Commission fines České dráhy and Österreichische Bundesbahnen €48.7 million over collusion to exclude common competitor

This article is brought to you in association with the European Commission.

The European Commission has fined České dráhy (‘ČD‘) and Österreichische Bundesbahnen (‘ÖBB‘), the Czech and Austrian rail incumbents, a total of €48.7 million for breaching EU antitrust rules. ČD and ÖBB colluded to prevent a new entrant, RegioJet, from accessing used wagons, thus restricting competition on the rail passenger transport market.

The infringement

ČD and ÖBB provide rail passenger transport services in Czechia and Austria. In 2011, RegioJet entered the long-distance rail passenger transport market in Czechia. To compete with ČD and ÖBB, RegioJet largely relied on used wagons.

The Commission’s investigation found that, between 2012 and 2016, ČD and ÖBB colluded to maintain their market position and impede the expansion of RegioJet both in Czechia and on the international rail route between Prague and Vienna, in breach of Article 101 of the Treaty on the Functioning of the European Union (‘TFEU’).

ČD and ÖBB coordinated their actions in sales processes related to used ÖBB wagons for long-distance passenger transport, to prevent RegioJet from buying them. ÖBB’s wagons were particularly relevant for RegioJet, in light of their quality and modern features, but also because they were already approved for operations in Czechia.

In particular, the Commission found that ČD and ÖBB:

• Collusively timed wagon sales so that RegioJet could not buy ÖBB’s used wagons.
• Rigged ÖBB’s used wagon sales procedures so that ČD could buy the wagons instead of RegioJet.
• Agreed on a suitable buyer other than RegioJet for ÖBB’s used wagons that ČD was not interested in.
• Exchanged confidential information about the bids and degree of interest of other bidders participating in the sales.

The fine

The fines were set on the basis of the Commission’s 2006 Guidelines on fines. In setting the level of fines, the Commission took into account various elements, including the serious nature of the infringement, its geographic scope and its duration.

ÖBB cooperated with the Commission under the leniency programme (2006 Leniency Notice) and therefore received a fine reduction of 45%. The reduction reflects the timing of ÖBB’s cooperation and the extent to which the evidence it provided helped the Commission to prove the existence of the cartel.

The breakdown of the fines imposed on each company is as follows:

Background

In June 2016, the Commission carried out unannounced inspections. The Commission sent a Statement of Objections in June 2022.

Article 101  TFEU, which can also be applied by national competition authorities, prohibits anticompetitive agreements and concerted practices between companies that affect trade between Member States and that have as their object or effect the prevention, restriction or distortion of competition within the internal market.

Fines imposed on companies found in breach of EU antitrust rules are paid into the general EU budget. These proceeds are not earmarked for particular expenses, but Member States’ contributions to the EU budget for the following year are reduced accordingly. The fines therefore help to finance the EU and reduce the burden for taxpayers.

To deliver on the objectives of the EU Green Deal, emphasis is placed on increasing the efficiency of the transport system, strongly prioritising rail transport as an environment-friendly mode of transport. This cannot be achieved without the existence of effective competition and attractive rail transport services.

Action for damages

Any person or company affected by anticompetitive behaviour as described in this case may bring the matter before the courts of the Member States and seek damages. The case law of the Court of Justice of the European Union and Regulation 1/2003 both confirm that in cases before national courts, a Commission decision that has become final constitutes binding proof that the behaviour took place and was illegal. Even when the Commission has fined the cartel participants concerned, damages may be awarded by national courts without being reduced on account of the Commission fine.

The Antitrust Damages Directive makes it easier for victims of anticompetitive practices to obtain damages. More information on antitrust damages actions, including a practical guide on how to quantify antitrust harm, is available here.

Whistleblower tool

The Commission has set up by a tool to make it easier for individuals to alert it about anticompetitive behaviour while maintaining their anonymity. The tool protects whistleblowers’ anonymity through a specifically designed encrypted messaging system that allows two-way communications. The tool is accessible via this link.

For More Information

More information will be made available under the case number AT.40401 in the public case register on the Commission’s competition website. A periodic compilation of antitrust and cartel news is available in the Competition Weekly News Summary.

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