Neither liberalisation nor privatisation requires the use of private law instruments such as contracts and standard company types, such as standard-form public limited com-panies. Carefully designed public law instruments such as concessions and statutory companies should generally be preferred.
This was my very understated way of asking why it is necessary to turn infrastructure managers like ProRail in the Netherlands or Network Rail in the UK into private law companies if there is no intention of freely floating their shares. Based on my research into the New Institutional Economics, I could see no way that a company unrestrained by either market or hierarchy would not run amok. Since these INFRACOs clearly do not compete against each other or against potential entrants, they need to be restrained by hierarchy, i.e. by the government. The best way to do that is to create a public law company, where the government can be given whatever control rights it needs to get the job done. The fact that ProRail's Articles of Incorporation give the government some unusual rights as well is not enough. That, in a nutshell, is what I would have said had I been called upon to defend this proposition. But I wasn't.
Now, not even a month later, the Dutch Court of Auditors has published a report that is beyond damning for the Minister for Infrastructure and her ministry. Essentially, she has no institutional capacity and no interest to supervise what ProRail does with its budget of € 2 billion per year; the Ministry has exactly 2,5 fte to look after the spending of all that money. Specifically, the problem is that ProRail seems to decide all on its own - or at least without asking the Minister - whether the entire budget for a given year should be spent or whether it would be better to save some of it for another year, which explains why things like network-wide ERTMS are still a distant dream.
NRC Handelsblad, 3 October 2011, 'Schultz heeft geen grip op ProRail en informeert Kamer onvolledig'
Algemene Rekenkamer: ProRail's use of railway budgets (English summary)