The European Commission has informed the Netherlands that the rules for the allocation of capacity on the Dutch main railway network may be in breach of EU antitrust rules.
In 2025, the Netherlands had to open its domestic rail passenger market to competition, allowing railway companies to operate on the main lines of the Dutch railway network, in competition with the 100% Dutch State-owned incumbent operator, Nederlandse Spoorwegen ('NS').
NS is the largest passenger transport company in the Netherlands. Its subsidiary, NS Reizigers, provides public transport on the main lines of the Dutch railway network under the concession contract covering the period from 2025 to 2033. NS International, another subsidiary of NS, cooperates with other incumbent railway companies (Belgian SNCB, German DB, Austrian ÖBB, Swiss SBB) and Eurostar to provide international transport from the Netherlands to Belgium, Germany, France, Austria, the UK and Switzerland.
Prior to opening its domestic market to competition, the Netherlands adopted rules ensuring that NS, as the holder of the main concession contract, gets priority over competitors, in case the capacity of the Dutch railway network is insufficient to meet all requests for train paths. These capacity allocation rules have applied since 2024.
The Commission has reached the preliminary conclusion that these capacity allocation rules are capable of distorting competition in the Dutch market for international rail passenger services. This is because they may create an inequality of opportunity between NS and competing operators when it comes to access to capacity on the Dutch railway network, thereby enabling NS to maintain or reinforce its dominant position.
The Commission has set out its preliminary competition concerns in a Letter of Formal Notice addressed to the Netherlands. If the Commission's preliminary conclusion are confirmed, this conduct would infringe Article 106 of the Treaty on the Functioning of the European Union ('TFEU') in conjunction with Article 102 TFEU.
Background
Article 106 TFEU requires Member States not to take or maintain in force measures that are contrary to the EU Treaties, in particular to the EU competition rules, such as Article 102 TFEU. Article 102 TFEU prohibits the abuse of a dominant position by companies, including those that have been granted special or exclusive rights to operate in a particular sector, in the sense of Article 106 TFEU.
A Letter of Formal Notice is a formal step in the Commission's investigation into suspected infringements by Member States of the EU competition rules. It informs the Member State concerned of the Commission's preliminary concerns and allows the latter to review the documents in the Commission's case file and to provide observations within two months.
The sending of a Letter of Formal Notice does not prejudge the outcome of an investigation. If the Commission finds, after reviewing the Member State's observations, sufficient evidence of an infringement, it may require the Member State concerned to remedy the competition concerns identified.
There is no legal deadline for concluding an investigation against a Member State for a potential breach of the EU competition rules. The duration of an investigation depends on different factors, such as the complexity of the case and the Member State's cooperation with the Commission.
