International and retained EU law

Several Statutory Instruments have been made to deal with the necessary legislative changes following the UK exit from the EU. They are referred to as EU Exit regulations and can be found at legislation.gov.uk. 

ORR has published guidance on the new rules applicable from 1 January 2021.

If stakeholders want to know the specific legislative changes for each area i.e. safety or interoperability for instance, the Department for Transport has published guidance on Rail transport and cross border operations from 1 January 2021. 

It is the responsibility of individual businesses to ensure that they are compliant with the law. We advise businesses to refer to the EU Exit amending regulations as the primary source of information.

We provide below additional historical details on the various railway packages, as adopted by the EU and implemented in UK domestic law, indicating whether the legislation has been revoked or is still in force subject to amendments to make sure it is still fit for purpose from 1 January 2021. 

The First Railway Package, adopted by the European Commission in 2001, is an important suite of European Directives. It is designed to:

• open the international rail freight market;
• establish a general framework for the development of European railways, and clarify the formal relationship between the State and the infrastructure manager on the one hand, and between the infrastructure manager and railway undertakings (train operators) on the other hand (Directive 2001/12/EC);
• set out the conditions that freight operators must meet in order to be granted a licence to operate services on the European rail network (Directive 2001/13/EC);
• introduce a defined policy for capacity allocation and infrastructure charging (Directive 2001/14/EC)

How the first package was implemented

The first railway package was implemented in the UK in November 2005 by:

• The Railways Infrastructure (Access and Management) Regulations 2005. [revoked by the Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016]
• The Railways (Licensing of Railway Undertakings) Regulations 2005. [amended by the EU Exit regulations S.I. 2019/700]

ORR is the economic regulatory body for the UK, pursuant to Article 30 of Directive 2001/14/EC.

The Second Railway Package was adopted by the European Commission in 2004. Its aim is to create a legally and technically integrated European railway area. The package contains four pieces of legislation and a recommendation:

• Directive 2004/49/EC (the Railway Safety Directive) develops a common approach to rail safety. It lays down a clear procedure for granting the safety certificates which every railway company must obtain before it can run trains on the European network and harmonises safety levels across Europe by, among other things; specifying what infrastructure managers need to do in order to receive safety authorisation;
• Directive 2004/50/EC which amended Directives 96/48 and 2001/16 on the interoperability of the European high speed and conventional rail systems respectively  (the Interoperability Directive) harmonises and clarifies interoperability requirements;
• Regulation (EC) 881/2004 sets up an effective steering body, the European Railway Agency, to co-ordinate groups of technical experts seeking common solutions on safety and interoperability; 
• Directive 2004/51/EC opens up both national and international freight services on the entire European network from 1 January 2007;
• A recommendation covering the accession of the European Community to the Intergovernmental Organisation for International Carriage by Rail (COTIF).

How the second package was implemented

The Second Railway Package was implemented in the UK in 2006 by:

• The Railways and Other Guided Transport Systems (Safety Regulations) 2006 (ROGS). [amended by the EU Exit regulations S.I. 2019/837, S.I. 2019/1310, S.I. 2020/786]
• The Railways (Interoperability) Regulations 2006. [amended by the EU Exit regulations S.I. 2019/837, S.I. 2019/1310, S.I. 2020/318, S.I. 2020/786]
• The Railways (Access to Training Services) Regulations 2006. [amended by the EU Exit regulations S.I. 2019/837]
   

The European Commission adopted a third package of measures on 26 September 2007, to open up international passenger services to competition within the EU by 2010. It consists of:

• Directive 2007/58/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure: envisages opening the market for international passenger services to competition from 1 January 2010;
• Directive 2007/59/EC on the certification of train drivers operating locomotives and trains on the railway system in the community: lays down conditions and procedures for the certification of train crews operating locomotives and trains; and
• Regulation 1371/2007 on rail passengers' rights and obligations: ensures basic rights for passengers, for example, with regard to insurance, ticketing, and for passengers with reduced mobility.

How the third package was implemented

• Directive 2007/58/EC was implemented in June 2009 by The Railways Infrastructure (Access and Management) (Amendment) Regulations 2009. [revoked by the Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016];

ORR published guidance on the assessment of new international passenger services which sets out how we would apply the 'principal purpose' and 'economic equilibrium' tests as provided for in the Regulations.

• Directive 2007/59/EC was implemented in March 2010 by The Train Driving Licences and Certificates Regulations 2010 [amended by the EU Exit regulations S.I. 2019/677, S.I. 2019/345, S.I. 2020/786]  
• Regulation 1371/2007 is implemented through The Rail Passengers' Right and Obligations Regulations 2010, effective from 25 June 2010.

