S.I. No. 249/2015 - European Union (Regulation of Railways) Regulations 2015

CONTENTS

Part 1 Preliminary and General

1.

2.

3.

4.

Part 2 Infrastructure Management and Access

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

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18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

Part 3 Regulatory Body and Functions

29.

30.

31.

32.

33.

Part 4 Licensing of Railway Undertakings

34.

35.

36.

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.

47.

48.

49.

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51.

SCHEDULE 1 LIST OF RAILWAY INFRASTRUCTURE ITEMS

SCHEDULE 2 SERVICES TO BE SUPPLIED TO THE RAILWAY UNDERTAKINGS

SCHEDULE 3 BASIC PRINCIPLES AND PARAMETERS OF CONTRACTUAL AGREEMENTS BETWEEN COMPETENT AUTHORITY AND INFRASTRUCTURE MANAGERS

SCHEDULE 4 CONTENTS OF THE NETWORK STATEMENT

SCHEDULE 5 SCHEDULE FOR THE ALLOCATION PROCESS

SCHEDULE 6 REQUIREMENTS FOR COSTS AND CHARGES RELATED TO RAILWAY INFRASTRUCTURE

SCHEDULE 7 ACCOUNTING INFORMATION TO BE SUPPLIED TO THE REGULATORY BODY UPON REQUEST

SCHEDULE 8 FINANCIAL FITNESS

S.I. No. 249 of 2015

EUROPEAN UNION (REGULATION OF RAILWAYS) REGULATIONS 2015

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 16th June, 2015.

I, PASCHAL DONOHOE, Minister for Transport, Tourism and Sport in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) for the purpose of giving effect to Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012¹ , hereby make the following regulations:

Part 1 Preliminary and General

Citation

Interpretation

“Act of 2005” means Railway Safety Act 2005 (No. 31 of 2005);

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

“alternative route” means another route between the same origin and destination where there is substitutability between the two routes for the operation of the freight or passenger service concerned by the railway undertaking;

“applicant” means a railway undertaking or an international grouping of railway undertakings or other persons with a public-service or commercial interest in procuring infrastructure capacity;

“bank” means a recognised bank within the meaning of the Central Bank Acts 1942 to 2013;

“capacity-enhancement plan” means a measure or series of measures with a calendar for their implementation which aim to alleviate the capacity constraints which led to the declaration of an element of infrastructure as ‘congested infrastructure’;

“company” has the same meaning as it has in the Companies Act 2014 (No. 38 of 2014), and where appropriate, includes a co-operative and any other body corporate duly established;

“congested infrastructure” means an element of infrastructure for which demand for infrastructure capacity cannot be fully satisfied during certain periods even after coordination of the different requests for capacity;

“contractual agreement” means an agreement or, mutatis mutandis, an arrangement within the framework of administrative measures;

“coordination” means the process through which the EFB and applicants will attempt to resolve situations in which there are conflicting applications for infrastructure capacity;

“Directive” means Directive 2012/34/EU of the European Parliament and of the Council of 21 November 20121;

“EFB” means the essential functions body;

“essential functions” means decision-making on train path allocation, including both the definition and the assessment of availability and the allocation of individual train paths, and on infrastructure charging, including determination and collection of the charges in accordance with these Regulations;

“essential functions body” means the body designated under Regulation 5 to undertake the essential functions of the infrastructure manager in the State;

“framework agreement” means a legally binding general agreement under public or private law, setting out the rights and obligations of an applicant and the infrastructure manager in relation to the infrastructure capacity to be allocated and the charges to be levied over a period longer than one working timetable period;

“heavy maintenance” means work that is not carried out routinely as part of day-to-day operations and requires the vehicle to be removed from service;

“Iarnród Éireann infrastructure manager” means the infrastructure manager designated under Regulation 7;

“independent monitoring body” means the Railway Safety Commission appointed under Regulation 9 to monitor a contractual agreement referred to in Regulation 8;

“infrastructure capacity” means the potential to schedule train paths requested for an element of infrastructure for a certain period;

“infrastructure manager” means a body or firm responsible in particular for establishing, managing and maintaining railway infrastructure, including traffic management and control-command and signalling; the functions of the infrastructure manager on a network or part of a network may be allocated to different bodies or firms and in the State is Iarnród Éireann-Irish Rail;

“international freight service” means a transport service where the train crosses at least one border of a Member State; the train may be joined or split and the different sections may have different origins and destinations, provided that all wagons cross at least one border;

“international passenger service” means a passenger service where the train crosses at least one border of a Member State and where the principal purpose of the service is to carry passengers between stations located in different Member States; the train may be joined or split and the different sections may have different origins and destinations, provided that all carriages cross at least one border;

“licence” means an authorisation issued by the licensing authority to an undertaking, by which its capacity to provide rail transport services as a railway undertaking is recognised; that capacity may be limited to the provision of specific types of services;

“licensee” means the holder of a licence;

“licensing authority” means the body responsible for granting licences within a Member State and, in the State, is the Railway Safety Commission;

“Minister” means Minister for Transport, Tourism and Sport;

“network” means the entire railway infrastructure managed by an infrastructure manager;

