The European Commission has referred the Netherlands to the Court of Justice of the European Union (CJEU) for breaching EU rules on competitive tendering in rail public transport. The case centres on the Dutch government’s direct award of a rail passenger transport concession for 2025-2033 to incumbent operator Nederlandse Spoorwegen (NS), without launching a competitive procurement process.
The Commission argues that this violates Regulation (EC) No 1370/2007, which sets the legal framework for public passenger transport by road and rail within the EU.
According to the Commission, the Netherlands failed to assess whether parts of the rail services covered by the new contract could have been provided commercially, without public service obligations or compensation. This market analysis is a legal requirement under EU rules.
The Commission stated:
“The Netherlands has breached Regulation (EC) No 1370/2007 because it did not analyse if and which transport services included in the new concession contract could be provided by market operators under commercial, open access conditions.”
The direct award to NS began on 1 January 2025. However, under the amended version of the regulation — part of the Fourth Railway Package — such unconditional direct awards ceased to be permitted from December 2023. Competitive tendering has since become the default requirement for rail public service contracts in the EU.
The Commission launched formal infringement proceedings against the Netherlands in July 2023. This was followed by an additional letter in March 2024 and a reasoned opinion issued in February 2025. Despite ongoing discussions with Dutch authorities since 2020, no agreement was reached to revise the contract or its scope in line with EU law.
Given the lack of progress, the Commission has now escalated the matter to the CJEU.
Regulation (EC) No 1370/2007 allows public authorities to impose service obligations on transport operators, with corresponding compensation or exclusive rights, only when the services would not be viable under standard market conditions. Before awarding a concession, Member States are expected to examine whether there is market demand for such services without public support.
In the case of the Dutch contract, the Commission contends that no such analysis was carried out. It also questions the way in which the scope of the public service obligations was determined.
The Commission sees this case as important for safeguarding competition in the EU rail market. It believes competitive tendering encourages innovation, improves service quality and efficiency, and reduces costs for public authorities and passengers.
“Competition in the rail market is essential to provide passengers with more attractive and innovative services at lower cost, while keeping public service tasks,” the Commission stated.
The CJEU will now consider whether the Netherlands has indeed breached EU law. If the Court finds in favour of the Commission, the Dutch government may be required to amend its current concession framework and could face financial penalties if it fails to comply.
