On 29 June 2017, the Dutch Competition Authority ("DCA") published the non-confidential version of a decision of 22 May 2017 imposing a €40.95 million fine on Dutch rail operator Nederlandse Spoorwegen ("NS") for abusing its dominant position in the context of a tender for public transport services in the Dutch Province of Limburg ("Limburg"). The fine is the highest individual fine ever imposed by the DCA.
The case concerns public tender proceedings, launched by Limburg in 2014, for the grant of a concession for train and bus transport in the region. NS participated in this tender through its subsidiary Abellio alongside rival transport companies Veolia and Arriva. While Abellio was initially awarded the tender, Limburg later granted the concession to Arriva instead, following reports of irregularities during the proceedings.
In its decision, the DCA determined that NS, as the concession holder of the main rail network in the Netherlands between 2015 and 2025, held a dominant position in the market for the exploitation rights of the main rail network. The DCA further found that NS relied on its dominance in this market to engage in abusive conduct in the separate market for the concession to exploit the regional transport network in Limburg.
The DCA identified that NS had abused its dominant position in two respects. First, NS was found to have engaged in predatory pricing by submitting a loss-making bid, which was impossible for its rivals to equal or better. In particular, the DCA found that NS had overestimated its expected return on the Limburg concession and failed to take into account certain known cost risks without substantiating the reasons for doing so.
Second, the DCA found that NS had undertaken certain related actions aimed at diminishing the chances of its competitors obtaining the concession. In particular, the company was found to have deceitfully obtained confidential information about its rival, Veolia, which held the concession for regional rail transport in Limburg at the time of the tender. NS apparently obtained this information from Veolia's former concession manager whom it had hired through a scheme arrangement and provided it to Abellio for the purposes of improving its bid.
Furthermore, the DCA found that NS gave Abellio relevant information concerning the main rail network which was not made available to its rivals. In addition, it was established that NS was legally required to offer its rivals access to certain facilities and services operated by NS's subsidiaries, such as staff rooms and service desks at train stations in Limburg. The DCA found that NS gave incomplete or delayed responses to rivals' requests for information concerning such access, which hampered the preparation of their respective bids.
NS and its sole shareholder, the Dutch Ministry of Finance, announced that it will lodge an administrative appeal against the DCA's decision.
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