# The Channel Tunnel (International Arrangements) Order 2005

S.I. 2005/3207 · made 17 November 2005 · revised to 16 October 2015

This Order brings into effect a binational regulation signed on 25 October 2005 on behalf of the Governments of the United Kingdom of Great Britain and Northern Ireland and the French Republic by the Intergovernmental Commission. The purpose of that Regulation is to implement Council Directive 91/440/EEC of the Council of 29 July 1991 on the development of the Community’s railways, as amended by Directive 2001/12/EC dated 26 February 2001 and Directive 2004/51/EC dated 29 April 2004, both of the European Parliament and of the Council, Council Directive 95/18/EC dated 19 June 1995 on the licensing of railway undertakings, as amended by Directive 2001/13/EC dated 26 February 2001 of the European Parliament and of the Council, and Directive 2001/14/EC 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 safety certification for the Channel Tunnel. The text of the binational regulation is set out in the Schedule to this Order.

Made under: Channel Tunnel Act 1987 (Section 11)

PDFs: Printed copy https://openlegislation.uk/channel-tunnel-international-arrangements-order-2005/pdf/uksi_20053207_en.pdf; Explanatory Memorandum https://openlegislation.uk/channel-tunnel-international-arrangements-order-2005/pdf/uksiem_20053207_en.pdf

## Introductory text

RAILWAYS
Made 17th November 2005
Laid before Parliament 21st November 2005
Coming into force 19th December 2005
In exercise of the powers conferred on the appropriate Minister by section 11 of the Channel Tunnel Act 1987, the Secretary of State for Transport makes the following Order:

## 1 Citation, commencement and extent

(1) This Order may be cited as the Channel Tunnel (International Arrangements) Order 2005 and shall come into force on 19th December 2005.
(2) This Order does not apply to the rail transport activities of the Concessionaires in respect of any shuttle service, as defined in section 1(9) of the Channel Tunnel Act 1987.

## 2 Interpretation

In this Order—
“Concession” and “Concessionaires” have the meaning given in article 1 of the Treaty;
“Directives” means—
(a)Council Directive 91/440/EEC dated 29th July 1991 on the development of the Community’s railways, as amended by Directive 2001/12/EC dated 26th February 2001 , Directive 2004/51/EC dated 29th April 2004 and Directive 2007/58/EC dated 23rd October 2007, each of the European Parliament and of the Council;
(b)Council Directive 95/18/EC dated 19th June 1995 on the licensing of railway undertakings, as amended by Directive 2001/13/EC dated 26th February 2001 of the European Parliament and of the Council; and
(c)Directive 2001/14/EC dated 26th February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification as amended by Directive 2007/58/EC dated 23rd October 2007, both of the European Parliament and of the Council;
“Fixed Link” and “Channel fixed link” means the Channel fixed link as defined in Article 1(2) of the Treaty;
“infrastructure manager”, “international grouping” and “railway undertaking” have the same meanings as in Council Directive 91/440/EEC dated 29th July 1991 on the development of the Community’s railways, as amended by Directive 2001/12/EC dated 26th February 2001 , Directive 2004/51/EC dated 29th April 2004 and Directive 2007/58/EC dated 23rd October 2007, each of the European Parliament and of the Council;
“Intergovernmental Commission” means the Commission established pursuant to Article 10 of the Treaty;
“international articles” means the provisions set out in the Schedule;
“Office of Rail and Road” means the body established under section 15 of the Railways and Transport Safety Act 2003;
“Principals” means the Secretary of State for Transport in the Government of the United Kingdom of Great Britain and Northern Ireland or such other person as may from time to time be designated by such Government to assume his functions under or pursuant to the Concession, and the French Republic represented by the Minister responsible for Transport or any other authority designated for that purpose; and
“Treaty” means the Treaty between the United Kingdom of Great Britain and Northern Ireland and the French Republic concerning the construction and operation by private concessionaires of a Channel fixed link signed at Canterbury on 12th February 1986.

## 3 Application of international articles

The international articles shall ... have the force of law in the United Kingdom ....

