Diederik Schrijvershof and Annabel Kingma are assisting Federatie van Mobiliteitsbedrijven in Nederland (Federation of Mobility operators in the Netherlands – “FMN”) and its members Arriva, Transdev (Connexxion), Keolis, Qbuzz and EBS in summary proceedings against the Ministry of Infrastructure and Water Management. The summary proceedings relate to the proposed direct award of the main rail network concession (HRN concession). This HRN concession covers approximately 95% of the passenger kilometres in the Netherlands. The Dutch State wants to yet again directly award the HRN concession to the NS for nine years after 2025.
FMN and its members believe that in doing so, the Dutch State is acting in violation of European rail regulations. They already challenged the proposed direct award in 2020. In this context, the court in preliminary relief proceedings warned the Dutch State not prepare a direct award that is in violation of EU law. Two years later, the Dutch State appears to have failed to convince the Commission of the legality of its approach, according to this letter from the European Commission. On 18 July 2022 European Commissioner Vălean pointed out that the Dutch State runs a "serious risk of violating European law" by directly awarding the HRN concession to the NS. The Eurocommissioner also pointed in her letter to the ongoing civil proceedings against the intention noting that the proceedings – in the eyes of the Commission – have merit. Among others, NOS, Trouw, Volkskrant and FD wrote about the summary proceedings.
Maverick Advocaten is also representing FMN, ALLRAIL VZW, FlixBus B.V. and FlixTrain GmbH in proceedings on the merits against the Dutch State, see also here. Earlier, 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 recently reported to the House of Representatives that she expected that going ahead with the proposed private award of the HRN concession would result in an infringement procedure by the European Commission. In doing so, the state attorney general reported to her that there was a real chance that the Dutch State would not win a legal case on this matter at the Court of Justice of the European Union.
