The Railway (Licensing of Railway Undertakings) Regulations 2005

Made: 1st November 2005

Laid before Parliament: 4th November 2005

Coming into force: 28th November 2005

The Secretary of State, being a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to railways and railway transport , in exercise of the powers conferred by that section, makes the following Regulations:–

PART 1 — GENERAL

Citation, commencement and extent

1

• (1) These Regulations may be cited as the Railway (Licensing of Railway Undertakings) Regulations 2005 and shall come into force on 28th November 2005.

• (2) These Regulations do not extend to Northern Ireland.

Interpretation

2

• (1) In these Regulations, except where the context otherwise requires—

• “the 1993 Act” means the Railways Act 1993 ;

• “the 1995 Directive” means Council Directive 95/18/EC of 19th June 1995 on the licensing of railway undertakings, as amended by Directive 2001/13/EC of 26th February 2001 and Directive 2004/49/EC of 29th April 2004, both of the European Parliament and of the Council;

• “the 2012 Directive” means Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast);

• “Channel Tunnel service” means—a service for the transport of passengers by rail between Calais-Fréthun station in France and Ashford International station in the United Kingdom,a service for the transport of goods by rail between Fréthun freight yard in France and Dollands Moor freight yard in the United Kingdom, ora service for the transport of passengers or goods by rail which originates or terminates somewhere other than one of those stations or freight yards, but only while it passes between them;

• “European licence” means a licence granted pursuant to any action taken by an EEA state for the purpose of implementing the 1995 Directive or Chapter III of the 2012 Directive;

• “French licensing authority” means the body responsible for granting European licences in France;

• ...

• ...

• ...

• ...

• “ORR” means the Office of Rail and Road, being the body established under section 15 of the Railways and Transport Safety Act 2003 ;

• “railway undertaking” means any public or private undertaking, the principal business of which is to provide services for the transport of goods and/or passengers by rail with a requirement that the undertaking ensure traction; this includes undertakings which provide traction only;

• “railway undertaking licence” means a licence, granted by the ORR to a railway undertaking pursuant to these Regulations, which authorises the undertaking to provide such train services as may be specified in the licence;

• “SNRP” means a statement of national regulatory provisions, issued pursuant to regulation 10; and

• “train service” means a service for the transport of goods or passengers (or both) by rail.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Repeals and revocations, and consequential amendments

3

Schedule 1 (amendments, repeals and revocations) shall have effect.

Scope

4

• (1) Subject to paragraph (2), these Regulations apply in relation to the licensing of railway undertakings which provide train services in Great Britain ...

• (2) These Regulations do not apply in relation to a railway undertaking whose activity is limited to any of the following—

• (a) operating rail passenger services on local and regional stand-alone railway infrastructure;

• (b) operating urban or suburban rail passenger services;

• (c) the provision of regional rail freight services ...;

• (d) carrying out freight operations on privately owned railway infrastructure that exists solely for use by the infrastructure owner for its own freight operations; or

• (e) providing shuttle services for road vehicles through the Channel Tunnel.

• (3) For the purposes of paragraph (2)—

• (a) “urban or suburban rail passenger services” means transport services whose principal purpose is to meet the passenger transport needs of an urban centre or conurbation, ... together with transport needs between such a centre or conurbation and surrounding areas; and

• (b) “regional rail freight services” means transport services whose principal purpose is to meet the rail freight transport needs of a region...

PART 2 — Railway Undertaking LICENCES

Prohibition of unlicensed provision of services

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• (1) Subject to paragraph (1A), where a person is a railway undertaking to which these Regulations apply, that person shall not provide a train service in Great Britain unless he is authorised to do so by a railway undertaking licence which is appropriate for that train service, and any person who provides such a service without such a licence shall be guilty of an offence.

• (1A) A person that is a railway undertaking to which these Regulations apply may provide a Channel Tunnel service if the person holds a European licence that would be appropriate for that service if the United Kingdom were an EEA state.

• (2) Any person who is guilty of an offence under this regulation shall be liable—

• (a) on summary conviction, to a fine not exceeding the statutory maximum;

• (b) on conviction on indictment, to a fine.

• (3) No proceedings shall be instituted in England and Wales in respect of an offence under this regulation except by or on behalf of the ORR.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appointment of licensing authority and grant of railway undertaking licences

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• (1) The ORR is ... the body responsible for granting railway undertaking licences.

• (2) The ORR shall determine and publish on its website the procedures for the granting of railway undertaking licences ...

