Dutch Railways NS put rival railway undertaking Veolia at a disadvantage in regional tender process

Dutch Railways NS has violated the Dutch Railway Act by putting railway undertaking Veolia at a disadvantage in the tender process for the public-transport contract in the southern Dutch province of Limburg. This has been the conclusion of the Netherlands Authority for Consumers and Markets (ACM) following a complaint filed by Veolia. ACM already finalized this decision on March 6. However, NS had filed for an injunction against publication of the decision, but now it is no longer opposed against publication thereof.

In order to be able to make a competitive bid in the tender process, Veolia needs services that NS provides. NS failed to accommodate sufficiently Veolia’s requests for services such as ticket machines, service desks, and employee break rooms. The Dutch Railway Act mandates NS to make competitors a reasonable offer for using these services. Sometimes NS made such offers too late, and sometimes it even failed to do so at all. Other elements of NS’ offer were of such a non-committal nature that Veolia was unable to use them in the tender process. Moreover, NS passed on to its subsidiary Abellio, which also participated in the same tender process,  competitively-sensitive information of Veolia concerning the use of services, and the temporary use of trains. With this information, Abellio was able to gain an unfair advantage over the other participants.

“Competitors of NS are dependent on access to facilities that NS traditionally operates at most stations. According to the Dutch Railway Act, fair competition in the railway market must be ensured as much as possible. In the tender process for public-transport contract in Limburg, NS deliberately put its competitor Veolia at a disadvantage. Its own subsidiary Abellio was thus able to benefit from that situation,” explains Henk Don, Member of the Board of ACM. “The behavior of NS has thwarted the normal competitive process, which is at the expense of riders and taxpayers who deserve the highest quality at the best possible price.”

In its decision, ACM does not comment on any possible abuse of dominance or any other violations on the part of NS. That investigation has not been completed yet. As part of that investigation, ACM will decide at a later stage whether or not it will impose any fines.