“network statement” means the statement under Regulation 11 which sets out in detail the general rules, deadlines, procedures and criteria for charging and capacity-allocation schemes, including such other information as is required to enable applications for infrastructure capacity;

“operator of service facility” means any public or private entity responsible for managing one or more service facilities or supplying one or more services to railway undertakings referred to in paragraphs 2 to 4 of Schedule 2;

“railway infrastructure” means the items listed in Schedule 1;

“Railway Safety Directive” means Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004² (as amended by Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008³ , Directive 2008/110/EC of the European Parliament and of the Council of 16 December 2008⁴ and Commission Directive 2009/149/EC of 27 November 2009⁵ );

“railway undertaking” means any public or private undertaking licensed according to the Directive, and in the State, licenced according to Part 4, the principal business of which is to provide services for the transport of goods or passengers or both by rail with a requirement that the undertaking ensure traction; this also includes undertakings which provide traction only;

“regulatory body” means the Railway Safety Commission designated under Regulation 29 to be responsible for regulation of the railway sector in the State;

“Regulations of 2003” means European Communities (Licensing of Railway Undertakings) Regulations 2003 ( S.I. No. 537 of 2003 ) (as amended by European Communities (Licensing of Railway Undertakings) (Amendment) Regulations 2010 ( S.I. No. 298 of 2010 ));

“Regulations of 2013” means European Communities (Railway Safety) Regulations 2013 ( S.I. No. 444 of 2013 );

“service facility” means the installation, including ground area, building and equipment, which has been specially arranged, as a whole or in part, to allow the supply of one or more services referred to in paragraphs 2 to 4 of Schedule 2;

“viable alternative” means access to another service facility which is economically acceptable to the railway undertaking, and allows it to operate the freight or passenger service concerned;

“working timetable” means the data defining all planned train and rolling-stock movements which will take place on the relevant infrastructure during the period for which it is in force.

• (2) A word or expression which is used in these Regulations and which is also used in the Directive, has unless the context otherwise requires, the same meaning in these Regulations as it has in the Directive.

Repeal and revocations

• (2) The following are revoked:

• (a) the European Communities (Licensing of Railway Undertakings) Regulations 2003 ( S.I. No. 537 of 2003 );

• (b) the European Communities (Railway Infrastructure) Regulations 2010 ( S.I. No. 55 of 2010 );

• (c) the European Communities (Licensing of Railway Undertakings) (Amendment) Regulations 2010 ( S.I. No. 298 of 2010 ).

Scope and application

• (a) the management of railway infrastructure,

• (b) rail transport activities in the State of the railway undertakings established, or to be established, either in the State or in another Member State,

• (c) access to the railway infrastructure and services,

• (d) the principles and procedures to be applied with regard to the setting and collecting of railway infrastructure charges and the allocation of railway infrastructure capacity, and

• (e) the criteria applicable to the issue, renewal or amendment of licences by the State for railway undertakings established, or to be established, in the State.

• (2) The following are excluded from the application of Part 2:

• (a) local and regional stand-alone networks for passenger services on railway infrastructure;

• (b) networks intended only for the operation of urban or suburban rail passenger services;

• (c) regional networks which are used for regional freight services solely by a railway undertaking that is not covered by the scope of subparagraph (e) until capacity on that network is requested by another applicant;

• (d) privately owned railway infrastructure that exists solely for use by the infrastructure owners for their own freight operations;

• (e) railway undertakings which only operate urban, suburban or regional services on local and regional stand-alone networks for transport services on railway infrastructure or on networks intended only for the operation of urban or suburban rail services.

• (3) The following are excluded from the application of Part 4:

• (a) railway undertakings which only operate rail passenger services on local and regional stand-alone railway infrastructure;

• (b) railway undertakings which only operate urban or suburban rail passenger services;

• (c) railway undertakings which only operate regional rail freight services;

• (d) railway undertakings which only operate freight services on privately owned railway infrastructure that exists solely for use by the infrastructure owners for their own freight operations.

Part 2 Infrastructure Management and Access

Assignment of essential functions of infrastructure manager to essential functions body

• (a) decision-making on train path allocation, including both the definition and the assessment of availability and the allocation of individual train paths, and

• (b) decision-making on infrastructure charging, including determination and collection of the charges,

are assigned to an essential functions body (EFB).

• (2) Córas Iompair Éireann is the essential functions body and shall perform the functions of essential functions body under these Regulations.

• (3) The EFB shall carry out the essential functions of the infrastructure manager independently of any railway undertaking or applicant so as to ensure equitable and non-discriminatory access to infrastructure for railway applicants.

• (4) The EFB shall not itself provide any rail transport services and shall comply with the requirements for management independence for the purposes of these Regulations.

• (5) The EFB, in carrying out the essential functions of the infrastructure manager, may request Iarnród Éireann infrastructure manager to perform any task and to provide any information required for the EFB to carry out its functions under these Regulations.

Essential functions charge

• (2) The EFB shall not impose an essential functions charge before 31 December 2015.

• (3) Where the EFB decides to impose an essential functions charge it shall inform the infrastructure manager of the following—

• (a) the amount of the essential functions charge payable,

• (b) the collection and recovery of the essential functions charge,

• (c) such other matters as are necessary or incidental to the procurement of the payment of the essential functions charge, and

• (d) the period within which the infrastructure manager may make representations to the EFB in relation to the essential functions charge.

