In January 2024 the Railways (Revocation and Consequential Provisions) Regulations 2024 (the Regulations) came into effect. The Regulations utilise powers under the Retained EU Law (Revocation and Reform) Act 2023 to revoke several pieces of legislation which had become assimilated law.

The affected legislation covers five main areas:

• Access to rail infrastructure and the allocation of capacity;
• Application of the economic equilibrium test;
• Information relating to EU technical standards;
• Requirements for accident investigation reports; and
• The role of the European Union Agency for Railways.

The Government believes that the revoked legislation has either already been subsumed into existing UK law, or is otherwise unnecessarily prescriptive, burdensome or superfluous.

Access to rail infrastructure and the allocation of capacity

Three Commission Implementing Regulations are revoked in this area.

Regulation (EU) 2017/2177 set out detailed requirements in relation to service facilities and the services provided at them. Although the Regulation contained additional detail over and above that set out in the Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016 (AMARs), the Government determined that the impact of revocation would be very limited. AMARs will continue to regulate access to service facilities and the Government has highlighted provisions concerning non-discrimination and rights of appeal as relevant protections, together with the ORR's powers under the Competition Act 1998.

Regulation (EU) 2015/10 permitted infrastructure managers to set requirements, such as financial guarantees, to ensure that their legitimate expectations as to future revenues and infrastructure use were protected. The Government concluded that the domestic licensing regime and AMARs cover the same objectives.

Regulation (EU) 2026/545 specified procedures concerning framework agreements for the allocation of rail infrastructure capacity. The Government observed that large parts of the Regulation are not directly applied in the UK and that the Railways Act 1993, along with AMARs and the Network Code contain similar provisions and provide equivalent protections. As a consequence, there is no longer a requirement for infrastructure managers to produce framework capacity statements. 

Application of the economic equilibrium test

The ORR's processes and procedures for assessing whether an application for access to rail infrastructure will have a substantial negative impact on an operator on the same route were previously covered, in part, by Commission Implementing Regulation (EU) 2018/1795. That Regulation is now repealed on the basis that AMARs contains similar provisions which require ORR to assess the principal purpose of an international passenger service and its impact on the economic equilibrium of a relevant public service contract. In practice, the Government took the view that such circumstances (i.e. an international passenger service abstracting revenue from a domestic service) are unlikely to arise. 

EU Technical Standards

Commission Implementing Decision (EU) 2020/453 and Commission Implementing Regulation (EU) 2020/424 were also revoked. The former refers to harmonised standards which do not need to be applied in Great Britain. The Government held the view that revoking this Decision would have "little to no impact" because the Decision concerns rules governing EU institutions. As the UK Government has its own procedures for mandating standards in Great Britain, the Decision was revoked. Regulation 2020/424 sets out how applicants can obtain a derogation for non-application of EU rail technical standards by applying to the European Commission. Post-Brexit, the DfT is the competent authority responsible for granting such exemptions. 

Rail Accident Reporting

Commission Implementing Regulation (EU) 2020/572 contained prescriptive requirements for the reporting of rail accidents. The Government and the Rail Accident Investigation Branch concluded that these were "unnecessarily rigid" and in some cases obsolete. The existing reporting regime prescribed by domestic law, whilst less prescriptive, was held to be well understood and accepted by industry stakeholders and no material change in the approach to accident reporting is anticipated.

European Union Agency for Railways (EUAR)

A series of legislative instruments relating to the European Union Agency for Railways are revoked, on the basis that the EUAR no longer has any role in relation to Great British railways. The four instruments are:

• Commission Implementing Regulation (EU) 2018/764, which specifies fees to be paid to the EUAR where it grants authorisation and approvals for vehicles and infrastructure;
• Regulation (EU) 2016/796, which sets out the EUARs detailed role and functions;
• Council Decision (EU) 201/2022, which identifies the qualified experts selected by the EC for the EUAR's board of appeal; and
• Commission Implementing Regulation (EU) 2018/867, which sets out the board of appeal's rules and procedures.

Other amendments initiated under the Retained EU Law Act

This isn't the only recent use of the Retained EU Law (Revocation and Reform) Act 2023 in the rail area to amend a legal landscape that has been in place for a considerable time. On Christmas Day 2023, the Public Service Obligations in Transport Regulations 2023 came into force, amending the conditions under which 'competent authorities' may award Public Service Obligation contracts for rail passenger services and bus and tram concession services. This had formerly been dealt with by EU Regulation 1370/2007.  Rather than simply revoking the pre-existing provision as with the measures detailed above, in this instance amendments were made to it to harmonise its drafting with UK law and to codify relevant EU case law and principles to ensure that it can continue to operate in the new post-EU landscape. You can find our updater on the Public Service Obligations in Transport Regulations 2023 here. A further updater on the Railways and Freight Transport etc. (Revocation) Regulations 2024 can be found here.