33.—(1) The Office of Rail and Road must, at the request of a competent authority or interested railway undertaking, determine whether the principal purpose of a service is to carry passengers between stations located [F1in the United Kingdom and a member State].
F2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The Office of Rail and Road must—
(a)at the request of a relevant party and in accordance with paragraphs (5) and (6), determine whether the exercise of the right conferred under regulation 5 by an applicant for infrastructure capacity notified under regulation 19(7) would compromise the economic equilibrium of a relevant public service contract; and
(b)make the determination on the basis of an objective economic analysis and in accordance with pre-determined criteria published by it.
(4) For the purposes of paragraph (3), and (6)(d) a relevant party is—
(a)the competent authority or authorities that awarded the relevant public service contract;
(b)any other competent authority with a right to limit access along the route of the international passenger service notified under regulation 19(7);
(c)the infrastructure manager; and
(d)the railway undertaking performing the relevant public service contract to which the request relates.
(5) Within one month of receipt of a request under paragraph (3)(a), the Office of Rail and Road must consider the information provided (including information provided pursuant to section 80 of the Act, as modified by regulation 36), and, as appropriate, ask for further relevant information from, and initiate consultation with, all relevant parties.
(6) The Office of Rail and Road must, within six weeks of receipt of all relevant information and, where appropriate, of any representations made by the Secretary of State under paragraph (9)—
(a)complete a consultation initiated under paragraph (5) or, as the case may be, under paragraph (9) if required;
(b)make a decision on a request made under paragraph (3)(a);
(c)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 under regulation 5, if the exercise of those rights would compromise the economic equilibrium of a relevant public service contract; and
(d)provide the relevant parties and any railway undertaking seeking access for the purpose of operating an international passenger service with the grounds for its decision, and specify a reasonable time period within which, and the conditions under which, any of those parties may request a reconsideration of the decision or direction or both.
(7) Where the Office of Rail and Road has received a properly made request for a reconsideration of its decision or direction in accordance with paragraph (6)(d), any decision or direction it has made under paragraph (6) will not take effect pending reconsideration.
(8) Where the Office of Rail and Road has received a properly made request for a reconsideration of its decision or direction in accordance with paragraph (6)(d), it must, within six weeks of the date of receipt of all relevant information (including information provided pursuant to section 80 of the Act, as modified by regulation 36) and of any representations made by the Secretary of State under paragraph (9)—
(a)make a reconsidered decision on the request; and
(b)where appropriate, issue or reissue a decision or direction to the infrastructure manager, allocation body, charging body, service provider or, as the case may be, railway undertaking.
(9) Where a decision or direction under paragraph (6) or (8) would affect a rail link facility or, as the case may be, the operation of the development agreement, the Office of Rail and Road must consult and, subject to paragraph (10), take into account any representations made by the Secretary of State before making or issuing such a decision or direction.
(10) Where paragraph (9) applies and, following consultation, the Secretary of State submits representations, the Office of Rail and Road 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.
(11) In making a decision on a request made under paragraph (3), or a request for a reconsideration of its decision under paragraph (6), the Office of Rail and Road 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 the Office of Rail and Road.
(12) 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 and Road on a request made under paragraph (3), or a request for a reconsideration of its decision under paragraph (6), 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.
F3(13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F1Words in reg. 33(1) substituted (31.12.2020) by The Railways (Access, Management and Licensing of Railway Undertakings) (Amendments etc.) (EU Exit) Regulations 2019 (S.I. 2019/518), regs. 1(3)(b), 17; 2020 c. 1, Sch. 5 para. 1(1)
F2Reg. 33(2) omitted (11.2.2019) by virtue of The Railways (Access, Management and Licensing of Railway Undertakings) (Amendment) Regulations 2019 (S.I. 2019/82), regs. 1(2), 4(a)
F3Reg. 33(13) omitted (4.3.2024) by virtue of The Railways (Revocation and Consequential Provision) Regulations 2024 (S.I. 2024/127), regs. 1(2), 4(5)