How is the rail transport industry generally structured in your country?
From 1938 to 1994, Dutch Railways (NS) was the only state-owned rail transport company operating in the Netherlands. Although it was a private company, 100 per cent of the shares were owned by the state. NS was the owner of rail infrastructure and was the only organisation providing all internal rail transport (freight as well as passengers), the management of the rail infrastructure, the education of railway employees such as locomotive drivers, and the design and ordering of the rail equipment (eg locomotives, wagons). For decades, it was heavily subsidised by the state. Foreign railway companies were allowed to cross the border only for certain agreed international transport and under conditions controlled by NS; open access was impossible.
In 1991 the European Community enacted Directive 91/440 on the development of the Community’s railways. The aim of this Directive was to have railways within the Community adopt the needs of the single market and to increase their efficiency. To this end, member states had to ensure the management independence of railway undertakings, separate the management of railway operations and infrastructure from the provision of railway transport services, and allow access to the networks of member states for - at that time - international groupings of railway undertakings and for railway undertakings engaged in the international combined transport of goods. These goals implicated a reorganisation of the rail sector and established the first step to open access.
In the Netherlands, the more rigorous option was chosen to separate the management of the rail infrastructure and the operation of rail transport at an organisational and institutional level. First, NS was changed into a market party, although its shares continued to be owned by the state. In 1995 the company loosened the ownership of railway infrastructure, and in 2002 ownership was formally transferred to the state. The managerial tasks, such as allocation of infrastructure capacity and the maintenance and renewal of the infrastructure, were split off from NS and dedicated to a new private rail infrastructure manager, ProRail, which has been in operation since 2003. Arrangements between the Dutch state and NS were made to reduce the subsidies to zero. Passenger transport and rail freight transport were also split up. The rail freight part of NS (NS Cargo), which at the time was the only rail goods carrier in the Netherlands, was separated in 1999. This was essentially the starting point for a sometimes arduous liberalisation of the rail (freight) market. In the 20 years since then, freight transport has been provided by a growing number of rail freight undertakings concurrently on the whole of the Dutch rail infrastructure (about 7,000km).
NS, whose tasks were reduced to rail passenger transport only, is still responsible for the main part of Dutch rail passenger transport. In 2000 it received, without any tendering, an exclusive 10-year concession for rail transport from the Minister of Infrastructure, and a new, exclusive concession once the 10 years had expired. The more regional lines are generally open tendered for periods of 10 years. The rail passenger transport over these lines is operated by the (sole) passenger rail transport company that wins the respective tenders. Even though these regional lines form 25 per cent of the Dutch rail infrastructure, only around 10 per cent of rail passengers are transported over them. This means that in spite of the liberalisation, 90 per cent of rail passenger transport is exclusively provided by NS. The national rail passenger transport is mainly provided by four companies: NS, Arriva, Keolis and Syntus. International rail passenger transport is carried out by different rail passenger transporters.
Ownership and control
Does the government of your country have an ownership interest in any rail transport companies or another direct role in providing rail transport services?
NS is a limited liability company under Dutch law, and the sole shareholder is the Dutch state. It is managed by a managing board, which is guided by a supervisory board. These organs are independent of each other. Both bodies are accountable for their performance to the general meeting of shareholders, which in fact means that they report to the state. The role of shareholder is fulfilled by the Ministry of Finance.
The government plays an important and influential role, not only as sole shareholder of NS, but also because the Ministry of Infrastructure grants the rail passenger transport concession for the main part of the Dutch railway infrastructure. Passenger transport is the most profitable part of the national rail network. This concession is granted without a tendering procedure for a period of 10 years. For the past 20 years NS has been granted this concession.
Regional concessions for rail passenger transport are granted by regional governments. These regional concessions are tendered.
The state also owns 100 per cent of the shares of ProRail, which is a limited liability company under Dutch law. In 2015, ProRail received a 10-year management concession from the Minister of Infrastructure. As part of this concession, the government instructs ProRail on its managerial tasks and clear agreements between both parties are made, for example concerning the number of disruptions on the rail infrastructure.
Are freight and passenger operations typically controlled by separate companies?
Since the liberalisation of the rail industry, freight and passenger operations are carried out by separate rail companies. There are also holding companies that operate both freight and passenger transport, the operations of which are carried out by its subsidiaries.
