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The Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016

Type Statutory-Instrument

Publication 2016-06-21

Last updated 2024-03-04

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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(2) Where, during the preparation of the working timetable for the next timetable period, the infrastructure manager considers that an element of the railway infrastructure is likely to become congested during the period to which that working timetable relates, the infrastructure manager must declare that element of the railway infrastructure to be congested.

(3) When railway infrastructure has been declared to be congested under the provisions of this regulation the infrastructure manager must inform—

(a) existing users of that railway infrastructure;

(b) new applicants for infrastructure capacity which includes that element of the railway infrastructure which has been declared to be congested;

(d) the Secretary of State; and

(e) where any element of the railway infrastructure which has been declared to be congested is in Scotland, Scottish Ministers.

(4) Where railway infrastructure has been declared to be congested in accordance with paragraph (1) or (2), the infrastructure manager must undertake a capacity analysis of the congested infrastructure, as described in regulation 27, unless a capacity enhancement plan, as described in regulation 28, is in the process of being implemented.

(5) When an element of the railway infrastructure has been declared to be congested in accordance with paragraph (1) or (2) and either—

(a) a charge as described in paragraph 1(8) of Schedule 3 has not been levied; or

(b) the charge described in sub-paragraph (a) has been levied but has not achieved a satisfactory result,

the infrastructure manager may set priority criteria for the allocation of infrastructure capacity which includes that congested element of the railway infrastructure.

(6) The priority criteria referred to in paragraph (5) must—

(a) take account of the importance of a service to society, relative to any other service which will consequently be excluded; and

(b) ensure that freight services, and in particular international freight services, are given adequate consideration in the determination of those criteria.

(7) For the purposes of paragraph (6) an international freight service is a transport service where all wagons of the train cross the border between the United Kingdom and the European Union; the train may be joined or split and the different sections of the train may have different origins and destinations.

(8) If during the course of the working timetable period to which the declaration of congested infrastructure relates, but before the completion of the capacity analysis, the congestion is resolved, the infrastructure manager may revoke the declaration made in accordance with paragraph (1).

(9) Where paragraph (8) applies, the infrastructure manager must inform the persons described in paragraph (3) that the declaration has been revoked.

Capacity analysis

27

(1) Where required in accordance with regulation 26(4), the infrastructure manager must carry out a capacity analysis of the congested infrastructure in order to identify the reasons for the congestion and the measures which might be taken in the short and medium term to ease that congestion.

(2) In conducting the capacity analysis, and in order to identify the reasons for the congestion, the infrastructure manager must consider the—

(a) characteristics of the congested infrastructure;

(b) operating procedures used on that railway infrastructure; and

(c) characteristics of the different rail services which have been allocated capacity to operate on that railway infrastructure.

(3) In seeking to determine measures to alleviate congestion the infrastructure manager must consider, in particular—

(a) re-routing of services;

(b) re-timing of services;

(d) railway infrastructure improvements.

(4) The infrastructure manager must consult the Secretary of State and, where any part of the capacity analysis relates to railway infrastructure in Scotland, the Scottish Ministers, during the preparation of the capacity analysis.

(5) The infrastructure manager must complete the capacity analysis within six months from the date on which the railway infrastructure is declared to be congested in accordance with regulation 26(1) or (2) and make the findings of the analysis available to the parties described in regulation 26(3).

Capacity enhancement plan

28

(1) The infrastructure manager must, within six months of the publication of a capacity analysis in accordance with regulation 27, produce a capacity enhancement plan.

(2) In producing the capacity enhancement plan, the infrastructure manager must—

(a) consult such interested parties as it considers necessary, including those described in regulation 26(3); and

(b) seek the prior approval of the appropriate Minister at least one month before the deadline for completion of the plan.

(3) The capacity enhancement plan must identify the—

(a) reasons for the congestion;

(b) likely future development of traffic;

(d) options for and costs of enhancing the capacity, including the potential effect on access charges.

(4) On the basis of a cost benefit analysis of the potential measures for action identified in the capacity enhancement plan, that plan must include—

(a) details of the action to be taken to enhance the capacity of the congested infrastructure; and

(b) a timetable for the completion of the detailed measures identified in accordance with sub-paragraph (a).

(5) Subject to paragraph (6), if the utilisation of capacity on that element of the railway infrastructure which is the subject of the capacity enhancement plan attracts a scarcity charge, in accordance with paragraph 1(8) of Schedule 3, the infrastructure manager must cease the levying of such charge in situations where—

(a) paragraph (1) applies but a capacity enhancement plan for that part of the railway infrastructure which is subject to the scarcity charge has not been produced, as required by this regulation; or

(b) the infrastructure manager fails to make progress with implementation of those areas of the action plan produced in accordance with paragraph (4).

(6) Paragraph (5) does not apply where—

(a) the action plan produced in accordance with paragraph (4) cannot be implemented for reasons beyond the immediate control of the infrastructure manager; or

(b) the options identified in that action plan are not economical or financially viable,

provided that prior approval to continue to levy the scarcity charge is obtained from the Office of Rail and Road or, in the case of a rail link facility, the Secretary of State.

(7) At the end of the six month period starting with the publication of the capacity analysis in accordance with regulation 27, whether or not the approval sought under paragraph (2)(b) has been received, the infrastructure manager must provide the parties consulted under paragraph (2)(a) with a copy of the plan and the timetable for completion of the measures identified to resolve the congestion.