• (3) Subject to and in accordance with these Regulations, the ORR shall grant a railway undertaking licence to a railway undertaking if that undertaking—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) makes an application to the ORR in accordance with the published procedures.

• (4) A railway undertaking licence may authorise the provision of train services generally or be restricted to particular types of service specified in the licence.

• (4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) An applicant shall submit with his application such application fee as the ORR may reasonably require and such information, specified in the published procedures referred to in paragraph (3)(b), as the ORR reasonably requires in order to be satisfied that the applicant satisfies the requirements referred to in Schedule 2.

• (6) At any time after submitting the application the applicant shall submit such further information as the ORR may reasonably require in connection with the application.

• (7) The ORR shall grant a railway undertaking licence if, and only if, it is satisfied before the start of the applicant's activities that the applicant will be able at any time to satisfy the requirements referred to in Schedule 2 as to good repute, financial fitness, professional competence and insurance cover for civil liabilities.

• (8) An application for a railway undertaking licence shall be determined by the ORR as soon as possible and in any event within three months of receipt of all the information referred to in paragraphs (5) and (6).

• (9) In respect of each application for a railway undertaking licence the ORR shall give notice stating—

• (a) that the applicant has made an application for a railway undertaking license;

• (b) the name of the applicant and the address of its registered or principal office; and

• (c) a summary of the activities which the applicant wishes to carry out pursuant to the railway undertaking licence.

• (10) A notice under paragraph (9) shall be given by publishing the notice in such manner as the ORR considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the railway undertaking licence.

• (11) The ORR shall without delay inform the applicant of its decision and, where it refuses to grant a railway undertaking licence, the refusal shall state the reasons for its decision.

• (12) When the ORR grants a railway undertaking licence in accordance with this regulation it shall forthwith inform the Secretary of State of the grant.

• (13) Any sums received by the ORR under this regulation shall be paid into the Consolidated Fund.

• (14) Schedule 2 (qualifications for railway undertaking licence) shall have effect.

Validity of European licences

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• (1) A railway undertaking licence shall, unless previously revoked or surrendered in accordance with any provision in these Regulations or the licence, continue in force as long as the ORR is satisfied that the railway undertaking concerned continues—

• (a) to satisfy the requirements referred to in Schedule 2 as to good repute, financial fitness, professional competence and insurance cover for civil liabilities, and

• (b) to submit the licence to the ORR for review or approval when so required under regulation 8.

• (2) A railway undertaking licence may incorporate specific provisions governing the suspension or revocation of the licence.

Monitoring, suspension and revocation of railway undertaking licences

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• (1) ... This regulation applies to a railway undertaking to which a railway undertaking licence has been granted by the ORR.

• (2) The ORR shall take such steps as are necessary to enable it to determine whether or not a railway undertaking complies with a requirement referred to in Schedule 2—

• (a) at regular intervals of at least every 5 years, or

• (b) at any time the ORR considers that there is serious doubt whether the railway undertaking complies with the requirement.

• (3) If, having taken the steps referred to in paragraph (2), the ORR is satisfied that a railway undertaking does not comply with any such requirement, it shall revoke the railway undertaking licence held by the railway undertaking or suspend it.

• (4) The ORR shall revoke a railway undertaking licence if—

• (a) proceedings have been commenced for the winding up of a railway undertaking on the grounds that the undertaking is unable to pay its debts, or

• (b) an application for a railway administration order has been made in relation to the railway undertaking under section 60 of the 1993 Act on the grounds that the undertaking is or is likely to be unable to pay its debts,

and the ORR is satisfied that there is no realistic prospect of satisfactory financial restructuring of the undertaking within a reasonable period of time.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) Where the ORR has suspended or revoked a railway undertaking licence solely on the grounds of the non-compliance by the railway undertaking with the requirements of financial fitness specified in Schedule 2, the ORR may grant to the undertaking a temporary railway undertaking licence pending the re-organisation of the railway undertaking.

• (7) A temporary railway undertaking licence under paragraph (6) shall not be granted—

• (a) where the ORR considers that safety would be jeopardised, or

• (b) for a period exceeding six months.

• (8) Where a railway undertaking to which a railway undertaking licence has been granted has either ceased the operations to which the licence relates for a continuous period of six months or, subject to paragraph (9), has not commenced such operations within six months of the date of such grant, then the ORR may either require the railway undertaking to resubmit its licence to the ORR for approval or suspend the licence.

