The Channel Tunnel (International Arrangements) Order 2005

Made: 17th November 2005

Laid before Parliament: 21st November 2005

Coming into force: 19th December 2005

In exercise of the powers conferred on the appropriate Minister by section 11 of the Channel Tunnel Act 1987[^f00001], the Secretary of State for Transport makes the following Order:

Citation, commencement and extent

1

• (1) This Order may be cited as the Channel Tunnel (International Arrangements) Order 2005 and shall come into force on 19th December 2005.

• (2) This Order does not apply to the rail transport activities of the Concessionaires in respect of any shuttle service, as defined in section 1(9) of the Channel Tunnel Act 1987.

Interpretation

2

In this Order—

• “Concession” and “Concessionaires” have the meaning given in article 1 of the Treaty;

• “Directives” means—Council Directive 91/440/EEC dated 29th July 1991 on the development of the Community’s railways[^f00002], as amended by Directive 2001/12/EC dated 26th February 2001[^f00003] , Directive 2004/51/EC dated 29th April 2004 and Directive 2007/58/EC dated 23rd October 2007, each of the European Parliament and of the Council;Council Directive 95/18/EC dated 19th June 1995 on the licensing of railway undertakings[^f00005], as amended by Directive 2001/13/EC dated 26th February 2001[^f00006] of the European Parliament and of the Council; andDirective 2001/14/EC dated 26th February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification[^f00007] as amended by Directive 2007/58/EC dated 23rd October 2007, both of the European Parliament and of the Council;

• “Fixed Link” and “Channel fixed link” means the Channel fixed link as defined in Article 1(2) of the Treaty;

• “infrastructure manager”, “international grouping” and “railway undertaking” have the same meanings as in Council Directive 91/440/EEC dated 29th July 1991 on the development of the Community’s railways, as amended by Directive 2001/12/EC dated 26th February 2001 , Directive 2004/51/EC dated 29th April 2004 and Directive 2007/58/EC dated 23rd October 2007, each of the European Parliament and of the Council;

• “Intergovernmental Commission” means the Commission established pursuant to Article 10 of the Treaty;

• “international articles” means the provisions set out in the Schedule;

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

• “Principals” means the Secretary of State for Transport in the Government of the United Kingdom of Great Britain and Northern Ireland or such other person as may from time to time be designated by such Government to assume his functions under or pursuant to the Concession, and the French Republic represented by the Minister responsible for Transport or any other authority designated for that purpose; and

• “Treaty” means the Treaty between the United Kingdom of Great Britain and Northern Ireland and the French Republic concerning the construction and operation by private concessionaires of a Channel fixed link signed at Canterbury on 12th February 1986[^f00008].

Application of international articles

3

The international articles shall ... have the force of law in the United Kingdom ....

Regulatory body

4

• (1) The Intergovernmental Commission is designated as the regulatory body for the Channel fixed link, and must carry out the functions assigned to, and comply with the obligations imposed on, that body by article 12 of the international articles.

• (2) Without prejudice to the right of any person to make an application for judicial review in accordance with article 12.5 of the international articles, a decision by the Intergovernmental Commission in accordance with its functions under article 12 of those articles is binding on all parties covered by that decision.

• (3) Where a decision of the Intergovernmental Commission as described in paragraph (2) contains a direction to any infrastructure manager, international grouping or railway undertaking as to the remedial action to be taken, that infrastructure manager, international grouping or, as the case may be, railway undertaking is under an obligation to comply with that direction.

Application of civil law

5

• (1) The obligation to comply with—

• (a) article 4(3) of this Order; or

• (b) article 4 of the international articles,

shall be a duty owed to any person who may be affected by a breach of that obligation and shall be actionable by any such person who sustains loss, damage or injury caused by the breach at the suit or instance of that person.

• (2) In any proceedings brought against an infrastructure manager, international grouping or railway undertaking under paragraph (1), it shall be a defence for it to prove that it took all reasonable steps and exercised all due diligence to avoid a breach of the duty.