(8) For the purposes of this regulation the “appropriate Minister” means—

(a) where the capacity enhancement plan relates wholly to railway infrastructure in Scotland, the Scottish Ministers;

(b) where the capacity enhancement plan relates in part to railway infrastructure in Scotland, the Secretary of State and the Scottish Ministers acting jointly; and

Use of train paths

29

(1) Subject to paragraph (2), the infrastructure manager must, in particular where railway infrastructure has been declared to be congested in accordance with regulation 26, require an applicant who has, over a period of at least one month, used a train path less often than the threshold quota stipulated in the network statement, to surrender that train path.

(2) Paragraph (1) does not apply if, in the view of the infrastructure manager, the failure to use the train path in accordance with the threshold quota stipulated in the network statement arose as a result of non-economic reasons outside the control of the applicant.

(3) The infrastructure manager must in the network statement specify conditions under which previous levels of capacity utilisation will be taken into account in determining the priorities to be used in making decisions on the allocation of capacity.

Special measures to be taken in the event of disruption

30

(1) In the event of disruption to train movements caused by technical failure or accident, the infrastructure manager must take all such steps as are necessary to restore the normal operation of the network.

(2) The infrastructure manager must have in place a contingency plan listing the various bodies who are required to be informed in the event of a serious incident or serious disruption to train movements.

(3) The infrastructure manager may, in the event of an emergency and where absolutely necessary on account of a breakdown which renders a part of the railway infrastructure temporarily unusable, withdraw allocated train paths without warning and with immediate effect for such period as is necessary to repair the affected infrastructure.

(4) Subject to paragraph (5), the infrastructure manager may, if it deems it to be necessary, require railway undertakings to make available to it such resources as the infrastructure manager considers appropriate to restore the normal operation of the network as quickly as possible.

(5) Where a contract or framework agreement between a railway undertaking and the infrastructure manager incorporates conditions as to the special measures to be taken in the event of disruption, the resources required by the infrastructure manager under paragraph (4) must be in accordance with those conditions.

PART 6 — Regulation and Appeals

Regulatory body

31

(1) Section 4 of the Act has effect, to the extent relevant and so far as is consistent with these Regulations, as if the reference to the functions assigned or transferred to the Office of Rail and Road under or by virtue of Part 1 of the Act included the functions assigned to it under or by virtue of these Regulations.

(2) The Office of Rail and Road must ensure that charges for the use of railway infrastructure imposed by the infrastructure manager comply with the requirements of Part 4 and Schedule 3.

(3) Negotiations between an applicant and the infrastructure manager about the level of railway infrastructure charges are only permitted if carried out under the supervision of the Office of Rail and Road and, if such negotiations are likely to contravene the requirements of these Regulations, it is the duty of the Office of Rail and Road to intervene.

(4) The Office of Rail and Road may in particular, as part of the intervention mentioned in paragraph (3), issue such directions to the applicant or the infrastructure manager as it considers appropriate for the purpose of ensuring that no contravention arises or, to the extent that a contravention has arisen, that it ceases.

(5) Where the Office of Rail and Road, by virtue of regulation 32(4), specifies the manner and form in which any notification or appeal must be lodged in accordance with these Regulations, it must publicise this information in such manner as it considers appropriate.

(6) Without prejudice to the requirements of paragraph 18 of Schedule 1 to the Railways and Transport Safety Act 2003 , procedural arrangements made by the Office of Rail and Road under paragraph 8 of that Schedule must ensure that a person with ultimate responsibility for taking a decision under regulations 32, 33, 34 and 35 complies with the criteria listed in paragraph (7).

(7) The criteria are that such persons—

(a) must make an annual declaration of—

(i) their commitment to the impartial fulfilment of their duties under these Regulations; and

(ii) any direct or indirect interests which may be considered prejudicial to their independence and which might influence their performance of any function;

(b) must withdraw from decision making in cases which concern an undertaking with which they have had a direct or indirect connection in the period of 12 months prior to the date on which any procedure relating to a decision described in paragraph (6) commences;

(d) must have no professional position or responsibility with any regulated undertaking or entity for a period of not less than 12 months commencing at the end of their term of employment to take decisions under paragraph (6).

(8) Without prejudice to the right of any person to make an application to the court under Part 54 of the Civil Procedure Rules 1998 , it is the duty of any person to whom a direction is given under paragraph (4) to comply with and give effect to that direction.

Appeals to the regulatory body

32

(1) Subject to paragraph (3), an applicant has a right to appeal to the Office of Rail and Road if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular against decisions adopted by the infrastructure manager, an allocation body, a charging body, a service provider or, as the case may be, a railway undertaking, concerning any of the matters described in paragraph (2).

(2) Those matters are—

(a) the network statement produced in accordance with regulation 13, in its provisional and final versions;

(b) the information which, by virtue of regulation 13(4), must be included in that network statement;

(d) the charging scheme, the charging system and the Channel Tunnel charging framework;

(e) the level or structure of railway infrastructure charges, the principles of which are prescribed in Part 4 and Schedule 3, which it is, or may be, required to pay;

(f) the arrangements for access provided under Part 2 and Schedule 2; and

(g) access to and charging for services provided under Part 2 and Schedule 2.

(3) Where the matter of an appeal under paragraph (1) is one in relation to which directions may be sought from the Office of Rail and Road under section 17 or 22A of the Act , the applicant must lodge the appeal by way of an application under the relevant section.

(4) Where the matter of an appeal under paragraph (1) is one to which paragraph (3) does not apply because—

(a) the railway facility to which the appeal relates is, by virtue of section 20 of the Act , an exempt facility;

(b) the appeal relates to a rail link facility; or

(c) the subject matter of the appeal is not capable of being addressed by directions which may be sought under section 17 or 22A of the Act,

the applicant must lodge the appeal by way of an application under this regulation, in such form and manner as the Office of Rail and Road may from time to time specify.

