The Railways (Access, Management and Licensing of Railway Undertakings) (Amendments etc.) (EU Exit) Regulations 2019

• Citation: S.I. 2019/518
• Sections: 89

Section 1 Citation, extent and commencement

(1) These Regulations may be cited as the Railways (Access, Management and Licensing of Railway Undertakings) (Amendments etc.) (EU Exit) Regulations 2019.

(2) Parts 2 and 5 of, and the Schedule to, these Regulations do not extend to Northern Ireland.

(3) These Regulations come into force as follows—

(a) regulations 9(a), 13(b) and (c) and 21(b) come into force 21 days after having been laid or on exit day, whichever is the earlier date;

(b) the remaining provisions come into force on exit day.

Section 2 Amendment of the Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016

The Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016 are amended as set out in regulations 3 to 24.

Section 3

In regulation 3 (interpretation)—

(a) for the definition of “cross-border agreement” substitute “ “ cross-border agreement ” means any agreement between the United Kingdom and any other country intended to facilitate the provision of cross-border rail services ” ;

(b) in the definition of “international passenger service” for “at least one border of a Member State” substitute “ the border between the United Kingdom and a member State ” and for “in different Member States substitute “ in the United Kingdom and a member State ” ;

(c) after the definition of “mine” insert—

“ national authority ” means the Secretary of State, the Scottish Ministers or the Welsh Ministers;

(d) in the definition of “railway undertaking” for “Directive” substitute “ Railway (Licensing of Railway Undertakings) Regulations 2005 ” ;

(e) omit the definition of “the Treaty”.

Section 4

In regulation 4 (scope), in paragraph (2)(b), for “the railway undertakings established or to be established in an EEA State” substitute “ railway undertakings ” .

Section 5

In regulation 5 (access rights)—

(a) in paragraph (4) for “stations located in the same Member State” substitute “ where both stations are located in the United Kingdom ” ;

(b) in paragraph (6) omit “which are in accordance with the law of the European Union”.

Section 6

In regulation 7 (cross-border agreements), omit paragraphs 2 to 4.

Section 7

In regulation 8 (management independence), in paragraph (1), for “Member State” substitute “ national authority ” .

Section 8

In regulation 11 (indicative railway infrastructure strategy) omit sub-paragraphs 1(b) and 2(b).

Section 9

In regulation 13 (network statement)—

(a) in paragraph (4), after subparagraph (i), insert—

(ia) where an infrastructure manager does not propose framework agreements and does not have such agreements in operation, a statement to that effect;

(b) in paragraph (5), for the words from “Article 35” to the end of the paragraph, substitute “ regulation 35 of the Railways (Interoperability) Regulations 2011 ” ;

(c) in paragraph (12), after “cooperation with”, insert “ other ” and omit “from other Member States”.

Section 10

In regulation 15 (infrastructure costs and accounts), in paragraph (6), for “Annex V of the Directive”, substitute “ Schedule 4A ” .

Section 11

In regulation 18 (co-operation in relation to charging systems on more than one network)—

(a) in paragraph (1), for “of the rail system within the European Union” substitute “ , including train services which cross between a network in the United Kingdom and a network in the European Union ” ;

(b) in paragraph (3) for “of the rail system within the European Union” substitute “ , including traffic crossing between a network in the United Kingdom and a network in the European Union ” .

Section 12

In regulation 20 (co-operation in the allocation of infrastructure capacity crossing more than one network)—

(a) in paragraph (1) for “of the rail system within the European Union” substitute “ , including a train path which crosses between a network in the United Kingdom and a network in the European Union ” ;

(b) after paragraph (2) insert—

(2A) Infrastructure managers required to cooperate in the allocation of infrastructure capacity crossing more than one network by paragraph (2)(a) must provide, without delay, all the information requested by the Office of Rail and Road which is necessary for the purpose of handling an appeal or an own initiative investigation on issues of access or charging relating to an international train path.

