The Railways Infrastructure (Access and Management) (Amendment) Regulations 2015

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Railway Infrastructure (Access and Management) Regulations 2005 (“the 2005 Regulations”). They are consequential on the repeal of the Channel Tunnel (International Arrangements) Order 2005 by the Channel Tunnel (International Arrangements) (Charging Framework and Transfer of Economic Regulation Functions) Order 2015 (“the 2015 Order”). The 2015 Order enters into force at the same time as these Regulations.

Following this repeal, these Regulations implement in respect of the Channel Tunnel Directives 91/440/EEC (OJ No. L 237, 24.8.1991, p. 25) and 2001/14/EC (OJ No. L 75, 15.3.2001, p. 29).

Under regulation 4, which amends regulation 4(7) of the 2005 Regulation, the scope of the 2005 Regulations is extended to the management of the Tunnel system. The scope of regulations 5 (access rights), 9(1) and (2) (separation between infrastructure management and transport operations) and 29A (regulatory decisions concerning international passenger services) of the 2005 Regulations is also extended to the business of the Concessionaires of the Tunnel in respect of any shuttle service for road vehicles.

Regulation 5(1) to (4) amend regulations 12(3) to (5) of the 2005 Regulations, and insert a new regulation 12(4A). This places on the Concessionaires of the Tunnel the responsibility of establishing the specific charging rules for the Tunnel and determining the fees to be charged for its use, in compliance with those rules. This establishment and determination must comply with the Channel Tunnel charging framework given effect by the 2015 Order and the principles and exceptions set out in Schedule 3 to the 2005 Regulations. Regulation (5) amends sub-paragraph (2) of that Schedule. Its effect is that, as part of the fees to be charged for the use of the Tunnel, the Concessionaires are authorised to levy mark-ups, under certain conditions, with the approval of the Office of Rail Regulation (ORR).

Regulation 6 amends regulation 16(1) of the 2005 Regulations, and insert a new regulation 16(1A). This exempts the allocation of infrastructure within the Tunnel from being subject to any framework for allocation of infrastructure capacity that may be established by the ORR under regulation 16(1) of the 2005 Regulations.

Regulation 7 amends regulations 28(5) and 39 of the 2005 Regulations, and section 145(2) of the Railways Act 1993. It makes provisions concerning international cooperation between the ORR and other economic regulatory bodies in the European Union. Since the 2015 Order contains some specific provisions regarding cooperation and coordination between the domestic regulators of the United Kingdom and France with regards to the Tunnel, regulation 7(1), which amends regulation 28(5) of the 2005 Regulations, provides that that provision applies without prejudice to the former. Regulation 7(2) amends regulation 39 of the 2005 Regulations to protect the confidentiality of third party information obtained as part of that cooperation. Nonetheless, that confidentiality (or the confidentiality of any third party information obtained under these Regulations or the Railways Act 1993) does not prevent the information from being used for the purpose of facilitating the carrying out by the Office of Rail Regulation of any of its functions, in respect of the Tunnel, under the relevant EU legislation. That legislation consists of Directives 91/440/EEC and 2001/14/EC, which are already listed in the Act as exceptions to the duty of confidentiality. Regulation 7(3) also inserts, in the Act, a reference to Directive 2012/34/EU (OJ L 343, 14.12.2012, p. 32). That Directive will soon replace those of the two other Directives. While these Regulations and the 2015 Order make provisions that transpose Directives 91/440 and 2001/14, those provisions will also be able to serve as the transposition of Directive 2012/34/EU, which is referred to in the international instrument implemented by the 2015 Order. The provisions of that Directive on international cooperation are more specific than those made by the earlier Directives.

Regulation 8 deals with enforcement.

By virtue of regulation 28(3) of the 2005 Regulation, the ORR must intervene if negotiations between an applicant and the infrastructure manager about the level of infrastructure charges are likely to contravene the requirements of those Regulations. Regulation 8(1) introduces new regulations 28(3A) and (3B). Under these, the ORR has powers to issue binding directions as part of any such intervention, subject to the general right to apply for judicial review of the decisions of public authorities.

Regulation 8(2) amends regulation 29(2)(d) of the 2005 Regulations. This gives an applicant a right of appeal to the ORR against decisions adopted by various industry stakeholders concerning the Channel Tunnel charging framework.

Regulation 8(3) gives the ORR the power to request information in connection with its functions under regulations 28(2) and (3) of the 2005 Regulations.

Regulation 8(4) and (5) amend regulation 36(1)(c) of the 2005 Regulations, and insert a new regulation 36(1)(d). Under regulation 36(1), a number of duties are owned to any person who may be affected by that breach, and are enforceable by civil proceedings, including by the ORR. Following the amendments, these duties include the duty of infrastructure managers to determine the fees to be charged for the use of the infrastructure in accordance with a number of legal requirements, and the duty to comply with a direction issued by the ORR as part of any intervention in a negotiation between an applicant and an infrastructure manager, as mentioned above.

An impact assessment has not been produced in respect of these Regulations, since they have no impact of the costs of business or the voluntary sector. An Explanatory Memorandum, with a transposition note annexed to it, is published alongside these Regulations at www.legislation.gov.uk.