Which bodies regulate rail transport in your country, and under what basic laws?
Competition aspects, including those specific to the railway industry, such as open and fair access to the market for railway undertakings, are regulated by the Authority for Consumers and Markets (ACM). Appeals against the decisions of the ACM can be lodged before the Trade and Industry Appeals Tribunal.
Rail safety is regulated by the Minister of Infrastructure and by the Human Environment and Transport Inspectorate (the Inspectorate), which fulfils the role of the railway safety authority. Its decisions are appealable, first at the District Court of Rotterdam and finally at the Trade and Industry Appeals Tribunal.
The main laws are the Railway Act and the Passenger Transport Act. The decrees and ministerial regulations under these acts mostly elaborate on different aspects regulated in the Railway Act. For example, there are regulations on safety conditions that concern railway infrastructure, ‘safety functions’ in the railway sector (eg, the train driver) and the railway undertakings that want to operate on the railway infrastructure.
There is also local railway infrastructure, which is regulated by the Act on Local Railway Infrastructure. This Act is mainly concerned with tram and metro transport in and around cities.
Is regulatory approval necessary to enter the market as a rail transport provider? What is the procedure for obtaining approval?
A railway undertaking that intends to provide rail transport services and to gain access to the Netherlands’ railway infrastructure must comply with a large number of legal requirements. These requirements derive mainly from European directives that regulate both the safe participation in rail traffic and the qualifications for access to the rail transport market. The conditions are established in the Railway Act and its decrees and regulations. The fundamental requirements that the railway undertaking must satisfy are the following:
- a valid business (operation) licence;
- a valid safety certificate or a test certificate;
- an access agreement with the rail infrastructure manager; and
- liability insurance.
The railway undertaking has to submit an application for a business licence and safety certificate to the Inspectorate. The undertaking must meet the requirement of good repute by demonstrating that it and the persons in charge of its management have not been convicted of serious criminal offences (including offences of a commercial nature), have not been declared bankrupt, have not been convicted of serious offences set out in specific legislation applicable to transport and have not been convicted of serious or repeated failure to fulfil social or labour law obligations. It must also demonstrate that it meets requirements relating to financial fitness, professional competence and cover for civil liability. Therefore the fourth requirement mentioned above (liability insurance) must also be satisfied when applying for a business licence. The minimum cover is €10 million per event.
The licensing authority has to make a decision on an application as soon as possible; in principle, this should not be more than three months after all the relevant information has been submitted. If a licence is refused, the grounds for refusal must be stated in the decision, which is communicated to the undertaking.
As mentioned above, the application for a safety certificate must be submitted to the Inspectorate or, in certain cases, the European Railway Agency. There are different types of safety certificate for rail freight transporters and rail passenger transport providers.
Regarding the third requirement listed above, the railway undertaking must conclude a contract with the railway infrastructure manager (ProRail). As ProRail is a monopolist, there is little room for negotiation.
Is regulatory approval necessary to acquire control of an existing rail transport provider? What is the procedure for obtaining approval?
Any railway undertaking that provides rail transport on the Dutch main railway infrastructure must have all the (control) documents mentioned in question 5. A business licence is valid throughout the territory of the Netherlands (and the European Union) and as long as the railway undertaking fulfils its obligations of good repute, etc (articles 28 to 31 of the Railway Act; and the Licence and Safety Certificate (Main Railways) Decree).
The safety certificate issued by the Inspectorate has to be renewed upon application by the railway undertaking and at intervals not exceeding five years. It must be fully or partly updated whenever the type or extent of the operation is substantially altered. The procedure to obtain this document is generally the same as it is for obtaining a business licence (articles 32-35 of the Railway Act; and the Licence and Safety Certificate (Main Railways) Decree).
The rail access agreement, which has to be concluded between all railway undertakings and the railway infrastructure manager, has to be renewed and concluded again every year.
Is special approval required for rail transport companies to be owned or controlled by foreign entities?
The requirements listed in question 5 apply to all railway undertakings, regardless of whether the owner is Dutch or foreign.
Is regulatory approval necessary to construct a new rail line? What is the procedure for obtaining approval?
The Minister of Infrastructure (according to article 5 of the Railway Act) and ProRail have the authority to approve the construction of railway infrastructure.
