The Channel Tunnel (Safety) Order 2007

Made: 13th December 2007

Laid before Parliament: 18th December 2007

Coming into force in accordance with article 1(1)

The Secretary of State for Transport makes the following Order in exercise of the powers conferred by section 11(1) (a) and (g), (2) (a) and (b), and (3) (a), (b) and (f) of the Channel Tunnel Act 1987[^f00001].

Citation, commencement and extent

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• (1) This Order may be cited as the Channel Tunnel (Safety) Order 2007 and comes into force on the date on which the Regulation comes into force in accordance with article 77 of the Regulation. That date will be notified in the London, Edinburgh and Belfast Gazettes.

• (2) This this Order does not extend to Northern Ireland.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Interpretation

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In this Order—

• “the 1974 Act” means the Health and Safety at Work etc. Act 1974[^f00002];

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

• “the Intergovernmental Commission” means the Commission established under Article 10 of the Treaty to supervise, in the name and on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic, all matters concerning the construction and operation of the Fixed Link;

• “railway undertaking” has the same meaning as in article 1xx of the Regulation;

• “Regulation” means the provisions set out in the Schedule (being a regulation drawn up by the Intergovernmental Commission, under Article 10(3) (e) of the Treaty, on the safety of the Fixed Link); and

• “the 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 the Fixed Link signed at Canterbury on 12th February 1986[^f00003].

Regulation has the force of law

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The Regulation has the force of law.

Enforcement of the Regulation

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• (1) Subject to paragraphs (5) and (6), it is the duty of the Office of Rail and Road to make adequate arrangements for the enforcement of the Regulation.

• (2) Subject to paragraphs (4) to (6), the provisions of the 1974 Act specified in paragraph (3) (the “specified provisions”) apply for the purposes of the enforcement of the Regulation as if in the specified provisions—

• (a) a reference to the “enforcing authority” was a reference to the Office of Rail and Road;

• (b) a reference to the “relevant statutory provisions” was a reference to the Regulation and to the specified provisions; and

• (c) a reference to “health and safety regulations” was a reference to the Regulation.

• (3) The provisions of the 1974 Act referred to in paragraph (2) are—

• (a) sections 19 and 20 (appointment and powers of inspectors)[^f00004], excluding section 20 (3);

• (b) sections 21 and 22 (improvement and prohibition notices)[^f00005];

• (c) section 23 (provisions supplementary to sections 21 and 22)[^f00006], excluding section 23(6);

• (d) section 24 (appeal against improvement or prohibition notice)[^f00007];

• (e) section 25 (power to deal with cause of imminent danger);

• (f) section 26 (power to indemnify inspectors);

• (g) section 28 (restrictions on disclosure of information)[^f00008];

• (h) sections 33 (1) (c), (e) to (h), (k) to (o), (2), (2A) and (3), 34 (1) (c) and (d) and (2) to (5), 35, 36 (1) and (2), 37 to 41 and 42 (1) to (3) (provisions as to offences)[^f00009]; and

• (i) section 46 (service of notices).

• (4) For the purposes of the enforcement of the Regulation section 33(1)(c) of the 1974 Act (offences) only applies to contraventions of—

• (a) articles 13 iv, 15 iv, 16, 22 to 25, 27, 34 (a) and (b), 39, 51, 52 (a) and (b) ,55A, 55B and 61 of the Regulation; and

• (b) any requirement or prohibition to which a person is subject by virtue of the terms of or any condition or restriction attached to any—

• (i) vehicle authorisation;

• (ii) safety authorisation; or

• (iii) Part B certificate;

given under the Regulation, including any deemed authorisation or Part B certificate referred to in articles 66, 73 or 74 of the Regulation.

• (5) Paragraphs (1) and (2) do not apply in respect of the following articles of the Regulation—

• (a) articles 6 and 7 (safety authority);

• (b) articles 56 to 60 (access to training facilities); and

• (c) articles 67 to 72 (investigations into accidents and incidents).

• (6) Paragraphs (1) and (2) do not apply for the purpose of enforcing the obligations of the Intergovernmental Commission under the Regulation.

Access to training facilities

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• (1) Any railway undertaking whose train drivers or staff performing vital safety tasks are denied the entitlements conferred by articles 56, 57(a) and 58 of the Regulation has a right of appeal to the Office of Rail and Road.

• (2) In relation to training services to which article 59 of the Regulation applies, a railway undertaking which considers that the price charged for access to those services is unreasonable or discriminatory has a right of appeal to the Office of Rail and Road.

