Part I Preliminary
2 No government funds or guarantees for the tunnel system.
1
Subject to subsection (2) below, no Minister of the Crown or Government department shall provide funds to the Concessionaires, or guarantees of a financial or commercial nature relating to the performance of any obligations of the Concessionaires, in respect of the construction or operation of the tunnel system or any part of it.
2
Subject to subsection (3) below, subsection (1) above shall not preclude the provision of funds to the Concessionaires, or the provision of guarantees relating to the performance of any of their obligations, if they are provided under any enactment conferring a power or imposing a duty on any such Minister or department to provide such funds or guarantees—
a
to or for the benefit of persons of any class or description which includes the Concessionaires; or
b
in respect of expenditure of any class or description which includes expenditure on the construction or operation of the tunnel system or any part of it.
3
Subsection (1) above shall preclude the making by the Secretary of State under section 56(1) of the M1Transport Act 1968 (grants towards capital expenditure on public passenger transport facilities) of grants towards expenditure incurred or to be incurred by the Concessionaires for the purpose of the provision, improvement or development of the tunnel system or any part of it.
4
Where anything in contravention of subsection (1) above is done or proposed by or on behalf of a Minister of the Crown or Government department, any person who has suffered, or may suffer, loss in consequence of it may bring an action against the Minister or department concerned.
5
In such an action the court may—
a
grant a declaration that the thing done or proposed is or would be in contravention of that subsection; or
b
subject to subsection (6) below, make an award of damages.
6
The court may only make an award of damages if the person bringing the action has suffered loss in consequence of something done and if, at the time when it was done, the Minister or Government department concerned knew—
a
that it was in contravention of subsection (1) above; and
b
that it would cause loss of the description suffered either to the person bringing the action or to persons of a class to which he belongs.
7
The M2Crown Proceedings Act 1947 shall have effect as if anything done in contravention of subsection (1) above were a tort committed by the Minister, or by the Minister in charge of the department, by whom or on whose behalf the thing was done.
8
Where in any proceedings a question arises as to the construction of subsection (1) above, the court shall have regard in determining the question to any construction of the corresponding provision in Article 1(1) of the Treaty for the time being adopted by the arbitral tribunal which appears to the court to be relevant.
9
The reference in subsection (8) above to the corresponding provision in Article 1(1) of the Treaty is a reference to the provision of Article 1(1) which requires the Channel fixed link referred to in that Article to be financed without recourse to government funds or to government guarantees of a financial or commercial nature.
10
In this Act “the arbitral tribunal” means the arbitral tribunal constituted under the Treaty.