NETHERLANDS: The European Commission has decided to refer the Netherlands to the Court of Justice of the European Union, saying the country failed to correctly apply Regulation 1370/2007 when it directly awarded state incumbent NS a concession to operate passenger services on the designated core network in 2025-33.
A 2016 amendment to the regulation ended the option to directly and unconditionally award public service passenger rail contracts with effect from December 24 2023, with the competitive award of such contracts becoming the norm.
The Dutch contract was signed on December 21 2023, just before the deadline, but the Commission argued that as the services provided under the concession began on January 1 2025, the contract should have been competitively tendered. At the time, the Commission said that the one-year delay between signing and entry into force was aimed at circumventing the principle of competitive tendering.
Announcing its decision to refer the Netherlands to the court on July 17, the Commission said competition ‘is essential to provide passengers with more attractive and innovative services at lower cost’, and thus a competitive award procedure should have been used.
The Commission also has concerns about how the scope of the contract was determined, and considers that the Netherlands breached the regulation by not analysing whether some services could be provided by market operators under commercial, open access conditions, and without public service obligations and compensation.