Companies and natural persons can construct rail lines on their own property, for which certain municipal and other licences are required (eg, concerning environmental requirements), but these rail lines cannot connect to the main railway infrastructure without permission and assistance from ProRail and the state (eg, ProRail must provide technical information and grant licences, among other things). As privately owned plots of land are not very extensive in the Netherlands, the construction of private railways would be unpopular.
Discontinuing a service
What laws govern a rail transport company’s ability to voluntarily discontinue service or to remove rail infrastructure over a particular route?
Rail transport for passengers is regulated in several EU directives and regulations, in the Passenger Transport Act, the Railway Act and in other subsidiary legislation. Passenger transport is not only considered to be a business, but also a social responsibility. For that purpose the state governs the ‘main’ passenger transport by granting a concession to NS. During the concession period (10 years) discontinuing service is not an option for the rail transport company because it would be breaching the agreements made in the concession. For example, the minimum number of train stops per hour is agreed for large stations (from 06.00 to midnight at least two times per hour in each direction) and other stations (at least once per hour in both directions).
Local authorities grant regional concessions in public tenders to ensure regional passenger rail traffic. In these concessions the continuation of passenger railway services is also guaranteed. Discontinuation of service and even a reduction in the number of stops at a station would require lengthy discussions between the Minister (or the local authorities at the regional level) and the passenger railway undertaking.
ProRail acts on the basis of several EU regulations, the Railway Act, various Dutch decrees and regulations, and the management concession it has granted with the Minister of Infrastructure. Removing main rail infrastructure cannot be carried out without the permission of the Minister or at least ProRail. Almost all the main rail infrastructure in the Netherlands is owned by Railinfratrust, a state-owned company (whose shares are also owned by the state). Private companies like Tata Steel with private railway infrastructure on their property can remove their own railway infrastructure. This concerns only a very small part of freight railways in the Netherlands. These wholly private freight railways are governed by the Decree on Special Railways.
On what grounds, and what is the procedure, for the government or a third party to force a rail transport provider to discontinue service over a particular route or to withdraw a rail transport provider’s authorisation to operate? What measures are available for the authorisation holder to challenge the withdrawal of its authorisation to operate?
Only railway undertakings that hold a valid business licence, a valid safety certificate or test certificate, that are insured against risks related to statutory liability and that have concluded an access agreement with the network manager. For most rail passenger transport, a concession from the government is also obligatory.
If a company is convicted of a serious criminal offence, such as breaching the rules for transport of dangerous goods, the rail safety authority could withdraw its business licence. Without this licence, a railway undertaking is prohibited from providing rail services.
The Inspectorate, as rail safety authority, also audits railway companies on a regular basis in relation to the requirements for these licences and certificates. When it appears that safety rules are not sufficiently respected by a company, the Inspectorate will give instructions to this company and intensify the audits. If after a certain period of time no significant improvement is made, the Inspectorate can withdraw the company’s business licence or safety certificate. As of the moment of withdrawal, access to the railways of the Netherlands is denied for the company involved. The relevant stakeholders, such as the infrastructure manager, will be informed about the withdrawal of the licence or safety certificate. The railway undertaking involved can ask the court of first instance for a provisional injunction to suspend the withdrawal.
ProRail is also authorised to stop the service of a rail transport provider. When no access agreement is concluded between the network manager and a railway undertaking, the railway undertaking no longer has access to the rail infrastructure, even if it had an access agreement in the past. This means that the network manager can also force a railway undertaking to stop its operations. Because of the monopolistic character of ProRail and the legal obligation for railway undertakings to obtain an access agreement with ProRail, a certain degree of contract coercion is assumed. In any case, a valid reason must exist for not concluding a contract. In the event that no access agreement is concluded, the railway undertaking can initiate summary proceedings in civil court.
Concerning rail passenger transport, it is theoretically possible that the state or the local authority that granted the transport concession (which gives an exclusive right to the concessionaire) can also withdraw the concession, for example when the transport company infringes several important obligations. As continuity of passenger transport is considered very important, this remedy is not applied quickly.
Are there sector-specific rules that govern the insolvency of rail transport providers, or do general insolvency rules apply? Must a rail transport provider continue providing service during insolvency?