(c) in paragraph (5), for “European Union law on rail freight oriented networks” substitute “ Regulation (EU) No 913/2010 of the European Parliament and of the Council of 22 September 2010 concerning a European rail network for competitive freight ” ;

(d) in paragraph (6) for “European Union” substitute “ United Kingdom ” ;

(e) omit paragraph (7);

(f) in paragraph (8) for “under Part 6” substitute “ under paragraph 12 and Part 6 ” ;

(g) after paragraph (11) insert—

(12) The Office of Rail and Road must review decisions and practices of infrastructure managers required to co-operate over train services which cross more than one network under this regulation, that implement provisions in these Regulations or which otherwise facilitate international rail transport.

Section 13

In regulation 21 (framework agreements)—

(a) in paragraph (1) omit “and without prejudice to articles 101, 102 and 106 of the Treaty”;

(b) in paragraph (17), at the beginning, insert “ Subject to paragraphs 18 to 21, ” ;

(c) after paragraph (17) insert—

(18) Where prior approval of framework agreements by the Office of Rail and Road in accordance with section 18 of the Railways Act 1993 is required, Articles 8(2), 9(3) to (6) and 10 of the Commission Implementing Regulation referred to paragraph (17) do not apply.

(19) If an infrastructure manager does not propose framework agreements and does not have such agreements in operation, Articles 1 to 11 and Article 13 of the Commission Implementing Regulation referred to paragraph (17) do not apply to its network.

(20) Subject to paragraph (21), for framework agreements concluded before 28th April 2016, Articles 6(2), 7 to 11 and 13 of the Commission Implementing Regulation referred to paragraph (17) do not apply until 28th April 2021.

(21) Paragraph (20) does not apply to amendments to framework agreements agreed after 28th April 2016 which would involve an increase of the allocated framework capacity or an extension of the duration of the framework agreement.

Section 14

In regulation 25, (declaration of specialised infrastructure), in paragraph (2), omit “without prejudice to articles 101, 102 and 106 of the Treaty,”.

Section 15

In regulation 26 (congested infrastructure), in paragraph (7), for “at least one border of a Member State” substitute “ the border between the United Kingdom and the European Union ” .

Section 16

In regulation 31 (regulatory body), in paragraph (1) for the words “and consistent with the Directive” substitute “ and so far as is consistent with these Regulations ” .

Section 17

In regulation 33 (regulatory decisions concerning international passenger services), in paragraph (1), for “in different Member States” substitute “ in the United Kingdom and a member State ” .

Section 18

In regulation 34 (monitoring the rail services markets) omit paragraphs (9) and (10).

Section 19

In regulation 36 (provision of information to the regulatory body), in paragraph (1)(a)(iii) for “subordinate legislation made for the purposes of implementing Directive 2012/34/(EU) of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast)” substitute “ the Railways (Access, Management and Licensing Railway Undertakings) Regulations 2016 ” .

Section 20

Omit regulation 37 (cooperation between regulatory bodies).

Section 21

In Schedule 3 (access charging)—

(a) in paragraph 1, in sub-paragraph (5), after “the infrastructure manager must” insert “ , subject to sub-paragraphs (5A) and 5(B), ” ;

(b) after sub-paragraph (5) insert—

(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.

(c) in paragraph 6, in sub-paragraph (1), omit “Subject to the provisions of articles 101, 102, 106 and 107 of the Treaty, and”.

Section 22

In Schedule 4 (timetable for the allocation process), in paragraph 2, in the last sentence, for “must” substitute “ may ” .

Section 23

After Schedule 4, insert new Schedule 4A, as set out in the Schedule to these Regulations.

Section 24

Schedule 6 is amended as follows—

(a) in paragraph 2 (interpretation) in sub-paragraph (m), in the definition of “vertically integrated undertaking”, for “Member State” substitute “ national authority ” ;

(b) in paragraph 7, omit inserted regulation 13B (European Network of Infrastructure Managers) and the heading to that inserted regulation;

(c) omit paragraph 15 (cooperation between regulatory bodies).

Section 25 Revocation of retained EU law

The following retained EU law is revoked—

(a) Commission Implementing Regulation (EU) 2015/1100 of 7 July 2015 on the reporting obligations of Member States in the framework of rail market monitoring;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) Commission Delegated Decision (EU) 2017/2075 of 4 September 2017 replacing Annex VII to Directive 2012/34/EU of the European Parliament and of the Council establishing a single European railway area.

