On 6 December, the Dutch Authority for Consumers and Markets ("ACM") published its decision in the dispute between Arriva Nederland and ProRail. This decision sheds light on the competitive dynamics between novel open access railway undertakings and established railway companies that hold government concessions to provide services. The decision is available here.
While competition in the telecommunications, energy and postal markets has increased and flourished across the EU since the 2000s, competition in the passenger rail sector has only recently seen the light of day. Arriva Nederland (“Arriva”) applied to ProRail for capacity on railway lines in the north of the Netherlands, while the incumbent operator, Nederlandse Spoorwegen ("NS"), simultaneously applied to use the same railway lines for its services. While NS offers its services to passengers on the basis of a concession to provide national railway services, Arriva sought to become one of the first companies in the Netherlands to offer similar services independently, without a concession, through so-called "open access services". Unfortunately for Arriva, ProRail rejected Arriva's application for railway capacity because, in such cases, transport services with a concession are given priority.
However, the ACM concluded that while ProRail was right to reject some of Arriva's requests for train paths, it was wrong to reject Arriva's requests for train paths during peak periods. The lack of transparency in the capacity allocation process was the key to this decision. In such procedures, the various steps and timing should be clarified and the rationale for decisions made in the process should be carefully justified. For example, if there may be traction problems, this should be carefully justified. Similarly, if another operator's trains can be diverted during construction works and these works are used as an argument to deny the open access operator's request for capacity, this could be seen as discriminatory. As a result, the ACM has instructed ProRail to further justify the capacity allocation decision, to amend its Network Statement 2026 and to coordinate the conflicting capacity allocation requests before issuing a new capacity allocation decision.
Interestingly, the ACM explicitly states that "the notification of open access services does not confer any rights to capacity allocation or priority". The primacy of 'public service' rail transport is therefore maintained. Nevertheless, the ACM has carefully assessed and criticised a process that will become more common: conflicting requests for railway capacity between licensed operators and open access operators. Whether the proposed Rail Infrastructure Capacity Regulation - which is still being discussed by the EU Council (see progress via this link) - will improve this situation remains to be seen. In any case, the market for national and European rail passenger services is gradually opening up, and competition authorities are moving in the same direction.
If you need more information or further guidance on this topic, please contact Janneke Kohlen or Quirijn Mohr.