STATUTORY INSTRUMENTS.

S.I. No. 643 of 2004 .

EUROPEAN COMMUNITIES (ALLOCATION OF RAILWAY INFRASTRUCTURE CAPACITY AND THE LEVYING OF CHARGES FOR THE USE OF RAILWAY INFRASTRUCTURE AND SAFETY CERTIFICATION) REGULATIONS, 2004.

S.I. No. 643 of 2004 .

EUROPEAN COMMUNITIES (ALLOCATION OF RAILWAY INFRASTRUCTURE CAPACITY AND THE LEVYING OF CHARGES FOR THE USE OF RAILWAY INFRASTRUCTURE AND SAFETY CERTIFICATION) REGULATIONS, 2004.

I, SEAMUS BRENNAN, Minister for Transport, 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 2001/14/EC of the European Parliament and of the Council of 26 February 2001¹ , hereby make the following Regulations.

Citation.

These Regulations may be cited as the European Communities (Allocation of Railway Infrastructure Capacity and the levying of Charges for the use of Railway Infrastructure and Safety Certification) Regulations, 2004.

Interpretation.

(1) In these Regulations--

“allocation” means the allocation of railway infrastructure capacity by the infrastructure manager;

“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 Regulations 16 and 17;

“Directive” means Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification;

“functions” includes powers and duties;

“heritage railway” means a railway undertaking which only operates train services or railway infrastructure of historic or touristic interest;

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

“Member State” means a Member State of the European Communities;

“Minister” means the Minister for Transport;

“safety certificate” means a certificate referred to in Regulations 16 and 17;

(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 Annex is to an Annex of the Directive,

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

(c) 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

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

Scope.

(1) These Regulations concern the procedures to be applied with regard to the setting and charging of railway infrastructure charges and the allocation of railway infrastructure capacity.

(2) These Regulations apply to the use of railway infrastructure for domestic and international rail passenger and freight services.

(3) The following are excluded from the scope of these Regulations--

(a) networks intended only for the operation of urban or suburban passenger services,

(b) privately owned railway infrastructure that exists solely for use by the infrastructure owner for its own freight operations,

(c) regional networks which are used for regional freight services solely by a railway undertaking that is not covered by the scope of Directive 91/440/EC² until capacity on the network is requested by another applicant.

Infrastructure Manager.

(1) Iarnród Éireann is designated as infrastructure manager for the purposes of these Regulations.

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

(3) The infrastructure manager shall liase with the infrastructure managers of the other Member States on all relevant matters where appropriate.

(4) The infrastructure manager shall co-operate with the infrastructure managers of the other Member States to ensure the efficient operation of train services which cross more than one infrastructure network.

(5) The infrastructure manager shall act in a fair and non-discriminatory manner at all times in performing its functions under these Regulations.

Services.

(1) Railway undertakings shall be entitled to the maximum access package and track access to service facilities described in Annex II. The infrastructure manager may only reject a request for track access to service facilities if viable alternatives under market conditions exist.

(2) Where the infrastructure manager provides the services described in Annex II, point 3, they shall be provided on request by a railway undertaking.

(3) The infrastructure manager is not obliged to provide the services referred to in Annex II, point 4.

(4) When providing the services and facilities referred to in paragraphs (1), (2) and (3), the infrastructure manager shall act in a fair and non-discriminatory manner.

(5) The infrastructure manager may conclude agreements with railway undertakings or international groupings related to the services referred to in the preceding paragraphs of this Regulation.

Infrastructure charges.

(1) The Infrastructure Manager shall charge a charge, in these Regulations referred to as an infrastructure charge, to railway undertakings or international groupings for the use of the railway infrastructure. The infrastructure charge shall be payable to the infrastructure manager and shall be used to fund infrastructure maintenance and the operations of the infrastructure manager in its capacity as infrastructure manager.

(2) The amount of the infrastructure charge shall be determined by the Infrastructure Manager in accordance with this Regulation. It shall comprise a basic charge and any other charges connected with the infrastructure charge.

(3) The infrastructure charge shall take account of the services provided by the Infrastructure Manager under Regulation 5.

(4) The Infrastructure Manager shall not discriminate in the charging of infrastructure charges for services of an equivalent nature.

(5) The following shall apply to the calculation of infrastructure charges:

(a) The infrastructure charge for the minimum access package and access to service facilities referred to in Annex II shall be set at the cost that is directly incurred as a result of operating the train service.

(b) Where there is only one supplier, the infrastructure charge for the services described in Annex II, point 3 and 4 shall relate to the cost of providing the service, calculated on the basis of the actual level of use.

(c) The infrastructure charge for the services referred to in Annex II, point 2 shall take account of the competitive situation pertaining in rail transport.

(6) In determining the amount of the infrastructure charge, account shall be taken of the following factors:

(a) the nature of the service,

(b) the frequency of the service,

(c) the time of the service,

(d) the prevailing market situation,

(e) the type and degree of wear and tear of the infrastructure,

(f) the cost of infrastructure maintenance,

(g) scarcity of capacity.

