STATUTORY INSTRUMENTS.

S.I. No. 281 of 1999.

EUROPEAN COMMUNITIES (ALLOCATION OF RAILWAY INFRASTRUCTURE CAPACITY AND CHARGING OF INFRASTRUCTURE FEES) REGULATIONS, 1999.

S.I. No. 281 of 1999.

EUROPEAN COMMUNITIES (ALLOCATION OF RAILWAY INFRASTRUCTURE CAPACITY AND CHARGING OF INFRASTRUCTURE FEES) REGULATIONS, 1999.

I, Mary O'Rourke T.D., Minister for Public Enterprise, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 ( No. 27 of 1972 ), and for the purpose of giving effect to Council Directive 95/19/EC of 19 June 1995⁽¹⁾ , hereby make the following regulations:

Citation and commencement.

1. (1) These Regulations, may be cited as the European Communities (Allocation of Railway Infrastructure Capacity and Charging of Infrastructure Fees) Regulations, 1999.

(2) These Regulations shall come into operation on the 31st day of August, 1999.

Interpretation.

2. (1) In these Regulations--

“Access to Railway Infrastructure Regulations” means the European Communities (Access to Railway Infrastructure) Regulations, 1996 ( S.I. No. 204 of 1996 );

“appeal panel” means a panel constituted in accordance with Regulation 18(4) for the purpose of hearing appeals under Regulation 18(1);

“bank” means a recognised bank within the meaning of the Central Bank Acts, 1942 to 1998;

“Chief Railway Inspecting Officer” means the Chief Railway Inspecting Officer referred to in Regulation 15;

“Directive” means Council Directive 95/19/EC of 19 June, 1995, on the allocation of railway infrastructure capacity and the charging of infrastructure fees;

“functions” includes powers and duties;

“Iarnoród Éireann” means the company of that name formed under section 6 of the Transport (Reorganisation of Córas Iompair Éireann) Act, 1986;

“Minister” means the Minister for Public Enterprise;

“safety certificate” means a certificate referred to in Article 11.1.

(2) A word or expression that is used in these Regulations and is also used in the Directive has, unless the contrary intention appears, the same meaning in these Regulations as it has in the Directive.

(3) In these Regulations--

(a) a reference to an Article is to an Article of the Directive,

(b) a reference to a Regulation is to a Regulation of these Regulations unless it is indicated that a reference to some other instrument is intended, and

(c) a reference to a paragraph or subparagraph is to a paragraph or subparagraph of the Regulation in which the reference occurs.

Allocation body.

3. (1) The Minister is hereby designated in accordance with Article 3 as the allocation body and has the functions given to that body under the Directive.

(2) Accordingly references in the Directive and these Regulations to the allocation body shall be construed as references to the Minister.

Infrastructure manager.

4. (1) Iarnród Éireann has the functions given to an infrastructure manager under the Directive.

(2) Accordingly references in the Directive and these Regulations to the infrastructure manager shall be construed as references to Iarnród Éireann.

Duty of infrastructure manager and applicant to inform the allocation body of certain matters.

5. (1) At the allocation body's request, the infrastructure manager shall inform the allocation body of all train paths available in the State and of all services operated on those train paths.

(2) The infrastructure manager shall inform the allocation body of all published train timetables and shall give six months notice to the allocation body of any proposed adjustments to any timetable.

(3) An applicant for an allocation of infrastructure capacity within the State shall, by written notice, inform the allocation body if the applicant directly contacts any other allocation bodies under Article 10.4.

Prohibition on the use of railway infrastructure.

6. (1) No person or body may operate services referred to in Regulation 4, 5 or 6 of the Access to Railway Infrastructure Regulations on the railway infrastructure within the State that is owned by Iarnród Éireann, without an allocation of railway infrastructure capacity and a safety certificate given in accordance with these Regulations.

(2) Any person or body who contravenes paragraph (1) shall be guilty of an offence under this Regulation and shall be liable on summary conviction to a fine not exceeding £1,500, or to imprisonment for a term not exceeding 12 months, or at the discretion of the Court, to both.

Application for infrastructure capacity.

