The Ministry of Infrastructure and Water Management is on a collision course with the European Commission on the future of Dutch rail. Against the will of ‘Brussels’, the ministry will continue to award the operation of the most important rail connections in the Netherlands from 2025 exclusively to the Dutch Railways for another ten years. This ‘private award’ is most likely in conflict with European rules on market forces on the railways. Such a large contract must first be offered on the free market, so that several public transport companies can compete. Direct award is only an option if no carrier wishes to operate the lines offered. The so-called main rail network (HRN) consists of the most important rail connections in the Netherlands – mainly intercity lines and sprinters and some international connections. “The Netherlands is seriously at risk of violating European legislation,” wrote European Commissioner Adina Valean (Transport) in a letter to State Secretary Vivianne Heijnen (Infrastructure and Water Management, CDA) in July. Valean has meanwhile started legal proceedings against the Netherlands. The letter went public on Monday; he was one of the appendices to documents that Heijnen sent the House of Representatives about the future of the Dutch railway. It has never been officially known before that the European Commission is seriously critical of how the Netherlands intends to tender this rail contract. Next week, the House of Representatives will talk to the State Secretary about the main rail network, on which 95 percent of the total number of passenger kilometers is traveled by rail in the Netherlands. Commissioner Valean takes the ‘extremely urgent’ issue very seriously. She calls on the Dutch government to reconsider the decision. Also read: NS competitors start proceedings on the merits for open tender for the main rail network Best service For more than two years now, there has been a commotion about the new concession for the main rail network. In June 2020, then State Secretary Stientje van Veldhoven (Infrastructure and Water Management, D66) announced that she wants to reassign the rail network to the NS from 2025. Privately, because public tendering would be too complex, says Van Veldhoven. In addition, the service provided by the NS was excellent. In this context, the Dutch Railways emphasize, among other things, that a single coherent network of intercity trains and sprinters provides the best service to passengers. Because NS can plan such long through lines, 80 percent of travelers do not have to transfer, acting president Bert Groenewegen said in the House of Representatives at the end of September during a round table discussion about the railways . In the letter that has now become public, Valean writes that she has been discussing the private award with the ministry since May 2020, even before Van Veldhoven announced her intention to the House. The European Commissioner writes that she and her officials have repeatedly expressed ‘serious objections about the lawfulness of the award and the exceptionally broad nature of the concession’. Since the 1990s, the European Union has pursued a policy of rail liberalization; more market forces should improve the service to travelers. The European Commissioner is said to have repeatedly expressed ‘serious objections about the legality […] of the concession’ Market analysis If the Netherlands were to proceed with the direct award, this would have far-reaching legal and financial consequences, the Commissioner wrote threateningly. Valean wants the Dutch ministry to in any case carry out a market analysis, as is required in the EU, which should show whether carriers other than NS are interested in operating (parts of) the HRN. Various market parties have already expressed an interest in acquiring lines and have insisted on such a market analysis. However, Infrastructure and Water Management refuses to carry out such an analysis. In one of the documents that State Secretary Heijnen sent to the House on Monday evening, she writes that she “has no legal obligation to conduct a market analysis”. She does say she will continue to talk to the Commission. This could also lead to changes in the size of the concession, according to Heijnen. For example, the State Secretary places the risk with the House of Representatives. It would have to approve a large 10-year concession, the financial and legal risks of which are not yet clear. The ministry has always pointed to an exception in the European rules that would make it possible to reassign the operation of the main rail connections to NS. However, that exception will be deleted as of December 26, 2023. To the chagrin of the European Commission, the Dutch cabinet wants to award the new HRN concession to NS before Christmas 2023, even though it will only take effect at the beginning of 2025. Unfair Competitors of NS, united in the Federation of Mobility Companies in the Netherlands (FMN), have been objecting to the direct award for two years now. The FMN represents public transport companies Arriva, EBS, Keolis, Qbuzz and Connexxion. These subsidiaries of foreign carriers run regional trains in the Netherlands, especially outside the Randstad conurbation. The FMN considers the direct award to be unfair and contrary to European rules for market forces on the railways. In one of the lawsuits that the FMN has conducted on this subject, the court in The Hague stated that FMN’s objections sound “not implausible”. The judge called on the ministry to inform the European Commission about this matter. What the Commission answered to questions from Infrastructure and Water Management remained unknown for a long time. The ministry refused to disclose the letters – even after invoking the Government Information (Public Access) Act (now the Open Government Act) and a penalty that has risen to tens of thousands of euros. So see you Monday evening.