No specific insolvency rules apply. All railway undertakings seeking to access rail infrastructure most prove that they are financially fit in order to obtain the necessary business licence. The Inspectorate verifies financial fitness by examining a railway undertaking’s annual accounts or balance sheet, among other things. The licensing authority will not consider an undertaking to be financially fit if it has considerable or recurrent arrears of taxes or social security as a result of its activities. The Inspectorate may require the submission of an audit report and suitable documents from a bank, accountant or auditor to assess financial fitness. When a railway undertaking becomes insolvent or is declared bankrupt after it obtained a business licence, it no longer meets the requirements of the licence. There are no legal obligations to continue providing rail freight services if the transporter becomes insolvent (other than its contractual obligations).
A rail passenger transporter must meet its obligations during the concession period. If the concessionaire becomes insolvent during this period, it has to continue its transport obligations until the end of the concession period.
Do general and sector-specific competition rules apply to rail transport?
General competition rules are applicable to rail transport, for example regarding abuse of a dominant position. In addition, quite a few sector-specific rules are applicable in order to facilitate and promote competition. The railway policy of the European Union regards competition among railway undertakings as a key element to achieve efficient operations (Directive 91/440/EEC). Because the European and Netherlands railway markets were traditionally dominated by state enterprises with a total railway monopoly (both managerial and in operations), several supporting rules were necessary to enable a phased introduction of open access and a level playing field.
An important obligation is that member states ensure the separation of infrastructure management and transport operations (article 6 of Directive 2012/34/EU). This requires the organisation of distinct divisions within a single undertaking or that the infrastructure and transport services shall be managed by separate entities. The Netherlands chose the more rigorous option to separate the infrastructure manager and the (incumbent) railway company into two different entities in 2003 (NS and ProRail).
To ensure transparency for all railway undertakings and non-discriminatory access to rail infrastructure and to rail service facilities, the network manager is obliged to publish all the information required to use access rights in a network statement. The Railway Act includes provisions to ensure that the procedures maintaining and amending licences for railway undertakings are transparent and in accordance with the principle of non-discrimination. Railway capacity has to be allocated in a fair and non-discriminatory manner (Decree on Railway Capacity Allocation). In addition, EU rules are implemented in the Railway Act to ensure that railway undertakings shall be granted, under equitable, non-discriminatory and transparent conditions, the right to access the railway infrastructure for the purpose of operating all types of rail freight services.
Regulator competition responsibilities
Does the sector-specific regulator have any responsibility for enforcing competition law?
The sector-specific regulator is the ACM, whose powers are not only based on acts containing provisions for enforcing competition law, but also acts and regulations that apply to the rail industry. If a company fails to comply with the rules, the ACM has various legal instruments at its disposal in order to force compliance. It also has the competence to impose fines for violations of railway law and competition law, which can be imposed on both the firm and the individuals involved. The ACM has used this power more than once in relation to the railway market; for example, in 2016 it concluded that NS had abused its dominant position during the tender process in 2014 for the public transport contract in Limburg (a southern province) and put its competitor at a disadvantage in this regional tender process. The ACM imposed a fine of €40.95 million on NS (see www.acm.nl/en/publications/publication/17397/Dutch-Railways-NS-abused-its-dominant-position-in-regional-tender-process).
What are the main standards for assessing the competitive effect of a transaction involving rail transport companies?
The abuse of a dominant position is an important standard. Fair and non-discriminatory treatment, for example by ProRail, is also a main standard. For example, four passenger railway undertakings complained about the tariff for the use of railway infrastructure because they felt it did not reflect the (lower) costs connected with the lighter trains they usually use. The ACM concluded that the network manager had infringed the principles of fair and non-discriminatory treatment in regard to this aspect of the tariff. Consequently, ProRail reduced the tariff for lighter trains and, at the instruction of the ACM, reorganised the weight classes, taking these lighter trains into account.
Another example concerns the capacity allocation on the ‘Valley Line’ between two cities in the east of the Netherlands. By winning the concession for this line, rail passenger transporter Connexxion entered the rail transport market for the first time in 2007. The ACM established that ProRail had not treated Connexxion’s request in the same way as it had NS’s request, and that it had unlawfully given priority to the latter. ProRail was fined €776,000 (see www.acm.nl/en/publications/publication/6347/NMa-fines-ProRail-for-violating-Dutch-Railway-Act).
Types of regulation
Are the prices charged by rail carriers for freight transport regulated? How?
