The summary proceedings are a new escalation in the conflict over the rail concession, the permit to drive on the railway. This has been awarded privately to the Dutch Railways (NS) for many years. As a result, no other parties can compete. As far as the cabinet is concerned, the next concession (2025-2034) will also go back to the NS, whose shares are fully owned by the state.
But according to competing transport companies, that is prohibited. These are Arriva, Transdev (Connexxion), Keolis, QBuzz and EBS – united in the Federation of Mobility Companies in the Netherlands (FMN). They believe that the cabinet should have first asked whether other parties also wanted to operate the train connections. There is great enthusiasm among them: the FMN carriers now operate a small number of regional lines in Groningen, Overijssel, Gelderland and Limburg, among others, accounting for about 5 percent of the market, according to rail manager ProRail. The companies want to expand to Brabant, Zeeland and North Holland.
Own interpretation of legislation
This is not the first time that transport companies have taken the state to court. Also in November 2020, after the cabinet had expressed the intention not to put the concession out to tender, summary proceedings were filed. It turned out that the cabinet and the companies each have their own interpretation of European legislation. The judge ruled ‘insufficient grip‘ to ‘make far-reaching judgments’ and referred to the European Court of Justice.
But circumstances have changed: it was recently announced that the European Commission is also strongly opposed to the private concession. European Commissioner Adina Vălean considers an award to the NS as a ‘serious risk of violation of European law’, she wrote to the cabinet in July. Brussels instructs the Netherlands to involve other companies in the tender. It must do this through a so-called market survey. If it doesn’t, the Commission threatens a lawsuit that could have ‘significant legal and financial consequences’ if the Netherlands loses, according to Vălean.
Cabinet does not meet companies
The carriers – strengthened by the Commission – are now again starting a civil lawsuit. They speak of a ‘willful circumvention’ of the law. The summons will be sent to the ministry next week. They demand that the granting of concessions be discontinued until the market survey has been carried out.
A spokesperson for State Secretary Vivianne Heijnen (Infrastructure) does not want to respond to the summons. It refers to a letter from last week, in which the State Secretary reiterates that it ignores the demand of the European Commission and the companies. ‘I am of the opinion that no legal obligation can be derived from the PSO regulation and European case law to determine, via a market analysis, whether these train services can be provided by other carriers.’
The House of Representatives will consider the matter next Tuesday.
In an earlier version of this piece, a ministry spokesperson said it has no intention of acquitting the companies. That is based on a misunderstanding: the ministry only wishes to respond in a general sense, and not to the summons.