Diederik Schrijvershof and Annabel Kingma are assisting Federatie van Mobiliteitsbedrijven in Nederland (FMN) and FMN members Arriva, Transdev (Connexxion), Keolis, Qbuzz and EBS in an emergency appeal against the Ministry of Infrastructure and Water Management. The emergency appeal focuses on the December 2022 ruling of the preliminary relief judge. The emergency appeal concerns the proposed direct award of the main rail network concession ("HRN concession"). This concession covers approximately 95% of the rail track in the Netherlands. The State of the Netherlands ("State") intends to directly re-award the HRN concession to NS for nine years starting in 2025. In the fall of 2022, FMN initiated preliminary relief proceedings about this matter. This was reported by NOS, Trouw, Volkskrant and FD, among others. The preliminary relief judge deemed it "certainly not inconceivable" that the direct award of the HRN concession violated EU law. Nevertheless, the interim relief judge chose to avoid "far-reaching" decisions. NRC wrote about the ruling in these preliminary relief proceedings.
FMN and its members believe that it (should) have been determined in court that the State is in violation of European rail regulations and (among others) state aid rules. FMN also challenged this in 2020. Back then, the preliminary relief judge warned the State not to develop a scheme that was in violation of EU law. The State has not yet succeeded in doing so. In the past two years, for example, the State was unable to convince the European Commission of its approach. This follows from this letter from the Commission. Eurocommissioner Vălean wrote on 18 July 2022 that the State runs a "serious risk of violating European law" by directly awarding the HRN concession to NS. In her letter, the Commissioner also referred to the on-going civil proceedings on the merits against the plan, noting that the Commission supports the grounds for it. Maverick Advocaten is also assisting FMN in proceedings on the merits against the State, see also here. Previously, Maverick Advocaten successfully filed a complaint with the Commission on behalf of FMN. In that context, the State Secretary of the Ministry of Infrastructure and Water Management reported to the Lower House that she expected that continuing the proposed direct award of the HRN concession would result in infringement proceedings by the European Commission. Thereby, the state advocate reported that there is a real chance that the Dutch State will lose a legal procedure about this at the Court of Justice.
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