Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister for Foreign and European Affairs,
Considering articles 52 to 55 of the Constitution;
Vu le Decree No. 53-192 of 14 March 1953 amended on the ratification and publication of international commitments undertaken by France;
Vu le Decree No. 2006-263 of 1 March 2006 publishing the rules of the Intergovernmental Commission on the use of the tunnel under the Channel;
Vu le Decree No. 2008-748 of 28 July 2008 issued by the Intergovernmental Commission on the Safety of the Trans-Manche Fixed Liaison, signed in London on 24 January 2007,
Decrete:
The rules of the Intergovernmental Commission on the use of the Channel Tunnel, signed in London on 23 July 2009, will be published in the Official Journal of the French Republic.
The Prime Minister and the Minister for Foreign and European Affairs are responsible, each with respect to him, for the implementation of this decree, which will be published in the Official Journal of the French Republic.
A N N E X E
REGULATION OF THE INTERNATIONAL COMMISSION ON THE USE OF TUNNEL
The Intergovernmental Commission,
Considering the Treaty between the French Republic and the United Kingdom of Great Britain and Northern Ireland concerning the construction and operation by private companies concessionaries of a fixed trans-Manche bond, signed in Cantorbéry 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 Council Directives 2001/12/EC of 26 February 2001 and 2004/51/EC of 29 April 2004 of the European Parliament and Council, 2006/103/EC of the Council of 20 November 2006 and 2007/58/EC of the European Parliament and the Council of 23 October 2007, on the development of community 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, the European Parliament and the Council on the licences of railway companies;
Considering 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, of the European Parliament and of the Council, concerning the distribution of railway infrastructure capacities and the pricing of railway infrastructure, and in particular its Article 8.2, which provides that, for specific investment projects, the infrastructure manager may determine or maintain higher fees based on the long-term cost
Having regard to the rules of the Intergovernmental Commission on the Safety of the Trans-Manche Fixed Liaison signed in London on 24 January 2007;
In view of the quadripartite Concession (the Concession), concluded on March 14, 1986, between the Minister of Planning, Housing and Transport representing the French State and the Secretary of State for Transport of the United Kingdom of Great Britain and Northern Ireland (the Compeders) and, on the other hand, France Manche SA and the Channel tunnel Group Limited (the Concessionaries);
Considering the specific nature of the investment made to ensure the design, financing, construction and operation, since 1994, of the tunnel under the Channel,
Stop the following rules:
Article 1
Subject
These Regulations apply to the use of the Parts of the Transmanche Fixed Liaison required for the benefit:
- international passenger transport services;
- international combined transport services of goods, and
- international freight services by rail companies, in accordance with the above-mentioned guidelines.
Article 2
Definitions
The terms "Concession" and "Concessionaries" have the same meanings as those given in Article 1 of the Treaty.
The term "Community Section" refers to the portion of the Fixed Link facility that is usually used by all types of trains to provide the services described in section 1.
"The Intergovernmental Commission" means the Intergovernmental Commission, established by Article 10 of the Treaty, to follow, on behalf of and by delegation of the two governments, all matters related to the construction and operation of the Fixed Liaison.
The terms used in these regulations have the same meaning as those contained in the above-mentioned guidelines.
Article 3
Right of access
3.1. Established or established railways in a Member State have, on fair and non-discriminatory terms, a right of access through the Common Section, for the purposes of the operation of international combined transport services of goods, international freight services or, as of 1 January 2010, international passenger transport services.
3.2. The right of access to the Common Section shall include, for any railway undertaking, the following minimum benefits:
– processing of its infrastructure capacity requests;
- the right to use the capabilities assigned to it;
― the use of connections and hands in the Common Section;
― the regulation of the traffic of trains including signalling, regulation, traffic management, communication, and
- the provision of information concerning the traffic of trains and any other information necessary for the implementation or operation of the service for which the capacity was assigned to it.
3.3. The right of access to the Common Section also includes:
― the use of the power supply system for the traction current;
- access to any facility intended for the carriage of railway companies, both of which agree, in accordance with Article 1.2 of the Treaty, that it is part of the Fixed Liaison;
- the manoeuvring service in the event of a technical failure;
– access to emergency channels in the event of an incident.
Article 4
Infrastructure management
Subject to sections 9.2 and 11.3, the Concessionaries are the infrastructure manager of the Fixed Liaison. The Concessionaries hold and publish, in a separate manner, the balance sheets and accounts of losses and profits for the activities relating to the management of railway infrastructure, on the one hand, and for those relating to the provision of transport services by railways, on the other. Any potential public assistance that could be paid to one of these two activities cannot be transferred to the other and the accounts for both activities are held to reflect this prohibition.
