Per 1 January 2015, NS provides the national passenger rail transport in the Netherlands based on a concession from the State. Several competitors objected to the award of this concession. The highest administrative court (College van Beroep voor het bedrijfsleven) dismissed all their claims in its decision of 9 February 2017, including the claim that the concession should not have been awarded directly. The court considered that the European PSO Regulation (1370/2007) allows for direct award of such concessions. This right is not affected by the transparency obligation for concession contracts in the Dutch Procurement Act. Also, the State was allowed to include high speed and (other) cross-border railway services in the concession, as part of a coherent transport system. Another objection was that there should be regulations in the concession to safeguard competition (including to prevent abuse of the concession award). The court held that the awarding authority may only take interests into consideration for which the provision on railway concession awards was designed. Competition interests are however safeguarded by the Competition Act and (partly) the Railway Act, and not by the Act which regulates the award of railway concessions (Wet personenvervoer 2000).
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Award of national railway concession upheld
Netherlands February 28 2017
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