The Dutch rail operator Nederlandse Spoorwegen is standing by its order for 60 double-decker trains manufactured by CAF, despite the Spanish company facing criticism for its involvement in the Jerusalem light rail project. NS maintains that European legislation does not allow it to exclude the supplier solely on moral grounds.
Nederlandse Spoorwegen (NS), the national railway operator of the Netherlands, has no intention of cancelling the contract worth over 600 million EUR signed with the Spanish manufacturer CAF for the delivery of 60 new-generation double-decker trains.
The decision comes against the backdrop of controversy surrounding Construcciones y Auxiliar de Ferrocarriles (CAF)’s involvement in the Jerusalem Light Rail project. The company is contributing to the maintenance and extension of the Red Line and to the construction of the Green Line, which provides links between West Jerusalem and Israeli settlements in the occupied Palestinian territories.
CAF has been included by the Office of the UN High Commissioner for Human Rights (OHCHR) in the database of companies involved in economic activities associated with Israeli settlements. The document is sometimes presented as a ‘blacklist’, but it is not a sanctions list.
Contract for 60 double-decker trains
NS began the procurement process for the new trains in 2020, and the contract was awarded and signed in 2022. The order provides for the delivery of 30 multiple units consisting of four railcars and 30 multiple units consisting of six railcars, with a total capacity of approximately 30,000 seats.
The Dubbeldekker Nieuwe Generatie – New Generation Double-Deck Trains (DDNG) – are being developed based on a double-deck version of the CAF Civity Duo platform.
The trainsets will feature single-deck end railcars to allow step-free access, including for wheelchair users, and double-deck intermediate railcars designed to increase capacity.
Production of the first trains has begun at the CAF factory in Beasain, Spain, and they are scheduled to enter commercial service in 2029.
The contract also includes options for additional orders, which could increase the fleet’s total capacity to 80,000 seats. NS may also request versions equipped for international service in Belgium and Germany.
NS: There is no legal basis for excluding CAF
The Dutch operator maintains that it has a good working relationship with CAF and that there is currently no legal basis for terminating the contract or excluding the company from future procedures solely on moral grounds.
“At present, it is not possible to exclude companies on moral grounds. A party may only be excluded if there is a legal basis or obligation to do so, and these do not currently exist,” NS stated.
The company, which is wholly owned by the Dutch state, stated that it had held discussions with CAF representatives, without, however, disclosing the content of these discussions.
The operator’s position is also called into question in light of its own Code of Conduct for Suppliers. The document calls for respect for human rights at every stage of the supply chain and stipulates that breaches of the rules may lead to sanctions, legal action or even the termination of the partnership.
Experts dispute NS’s interpretation
Elisabetta Manunza, a lecturer in European and international public procurement law at Utrecht University, believes that the interpretation offered by the rail operator is incorrect.
According to her, a company’s activities in Israeli settlements could be classified as serious professional misconduct, one of the grounds on which public procurement legislation permits the exclusion of a tenderer.
“If a company such as CAF acts contrary to a UN resolution that is also binding on the Netherlands, then NS may exclude a tenderer such as CAF from a procurement procedure, regarding its activities in the illegal settlements as serious professional misconduct,” explained Manunza.
She emphasised, however, that such a decision could be challenged in court and that any exclusion policy must be applied consistently in cases of comparable human rights violations in other countries.
Harry Hummels, a professor of ethics at Maastricht University, acknowledges that NS cannot easily renege on a contract signed several years ago and involving significant expenditure. He does, however, criticise the state-owned company’s lack of transparency.
“One would expect NS to carefully weigh up all the interests involved and, as a state-owned company, to be as open as possible. It is precisely here, in my view, that NS has erred most and continues to do so,” said the professor.
CAF rejects the UN’s conclusions
CAF did not respond to questions from the Dutch press regarding NS’s decision, but had previously published a statement following its inclusion in the UN database.
The Spanish manufacturer states that it operates in accordance with legislation and ethical standards and maintains that the UN’s assessment does not reflect reality.
“CAF’s role in the Jerusalem Light Rail project is strictly technical and neutral,” the company said, adding that the transport services can be used by people from all communities.
As part of the project, CAF is supplying trams, modernising the rolling stock and delivering signalling and power supply systems. The company is also involved in the operation and maintenance of the lines, in partnership with the Israeli contractor Shapir.
Controversies surrounding CAF’s activities in Jerusalem have also sparked debate within Amsterdam’s local government, where several parties have opposed the possibility of the city’s future trams being ordered from the Spanish manufacturer. The company already has a presence in the Netherlands through trains, trams and multiple units of metro trainsets supplied to several operators.
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