2009 No. 2081
The Secretary of State for Transport makes the following Order in exercise of the powers conferred on the appropriate Minister by section 11(1)(a), (c) and (g) of the Channel Tunnel Act 1987:
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Citation and commencementCitation and commencement
1.—(1) This Order may be cited as the Channel Tunnel (International Arrangements) (Amendment) Order 2009.
(2) This Order comes into force—
(a)
(a) for the purposes of articles 2(2) to 2(4), 2(7) and 3, on the date on which the regulation of the Intergovernmental Commission on the use of the Channel Tunnel, done on 23rd July 2009(being a regulation drawn up under article 10(3)(e) of the Treaty between the United Kingdom of Great Britain and Northern Ireland and the French Republic concerning the construction and operation by private concessionaires of a Channel fixed link signed at Canterbury on 12th February 1986) comes into force, as provided for in article 13.2 of that regulation, and
(b)
(b) for all other purposes, on 25th August 2009.
(3) The Secretary of State shall give notice in the London, Edinburgh and Belfast Gazettes of the date provided for in paragraph (2)(a).
Amendment of Order
2.—(1) The Channel Tunnel (International Arrangements) Order 2005is amended as follows.
(2) In article 2 (interpretation), in the definition of “Directives”—
(a)
(a) in sub-paragraph (a), for the words “and Directive 2004/51 dated 29th April 2004, both of the European Parliament and of the Council”, substitute “, Directive 2004/51/ECdated 29th April 2004 and Directive 2007/58/ECdated 23rd October 2007, each of the European Parliament and of the Council”; and
(b)
(b) in sub-paragraph (c), after the word “certification”, insert “as amended by Directive 2007/58/ECdated 23rd October 2007, both”.
(3) In article 2, in the definition of “infrastructure manager”, “international grouping” and “railway undertaking”, for the words “and Directive 2004/51 dated 29th April 2004, both of the European Parliament and of the Council”, substitute “, Directive 2004/51/ECdated 29th April 2004 and Directive 2007/58/ECdated 23rd October 2007, each of the European Parliament and of the Council”.
(4) In article 3 (application of international articles), omit the words “come into force and” and the words after “United Kingdom”.
(5) In article 5 (application of civil law), after paragraph (2), add the following paragraph—
“3 Without prejudice to the right which any person may have by virtue of paragraph (1) to bring civil proceedings in respect of any breach of duty, the obligation to comply with the provisions referred to in that paragraph shall be enforceable by civil proceedings by the Intergovernmental Commission for an injunction or for interdict or any other relief.”
(6) After article 5, add the following articles—
“Making of false statements etc.
6.—(1) If any person, in giving any information or making any application under or for the purposes of any provision of this Order, makes any statement which that person knows to be false in a material particular, or recklessly makes any statement which is false in a material particular, he or she is guilty of an offence and shall be liable—
(a)
(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b)
(b) on conviction on indictment, to a fine.
(2) No proceedings shall be instituted in England or Wales in respect of an offence under this article, except by or with the consent of the Secretary of State or the Director of Public Prosecutions.
Offences by bodies corporate and Scottish partnerships
7.—(1) Where an offence under this Order has been committed by a body corporate and it is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he or she as well as the body corporate shall be guilty of that offence and be liable to be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate are managed by its members, paragraph (1) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director of the body corporate.
(3) Where a Scottish partnership is guilty of an offence under this Order in Scotland and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he or she as well as the partnership shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.”
(7) Subject to article 3, for the content of the Schedule, substitute the content of the Schedule to this Order.
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Transitional arrangementsTransitional arrangements
3. The substitution, under paragraph 2(7), of Article 3 of the Schedule to the Channel Tunnel (International Arrangements) Order 2005 shall not apply before 1st January 2010, and that Article, in its unamended form, shall continue to have effect until 31st December 2009 inclusive.
C.D. Mole
SCHEDULE
Article 2(7)
International Articles
THE INTERGOVERNMENTAL COMMISSION,
Having regard to the Treaty between the United Kingdom of Great Britain and Northern Ireland and the French Republic concerning the construction and operation by private concessionaires of a Channel Fixed Link signed at Canterbury on 12 February 1986 (“the Treaty”), and in particular its Articles 1 and 10;
Having regard to Council Directive 91/440/EECof 29 July 1991, as amended by Directives 2001/12/ECof 26 February 2001, 2004/51/ECof 29 April 2004, both of the European Parliament and of the Council, Council Directive 2006/103/ECof 20 November 2006 and Directive 2007/58/ECof the European Parliament and of the Council of 23 October 2007, on the development of the Community’s railways and, in particular, its Article 10(3);
Having regard to Council Directive 95/18/ECof 19 June 1995, as amended by Directives 2001/13/ECof 26 February 2001 and 2004/49/ECof 29 April 2004, both of the European Parliament and of the Council, on the licensing of railway undertakings;
Having regard to Directive 2001/14/ECof the European Parliament and of the Council of 26 February 2001, as amended by Directives 2004/49/ECof 29 April 2004 and 2007/58/ECof 23 October 2007 both of the European Parliament and of the Council, on the allocation of railway infrastructure capacity, and the levying of charges for the use of railway infrastructure and in particular its Article 8(2) whereby for specific investment projects, infrastructure managers may set or continue to set higher charges on the basis of the long-term costs of such projects if they increase efficiency and/or cost-effectiveness and could not otherwise have been undertaken;
Having regard to the Regulation of the Intergovernmental Commission on the safety of the Channel Fixed Link signed in London on 24 January 2007;
Having regard to the quadripartite Concession signed on 14 March 1986 between the ministre de l’urbanisme, du logement et des transports representing the French State and the Secretary of State for Transport of the United Kingdom of Great Britain and Northern Ireland (together “the Principals”) on the one part, and France-Manche SA and the Channel Tunnel Group Ltd (“the Concessionaires”) on the other part (the Concession);
Considering the specific nature of the investment undertaken to assure the design, financing, construction and, since 1994, operation of the Channel Tunnel;
HAS ADOPTED the following Regulation:
Purpose
This Regulation applies to the use of those parts of the Channel Fixed Link necessary for the delivery of:
international passenger services,
international combined transport goods services, and
international freight services by railway undertakings,
in accordance with the above Directives.
Definitions
“Concession” and “Concessionaires” have the meaning given in Article 1 of the Treaty.
“Common Section” means that part of the Fixed Link which is normally used by all categories of trains for the delivery of the services described in Article 1.
“Intergovernmental Commission” means the Intergovernmental Commission established by Article 10 of the Treaty to supervise in the name and on behalf of the two Governments all matters concerning the construction and operation of the Fixed Link.
The expressions used in this Regulation, which are also used in the Directives referred to above, shall have the meaning they bear in those Directives.
Access Rights
3.1. Railway undertakings established or to be established in a Member State shall have access rights through the Common Section, on equitable and non-discriminatory conditions, for the purpose of the provision of international combined transport goods services, international freight services or, on or after 1 January 2010, of international passenger services.
3.2. Access rights through the Common Section include, for any railway undertaking, the right to the following minimum access package:
handling of requests for infrastructure capacity;
the right to utilise capacity which is granted;
use of running track points and junctions in the Common Section;
train control including signalling, regulation, dispatching and the communication and provision of information on train movements; and
all other information required to implement or operate the service for which capacity has been granted.
3.3. Access rights through the Common Section also comprise:
use of the electrical supply system for traction current;
access to any...
