The European Commission invites comments on commitments offered by Renfe to address competition concerns over its alleged refusal to supply full content and real-time data to rival ticketing platforms operating in the Spanish online passenger rail ticket distribution market.
The Commission's investigation
Renfe is the Spanish state-owned rail incumbent operator. Renfe sells its tickets offline and online either (i) directly via its websites and apps (i.e. Renfe and Cercanías) and mobility platform (i.e. dōcō); or (ii) indirectly through third-party ticketing platforms. Renfe competes with third-party ticketing platforms, which are companies providing online ticketing services to customers through apps or websites (i.e. online travel agencies). These platforms need to have access to Renfe's full content and real time data to tailor their offers to the customers' needs.
On 28 April 2023, the Commission opened a formal investigation over concerns that Renfe may have restricted competition in the Spanish market for online rail ticketing services by refusing to provide third-party ticketing platforms with: (i) full content concerning its range of tickets, discounts and features; and (ii) full real-time data related to its passenger rail transport services.
The Commission preliminarily found that Renfe is dominant in the Spanish markets for: (i) passenger rail transport services, where it operates as a passenger rail carrier; and (ii) online distribution of passenger rail tickets, where Renfe operates via its website, apps and mobility platform (i.e. dōcō).
According to the Commission's preliminary assessment, Renfe may have abused its dominant position in breach of Article 102 of the Treaty on the Functioning of the European Union ('TFEU') by refusing to provide to third-party ticketing platforms access to the full content and real-time data that it displays on its own digital channels. This refusal may have affected third-party ticketing platforms' ability to create their own product, to innovate and to effectively compete in the online distribution of passenger rail tickets.
The proposed commitments
To address the Commission's competition concerns, Renfe has offered the following commitments:
- To make available to third-party ticketing platforms all the current and future content and real-time data displayed on any of its own online channels. Renfe's commitment would therefore be dynamic and not limited to content or real-time data already provided through its own online channels.
- To make available all its current content or real-time data by, at the latest, 29 February 2024, with some limited exceptions. The exceptions concern content and real time data for which Renfe is required to launch a tender procedure to grant access.
- To inform third-party ticketing platforms at the same time as its own platform dōcō about (i) Renfe's decision to include any new content or real-time data, at least 4 months in advance; and (ii) technical specifications, at least 1 month (until 31 December 2024) or 2 months (after 31 December 2024) in advance. This would allow third-party ticketing platforms to adjust their IT systems.
- To require third-party ticketing platforms a maximum monthly average Look-to-Book ratio ('L2B') of no less than 140, if any L2B is imposed at all. L2B is the ratio between the number of queries related to the sale of tickets ("look") made to Renfe's ticket sales system and the number of actual sales ("book") made during a given period of time. Moreover, Renfe agreed to not exceed a maximum Error Rate ('ER') of 14.23%. ER is the ratio between the number of failed reservation requests and the total reservation requests. The minimum value for the maximum monthly average L2B and the maximum value for the ER would be periodically reviewed and may be modified by the Commission upon Renfe's request.
The commitments offered by Renfe would remain in force for an indefinite period. Their implementation will be monitored by a monitoring trustee appointed by Renfe who will report to the Commission for a period of 10 years.
The Commission invites all interested parties to submit their views within six weeks from the publication of a summary of the proposed commitments in the EU's Official Journal. The full text of the commitments will be available on DG Competition's website.
Background
Article 102 TFEU prohibits the abuse of a dominant position that may affect trade within the EU and prevent or restrict competition. The implementation of this provision is defined in the Antitrust Regulation (Council Regulation No 1/2003), which can also be applied by the national competition authorities.
In parallel to the opening of proceedings, on 28 April 2023 the Commission adopted a Preliminary Assessment summarising the main facts of the case and identifying its preliminary competition concerns.
Article 9(1) of the Antitrust Regulation No 1/2003 enables companies investigated by the Commission to offer commitments in order to meet the Commission's concerns and empowers the Commission to make such commitments binding on the companies. Article 27(4) of Regulation 1/2003 requires that before adopting such decision the Commission shall provide interested third parties with an opportunity to comment on the offered commitments.
If the market test indicates that the commitments are a satisfactory way of addressing the Commission's competition concerns, the Commission may adopt a decision making the commitments legally binding on Renfe. Such a decision would not conclude that there is an infringement of EU antitrust rules but would legally bind Renfe to respect the commitments it has offered.
If Renfe does not honour such commitments, the Commission could impose a fine of up to 10% of the company's worldwide turnover, without having to find an infringement of the EU antitrust rules.
