Transport Act 2000

Section 231.

SCHEDULE 24 Review of access charges by Regulator

The Schedule to be inserted after Schedule 4 to the [1993 c. 43.] Railways Act 1993 is as follows—

“SCHEDULE 4A Review of access charges by Regulator

Introductory

1 (1) For the purposes of this Schedule an access charges review is a review by the Regulator of the terms of an access agreement, or of the terms of an access agreement and the conditions of any linked licence, as to—

(a) the amounts payable under the access agreement by one of the parties to the other; and

(b) the times at which, and manner in which, those amounts are payable.

(2) In this Schedule “linked licence”, in relation to an access agreement, means a licence of which the holder is—

(a) the facility owner, or installation owner, who is a party to the access agreement; or

(b) any other person who has an estate or interest in, or right over, the railway facility or network installation to which the access agreement relates.

Main provisions

2 (1) The procedure for the implementation of an access charges review shall be as provided for by paragraphs 4 to 16 of this Schedule.

(2) And any procedure relating to the implementation of an access charges review for which the access agreement or any linked licence makes provision shall not apply.

3 An access charges review may include a consideration of—

(a) the time at which the next access charges review in relation to the access agreement may be undertaken; and

(b) circumstances in which an access charges review in relation to the access agreement may be undertaken before that time.

Review notice

4 (1) The implementation of an access charges review shall be initiated by the Regulator giving notice (a “review notice”)—

(a) stating his conclusions on the access charges review and the reasons why he reached those conclusions;

(b) specifying the relevant changes which he proposes to make for or in connection with giving effect to those conclusions;

(c) stating, in relation to each of the proposed relevant changes, the date on which he proposes that it should come into operation; and

(d) specifying the period (not being less than six weeks from the date of publication of the notice) within which objections with respect to any of the proposed relevant changes, or the date on which it is proposed that it should come into operation, may be made by a person within sub-paragraph (4)(a) or (b) below.

(2) In this Schedule “relevant changes”, in relation to an access agreement, means—

(a) amendments of the access agreement;

(b) modifications of the conditions of any linked licence; or

(c) both such amendments and such modifications;

and references to the making of relevant changes are, in the case of amendments of the access agreement, references to directing the parties to the access agreement to make the amendments to the access agreement.

(3) The review notice shall be given—

(a) by publishing it in such manner as the Regulator considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by the proposed relevant changes; and

(b) by serving a copy on the persons specified in sub-paragraph (4) below.

(4) The persons referred to in sub-paragraph (3)(b) above are—

(a) the facility owner, or installation owner, who is a party to the access agreement;

(b) any other person who has an estate or interest in, or right over, the railway facility or network installation to which the access agreement relates and who the Regulator considers ought to be given a copy; and

(c) the beneficiary.

(5) In this Schedule “the beneficiary”—

(a) in relation to an access contract, has the meaning given by section 17(7) of this Act; and

(b) in relation to an installation access contract, has the meaning given by section 19(10) of this Act.

Notice of agreement

5 (1) If no objections are duly made by a person within paragraph 4(4)(a) or (b) above (or any that are so made are withdrawn), the Regulator shall give notice (a “notice of agreement”) stating that fact.

(2) The notice of agreement shall be given—

(a) by publishing it in such manner as the Regulator considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by the proposed relevant changes; and

(b) by serving a copy on the beneficiary.

Termination notice

6 (1) After a copy of a notice of agreement is served on the beneficiary, he may give notice (a “termination notice”) terminating the access agreement.

(2) The termination notice shall specify the date on which the access agreement is to terminate.

(3) The termination notice shall be given by serving a copy on—

(a) the facility owner or installation owner;

(b) any other person who has an estate or interest in, or right over, the railway facility or network installation and who received a copy of the review notice; and

(c) the Regulator.

(4) The date specified by the termination notice as that on which the access agreement is to terminate shall be neither—

(a) less than six months, nor

(b) more than one year,

after the copy of the termination notice is served on the facility owner or installation owner.

(5) The termination notice may not be given after the end of the period of 28 days beginning with the day on which the copy of the notice of agreement is served on the beneficiary.

Review implementation notice

7 (1) After a copy of a notice of agreement is served on the beneficiary and the time within which a termination notice may be given by him has expired—

(a) if he has not given a termination notice (or has withdrawn any notice which he has given), the Regulator shall (unless he acts under paragraph 8(2) below) give a review implementation notice; or

(b) if he has given (and not withdrawn) a termination notice, the Regulator may give such a notice.

(2) A review implementation notice is a notice stating that the Regulator’s conclusions on the access charges review are to be implemented as proposed in the review notice.

(3) The review implementation notice shall—

(a) specify the relevant changes which the Regulator is making; and

(b) state, in relation to each of the relevant changes, the date on which it comes into operation.

