The case concerns the decision of the State Secretary for Infrastructure and Water Management to directly award the concession for passenger transport on the main rail network (hoofdrailnet) for the period 2025–2033 to incumbent operator Nederlandse Spoorwegen (NS), without a public tender.
Amongst other public transport companies, Arriva Personenvervoer Nederland B.V. (Arriva) challenged this decision, arguing that it violates EU and Dutch law, particularly due to the inclusion of nearly the entire main rail network - approximately 95% of the total yearly passenger volume (upwards of EUR 3 billion in yearly revenue) - in a single concession without conducting prior market research.
The European Commission has in the last couple of years endorsed these concerns with its efforts culminating in the initiation of infringement proceedings against the Netherlands on 17 July 2025.
The legal dispute focuses on the interpretation of the transitional provision in Article 8(2)(iii) of Regulation (EC) No 1370/2007 (the PSO Regulation), as well as on the more general interplay between the right of governments to restrict market access through public service contracts versus the right of railway undertakings to have open access to infrastructure under Directive 2012/34/EU. These questions are especially relevant in light of the market liberalisation objectives of the EU’s Fourth Railway Package, but – depending on the ruling of CJEU – the outcome of this case may also have substantial consequences for other (to be) liberalized markets in the EU.
The State Secretary argues that directly awarding the entire Dutch main rail network to a single (state-owned) company is permissible on the grounds that its policy objectives are aimed at treating the main rail network as a single, integrated system that needs to be serviced as such. The challengers, however, contend that EU law requires market access to be based on (a prior assessment of) the extent to which services would or could be rendered by the market in open access, in the absence whereof the current Dutch concession structure is incompatible with EU law on public service obligations and infrastructure access.
In addition to the CJEU referral, in an unprecedented application of Dutch administrative procedural law, the CBb simultaneously by way of interim relief ordered the State Secretary to re-engage in negotiations with Arriva on its offer for train services in the northern part of the Netherlands pending the outcome of the referral. Such an application of the court’s power to grant interim relief had to date not been applied in a referral judgement.
Next steps
A final ruling will be rendered only after the CJEU has answered the referred questions, which is not expected before the end of 2026. The ruling is available via this link (in Dutch).
Our Regulatory team members mentioned below represented our firm’s longstanding client Arriva in these proceedings.
Contact
Should you have any queries in relation to the above, or other EU regulatory matters, please reach out to one of our specialists or to your regular contact at Loyens & Loeff.
