100% market share, but no position of dominance. This is the instinctively contradictory opinion with which the CBb (The Dutch Trade and Industry Appeals Tribunal) overruled the €41 million fine imposed by the ACM (The Netherlands Authority for Consumers and Markets) on NS (Dutch Railways) on 1 June 2021. According to the CBb, there was sufficient competition at the time the Dutch State awarded the concession for the main rail network to NS.
Tess Heystee, Adriaan Craita and Martijn van de Hel wrote an article (in Dutch) about this ruling for the journal Mededingingsrecht in de Praktijk (Competition Law in Practice). They conclude that the CBb's finding is incorrect and that the ACM was right to conclude that there was insufficient competition at the time the concession was granted to NS. This judgment therefore reinforces the legal necessity of a public procurement procedure in which all potential competitors can participate.
Read the article on this topic here.