• (4) The essential functions charge shall be payable to the EFB at such time and at such level as provided under paragraph (1) after the period of time allowed to make representations.

• (5) Any increase in the essential functions charge may only take effect in the year after the year in which the increase is made.

• (6) Essential functions charges payable under this Regulation shall not be refundable.

• (7) The EFB may recover, as a simple contract debt in any court of competent jurisdiction, from any person by whom it is payable any amount of an essential functions charge due and owing to it under this Regulation.

Infrastructure manager

• (2) Iarnród Éireann infrastructure manager shall, while respecting the charging and allocation framework under these Regulations, be responsible for its own management, administration and internal control.

• (3) Iarnród Éireann infrastructure manager and the EFB shall liaise with the infrastructure managers of the other Member States on all relevant matters where appropriate.

• (4) Iarnród Éireann infrastructure manager and the EFB shall co-operate with the infrastructure managers of the other Member States, as set out in Regulation 26, to ensure the efficient operation of train services which cross more than one infrastructure network.

• (5) Iarnród Éireann infrastructure manager and the EFB shall act in a fair and non-discriminatory manner at all times in performing their functions under these Regulations and respect the commercial confidentiality of the information supplied to them.

• (6) Iarnród Éireann infrastructure manager shall comply with any request of the EFB in carrying out the essential functions of the infrastructure manager and with any request for information required for the EFB to carry out its functions under these Regulations.

• (7) Iarnród Éireann infrastructure manager and the EFB shall comply with any request of the regulatory body and any request for information required for the regulatory body to perform its functions under these Regulations.

Infrastructure management contract

• (2) A contractual agreement, fulfilling the basic principles and parameters set out in Schedule 3, shall be concluded between the competent authority and the infrastructure manager, Iarnród Éireann- Irish Rail.

• (3) Iarnród Éireann infrastructure manager shall ensure consistency between the provisions of the contractual agreement and the business plan.

• (4) The competent authority shall agree in advance the contract terms and structure of the payments to provide funding to Iarnród Éireann infrastructure manager to cover the whole of the contract period which shall be not less than 5 years.

• (5) Applicants and, upon their request, potential applicants shall be informed by the competent authority and Iarnród Éireann infrastructure manager of the proposed contractual agreement and given the opportunity to express their views on the content of the contractual agreement before it is signed.

• (6) The contractual agreement shall be published by Iarnród Éireann infrastructure manager within 1 month of concluding it.

• (7) Iarnród Éireann infrastructure manager shall ensure consistency between the provisions of the contractual agreement and the business plan.

• (8) The contractual agreement shall be monitored by the independent monitoring body.

• (9) Any contractual agreement concluded between the Minister as competent authority and the Iarnród Éireann infrastructure manager under section 45 of the Public Transport Regulation Act 2009 (No. 37 of 2009) is deemed to have been done under this Regulation and these Regulations apply to it.

Independent monitoring body

• (2) The functions of the independent monitoring body are:

• (a) to act as the independent body to monitor the performance of the infrastructure manager in respect of its obligations under the contractual agreement;

• (b) to arbitrate where a dispute arises between the parties as to the requirements for compliance with the contractual agreement;

• (c) to approve the performance monitoring system developed by the infrastructure manager;

• (d) to advise the Minister of—

• (i) any persistent failure-to-perform trends of the infrastructure manager, and

• (ii) details of any performance improvement plan including any decision regarding any changes to the prioritisation of works.

• (3) The independent monitoring body shall provide the Minister with reports on its monitoring of the performance of the infrastructure manager in accordance with the timeframes set out in the contractual agreement.

• (4) The independent monitoring body may at any time, with the agreement of the infrastructure manager, undertake a physical inspection of the works undertaken in accordance with the contractual agreement for the purposes of verifying compliance with the requirements of the contractual agreement.

Railway asset register

• (2) The railway asset register shall be used for the purposes of assessment by Iarnród Éireann infrastructure manager of the financing needed to repair or replace the assets and the register, together with the details of expenditure on renewal and upgrading of the infrastructure which must accompany it, shall be used for the purposes of the infrastructure manager’s business plan under Regulation 28 and to ensure consistency with the contractual agreement.

Network statement

• (b) A network statement shall be published in the English and Irish languages.

• (c) The content of a network statement shall be made available free of charge in electronic format on the website of the infrastructure manager and, if applicable, accessible through a common web portal in cooperation with other infrastructure managers.

• (2) A network statement, containing the content that is laid down in Schedule 4, shall—

• (a) set out the nature of the infrastructure which is available to railway undertakings;

• (b) contain information setting out the conditions for access to the relevant railway infrastructure;

• (c) contain information setting out the conditions for access to service facilities connected to the network of the infrastructure manager and for the supply of services in these facilities or indicate a website where such information is made available free of charge in electronic format.

• (3) Iarnród Éireann infrastructure manager shall keep and maintain a network statement and the statement shall be kept up to date and amended as necessary.

