The Railways Infrastructure (Access and Management) (Amendment) Regulations 2009 (revoked)

Citation, commencement and extent E+W+S

1.—(1) These Regulations may be cited as the Railways Infrastructure (Access and Management) (Amendment) Regulations 2009 and come into force –

(a) for the purposes of regulation 2(2)(d) and (e), (6), (7)(a) to (e), (9), (10), (14) and (15) and regulation 3 on 3^rd June 2009;

(b) for the purposes of regulation 2(5), (7)(f), and (8) on 1^st October 2009; and

(c) for all other purposes on 1^st January 2010.

(2) These Regulations do not extend to Northern Ireland.

Amendment of the Railways Infrastructure (Access and Management) Regulations 2005 E+W+S

2.—(1) The Railways Infrastructure (Access and Management) Regulations 2005 M1 are amended as follows.

(2) In regulation 3(1) (interpretation)—

(a) for the definition of “access and transit rights” substitute—

“access rights” means rights of access to railway infrastructure for the purpose of operating a service for the transport of goods or passengers;”;

(b) in the definition of “applicant”—

(i) at the end of sub-paragraph (a), insert “ or ”;

(ii) omit sub-paragraph (b);

(iii) omit the words “, such as public authorities under Regulation (EEC) No 1191/69 and shippers, freight forwarders, and combined transport operators” from sub-paragraph (c);

(c) after the definition of “charging system” insert—

““competent authority” has the same meaning as in Article 2 of Regulation (EC) No 1370/2007, as amended from time to time;”;

(d) in the definition of “the Council Directives”—

(i) for the words after “February 2001” in sub-paragraph (a) to the end of that sub-paragraph, substitute—

“, Directive 2004/51/EC M2 dated 29th April 2004 and Directive 2007/58/EC M3 dated 23rd October 2007, all of the European Parliament and of the Council; and”;

(ii) for the words after “29^th April 2004” in sub-paragraph (b) to the end of that sub-paragraph, substitute—

“and Directive 2007/58/EC dated 23rd October 2007, all of the European Parliament and of the Council;”;

(e) after the definition of “nuclear site” insert—

““public passenger transport” has the same meaning as in Article 2 of Regulation (EC) No 1370/2007 M4 , as amended from time to time;

“public service contract” has the same meaning as in Article 2 of Regulation (EC) No 1370/2007, as amended from time to time;

“public service operator” has the same meaning as in Article 2 of Regulation (EC) No 1370/2007, as amended from time to time;”;

(f) after the definition of “railway infrastructure” insert—

• “Regulation (EC) No 1370/2007” means Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23rd October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) No. 1191/69 and 1107/70;

• “relevant public service contract” means a public service contract under which a relevant public service operator provides public passenger transport, the route or routes of which overlap with the route of the international passenger service notified to the Office of Rail Regulation under regulation 16(4A);

• “relevant public service operator” means a public service operator providing public passenger transport, the route or routes of which overlap with the route of the international passenger service notified to the Office of Rail Regulation under regulation 16(4A);”;

(g) omit the definition of “transit rights”.

(3) For regulation 5 (access and transit rights) substitute—

“Access rights

5.— (1) A railway undertaking is entitled on equitable conditions to such access as may be necessary for the purpose of the operation of any type of rail freight service or international passenger service.

(2) Subject to paragraph (3), the access rights of a railway undertaking for the purpose of the operation of an international passenger service include the right to pick up passengers at any station located on the international route and set them down at another, including stations located in the same Member State.

(3) The rights conferred by paragraphs (1) and (2) are exercisable subject to the provisions of regulation 29A.

(4) It is the duty of the infrastructure manager to ensure that the entitlements conferred by this regulation are honoured.

(5) Without prejudice to the generality of regulation 29, if a railway undertaking is denied the entitlements conferred on it by this regulation other than pursuant to a decision of the Office of Rail Regulation under regulation 29A, that railway undertaking has a right of appeal to the Office of Rail Regulation in accordance with regulation 29.”.

(4) In regulation 6 (access to terminals and ports)—

(a) in paragraphs (1) and (4) for “an international grouping or” substitute “ a ”;

(b) in paragraph (2) omit “international groupings and”; and

(c) in paragraph (4) omit “international grouping or” in the second place that it appears.

(5) For regulation 13(3) (infrastructure costs) substitute–

“(3) The Office of Rail Regulation must-

(a) in the case of a rail link facility, exercise its rights and responsibilities under or by virtue of the relevant development agreement; and

(b) in any other case, exercise its functions under the Act

in order to ensure that the requirements set out in paragraph (2) are complied with.”.

