Dutch Railways (NS) and mobility company Pon will further develop their mobility services jointly via the platform Hely. In addition, NS and three other public transport companies will develop a technical Mobility as a Service (MaaS) platform. ACM cleared both joint ventures under strict conditions.
What is Mobility as a Service?
The idea of MaaS is that travelers can plan, book and pay for their complete journey – on the basis of real time information – through one digital platform (usually a mobile app) and by using different modes of (public and/or shared) transport. As MaaS allows for customized services for individual travelers, it is seen (also by the ACM) as a solution to current mobility problems (such as traffic jams and crowded trains).
MaaS – whereby especially shared/rental mobility plays an important role – is seen as the future of mobility and this market is developing strongly. Several players – amongst which public transport companies but also car manufacturers, telecom companies and big tech companies such as Google – are jumping into this space.
Recently the ACM has reviewed two concentrations which relate to the MaaS activities. There is not yet a clearly defined 'MaaS market' as most MaaS concepts are still in a startup phase. According to the ACM, many MaaS concepts currently only provide for a limited range of transport and (shared) mobility services, they only service a relatively small group of customers and sometimes they do not have important services/functions yet, such as a travel planner. At the same time, it can be expected that further integration will create more complete MaaS providers in the near future. It is the speed of innovation and developments which makes the boundaries of this market/these markets and the competitive situation unclear. It is therefore interesting to see how the ACM deals with the concentrations brought under its review.
Travel app NS and Pon: Hely
Apart from providing national public (train) transport and the recognisable blue and yellow public transport bikes ('OV-fiets'), NS is active in the field of services related to (electric) shared bikes and cars. Its subsidiary Hely designs so called hubs at different locations (for example in residential and commercial districts). Via an app, travelers can book and pay for shared bikes and/or electric cars and pick them up from and return them to such a hub. Mobility company Pon is active in several mobility related fields, such as the import and production of (electric) cars, scooters and bikes. Through its subsidiary, Next, Pon also offers several (shared) mobility services.
Pon and NS wish to combine a part of their shared transport and related mobility services activities in a joint venture. This joint venture will continue under the name Hely and will – at first – mainly focus on offering (via an ap) (electric) bikes and cars via (the existing) hubs and also integrating the (shared) transport services of third parties. The ACM conditionally approved this joint venture in its decision of 5 May 2020.
According to the ACM, the joint travel app gives rise to certain competition issues. With the national train transport service and the OV-fiets the parent companies have important, if not essential, input for MaaS providers at their disposal. As concerns train transport this is obvious (due to the NS' concession on the main railway network). As concerns the OV-fiets, this might be less obvious; theoretically a competitor could copy such an offer of shared (rental) bikes. However, as travelers can pick up and return the OV-fiets at almost every train station (at a low price), it seems difficult for a competitor to offer a good alternative that fits within the MaaS frame. This means that if a travel app does not allow for use of the train and/or OV-fiets, such app (currently) does not have a complete mobility offer. Therefore Pon and NS could offer train transport and the OV-fiets at higher prices or (other) less advantageous conditions to the competitors of their own joint venture. The ACM found that the parties could indeed eventually (when their own Maas activities are more developed) have an incentive to implement a foreclosure strategy because this could be profitable. Pon and NS have therefore agreed that as soon as the supply of train transport and OV-fiets is 'app enabled' and provided to Hely, competing travel apps will be given access to that supply under the same conditions.
Technical MaaS platform NS, GVB, RET and HTM
NS and the public transport companies of Amsterdam (GVB), Rotterdam (RET) and The Hague (HTM) wish to set up a technical supporting MaaS platform together. Contrary to the Pon and NS travel app, this platform will not offer services to travelers. The platform will allow transportation/(shared) mobility providers on the one hand and MaaS (travel app) providers on the other hand to connect to each other.
On 9 July 2020 the ACM approved under strict conditions the joint venture in which this platform would be developed. The ACM makes a distinction between retail and wholesale MaaS platforms. On retail platforms services are offered to travelers and on wholesale platforms services are offered to mobility and MaaS providers. The joint venture will be active as a wholesale MaaS platform.
Again the ACM concluded that the joint venture could potentially cause competition issues. The parties could tie access to their public transport services to the platform services of the joint venture. In order to obtain (favorable) access to this public transport offer (which is most likely essential to be able to provide a complete MaaS offer to travelers) retail MaaS providers would have to be connected to the wholesale platform of the joint venture. This could foreclose other wholesale platform providers from the market. Parties could also apply discriminating, untransparent and/or non-objective criteria for the use and/or access to the technical platform towards both (competing) MaaS providers and (competing) mobility providers. Furthermore, the joint venture's platform could provide access to commercially sensitive information of competing MaaS providers and shared mobility providers.
To address these competition issues, GVB, HTM, NS and RET have made several commitments. Firstly, they shall offer their public transport services - under equal (technical) conditions - to MaaS providers, irrespective of whether these providers are connected to the joint venture's platform. The public transport companies committed not to impose any exclusivity obligations on MaaS and mobility providers. Also, the access to the joint venture's technical platform will be offered under equal (FRAND) conditions to other MaaS and mobility providers. Finally, the parties shall ensure that commercially sensitive information is not accessible to MaaS and mobility providers, including the parties themselves.
It is interesting to see how the ACM deals with market definition in an area that is developing so rapidly. Innovative developments in mobility follow on from each other in quick succession. The importance of innovation is immense, given what it can achieve: think of sustainability objectives and the traffic jam issue. It is therefore understandable that the ACM wishes to encourage innovation. At the same time, it is the ACM's task to identify and prevent competition issues through merger control as they could in the long run stifle future innovation. The outcome in these cases illustrates a careful consideration of these factors.
For more information or advice, please contact our competition law team