(5) Where the matter of an appeal under paragraph (1) is one to which paragraph (3) does not apply, the Office of Rail and Road must—

(a) as appropriate, ask for relevant information and initiate a consultation with the relevant parties within one month of the date of receipt of the appeal; and

(b) within a predetermined and reasonable time, and, in any case, 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)—

(i) make a decision;

(ii) inform the relevant parties of its decision and the reasons for that decision;

(iii) where appropriate, issue a direction to the infrastructure manager, allocation body, charging body, service provider or, as the case may be, railway undertaking, to remedy the situation from which the appeal arose; and

(iv) publish the decision.

(6) Where a decision or direction under paragraph (5) 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 (7), take into account any representations made by the Secretary of State before making or issuing such a decision or direction.

(7) Where paragraph (6) 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, consult such interested parties as it considers appropriate on the representations submitted by the Secretary of State.

(8) When an appeal under paragraph (1) contests a decision under regulation 6(4) to refuse a request for access to, and the supply of, services described in paragraph 2 of Schedule 2, a decision under paragraph (5) must include a determination as to whether, in respect of the access and provision of services to which the appeal relates, a viable alternative exists.

(9) When an appeal under paragraph (1) contests a decision to refuse or restrict the provision of services in circumstances where there are conflicting requests as described in regulation 6(7), a determination under paragraph (5) must include a determination, as appropriate and in respect of the circumstances to which the appeal relates, of—

(a) whether a viable alternative as described in regulation 6(4) exists;

(b) whether it is possible to accommodate the conflicting requests on the basis of demonstrated need; and

(10) Where a decision under paragraph (5) concerns a refusal by an infrastructure manager or allocation body to allocate infrastructure capacity, or concerns an appeal against the terms of an offer of infrastructure capacity, the Office of Rail and Road must, in such a decision, either—

(a) confirm that no modification of the infrastructure manager or allocation body's decision is required; or

(b) require modification of that decision and issue directions to that effect.

(11) 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 an appeal brought under this regulation is binding on all parties affected by that decision;

(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.

Regulatory decisions concerning international passenger services

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 in the United Kingdom and a member State.

(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);

(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.

(13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Monitoring the rail services markets

34

(1) The Office of Rail and Road must monitor the competitive situation in the rail services markets.

(2) In particular it must—

(a) control the matters referred to in regulation 32(2) on its own initiative and with a view to preventing discrimination against applicants; and

(b) check whether the network statement contains discriminatory clauses or creates discretionary powers for the infrastructure manager that may be used to discriminate against applicants.

(3) The Office of Rail and Road must, where appropriate and on its own initiative, give appropriate directions to correct—

(a) discrimination against applicants;

(b) market distortion; or

(c) undesirable developments in relation to the competitive situation in the rail services markets, in particular with reference to the matters referred to in regulation 32(2).

(4) Without prejudice to the right of any person to make an application to the court under Part 54 of the Civil Procedure Rules 1998, it is the duty of any person to whom a direction is given under paragraph (3) to comply with and give effect to that direction.

(5) The Office of Rail and Road and the safety authority for the Channel Tunnel within the meaning of the Railways (Interoperability) Regulations 2011 must cooperate closely, in particular with a view jointly to develop a framework for information-sharing and cooperation aimed at preventing adverse effects on competition or safety in the rail services markets.

(6) The framework must include a mechanism for—

(a) the Office of Rail and Road to provide the safety authority referred to in paragraph (5) with recommendations on issues that may affect competition in the rail services markets; and

(b) that safety authority to provide the Office of Rail and Road with recommendations on issues which may affect safety.

(7) Without prejudice to their independence within the field of their competence, the Office of Rail and Road and the safety authority referred to in paragraph (5) must each examine any relevant recommendation which it receives under paragraph (6)(a) or (b), as the case may be, before making a relevant decision or direction and must give reasons if it deviates from the recommendation.

(8) The Office of Rail and Road must regularly, and in any case at least every two years, consult representatives of users of the rail freight and passenger transport services, to take into account their views on the rail services markets.

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Audits

35

(1) The Office of Rail and Road may carry out an audit or initiate an external audit of an infrastructure manager, service provider and, where relevant, railway undertaking to verify compliance with the accounting separation provisions laid down in regulation 9.

(2) For the purposes of paragraph (1) the power of the Office of Rail and Road under section 80 of the Act , as modified by regulation 36, to request relevant information to perform its functions includes a power to request any relevant party to provide all or part of the accounting information listed in Schedule 5 with a sufficient level of detail as is deemed necessary and proportionate.

(3) For the purposes of paragraph (2) “any relevant party” includes an infrastructure manager, service provider, railway undertaking or other entity performing or integrating different types of rail transport or infrastructure management as referred to in regulations 6 and 9(1).

(4) The Office of Rail and Road may draw conclusions from the accounts concerning state aid issues, which it must report to the Secretary of State.

Provision of information to the regulatory body

36

(1) If the Office of Rail and Road requests information in connection with its functions under these Regulations, section 80 of the Act (duty of certain persons to furnish information on request) applies as if—

(a) in subsection (1)—

(i) for “Licence holders” there were substituted “ An infrastructure manager, allocation body, charging body, applicant, service provider or any other party ”;

(ii) for “he, they or it” in both places there were substituted “ it ”; and

(iii) for “functions of the Secretary of State, the Scottish Ministers or (as the case may be) that Office under this Part, the Transport Act 2000 or the Railways Act 2005 or any other function or activity of his, theirs or its in relation to railway services.” there were substituted “ of its functions under the Railways (Access, Management and Licensing Railway Undertakings) Regulations 2016. ”;

(b) after subsection (1A) there were added—

(1B) In subsection (1) “allocation body”, “charging body”, “applicant”, “infrastructure manager” and “service provider” have the same meanings as in the Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016 .

