United Kingdom Statutory Instruments

"Concession" and "Concessionaires" have the meaning given in article 1 of the Treaty;

"Directives" means—

(a) international transport services by international groupings;

(b) international combined transport goods services; and

(c) international freight services by railway undertakings,

in accordance with the above Directives.

"Common Section" means that part of the Fixed Link which is normally used by all categories of trains for the delivery of the services described in Article 1.

"Intergovernmental Commission" means the Intergovernmental Commission established by Article 10 of the Treaty to supervise in the name and on behalf of the Principals all matters concerning the construction and operation of the Fixed Link.

    (2) The expressions used in this Regulation, which are also used in the Directives referred to above, shall have the meaning they bear in those Directives.

(a) handling of requests for infrastructure capacity;

(b) the right to utilise capacity which is granted;

(c) use of running track points and junctions in the Common Section;

(d) train control including signalling, regulation, dispatching and the communication and provision of information on train movements; and

(e) all other information required to implement or operate the service for which capacity has been granted.

    (4) Access and transit rights through the Common Section also comprise—

(a) use of the electrical supply system for traction current;

(b) access to any installation intended to receive rail-borne freight that the Principals decide, in accordance with Article 1.2 of the Treaty, forms part of the Fixed Link;

(c) shunting in the event of technical breakdown; and

(d) access to the emergency sidings in the event of an incident.

Article 4
Management of infrastructure

     4. Subject to the provisions of articles 9.2 and 11.3, the Concessionaires shall be the infrastructure manager of the Fixed Link. The Concessionaires' profit and loss accounts and balance sheets relating on the one hand to the provision of transport services by railway undertakings and on the other for business relating to the management of railway infrastructure shall be kept and published separately. Any public funds paid to one of these two areas of activity may not be transferred to the other. The accounts for the two areas of activity shall be kept in a way that reflects this prohibition.

(a) a description of the nature of the infrastructure which is available to railway undertakings and international groupings and the conditions of access and transit in the Fixed Link;

(b) the principles and criteria for capacity allocation, setting out the general characteristics of the infrastructure and any restrictions relating to its use, including likely capacity requirements for maintenance;

(c) the procedures and deadlines for the capacity allocation process, in particular—


(i) the procedures according to which applicants may request capacity from the infrastructure manager;

(ii) the requirements governing applicants;

(iii) the schedule for the application and allocation processes;

(iv) the principles governing the co-ordination process;

(v) the procedures to be followed and criteria used where infrastructure is congested;

(vi) details of restrictions on the use of infrastructure; and

(vii) any conditions by which account is taken of previous levels of utilisation of capacity in determining priorities for the allocation process;



(d) the charging principles and tariffs; and

(e) the measures taken to ensure the adequate treatment of freight services, international services and requests subject to the ad hoc procedure.

    (3) The Concessionaires shall consult all the interested parties, including the Intergovernmental Commission, on the draft Network Statement, stating the deadline for the receipt of comments.

    (4) The Concessionaires shall finalise the Network Statement and publish it appropriately, no less than four months in advance of the annual deadline for requests for infrastructure capacity.

    (5) The Network Statement shall be kept up to date following the same process.

(a) is licensed in accordance with the provisions of Council Directive 95/18/EC, as amended by Article 1 of Council Directive 2001/13/EC, and complies with all mandatory requirements of national legislation and regulation, and also the operating rules of the Concessionaires approved by the Intergovernmental Commission and the security provisions laid down by the Principals;

(b) is adequately insured for provision of services in the Fixed Link or has made equivalent arrangements for cover, in accordance with national and international law, of its liabilities in the event of accidents, in particular in respect of its clients, the Concessionaires of the Fixed Link and other third parties;

(c) has received and continues to hold a safety certificate from the Intergovernmental Commission following a technical report by the Concessionaires, as described in Article 32 of Council Directive 2001/14/EC, which specifies the safety requirements necessary to operate a safe service through the Fixed Link;

(d) on fulfilling the three conditions above, has entered into an agreement with the Concessionaires. This agreement shall set out the rights and obligations of the parties in line with the conditions set out in Article 7.

Article 7
Nature and content of agreements

     7. —(1) Conditions governing agreements to be entered into under Article 6(d) shall be non-discriminatory, in accordance with article 10.5 of Council Directive 91/440/EEC as amended by Article 1 of Directive 2001/12/EC and Directive 2004/51/EC.

    (2) Agreements to be entered into under Article 6(d) shall include—

(a) the administrative, technical and financial provisions necessary to ensure compliance at all times with the conditions specified in points (a) to (c) of Article 6 above;

(b) the provisions relating to allocation of train paths over the Common Section agreed as a result of application of the procedures specified in Article 9;

(c) the provision relating to fees set according to the rules specified in Article 11.

Article 8
Framework agreements

     8. —(1) The Concessionaires may agree with any railway undertaking or international grouping a framework agreement covering a number of years, setting out the characteristics of the infrastructure capacity required by the railway undertaking or international grouping and offered by the Concessionaires over any period exceeding one timetable period. A framework agreement shall not specify the path or paths in detail but be drawn up so as to meet the legitimate commercial needs of the railway undertaking or international grouping.

    (2) A framework agreement shall in principle be for a period of five years. The Concessionaires may agree to a shorter or longer period. Any period longer than five years shall be justified by the existence of commercial contracts, specialised investments or risks. Any period longer than ten years shall be possible only in exceptional cases, in particular where there is large-scale, long-term investment, and particularly where such investment is covered by contractual commitments.

