The debate about a minimum fare for journeys with platforms such as Uber or Bolt is gathering pace in Berlin. While the introduction of such a tariff sounds like a setback for the car hire industry at first glance, it could also open up new opportunities.
The background to this is the Passenger Transport Act (PBefG), which stipulates strict conditions for the introduction of a minimum fare. § Section 51a of the PBefG only permits a minimum fare if this is necessary to protect the public transport interest. But what does this mean in concrete terms for the hire car industry?
The first judgements on this topic already show that the implementation of minimum tariffs can be legally problematic. For example, the VG Leipzig ruled at the end of 2024 (judgement of 15 November 2024, ref. 1 K 311/23) that the introduction of a minimum fare in the city of Leipzig was unlawful. The city of Leipzig wanted to introduce a minimum rate for hire cars that was higher than that of taxis. The VG Leipzig clearly saw this as discrimination for which there was no objective reason.
The Berlin Senate is currently examining the introduction of a minimum tariff for hire car companies.
What at first glance sounds like a major shock for the car hire industry also harbours opportunities.
If a minimum tariff were to be introduced, the question would inevitably arise as to what the difference between taxi and hire car companies would be. In this case, wouldn’t both sectors have to be completely equalised?
A look at the case law of the Federal Court of Justice (BGH) from 2018 provides a clear direction in this regard:
“Accordingly, the legal demarcation of the occupational profiles of hire car and taxi operators serves to protect the viability and functionality of taxi transport, in which there is an important public interest. […]”
In contrast to taxis, hire cars are not bound by fixed tariffs, but can freely agree the transport fee”
(BGH, judgement from 13.12.2018 – I ZR 3/16)
The Federal Court of Justice is therefore of the opinion that the main difference between taxis and hire cars lies in the freedom to agree transport charges and that this justifies the privileged treatment of taxis.
If a minimum tariff is now introduced, precisely this distinguishing feature no longer applies. The boundary between taxis and hire car companies becomes blurred. This raises the question of whether the existing discrimination against hire car companies, in particular the obligation to return to the taxi rank in accordance with Section 49 PBefG, is still justified. Specifically: is Section 49 (4) sentence 3 PBefG still constitutional?
Under current law, hire car companies are not allowed to pick up passengers on the return journey after completing an order due to the obligation to return in accordance with Section 49 (4) sentence 3 PBefG. Instead, they must return to their starting point or to a designated drop-off point without passengers. The only exception is if a new order is received in advance.
“After carrying out the transport order, the hire car must return to its place of business without delay, unless it has received a new transport order from its place of business or home before the journey or during the journey.”
(§ 49 Para. 4 S. 3 PBefG)
This regulation is also coming under increasing pressure in view of the current case law of the European Court of Justice (ECJ). In its ruling of 8 June 2023 (C-50/21 – “Prestige and Limousine”), the ECJ clarified that unequal treatment of hire car and taxi companies is not permissible without further ado. At the very least, purely economic arguments and the protection of the taxi industry are not sufficient to justify unequal treatment.
Although the minimum tariff casts a large shadow for the most part, it also offers the opportunity to finally break through the already fragile wall of unequal treatment between taxi and hire car companies. In view of the aforementioned judgements, there are probably only a few ways out left for the legislator to maintain the existing differentiations.