(i) for “being not less than 28 days” there were substituted “ being not more than one calendar month ”; and

(ii) at the end of that subsection there were added:

save that, in exceptional circumstances, the Office of Rail and Road may authorise a time extension of a further two weeks for compliance with the request.

; and

(d) for “the Secretary of State, the Scottish Ministers or the Office of Rail and Road” in each place there were substituted “ the Office of Rail and Road ”.

(2) Information which may be requested under section 80 of the Act, as modified by paragraph (1), includes data which are necessary for statistical and market observation purposes.

Cooperation between regulatory bodies

37

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

Enforcement of decisions, directions and notices

38

(1) If the Office of Rail and Road is satisfied that a relevant operator has contravened, or is contravening, a relevant decision, direction or notice, it may impose on the relevant operator a penalty of such amount as is reasonable.

(2) In this regulation—

(a) “relevant decision, direction or notice” means—

(i) a decision made, or direction issued, by the Office of Rail and Road under regulation 31, 32, 33 or 34;

(ii) a direction given by the Office of Rail and Road under section 17 or 22A of the Act , where the direction relates to a matter referred to in regulation 32(2)(c) to (g) and was applied for as a result of regulation 32(3); or

(iii) a notice served by the Office of Rail and Road under section 80 of the Act, as modified by regulation 36; and

(b) “relevant operator” means—

(i) a person issued with a decision or direction under regulation 31, 32, 33 or 34;

(ii) a person to whom a direction of the kind described in sub-paragraph (a)(ii) has been given; or

(iii) a person on whom a notice is served under section 80 of the Act, as modified by regulation 36.

(3) Sections 57A(2), (3), (6) and (7), 57B(1) to (6), 57C, 57D(1), 57E and 57F of the Act (“the applicable provisions”) have effect in relation to a penalty imposed under paragraph (1) as if it had been imposed under section 57A(1) of the Act.

(4) For the purposes of paragraph (3)—

(a) references in the applicable provisions to the “relevant operator” are to be construed in accordance with this regulation;

(b) references in the applicable provisions to the “appropriate authority” are to be read as references to the Office of Rail and Road;

(d) references in section 57B(1) and (3) to (6) to “the Secretary of State, the Scottish Ministers and the Office of Rail and Road” are to be read as references to the Office of Rail and Road;

(e) references in section 57B(3) and (4) to “his, their or its” are to be read as references to “its”;

(f) in sections 57B(2) and 57C, any reference to a “relevant condition or requirement or order” has effect as if it included a reference to a relevant decision, direction or notice;

(g) section 57D(1) has effect as if for paragraphs (a) and (b) there were substituted—

of a relevant decision, direction or notice (within the meaning of regulation 38 of the Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016 ),

; and

(h) section 57F(1) has effect as if for paragraph (a) there were substituted—

(a) that it was not within the powers of regulation 38(1) of the Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016,

PART 7 — The Railway (Licensing of Railway Undertakings) Regulations 2005

Amendment of the Railway (Licensing of Railway Undertakings) Regulations 2005

39

(1) The Railway (Licensing of Railway Undertakings) Regulations 2005 are amended as follows.

(2) In regulation 2 (interpretation)—

(a) after the definition of “the 1995 Directive” insert—

“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) ;

(b) after the definition of “ORR” insert the following definition—

“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;

; and

(3) In regulation 4 (scope)—

(a) in paragraph (2)(c) omit the words “that are not covered by the scope of Council Directive 91/440/EEC dated 29th July 1991 on the development of the Community's railways”; and

(b) after paragraph (2) insert—

(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, including a cross-border 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, including a cross-border region.

(4) In regulation 5 (prohibition of unlicensed provision of services), paragraph (4), after the words “the 1995 Directive” add “ or the 2012 Directive ”.

(5) In regulation 6 (appointment of licensing authority and grant of European licences)—

(a) after paragraph (4) insert—

(4A) In the exercise of its functions under these Regulations, the ORR shall comply with Commission Implementing Regulation (EU) 2015/171 of 4th February 2015 on certain aspects of the procedure of licensing railway undertakings .

; and

(b) in paragraph (11) after the words “The ORR shall” insert “ without delay ”.

(6) In regulation 8 (monitoring, suspension and revocation of European licences)—

(a) for paragraph (2) substitute—

(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.

(b) in paragraph (5) for the words “the 1995 Directive”, where they first appear, substitute “ the 2012 Directive ” and for the words after “that licensing authority;” to the end substitute—

and in this paragraph, the expression “European licence” means a licence granted pursuant to any action taken by an EEA State for the purpose of implementing the 1995 Directive or the 2012 Directive and a “licensing authority” means the body responsible for granting licences within an EEA State.

; and

(7) In regulation 9 (prohibition on operating trains without a statement of national regulatory provisions), paragraph 5, after the words “the 1995 Directive” add “ or the 2012 Directive ”.

(8) In regulation 17 (general duties of the Rail Passengers' Council), paragraph 2, after the words “the 1995 Directive” add “ or the 2012 Directive ”.

(9) In regulation 19 (duties of the London Transport Users' Committee), paragraph 2, after the words “the 1995 Directive” add “ or the 2012 Directive ”.