• (4) Iarnród Éireann infrastructure manager shall ensure the publication of a network statement no less than 4 months in advance of any deadline it may set for requests for infrastructure capacity from railway undertakings.

• (5) Notwithstanding the requirement for Iarnród Éireann infrastructure manager to maintain the network statement under this Regulation, Iarnród Éireann infrastructure manager and the EFB shall, at all times, be able to inform any interested party of infrastructure capacity which has been allocated to user railway undertakings, including the unavailability of infrastructure capacity due to unscheduled maintenance works.

• (6) A network statement shall set out the infrastructure capacity that has been designated specialised infrastructure under Regulation 15.

• (7) A network statement shall set out the procedures to be followed and the criteria to be used where infrastructure is declared to be congested under Regulation 18.

Access to railway infrastructure- rail freight services and international passenger services

• (2) Any railway undertaking shall be granted the right of access, on equitable, non-discriminatory and transparent conditions, to the State’s railway infrastructure for the purpose of operating all types of rail freight services. That right shall include access to infrastructure connecting maritime and inland ports and other service facilities referred to in paragraph 2 of Schedule 2, and to infrastructure serving, or potentially serving, more than one final customer.

• (3) Access rights granted under this Regulation may only be granted to railway undertakings meeting the necessary safety requirements of the Regulations of 2013 and the Act of 2005, where applicable, and the licensing requirements set out in Part 4 or, in another Member State, the corresponding requirements.

Applications for infrastructure capacity

• (2) An applicant who is party to a framework agreement under Regulation 21 shall apply for infrastructure capacity during any timetabling period in accordance with, and within the duration of, that agreement.

• (3) An application for the allocation of railway infrastructure capacity shall only be considered if it is—

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

• (b) accompanied by—

• (i) proof that the applicant is entitled to apply under paragraph (1) for infrastructure capacity in the State,

• (ii) a safety certificate issued to the applicant under the Regulations of 2013 or, in another Member State, the corresponding requirements, as applicable,

• (iii) a bond, in favour of the infrastructure manager, that is guaranteed by a bank and that meets the requirements of paragraph (4) or, with the infrastructure manager’s approval, proof of an equivalent arrangement that meets those requirements, and

• (iv) an application fee of €750.

• (4) The bond or equivalent arrangement referred to in paragraph (3) shall—

• (a) be entered into by the applicant, 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.

• (5) The EFB and Iarnród Éireann infrastructure manager shall respect the commercial confidentiality of information provided by any applicant.

• (6) If an applicant regularly fails to use a train path allocated to the applicant under these Regulations, the proceeds of the bond or other arrangement in an amount not exceeding—

• (a) the amount certified by the EFB as the cost of processing the application, and

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

shall be payable, on the EFB’s written demand, to the EFB.

• (7) The EFB 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 EFB may direct.

• (8) When a railway undertaking intends to request infrastructure capacity with a view to operating an international passenger service, it shall inform the regulatory body, the EFB and the infrastructure managers concerned.

• (9) An applicant shall comply with any request for information required for the regulatory body to carry out its functions, including decision-making concerning an application for international passenger rail services under Regulation 33.

Access to services

• (2) The EFB shall ensure that the minimum access package set out in paragraph 1 of Schedule 2 is supplied to all railway undertakings by the infrastructure manager in a fully transparent and non-discriminatory manner.

• (3) Operators of service facilities shall supply in a non-discriminatory manner to all railway undertakings access, including track access, to the facilities referred to in paragraph 2 of Schedule 2, and to the services supplied in these facilities.

• (4) With regard to access to, and supply of service facilities referred to in paragraph 2 of Schedule 2, the EFB shall respond within a reasonable time set by the regulatory body to a request made under paragraph (1) by a railway undertaking.

• (5) The EFB may only refuse a request by a railway undertaking for access to, and supply of service facilities referred to in paragraph 2 of Schedule 2, if there are viable alternatives allowing the railway undertaking to operate the freight or passenger service concerned on the same or alternative routes under economically acceptable conditions.

• (6) The EFB shall justify in writing any decision of refusal and indicate viable alternatives in other facilities.

• (7) Where an operator of the service facility referred to in paragraph 2 of Schedule 2 encounters conflicts between different requests, the operator shall attempt to meet all requests in so far as possible. If no viable alternative is available, and it is not possible to accommodate all requests for capacity for the relevant facility on the basis of demonstrated needs, the applicant may complain to the regulatory body which shall examine the case and take action, where appropriate, to ensure that an appropriate part of the capacity is granted to that applicant.

• (8) Where a service facility referred to in paragraph 2 of Schedule 2 has not been in use for at least 2 consecutive years and interest by railway undertakings for access to this facility has been expressed to the operator of that service facility on the basis of demonstrated needs, its owner shall publicise the operation of the facility as being for lease or rent as a rail service facility, as a whole or in part, unless the operator of that service facility demonstrates that an on-going process of reconversion prevents its use by any railway undertaking.

• (9) The EFB is not obliged to provide the services referred to in paragraphs 3 and 4 of Schedule 2.

• (10) Where any of the services referred to in paragraph 3 of Schedule 2 are provided as additional services upon request from a railway undertaking, those additional services shall be supplied to railway undertakings in a non-discriminatory manner.

