In its decision of 3 October 2012 (Case 7436), the Dutch Competition Authority ("NMa") approved the acquisition by NS of certain assets and services from ProRail.
ProRail is an undertaking entrusted with the exploitation of the main railway infrastructure in the Netherlands. The assets included the provision of train travel information to passengers as well as associated services. ProRail provides the train travel information to both NS and other railway operators in the Netherlands, such as Connexxion, Veolia and Arriva. The transaction therefore has a vertical dimension.
According to the NMa, NS would as a consequence of the transaction be able to provide the travel information services on discriminatory terms. In addition, as a consequence of the transaction NS would be able to gain access to commercially sensitive information of its competitors. In view hereof the NMa took the preliminary view that the transaction would lead to a significant impediment of effective competition on the Dutch market for contestable public railway transport.
This in turn led the NS to offer several commitments in order to alleviate the said competition concerns. These commitments included a duty to provide non-discriminatory access to a standard service quality agreement concerning the provision of travel information to all public passenger transporters and a duty to charge costs that do not exceed certain criteria that are laid down in detail in the decision. Furthermore, NS committed itself to ensure the quality of its travel information services by monitoring its services through an independent party and to pay back to its customers 25% of the tariffs charged in case the average service level over a 6-month period was 10% below the relative service level delivered to itself. Finally, NS committed itself to set up a travel information service centre. This service centre would be responsible for the management of the travel information agreements and for keeping passenger transporters up to date with the quality and service costs of NS.
This case indicates that even in a phase I-decision the NMa is willing to accept far-reaching and innovative behavioural commitments in order to give the green light to a transaction. Another well-known example of a case where a wide set of behavioural remedies was accepted in phase I is the NMa's decision relating to the acquisition of Reggefiber by KPN (Case 6397). The underlying case differs from the KPN/Reggefiber decision in that it concerns a purely vertical merger.