7. (1) An application for the allocation of railway infrastructure capacity may be submitted by a railway undertaking or an international grouping, which is or will be established in the European Union, and which is entitled to provide any services referred to in Regulation 4, 5 or 6 of the Access to Railway Infrastructure Regulations under the conditions laid down in those Regulations.

(2) An application for the allocation of railway infrastructure capacity shall only be considered if it is--

(a) in accordance with such form as the allocation body may from time to time direct, and

(b) accompanied by--

(i) proof that the applicant railway undertaking or the international grouping is entitled under paragraph (1) to apply for infrastructure capacity in the State,

(ii) a safety certificate issued to the applicant under Regulation 16,

(iii) a bond in favour of the allocation body, that is guaranteed by a bank and that meets the requirements of paragraph (3) or, with the allocation body's approval, proof of an equivalent arrangement that meets those requirements, and

(iv) an application fee of £500.

(3) The bond or equivalent arrangement referred to in paragraph (2) shall--

(a) be entered into by the applicant or, if the applicant is an international grouping, by each railway undertaking forming part of the grouping,

(b) be for an amount equal in value to 5 per cent of the total cost to the applicant of providing the services for which the allocation is required, established under realistic assumptions, for a period of 12 months from the date of allocation, and

(c) provide that if the applicant does not make use of a train path allocated to the applicant under these Regulations, the proceeds of the bond or other arrangement in an amount not exceeding--

(i) the amount certified by the allocation body as the cost of processing the application, plus

(ii) the amount certified by the allocation body as the amount of any subsequent loss of earnings by the infrastructure manager due to the non-use of that infrastructure,

are payable, on the allocation body's written demand, to the allocation body.

(4) The allocation body may--

(a) seek further particulars of any matter that appears to the allocation body to be relevant to its consideration of an application, and

(b) require those particulars to be given by means of an affidavit or statutory declaration or in such other manner as the allocation body may direct.

Compensation for lost earnings.

8. If an amount certified and approved under Regulation 7(3)(c) is paid to the allocation body out of the proceeds of a bond or equivalent arrangement, the allocation body shall pay that part of the amount which relates to the loss of earnings under 7(3)(c)(ii) to the infrastructure manager in compensation for loss of earnings due to the non-use of its infrastructure.

Allocation of railway infrastructure capacity.

9. (1) Railway infrastructure capacity for services referred to in Regulation 4, 5 or 6 of the Access to Railway Infrastructure Regulations may only be allocated to a person or body entitled to make an application under Regulation 7.

(2) An allocation of railway infrastructure capacity shall be for a maximum period of 12 months and may be renewed subject to these Regulations.

(3) An allocation of railway infrastructure capacity shall entitle the holder to operate trains over the train paths in accordance with the conditions set out in the allocation.

(4) The allocation body may attach to any allocation of infrastructure capacity such conditions as it considers appropriate to ensure that the holder of the allocation--

(a) operates the services specified in his or her application,

(b) does not interfere with the rights of holders of other allocations or the rights of operators of services not covered by these Regulations, and

(c) does not operate in an unsafe manner.

(5) Subject to paragraph (1), the allocation body shall allocate railway infrastructure capacity in accordance with the following rules:

(a) it may give priority to public service obligations provided for in Article 4(1)(a);

(b) it may not refuse an application for a particular train path if there is no other application for all or part of the path;

(c) if more than one application is received for all or part of a particular train path it shall endeavour, by suggesting suitable amendments to the applicants, to reach agreement among the applicants which would enable some or all of the applications to be granted;

(d) it may refuse any application if, in its opinion, the applicant has unreasonably refused to agree to a modification to its application;

(e) if it is not possible to reach agreement with all of the applicants, even though the applicants have not unreasonably refused to agree to a modification to their applications, it shall--

(i) allocate the train path to the applicant, if any, who has the right to use the path, or a substantially similar path, at the time of the application, if at the end of the current allocation period the applicant will not have already enjoyed the use of the path for 60 or more consecutive months, or

(ii) allocate a train path to one of the applicants on a non-discriminatory basis.

(6) As soon as possible, but in any event no later than 2 months after receiving all relevant information relating to an application for infrastructure capacity, the allocation body shall decide whether to grant or refuse the application.