• (11) Iarnród Éireann infrastructure manager may conclude agreements with railway undertakings relating to the services referred to in the preceding paragraphs of this Regulation.

• (12) Infrastructure capacity shall, without prejudice to Regulation 15, be considered to be available for the use of all types of service which conform to the characteristics necessary for operation on the train path.

• (13) Access for the use of railway infrastructure will be subject to charges in accordance with these Regulations.

• (14) Information on charges concerning the supply of the services referred to in paragraphs 2, 3 and 4 of Schedule 2 shall be provided to Iarnród Éireann infrastructure manager for the purposes of Regulation 11 to be included in the network statement and it shall be indicated on a website where such information is made available free of charge in electronic format.

Specialised infrastructure

• (b) Where there are suitable alternative routes, the EFB may, after consultation with interested parties, designate a specific train path or part of a train path as special infrastructure capacity for use by specified types of traffic and where such designation has occurred, the EFB may give priority to this type of traffic when allocating infrastructure capacity. However, such designation shall not prevent the use of such infrastructure by other types of traffic when capacity is available.

• (2) Where infrastructure has been designated under paragraph (1)(b), this shall be described in the network statement of the infrastructure manager.

Scheduling

• (2) The EFB shall, as far as is possible, meet all requests for infrastructure capacity including requests for train paths crossing more than one network, and as far as is possible take account of all constraints on applicants, including the economic effect on their business.

• (3) The EFB shall consult with interested parties, including other infrastructure managers in the case of international train paths, about the draft working timetable and allow them 1 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.

• (4) 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.

• (5) The EFB, 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 designation of capacity under Regulation 13.

• (6) The EFB shall take appropriate measures to deal with any concerns expressed by interested parties.

• (7) The EFB 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 22.

• (8) The EFB shall ensure that all requests for infrastructure capacity to enable maintenance of the infrastructure to be carried out shall be included during the scheduling process.

• (9) The EFB shall take due account of the effect of infrastructure capacity reserved for scheduled track maintenance on applicants.

• (10) The EFB shall inform, as soon as possible, interested parties about the unavailability of infrastructure capacity due to unscheduled maintenance work.

Coordination process

• (2) Where a situation requiring the coordination process arises, the EFB shall have the right, within reasonable limits, to propose infrastructure capacity that differs from that which was requested by the applicants.

• (3) For the purposes of paragraph (1) the EFB shall attempt, through consultation with the appropriate applicants, to resolve any conflicts. Such consultation shall be based on the disclosure of the following information within a reasonable time, free of charge and in written or electronic form—

• (a) train paths requested by all other applicants on the same routes,

• (b) train paths allocated on a preliminary basis to all other applicants on the same routes,

• (c) alternative train paths proposed on the relevant routes in accordance with paragraph (2), and

• (d) full details of the criteria being used in the capacity-allocation process.

• (4) In accordance with the requirement under Regulation 13(5) to respect the commercial confidentiality of information provided, any information disclosed under paragraph (3) shall be provided without disclosing the identity of other applicants, unless applicants concerned have agreed to such disclosure.

• (5) The principles governing the coordination process shall be set out in the network statement and, these shall, in particular, reflect the difficulty of arranging international train paths and the effect that modification may have on other infrastructure managers.

• (6) Where requests for infrastructure capacity cannot be satisfied without coordination, the EFB shall attempt to accommodate all requests through coordination.

• (7) Without prejudice to the appeals and complaints procedures provided under Regulations 30 and 31, in the event of disputes relating to the allocation of infrastructure capacity, a dispute resolution process, the details of which must be set out in the network statement, shall be available to the EFB and applicants in order to resolve such disputes promptly.

• (8) If the disputes resolution process under paragraph (7) is applied, a decision shall be reached within a time limit of 10 working days from commencement of the dispute resolution process.

Declaration by essential functions body concerning congested infrastructure

• (a) if, following a coordination process under Regulation 17 or a dispute resolution process under Regulation 17(7), it is not possible for requests for certain infrastructure capacity by applicants to be adequately satisfied, or

• (b) if, it is the view of the EFB, subject to a capacity analysis, that certain infrastructure will suffer from insufficient capacity during the period of the working timetable.

• (2) In the case of infrastructure that has been declared congested under paragraph (1)(a), the EFB shall carry out a capacity analysis in accordance with paragraph (3) to determine current and future restrictions on infrastructure capacity unless a capacity-enhancement plan as referred to in paragraph (4) is already being implemented.

(3)(a) A capacity analysis shall be carried out with the objective to determine the constraints on infrastructure capacity which prevent requests for capacity from being adequately met, and to propose methods of enabling additional requests to be satisfied. The capacity analysis shall identify the reasons for the congestion and what measures might be taken in the short and medium term to ease the congestion.

• (b) A capacity analysis shall consider the infrastructure, the operating procedures, the nature of the different services operating and the effect of all these factors on infrastructure capacity. Measures to be considered shall include, in particular, rerouting services, retiming services, speed alterations and infrastructure improvements.

• (c) A capacity analysis required under paragraph (2) shall be completed within 6 months of the declaration under paragraph (1)(a).