(10) After regulation 20 insert—

(21) (1) The Secretary of State must from time to time— (a) carry out a review of these Regulations; (b) set out the conclusions of the review in a report; and (c) publish the report. (2) In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how the 2012 Directive (which is implemented in part by means of these Regulations) is implemented in other EEA States. (3) The report must in particular— (a) set out the objectives intended to be achieved by the regulatory system established by these Regulations; (b) assess the extent to which those objectives are achieved; and (c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation. (4) The first report under this regulation must be published before the end of the period of five years beginning with the day on which the Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016 come into force. (5) Reports under this regulation are afterwards to be published at intervals not exceeding five years.

(11) In Schedule 2—

(a) At the end of paragraph 7(d) omit “and”;

(b) after paragraph 7(e) insert—

; and (f) taxes and social security payments.

(d) after paragraph 11(1) insert—

(1A) In determining whether adequate insurance cover is maintained, the ORR may take into account the specificities and risk-profile of different types of services, in particular of railway operations for cultural or heritage purposes.

PART 8 — Miscellaneous

Statutory authority to run trains

40

Any applicant granted access rights under these Regulations is, if and to the extent that it would not, apart from this regulation, have statutory authority to run trains over any track in exercise of such rights, taken to have statutory authority to do so.

Civil proceedings

41

(1) Any obligation which a person owes under or arising from—

(a) regulation 5;

(b) regulation 6;

(d) regulation 9;

(e) regulation 10;

(f) paragraphs (1) to (5) of regulation 12;

(g) paragraphs (2)(a), (5)(b), (9), and (13) of regulation 14;

(h) paragraph (5) of regulation 15;

(i) paragraph (4), (14) and (16)(c) of regulation 19;

(j) paragraphs (4), (5), and (6) of regulation 21;

(k) paragraph (8) of regulation 31;

(l) paragraph (11) of regulation 32;

(m) paragraph (12) of regulation 33; or

(n) paragraph (4) of regulation 34,

is a duty owed to any person who may be affected by a breach of that obligation and is 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, railway undertaking, service provider, allocation body, charging body or applicant under paragraph (1), it is a defence for it to prove that it took all reasonable steps and exercised all due diligence to avoid the breach of 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 is enforceable by civil proceedings by the Office of Rail and Road for an injunction or for interdict or any other relief.

Making of false statements etc.

42

(1) If any person, in giving any information or making any application under or for the purposes of any provision of these Regulations, 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, that person is guilty of an offence and liable—

(a) on summary conviction in England and Wales, to a fine;

(b) on summary conviction in Scotland, to a fine not exceeding the statutory maximum;

(2) The consent of the Secretary of State or the Director of Public Prosecutions is required before proceedings are instituted in England or Wales in respect of an offence under this regulation.

Offences by bodies corporate and Scottish partnerships

43

(1) Where an offence under these Regulations 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, that person as well as the body corporate is guilty of that offence and liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with that member's functions of management as if the member were a director of the body corporate.

(3) Where a Scottish partnership is guilty of an offence under these Regulations 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, or any person who was purporting to act in any such capacity, that partner as well as the partnership is guilty of that offence and liable to be proceeded against and punished accordingly.

Restriction on disclosure of information

44

Section 145 of the Act (general restrictions on disclosure of information) has effect in relation to information which—

(a) relates to the affairs of any individual or to any particular business; and

(b) has been obtained—

(i) under or by virtue of any provision of these Regulations; or

(ii) by the regulatory bodies, within the meaning of the IGC regulation, in pursuance of functions conferred by Article 3 of that regulation,

as it has effect in relation to such information obtained under or by virtue of any of the provisions of the Act.

Breaches of duty outside the United Kingdom

45

(1) For the purpose of determining whether a breach of the duty imposed by regulation 9 has occurred, it is immaterial that the relevant acts or omissions occurred outside the United Kingdom if, when they occurred, the person—

(a) was a United Kingdom national; or

(b) was a body incorporated under the law of any part of the United Kingdom; or

(c) was a person (other than a United Kingdom national or such a body) maintaining a place of business in the United Kingdom.

(2) In this regulation “United Kingdom national” means an individual who is—

(a) a British citizen, a British Dependent Territories citizen, a British National (Overseas) or a British Overseas citizen;

(b) a person who under the British Nationality Act 1981 is a British subject; or

Review

46

(1) The Secretary of State must from time to time—

(a) carry out a review of these Regulations;

(b) set out the conclusions of the review in a report; and

(2) In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how the Directive (which is implemented in part by these Regulations) is implemented in other EEA States.

(3) The report must in particular—

(a) set out the objectives intended to be achieved by the regulatory system established by these Regulations;

(b) assess the extent to which those objectives are achieved; and

(c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

(4) The first report under this regulation must be published before the end of the period of five years beginning with the day on which these Regulations come into force.

(5) Reports under this regulation are afterwards to be published at intervals not exceeding five years.

SCHEDULE 1 — Amendments

PART 1 — Amendments to Primary Legislation

The Railway Fires Act 1905

1

In section 4 of the Railway Fires Act 1905 (definitions and application), for paragraph (c) of the definition of “railway company” substitute—

(c) who holds a European licence granted pursuant to— (i) a provision contained in any instrument made for the purpose of implementing Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings or Chapter III of Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast) , or (ii) any action taken by an EEA State for that purpose.

The Insolvency Act 1986

2

In Schedule 2A to the Insolvency Act 1986 (exceptions to prohibition on appointment of administrative receiver: supplementary provisions), for paragraph 10(1)(n) substitute—

(n) in reliance on a European licence granted pursuant to— (i) a provision contained in any instrument made for the purpose of implementing Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings or Chapter III of Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast), or (ii) any action taken by an EEA State for that purpose.

