New ORR policy on moderation of competition

ORR statement (37 pages, PDF) setting out a new policy on "moderation of competition". The contractual protection from competition granted to incumbent franchisees on important flows is to be removed. It is replaced with a regulatory policy to block the grant of access rights to competitors where these would be "primarily abstractive" of incumbents' revenues, to the extent that they would constitute "cherry-picking" and that the additional uncertainty and loss of revenue for Government franchises would not be justified (in terms of the ORR's statutory duties under the Railways Act 1993) by the competing service's other benefits. The statement describes a five-stage process to collect information for this assessment.

Contractual protection may still be granted in cases where it is necessary to support an investment project, if the parties seeking protection can demonstrate the need to the ORR. The document notes similarities with the conditions for an Article 81(3) justification to apply, but considers that differences in statutory duties between the application of regulatory powers and the application of competition law preclude a complete identification of these two questions.

For further information or advice please contact Franck Latrémolière.

Filed under ECML, ORR, Public transport.

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