• (3) Without prejudice to the right which any person may have by virtue of paragraph (1) to bring civil proceedings in respect of any breach of duty, the obligation to comply with the provisions referred to in that paragraph shall be enforceable by civil proceedings by the Intergovernmental Commission for an injunction or for interdict or any other relief.

SCHEDULE — INTERNATIONAL ARTICLES

THE INTERGOVERNMENTAL COMMISSION

THE INTERGOVERNMENTAL COMMISSION,

Having regard to the Treaty between the United Kingdom of Great Britain and Northern Ireland and the French Republic concerning the construction and operation by private concessionaires of a Channel Fixed Link signed at Canterbury on 12 February 1986 (“the Treaty”), and in particular its Articles 1 and 10;

Having regard to Council Directive 91/440/EEC of 29 July 1991, as amended by Directives 2001/12/EC of 26 February 2001, 2004/51/EC of 29 April 2004, both of the European Parliament and of the Council, Council Directive 2006/103/EC of 20 November 2006 and Directive 2007/58/EC of the European Parliament and of the Council of 23 October 2007, on the development of the Community’s railways and, in particular, its Article 10(3);

Having regard to Council Directive 95/18/EC of 19 June 1995, as amended by Directives 2001/13/EC of 26 February 2001 and 2004/49/EC of 29 April 2004, both of the European Parliament and of the Council, on the licensing of railway undertakings;

Having regard to Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001, as amended by Directives 2004/49/EC of 29 April 2004 and 2007/58/EC of 23 October 2007 both of the European Parliament and of the Council, on the allocation of railway infrastructure capacity, and the levying of charges for the use of railway infrastructure and in particular its Article 8(2) whereby for specific investment projects, infrastructure managers may set or continue to set higher charges on the basis of the long-term costs of such projects if they increase efficiency and/or cost-effectiveness and could not otherwise have been undertaken;

Having regard to the Regulation of the Intergovernmental Commission on the safety of the Channel Fixed Link signed in London on 24 January 2007;

Having regard to the quadripartite Concession signed on 14 March 1986 between the ministre de l’urbanisme, du logement et des transports representing the French State and the Secretary of State for Transport of the United Kingdom of Great Britain and Northern Ireland (together “the Principals”) on the one part, and France-Manche SA and the Channel Tunnel Group Ltd (“the Concessionaires”) on the other part (the Concession);

ARTICLE 1 — Purpose

1

This Regulation applies to the use of those parts of the Channel Fixed Link necessary for the delivery of—

• (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.

ARTICLE 2 — Definitions

2

• (1) “Concession” and “Concessionaires” have the meaning given article 1 of the Treaty.

• “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.

Article 3 — Access and Transit Rights

3.2

Access rights through the Common Section include, for any railway undertaking, the right to the following minimum access package:

• handling of requests for infrastructure capacity;

• the right to utilise capacity which is granted;

• use of running track points and junctions in the Common Section;

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

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

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.

ARTICLE 5 — Network Statement for the Fixed Link

5.2

The Network Statement shall contain all the information necessary to exercise access rights through the Fixed Link, in particular:

• (a) a description of the nature of the infrastructure which is available to railway undertakings and the conditions of access 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 presenting and considering requests for capacity allocation, in particular:

• (i) the procedures according to which capacity may be requested from the infrastructure manager;

• (ii) the requirements governing those requesting capacity;

• (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 international freight services, without prejudice to other international services, and requests subject to the ad hoc procedure.

Article 6 — Exercise of Access or Transit Rights

6

An international grouping or railway undertaking shall not be permitted to exercise the access or transit rights specified in Article 3 unless it—

• (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 as required by article 39 of the Regulation of the Intergovernmental Commission transposing Directive 2004/49/EC of the European Parliament and of the Council (the Railway Safety Directive) signed on 24th January 2007;

• (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

7.2

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

• 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;

• 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;

• the provisions relating to fees set according to the rules specified in Article 11.

ARTICLE 8 — Framework Agreements

8.2

A framework agreement shall in principle be for a period of five years, renewable for periods equal to its original duration. 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.

