Cabinet to privately give NS the national train concession after court ruling

The Cabinet will move forward with its intention to privately award the concession for the main rail network Nederlandse Spoorwegen (NS), said Infrastructure State Secretary Vivianne Heijnen on Wednesday. In doing so, she is responding to a court ruling issued this week in a lawsuit brought by FMN, a collective of regional rail operators including Arriva, Keolis and Qbuzz. The court ruled on Tuesday that it did not consider itself to be the appropriate venue to determine the legality of the award, or to put a stop to it.

Heijnen said the Cabinet will continue "on the chosen path," because it believes "it is in the interests of the passenger that we have a coherent rail timetable that can take travelers to all parts of our country." The state secretary aims to grant the concession to the NS in December.

Prior to that, the Tweede Kamer, the will be informed about the content of the new contract at the end of the summer. This means that from 2025, the NS may organize rail transport on most of the Dutch railways for a period of ten years.

The NS said that the new concession is "obviously big" for the rail company. "That is why this is an important ruling for us and we can focus on preparing for the new concession so that passengers can also rely on good public transport after 2025," the NS said in response to the court decision.

During the proceedings on the merits of the case, FMN argued that the State is violating European Union rules with the private award. The carriers have already announced that they will appeal to the CBb, an appeals tribunal for trade and industry. This can only be done after the concession has actually been granted by the State to the NS.

The group of regional carriers are also asking the European Commission to go to the European Union Court of Justice. That court can provide clarity about the extent to which the State has violated European laws and regulations by privately awarding the main rail network concession to the NS.

While the CBb can take into account the extent to which the State has violated European rules with the private award, the EU Court of Justice can analyze and interpret the matter. This can be done at the request of a Dutch court, but also at the request of the European Commission. Dutch judges have not yet asked for such an explanation, according to FMN.

The European Commission previously questioned the size of the network that is being privately awarded to the NS. For example, European Commissioner Adina Valean wrote to Heijnen last July about having "serious concerns" about the "lawfulness" and the "excessively wide scope" of the award.

The FMN quoted that letter in its response to the judgment from the Court of The Hague. To date, an explanation from the European Court is still missing, after the court also decided not to test the case against European legislation. "Last year's letter from European Commissioner Valean is still on the table," said the FMN, noting "that the Netherlands has not yet allayed the concerns of the European Commission."