(4)(a) The infrastructure manager shall, within 6 months of completion of a capacity analysis under paragraph (3), produce an infrastructure capacity-enhancement plan with respect to infrastructure which under this Regulation has been declared by the EFB to be congested.

• (b) A capacity-enhancement plan shall be developed after consultation with users of the relevant congested infrastructure and shall identify:

• (i) the reasons for the congestion;

• (ii) the likely future development of traffic;

• (iii) the constraints on infrastructure development;

• (iv) the options and costs for capacity enhancement, including likely changes to access charges.

• (c) On the basis of a cost benefit analysis of the possible measures identified, the capacity-enhancement plan shall also determine the action to be taken to enhance infrastructure capacity, including a timetable for implementing the measures.

• (5) Subject to paragraph (4), the EFB shall cease to levy any infrastructure charge for the relevant infrastructure under Regulation 25 in cases where—

• (a) a capacity-enhancement plan is not produced, or

• (b) progress has not been made on the actions identified in the capacity-enhancement plan.

• (6) The EFB may, subject to the approval of the regulatory body, continue to levy an infrastructure charge if—

• (a) the capacity-enhancement plan cannot be realised for reasons beyond its control, or

• (b) the options available are not economically or financially viable.

Priority criteria for allocation of infrastructure capacity

• (a) when infrastructure charges that include a charge which reflects scarcity of capacity of the identifiable section of the infrastructure during periods of congestion have not been levied or have not achieved a satisfactory result, and

• (b) the infrastructure has been declared to be congested.

• (2) Priority criteria shall take account of the importance of a service to society, relative to any other service which will consequently be excluded in this State or as a consequence in another Member State, and, in particular, have regard to the following—

• (a) the development of adequate transport services in the State,

• (b) public service obligations,

• (c) the promotion of the development of rail freight and international freight services, and

• (d) Regulation 15.

• (3) Iarnród Éireann infrastructure manager may be compensated, through the contractual agreement under Regulation 8, for any loss of revenue incurred through the requirement to allocate a given infrastructure capacity to certain services under paragraph (2).

• (4) The procedure to be followed and the criteria to be used where infrastructure capacity has been declared to be congested by the EFB under Regulation 18 shall be set out in the network statement.

• (5) Iarnród Éireann infrastructure manager may specify in the network statement conditions whereby the EFB will take account of previous levels of utilisation of train paths in determining priorities for the allocation process under Regulation 20.

Allocation of infrastructure capacity

• (a) on the basis of the draft timetable,

• (b) on a fair and non-discriminatory basis, and

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

• (2) Railway infrastructure capacity may only be allocated by the EFB to a railway undertaking—

• (a) entitled to make an application under Regulation 13, and

• (b) to whom a safety certificate has been issued, in the State, under Regulation 5 of the Regulations of 2013 or has been issued, in another Member State, pursuant to the corresponding requirements for the purposes of the Railway Safety Directive.

• (3) The EFB shall—

• (a) as far as possible meet all requests for infrastructure capacity, including requests for train paths crossing more than one network in consultation with other infrastructure managers, and

• (b) agree with any other relevant infrastructure managers concerned which international train paths are to be included in the working timetable, before commencing consultation on the draft working timetable and adjustments shall only be made if absolutely necessary.

• (4) Subject to paragraph (1), the EFB 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 EFB 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 EFB 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 EFB 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 paragraph (8), the EFB may refuse any application if, in its opinion, the applicant has unreasonably refused to agree to a modification to its application proposed by the EFB under paragraph (7).

• (10) The decision of the EFB 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 EFB 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.

• (12) Once infrastructure capacity has been allocated by the EFB to a railway undertaking it may not be transferred by that railway undertaking to another undertaking or service provider.

Agreement between infrastructure manager and railway undertaking

• (2) An agreement referred to in paragraph (1)—

• (a) shall specify—

• (i) details relating to the provision of services as outlined in Regulation 14,

• (ii) details relating to the train path only in so far as to describe how it will meet the legitimate commercial needs of the applicant, and

• (iii) the characteristics of the infrastructure capacity as required by and offered to the applicant over a period of time exceeding 1 working timetable period,

• (b) shall in principle cover a period of 5 years, and shall be renewable for periods equal to the original duration; however, Iarnród Éireann infrastructure manager may agree a shorter or longer period in specific cases; and any period longer than 5 years shall be justified by the existence of commercial contracts, specialised investments or risks,

• (c) shall allow for amendment or limitation of its terms to enable better use to be made of the railway infrastructure,

• (d) shall not preclude the use of the relevant infrastructure by other applicants or service providers, and

• (e) may contain penalties with regard to modifications or termination of the agreement.

• (3) The terms and conditions of an agreement concluded under paragraph (1) shall be non-discriminatory and transparent between railway undertakings or between railway undertakings and infrastructure manager as a provider of rail services.

• (4) Iarnród Éireann infrastructure manager, in entering into a contract with a railway undertaking concerning rail capacity allocation rights under these Regulations, shall operate its control and safety systems so as to take into account the services operated in exercise of such rights.

• (5) While respecting commercial confidentiality, the general nature of each agreement between Iarnród Éireann infrastructure manager and a railway undertaking shall be made available by the infrastructure manager to any interested party.

