The Railway (Licensing of Railway Undertakings) Regulations 2005
2005 No. 3050
TRANSPORT
The Railway (Licensing of Railway Undertakings) Regulations 2005
Made 1st November 2005
Laid before Parliament 4th November 2005
Coming into force 28th November 2005
The Secretary of State, being a Minister designated for the purposes of section 2(2) of the European Communities Act 19721in relation to measures relating to railways and railway transport2, in exercise of the powers conferred by that section, makes the following Regulations:–
PART 1
GENERAL
Citation, commencement and extent
1.—(1) These Regulations may be cited as the Railway (Licensing of Railway Undertakings) Regulations 2005 and shall come into force on 28th November 2005.
(2) These Regulations do not extend to Northern Ireland.
Interpretation
2.—(1) In these Regulations, except where the context otherwise requires—
“the 1993 Act” means the Railways Act 19933;
“the 1995 Directive” means Council Directive 95/18/ECdated 19th June 1995 on the licensing of railway undertakings4, as amended by Directive 2001/13/ECdated 26th February 20015and Directive 2004/49/ECdated 29th April 20046, both of the European Parliament and of the Council;
“EEA State” means a member State, Norway, Iceland or Liechtenstein;
“European licence” means a licence granted to a railway undertaking pursuant to these Regulations (valid throughout the territory of any EEA State) by which the capacity of the railway undertaking as such is recognised and which authorises the undertaking to provide in and between EEA States such train services as may be specified in the licence;
“ORR” means the Office of Rail Regulation, being the body established under section 15 of the Railways and Transport Safety Act 20037;
“SNRP” means a statement of national regulatory provisions, issued pursuant to regulation 10; and
“train service” means a service for the transport of goods or passengers (or both) by rail.
(2) Except where the context otherwise requires, other expressions used in these Regulations and in the 1995 Directive shall have the same meaning as in that Directive.
Repeals and revocations, and consequential amendments
3. Schedule 1 (amendments, repeals and revocations) shall have effect.
Scope
4.—(1) Subject to paragraph (2), these Regulations apply in relation to the licensing of railway undertakings which provide train services and are established or to be established in an EEA State.
(2) These Regulations do not apply in relation to a railway undertaking whose activity is limited to any of the following—
(a)
(a) operating rail passenger services on local and regional stand-alone railway infrastructure;
(b)
(b) operating urban or suburban rail passenger services;
(c)
(c) the provision of regional rail freight services that are not covered by the scope of Council Directive 91/440/EECdated 29th July 1991 on the development of the Community’s railways8;
(d)
(d) carrying out freight operations on privately owned railway infrastructure that exists solely for use by the infrastructure owner for its own freight operations; or
(e)
(e) providing shuttle services for road vehicles through the Channel Tunnel.
PART 2
EUROPEAN LICENCES
Prohibition of unlicensed provision of services
5.—(1) Where a person is a railway undertaking to which these Regulations apply, that person shall not provide a train service in Great Britain unless he is authorised to do so by a European licence which is appropriate for that train service, and any person who provides such a service without such a licence shall be guilty of an offence.
(2) Any person who is guilty of an offence under this regulation shall be liable—
(a)
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b)
(b) on conviction on indictment, to a fine.
(3) No proceedings shall be instituted in England and Wales in respect of an offence under this regulation except by or on behalf of the ORR.
(4) In this regulation the expression “European licence” includes a licence granted pursuant to any action taken by an EEA State for the purpose of implementing the 1995 Directive.
Appointment of licensing authority and grant of European licences
6.—(1) The ORR is designated as the body responsible for granting European licences.
(2) The ORR shall determine and publish on its website the procedures for the granting of European licences and inform the Commission of those procedures.
(3) Subject to and in accordance with these Regulations, the ORR shall grant a European licence to a railway undertaking if that undertaking—
(a)
(a) is established in Great Britain, and
(b)
(b) makes an application to the ORR in accordance with the published procedures.
(4) A European licence may authorise the provision of train services generally or be restricted to particular types of service specified in the licence.
(5) An applicant shall submit with his application such application fee as the ORR may reasonably require and such information, specified in the published procedures referred to in paragraph (3)(b), as the ORR reasonably requires in order to be satisfied that the applicant satisfies the requirements referred to in Schedule 2.
(6) At any time after submitting the application the applicant shall submit such further information as the ORR may reasonably require in connection with the application.
(7) The ORR shall grant a European licence if, and only if, it is satisfied before the start of the applicant’s activities that the applicant will be able at any time to satisfy the requirements referred to in Schedule 2 as to good repute, financial fitness, professional competence and insurance cover for civil liabilities.
(8) An application for a European licence shall be determined by the ORR as soon as possible and in any event within three months of receipt of all the information referred to in paragraphs (5) and (6).
(9) In respect of each application for a European licence the ORR shall give notice stating—
(a)
(a) that the applicant has made an application for a European licence;
(b)
(b) the name of the applicant and the address of its registered or principal office; and
(c)
(c) a summary of the activities which the applicant wishes to carry out pursuant to the European licence.
(10) A notice under paragraph (9) shall be given by publishing the notice in such manner as the ORR considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the European licence.
(11) The ORR shall inform the applicant of its decision and, where it refuses to grant a European licence, the refusal shall state the reasons for its decision.
(12) When the ORR grants a European licence in accordance with this regulation it shall forthwith inform the European Commission of the grant.
(13) Any sums received by the ORR under this regulation shall be paid into the Consolidated Fund.
(14) Schedule 2 (qualifications for European licence) shall have effect.
Validity of European licences
7.—(1) A European licence shall, unless previously revoked or surrendered in accordance with any provision in these Regulations or the licence, continue in force as long as the ORR is satisfied that the railway undertaking concerned continues—
(a)
(a) to satisfy the requirements referred to in Schedule 2 as to good repute, financial fitness, professional competence and insurance cover for civil liabilities, and
(b)
(b) to submit the licence to the ORR for review or approval when so required under regulation 8.
(2) A European licence may incorporate specific provisions governing the suspension or revocation of the licence.
Monitoring, suspension and revocation of European licences
8.—(1) Subject to paragraph (5), this regulation applies to a railway undertaking to which a European licence has been granted by the ORR.
(2) If at any time the ORR considers that there is serious doubt whether a railway undertaking complies with a requirement referred to in Schedule 2, it may take such steps as are necessary to enable it to determine whether or not the undertaking does so comply.
(3) If, having taken the steps referred to in paragraph (2), the ORR is satisfied that a railway undertaking does not comply with any such requirement, it shall revoke the European licence held by the railway undertaking or suspend it.
(4) The ORR shall revoke a European licence if—
(a)
(a) proceedings have been commenced for the winding up of a railway undertaking on the grounds that the undertaking is unable to pay its debts, or
(b)
(b) an application for a railway administration order has been made in relation to the railway undertaking under section 60 of the 1993 Act on the grounds that the undertaking is or is likely to be unable to pay its debts,
and the ORR is satisfied that there is no realistic prospect of satisfactory financial restructuring of the undertaking within a reasonable period of time.
(5) Where the ORR is satisfied that there is serious doubt whether a railway undertaking to which a European licence has been granted by a licensing authority other than itself complies with any requirement of the 1995 Directive, it shall without delay so notify that licensing authority; 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.
(6) Where the ORR has suspended or revoked a European licence solely on the grounds of the non-compliance by the railway undertaking with the requirements of financial fitness specified in Schedule 2, the ORR may grant to the undertaking a temporary European licence pending the re-organisation of the railway undertaking.
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