In its ruling of March 29, 2018, the BGH decided that the bonus campaigns of „My Taxi“ did not violate applicable competition law (case reference: I ZR 34/17). The rules on fixed prices are not applicable to the operators of the app as mere ride brokers. As a result, the discounted price is not to be regarded as a transportation charge and the fixed prices do not apply.
My Taxi introduces bonus campaign
The lawsuit was filed by a cooperative association of cab dispatch centers in Germany that operates the „Taxi Deutschland“ smartphone app. The defendant provides cab services – not only throughout Germany – via the „My Taxi“ app.
The operators of „Taxi-Deutschland“ considered the bonus promotions of „My Taxi“ to be anti-competitive. These allowed registered users of the app to pay only half of the actual fare for the trips. This would constitute a breach of the obligation to comply with the cab fares set by the authorities.
BGH: No violation of competition law
Unlike the Frankfurt am Main Regional Court, the BGH has now dismissed the claim. The bonus promotion of „My Taxi“ did not violate competition law regulations. „My Taxi“ is not a cab company and is therefore not subject to the price fixing provisions of the collective agreement. Its activities are limited to the brokerage of transport orders, which are then carried out independently by independent cab companies.
The judges in Karlsruhe also did not consider the operators of the „My Taxi“ app to be instigators or accessories to competition law infringements by the cab companies using their brokerage services. The participation of cab companies in the bonus campaigns was generally compatible with the Passenger Transportation Act. Even if the provisions of §§ 51 para. 5, 39 para. 3 PBefG on the tariff obligation in cab transport are to be regarded as market conduct regulations within the meaning of § 3a UWG, only the cab operator may not grant a discount on the fixed tariff prices.
No violation of the tariff obligation
If the fixed price is paid in full to the cab operator, there can be no breach of the tariff obligation. When examining an infringement, it therefore depends on whether the cab operator’s assets are increased by the amount of the fixed fare after the passenger has been transported. How the passenger finances the fare is irrelevant. In the „My Taxi“ campaigns, the cab companies received the full fixed fare. Insofar as the operators of „My Taxi“ deduct a commission of 7% of the fare, this is a permissible remuneration for their brokerage service.
„My Taxi“ bonus campaign does not impair the functionality of cab transport
Furthermore, the meaning and purpose of the cab operator’s duty to charge fares do not require a different result. This is because the functionality of cab transport is not impaired by the advertising campaign. As long as cab operators have sufficient brokerage options at their disposal, there is no reason to restrict competition in the cab brokerage sector.
The BGH further states that the bonus promotion does not constitute a targeted obstruction of competitors, Section 4 No. 4 UWG. The provision of services that does not cover costs is only prohibited if it is suitable for crowding out competitors. In this case, however, there was no suitability for crowding out because the „My Taxi“ bonus promotion was limited both in terms of territory and time.