Today, the European Commission decided to refer the Netherlands to the Court of Justice for failing to correctly apply Regulation (EC) No 1370/2007 on public passenger transport by road and rail. Competition in the rail market is essential to provide passengers with more attractive and innovative services at lower cost, while keeping public service tasks.
The Netherlands awarded the concession contract for rail passenger transport services for 2025 to 2033 directly to the incumbent operator Nederlandse Spoorwegen, while on the basis of Regulation (EC) No 1370/2007, it should have used a competitive award procedure.
The Commission has concerns with regard to how the scope of the public service obligations set out in that contract was determined. It considers that the Netherlands has breached Regulation (EC) No 1370/2007 because it did not analyse if and which transport services included in the new concession contract could be provided by market operators under commercial, open access conditions, and without public service obligations and compensation.
On 14 July 2023, the Commission sent a letter of formal notice, followed by an additional letter on 13 March 2024, and a reasoned opinion on 12 February 2025. Despite the extensive contacts between the Commission services and the Dutch authorities since 2020, the Netherlands did not adjust this concession contract and its scope in a way that could have addressed the Commission's concerns. The Commission is therefore referring the Netherlands to the Court of Justice of the European Union.
Background
Regulation (EC) No 1370/2007 of October 2007 regulates public transport by rail and road. It was amended in 2016 under the fourth railway package. Following the amendment, the option to directly and unconditionally award public service contracts for rail passenger transport ended in December 2023. Since then, the competitive award of such contracts is the norm. The rail transport services provided under the Dutch concession contract at stake began on 1 January 2025. Therefore, such a contract should have been competitively awarded.
Moreover, public service contracts awarded under Regulation (EC) No 1370/2007 can only impose public service obligations in exchange for compensation and/or exclusive rights when the services concerned would not be provided by operators under normal market conditions and without reward. When specifying the scope of this concession contract, the Dutch authorities did not analyse the market to take into consideration potential commercial offers by market operators.