• (9) When making an application for a railway undertaking licence, or where the ORR has required a railway undertaking to resubmit its railway undertaking licence in pursuance of paragraph (8) on the grounds that the railway undertaking has not commenced such operations, the railway undertaking shall be entitled to request that a period longer than six months be granted in which it can commence operations, taking into account the specific nature of the services to be provided.

• (10) In the event of a change affecting the legal situation of a railway undertaking, in particular following a change in the control or ownership of the railway undertaking as a result of a merger with or take-over by another undertaking, the ORR may require the railway undertaking to submit the railway undertaking licence to the ORR for approval.

• (11) Where a railway undertaking licence is submitted for approval pursuant to paragraph (10), the railway undertaking may continue operations whilst its licence is under review unless the ORR decides that safety is jeopardised by the change referred to in paragraph (10).

• (12) If the ORR decides that safety is jeopardised by that change, it shall notify the railway undertaking of its decision and of the grounds for it.

• (13) When a railway undertaking intends significantly to change or extend its activities from those in respect of which a railway undertaking licence was granted to it, the railway undertaking shall submit its licence to the ORR for review.

• (14) When the ORR amends, suspends or revokes a railway undertaking licence it shall forthwith inform the Secretary of State of such amendment, suspension or revocation.

PART 3 — STATEMENTS OF NATIONAL REGULATORY PROVISIONS

Prohibition on operating trains without a statement of national regulatory provisions

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• (1) Subject to paragraph (4A), where a person is a railway undertaking to which these Regulations apply, that person may not provide train services in Great Britain unless (in addition to being authorised by a railway undertaking licence) he holds a valid statement of national regulatory provisions (“SNRP”).

• (2) Any person who provides such services without holding such a statement shall be guilty of an offence.

• (3) Any person who is guilty of an offence under this regulation shall be liable—

• (a) on summary conviction, to a fine not exceeding the statutory maximum, or

• (b) on conviction on indictment, to a fine.

• (4) No proceedings shall be instituted in England or Wales in respect of an offence under this regulation except by or on behalf of the ORR.

• (4A) Paragraphs (1) to (4) do not apply where that person—

• (a) holds a European licence but not a railway undertaking licence; and

• (b) provides a Channel Tunnel service.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Statements of national regulatory provisions (“SNRPs”)

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• (1) Upon application being made, the ORR shall issue a SNRP to a holder of a valid railway undertaking licence who desires to provide train services in Great Britain.

• (2) Any application for a SNRP—

• (a) shall be made to the ORR and in such form and manner as the ORR may from time to time determine and publish, and

• (b) shall be accompanied by a copy of the railway undertaking licence, if already held.

• (3) A SNRP shall continue in force for such period as may be specified in or determined by or under the SNRP.

Conditions of SNRPs

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• (1) Subject to paragraph (4), a SNRP shall include one or more conditions (whether or not relating to the activities for which the applicant for the SNRP requires a railway undertaking licence) as appear to the ORR to be requisite or expedient having regard to the duties imposed on it by section 4 of the 1993 Act; and in this context, the references in that section to the functions assigned or transferred to the ORR under or by virtue of Part 1 of the 1993 Act shall have effect as if they were references to the functions conferred on the ORR under or by virtue of this Part of these Regulations.

• (2) Subject to paragraph (4), a SNRP may include conditions requiring the rendering to the ORR of a payment on the grant of the SNRP or payments during the currency of the SNRP, or both, of such amount or amounts as may be determined by or under the SNRP.

• (3) Without prejudice to the generality of paragraph (1), conditions included in a SNRP by virtue of paragraph (1) may impose any of the following requirements—

• (a) specific technical and operational requirements for rail services;

• (b) safety requirements applying to staff, rolling stock and the internal organisation of the undertaking;

• (c) provisions on health, safety, social conditions and the rights of workers and consumers;

• (d) requirements applying to all undertakings in the relevant railway sector designed to offer benefits or protection to consumers.

• (4) A condition may not—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) be applied in a discriminatory manner.

• (5) Any sums received by the ORR in consequence of the provisions of any condition of a SNRP shall be paid into the Consolidated Fund.

Referral for Commission's opinion

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Modification of SNRPs by consent

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• (1) Subject to regulation 11 and to the following provisions of this regulation, the ORR may modify the conditions of a SNRP if the SNRP holder consents to the modifications.

• (2) Before making modifications under this regulation, the ORR shall give notice—

• (a) stating that it proposes to make the modifications and setting out their effect,

• (b) stating the reasons why it proposes to make the modifications, and