(7) The allocation body's decision concerning an application for railway infrastructure capacity (including, in the case of a refusal, the reason or reasons for the refusal) shall be communicated by written notice to the applicant.

(8) If an application is refused on the grounds of insufficient railway infrastructure capacity, the written notice shall include the following information:

(a) that the applicant is entitled to request the allocation body to reconsider the application at the next timetable adjustment for the routes concerned;

(b) the date when those adjustments would be considered;

(c) the time allowed and the procedure for making the request.

Review by allocation body.

10. (1) Where the allocation body decides to refuse an application for railway infrastructure capacity, the applicant may, no later than 21 days after being notified of the decision, make a written request to the allocation body to review the decision indicating why such a review is necessary.

(2) On reviewing a decision that is the subject of a request made under paragraph (1), the allocation body may--

(a) if satisfied that, having regard to the facts and circumstances specified in the request, the decision is not appropriate, substitute for it such other decision as the allocation body considers appropriate, and

(b) in any other case, confirm the decision.

(3) On reviewing a decision that is the subject of a request under paragraph (1), the allocation body shall, by written notice, advise the applicant who made the request of the outcome of the review.

Contracts with infrastructure manager.

11. (1) Railway undertakings and international groupings to which railway infrastructure capacity is allocated in accordance with these Regulations shall conclude an agreement with the infrastructure manager covering the necessary administrative, technical and financial matters to regulate traffic control and safety issues concerning the services to be provided by them.

(2) The terms and conditions of the agreement concluded pursuant to paragraph (1) shall not be discriminatory between railway undertakings or between railway undertakings and the infrastructure manager as a provider of rail services.

(3) The infrastructure manager in granting access rights under this Regulation shall operate its control and safety systems so as to take into account of the services operated in exercise of such rights.

Notification of contracts to allocation body.

12. (1) Within 14 days of the conclusion of an agreement pursuant to Regulation 11, the infrastructure manager shall send a copy of the agreement to the allocation body and shall notify all other allocation bodies of the conclusion of the agreement.

(2) The allocation body shall, if so requested in writing by a railway undertaking or international grouping which it reasonably considers has an interest in the matter, provide to that undertaking or grouping such particulars of the agreement as that it may reasonably require, including the particulars as to the infrastructure fees payable under the agreement.

(3) In making information available to any relevant infrastructure manager or other allocation body, the allocation body shall have regard to the need for excluding, as far as practicable, any particulars of or about the agreement which, if disclosed, would or might in the opinion of the allocation body seriously and prejudicially affect the interests of any party to the agreement.

Failure to use allocated train paths.

13. (1) The allocation body may, if it considers that a service being provided on foot of an allocation of railway infrastructure capacity to operate a service in accordance with these Regulations does not meet the requirements under which the allocation was made, give a direction to have the service brought up to the required standard and the railway undertaking or international grouping shall comply with the direction forthwith.

(2) If after a reasonable period, a direction under paragraph (1) is not complied with, the allocation body may suspend or cancel the allocation.

Infrastructure fees.

14. The infrastructure manager may charge infrastructure fees in accordance with the following rules:

(a) the infrastructure manager shall not discriminate in the charging of infrastructure fees for services of an equivalent nature;

(b) in determining a fee, account shall be taken of the nature of the service, the time of the service, the market situation and the type and degree of wear and tear of the infrastructure;

(c) the infrastructure manager shall provide the allocation body with all the information sought by it on infrastructure fees necessary to satisfy the allocation body that its infrastructure fees are charged on a non-discriminatory basis;

(d) any fee payable under this Regulation shall not be refundable.

Appointment of Person to issue Safety Certificate.

15. (1) The person who, for the time being, holds the position of Chief Railway Inspecting Officer within the Minister's Department shall have the authority to issue Safety Certificates for the purposes of Article 11 and Regulation 16.

(2) The Chief Railway Inspecting Officer shall be independent in the performance of his or her duties under these Regulations.

(3) No action or other proceedings shall lie or be maintainable (except in the case of wilful neglect or default) against the Chief Railway Inspecting Officer arising from a failure to perform or to comply with any of the functions conferred on the Chief Railway Inspecting Officer by these Regulations.