(7) The infrastructure manager shall ensure that its charging scheme is based on the same principles over the entire network.

(8) The infrastructure charging scheme may include penalties for actions which disrupt the operation of the network, compensation for undertakings which suffer from disruption and bonuses that reward better than planned performance and these principles shall apply throughout the network.

(9) Infrastructure charges payable under this Regulation shall not be refundable.

Applications for infrastructure capacity.

(1) An application for the allocation of railway infrastructure capacity may be submitted to the infrastructure manager for each timetable period by a railway undertaking or an international grouping established, or to be established, in the State or another Member State.

(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 infrastructure manager may from time to time direct, and

(b) accompanied by--

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

(ii) a safety certificate issued to the applicant under Regulation 17,

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

(iv) an application fee of €750.

(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, and

(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.

(4) The infrastructure manager shall respect the commercial confidentiality of information provided by any applicant.

(5) 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 infrastructure manager as the cost of processing the application, plus

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

shall be payable, on the infrastructure managers written demand, to the infrastructure manager.

(6) The infrastructure manager may--

(a) seek further particulars of any matter that appears to it 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 infrastructure manager may direct.

Co-operation of the Infrastructure Manager with other Infrastructure Managers.

(1) The Infrastructure Manager shall co-operate with the infrastructure managers of the other Member States to enable the efficient creation and allocation of infrastructure capacity which crosses more than one network.

(2) In performing the functions under paragraph (1), the Infrastructure Manager shall act in accordance with Article 15(3).

(3) The Infrastructure Manager shall, in co-operation with the infrastructure managers of the other Member States, assess the need for, and if necessary propose and organise international train paths to facilitate the operation of freight services which are subject to an ad hoc request under Regulation 13.

Specialised infrastructure.

(1) If there are suitable alternative train paths for other traffic, the infrastructure manager may, after consultation with interested parties, reserve a specific train path or part of a train path as special infrastructure capacity in accordance with Article 24(2). However, such a reservation of infrastructure capacity shall not prevent other types of traffic from availing of the infrastructure capacity when capacity is available and the rolling stock conforms to the technical characteristics necessary.

(2) When allocating infrastructure capacity on train paths or parts of train paths reserved as special infrastructure capacity, the infrastructure manager may give priority to the type of traffic for which the infrastructure has been reserved.

Scheduling.

(1) The infrastructure manager and applicants for infrastructure capacity shall adhere to the schedule for the allocation process set out in Annex III.

(2) The infrastructure manager shall consult with interested parties about the draft working timetable and allow them one month to present their views. Interested parties shall include all those who have requested infrastructure capacity as well as other parties who wish to have the opportunity to comment on how the draft working timetable may affect their ability to procure rail services during the working timetable period.

(3) The draft working timetable shall take account of the capacity requested, provided that the requested train paths enable railway traffic to be operated in accordance with technical and safety regulations.

(4) The infrastructure manager, in order to improve the allocation of capacity, may offer applicants capacity that does not essentially differ from the capacity they have requested. Capacity may also be left unallocated, provided that reserve capacity is needed for the working timetable period pursuant to a reservation of capacity under Regulation 9.

(5) The infrastructure manager shall take appropriate measures to deal with any concerns expressed by interested parties.

(6) The infrastructure manager may, within the working timetable, reserve infrastructure capacity to enable it to respond rapidly to foreseeable ad hoc requests for individual train paths made under Regulation 13.

Allocation of railway infrastructure capacity.

(1) The infrastructure manager shall, having taken into account the comments of interested parties pursuant to Regulation 10 and taking into account the needs of passenger and freight traffic, infrastructure maintenance and the efficient use of the railway network, allocate infrastructure capacity--

(a) on the basis of the draft timetable,

(b) on a fair an non-discriminatory basis,

(c) and subject to the conditions set out in this Regulation.

(2) Railway infrastructure capacity may only be allocated to a person or body

(a) entitled to make an application under Regulation 7, and

(b) to whom a safety certificate has been issued pursuant to Regulation 17.

(3) The infrastructure manager shall as far as possible meet all requests for infrastructure capacity, including requests for train paths crossing more than one network.

(4) Subject to paragraph (1), the infrastructure manager may not refuse an application for a particular train path if there is no other application for all or part of the path.

(5) 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.

(6) The infrastructure manager 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 allocation,

(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 the services specified in his or her allocation in an unsafe manner.

(7) If more than one application is received for all or part of a particular train path, the infrastructure manager 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.

(8) Subject to paragraph (9), 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, the infrastructure manager shall.

(a) 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

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

(9) Notwithstanding the provisions of paragraph (8), the infrastructure manager may refuse any application if, in its opinion, the applicant has unreasonably refused to agree to a modification to its application proposed by the infrastructure manager under paragraph (7).

(10) The infrastructure managers 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.

(11) 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 infrastructure manager to reconsider the application at the next timetable adjustment for the routes concerned,

(b) the date when those adjustments would be considered, and

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

Contracts with infrastructure manager.

