Regulator issues judgment in Network Rail -v- Eurostar appeal

6 March 2003
ORR/04/03

The Rail Regulator has today issued his judgment in the appeal by Network Rail Infrastructure Limited (formerly called Railtrack PLC) against the decision of the Timetabling Sub-Committee of the Access Dispute Resolution Committee which found in favour of Eurostar (UK) Limited.The appeal has been allowed.

Notes to editors:

Jurisdiction

1. The Rail Regulator is the appeal body for certain classes of dispute in the railway industry, including in matters of the allocation of capacity. Disputes may raise issues of regulatory policy, or questions of law. The tribunal of first instance, from which appeals to the Regulator come, is the Timetabling Sub-Committee of the Access Dispute Resolution Committee, a railway industry dispute resolution body established at the time of industry restructuring in 1994.

Nature of dispute

2. The Network Rail -v- Eurostar appeal is on a question of law. It raises no issues of regulatory policy. It concerns the right of Eurostar, as a train operator bound by the railway industry-wide network code, to require Network Rail to put train slots into the national timetable when it has no intention or ability to run trains at those times.

Facts

3. Railtrack PLC changed its name to Network Rail Infrastructure Limited on 3 February 2003. The legal entity is the same and so, whilst the actions giving rise to the appeal took place when the company was called Railtrack PLC, the appeal judgment is given in the company's new name.

4. Eurostar has a track access contract with Network Rail which was entered into on 1 April 1994. It expires on 29 July 2052. It provides for Eurostar to run international trains on Network Rail's domestic network, subject to its compliance with certain conditions including the timetabling procedures of the network code.

5. The network code provides for Network Rail and train operators to participate in a six-monthly timetable development process. That process involves train operators telling Network Rail which of their contractual access rights they intend to use and the train slots which they want in the timetable period in question. Network Rail uses that information to prepare a draft timetable and, from that, reconcile conflicting bids for capacity and produce a working timetable showing all train movements on the network.

6. Eurostar's access contract with Network Rail includes rights to run night services between London and Glasgow, Plymouth and Swansea. Eurostar had sleeper rolling stock - known as ENS night stock - for these and other services. However, Eurostar has never run the night services, and in 1997 decided it would not do so. It has since sold the night stock to a Canadian purchaser. Nevertheless, Eurostar has continued to participate in the timetable development process under the network code and to require Network Rail to put the night services into the national timetable.

7. In the case of the summer 2002 timetable and subsequent ones, Network Rail has refused to do so on the grounds that Eurostar's declarations of intention to run the night services were artificial and the network code does not require Network Rail to give effect to such declarations.

Issues

8. Network Rail referred the dispute to the Timetabling Sub-Committee of the Access Dispute Resolution Committee which ruled in favour of Eurostar. Network Rail appealed against that decision.

9. The Timetabling Sub-Committee decided that Eurostar had the right to make declarations of intention to run the night service trains even though it could not do so.

10. The Timetabling Sub-Committee accepted Eurostar's arguments that the fact that its contract requires it to pay Network Rail fixed track access charges for track capacity whether or not it runs any trains means that the relevant provisions of the network code should be construed so as to permit Eurostar to make a declaration in the timetable development process to the effect that it intended to run trains which it could not run.

11. Eurostar stated that it wished to use its asserted rights under the network code and its access contract as a bargaining counter to put pressure on Network Rail to reduce the amounts Eurostar pays it under the contract in return for Eurostar giving up the rights to run the night services.

Decision

12. The Regulator has allowed the appeal and reversed the decision of the Timetabling Sub-Committee.

13. The Regulator's ruling analyses the nature of access rights in the timetable development process and the right of Network Rail to make a judgment as to the validity of declarations made by train operators in that process.

A copy of the Regulator's judgement is available to download on the right of this page. It also available from the ORR Librarian, Sue MacSwan, 1 Waterhouse Square, 138-142 Holborn, London EC1N 2TQ, tel: 020 7282 2001, fax: 020 7282 2045.