• (3) A person who is denied any entitlement conferred on him by article 60 of the Regulation has a right of appeal to the Office of Rail and Road.

• (4) The provisions of regulation 5(3) to (5) of the Railways (Access to Training Services) Regulations 2006[^f00010] (appeal to the regulatory body) apply to any appeal made under this article as if reference to an appeal in those provisions included reference to an appeal under this article.

Civil liability

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• (1) Breach of a duty requirement or prohibition imposed by articles 13 iv, 15 iv, 22 to 25, 27, 34 (a) and (b), 39, 51, 52 (a) and (b) ,55A, 55B and 61 of the Regulation is, so far as it causes damage, actionable.

• (2) Subject to paragraphs (1) and (3) and to article 5 of this Order, nothing in this Order is to be construed as conferring a right of action in any civil proceedings in respect of any failure to comply with any duty requirement or prohibition imposed by the Regulation.

• (3) Paragraph (2) is without prejudice to any right to apply for judicial review which an aggrieved person may have under article 76 of the Regulation.

• (4) Paragraphs (1) and (2) are without prejudice to any right of action which exists apart from the provisions of this Order.

• (5) Any term of an agreement which purports to exclude or restrict the operation of paragraph (1), or any liability arising by virtue of that paragraph, is void.

• (6) In this article “damage” includes the death of, or injury to, any person (including any disease and any impairment of a person’s physical or mental condition).

Investigations into accidents and incidents

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Nothing in this Order or the Regulation prejudices or affects the provisions of Part 1 of the Railways and Transport Safety Act 2003[^f00011] or the Railways (Accident Investigation and Reporting) Regulations 2005[^f00012].

Power to impose charges

8

The Intergovernmental Commission may impose charges reflecting their administrative costs of processing applications for the following—

• (a) Part B certificates as required by article 39(ii) of the Regulation, including their renewal under article 50 or modification under article 52 of the Regulation, and

• (b) authorisation under article 61 of the Regulation for operating rolling stock on the Fixed Link.

Amendments to the Channel Tunnel (International Arrangements) Order 2005

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment to the Railways and Other Guided Transport Systems (Safety) Regulations 2006

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For paragraph 1 (b) (i) of Schedule 2 to the Railways and Other Guided Transport Systems (Safety) Regulations 2006[^f00014] (application for a safety certificate) substitute—

(i) a copy of a current certificate issued to the applicant by— (aa) the Office of Rail Regulation, other than a deemed safety certificate; (bb) a safety authority in another member State; (cc) a safety authority in Northern Ireland; or (dd) the safety authority for the tunnel system within the meaning of section 1(7) of the Channel Tunnel Act 1987[^f00015], under provisions giving effect to article 10(2)(a) of the Directive which relates to an equivalent railway operation; or

SCHEDULE — REGULATION OF THE INTERGOVERNMENTAL COMMISSION ON THE SAFETY OF THE CHANNEL FIXED LINK

The Intergovernmental Commission (Intergovernmental Commission">IGC), established to supervise all matters concerning the construction and operation of the Fixed Link in the name of the British and French governments and by delegation from them;

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 cross-channel Fixed Link, signed at Canterbury on 12th February 1986 (“the Treaty”), and in particular Articles 1 and 10 thereof;

Having regard to Council Directive 95/18/EC dated 19 June 1995[^f00016] on the licensing of railway undertakings, amended by Directive 2001/13/EC of the European Parliament and of the Council of 26th February 2001[^f00017] and Directive 2004/49/EC of the European Parliament and of the Council of 29th April 2004[^f00018];

Having regard to Directive 2004/49/EC of the European Parliament and the Council of 29th April 2004 on the safety of Community railways and amending Council Directive 95/18/EC on the licensing of railway undertakings as well as Directive 2001/14/EC[^f00019] on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification;

Having regard to Directive 2004/50/EC of the European Parliament and of the Council of 29th April 2004[^f00020] amending Council Directive 96/48/EC[^f00021] on the interoperability of the trans-European high-speed railway system and to Directive 2001/16/EC of the European Parliament and of the Council[^f00022] on the interoperability of the trans-European conventional railway system;

Having regard to Directive 2004/51/EC of the European Parliament and the Council of 29th April 2004[^f00023] modifying Council Directive 91/440/EEC[^f00024] on the development of the Community’s railways;

Having regard to Regulation (EC) 881/2004 of the European Parliament and of the Council of 29th April 2004[^f00025] establishing a European Railway Agency;

Having regard to Decision 884/2004/EC of the European Parliament and of the Council of 29th April 2004[^f00026] amending Decision 1692/96/EC[^f00027] on Community guidelines for the development of the trans-European transport network;