Regulation 1371/2007 entered into force on 3 December 2009, in full for international passenger services but only in respect of the core provisions for domestic services and was implemented through SI 2009/2970. Regulation 1371/2007 came into effect for domestic services on 4 December 2019 and the regime is set out in The Rail Passengers' Rights and Obligations Regulations 2010 and in the Regulation 1371/2007 [amended by the EU Exit regulations S.I. 2018/1165].

On 17 September 2010 the European Commission adopted a draft proposal to amend the First Railway Package directives. The recast aimed to simplify and consolidate the rules by merging three directives and their amendments into a single text. 

In addition, the Recast seeks to clarify existing provisions and tackle key problem areas which have been identified in the market over the last ten years, including:

• Clear rules for the funding and management of infrastructure
• Access to rail-related facilities (depots, maintenance etc.)
• Independence and competence of regulatory bodies

The Recast (Directive 2012/34/EC) was finalised in November 2012, and has been implemented by the Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016. [amended by the EU Exit regulations S.I. 2019/518, S.I. 2019/1310, S.I. 2020/786]

The Recast Directive gave rise to several implementing and delegated legislative measures:

• Commission Implementing Regulation (EU) 2018/ 1795 - of 20 November 2018 - laying down procedure and criteria for the application of the economic equilibrium test pursuant to Article 11 of Directive 2012/ 34/ EU) [amended by the EU Exit regulations S.I. 2019/518, S.I. 2019/1310]
• Commission Implementing Regulation (EU) 2017/2177 of 22 November 2017 on access to service facilities and rail-related services. [amended by the EU Exit regulations S.I. 2019/1310]
• 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. [included in The Railways (Access, Management and Licensing of Railway Undertakings) (Amendment) Regulations 2019 by S.I. 2019/82]
• Commission Implementing Regulation (EU) 2016/545 of 7 April 2016 on procedures and criteria concerning framework agreements for the allocation of rail infrastructure capacity. [amended by the EU Exit regulations S.I. 2019/518, S.I. 2019/1310]
• Commission Implementing Regulation (EU) 2015/1100 of 7 July 2015 on the reporting obligations of the Member States in the framework of rail market monitoring. [revoked by the EU Exit regulations S.I. 2019/518]
• 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. [amended by the EU Exit regulations S.I. 2019/518]
• Commission Implementing Regulation (EU) 2015/429 of 13 March 2015 setting out the modalities to be followed for the application of the charging for the cost of noise effects. 
• Commission Implementing Regulation (EU)/ 2015/171 of 4 February 2015 on certain aspects of the procedure of licensing railway undertakings. [revoked by the EU Exit regulations S.I. 2019/700]
• 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. [amended by the EU Exit regulations S.I. 2019/518]
• Commission Implementing Regulation (EU) No 869/2014 of 11 August 2014 on new rail passenger services.[no longer in force]

The European Commission adopted a fourth package of measures including a technical and a market pillar.

The technical pillar came into force in June 2016 and consists of:

• Regulation 2016/796 on the European Union Agency for Railways and repealing Regulation (EC) No 881/2004;
• Directive (EU) 2016/797 on the interoperability of the rail system within the European Union (Recast of Directive 2008/57/EC); and
• Directive (EU) 2016/798 on railway safety (Recast of Directive 2004/49/EC).

The market pillar was adopted in December 2016 and consists of:

• Directive (EU) 2016/2370 amending Directive 2012/34/EU as regards the opening of the market for domestic passenger transport services by rail and the governance of the railway infrastructure.
• Regulation (EU) 2016/2337 of the European Parliament and of the Council of 14 December 2016 repealing Regulation (EEC) No 1192/69 of the Council on common rules for the normalisation of the accounts of railway undertakings.
• Regulation (EU) 2016/2338 amending Regulation (EC) No 1370/2007 concerning the opening of the market for domestic passenger services by rail.

Directive (EU) 2016/2370 was implemented by The Railways (Access, Management and Licensing of Railway Undertakings) (Amendment) Regulations 2019 S.I. 2019/82.

• Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road. [amended by the EU Exit regulations S.I. 2020/504]
• 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. [revoked by the EU Exit regulations S.I. 2020/786]

• 1999 Vilnius Protocol on Convention concerning International Carriage by Rail (COTIF)
• Declaration under Article 42(1) of the Convention concerning International Carriage by Rail (COTIF)
• 2007 Luxembourg Protocol on Matters specific to Railway Rolling Stock to the Convention on International Interests in Mobile Equipment (UNIDROIT)