ARTICLE 9 — Procedure for Allocation of Train Paths

9.2

The allocation body established in accordance with Article 9.1 shall be independent in its legal form, organisation and decision-making from any railway undertaking.

ARTICLE 10 — Congested Infrastructure

10.2

The Concessionaires shall, within six months of the declaration described in Article 10.1, undertake a capacity analysis in accordance with Article 25 of Directive 2001/14/EC, and notify it to the Intergovernmental Commission.

ARTICLE 11 — Infrastructure Charges

11.2

The Concessionaires shall establish a charging body to set out specific charging rules and to determine charges for the use of the Fixed Link in accordance with Chapter II of Directive 2001/14/EC. Subject to compliance with Article 11.3, the Concessionaires as infrastructure manager shall fulfil the functions of the charging body. In any event, the Concessionaires shall collect the infrastructure charges for the use of the Fixed Link.

ARTICLE 12 — Regulatory Body

12.2

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.

ARTICLE 13 — Entry into Force

13.2

This Regulation shall enter into force on the date of the later of the notifications by the two Governments of the completion of their necessary internal procedures.

Signed

Signed by authority of the Secretary of State for Transport

Derek Twigg — Parliamentary Under Secretary of State, — Department for Transport — 17th November 2005

Explanatory note

(This note is not part of the Order)

This Order brings into effect a binational regulation signed on 25 October 2005 on behalf of the Governments of the United Kingdom of Great Britain and Northern Ireland and the French Republic by the Intergovernmental Commission. The purpose of that Regulation is to implement Council Directive 91/440/EEC of the Council of 29 July 1991 on the development of the Community’s railways, as amended by Directive 2001/12/EC dated 26 February 2001 and Directive 2004/51/EC dated 29 April 2004, both of the European Parliament and of the Council, Council Directive 95/18/EC dated 19 June 1995 on the licensing of railway undertakings, as amended by Directive 2001/13/EC dated 26 February 2001 of the European Parliament and of the Council, and Directive 2001/14/EC of the European Parliament and of the Council on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification for the Channel Tunnel. The text of the binational regulation is set out in the Schedule to this Order.

A separate Regulatory Impact Assessment has not been prepared in respect of this Order, but Appendix A of the First Rail Package Transposition Regulations – Regulatory Impact Assessment sets out the relevant considerations. A copy can be obtained from the Department for Transport, Great Minister House, 76 Marsham Street, London, SW1P 4DR. A copy has been placed in the Library of each House of Parliament.

A copy of the Transposition Note is also available from the Department for Transport.

Copies of the Regulatory Impact Assessment for the First Rail Package (see S.I. 2005/3049 and S.I. 2005/3050) and of the Transposition Note for this Order may also be accessed on the Office for Public Sector Information website www.opsi.gov.uk.

Footnotes

[^f00001]: 1987 c. 53.

[^f00002]: O.J. L237, 24.8.91, pg 25: the text of the Directive is subject to the amendments in a corrigendum published in O.J. No. L305, 6.11.91, pg 22.

[^f00003]: O.J. No. L75. 15.03.01, p1. Added to Annex XIII of the EEA Agreement by Article 1 of the Decision of the EEA Joint Committee No. 118/2001 of 28th September 2001 (O.J. No. L322, 6.12.2001, p32).

[^f00005]: O.J. No. L143, 27.6.1995, p70. Added to Annex XIII of the EEA Agreement by Article 1 of the Decision of the EEA Joint Committee No. 71/95 of 15th December 1995 (O.J. No. L57, 7.3.96, p37).

[^f00006]: O.J. No. L75, 15.3.2001, p26. Added to Annex XIII of the EEA Agreement by Article 2 of the Decision of the EEA Joint Committee No. 118/2001 of 28th September 2001 (O.J. No. L322, 6.12.2001, p32).