Rail freight transporters can set their own prices, which are not regulated. All railway undertakings have to pay a cost-based rail access charge (see question 20) to the rail infrastructure manager. There is no obligation to include this in the tariff that is charged to railway customers.
Are the prices charged by rail carriers for passenger transport regulated? How?
Prices charged by rail carriers for passenger transport are part of the deal of their transport concessions. For the main part of the rail network the annual rate increase is limited for ‘protected travel rights’ (article 54 of the passenger transport concession from the Minister of Infrastructure to NS). Protected travel rights are rights of travellers with a second-class single train ticket and certain domestic second-class subscriptions. NS has also had to consult with consumer organisations about intended tariff changes regarding the protected travel rights.
The passenger train companies Arriva, Keolis and Connexxion, operating on the publicly tendered regional rail lines in the Netherlands, share a common tariff system with NS.
Is there a procedure for freight shippers or passengers to challenge price levels? Who adjudicates those challenges, and what rules apply?
Prices for rail freight transport are negotiated between the rail freight companies and their clients. There are no legally fixed prices or a cap on prices for rail freight transport.
The price increases for ‘protected’ rail passenger transport tickets (which enable a passenger to travel across all rail lines in the Netherlands) are limited in the passenger transport concessions and are subject to feedback from advisory consumer organisations. The concessionaire has to ask for feedback from consumer organisations at least once a year (article 31 of the Passenger Transport Act). It can ignore the advice of the consumer organisations, but must explain its motivation for doing so.
A passenger can file a complaint about tariffs to the train operating company and to a specialised omudsman for better public transport called OV Loket. These procedures are free and there are no specific instructions for making a complaint. In addition, a passenger can submit a complaint to a civil court.
Must rail transport companies charge similar prices to all shippers and passengers who are requesting similar service?
There is no rule requiring an undertaking to use uniform prices in rail freight transport. However, the prices have to be equal for all passengers who are requesting the same service.
Sharing access with other companies
Must entities controlling rail infrastructure grant network access to other rail transport companies? Are there exceptions or restrictions?
The entity controlling railway infrastructure (ProRail) is separated from entities that are operating on the infrastructure. The network manager must ensure that infrastructure capacity is allocated in a fair and non-discriminatory manner and in accordance with EU law (article 39 of Directive 2012/34/EU). This principle is implemented in article 27, section 1 of the Railway Act and specified in the Regulation concerning the allocation of railway capacity on main railways.
Are the prices for granting of network access regulated? How?
The infrastructure manager has to supply the minimum access package to all railway undertakings in a non-discriminatory manner. Part of this package concerns the handling of requests for rail infrastructure capacity and the right to utilise the capacity that is granted (article 13, section 1 and Annex II of Directive 2012/34/EU, implemented in article 61 of the Railway Act). Railway undertakings have to pay for the minimum access package - the track access charge (TAC) - which is determined and collected by the network managers. This TAC reflects only the costs directly incurred by the train service. These are the costs that ProRail ‘can objectively and robustly demonstrate that they are triggered directly by the operation of the train service’ (article 31, section 3 of Directive 2012/34/EU and Regulation (EU) 2015/909). Over the past decade, there has been a lot of discussion about the calculation of these costs. In the Netherlands, several proceedings are being conducted about the direct costs that ProRail wanted to charge railway undertakings (see www.acm.nl/en/publications/publication/6336/NMa-ProRail-must-lower-rail-tariff-charged-to-NS). The same applies for other European countries. The European Commission wanted to clarify which elements can be included in the TAC and which cannot. To this end, the Commission has set out the modalities for the calculation of these costs in Regulation (EU) No. 2015/909.
The price for granting access to the network has to be addressed in the access agreement between ProRail and the railway undertaking, which these parties have to renew and conclude every year (article 59, section 1 of the Railway Act).
The ACM should be able to check whether the different charging principles are applied consistently with the information ProRail provided to them. Therefore, Annex IV of Directive 2012/34/EU requires the infrastructure manager to specify in the network statement the methodology, rules and, where applicable, scales as regards both costs and charges. At the request of four passenger rail transport companies, the ACM examined the TAC for 2015 and 2016, and ruled that the information provided by ProRail was not sufficient (see www.acm.nl/en/publications/publication/14576/ProRail-is-to-adjust-its-train-tariffs and www.acm.nl/en/publications/publication/14994/Tariff-substantiation-by-ProRail-is-still-insufficient).
