Can the government award the operation of the most important rail connections in the Netherlands exclusively to the Dutch Railways for another ten years? Or should the Netherlands put out public tenders for the so-called main rail network, as the European Commission prescribes in most cases?
That is the question in a lengthy legal procedure between the Ministry of Infrastructure and Water Management and the Federation of Mobility Companies in the Netherlands (FMN). That procedure will be continued this week. The FMN, which represents Arriva, EBS, Keolis, Qbuzz and Connexxion, is starting proceedings on the merits against the Dutch State.
Also read: Transport companies take the ministry to court for an NS operating license
The issue revolves around the private award of the main rail network for the period between 2025 and (presumably) 2035. The then State Secretary Stientje van Veldhoven (Infrastructure and Water Management, D66) reported to the House of Representatives in June 2020 that she would return the main rail network to NS from 2025. want to grant. Privately, without public tender. That would be too complex, Van Veldhoven reported in the House.
From 2005 to 2015 and from 2015 to 2025, NS already had the exclusive right to use the network for two periods. The transport company pays a fee of approximately 80 million euros per year for this. 95 percent of the number of passenger kilometers per train in the Netherlands takes place on the main rail network (mainly intercity lines and sprinters and some international connections from the Netherlands).
Direct award is still allowed in exceptional circumstances, says the European Commission. From December 26, 2023, direct award is only possible for lines that no one wants to operate. Since the turn of the century, Europe has wanted to liberalize the rail market in all Member States extensively.
“For decades there has been no market forces on approximately 95 percent of the railways in the Netherlands,” said the Dutch Mobility Companies Federation in the summons that was submitted to the court in The Hague on Wednesday. The proceedings on the merits follow summary proceedings at the end of 2020.
The FMN believes that the ministry has violated European rules. These competitors of NS want to be able to run on more lines than just the (less lucrative) connections outside the Randstad. On 1 December 2020, the judge stated in summary proceedings that the substantiation of the FMN “does not seem implausible” and that the State “should not elaborate an intention that conflicts with an EU regulation”.
What did Brussels say?
The judge also stated that the European Court of Justice should ultimately decide on an EU regulation. During the hearing in November and in the verdict of 1 December, the judge suggested that the ministry should consult with the European Commission. Does Brussels consider direct award to be permissible in this case?
Did the ministry do that? And if so, what did the Commission say? These are questions that the FMN has been asking for months, but it is still waiting for an answer. The ministry refuses access to the correspondence with Brussels, despite invoking the Open Government Act (Wob).
In April 2021 determined the court in Amsterdam that the ministry had to reply to the Wob requests by June at the latest on the basis of a penalty of 50 euros per request per day. The FMN has still not obtained the information, except for a “more than 95 percent black” document, according to the subpoena. The penalty has now risen to almost 16,000 euros.
The FMN claims that direct award is not the best thing for the traveler. She points to the connections that its members now use, such as the Valleilijn or the railway in Friesland and Limburg. NS wanted to dispose of those railway lines sooner because they would no longer contain music.
According to the FMN, the tender brought those fringe lines back to fruition. The organization wants the State Secretary to investigate whether other rail connections also offer such possibilities.
The summons that became public on Wednesday is the first step in the proceedings on the merits. It could take up to a year before a ruling is made.