[^f00007]: O.J. No. L75, 15.3.2001, p29. Added to Annex XIII of the EEA Agreement by Article 3 of the Decision of the EEA Joint Committee No. 118/2001 of 28th September 2001 (O.J. No. L322, 6.12.2001, p32).

[^f00008]: Treaty Series No. 15 (1992). Presented to Parliament by the Secretary of State for Foreign and Commonwealth Affairs by Command of her Majesty March 1992. Command Paper 1827.

Editorial notes

[^key-1a291d3c85a51dabf5e3c23914cf24c7]: Art. 2 in force at 19.12.2005, see art. 1(1)

[^key-fe64af02610522b2861dd1a2e9090878]: Art. 3 in force at 19.12.2005, see art. 1(1)

[^key-e27538116f3ad78d279abc0e6271d760]: Art. 5 in force at 19.12.2005, see art. 1(1)

[^key-e81792fc25eaed228a0938c0e657a118]: Art. 1 in force at 19.12.2005, see art. 1(1)

[^key-2f7025dd66c8f0056dde74c1888434c2]: Art. 4 in force at 19.12.2005, see art. 1(1)

[^key-b82c839fb594ecf08373f5347eafe505]: Art. 4A inserted (8.10.2008) by The Channel Tunnel (International Arrangements) (Amendment) Order 2008 (S.I. 2008/2366), arts. 1, 2(3)

[^key-2b89a41dc221c41d06ac12d7ac5d87b2]: Words in art. 2 inserted (8.10.2008) by The Channel Tunnel (International Arrangements) (Amendment) Order 2008 (S.I. 2008/2366), arts. 1, 2(2)

[^key-1e05b33228b44777667291e1218950d1]: Arts. 6, 7 added (25.8.2009) by The Channel Tunnel (International Arrangements) (Amendment) Order 2009 (S.I. 2009/2081), arts. 1(2)(b), 2(6)

[^key-c438bb9a4282fe48e149b98b54e20be3]: Art. 5(3) added (25.8.2009) by The Channel Tunnel (International Arrangements) (Amendment) Order 2009 (S.I. 2009/2081), arts. 1(2)(b), 2(5)

[^key-84ebca12cf8f3dc9ba2e61636d77bbdc]: Words in art. 2 substituted (29.10.2009 except in relation to Art. 3 of the Regulation which was given the force of law on 1.1.2010 as notified in the London Gazette dated 12.3.2010 (which corrected an earlier notice dated 13.11.2009)) by The Channel Tunnel (International Arrangements) (Amendment) Order 2009 (S.I. 2009/2081), arts. 1(2)(a)(3), 2(2)(a)

[^key-bd0c7ea5b678b61091afcc95782ec236]: Words in art. 2 inserted (29.10.2009 except in relation to Art. 3 of the Regulation which was given the force of law on 1.1.2010 as notified in the London Gazette dated 12.3.2010 (which corrected an earlier notice dated 13.11.2009)) by The Channel Tunnel (International Arrangements) (Amendment) Order 2009 (S.I. 2009/2081), arts. 1(2)(a)(3), 2(2)(b)

[^key-f9d166ff7d87b9cfc5e70dad7191c01c]: Words in art. 2 substituted (29.10.2009 except in relation to Art. 3 of the Regulation which was given the force of law on 1.1.2010 as notified in the London Gazette dated 12.3.2010 (which corrected an earlier notice dated 13.11.2009)) by The Channel Tunnel (International Arrangements) (Amendment) Order 2009 (S.I. 2009/2081), arts. 1(2)(a)(3), 2(3)

[^key-d824b029e8c2aa79ac30c7069065dd2e]: Words in art. 3 omitted (29.10.2009 except in relation to Art. 3 of the Regulation which was given the force of law on 1.1.2010 as notified in the London Gazette dated 12.3.2010 (which corrected an earlier notice dated 13.11.2009)) by virtue of The Channel Tunnel (International Arrangements) (Amendment) Order 2009 (S.I. 2009/2081), arts. 1(2)(a)(3), 2(4)