Is there a declared policy on allowing new market entrants network access or increasing competition in rail transport? What is it?
To obtain network access, a railway undertaking needs a company licence, a safety certificate, an access agreement with the network manager and liability insurance. The conditions for an undertaking to obtain the licence and safety certificate are harmonised in the European Union by Directive 95/18/EC and its subsequent legislation, including Directive 2012/34/EU. These conditions are implemented in articles 28 to 31 (on company licence) and in articles 32 to 35 (on safety certificate) of the Railway Act. The requirements for obtaining the company licence and safety certificate are outlined in a subsidiary regulation (State Journal No. 661, 2004). In addition, it is important that rail vehicles (eg, locomotives, wagons) can be used throughout the European Union without technical or administrative impediments. To increase competition and to facilitate cross-border activities from railway undertakings, EU directives set out standards to reach these goals. The network manager, in a non-discriminatory manner, must supply all railway undertakings that request access to the network with the minimum access package. The price for this minimum access package is regulated in order to ensure fair treatment.
Must rail transport providers serve all customers who request service? Are there exceptions or restrictions?
There is no legal obligation for passenger train operating companies or rail freight transporters to serve all customers who request service. For passengers, the right to be transported existed until 1999. This changed with the entry into force of the Uniform Rules concerning the Contract of International Carriage of Passengers by Rail (CIV) and the Protocol of 3 June 1999 for the Modification of the Convention concerning International Carriage by Rail (COTIF) (see question 23 for the legal framework of the CIV and COTIF. The general terms and conditions of a rail transport undertaking may provide that a passenger who refuses to pay the carriage charge (or the surcharge upon demand if he or she did not buy a ticket before the start of his or her journey), may be required to discontinue his or her journey. The same applies for passengers that present a danger for safety and the good functioning of the operations or for the safety of other passengers, and for passengers who inconvenience other passengers in an intolerable manner (article 9, COTIF-CIV). The Passenger Transport Act codifies mostly the same rules for Dutch rail passenger transport.
Are there legal or regulatory service standards that rail transport companies are required to meet?
Train operating companies are required to meet a number of legal and regulatory standards in the form of international conventions, European Union law and national legislation, which increasingly incorporates the provisions of international conventions and EU law. The transport concessions also contain additional obligations to serve passengers.
International rail passenger transport in most EU countries, including the Netherlands, has for almost 130 years been dominated by conventions agreed by the Intergovernmental Organisation for International Carriage by Rail. This organisation developed international service standards for passengers for cross-border rail traffic in Europe, parts of Asia and the Maghreb. Most relevant is the CIV, which forms attachment A of COTIF (www.cit-rail.org/secure-media/files/documentation_de/passenger/civ/civ1999-f-d-e.pdf?cid=21961). COTIF regulates in particular the private law aspects of rail passenger transport, and most of its rules are mandatory. For example, a passenger can carry luggage, even living animals, if he or she takes care of this luggage. Important liability principles are also codified. In principle, the carrier shall be liable for the loss or damage resulting from the death of, personal injury to, or any other physical or mental harm to, a passenger, caused by an accident arising out of the operation of the railway and happening while the passenger is in, entering or alighting from railway vehicles regardless of the railway infrastructure used (articles 26 to 31 of the CIV). The passenger is entitled to be compensated for loss or damage resulting from the fact that, by reason of cancellation, the late running of a train or a missed connection, his or her journey cannot be continued on the same day.
In addition to COTIF, EU law also establishes service standards. Regulation (EC) No. 1371/2007 of the European Parliament and of the Council of 23 October 2007 (Regulation 1371/2007) aims to safeguard users’ rights for rail passengers and to improve the quality and effectiveness of rail passenger services in order to increase the share of rail transport in relation to other modes of transport. The CIV is fully incorporated into Regulation 1371/2007 as Annex 1. Service standards in Regulation 1371/2007 include the rights of users to receive information regarding the train service before as well as during the journey, and it strengthens the rights of disabled persons and persons with reduced mobility (whether caused by disability, age or any other factor) to have opportunities for rail travel comparable to those of other citizens. It also strengthened rights of compensation and assistance in the event of delay, missed connection or cancellation of a service.