The Railways Act 1993

3

(1) The Railways Act 1993 is amended as follows.

(2) In section 6(2) (prohibition on unauthorised operators of railway assets), for the definition of “European licence” substitute—

“European licence” means a licence granted pursuant to— (a) a provision contained in any instrument made for the purpose of implementing— (i) Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings, or (ii) Chapter III of Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast), or (b) any action taken by an EEA State for that purpose;

(3) For section 80(1A) (duty of certain persons to furnish information to the Secretary of State, the Scottish Ministers or the Office of Rail and Road on request) for the words from “for the purpose of implementing” to the end substitute—

for the purpose of implementing— (a) Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings, or (b) Chapter III of Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast).

(4) In section 145(2) (general restrictions on disclosure of information)—

(a) in paragraph (ga) , for the words from “for the purpose of implementing” to the end substitute—

for the purpose of implementing— (i) Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings, or (ii) Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast);

; and

(b) omit paragraph (gb) .

The Greater London Authority Act 1999

4

In section 235(2)(b) of the Greater London Authority Act 1999 (restrictions on disclosure of information), for the words from “implementing” to the end substitute “ implementing Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast); ”.

The Railways and Transport Safety Act 2003

5

In section 17 of the Railways and Transport Safety Act 2003 (extent)—

(a) omit “only”, and

(b) after paragraph (b) insert—

, and (c) Northern Ireland.

The Civil Contingencies Act 2004

6

(1) Schedule 1 to the Civil Contingencies Act 2004 is amended as follows.

(2) For paragraph 24(1) substitute—

(1) A person who provides services in connection with railways in Great Britain and who holds a European licence granted pursuant to— (a) a provision contained in any instrument made for the purpose of implementing— (i) Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings, or (ii) Chapter III of Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast), or (b) any action taken by an EEA State for that purpose.

(3) For paragraph 35(1) substitute—

(1) A person who provides services in connection with railways, in so far as such services are provided in Scotland, and who holds a European licence granted pursuant to— (a) a provision contained in any instrument made for the purpose of implementing— (i) Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings, or (ii) Chapter III of Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast), or (b) any action taken by an EEA State for that purpose.

PART 2 — Amendments to Secondary Legislation

The Town and Country Planning (Control of Advertisements) Regulations 1992

7

In regulation 2(1) (interpretation) of the Town and Country Planning (Control of Advertisements) Regulations 1992 , in the definition of “statutory undertaker” for the words from “Council Directive” to “of the Council” substitute “ Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings or Chapter III of Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast) ”.

The London Underground (East London Line Extension) (No. 2) Order 2001

8

In Schedule 11 (protection for Railtrack) to the London Underground (East London Line Extension) (No. 2) Order 2001 , in the definition of “train operator” in paragraph 1(2) for the words from “Council Directive” to the end substitute “ Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings or Chapter III of Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast). ”.

The Docklands Light Railway (Silvertown and London City Airport Extension) Order 2002

9

In Part 1 of Schedule 11 (for protection of railway undertakers) to the Docklands Light Railway (Silvertown and London City Airport Extension) Order 2002 , in the definition of “train operator” in paragraph 13(6) for the words from “Council Directive” to the end substitute “ Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings or Chapter III of Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast). ”.

The Docklands Light Railway (Woolwich Arsenal Extension) Order 2004

10

In Schedule 13 (for protection of railway interests) to the Docklands Light Railway (Woolwich Arsenal Extension) Order 2004 , in the definition of “train operator” in paragraph 15(6) for the words from “Council Directive” to the end substitute “ Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings or Chapter III of Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast). ”.

The British Transport Police (Police Services Agreement) Order 2004

11

In article 2(1)(b) (requirement to enter into a police services agreement) of the British Transport Police (Police Services Agreement) Order 2004 for the words from “Council Directive” to “of the Council” substitute “ Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings or Chapter III of Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast) ”.

The Central Rating List (Wales) Regulations 2005

12

In regulation 7(3) (railway hereditaments) of the Central Rating List (Wales) Regulations 2005 , in the definition of “ “licence exempt operator” and “licence holder”” for the words from “Council Directive” to “of the Council” substitute “ Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings or Chapter III of Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast) ”.

The Central Rating List (England) Regulations 2005

13

In regulation 6(4) (railway hereditaments) of the Central Rating List (England) Regulations 2005 in the definition of “ “licence exempt operator” and “licence holder”” for the words from “Council Directive” to the end substitute “ Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings or Chapter III of Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast); ”.

The Railways (Interoperability) Regulations 2011

14

In regulation 36(10)(b)(i) (national vehicle register) of the Railways (Interoperability) Regulations 2011 , for the words from “article 30” to the end substitute “ article 55 of Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast); ”.

The Channel Tunnel (International Arrangements) (Charging Framework and Transfer of Economic Regulation Functions) Order 2015

15

(1) The Channel Tunnel (International Arrangements) (Charging Framework and Transfer of Economic Regulation Functions) Order 2015 is amended as follows.

(2) In regulation 2 (interpretation) for the definitions of “the 2005 Regulations” and “the 2015 Regulations” substitute—

“the 2016 Regulations” means the Railway (Access, Management and Licensing of Railway Undertakings) Regulations 2016 ;

(3) In regulation 5(2) for the words “the 2005 Regulations, as amended by the 2015 Regulations,”, substitute “ the 2016 Regulations ”.