(4) The review implementation notice shall be given—

(a) by publishing it in such manner as the Regulator considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by the relevant changes; and

(b) by serving a copy on the persons on whom a copy of the review notice was served, the Authority and the Health and Safety Executive.

New review notice or Competition Commission reference

8 (1) This paragraph applies if—

(a) objections are duly made by a person within paragraph 4(4)(a) or (b) above (and not withdrawn); or

(b) although no objections are duly made by a person within paragraph 4(4)(a) or (b) above (or any that are so made are withdrawn), relevant objections are duly made (and not withdrawn) in relation to a similar review notice relating to another access agreement.

(2) The Regulator may—

(a) give a new review notice under paragraph 4 above; or

(b) make a reference to the Competition Commission under paragraph 9 below.

(3) For the purposes of sub-paragraph (1) above—

(a) “relevant objections”, in relation to another access agreement, means objections by a person who is within paragraph 4(4)(a) or (b) above in relation to that other access agreement; and

(b) one review notice is similar to another if they make provision which, in the opinion of the Regulator, is to broadly the same effect.

(4) Before acting under sub-paragraph (1) above, the Regulator shall consider the objections referred to in that sub-paragraph.

(5) If the Regulator gives a new review notice under paragraph 4 above by virtue of sub-paragraph (2)(a) above, the references in that paragraph and paragraph 7(2) above to his conclusions on the access charges review shall be read in relation to the new notice as references to those conclusions as modified since the previous review notice (in particular as the result of any objections or representations made in relation to it).

Reference to Competition Commission

9 (1) A reference to the Competition Commission under this paragraph shall be so framed as to require them to investigate and report on the questions specified in sub-paragraph (2) below.

(2) Those questions are—

(a) whether the matters considered on the access charges review which are specified in the reference operate, or may be expected to operate, against the public interest; and

(b) if so, whether the effects adverse to the public interest which those matters have or may be expected to have could be remedied or prevented by the making of relevant changes.

(3) The Regulator may, at any time, by notice given to the Competition Commission vary a reference under this paragraph—

(a) by adding to the matters specified in the reference; or

(b) by excluding from the reference some or all of the matters so specified.

(4) On receipt of such a notice the Competition Commission shall give effect to the variation.

(5) The Regulator may specify in a reference under this paragraph, or a variation of such a reference, for the purpose of assisting the Competition Commission in carrying out the investigation on the reference—

(a) any effects adverse to the public interest which, in his opinion, the matters specified in the reference or variation have or may be expected to have; and

(b) any relevant changes by which, in his opinion, those effects could be remedied or prevented.

(6) As soon as practicable after making a reference under this paragraph, or a variation of such a reference, the Regulator—

(a) shall serve a copy of the reference or variation on the persons on whom a copy of the review notice was served; and

(b) shall publish particulars of the reference or variation in such manner as he considers appropriate for the purpose of bringing the reference or variation to the attention of persons likely to be affected by it.

(7) For the purpose of assisting the Competition Commission in carrying out an investigation on a reference under this paragraph, the Regulator shall give to the Competition Commission any information in his possession which relates to matters falling within the scope of the investigation and—

(a) is requested by the Competition Commission for that purpose; or

(b) is information which, in his opinion, it would be appropriate for that purpose to give to the Competition Commission without any such request;

and any other assistance which the Competition Commission may require, and which it is within his power to give, in relation to any such matters.

(8) For the purpose of carrying out such an investigation, the Competition Commission shall take account of any information given to them for that purpose under sub-paragraph (7) above.

(9) In determining for the purposes of this paragraph whether any particular matter operates, or may be expected to operate, against the public interest, the Competition Commission shall have regard to the matters as respects which duties are imposed on the Regulator by section 4 of this Act.

10 (1) The provisions mentioned in sub-paragraph (2) below are to apply in relation to references under paragraph 9 above as if—

(a) the functions of the Competition Commission in relation to those references were functions under the 1973 Act;

(b) the expression “merger reference” included a reference under that paragraph; and

(c) in section 70 of the 1973 Act references to the Secretary of State were references to the Regulator and the reference to three months were a reference to six months.

(2) The provisions are—

(a) sections 70 (time limit for report on merger), 85 (attendance of witnesses and production of documents) and 93B (false or misleading information) of the 1973 Act;

(b) Part II of Schedule 7 to the [1998 c. 41.] Competition Act 1998 (performance of the Competition Commission’s general functions); and

(c) section 24 of the 1980 Act (modification of provisions about performance of such functions).

Report on reference

11 (1) In making a report on a reference under paragraph 9 above, the Competition Commission shall include in the report—

(a) definite conclusions on the questions comprised in the reference; and

(b) such an account of their reasons for those conclusions as in their opinion is expedient for facilitating a proper understanding of those questions and of their conclusions.