As a result of the direct effect of Regulation 1371/2007 in the Netherlands, the CIV became increasingly important for national rail passenger journeys. The rules concerning national transport of passengers in Dutch civil law (article 8:100-116a of the Civil Code) are only relevant insofar as the CIV allows for national rules, but in fact the rules in the Civil Code mainly became important for other modes of transport such as national buses and the metro.
Service standards are expanded on in the transport concessions. Minimum service levels are agreed; for example, the rail passenger transporter has to serve all stations on business days from 06.00 to 20.00 two times per hour in each direction and it must improve its performance in regard to, among other things, the following:
- the availability of seats for passengers;
- the comfort of passengers at the stations and on the trains;
- the cleanliness of trains and stations, including toilets;
- the accessibility of the trains to all passengers; and
- having a user-friendly and accessible public transport payment system.
Is there a procedure for freight shippers or passengers to challenge the quality of service they receive? Who adjudicates those challenges, and what rules apply?
Article 12 of the Passenger Transport Act provides that each transport company has to establish an arbitration committee. Furthermore, the passenger has the option to submit a complaint to the transport undertaking itself. Any complaint concerning rail transport can be handled by this committee. The fee for each complaint is €27.50. This amount will be paid back if the committee rules in favour of the passenger.
In addition, as mentioned in question 17, OV Loket hears complaints regarding public transport. It handles complaints that public transport companies have not dealt with or resolved to the satisfaction of the passenger, and, where necessary, it will mediate when resolving these complaints. OV Loket is considered to be very approachable, and does not present any financial or other barriers. It cannot, however, force a passenger transport company to enter into a mediation process, or to follow up its recommendations. One of OV Loket’s strengths is that it is has the competence to publicly pillory transport companies that have failed to perform well.
In addition, passengers or passenger organisations can bring a lawsuit to the civil courts. The rules of civil proceedings in the Netherlands are applicable. This means, among other things, that the complaining party has to be represented by a barrister, and has to pay court and counsel fees. For example, a lawsuit was initiated in 2017 by a traveller who complained that he did not have a seat during his journeys with NS because the trains were frequently overcrowded and he was forced to stand. The judge rejected his claim for a seat with references not only to the general terms and conditions of NS, but also to the Dutch Civil Code and Regulation 1371/2007: a passenger has (in principle) the right to be transported but does not have the right to a seat during his or her journey (District Court of Midden-Nederland, Utrecht, 6 May 2018).
Types of regulation
How is rail safety regulated?
Rail safety is regulated at several levels, the first level being the railway company. All railway undertakings must have a company licence. To obtain this, a company is obliged to have a safety certificate (see questions 5, 6 and 21).
The network manager must have a concession for network management from the Ministry of Infrastructure. Like railway undertakings, the network manager is obliged to have a safety certificate that has to meet several safety standards (article 16a of the Railway Act, Directive (EC) No. 2016/798 and Commission Delegated Regulation (EU) 2018/762 establishing common safety methods on safety management system).
Railway infrastructure and all rail vehicles must also meet certain safety standards. These are set out in Directives 2016/797/EU and 2016/798/EU on the safety and interoperability of the rail system within the European Community, and in technical specifications for interoperability (TSI). The TSI set all the conditions that railway infrastructure and rail vehicles must adhere to, and the procedure to be followed in assessing conformity. Every rail constituent must also undergo the conformity assessment and suitability assessment for the use indicated in the TSI, and have the corresponding certificate (articles 36 to 47 of the Railway Act and its implementing Regulations).
Finally, rail personnel that have a function that is related to rail safety, such as the train driver and the shunter, must undergo training, and complete physical and psychological tests (articles 49 to 51 of the Railway Act and its implementing Regulations).
What body has responsibility for regulating rail safety?
The Inspectorate monitors and encourages compliance with both national and European railway legislation and regulations in favour of safe and sustainable railway transport. Its tasks, both preventive and reactive, are based on articles 55 and 56 of Directive 2012/34/EU. The supervision carried out by the Inspectorate has to meet the standards set out in the Railway Act and, among others, Directive 2016/798/EU and the Commission Delegated Regulation (EU) 2018/761.
What safety regulations apply to the manufacture of rail equipment?