(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) Agreements referred to in paragraph (1) may include details relating to the provision of services as outlined in Regulation 5.

(3) The terms and conditions of an 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.

(4) The infrastructure manager in granting allocation rights under these Regulations shall operate its control and safety systems so as to take into account of the sevices operated in exercise of such rights.

Ad hoc requests for infrastructure capacity.

(1) Applicants may make ad hoc requests in writing to the infrastructure manager for individual train paths.

(2) The infrastructure manager shall respond to ad hoc requests for individual train paths within five days of the request being received by the infrastructure manager.

(3) Subject to the requirements of these Regulations, the infrastructure manager shall allocate the train path requested if there is sufficient reserved infrastructure capacity to meet the ad hoc request.

(4) Notwithstanding the provisions of Regulation 11, the infastructure manager may on request allocate train paths to operations of heritage railways.

(5) The infrastructure manager may waive infrastructure charges or levy a nominal charge in respect of the allocation of infrastructure capacity to operators of heritage railways.

Monitoring of allocated train paths.

(1) If the infrastructure manager considers that a service being provided on foot of an allocation of railway infrastructure capacity under these Regulations does not meet the requirements under which the allocation was made, it may give notice in writing to the applicant to whom the allocation was made directing that applicant to bring the service up to the required standard within the time limit specified in the notice.

(2) If there is a failure to comply with a notice given under paragraph (1) within the time limit specified in the notice, the infrastructure manager may suspend or withdraw the allocation.

(3) Where there has been a failure to use a train path that has been allocated, the infrastructure manager may decide not to withdraw capacity if the failure to use it is due to reasons beyond the control of the applicant to whom the allocation was made.

(4) The infrastructure manager may withdraw infrastructure capacity in full or in part on a part of the rail network which is provisionally out of service due to a technical failure, accident or some other incident on the rail network. In such cases the infrastructure manager may offer the operator using the said capacity an alternative train path or train paths.

Measures to be taken in the event of disturbance.

(1) In the event of disturbance to services on train paths allocated in accordance with Regulation 11 caused by technical failure or accident, the Infrastructure Manager shall take all the necessary steps to ensure that train services can be resumed as soon as possible.

(2) The Infrastructure Manager shall draw up a list of the various public bodies to be informed in the event of serious railway incidents.

(3) Where the disturbance to services under paragraph (1) is caused by an accident, the obligation on the Infrastructure Manager to ensure that all necessary steps are taken to facilitate the early resumption of services is without prejudice to any other obligations on the Infrastructure Manager or any other person under national or Community law to facilitate the proper investigation of railway accidents.

Appointment of person to issue Safety Certificate.

(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 32 and Regulation 17.

(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.

(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 of 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) The Chief Railway Inspecting Officer shall only issue a safety certificate 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 applicant's requirements as described in paragraph 2(a) above as soon as possible and in any event within 6 weeks.

(5) 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.

(6) 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.

(7) 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 the basis of the revised safety case.

Appeal to panel.

(1) A railway undertaking or international grouping that is aggrieved by a decision of the infrastructure manager on--

(a) the allocation of infrastructure capacity, or

(b) the charging of infrastructure charges,

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 infrastructure manager no later than 21 days after the railway undertaking or international grouping, as the case may be, is notified of the decision being appealed.

(3) On receipt of a notice of appeal under paragraph (2), the infrastructure manager shall refer the appeal to an appeal panel.

(4) An appeal panel convened for the purpose of hearing an appeal under this Regulation shall consist of three members appointed in the following manner--

(a) One member appointed by the infrastructure manager,

(b) One member appointed by the appellant, and

(c) A senior counsel agreed upon by the members referred to in subparagraph (a) and (b). Where the members fail to agree upon a senior counsel within one month of them both being appointed, the chairman of the Bar Council shall be requested to nominate a senior counsel.

(5) An appeal panel convened under this Regulation shall determine the manner in which the appeal shall be conducted.

(6) After considering an appeal the appeal panel may--

(a) confirm the decision, or

(b) substitute its decision for that of the infrastructure manager and that decision shall take effect as if made by the infrastructure manager.

(7) The appeal panel shall--

(a) make a decision under paragraph (6) within two months after the submission to the panel of all information relevant to the appeal, and

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

(8) On receipt by the infrastructure manager of a notice of appeal against a decision on the charging of infrastructure charges, the requirement to pay the charges shall be suspended pending the final determination of the appeal.

Revocation.

The European Communities (Allocation of Railway Infrastructure Capacity and Charging of Infrastructure Fees) Regulations, 1999 are hereby revoked.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

The purpose of these Regulations is to give effect to Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification and to revoke the European Communities (Allocation of Railway Infrastructure Capacity and Charging of Infrastructure Fees) Regulations, 1999, S.I. No. 281 of 1999 .

¹ L 75 of 15.03.01, p.29

² L237 of 24.08.91, p.27