The Railways (Interoperability) Regulations 2011

Exemption from need to conform with TSIs (derogations)

14.—(1) The Competent Authority may determine that, in the circumstances or cases specified in paragraph (2), the whole or part of a relevant TSI is not to apply in relation to a subsystem (“a derogation”).

(2) The circumstances or cases are—

(a) any project which—

(i) is for a proposed new subsystem;

(ii) is for the renewal or upgrading of an existing subsystem; or

(iii) concerns any element referred to in Article 1(1) of the Directive,

and the project is at an advanced stage of development having regard to the impact that a change in technical specification would have on the project or the project is the subject of a contract in the course of performance when the applicable TSI is published;

(b) any project concerning the renewal or upgrading of an existing subsystem, where the loading gauge, track gauge, space between tracks or electrification voltage in the applicable TSI is not compatible with those of the existing subsystem;

(c) a proposed new subsystem or a proposed renewal or upgrading of an existing subsystem where the rail network is separated or isolated by the sea or separated as a result of special geographical conditions from the rail network of the rest of the EU;

(d) any proposed renewal, extension or upgrading of an existing subsystem when the application of an applicable TSI would compromise the economic viability of the project or the compatibility of the project with the rail system in the United Kingdom;

(e) following an accident or natural disaster, where the conditions for the rapid restoration of the network do not economically or technically allow for partial or total application of an applicable TSI; and

(f) vehicles coming from or going to countries outside the EU the track gauge of which is different from that of the main rail network within the EU.

(3) The Competent Authority is not to make a derogation from the application of a TSI or part of a TSI unless the Secretary of State has first forwarded a file to the Commission containing the information set out in Annex IX to the Directive.

(4) Save for matters concerning the loading gauge and the track gauge and subject to paragraph (6), a derogation in relation to the circumstances or cases set out in paragraph (2)(b) has no effect unless the derogation has been permitted by the Commission by a decision in accordance with Articles 9(5) and 29(3) of the Directive.

(5) Subject to paragraph (6), in the circumstances or cases set out in paragraph (2)(d) and (f) a derogation is to have no effect unless the derogation has been permitted by the Commission by a decision in accordance with Articles 9(5) and 29(3) of the Directive.

(6) For the purposes of paragraphs (4) and (5) the Commission is deemed to have permitted the derogation if it has made no decision within six months of receiving the file referred to in paragraph (3).