(2) Where they conclude that any of the matters specified in the reference operate, or may be expected to operate, against the public interest, they shall specify in the report the effects adverse to the public interest which those matters have or may be expected to have.

(3) Where they conclude that any adverse effects so specified could be remedied or prevented by the making of relevant changes, they shall in the report—

(a) specify the relevant changes by which those effects could be remedied or prevented; and

(b) state, in relation to each of the relevant changes, the date on which it should come into operation.

(4) A date stated in the report as that on which a relevant change should come into operation may be a date before the report is made, provided that it is not before the earliest date specified in the review notice for the coming into operation of a relevant change proposed in it.

(5) Section 82 of the 1973 Act (general provisions as to reports) shall apply in relation to reports of the Competition Commission on references under paragraph 9 above as it applies to reports of the Competition Commission under that Act.

(6) A report of the Competition Commission on a reference under paragraph 9 above shall be made to the Regulator.

(7) The Regulator shall, on receiving such a report, send a copy of it to the Secretary of State and the Authority.

(8) Not less than 14 days after that copy is received by the Secretary of State, the Regulator shall send a copy to each of the persons on whom a copy of the review notice was served.

(9) Not less than 24 hours after complying with sub-paragraph (8) above, the Regulator shall publish the report in such manner as he considers appropriate for bringing the report to the attention of persons likely to be affected by it.

(10) If it appears to the Secretary of State that the publication of any matter in the report would be against the public interest or the commercial interests of any person, he may, before the end of the period of 14 days after he receives his copy of the report, direct the Regulator to exclude that matter from—

(a) every copy of the report sent under sub-paragraph (8) above, and

(b) the version of the report published under sub-paragraph (9) above.

Changes following report

12 (1) Where a report of the Competition Commission on a reference under paragraph 9 above—

(a) includes conclusions to the effect that any of the matters specified in the reference operate, or may be expected to operate, against the public interest,

(b) specifies effects adverse to the public interest which those matters have or may be expected to have,

(c) includes conclusions to the effect that those effects could be remedied or prevented by the making of relevant changes, and

(d) specifies relevant changes by which those effects could be remedied or prevented,

the Regulator shall, subject to the following provisions of this paragraph and paragraph 13 below, make such relevant changes as appear to him requisite for the purpose of remedying or preventing the adverse effects specified in the report.

(2) Before making relevant changes under this paragraph, the Regulator shall have regard to the relevant changes specified in the report.

(3) Before making relevant changes under this paragraph, the Regulator shall give notice—

(a) stating that he proposes to make the relevant changes and setting out their effect,

(b) stating the reasons why he proposes to make the relevant changes,

(c) stating, in relation to each of the proposed relevant changes, the date on which he proposes that it should come into operation, and

(d) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed relevant changes may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4) A notice under sub-paragraph (3) above shall be given—

(a) by publishing the notice in such manner as the Regulator considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the relevant changes; and

(b) by serving a copy of the notice on the persons on whom a copy of the review notice was served.

(5) Where (after considering any representations or objections which are duly made and not withdrawn) the Regulator proposes to make relevant changes under this paragraph, he shall give notice to the Competition Commission—

(a) setting out the relevant changes he proposes to make;

(b) stating the reasons why he proposes to make the relevant changes; and

(c) stating, in relation to each of the proposed relevant changes, the date on which he proposes that it should come into operation.

(6) The Regulator shall include with the notice under sub-paragraph (5) above a copy of any representations and objections which have been considered.

(7) A date stated in a notice under sub-paragraph (3) or (5) above as that on which a relevant change should come into operation may be a date before the notice is given, provided that it is not before the earliest date specified in the review notice for the coming into operation of a relevant change proposed in it.

(8) If the period within which a direction may be given by the Competition Commission under paragraph 13 below expires without such a direction being given, the Regulator shall make the relevant changes set out in the notice under sub-paragraph (5) above.

(9) If a direction is given by the Competition Commission under paragraph 13(1)(b) below, the Regulator shall make such of those relevant changes as are not specified in the direction.

(10) As soon as practicable after making relevant changes under this paragraph, the Regulator shall send a copy of the relevant changes to the Authority and the Health and Safety Executive.

Competition Commission’s power to veto changes

13 (1) The Competition Commission may, within the period of four weeks beginning with the day on which they are given notice under paragraph 12(5) above, give a direction to the Regulator—

(a) not to make the relevant changes set out in the notice; or

(b) not to make such of those relevant changes as are specified in the direction.

(2) The Secretary of State may, if an application is made to him by the Competition Commission within that period of four weeks, extend the period within which a direction may be given under this paragraph to one of six weeks beginning with the day on which the Competition Commission are given notice under paragraph 12(5) above.