Article 5
Network reference document
for the Fixed Liaison
5.1. The Concessionaries shall establish, publish, maintain and, where appropriate, amend a network reference document for the Fixed Liaison (the Network Reference Document) in accordance with the provisions of Article 3 and Annex I to the aforementioned Directive 2001/14/EC. They shall, in due course, communicate to railway companies carrying out services through the Fixed Link, changes in the quality or capacity of this infrastructure.
5.2. The Network Reference Document contains all the information required to exercise the access rights within the Fixed Liaison, including:
(a) a presentation of the characteristics of the infrastructure made available to railway companies and the conditions of access to the Fixed Liaison;
(b) the principles and criteria for the allocation of infrastructure capacities, which set out the general characteristics of infrastructure and possible restrictions of use, in particular for maintenance operations;
(c)the deadlines and procedures for the submission and instruction of requests for the allocation of capacities, and in particular:
(i) procedures to be submitted by applicants to request infrastructure capacity to the manager;
(ii) the requirements for applicants;
(iii) the schedule for filing applications and their instruction;
(iv) principles relating to the coordination procedure;
(v) procedures to be followed and criteria used when infrastructure is saturated;
(vi) details of infrastructure usage restrictions, and
(vii) any conditions for prior utilization levels that are taken into account in determining priorities in the allocation of capacity.
(d) pricing principles and rates; and
(e) measures taken to ensure adequate treatment of international freight services, without prejudice to other international services, and requests submitted to the ad hoc procedure.
5.3. The Concessionaries shall consult with all interested parties, including the Intergovernmental Commission, on the draft Network Reference Document, with a reasonable time to respond.
5.4. The Concessionaries stop the Network Reference Document and make it public, by any appropriate means, no later than four months before the annual deadline for the introduction of infrastructure capacity requests.
5.5. The Network Reference Document is updated, as required, according to the same procedure.
Article 6
Right of access exercise
A railway company may exercise the right of access only if:
(a) it has the licence set out in 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 the requirements of national legislation and regulations, as well as the regulations of the Concessionaries approved by the Intergovernmental Commission and the security provisions enacted by Governments;
(b) it is sufficiently insured to operate services through the Fixed Liaison, or has made equivalent arrangements, in accordance with national and international legislation, to cover its civil liability in the event of an accident, including with respect to its customers, the Fixed Liaison Dealers and other third parties;
(c) it holds a valid security certificate in accordance with Article 39 of the Intergovernmental Commission Regulation of 24 January 2007 which transposes Directive 2004/49/EC of the European Parliament and the Council;
(d) meeting the three above-mentioned conditions, it concluded an agreement with the Concessionaries. This agreement defines the rights and obligations of the parties under the conditions laid down in Article 7.
Article 7
Nature and content of agreements
7.1. The conditions governing the agreements under Article 6 (d) must 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.
7.2. The agreements provided for in Article 6 (d) shall include:
- administrative, technical and financial arrangements to ensure that the conditions set out in paragraphs (a) to (c) of Article 6 above are met on an ongoing basis;
- the provisions relating to the allocation of links on the Common Section pursuant to the procedure provided for in Article 9;
- the provisions relating to royalties under the rules laid down in Article 11.
Article 8
Framework agreements
8.1. The Concessionaries may enter into a multi-year framework agreement with any railway company or international grouping, the purpose of which is to specify the characteristics of the railway infrastructure capacity required by the railway company or international grouping as well as those offered to them for any period exceeding one period of validity of the service schedule. The framework agreement does not define the link(s) in a detailed manner but is established to meet the legitimate business needs of the railway company or international grouping.
8.2. A framework agreement is reached in principle for a period of five years, renewable by periods equal to its original duration. The Concessionaries may accept shorter or longer periods. Any period of more than five years is motivated by the existence of commercial contracts, special investments or risks.
8.3. Framework agreements may be for a period of fifteen years for services using a specialized infrastructure designated in accordance with Article 24 of Directive 2001/14/EC and which require a significant and long-term investment, duly justified by the railway company or international grouping. A term of more than fifteen years is only possible in exceptional cases, particularly in the case of large and long-term investments that are subject to contractual commitments including a multi-year amortization plan. In such cases, the railway company or the international grouping may request a detailed definition of the characteristics of the capabilities – including the frequency, volume and quality of the links – which are made available to them for the duration of the framework agreement. The Concessionaries may reduce reserved capacities, the use of which, over a period of at least one month, has been below the threshold set out in the Network Reference Document, in accordance with section 9.5 (c).
8.4. The framework agreement does not impede the use of the Linkage Fixed by other railway companies or services.
8.5. The framework agreement must be modified or limited to allow better use of the Fixed Link.
8.6. The framework agreement may provide for sanctions if the agreement should be amended or terminated.
8.7. While respecting the confidentiality of commercial data, the general provisions of each framework agreement are communicated to any interested party.
