Diederik Schrijvershof and Annabel Kingma are representing FMN in objection and appeal proceedings against a decision by the Dutch Ministry of Infrastructure and Water Management (the Ministry). The decision relates to the publication of the public service contract for rail passenger transport services on the main rail network in the Netherlands (the Main Rail Network Concession) as from 2025.
FMN believes that the Ministry failed to comply with the procedural requirements of the PSO Regulation in that publication. The proposed Main Rail Network Concession must be published no later than one year before the Main Rail Network Concession award decision. The award decision will be taken no later than 24 December 2023, according to the Ministry. The Main Rail Network Concession should therefore have been published by 24 December 2022 at the latest. But it was published too late, since that did not take place until 27 December 2022. As a result, the proposed Main Rail Network Concession can no longer be privately awarded to NS for a period of nine years as from 2025.
FMN believes that the proposed private award of the Main Rail Network Concession cannot stand up to scrutiny for other reasons as well: for instance because it was decided on without any prior market analysis. This has given it a disproportionate scope. FMN also regards the manner in which the Ministry is applying the private award principle of Article 5(6) PSO-Regulation to the Main Rail Network Concession as unlawful. FMN is not alone in this: in 2022, the European Commission sent the Ministry a warning letter asking it to change course. The Commission also drew the Ministry’s attention in that context to the state aid rules. The Ministry refused to change course, but failed to observe the aforesaid procedural rules of the PSO Regulation.
Maverick Advocaten is also assisting FMN in proceedings on the merits against the State (see here) and emergency appeal proceedings (see here and here). Earlier, Maverick Advocaten successfully filed a complaint with the Commission on behalf of FMN. In that context, the State Secretary for Infrastructure and Water Management reported to the Lower House that she expected that persisting with the unchanged proposed private award of the Main Rail Network Concession would give rise to infringement proceedings by the European Commission. The State Advocate is said to have informed her in that regard that there is a fair chance that the Dutch State would not win such proceedings before the Court of Justice.
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