(3) The Competition Commission may give a direction under this paragraph only if the relevant changes to which it relates do not appear to them requisite for the purpose of remedying or preventing the adverse effects specified in their report on the reference under paragraph 9 above.

(4) If the Competition Commission give a direction under this paragraph, they shall give notice—

(a) setting out the relevant changes contained in the notice given under paragraph 12(5) above;

(b) setting out the direction; and

(c) stating the reasons why they are giving the direction.

(5) A notice under sub-paragraph (4) above shall be given—

(a) by publishing the notice in such manner as the Competition Commission consider appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the direction; and

(b) by serving a copy of the notice on the persons on whom a copy of the review notice was served.

Making of changes by Competition Commission

14 (1) If the Competition Commission give a direction under paragraph 13 above, they shall themselves make such relevant changes as appear to them requisite for the purpose of remedying or preventing—

(a) the adverse effects specified in their report on the reference under paragraph 9 above; or

(b) such of those adverse effects as would not be remedied or prevented by the relevant changes made by the Regulator under paragraph 12(9) above.

(2) In exercising the function conferred by sub-paragraph (1) above, the Competition Commission shall have regard to the matters as respects which duties are imposed on the Regulator by section 4 of this Act.

(3) Before making relevant changes under this paragraph, the Competition Commission shall give notice—

(a) stating that they propose to make the relevant changes and setting out their effect,

(b) stating the reasons why they propose to make the relevant changes,

(c) stating, in relation to each of the proposed relevant changes, the date on which they propose that it should come into operation, and

(d) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4) A date stated in a notice under sub-paragraph (3) above as that on which a relevant change should come into operation may be a date before the notice is given, provided that it is not before the earliest date specified in the review notice for the coming into operation of a relevant change proposed in it.

(5) A notice under sub-paragraph (3) above shall be given—

(a) by publishing the notice in such manner as the Competition Commission consider appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the relevant changes; and

(b) by serving a copy of the notice on the persons on whom a copy of the review notice was served.

(5) As soon as practicable after making any relevant changes under this paragraph, the Competition Commission shall send a copy of those relevant changes to the Regulator, the Authority and the Health and Safety Executive.

Paragraphs 13 and 14: supplementary

15 (1) The provisions mentioned in sub-paragraph (2) below are to apply in relation to the exercise by the Competition Commission of their functions under paragraphs 13 and 14 above as if—

(a) in section 82(1) and (2) of the 1973 Act references to a report of the Competition Commission under that Act were references to a notice under paragraph 13(4) or 14(3) above;

(b) in section 85 of that Act references to an investigation on a reference made to the Competition Commission were references to an investigation by the Competition Commission for the purposes of the exercise of their functions under those paragraphs; and

(c) in section 93B of that Act references to the functions of the Competition Commission under that Act were references to their functions under those paragraphs.

(2) The provisions are—

(a) sections 82(1) and (2) (general provisions as to reports), 85 (attendance of witnesses and production of documents) and 93B (false or misleading information) of the 1973 Act;

(b) Part II of Schedule 7 to the [1998 c. 41.] Competition Act 1998 (performance of the Competition Commission’s general functions); and

(c) section 24 of the 1980 Act (modification of provisions about performance of such functions).

(3) For the purpose of assisting the Competition Commission in exercising their functions under paragraphs 13 and 14 above, the Regulator shall give to the Competition Commission any information in his possession which relates to matters relevant to the exercise of those functions and—

(a) is requested by the Competition Commission for that purpose; or

(b) is information which, in his opinion, it would be appropriate for that purpose to give to the Competition Commission without any such request;

and any other assistance which the Competition Commission may require, and which it is within his power to give, in relation to any such matters.

(4) For the purpose of exercising those functions, the Competition Commission shall take account of any information given to them for that purpose under sub-paragraph (3) above.

Termination notice in response to proposals after reference

16 (1) Where a notice is served on the beneficiary under paragraph 12(3) or 14(3) above, he may give notice (a “post-reference termination notice”) terminating the access agreement.

(2) The post-reference termination notice shall specify the date on which the access agreement is to terminate.

(3) The post-reference termination notice shall be given by serving a copy on—

(a) the facility owner or installation owner;

(b) any other person who has an estate or interest in, or right over, the railway facility or network installation and who received a copy of the review notice; and

(c) the Regulator.

(4) The date specified by the post-reference termination notice as that on which the access agreement is to terminate shall be neither—

(a) less than six months, nor

(b) more than one year,

after the copy of the post-reference termination notice is served on the facility owner or installation owner.

(5) The post-reference termination notice may not be given after the end of the period of 28 days beginning with the day on which the copy of the notice under paragraph 12(3) or 14(3) above is served on the beneficiary.”