/2003, the Commission invites interested third parties to submit their observations on the proposed commitments. These observations must reach the Commission not later than six weeks following the date of this publication. Interested third parties are also asked to submit a non-confidential version of their comments, in which any information they claim to be business secrets and other confidential information should be deleted and replaced as required by a non-confidential summary or by the words ’business secrets’ or ’confidential’.












(11)


Answers and comments should preferably be reasoned and should set out the relevant facts. If you identify a problem with any part of the proposed commitments, the Commission would also invite you to suggest a possible solution.












(12)


Observations can be sent to the Commission under reference number AT.40735 Online rail ticket distribution in Spain, either by e-mail (COMP-GREFFE-ANTITRUST@ec.europa.eu) or by post, to the following address:





European Commission




Directorate-General for Competition




Antitrust Registry




1049 Bruxelles/Brussel




BELGIQUE/BELGIË










(1)  OJ L 1, 4.1.2003, p. 1. With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and, respectively, 102 of the TFEU. The two sets of provisions are in substance identical. For the purposes of this notice, references to Articles 101 and 102 of the TFEU should be understood as references to Articles 81 and 82 of the EC Treaty when applicable.

(2)  Third-party ticketing platforms are defined in the offered commitments as any undertaking that distributes rail tickets to individual and/or corporate customers in the European Union through software application stores (e.g. Apple App Store or Google Play Store) or through a website. Undertakings not offering booking and payment functionalities to customers (i.e. metasearch redirecting customers to Renfe’s website) are not considered third-party ticketing platforms and are therefore not covered by the offered commitments.

(3)  Renfe content and real time data are defined in Section A of the commitments.

(4)  The Effective Date is the date upon which Renfe would receive formal notification of the Commitments Decision.

(5)  The L2B ratio is the ratio between the number of queries (‘look’) related to the sale of tickets made to Renfe’s ticket sales system and the number of actual sales (‘book’) made during a given period of time.

(6)  The Error Rate is the ratio between the number of failed reservation requests and the number of total reservation requests made to Renfe’s ticket sales system during a given period of time.