(6) In regulation 16 (capacity allocation), insert after paragraph (4)—

“(4A) An applicant applying for infrastructure capacity with a view to operating an international passenger service must give notice of that fact to the infrastructure manager concerned and to the Office of Rail Regulation and provide them with such information as the Office of Rail Regulation may reasonably require or prescribe.

(4B) When the Office of Rail Regulation receives a notice from an applicant under paragraph (4A), it must provide any competent authority that has awarded a rail passenger service defined in a relevant public service contract, any railway undertaking which is a relevant public service operator and any other competent authority with a right to limit access along the route of the international passenger service notified under paragraph (4A) with a copy of the information in relation to that service provided to it in accordance with that paragraph.”.

(7) In regulation 18 (framework agreements)—

(a) in paragraph (3) insert “ and without prejudice to paragraph (9B) ” between “applicant” and “, a framework”;

(b) in paragraph (7)—

(i) for “and (9)” substitute “ , (9) and (9A) ”; and

(ii) after “years” at the end of the paragraph insert “ , renewable for periods equal to its original duration; provided that the infrastructure manager may agree to a shorter or longer period in specific cases. ”;

(c) in paragraph (8)—

(i) before “A framework agreement” insert “ Subject to paragraphs 9 and 9(A), ”; and

(ii) for “of between five and ten years” substitute “ longer than five years ”;

(d) for paragraph (9) substitute—

“(9) Subject to paragraph (9A), a framework agreement in relation to infrastructure which has been designated in accordance with regulation 22(2) (“a designated infrastructure framework agreement”) may be for a period of up to fifteen years where there is a substantial and long-term investment justified by the applicant”;

(e) after paragraph (9) insert—

“(9A) A designated infrastructure framework agreement may be for a period in excess of fifteen years in exceptional circumstances, in particular where there is large-scale and long-term investment and particularly where such investment is covered by contractual commitments including a multi-annual amortisation plan.

(9B) An application for a designated infrastructure framework agreement to which paragraph (9) or (9A) applies may specify the capacity characteristics, including the frequency, volume and quality of the train paths, to be provided to the applicant for the duration of the framework agreement in sufficient detail to ensure that these are clearly established.

(9C) The infrastructure manager may reduce capacity reserved under the terms of a designated infrastructure framework agreement to which paragraph (9) or (9A) applies where, over a continuous period of at least one month, that capacity has been used less than the threshold quota stipulated in the network statement.”; and

(f) for paragraph (12) substitute—

“(12) Before entering into a framework agreement in relation to a rail link facility, and before amending any such agreement, the infrastructure manager and the applicant must obtain the approval of the Office of Rail Regulation.

(13) Nothing in these Regulations has the effect of applying any of sections 17 to 22C of the Act to a rail link facility.”.

(8) In regulation 28 (regulatory body), omit—

(a) in paragraph (2) “or, in the case of a rail link facility, the Secretary of State,”;

(b) in paragraph (3) “Subject to paragraph (4),”; and

(c) paragraph (4).

(9) After regulation 29 (appeals to the regulatory body), insert—

“Regulatory decisions concerning international passenger services

29A.— (1) The Office of Rail Regulation must at the request of a relevant competent authorities or an interested railway undertaking or other party, or may on its own initiative, determine whether a service for the transport of passengers by train is an international passenger service.

(2) The Office of Rail Regulation-

(a) must at the request of a relevant party, or may on its own initiative, determine whether the exercise of the right conferred under regulation 5 by an applicant for infrastructure capacity notified under regulation 16(4A) would compromise the economic equilibrium of a relevant public service contract; and

(b) must make the determination on the basis of an objective economic analysis and in accordance with pre-determined criteria published by it.

(3) For the purposes of paragraph (2) relevant parties are the competent authority that awarded a relevant public service contract, any other competent authority with a right to limit access along the route of the international passenger service notified under regulation 16(4A), any railway undertaking which is a relevant public service operator and the infrastructure manager concerned.