Ad hoc requests for infrastructure capacity

• (2) The EFB shall respond to ad hoc requests for individual train paths within 5 days of the request being received by the EFB.

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

• (4) To facilitate ad hoc requests under this Regulation, the EFB shall ensure that information on available spare infrastructure capacity on the railway network is made available to all applicants who may wish to use this capacity.

• (5) The EFB may, subject to evaluation of need, keep reserve infrastructure capacity available within the final scheduled working timetables for the purpose of responding to ad hoc requests for infrastructure capacity or in cases of infrastructure that has been declared congested under Regulation 18.

• (6) Notwithstanding Regulations 20 and 36, the EFB may, on request, allocate train paths to operators of heritage railway vehicles who hold a safety management certificate issued under section 46(1)(a) of the Act of 2005 and may charge a nominal charge in respect of the allocation of infrastructure capacity to operators of such vehicles that run on the railway network in the State to which these Regulations apply.

Monitoring use of allocated train paths

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

• (3) Where there has been a failure to use a train path that has been allocated, the EFB 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 EFB may withdraw infrastructure capacity in full or in part on a part of the railway 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 EFB may offer the operator using that capacity an alternative train path or train paths.

• (5) In respect of infrastructure that has been declared congested by the EFB under Regulation 17, the EFB may require the surrender of a train path which, over a period of at least one month, has been used less than a prescribed threshold quota for that infrastructure, unless this was due to non-economic reasons beyond the applicant’s control.

• (6) The threshold quota referred to in paragraph (5) shall be specified in the network statement.

Measures to be taken in event of disturbance

• (2) Iarnród Éireann infrastructure manager shall draw up a contingency plan listing the various bodies to be informed in the event of serious incidents or serious disturbance to train movements.

• (3) In an emergency and, where absolutely necessary, on account of a breakdown making the infrastructure temporarily unusable, the train paths allocated may be withdrawn without warning for as long as is necessary to repair the system.

• (4) Where the disturbance to train movements under paragraph (1) is caused by an accident or incident, including serious accidents, accidents or incidents to which the European Union (Railway Safety) (Reporting and Investigation of Serious Accidents, Accidents and Incidents) Regulations 2014 ( S.I. No. 258 of 2014 ) applies, the obligation on Iarnród Éireann infrastructure manager to ensure that all necessary steps are taken to facilitate the early resumption of train movements and services is without prejudice to any other obligations on the infrastructure manager or any other person under the laws of the State or European Union law to facilitate the proper investigation of accidents and incidents.

Infrastructure charge

• (2) The amount of the infrastructure charge shall be determined by the EFB and in accordance with this Regulation. The amount 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 Iarnród Éireann infrastructure manager under Regulation 14.

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

• (5) The following principles of charging shall apply to the infrastructure charges and, in particular, to the calculation of the charges:

• (a) the infrastructure charge for the minimum access package and access to service facilities referred to in Schedule 2 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 of services, the infrastructure charge for the services described in paragraphs 3 and 4 of Schedule 2 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 paragraph 2 of Schedule 2 shall take account of the competitive situation pertaining in rail transport.

• (6) In determining the amount of the infrastructure charge, the infrastructure charges shall be related to the costs attributable to the services and 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, and

• (h) progress under any relevant capacity-enhancement plan.

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

• (8) Charges may be levied for capacity used for the purpose of infrastructure maintenance. Such charges shall not exceed the net revenue loss to Iarnród Éireann infrastructure manager caused by the maintenance.

• (9) The infrastructure charges referred to in this Regulation may include a charge which reflects the scarcity of capacity of an identifiable section of the infrastructure during periods of congestion.

• (10) An infrastructure charging scheme shall encourage railway undertakings and Iarnród Éireann infrastructure manager to minimise disruption and improve performance of the railway network through a performance scheme which may include penalties for actions which disrupt the operation of the railway network, compensation for railway undertakings which suffer from disruption and bonuses that reward better-than-planned performance. The basic principles of the performance scheme as listed in paragraph 2 of Schedule 6 shall apply throughout the railway network.

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

• (12) The EFB shall ensure that the charges actually applied comply with the rules laid down in the network statement.

Co-operation of infrastructure manager with other infrastructure managers

• (2) The infrastructure manager and the EFB 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 22.

Separation of accounts

• (2) Any railway undertaking or infrastructure manager to which paragraph (1) applies shall ensure that state aid granted to that railway undertaking or infrastructure manager for the provision of—

• (a) transport services is not transferred for use in the management of the railway infrastructure, and

• (b) railway infrastructure is not transferred for use in the provision of transport services,

and the accounts of such a railway undertaking or infrastructure manager shall be maintained so as to reflect these prohibitions.

• (3) For the purposes of these Regulations, any railway undertaking shall keep and publish, annually, separate profit and loss accounts and, either, balance sheets or statements of assets and liabilities, on the one hand, in respect of the provision of rail freight transport services and, on the other, in respect of activities relating to the provision of passenger transport services. Any public funds paid for activities relating to the provision of passenger transport services as public-service remits must be shown separately in the relevant accounts. Such funds shall not be transferred for use in activities relating to the provision of other transport services or any other business and the accounts of all be maintained so as to reflect this prohibition.