## 4 Regulatory body

(1) The Intergovernmental Commission is designated as the regulatory body for the Channel fixed link, and must carry out the functions assigned to, and comply with the obligations imposed on, that body by article 12 of the international articles.
(2) Without prejudice to the right of any person to make an application for judicial review in accordance with article 12.5 of the international articles, a decision by the Intergovernmental Commission in accordance with its functions under article 12 of those articles is binding on all parties covered by that decision.
(3) Where a decision of the Intergovernmental Commission as described in paragraph (2) contains a direction to any infrastructure manager, international grouping or railway undertaking as to the remedial action to be taken, that infrastructure manager, international grouping or, as the case may be, railway undertaking is under an obligation to comply with that direction.

## 4A Role of the Office of Rail and Road

(1) If called upon by the Intergovernmental Commission the Office of Rail and Road shall provide to that body such assistance as it may require for the purpose of carrying out the functions under article 12 of the international articles.
(2) With a view to facilitating the performance of the obligations under article 4(1) by the Intergovernmental Commission the Secretary of State must exercise the power of appointment under article 10.4 of the Treaty so as to ensure that at least two members of the Intergovernmental Commission are appointed following consultation by the Secretary of State with the Office of Rail and Road.

## 5 Application of civil law

(1) The obligation to comply with—
(a) article 4(3) of this Order; or
(b) article 4 of the international articles,
shall be a duty owed to any person who may be affected by a breach of that obligation and shall be 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, international grouping or railway undertaking under paragraph (1), it shall be a defence for it to prove that it took all reasonable steps and exercised all due diligence to avoid a breach of the 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 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 Making of false statements etc.

(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) on summary conviction, to a fine not exceeding the statutory maximum; or
(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.

## 7 Offences by bodies corporate and Scottish partnerships

(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.

## Signature

Signed by authority of the Secretary of State for Transport
Derek Twigg
Parliamentary Under Secretary of State,
Department for Transport
17th November 2005

## 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/EEC of 29 July 1991, as amended by Directives 2001/12/EC of 26 February 2001, 2004/51/EC of 29 April 2004, both of the European Parliament and of the Council, Council Directive 2006/103/EC of 20 November 2006 and Directive 2007/58/EC of 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/EC of 19 June 1995, as amended by Directives 2001/13/EC of 26 February 2001 and 2004/49/EC of 29 April 2004, both of the European Parliament and of the Council, on the licensing of railway undertakings;
Having regard to Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001, as amended by Directives 2004/49/EC of 29 April 2004 and 2007/58/EC of 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:

## ARTICLE 1 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.

## ARTICLE 2 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.

## ARTICLE 4 Management of Infrastructure

Subject to the provisions of Articles 9.2 and 11.3, the Concessionaires shall be the infrastructure manager of the Fixed Link. The Concessionaires’ profit and loss accounts and balance sheets relating on the one hand to the provision of transport services by railway undertakings and on the other for business relating to the management of railway infrastructure shall be kept and published separately. Any public funds paid to one of these two areas of activity may not be transferred to the other. The accounts for the two areas of activity shall be kept in a way that reflects this prohibition.

### Network Statement for the Fixed Link

## 5.1 

The Concessionaires shall develop, publish, keep up to date and modify as necessary a network statement for the Fixed Link (“the Network Statement”) in accordance with Article 3 of and Annex 1 to Directive 2001/14/EC. The Concessionaires shall give timely notice to railway undertakings operating services through the Fixed Link of any major changes to the quality or capacity of the infrastructure.

## ARTICLE 6 Exercise of Access Rights

A railway undertaking shall not be permitted to exercise the access rights unless it:
(a) is licensed in accordance with the provisions of Council Directive 95/18/EC, as amended by Article 1 of Directive 2001/13/EC and Article 29 of Directive 2004/49/EC, and complies with all mandatory requirements of national legislation and regulation, and also the operating rules of the Concessionaires approved by the Intergovernmental Commission and the security provisions laid down by the Principals;
(b) is adequately insured for provision of services in the Fixed Link or has made equivalent arrangements for cover, in accordance with national and international law, of its liabilities in the event of accidents, in particular in respect of its clients, the Concessionaires of the Fixed Link and other third parties;
(c) has received and continues to hold a safety certificate as required by Article 39 of the Regulation of the Intergovernmental Commission transposing Directive 2004/49/EC of the European Parliament and of the Council (the Railway Safety Directive) signed on 24 January 2007;
(d) on fulfilling the three conditions above, has entered into an agreement with the Concessionaires. This agreement shall set out the rights and obligations of the parties in line with the conditions set out in Article 7.