    (3) The framework agreement shall not be such as to preclude the use of the infrastructure by other applicants or services.

    (4) The framework agreement shall allow for the amendment or limitation of its terms to enable better use to be made of the railway infrastructure.

    (5) The framework agreement may include provision for penalties should it be necessary to modify or terminate the agreement.

    (6) Whilst respecting commercial confidentiality, the general nature of each framework agreement shall be made available to any interested party.

(a) The right to use specific infrastructure capacity in the form of a train path may be granted to international groupings and railway undertakings for a maximum duration of one working timetable period. Any international grouping or railway undertaking who is a party to a framework agreement shall apply for capacity in accordance with the terms of that agreement. Once the allocation body has allocated capacity to an international grouping or railway undertaking, that capacity may not be transferred by the recipient to another undertaking or service. Any trading in infrastructure capacity is prohibited and shall lead to that international grouping or railway undertaking being excluded from the further allocation of capacity.

(b) The allocation body shall consider all applications for capacity under the conditions and following the deadlines set out in the Network Statement. It shall take account of the capacity needed for maintenance, renewal and improvement of the infrastructure. It shall as far as is possible meet all requests for infrastructure capacity. Where there are conflicting requests for capacity, the allocation body shall have the right to propose different paths to those that were requested; any such proposal must be accompanied by a justification. The allocation body shall attempt, through consultation with the appropriate applicants, to achieve a resolution of any conflicts.

(c) At the end of the scheduling process, the allocation body shall establish a draft working timetable which it shall circulate to all interested parties. Interested parties shall have at least one month in which to make any comments on the draft. At the end of that period, the allocation body shall take appropriate measures to deal with any concerns that are expressed, and then establish a definitive allocation proposal.

(d) Without prejudice to the provisions of article 12, in case of disputes relating to the allocation of infrastructure capacity, the allocation body shall establish a dispute resolution system in order to resolve such disputes promptly. The system shall be described in the Network Statement and, where the system is applied, a decision shall be reached within a time limit of ten working days.

(e) Requests for paths may be made after publication of the working timetable and for the remainder of the duration of that timetable period. Ad-hoc requests for individual train paths may also be made at any time during the current working timetable period. The allocation body must respond to ad hoc requests for individual train paths as quickly as possible and, in any event, within five working days. Information supplied on available spare capacity shall be made available to all international groupings or railway undertakings who may wish to use this capacity.

    (4) The allocation body shall give its reasons for any refusal of train paths.

    (5) The allocation body may, giving reasons, withdraw or alter allocated paths—

(a) to allow unscheduled maintenance on the railway infrastructure;

(b) at the request of the Intergovernmental Commission, of either of the two Principals or of both Principals acting jointly, to give priority to transport needed for national defence; or

(c) to allow more efficient use of the infrastructure when the path has, for a period of at least one month, been used less than a threshold quota set out in the Network Statement.

Fifteen days notice must be given to the path holder, and the railway undertakings affected must be consulted, on any decision to modify or withdraw paths. The allocation body must advise the duration of the modification or withdrawal. In the circumstances described at (c) above, the modification or withdrawal may last for the duration of the current working timetable period.

However, in the event of an emergency and where absolutely necessary, particularly in the event of an accident, a breakdown rendering the infrastructure temporarily unusable or any other event preventing the reasonably safe use of the infrastructure, the allocation body may without warning withdraw the paths allocated for as long as is necessary to repair or recover the system. The allocation body shall immediately inform the Intergovernmental Commission of such a closure.

The terms governing compensation shall be set out in the agreement entered into in accordance with Article 6(d).

    (6) The allocation body shall co-operate with other infrastructure managers to ensure that there is proper co-ordination of train paths through the Fixed Link and on to other networks, and shall establish such procedures as are appropriate to enable this to take place in accordance with article 15 of Council Directive 2001/14/EC.

(a) the network statement;

(b) the criteria contained within it;

(c) the allocation process and its result;

(d) the charging scheme;

(e) the level or structure of infrastructure fees which it is, or may be, required to pay; and

(f) the enforcement and monitoring of safety rules.

    (2) For the purpose of carrying out this appeal function the Intergovernmental Commission may call upon such bodies or experts appointed for that purpose, in conformity with article 10.7 of the Treaty.

    (3) The Concessionaires and other interested parties shall supply to the Intergovernmental Commission, without undue delay, all relevant information requested by that body. In particular, the Concessionaires shall supply to the Intergovernmental Commission all the information necessary to enable that body to ensure that charges set by the Concessionaires are compliant with Chapter II of Directive 2001/14/EC and are non-discriminatory.

    (4) The Intergovernmental Commission shall take a decision and take action to remedy the situation within a maximum period of two months from receipt of all relevant information about an appeal or complaint. Notwithstanding article 12.5, a decision of the Intergovernmental Commission shall be binding on all parties covered by that decision.

    (5) Decisions of the Intergovernmental Commission shall be subject to judicial review by the competent authorities of either France or the United Kingdom. The lodging of an appeal before the authorities of one State precludes the presentation of a second claim on the same count before the authorities of the other State.

    (6) For the purpose of monitoring competition in the rail services market, in so far as it relates to the Channel fixed link, the Intergovernmental Commission, without prejudice to the national laws of the Principals on competition policy, may call upon such bodies or experts appointed for that purpose, in conformity with article 10.7 of the Treaty.