The Channel Tunnel (Safety) (Amendment) Order 2013

EXPLANATORY NOTE

(This note is not part of the Order)

This Order amends the Channel Tunnel (Safety) Order 2007 (“the principal Order”). The principal purpose of these amendments is to give effect to a bi-national regulation (“the new bi-national regulation”) made by the Intergovernmental Commission (IGC). The new bi-national regulation in turn implements, in relation to the Channel Tunnel, some parts of Directive 2008/57/EC, including its amendments to Directive 2004/49EC, and other amendments made to Directive 2004/49/EC by Directives 2008/110/EC and 2009/149/EC. The new bi-national regulation amends an earlier regulation made by the IGC on 24th January 2007 (“the 2007 bi-national regulation”).

The full citation of the above Directives is:

• Directive 2008/57 of the European Parliament and of the Council on the interoperability of the rail system with the Community (OJ No. L 191, 18.7.2008, p. 1);

• Directive 2004/49/EC of the European Parliament and of the Council on safety on the Community’s railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for use of railway infrastructure and safety certification (OJ No. L 164, 30.4.2004, p. 44).

• Directive 2008/110/EC of the European Parliament and of the Council amending Directive 2004/49/EC on safety on the Community’s railways (Railway Safety Directive) (OJ No. L 345, 23.12.2008, p.62).

• Commission Directive 2009/149/EC amending Directive 2004/49/EC of the European Parliament and of the Council as regards Common Safety Indicators and common methods to calculate accident costs (OJ No. L 313, 28.11.2009, p.65)

More specifically, in amending the 2007 bi-national regulation, the new bi-national regulation:

• places restrictions on the scope of the verifications required by the Safety Authority (the IGC) before it issues additional authorisations, where these are required (see article 64 of the amended 2007 bi-national regulation, as set out in the Schedule);

• requires the IGC to deal with applications for safety authorisations for railway undertakings within certain time limits (see articles 5(b) and 5A of the amended 2007 bi-national regulation, as set out in the Schedule);

• provides that railway vehicles already certified as complying fully with the Technical Specifications for Interoperability (TSIs - harmonised technical rules on railways covering, among other things, the construction of railway vehicles) will no longer need further authorisation in order to be used within the Tunnel if and when the Tunnel itself becomes fully compliant with the TSIs, or when the trains run under the conditions specified in any corresponding TSIs (see article 62 of the amended 2007 bi-national regulation, as set out in the Schedule);

• provides for the authorisation of railway vehicles to cover types, as well as individual vehicles (see article 65 of the amended 2007 bi-national regulation, as set out in the Schedule);

• provides that no person may place a railway vehicle in service in the Tunnel unless an entity in charge of maintenance has been assigned to it, with the entity in charge of maintenance, in the case of a freight wagon, having to hold an “ECM certificate” (i.e. a certificate issued in accordance with Commission Regulation (EU) 445/2011 on a system of certification of entities in charge of maintenance for freight wagons and amending Regulation (EC) 653/2007 (OJ No. L122, 11.05.2011, p22) or a certificate or self-declaration recognised as equivalent to such a certificate); the entity in charge of maintenance must also set up a maintenance system to ensure the railway vehicle is in a safe state of running (see articles 55A and 55B of the amended 2007 bi-national regulation, as set out in the Schedule);

• revises the Common Safety Indicators (a harmonised way of measuring the safety performance of European railways) (see definition of common safety indicators in article 1 of the amended 2007 bi-national regulation, as set out in the Schedule);

Under article 1(2) of this Order, this Order will come into force on the date on which the new bi-national regulation comes into force which (under article 2 of that regulation) will be when both the UK and French governments have completed the internal processes necessary to give the new bi-national regulation the force of law in their respective legal systems, and notified each other that they have done so. This means that the content of the Schedule will come into force and be given the force of law pursuant to the process required by Article 2 of the new bi-national regulation. Under article 1(3) of this Order, the Secretary of State must give notice, in the London. Edinburgh and Belfast Gazettes, of the date when the new bi-national regulation and so also this Order enters into force.

Article 1(4) provides that this Order does not extend to Northern Ireland, other than where the exceptions provided in article 1(5) apply. These exceptions relate to the repeal of amendments made by the principal Order to the Channel Tunnel (International Arrangements) Order 2005 (S.I 2005/3207) (the “2005 Order”) (see below), which did extend to Northern Ireland. Following this Order, the principal Order will no longer extend to Northern Ireland.

Article2(8) substitutes new text for the Schedule to the principal Order. The substituted text sets out the text of the 2007 bi-national regulation as amended by the new bi-national regulation. Its content will have the force of law by virtue of this and by virtue of article 3 of the principal Order.

Article 2(4) and (5) amends the principal Order by providing for new enforcement mechanisms in relation to certain new provisions now included in the amended 2007 bi-national regulation. These provisions (implementing certain requirements of Directive 2008/110/EC) (a) prohibit the placing of a vehicle in service within the Channel Tunnel fixed link network without an entity in charge of maintenance having been assigned to the vehicle; (b) require that entity to hold an ECM certificate if the assigned vehicle is a freight wagon; and (c) require such entities in charge of maintenance to set up a system of maintenance to ensure the vehicles assigned to them are in safe working order.

Articles 1(3) and 9 of the principal Order related to a provision in an earlier 2005 bi-national regulation relating to economic regulation, which was given effect by the 2005 Order. The 2005 Order, which extends to Northern Ireland, makes provision for the rights of access of railway undertakings to the Tunnel, the allocation of capacity within it, and charging. But the amendments made to it by the principal Order have since been revoked, because the 2005 bi-national regulation relating to economic regulation has itself since been replaced by a new one, made in 2009, which includes an equivalent provision. Article 2(2), (3) and (6) revokes Articles 1(3) and 9 of the principal Order.

Article 2(7) inserts a new provision in the principal Order which requires the Secretary of State to review the principal Order and to publish a report of that review within five years after the coming into force of this Order and then within every five years after that.

An impact assessment of the effect that this instrument will have on the costs of business and the voluntary sectors has been produced and is available from the Rail International and Safety Policy, Division, Department for Transport, Great Minster House, 33 Horseferry Road, London SW1P 4DR. It is published with the Explanatory Memorandum alongside the instrument on the Legislation website (www.legislation.gov.uk). A transposition note is also annexed to that Memorandum.