Article 9
Procedure for the attribution of sillons
9.1. The Concessionaries set up an infrastructure capacity allocation organization on the Fixed Link. The distribution agency is responsible for the fair and non-discriminatory nature of the infrastructure capacity distribution procedure and its compliance with community regulations. It respects the confidentiality of the commercial information provided to it in this function. Subject to the provisions of section 9.2, the Concessionaries, as infrastructure managers, perform the role of distribution agency.
9.2. The distribution agency established pursuant to 9.1 is independent of any railway undertaking from a legal, organizational or decision-making point of view.
9.3. The requests for links are addressed either to the distribution agency or to another infrastructure manager concerned, or to any common proceeding instituted for this purpose by infrastructure managers. The requests for links shall be submitted by the railway company or international reunification under the terms and conditions set out in the Network Reference Document, supplemented, in the event of a framework agreement and, where applicable, by the stipulations of this agreement. The distribution organization meets the requirements set out in section 18 of Directive 2001/14/EC:
(a) the right to use infrastructure capacity in the form of a link may be granted for a maximum period of a service schedule. Any party to a framework agreement must request infrastructure capacity in accordance with the terms of this framework agreement. Once assigned to a railway company by the distribution agency, the infrastructure capacity cannot be transferred by its holder to another company or service. Any commercial transaction related to an infrastructure capacity is prohibited and results in the exclusion of any subsequent distribution of capacity for the railway company. The use of capacity by a railway company to carry out the activities of an international grouping is not considered a transfer;
(b) the distribution agency shall conduct the training of requests for infrastructure capacity under the conditions and deadlines set out in the Network Reference Document. It takes into account the capabilities required for infrastructure maintenance, renovation and improvement. To the extent possible, it strives to satisfy all the requests made. Where certain applications are incompatible with each other, the distribution agency has the right to propose different links from those requested; under these circumstances, the Committee must motivate its proposal. The distribution agency, through consultations with the applicants concerned, is working to resolve potential conflicts;
(c) at the end of the instruction, the distribution agency shall establish a proposed service schedule that it communicates to all interested parties. Interested parties have at least one month to submit their comments. This expired period, the distribution agency shall make appropriate arrangements to deal with the remarks made and then stop the final service schedule and make it public;
(d) without prejudice to the provisions of Article 12, in the event of a dispute over the allocation of infrastructure capacity, the allocation body shall establish a dispute resolution process to resolve such disputes promptly. This process is described in the Network Reference Document and, when applied, a decision must be made within 10 business days;
(e) requests for links may be submitted after the publication of the service schedule and for the remaining duration of this schedule. Ad hoc requests for individual furrows may also be submitted at any time during the validity period of the current service schedule. The distribution agency responds to these ad hoc requests as soon as possible and, in any case, within a maximum of five working days. Any information on available capacities must be provided to railway companies and international groupings that would like to benefit from it.
9.4. The distribution agency is required to motivate any refusal to grant a requested link.
9.5. The distribution organism may, by giving the reasons, delete or modify the attributed links:
(a) to allow unplanned maintenance of railway infrastructure;
(b) to grant, at the request of the Intergovernmental Commission, either of the concedants or of the two conceding parties acting jointly, priority to transport necessary to the defence needs;
(c) to ensure better use of railway infrastructure when the use of the link has been lower over a period of at least one month at a threshold defined in the Network Reference Document. The change or deletion decision is preceded by a fifteen-day notice to the beneficiary of the related links and a consultation with interested railway companies. The distribution body shall indicate the duration of the modification or deletion. In the case referred to in (c), the duration of the change or deletion may be final, for the duration of the service schedule. However, in the event of an emergency and absolute necessity, in particular in the event of an accident, a failure that makes the infrastructure temporarily unusable or for any other fact that prevents the use of the infrastructure under normal security conditions, the distribution agency may, without notice, remove the links assigned during the time required for the rehabilitation of the facilities or for the disappearance of the fact generating the stopping of traffic. The distribution agency shall immediately inform the Intergovernmental Commission. The possible compensation terms and conditions are specified in the agreement reached under Article 6(d).
9.6. The distribution agency cooperates with other infrastructure managers to ensure the coherence of the links attributed through the Fixed Liaison and adjacent networks. Procedures are in place to ensure this consistency, in accordance with Article 15 of Directive 2001/14/EC.
Article 10
Saturated infrastructure
10.1. When the Concessionaries consider that it is not possible to respond favourably to requests for capacity, they immediately declare that the infrastructure is saturated, inform the Intergovernmental Commission and apply the priority criteria defined in the Network Reference Document.