[^key-56becaee058d9f1d9289c9abc6bc851b]: Words in art. 2 substituted (16.10.2015) by The Office of Rail Regulation (Change of Name) Regulations 2015 (S.I. 2015/1682), reg. 1(2), Sch. para. 10(m)(i) (as extended to U.K. (29.7.2016) by virtue of by S.I. 2016/645, reg. 1(1), Sch. 1 para. 5 (with reg. 4))

[^key-e6e75b0f5b54686c62f94417bbf98271]: Words in art. 4A heading substituted (16.10.2015) by The Office of Rail Regulation (Change of Name) Regulations 2015 (S.I. 2015/1682), reg. 1(2), Sch. para. 10(m) (as extended to U.K. (29.7.2016) by virtue of by S.I. 2016/645, reg. 1(1), Sch. 1 para. 5 (with reg. 4))

[^key-d389fa984d8d5182eeff19bcbc2a8da8]: Words in art. 4A substituted (16.10.2015) by The Office of Rail Regulation (Change of Name) Regulations 2015 (S.I. 2015/1682), reg. 1(2), Sch. para. 10(m)(ii) (as extended to U.K. (29.7.2016) by virtue of by S.I. 2016/645, reg. 1(1), Sch. 1 para. 5 (with reg. 4))

Role of the Office of Rail Regulation

4A

• (1) If called upon by the Intergovernmental Commission the Office of Rail and Road shall provide to that body such assistance as it may require for the purpose of carrying out the functions under article 12 of the international articles.

• (2) With a view to facilitating the performance of the obligations under article 4(1) by the Intergovernmental Commission the Secretary of State must exercise the power of appointment under article 10.4 of the Treaty so as to ensure that at least two members of the Intergovernmental Commission are appointed following consultation by the Secretary of State with the Office of Rail and Road.

Application of civil law

Making of false statements etc.

6

• (1) If any person, in giving any information or making any application under or for the purposes of any provision of this Order, makes any statement which that person knows to be false in a material particular, or recklessly makes any statement which is false in a material particular, he or she is guilty of an offence and shall be liable—

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

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

• (2) No proceedings shall be instituted in England or Wales in respect of an offence under this article, except by or with the consent of the Secretary of State or the Director of Public Prosecutions.

Offences by bodies corporate and Scottish partnerships

7

• (1) Where an offence under this Order has been committed by a body corporate and it is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he or she as well as the body corporate shall be guilty of that offence and be liable to be proceeded against and punished accordingly.

• (2) Where the affairs of a body corporate are managed by its members, paragraph (1) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director of the body corporate.

• (3) Where a Scottish partnership is guilty of an offence under this Order in Scotland and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he or she as well as the partnership shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Considering the specific nature of the investment undertaken to assure the design, financing, construction and, since 1994, operation of the Channel Tunnel;

HAS ADOPTED the following Regulation:

This Regulation applies to the use of those parts of the Channel Fixed Link necessary for the delivery of:

• international passenger services,

• international combined transport goods services, and

• international freight services by railway undertakings,

in accordance with the above Directives.

“Concession” and “Concessionaires” have the meaning given in Article 1 of the Treaty.

“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 two Governments all matters concerning the construction and operation of the Fixed Link.

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.

ARTICLE 3 — Access Rights

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.

ARTICLE 6 — Exercise of Access Rights

A railway undertaking shall not be permitted to exercise the access rights unless it:

• (a) is licensed in accordance with the provisions of Council Directive 95/18/EC, as amended by Article 1 of Directive 2001/13/EC and Article 29 of Directive 2004/49/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 as required by Article 39 of the Regulation of the Intergovernmental Commission transposing Directive 2004/49/EC of the European Parliament and of the Council (the Railway Safety Directive) signed on 24 January 2007;

• (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.

Done by the Intergovernmental Commission on 23rd July 2009 in the English and French languages, both texts being equally authoritative.

Roy GriffinsHead of UK Delegation, Intergovernmental Commission	Christian ParentHead of French Delegation, Intergovernmental Commission

Role of the Office of Rail and Road