Section 26 Commission Implementing Regulation (EU) No 869/2014 of 11 August 2014 on new rail passenger services

Commission Implementing Regulation (EU) No 869/2014 of 11 August 2014 on new rail passenger services is amended as set out in regulations 27 to 43.

Section 27

Save where these Regulations provide otherwise, for “regulatory body”, in each instance where it occurs, substitute “ Office of Rail and Road ” .

Section 28

In Article 1(a) for “different Member States” substitute “ in the United Kingdom and a Member State ” .

Section 29

In Article 2 (definitions)—

(a) in the definition of ‘principal purpose test’ for the first instance of the word “a”, substitute “ the ” ;

(b) in the definition of ‘economic equilibrium test’, for the first instance of the word “a” substitute “ the ” and omit the words from “, only applicable in Member States” to “one or more public service contracts,”;

(c) after the definition of ‘net financial effect’ insert—

(7) ‘2016 GB Regulations’ means the Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016.

(8) ‘2016 NI Regulations’ means the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2016 .

Section 30

In Article 3 (notification of a planned new international rail passenger service)—

(a) in paragraph 1, for “regulatory bodies concerned” substitute “ Office of Road and Rail ” ;

(b) in the opening words of paragraph 2 for “Regulatory Bodies”, substitute “ The Office of Rail and Road ” and for “their” substitute “ its ” ;

(c) in paragraph 2, at point (g) for “different” substitute “ the United Kingdom and one or more ” ;

(d) in paragraph 5, for “in national law” substitute “ under any enactment or rule of law ” .

Section 31

In Article 4 (time frame to request a principal purpose test or an economic equilibrium test), in paragraph 2, for “different” substitute “ the United Kingdom and one or more ” .

Section 32

In Article 6 (information to be provided in the request for a principal purpose test)—

(a) in paragraph 1, at point (d), for “different” substitute “ the United Kingdom and one or more ” ;

(b) in paragraph 3, for “Regulatory bodies” substitute “ The Office of Road and Rail ” and for “their websites” substitute “ its website ” .

Section 33

In Article 7 (procedure for the principal purpose test), in paragraph 2, for “Article 56(8) of Directive 2012/34/EU” substitute “ section 80 of the Railways Act 1993 , as modified by regulation 36(1) of the 2016 GB Regulations or, as the case may be, regulation 36(1) of the 2016 NI Regulations ” .

Section 34

In Article 8 (assessment criteria for the principle purpose test)—

(a) in paragraph 2, at point (a), for “Member State where the regulatory body is established” substitute “ United Kingdom ” ;

(b) in paragraph 2, at point (b), for “different” substitute “ the United Kingdom and one or more ” .

Section 35

In Article 9 (result of the principal purpose test)—

(a) in paragraph 1(a) for “different” substitute “ the United Kingdom and one or more ” ;

(b) in paragraph 1(b) for “Member State where the regulatory body is located” substitute “ United Kingdom ” ;

(c) in paragraph 3, for the final sentence substitute—

The applicant shall then apply for access to railway infrastructure within the framework and specific capacity allocation rules established under regulation 19(1) and (3) of the 2016 GB Regulations or, as the case may be, regulation 19(1) and (2) of the 2016 NI Regulations for the allocation of capacity for services between stations located within the United Kingdom.

Section 36

In Article 10 (entities having the right to request an economic equilibrium test)—

(a) in the opening words, for “a Member State concerned by the proposed new international rail service” substitute “ the United Kingdom ” ;

(b) in point (b) for “under Article 11 of Directive 2012/34/EU” substitute “ along the route of the passenger service notified under regulation 19(7) of the 2016 GB Regulations or, as the case may be, regulation 19(7) of the 2016 NI Regulations ” .

Section 37

In article 11 (information requirements for the economic equilibrium test)—

(a) in paragraph 2, at point (d), for “Chapter IV, Section 3 of Directive 2012/34/EU” substitute “ Part 5 of the 2016 GB Regulations or, as the case may be, Part 5 of the 2016 NI Regulations ” ;

(b) in paragraph 3, for “in national law” substitute “ under any enactment or rule of law ” .