10.2. The Concessionaries shall, within six months of the declaration referred to in Article 10.1, carry out a capacity analysis in accordance with the provisions of Article 25 of Directive 2001/14/EC and shall communicate it to the Intergovernmental Commission.
10.3. After consultation with infrastructure users and no later than six months after the completion of the capacity analysis referred to in Article 10.2, the Concessionaries shall establish a capacity-building plan, as referred to in Article 26 of Directive 2001/14/EC, in accordance with the relevant provisions of the Concession.
Article 11
Claims for use
11.1. The Concessionaries cooperate with other infrastructure managers to ensure the efficient operation of railway services. They strive to ensure the optimal competitiveness of international rail freight transport and ensure the efficient use of the Trans-European Railway Cargo Network.
11.2. The Concessionaries establish a pricing agency that sets out the specific pricing rules and determines the user fees for the Fixed Link, in accordance with the provisions of Chapter II of Directive 2001/14/EC. Subject to the provisions of 11.3, the Concessionaries, as infrastructure managers, perform the duties of a pricing agency. In any case, the Concessionaries receive the fees for use of the Fixed Liaison.
11.3. The pricing agency, established in accordance with Article 11.2, is independent of any railway undertaking on a legal, organizational or decision-making basis.
11.4. The royalties are set in accordance with the relevant pricing principles defined in Chapter II of the above-mentioned Directive 2001/14/EC, in particular Article 8.2, with their exceptions, to the possibilities of reduction and modulation, taking into account the performance and possible booking fees. The Concessionaries must notify the Intergovernmental Commission if they intend to negotiate with a potential applicant the level of infrastructure use royalties. These negotiations are permitted only if they are held under the auspices of the Intergovernmental Commission, which intervenes immediately if they are likely to contravene the requirements of Directive 2001/14/EC.
11.5. The pricing authority must be able to justify the fees charged under the principles set out in this Regulation and in Chapter II of Directive 2001/14/EC, and in particular to show that the pricing system has been applied to railways in a fair and non-discriminatory manner. The pricing agency respects the commercial confidentiality of information not provided to the applicants.
Article 12
Control Organization
12.1. A railway company or international grouping may appeal to the Commission if it or it considers it to be a victim of unfair treatment, discrimination or other prejudice, in particular against the decisions taken by the Concessionaries or, where appropriate, by the railway company with respect to:
(a) the Network Reference Document;
(b) the criteria contained in this document;
(c) the distribution procedure and its results;
(d) the pricing system;
(e) the level or structure of fees for the use of the infrastructure it is or could be required to perform;
(f) access to the network.
12.2. For the purposes of these appeals, the Intergovernmental Commission shall appeal to bodies or experts designated for this purpose in accordance with Article 10.7 of the Treaty.
12.3. The Concessionaries and other interested parties shall provide, without unnecessary delay, any information requested. In particular, the Concessionaries shall provide the Intergovernmental Commission with any information necessary to ensure that the established royalties have been made on a non-discriminatory basis and in accordance with Chapter II of Directive 2001/14/EC.
12.4. The Intergovernmental Commission takes a decision and adopts the necessary measures to remedy the situation within two months of receipt of all necessary information. Notwithstanding Article 12.5, the decisions of the Intergovernmental Commission are binding on all parties concerned.
12.5, Pursuant to Article 76 of the Intergovernmental Commission Regulation respecting the security of the trans-Manche fixed link signed in London on 24 January 2007, [the decisions of that Commission made under the binational regulations established in accordance with the provisions of Article 10 (3) (e) of the Treaty may be appealed to any of the French or British courts under the conditions provided for by the national law applicable to those jurisdictions. The seizure of a jurisdiction of one of the two States is an obstacle to the submission of a second application having the same object before a jurisdiction of the other State.
12.6. In order to monitor competition in the market of railway services concerned by the Fixed Liaison, the Intergovernmental Commission, without prejudice to the national competition rights of both States, relies on bodies or experts designated for this purpose in accordance with Article 10.7 of the Treaty.
Article 13
Entry into force
13.1. The Regulations repeal and replace the regulations signed on October 25, 2005, with the exception of the provisions of section 3 of the Regulations that apply until December 31, 2009.
13.2. Each Government shall notify the other of the completion of the required internal procedures, with respect to it, for the coming into force of these Regulations which shall take effect on the day of receipt of the last notification.
Done by the Intergovernmental Commission, on 23 July 2009, in French and English, both texts being equally authentic.
The chief
of the British delegation
to the Commission
intergovernmental,
Roy Griffins
The chief
of the delegation of France
to the Commission
intergovernmental,
Christian Parent
Done in Paris, January 7, 2010.
Nicolas Sarkozy
By the President of the Republic:
The Prime Minister,
François Fillon
Minister for Foreign Affairs
and European,
Bernard Kouchner