Issue of safety certificates.

16. (1) To obtain a safety certificate, a railway undertaking or international grouping shall make a written request to the Chief Railway Inspecting Officer.

(2) The railway undertaking or international grouping shall submit with the request--

(a) a document, which shall be known as a “safety case”, in which the applicant--

(i) identifies all of the safety hazards that are associated with the operation of the service which is the subject to the application, and

(ii) sets out his or her proposals to respond to each of the identified hazards so as to ensure that the public, passengers or persons employed in connection with an aspect of railway activities will not be exposed to unreasonable risks due to the operation of the service, and

(b) a fee payable to the Minister in an amount determined by the Chief Railway Inspecting Officer as the cost of processing the request.

(3) On request under paragraph (1) the Chief Railway Inspecting Officer shall only issue a safety certificate to a railway undertaking or international grouping if he or she considers that the safety case submitted by the applicant is satisfactory.

(4) At the request of the Chief Railway Inspecting Officer, the infrastructure manager, railway undertaking or international grouping shall--

(a) respond to any enquiry as soon as possible and in any event within 2 weeks,

(b) provide details of the company's requirements as described at 2(a) and 2(b) above as soon as possible and in any event within 6 weeks.

(5) A safety certificate shall have effect and be valid for the duration of the allocation of the infrastructure capacity unless it is withdrawn under paragraph (6).

(6) A safety certificate may be withdrawn at any time by the Chief Railway Inspecting Officer if in his or her opinion--

(a) the holder of the certificate has failed to operate in accordance with the safety case on the basis of which the certificate was issued, or

(b) the safety case is no longer sufficient to ensure that persons are not exposed to unreasonable risks due to the operation of the service.

(7) In the event of refusal by the Chief Railway Inspecting Officer to issue a safety certificate, or in the event of the withdrawal of a safety certificate, the reason for the refusal or withdrawal shall be indicated by him or her to the party concerned.

(8) The refusal or withdrawal shall be final, but it shall be open to the applicant to submit a revised safety case and request the issue of a safety certificate on its basis.

Duration of safety certificate.

17. A safety certificate shall have effect and be valid for the duration of the allocation of the infrastructure capacity unless it is withdrawn under Regulation 16.

Appeal to panel.

18. (1) A railway undertaking or international grouping that is aggrieved by--

(a) a decision of the allocation body on the allocation of infrastructure capacity, or

(b) a decision of the infrastructure manager on the charging of infrastructure fees,

may, within the period specified in paragraph (2), appeal against that decision to an appeal panel.

(2) An appeal under paragraph (1) shall be made by delivering a written notice of appeal to the allocation body no later than 21 days after the railway undertaking or the international grouping, as the case may be, is notified of the decision being appealed.

(3) A railway undertaking or international grouping shall not be entitled to make an appeal under this Regulation with respect to a decision on the allocation of infrastructure capacity unless it has first requested a review under Regulation 10.

(4) On receiving a notice of appeal under paragraph (2), the allocation body shall refer the appeal to a panel consisting of three members of whom--

(a) two shall be members with suitable experience nominated one each by the allocation body and the appellant;

(b) one shall be a Senior Counsel nominated by the two members referred to in subparagraph (a).

(5) After considering an appeal against a decision on the allocation of infrastructure capacity or against a decision on the charging of infrastructure fees, the appeal panel may--

(a) if satisfied that the decision was properly made, confirm the decision, or

(b) if not so satisfied, direct the allocation body or the Infrastructure Manager, as the case may be to alter its decision to one which the panel considers fair and non-discriminatory.

(6) An appeal panel shall--

(a) make a decision under paragraph (5) within two months after the submission to the panel of all information relevant to the appeal, and

(b) by written notice, inform the appellant, the infrastructure manager and the allocation body of its decision including the reason or reasons.

(7) On receipt by the allocation body of a notice of appeal against a decision on the charging of infrastructure fees, the requirement to pay the fee shall be suspended pending the final determination of the appeal.

⁽¹⁾ O.J. No. L143 of 27.6.95