On 3 June 2015, the Netherlands Authority for Consumers and Markets ("ACM") published a decision finding that Dutch Railways NS ("NS") had infringed the Dutch Railway Act by deliberately putting its competitor Veolia at a competitive disadvantage in a tender procedure for the public-transport contract in the southern Dutch province of Limburg. The decision was instigated by a complaint filed by Veolia, a rival of NS's subsidiary Abellio in the tender procedure.
The Dutch Railway Act provides that NS, in its capacity as holder of the national concession for the main railway network (including ownership of the railway stations), has to provide railway undertakings with a reasonable offer for railway services and facilities which are essential for the use of the national railway such as the use of passenger stations. These services and facilities must be provided in a non-discriminatory manner and requests by railway undertakings may only be rejected if viable alternatives under market conditions exist.
In June 2014, the province of Limburg started a tender for the public transport for the period 2016 – 2031. Bids were submitted by NS-subsidiary Abellio, Veolia and another third party. In order to prepare a competitive bid for the tender, Veolia requested various offers from NS for the use of services and facilities it required. In its decision, the ACM concluded that NS failed to provide a reasonable offer in a non-discriminatory manner as regards a number of the services requested by Veolia, such as the use of the ticket machines, service desks and employee break rooms at the various railway stations. According to the ACM, NS failed to provide timely and complete offers to Veolia. Other parts of NS' offer were non-committal to such an extent that Veolia was unable to include them in its bid.
In addition, the ACM found that NS unfairly treated and disadvantaged Veolia by passing on commercially sensitive information to its subsidiary Abellio. According to the ACM, this enabled Abellio to gain a strategic competitive advantage in the tender procedure.
The decision of the ACM shows that in the applicable regulatory framework intra-group sharing of information on tender participants can infringe competition rules, in this case the Dutch Railway Act. In such cases, strict Chinese walls should be maintained to prevent intra-group information streams that could harm competition.
In its decision, the ACM did not assess the potential abuse of dominance by NS. However, the ACM announced that it conducted dawn raids at NS and its subsidiary companies QBuzz/Abellio as part of an investigation into the potential abuse of dominance by NS.