(4) In regulation 5(2)(a) and (2)(b) for the words “the 2005 Regulations as so amended,”, in both places, substitute “ the 2016 Regulations ”.

SCHEDULE 2 — Services to be supplied to railway undertakings

1

The minimum access package referred to in regulation 6(1) must comprise—

(a) handling of requests for infrastructure capacity; and

(b) the right to utilise such capacity as is granted and, in particular—

(i) such railway infrastructure including track, points and junctions as are necessary to utilise that capacity;

(ii) electrical supply equipment for traction current, where available and as is necessary to utilise that capacity;

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

(iv) all other information as is necessary to implement or to operate the service for which capacity has been granted.

2

Access, including track access to services facilities and the supply of services referred to in regulations 5, 6 and 10 must comprise, where they exist—

(a) refuelling facilities, and supply of fuel in these facilities, charges for which must be shown on the invoices separately;

(b) passenger stations, including buildings and other facilities such as travel information display and a suitable location for ticketing services;

(d) marshalling yards;

(e) train formation facilities including shunting facilities;

(f) storage sidings specifically dedicated to the temporary parking of railway vehicles between two assignments;

(g) maintenance facilities, with the exception of heavy maintenance facilities dedicated to high-speed trains or to other types of rolling stock requiring specific facilities;

(h) other technical facilities, including cleaning and washing facilities;

(i) maritime and inland port facilities which are linked to rail activities; and

(j) relief facilities.

3

The additional services referred to in regulation 6(11) may comprise—

(a) traction current, charges for which must be shown on the invoices separately from charges for using the electrical supply equipment, without prejudice to the application of Directive 2009/72/EC of the European Parliament and of the Council of 13th July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC ;

(b) pre-heating of passenger trains;

(i) control of the transport of dangerous goods; and

(ii) assistance in running abnormal trains.

4

The ancillary services referred to in regulation 6(12) may comprise—

(a) access to the telecommunication network;

(b) the provision of supplementary information;

(d) ticketing services in passenger stations; and

(e) heavy maintenance services supplied in maintenance facilities dedicated to high-speed trains or to other types of rolling stock requiring specific facilities.

SCHEDULE 3 — Access charging

Principles of access charging

1

(1) The infrastructure manager must ensure that the application of the charging scheme—

(a) complies with the rules set out in the network statement produced in accordance with regulation 13; and

(b) results in equivalent and non-discriminatory charges for different railway undertakings that perform services of an equivalent nature in a similar part of the market.

(2) The calculation of the charge may in particular take into account the mileage, composition of the train and any specific requirements in terms of such factors as speed, axle load and the degree or period of utilisation of the railway infrastructure.

(3) Except where specific arrangements are made in accordance with paragraph 3, the infrastructure manager must ensure that the charging system in use is based on the same principles over the whole of the network.

(4) Without prejudice to sub-paragraph (8) the charges for the minimum access package and track access to service facilities referred to in paragraphs 1 and 2 of Schedule 2 must be set at the cost that is directly incurred as a result of operating the train service.

(5) From 2nd August 2019 or earlier, the infrastructure manager must , subject to sub-paragraphs (5A) and 5(B), calculate the cost under sub-paragraph (4) or, as the case may be, under the first paragraph of Article 4 of the Channel Tunnel charging framework, in accordance with Commission Implementing Regulation (EU) 2015/909 of 12th June 2015 on the modalities for the calculation of the cost that is directly incurred as a result of operating the train service .

(5A) For the purposes of the calculation of direct costs on a network-wide basis, referred to in paragraph 1 of Article 3 of the Commission Implementing Regulation referred to in sub-paragraph (5), the infrastructure manager may apply the costs of efficient service provision.

(5B) For the purposes of calculating the direct unit costs referred to in paragraph 1 of Article 5 of the Commission Implementing Regulation referred to in sub-paragraph (5), the infrastructure manager may modulate the average direct unit costs to take into account the different levels of wear and tear caused to the infrastructure according to one or more of the parameters listed in paragraph 2 of Article 5 of that Commission Implementing Regulation.

(6) The charge imposed for track access within service facilities referred to in paragraph 2 of Schedule 2 and the supply of services in such service facilities must not exceed the cost of providing it, plus a reasonable profit.

(7) If the additional or ancillary services referred to in paragraphs 3 and 4 of Schedule 2 are offered by only one supplier the charge imposed for the supply of those services must not exceed the cost of providing the service, plus a reasonable profit.

(8) The infrastructure charge may include a charge to reflect the scarcity of capacity of the identifiable segment of the infrastructure during periods of congestion.

(9) The charges referred to in sub-paragraphs (4) and (8) may be averaged over a reasonable spread of train services and times, but the relative magnitudes of the railway infrastructure charges must be related to the costs attributable to the services.

Exceptions to the charging principles

2

(1) In order to obtain full recovery of the costs incurred the infrastructure manager, with the approval of the Office of Rail and Road or, in relation to a rail link facility, the Secretary of State, may levy mark-ups on the basis of efficient, transparent and non-discriminatory principles, whilst guaranteeing optimum competitiveness, in particular in respect of rail market segments.

(2) For the purposes of this paragraph—

(a) approval given by the Secretary of State in relation to a rail link facility must be given through the development agreement; and

(b) approval given by the Office of Rail and Road must—

(i) in relation to railway infrastructure subject to the access charges review, be given as part of that review; and

(ii) in relation to any other railway infrastructure, be given in such form or manner as the Office may require.

(3) The effect of sub-paragraphs (1) and (2) must not be to exclude the use of infrastructure by market segments which can pay at least the cost that is directly incurred as a result of operating the railway service, plus a rate of return which the market can bear.