• (4) For the purposes of assessments by the regulatory body under Part 3, the infrastructure manager, an operator of service facilities and any railway undertaking or other entity performing or integrating different types of rail transport or infrastructure management as referred to in these Regulations, shall provide to the regulatory body upon its request all or part of the accounting information listed in Schedule 7 with a sufficient level of detail as deemed necessary and proportionate.

Business plan of infrastructure manager

• (2) The infrastructure manager shall consult with relevant parties in the formulation of this business plan including the Minister, the regulatory body and the National Transport Authority.

• (3) The infrastructure manager shall ensure that known applicants and, upon their request, potential applicants have access to the relevant information and are given the opportunity to express their views on the content of the business plan regarding the conditions for access and use and the nature, provision and development of the infrastructure before its approval by the infrastructure manager.

• (4) A business plan shall be submitted to the Minister for approval.

• (5) A business plan may be reviewed from time to time by the infrastructure manager or the Minister.

Part 3 Regulatory Body and Functions

Regulatory body

• (2) The regulatory body shall carry out the functions of the regulatory body for the purpose of these Regulations, in particular with regard to ensuring non-discriminatory access to the railway market, including—

• (a) decisions concerning appeals or complaints under Regulations 30 and 31, respectively,

• (b) monitoring competition in the rail services market in the State including the rail freight transport market for the purposes of these Regulations,

• (c) decisions concerning the principal purpose of a proposed international passenger rail service on a public service obligation route and any limitations on the right of access for such service under Regulation 33, including establishment and publishing of pre-determined criteria in that regard,

• (d) ensuring that the charges set by the infrastructure manager comply with these Regulations and are non-discriminatory,

• (e) supervision of any negotiations between the infrastructure manager and a railway undertaking concerning the level of infrastructure charges and intervening if such negotiations are likely to contravene the requirements of these Regulations, and

• (f) co-operation with the regulatory bodies in other Member States.

• (3) The regulatory body shall be independent in its organisation, funding decisions, legal structure and decision-making from any infrastructure manager, charging body, allocation body or applicant.

• (4) The regulatory body shall have the necessary human and material resources to undertake its functions under these Regulations and to ensure that it is staffed and managed in a way that guarantees its independence.

• (5) The regulatory body may carry out audits or initiate external audits with infrastructure managers, operators of service facilities and, where relevant, railway undertakings, to verify compliance with accounting separation provisions under Regulation 27.

• (6) For the purposes of audits under paragraph (5) the regulatory body may request any relevant information and, in particular, may require the infrastructure manager, operators of service facilities and any railway undertaking or other entity performing or integrating different types of rail transport or infrastructure management to provide all or part of the accounting information listed in Schedule 7 with a sufficient level of detail as deemed necessary and proportionate.

• (7) Without prejudice to the powers of the national authorities responsible for State aid issues, the regulatory body may draw conclusions from the accounts concerning State aid issues which it shall report to the National Transport Authority, the Minister and the Minister for Public Expenditure and Reform.

• (8) The regulatory body shall—

• (a) exchange information with regulatory bodies in other Member States about its work and decision-making principles and practice and, in particular, exchange information on procedures and on any problems arising in the operation of these Regulations,

• (b) co-operate with the regulatory bodies in other Member States for the purpose of coordinating regulatory body decision-making principles across the European Union and for this purpose, participate in a network that convenes at regular intervals,

• (c) co-operate closely with the regulatory bodies in other Member States for the purposes of mutual assistance in their market monitoring tasks and handling complaints and investigations,

• (d) develop, with the regulatory bodies in other Member States, common principles and practices for making the decisions for which it is empowered under these Regulations, and

• (e) regularly, and, in any case, at least every 2 years, consult representatives of users of the rail freight and passenger transport services, to take into account their views on the rail market.

(9)(a) The regulatory body shall, in the case of a complaint or on its own initiative investigate on issues of access or charging relating to an international train path, as well as the framework of monitoring competition on the market related to international rail transport services, consult the regulatory bodies of the other Member States through which the international train path concerned runs and, where appropriate, the European Commission, and request all necessary information from them before taking its decision.

• (b) The regulatory body shall, if consulted by a regulatory body in another Member State pursuant to the corresponding requirements to subparagraph (a) under their national law, provide all information that it itself has the right to request under these Regulations.

• (c) Information received by the regulatory body under subparagraph (a) may only be used for the purpose of handling the complaint or investigation referred to in that subparagraph.

• (d) The regulatory body receiving the complaint or conducting an investigation on its own initiative shall transfer relevant information to the regulatory body responsible in order for that body to take measures regarding the parties concerned.

Appeals

• (a) the allocation of infrastructure capacity,

• (b) the charging of infrastructure charges,

• (c) the network statement in its provisional and final versions,

• (d) the criteria set out in the network statement,

• (e) the allocation process and its result,

• (f) the charging scheme,

• (g) the level or structure of infrastructure charges which it is, or may be, required to pay,

• (h) arrangements for access under Regulations 12 and 14, or

• (i) access to and charging for services in accordance with Regulation 14,