Mapping the MaaS sector: are specific rules for MaaS platforms needed or advisable?

This article by Teresa Rodríguez de las Heras Ballell, Professor of Commercial Law at the Carlos III University of Madrid, originally appeared in the European Transport Regulation Observer “Towards EU-wide Intermodal Ticketing” (September, 2022).

The rise of platforms has also penetrated and pervaded the transport sector. Platform-based business models maximise a new vision of mobility and create optimal environments to foster a MaaS approach to transportation: an integrated, innovative, technology-intensive, data-driven, user-centric model.

MaaS platforms stack a layer on the transportation infrastructure aimed to fill gaps and add value. Platforms manage to free from certain limitations of transportation service providers and transport infrastructure with data-driven digital solutions and automated systems.

Mobility platforms operating in the market are growing and largely diverse. A legally relevant typology allows to distinguish between those models based on providing (data) information (informational) and those platforms enabling, partly or totally, transactions (transactional).

The first group comprises searchers, aggregators, recommenders or route-planners. These models’ vision is to assist users/passengers to take informed decisions providing access to data (timetable, delays, connections, available trains, bus routes) in planning their trips, personalising or recommending routes on the basis of certain criteria (speed, distance, traffic, sustainability) or even providing combined or interlinked solutions in the absence of interoperable offers by transport providers. The reliability of the information and the accuracy of the recommendation produced by the platform depend on permanently updated data collected from or made readily accessible by transport operators. Additionally, platforms can devise models based on peer-based structures. Then, the perception of accuracy, reliability and immediacy of the available data and/or content (opinions, reviews, recommended routes, warning, delay notices) is bolstered by the reliance on the ‘peer-determined truth’. The bourgeoning sharing economy is indeed rooted in that community-based approach.

Informational platforms add value with different strategies. Either they help users (passengers) to reduce transaction costs (searching, verifying, updating, comparing) by centralising, aggregating, comparing data through a single point; or they produce new customised data in the form of recommendations, ratings, preferred routes or personalised options. More and more business models lend toward the latter vision, these mobility digital services gain individuality. They become vital for the mobility sector and fundamental for passengers. An additional layer, with infrastructural value, is stacked on the traditional transportation infrastructure.

In the second category, platforms enable directly or indirectly the users to conclude transactions related to mobility services. Therefore, they are transactional platforms. To achieve the transactional purpose, platforms may adopt diverse legal structures. From simple models where platforms redirect users to the different operators, but ensuring that the transaction is completed within the platform; to more sophisticated models where the platforms do fully integrate the multiple ticketing channels acting as a single operator vis-à-vis the user (passenger). Strategical consequences on the user’s engagement, the benefits of data aggregation, and the brand position in the market differ across the different models. Besides, technical considerations are also relevant. Higher integration may require higher levels of interoperability of the systems, or access to ticketing systems is based on licenses agreements. But legal implications are crucial and must be carefully considered.

Platform operators may potentially act as mere digital intermediaries redirecting users to each operator – hard to be distinguished from pure informational platforms; or as authorised distributors and resellers; or as genuine (multimodal) mobility service providers. The assessment has to be on a case-by-case basis carefully taking into consideration the functions performed by the operator (platform design), the contractual structure, and the algorithmic governance.

More advanced transactional platforms integrate into value chains and to a certain extent reshape them. Even more enticing is the possibility that platform operators become multimodal mobility service providers themselves, irrupting as new actors in the mobility sector. Platform users are then passengers and the platform interposes between the passenger (its user), and transport operators. That would have a direct impact on the regulatory perimeter.

MaaS platforms are first governed by the EU rules on platforms (P2B Regulation, DSA, DMA), where applicable. Besides, to the extent that a MaaS platform can be categorised as an actor in the mobility/transport sector, the relevant legal regime will apply.

So, are specific rules for MaaS platforms needed or advisable? In particular, should stricter liability rules, deviating from the general liability exemption, be adopted for MaaS platforms on grounds of the essentiality of the services?

Departing from the general liability exemption on a sectorial basis may fragment the market and misplace incentives. That may be especially inconvenient if services are bundled, comingled and mixed and therefore, lines demarcating traditional sectors blur. What is lacking now is a regulatory approach mindful of the infrastructural power of platforms. Should the platforms’ intermediation infrastructure mediate, control, screen, and define how users (passengers) find, select, access, use, and trust (or mistrust) traditional infrastructure for the provisions of mobility services, the intermediation infrastructure becomes as critical and essential as the former. The policy objectives (universality, affordability, security) underpinning the regulation of traditional infrastructures for essential services across sectors should then be mirrored in the regulation of the digital intermediation infrastructure to the same extent. Thus, a regulatory approach that acknowledges the infrastructural power of platforms in certain sectors might effectively replace a sector-specific deviation from the general rules on platforms solely on grounds of the sector.