(4) The charging system must respect the productivity increases achieved by applicants.

(5) Before approving the levy of a mark-up under sub-paragraph (1) the Office of Rail and Road or, as the case may be, the Secretary of State, must ensure that the infrastructure manager evaluates the relevance of a mark-up for the specific market segments, considering at least the pairs listed in sub-paragraph (10) and retaining the relevant ones.

(6) The list of market segments to be considered by the infrastructure manager under sub-paragraph (5) must contain at least the three following segments: freight services, passenger services within the framework of a public service contract and other passenger services.

(7) In addition to the market segments considered under sub-paragraph (5), the infrastructure manager may consider further market segments according to commodity or passengers transported.

(8) Market segments in which railway undertakings are not currently operating but in which they may provide services during the period of validity of the charging system must also be defined; the infrastructure manager must not include a mark-up in the charging system for those market segments.

(9) The list of market segments must be published in the network statement and reviewed at least every five years; the Office of Rail and Road must control that list in accordance with paragraph (2) of regulation 31.

(10) The pairs referred to in sub-paragraph (5) are—

(a) passenger versus freight services;

(b) trains carrying dangerous goods versus other freight trains;

(d) combined transport versus direct trains;

(e) urban or regional versus interurban passenger services;

(f) block trains versus single wagon load trains; and

(g) regular versus occasional train services.

3

(1) Subject to sub-paragraph (2), for specific investment projects completed—

(a) since 1988; or

(b) following the coming into force of these Regulations,

the infrastructure manager may set or continue to set higher charges on the basis of the long-term costs of the project.

(2) For sub-paragraph (1) to apply—

(a) the project must increase efficiency or cost-effectiveness; and

(b) the project must be one that could not otherwise have been undertaken without the prospect of such higher charges.

(3) A charging arrangement to which sub-paragraph (1) applies may incorporate agreements on the sharing of the risk associated with new investments.

4

(1) An infrastructure manager's average and marginal charges for equivalent uses of the railway infrastructure must be comparable, and comparable services in the same market segment must be subject to the same charges.

(2) The network statement produced by the infrastructure manager in accordance with regulation 13 must demonstrate that the charging system meets the requirements in sub-paragraph (1) in so far as this can be done without the disclosure of commercially confidential information.

5

If an infrastructure manager intends to modify the essential elements of the charging system referred to in paragraph 2 that infrastructure manager must make such modifications public at least three months in advance of the deadline for the publication of the network statement in accordance with regulation 13(9).

Discounts

6

(1) ... Notwithstanding paragraph 1(4) and (5) of this Schedule, any discount on the charges levied on a user of railway infrastructure by the infrastructure manager, for any service, must comply with the principles set out in this paragraph.

(2) Except where sub-paragraph (3) applies, discounts must be limited to the actual saving of the administrative cost to the infrastructure manager and, in determining the level of discount to be applied, no account may be taken of cost savings already incorporated in the charge levied.

(3) The infrastructure manager may introduce schemes available to all users of the railway infrastructure, with reference to specified traffic flows, granting time limited discounts to encourage the development of new rail services, or discounts encouraging the use of considerably under-utilised lines.

(4) The discounts available must be in accordance with the access charges review, where it applies, or, in the case of a rail link facility, the development agreement.

(5) Discounts may relate only to charges levied for a specified railway infrastructure section.

(6) Similar discount schemes must be applied to similar services.

(7) Discount schemes must be applied in a non-discriminatory manner to any railway undertaking.

Performance Schemes

7

(1) The basic principles referred to in regulation 16(3) are as follows.

(2) In order to achieve an agreed level of performance and not to endanger the economic viability of a service, the infrastructure manager must agree with applicants the main parameters of the performance scheme, in particular the value of delays, the thresholds for payments due under the performance scheme relative both to individual train runs and to all train runs of a railway undertaking in a given period of time.

(3) The infrastructure manager must communicate to the railway undertakings the working timetable, on the basis of which delays will be calculated, at least five days before the train run, except that the infrastructure manager may apply a shorter notice period in case of force majeure or late alterations of the working timetable.

(4) All delays must be attributable to one of the following delay classes and sub-classes—

(a) operation/planning management attributable to the infrastructure manager—

(i) timetable compilation;

(ii) formation of train;

(iii) mistakes in operations procedure;

(iv) wrong application of priority rules;

(v) staff; or

(vi) other causes;

(b) railway infrastructure installations attributable to the infrastructure manager—

(i) signalling installations;

(ii) signalling installations at level crossings;

(iii) telecommunications installations;

(iv) power supply equipment;

(v) track;

(vi) structures;

(vii) staff; or

(viii) other causes;

(i) planned construction work;

(ii) irregularities in execution of construction work;

(iii) speed restriction due to defective track; or

(iv) other causes;

(d) causes attributable to other infrastructure managers—

(i) caused by previous infrastructure manager; or

(ii) caused by next infrastructure manager;

(e) commercial causes attributable to the railway undertaking—

(i) exceeding the stop time;

(ii) request of the railway undertaking;

(iii) loading operations;

(iv) loading irregularities;

(v) commercial preparation of train;

(vi) staff; or

(vii) other causes;

(f) rolling stock attributable to the railway undertaking—

(i) roster planning/re-rostering;

(ii) formation of train by railway undertaking;

(iii) problems affecting coaches (passenger transport);

(iv) problems affecting wagons (freight transport);

(v) problems affecting cars, locomotives and rail cars;

(vi) staff; or

(vii) other causes;

(g) causes attributable to other railway undertakings—

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