Section 38

In Article 12 (procedure for the economic equilibrium test), paragraph 2, for “Article 56(8) of Directive 2012/34/EU” substitute “ section 80 of the Railways Act 1993, as modified by regulation 36(1) of the 2016 GB Regulations or, as the case may be, regulation 36(1) of the 2016 NI Regulations ” .

Section 39

In Article 15 (result of the economic equilibrium test), in paragraph 1, for “Article 11(1) of Directive 2012/34/EU” substitute “ regulation 33 of the 2016 GB Regulations or, as the case may be, regulation 33 of the 2016 NI Regulations ” .

Section 40

In Article 16 (reconsideration of a decision resulting from the economic equilibrium test), in paragraph 1, for “Article 11(3) of Directive 2012/34/EU” substitute “ regulation 33(4) of the 2016 GB Regulations or, as the case may be, regulation 33(4) of the 2016 NI Regulations ” .

Section 41

In Article 17 (cooperation of the regulatory body with other regulatory bodies competent for the proposed new service)—

(a) in paragraph 1—

(i) in the first sentence, for “shall” substitute “ may ” ;

(ii) omit the second and third sentences;

(b) in paragraph 2, for “shall” substitute “ may ” ;

(c) in paragraph 3—

(i) in the first sentence, for “Regulatory bodies shall” substitute “ The Office of Rail and Road may ” ;

(ii) in the second sentence, for “They” substitute “ If it does so, it ” and for “ their decision ” substitute “its decision” .

(d) in paragraph 4—

(i) in the first sentence for “regulatory bodies,” substitute “the Office of Rail and Road”;

(ii) in the second sentence, for “They” substitute “ If the Office of Rail and Road is provided with any information from a regulatory body in a Member State under this Article as it continues to have effect in the EU, it ” .

Section 42

In Article 19 (methodology)—

(a) in paragraph 1 for “regulatory bodies” substitute “ Office of Rail and Road ” ;

(b) in paragraph 2 for “regulatory bodies” substitute “ the Office of Rail and Road ” .

Section 43

After Article 20 (entry into force), omit the words from “This Regulation” to “Member States.”.

Section 44 Commission Implementing Regulation (EU) 2015/10 of 6 January 2015 on criteria for applicants for rail infrastructure capacity and repealing Implementing Regulation (EU) No 870/2014

Commission Implementing Regulation (EU) 2015/10 of 6 January 2015 on criteria for applicants for rail infrastructure capacity and repealing Implementing Regulation (EU) No 870/2014 is amended as set out in regulations 45 to 48.

Section 45

In Article 2, in the opening words, for “definition applies” substitute “ definitions apply ” , and before the definition of ‘financial guarantee’ insert—

‘2016 GB Regulations’ means the Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016.

‘2016 NI Regulations’ means the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2016.

Section 46

In Article 5 (capability to prepare compliant bids for infrastructure capacity)—

(a) for “, within the meaning of Article 41(2) of Directive 2012/34/EU” substitute “ in accordance with conditions established by the infrastructure manager under regulation 19(17) to (19) of the 2016 GB Regulations or, as the case may be, regulation 19(16) to (18) of the 2016 NI Regulations ” ;

(b) for “referred to in Article 27 of Directive 2012/34/EU and in Annex IV of that Directive” substitute “ as defined in the 2016 GB Regulations or, as the case may be, the 2016 NI Regulations ” ;

(c) for “regulatory body” substitute “ Office of Rail and Road ” .

Section 47

Omit Articles 6 and 7.

Section 48

After Article 8, omit the words from “This Regulation” to “Member States.”.

Section 49 Commission Implementing Regulation (EU) 2015/909 of 12 June 2015 on the modalities for the calculation of the cost that is directly incurred as a result of operating the train service

Commission Implementing Regulation (EU) 2015/909 of 12 June 2015 on the modalities for the calculation of the cost that is directly incurred as a result of operating the train service is amended as set out in Articles 50 to 58.

Section 50

For “regulatory body”, in each instance where it occurs, substitute “ Office of Rail and Road ” .