Having regard to the provisions made by the United Kingdom of Great Britain and Northern Ireland and the French Republic for the transposition of Articles 19 to 25 of Directive 2004/49/EC;

Having regard to the quadripartite Concession signed on 14th March 1986 between the Secretary of State for Transport of the United Kingdom of Great Britain and Northern Ireland and the ministre de l'urbanisme, du logement et des transports representing the French State on the one part, and France-Manche SA and the Channel Tunnel Group Ltd on the other part (the Concession)[^f00028];

Having regard to the regulation of the Intergovernmental Commission of 25th October 2005[^f00029] concerning the use of the Channel Tunnel by international groupings or railway undertakings;

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

Considering the need to ensure a unified safety regime within the boundaries of the cross-border infrastructure of the Fixed Link;

Considering that the unified safety regime takes account of the specific risks of the Fixed Link;.

Having consulted the Safety Authority established by the Treaty;

Has adopted the following regulation:

Chapter 1

Definitions

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• (i) “Accident” means an unwanted or unintended sudden event or a specific chain of such events which have harmful consequences; accidents are divided into the following categories: collisions, derailments, level-crossing accidents, accidents to persons caused by rolling stock in motion, fires and others.

• (ii) “Agency” means the European Railway Agency, that is to say, the Community agency for railway safety and interoperability established by the aforementioned Regulation (EC) No 881/2004.

• (iii) “Common safety indicators” (“CSIs”) means the common safety indicators referred to in Annex 2 to this Regulation.

• (iv) “Common safety methods” (“CSMs”) means the methods to be developed by the Agency to describe how safety levels and achievement of safety targets and compliance with other safety requirements are assessed.

• (v) “Common safety targets” (“CSTs”) means the safety levels, to be drawn up by the Agency, that must at least be reached by different parts of the rail system (such as the high speed rail system and long railway tunnels) and by the system as a whole, expressed in risk acceptance criteria.

• (vi) “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 of the Intergovernmental Commission Regulation of 25 October 2005 concerning the use of the Channel Tunnel by international groupings or railway undertakings.

• (vii) “Concession” has the meaning given in Article 1 of the Treaty.

• (viii) “Concessionaires” has the meaning given in Article 1 of the Treaty.

• (ix) “Fixed Link” means the Channel Fixed Link as defined in Article 1.2 of the Treaty.

• (x) “Incident” means any occurrence, other than accident or serious accident, associated with the operation of trains and affecting the safety of operations.

• (xi) “Infrastructure manager” means any body or undertaking that is responsible in particular for establishing and maintaining railway infrastructure, or a part thereof, as defined in Article 3 of Directive 91/440/EEC. The Concessionaires are the infrastructure manager for the Fixed Link, in accordance with the Treaty, and are responsible also for the management of infrastructure control and safety systems.

• (xii) “Intergovernmental Commission” (“Intergovernmental Commission">IGC”) means the Intergovernmental Commission, established by Article 10 of the Treaty to supervise, in the name and on behalf of the governments of the United Kingdom of Great Britain and Northern Ireland and of the French Republic, all matters concerning the construction and operation of the Fixed Link.

• (xiii) “Interoperability constituents” means any elementary component, group of components, subassembly or complete assembly of equipment incorporated or intended to be incorporated into a subsystem upon which the interoperability of the high-speed or conventional rail system depends either directly or indirectly, as defined in Directives 96/48/EC and 2001/16/EC. The concept of a “constituent” covers both tangible objects and intangible objects such as software.

• (xiv) “Investigation” means a process conducted for the purpose of accident and incident prevention which includes the gathering and analysis of information, the drawing of conclusions, including the determination of causes and, when appropriate, the making of safety recommendations.

• (xv) “Investigating bodies” means the national British and French investigating bodies, respectively:

• (a) the Rail Accident Investigation Branch (“RAIB”) established by the Railways and Transport Safety Act 2003[^f00030];

• (b) the French Office for the investigation of land transport accidents (bureau d'enquêtes sur les accidents de transport terrestre “BEA-TT”) established by law n° 2002 — 3 of 3rd January 2002 and decree n° 2004 — 85 of 26th January 2004 amended.

• (xvi) “Notified bodies” means the bodies which are responsible for assessing the conformity or suitability for use of the interoperability constituents or for appraising the EC procedure for verification of the sub-systems, as defined in Directives 96/48/EC (interoperability of the trans-European high-speed rail system) and 2001/16/EC (interoperability of the trans-European conventional rail system).