The manufacture of rail equipment is regulated in detail in Directive 2016/798/EU on railway safety, Directive 2016/797/EU on the interoperability of railway systems and in several TSI. Each subsystem covered by TSI needs to be controlled and certified by a specialised notified body before it can be used for the (further) construction of rail equipment. The manufacturer confirms with an EC declaration of verification that the vehicle complies with the specifications. Thereafter the railway vehicle (as a whole) has to be licensed by the national safety authority (the Inspectorate). Articles 36 to 41 of the Railway Act and the Regulation on rail vehicle assessment incorporates these rules into Dutch law.
What rules regulate the maintenance of track and other rail infrastructure?
The maintenance of railway infrastructure is regulated by the EU Directives mentioned in question 27 and by TSI. The rules are generally the same as for the construction of railway vehicles.
What specific rules regulate the maintenance of rail equipment?
Each railway vehicle must have a registered entity in charge of maintenance (ECM), according to article 46, section 1 of the Railway Act and article 14 of Directive 2016/798/EU. The ECM must be certified for maintenance by the Inspectorate. To obtain this certificate, the ECM has to have several qualifications specified in Directive 2016/789, which have been implemented into Dutch law. The ECM must ensure that the vehicle is in a safe condition and maintained in accordance with international standards. In Regulation (EU) No. 1078/2012 a common safety method is set out for monitoring, which should be applied by the ECM.
What systems and procedures are in place for the investigation of rail accidents?
A railway undertaking involved in an accident has to report all railway incidents and accidents to the Inspectorate without delay. In many cases, the Inspectorate will start an investigation and publish the outcome in a public report. If it deems it necessary, it will take enforcement measures. In addition to the Inspectorate, the Dutch Safety Board can investigate railway accidents. It then operates as a research institute as provided for in Directive 2016/798/EU. When conducting research on accidents, there is always an emphasis on safety to avoid recurrence.
Are there any special rules about the liability of rail transport companies for rail accidents, or does the ordinary liability regime apply?
In general, the liability framework outlined in the Civil Code is applicable.
Railway undertakings have to be insured for liability with a legal minimum of €10 million per event. Liability towards rail passengers is limited (article 8:85 of the Civil Code).
The network manager must conclude an access agreement with each railway undertaking. The network manager’s terms and conditions are attached to this agreement, and include several liability clauses. These clauses not only regulate the relationship between the infrastructure manager and the contracting railway undertaking, but also the liability between railway undertakings themselves (third-party liability). It regulates that a railway undertaking that has an access agreement with the infrastructure manager can rely on the liability regime in the general terms and conditions of this access agreement not only towards its contract partner (the network manager) but also to the other railway undertakings that concluded an access agreement with the network manager.
Does the government or government-controlled entities provide direct or indirect financial support to rail transport companies? What is the nature of such support (eg, loans, direct financial subsidies, or other forms of support)?
The concessionaire of the main part of Dutch passenger rail transport (NS) has to pay for the exclusive concession it received without any tendering from the state (article 66 of the concession).
The passenger transporters that won the concessions for regional rail passenger transport receive financial support from the regional governments. Generally, regional passenger transport is not very profitable; however, because of the importance of having good passenger transport throughout the country, it is subsidised.
Rail freight transporters operate, in principle, without any financial support from the government and in competition with each other. Nevertheless, the TAC is sometimes subsidised by the state to stimulate rail freight transport and to create a more level playing field with, for example, inland shipping, which is a form of transport that can use the main waterways without any charge.
Are there sector-specific rules governing financial support to rail transport companies and is there a formal process to request such support or to challenge a grant of financial support?
With the exception of the financial support mentioned in question 32, no.
Applicable labour and employment laws
Are there specialised labour or employment laws that apply to workers in the rail transport industry, or do standard labour and employment laws apply?
Standard labour and employment laws apply, as well as several specialised national decrees. These decrees cover requirements regarding typical railway functions, such as the function of the train driver, the shunter and the rail wagon inspector. The requirements relate to the minimum age, and physical and psychological health of rail personnel, and the knowledge and experience required for the different roles.
Applicable environmental laws
Are there specialised environmental laws that apply to rail transport companies, or do standard environmental laws apply?
The Act concerning transport of dangerous goods has a specialised Decree for rail transport of dangerous goods (State Gazette No. 250, 1998, recently updated by State Gazette No. 23,654, 2018). In general, the standard environmental laws apply, principally the Environmental Act. These laws contain, among other things, standards for noise and vibration emissions that railway undertakings have to meet.