NS will keep exclusive rights to operate the main Dutch rail network for now

Dutch national railway NS will not face stiffer competition on the Dutch market for the time being, as the firm will be allowed to operate trains on the most important rail routes even if the courts revoke or issue an injunction against the company's transport permit. Regional rail carriers who have challenged the way the previous caretaker Cabinet handed the concession to the NS in December said during a hearing in front of the Trade and Industry Appeals Tribunal (CBb) on Tuesday that they do not want to upend public transport in the Netherlands.

The companies are challenging the issuance of the concession, which they believe gives the NS a monopoly over the main rail network. The concession awarded at the end of 2023 means the NS may transport passengers on the most important rail routes in the Netherlands until 2033.

But if the CBb revokes the permit, the regional carriers will accept an “emergency concession” for NS. "It is not our intention to create chaos on the railways," said lawyer Marc Kuijper on behalf of the regional carriers, which include Arriva, Connexxion, Keolis, the German Flixbus, and the European interest group AllRail.

The dispute has been ongoing for years. Several courts have already reviewed the matter before it was referred put before the CBb.

In the meantime, the regional carriers have received support from Brussels. The European Commission said a few months ago that the Dutch government must comply with EU competition rules when awarding contracts for public transport by rail. The CBb must now decide whether the Court of Justice of the European Union should be consulted on the matter. The Court can then weigh in on several issues, and provide clarity on whether the Dutch State should have been allowed to grant the permit to NS without first conducting a market study.

The Dutch State and NS do not believe that intervention by the European Court is necessary. The Dutch rail network hardly offers "any room for open access, except at the edges," argued Sebastiaan Cnossen, who is serving as the State Advocate. Tinkering with connections in the Randstad would be at the expense of providing rail service provision.

Kuijper fiercely opposed this on behalf of the regional carriers. "That has never been investigated. That would mean that in ten years the concession will be awarded to NS again."

The concession includes a binding agreement between the NS and the government about the timetable, finances, and rules which the railway company must follow. It included making the NS drop plans to make tickets more expensive during rush hour after an outcry in the Tweede Kamer, the lower house of Parliament. Those serving in Parliament will get to have a say whenever the NS proposes new price increases.

The concession was somewhat controversial, as it was awarded privately to the NS after a court said it did not have the authority to stop the deal from going forward last year. Former Infrastructure State Secretary Vivianne Heijnen said she chose this road because she "believes that in the interests of travellers we have a coherent rail timetable that can take passengers to all parts of our country."

The collection of regional carriers organized under the association, FMN, already said as far back as May 2023 that it would challenge such a concession. It argued that the Dutch State violated European rules by privately awarding the concession. However, they had to wait until it was actually awarded in December before they could file a case before the CBb tribunal.

It is not yet known when the CBb will make a ruling. The parties involved will have another month to further explain their positions in writing.