The Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016

Capacity allocation

19.—(1) Subject to paragraph (2), whilst respecting the requirements for management independence stipulated in regulation 8, the Office of Rail and Road or, in the case of a rail link facility, the Secretary of State, may establish a framework for the allocation of infrastructure capacity.

(2) The framework for the allocation of capacity referred to in paragraph (1) must, in the case of railway infrastructure comprised in a freight corridor established under Regulation (EU) No 913/2010(1), be defined by the executive board of that corridor, within the meaning of that Regulation, and, in such a case, paragraph (1) does not apply.

(3) The infrastructure manager must, subject to paragraph (4), be responsible for the establishment of specific capacity allocation rules and for the process of allocating infrastructure capacity in respect of the railway infrastructure for which it has responsibility.

(4) If the infrastructure manager, in its legal form, organisation or decision-making functions, is not independent of any railway undertaking, the infrastructure manager must ensure that the functions referred to in this Part and Schedule 4 are performed by an allocation body that is independent in its legal form, organisation and decision-making from any railway undertaking.

(5) Subject to paragraph (11), any applicant may apply to the infrastructure manager for the allocation of infrastructure capacity.

(6) In order to use such capacity, an applicant which is not a railway undertaking must appoint a railway undertaking to conclude a contract with the infrastructure manager in accordance with paragraph (14); this is without prejudice to the right of the applicant to conclude an agreement with the infrastructure manager under regulation 22(1).

(7) 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 and Road and provide such information as the Office of Rail and Road may reasonably require or prescribe.

(8) When the Office of Rail and Road receives a notice from an applicant under paragraph (7), it must provide—

(a) any competent authority that has awarded a rail passenger service defined in a relevant public service contract;

(b) any railway undertaking which is a relevant public service operator; and

(c) any other competent authority with a right to limit access along the route of the international passenger service notified under paragraph (7),

with a copy of the information in relation to that service provided to it in accordance with that paragraph.

(9) The infrastructure manager must ensure that the allocation process is conducted in accordance with the timetable set out in Schedule 4.

(10) Subject to paragraph (12), an applicant who has been granted capacity by the infrastructure manager, whether that capacity is in the form of—

(a) a framework agreement made in accordance with regulation 21 specifying the characteristics of the infrastructure capacity granted; or

(b) specific infrastructure capacity in the form of a train path,

must not trade that capacity with another applicant or transfer it to another undertaking or service.

(11) Any person who trades in capacity contrary to the provisions of paragraph (10) is not entitled to apply for capacity under paragraph (5) for the period of the working timetable period to which the allocation of capacity transferred related.

(12) The use of capacity by a railway undertaking on behalf of an applicant who is not a railway undertaking, in order to further the business of that applicant, is not a transfer for the purposes of paragraph (10).

(13) The infrastructure manager must not allocate capacity in the form of specific train paths for any period in excess of one working timetable period.

(14) Any railway undertaking engaged in rail transport services must conclude the necessary agreements under public or private law with the infrastructure manager of the railway infrastructure used.

(15) The respective rights and obligations of infrastructure managers and applicants in respect of any allocation of capacity must be laid out in a contract.

(16) The infrastructure manager must—

(a) ensure that infrastructure capacity is allocated on a fair and non-discriminatory basis;

(b) ensure that the agreements referred to in paragraph (14) are non-discriminatory, transparent, and in accordance with the requirements of these Regulations; and

(c) respect the confidentiality of information supplied as part of the capacity allocation process, including the identity of other applicants during disclosure under regulation 23(5), unless the relevant applicant has agreed to disclosure of their identity.

(17) The infrastructure manager may set requirements with regard to applicants to ensure that its legitimate expectations about future revenues and utilisation of the infrastructure capacity are safeguarded.

(18) Requirements under paragraph (17)—

(a) must be appropriate, transparent and non-discriminatory;

(b) must be specified in the network statement; and

(c) may only include the provision of a financial guarantee by an applicant if the level of such guarantee does not exceed an appropriate level which is proportional to the contemplated level of activity of the applicant, and where such guarantee provides assurance of the applicant’s capability to prepare compliant bids for infrastructure capacity.

(19) The infrastructure manager must set any requirements under paragraph (17) in accordance with the criteria contained in Commission Implementing Regulation (EU) 2015/10 of 6th January 2015 on criteria for applicants for rail infrastructure capacity and repealing Implementing Regulation (EU) No 870/2014(2).

(20) In reserving infrastructure capacity for the purposes of scheduled track maintenance, as requested under regulation 22(5), the infrastructure manager must take into account the effect of that reservation on applicants.

(1)

O.J. No. L 276, 20.10.10, p. 22; amended by Regulation (EU) No 1316/2013 of the European Parliament and of the Council of 11th December 2013 establishing the Connecting Europe Facility, amending Regulation (EU) No 913/2010 and repealing Regulations (EC) No 680/2007 and (EC) No 67/2010, O.J. L 348, 20.12.13, p. 129.

(2)

O.J. No. L 3, 7.1.15, p. 34.