### Nature and Content of Agreements

## 7.1 

Conditions governing agreements to be entered into under Article 6(d) shall be non-discriminatory, in accordance with Article 10(5) of Directive 91/440 EEC as amended by Article 1 of Directive 2001/12/EC and Directive 2004/51/EC.

### Framework Agreements

## 8.1 

The Concessionaires may agree with any railway undertaking or international grouping a framework agreement covering a number of years, setting out the characteristics of the infrastructure capacity required by the railway undertaking or the international grouping and offered by the Concessionaires over any period exceeding one timetable period. A framework agreement shall not specify the path or paths in detail but be drawn up so as to meet the legitimate commercial needs of the railway undertaking or the international grouping.

### Procedure for Allocation of Train Paths

## 9.1 

The Concessionaires shall establish an allocation body to allocate infrastructure capacity in the Fixed Link. The allocation body shall ensure that infrastructure capacity is allocated on a fair and non-discriminatory basis and in accordance with Community law, and shall respect the confidentiality of any commercial information provided to it in the exercise of this function. Subject to compliance with Article 9.2, the Concessionaires as infrastructure manager shall fulfil the role of the allocation body.

### Congested Infrastructure

## 10.1 

Where the Concessionaires find that it is not possible to satisfy requests for infrastructure capacity, they must immediately declare the infrastructure to be congested, inform the Intergovernmental Commission, and apply the priority criteria set out in the network statement.

### Infrastructure Charges

## 11.1 

The Concessionaires shall co-operate with other infrastructure managers to achieve the efficient operation of train services. They must aim to guarantee the optimum competitiveness of international rail freight and ensure the efficient utilisation of the Trans-European Rail Freight Network.

### Regulatory Body

## 12.1 

A railway undertaking or international grouping shall have a right of appeal to the Intergovernmental Commission 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 Concessionaires or, where appropriate, the railway undertaking, concerning:
(a) the network statement;
(b) the criteria contained within it;
(c) the allocation process and its result;
(d) the charging scheme;
(e) the level or structure of infrastructure fees which it is, or may be, required to pay; and
(f) arrangements for access to the network.

## ARTICLE 13 Entry into Force

Done by the Intergovernmental Commission on 23rd July 2009 in the English and French languages, both texts being equally authoritative.
Roy Griffins
Head of UK Delegation, Intergovernmental Commission
Christian Parent
Head of French Delegation, Intergovernmental Commission

## 13.1 

This Regulation repeals and replaces the Regulation signed on 25 October 2005, except for the provisions of Article 3 of the latter, which remain in force until 31 December 2009.

## Explanatory note

(This note is not part of the Order)
This Order brings into effect a binational regulation signed on 25 October 2005 on behalf of the Governments of the United Kingdom of Great Britain and Northern Ireland and the French Republic by the Intergovernmental Commission. The purpose of that Regulation is to implement Council Directive 91/440/EEC of the Council of 29 July 1991 on the development of the Community’s railways, as amended by Directive 2001/12/EC dated 26 February 2001 and Directive 2004/51/EC dated 29 April 2004, both of the European Parliament and of the Council, Council Directive 95/18/EC dated 19 June 1995 on the licensing of railway undertakings, as amended by Directive 2001/13/EC dated 26 February 2001 of the European Parliament and of the Council, and Directive 2001/14/EC 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 safety certification for the Channel Tunnel. The text of the binational regulation is set out in the Schedule to this Order.
A separate Regulatory Impact Assessment has not been prepared in respect of this Order, but Appendix A of the First Rail Package Transposition Regulations – Regulatory Impact Assessment sets out the relevant considerations. A copy can be obtained from the Department for Transport, Great Minister House, 76 Marsham Street, London, SW1P 4DR. A copy has been placed in the Library of each House of Parliament.
A copy of the Transposition Note is also available from the Department for Transport.
Copies of the Regulatory Impact Assessment for the First Rail Package (see S.I. 2005/3049 and S.I. 2005/3050) and of the Transposition Note for this Order may also be accessed on the Office for Public Sector Information website www.opsi.gov.uk.

---
Source: https://www.legislation.gov.uk/uksi/2005/3207 (the official version)
Page: https://openlegislation.uk/channel-tunnel-international-arrangements-order-2005
Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.