(4) Subject to paragraph (7), the Office of Rail Regulation must, within two months of the date of receipt of all relevant information (including information provided pursuant to regulation 31) and having consulted the relevant parties, as appropriate —

(a) make a decision on a request made or following a decision to consider on its own initiative under paragraph (2);

(b) where appropriate, issue a direction to the infrastructure manager, allocation body, charging body, service provider or, as the case may be, railway undertaking, limiting the access rights conferred in a framework agreement if the exercise of the rights would compromise the economic equilibrium of a relevant public service contract;

(c) provide the relevant parties and any railway undertaking seeking access rights to infrastructure for the purpose of operating an international passenger service with the grounds for its decision; and

(d) specify a reasonable time period within which, and the conditions under which, any competent authority that has awarded a relevant public service contract, any railway undertaking which is a relevant public service operator, the infrastructure manager concerned and any railway undertaking seeking access rights to infrastructure for the purpose of operating an international passenger service may request a reconsideration of the decision or direction or both.

(5) Where the Office of Rail Regulation has received a properly made request for a reconsideration of its decision or direction in accordance with paragraph (4)(d), any direction it has made under paragraph (4)(b) will not take effect pending reconsideration.

(6) Subject to paragraph (7), where the Office of Rail Regulation has received a properly made request for a reconsideration of its decision or direction under paragraph (2) in accordance with paragraph (4)(d), it must, within two months of the date of receipt of all relevant information (including information provided pursuant to regulation 31) —

(a) make a reconsidered decision on a request; and

(b) where appropriate, issue or reissue a direction or directions to the infrastructure manager, allocation body, charging body, service provider or, as the case may be, railway undertaking.

(7) Where a decision or direction under paragraphs (4) or (6) would affect a rail link facility or, as the case may be, the operation of the development agreement, the Office of Rail Regulation must consult and, subject to paragraph (8), take into account any representations made by, the Secretary of State before making or issuing such a decision or direction.

(8) Where paragraph (7) applies and, following consultation, the Secretary of State submits representations, the Office of Rail Regulation must, before making or issuing a decision or direction, or reconsidered decision or direction, consult such interested parties as it considers appropriate on the representations submitted by the Secretary of State.

(9) In making a decision on a request made or following a decision to consider on its own initiative under paragraph (2), or a request for a reconsideration of its decision under paragraph (5), the Office of Rail Regulation must either—

(a) confirm that no modification of the infrastructure manager or allocation body's decision to award access rights is required; or

(b) require modification of that decision in accordance with directions issued by that Office.

(10) Without prejudice to the right of any person to make an application to the court under Part 54 of the Civil Procedure Rules 1998—

(a) a decision by the Office of Rail Regulation on a request made or following a decision to consider on its own initiative under paragraph (2) is binding on all parties affected by that decision; and

(b) it is the duty of any person to whom a direction is given under this regulation to comply with and give effect to that direction.”;

(10) In regulation 31(provision of information to the regulatory body)—

(a) for “29 or 30” substitute “ 13, 29, 29A or 30 ”; and

(b) in sub-paragraph (a)(iii)—

(i) for “and Directive 2004/51/EC dated 29 April 2004, both” substitute—

“,Directive 2004/51/EC dated 29 April 2004 and Directive 2007/58/EC dated 23 October 2007, all”; and

(ii) for “on safety on the Community's railways, both” substitute—

“and Directive 2007/58/EC dated 23 October 2007, all”.

(11) In regulation 33 (statutory authority to run trains), for “transit, or access and transit” substitute “ access ”.

(12) In regulation 34 (application of enactments concerning railways), omit—

(a) between the words “apply to” and “railway” “international groupings and”; and

(b) between the words “access” and “rights” “or transit”.

(13) Regulation 35 (international groupings) is repealed.

(14) In regulation 36 (civil proceedings) -

(a) in paragraph (1)-

(i) after sub-paragraph (d) omit “or”;

(ii) after sub-paragraph (e), insert—

“or;

(f)

paragraph (10) of regulation 29A,”; and

(b) in paragraph (2), omit “international grouping, ”.

(15) In Schedule 3 (access charging)-

(a) for paragraph 3(2)(a) substitute “ (a) the project must increase efficiency or cost-effectiveness; and ”;

(b) in paragraph 6 –

(i) in sub-paragraph (1), insert “ notwithstanding ” between “the Treaty, and” and “paragraph 1(4)”; and

(ii) in sub-paragraph (3), between “services, or” and “encouraging the” insert “ discounts ” .

Marginal Citations

M1 S.I. 2005/3049.

M2 O.J. L164, 30.4.04, p164.

M3 O.J. L315 03.12.07, p44.

M4 O.J. L315, 3.12.07, p1.

Consequential amendments E+W+S

3.  The Schedule (consequential amendments) has effect.

Signed by authority of the Secretary of State for Transport

Andrew Adonis

Minister of State

Department for Transport

30th April 2009