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The Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2016

Type Ni-Statutory-Rule

Publication 2016-12-01

Last updated 2020-12-31

State In force

Jurisdiction Northern Ireland

Department Government Printer for Northern Ireland

Source legislation.gov.uk

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(7) The infrastructure manager must facilitate the establishment and operation of a dispute resolution system, which must be set out in the network statement, to resolve disputes about the allocation of infrastructure capacity and, where that system is applied, a decision on the matters in dispute must be reached no later than ten working days after the final submission of all relevant information in accordance with that system.

(8) The dispute resolution system provided for in paragraph (7) is without prejudice to the right of appeal to the Office of Rail and Road under regulation 32(1).

(9) The infrastructure manager must take such measures as are appropriate to deal with any concerns about the allocation process raised by interested parties.

(10) For the purposes of this regulation “interested parties” includes—

(a) all applicants for infrastructure capacity as part of the specific allocation process to which the draft working timetable relates; and

(b) other parties who have indicated to the Office of Rail and Road, in such form or manner as the infrastructure manager may from time to time require, that they wish to have the opportunity to comment as to the effect that the working timetable might have on their ability to procure rail services during the working timetable period to which the draft working timetable relates.

Ad hoc requests

24

(1) In addition to making an application for capacity in accordance with the annual timetable process described in regulation 22 an applicant may submit ad hocrequests for infrastructure capacity in the form of individual train paths to the infrastructure manager.

(2) The infrastructure manager must respond to a request described in paragraph (1) as quickly as possible and, in any event, no later than five working days from receipt of the request.

(3) The infrastructure manager must make available, to all potential applicants for such individual train paths, information about available spare capacity on the network for which it is responsible.

(4) The infrastructure manager must, including in the case of congested infrastructure, undertake an evaluation of the need for reserve capacity to be kept available within the final working timetable to enable it to respond rapidly to foreseeable ad hocrequests for infrastructure capacity.

Declaration of specialised infrastructure

25

(1) Subject to paragraph (2), all infrastructure capacity must be available for the use of all types of rail transport service which conform to the characteristics necessary for use of that infrastructure, as defined in the infrastructure manager's network statement.

(2) Subject to the provisions set out in paragraph (3), ... an infrastructure manager may designate particular sections of the infrastructure for use by specified types of rail service and, once the infrastructure is so designated, may give priority to that specified type of rail service in the allocation of infrastructure capacity.

(3) Those provisions are that—

(a) suitable alternative routes for other types of rail transport service must exist and be available;

(b) before making such a designation the infrastructure manager must consult the Department, the Office of Rail and Road and all other interested parties; and

(c) such designation must not prevent the use of that designated infrastructure by other types of rail transport service when capacity is available

Congested infrastructure

26

(1) Where, after the co-ordination of requests for capacity and consultation with the applicants in accordance with regulation 23(4), it is not possible for the infrastructure manager to satisfy requests for infrastructure capacity adequately, the infrastructure manager must declare that element of the infrastructure on which such requests cannot be satisfied to be congested.

(2) Where, during the preparation of the working timetable for the next timetable period, the infrastructure manager considers that an element of the infrastructure is likely to become congested during the period to which that working timetable relates, he must declare that element of the infrastructure to be congested.

(3) When railway infrastructure has been declared to be congested under the provisions of this regulation the infrastructure manager must inform—

(a) existing users of that railway infrastructure;

(b) new applicants for infrastructure capacity which includes that element of the infrastructure which has been declared to be congested;

(d) the Department.

(4) Where railway infrastructure has been declared to be congested in accordance with paragraph (1) or (2) the infrastructure manager must undertake a capacity analysis of the congested infrastructure, as described in regulation 27, unless a capacity enhancement plan, as described in regulation 28, is in the process of being implemented.

(5) When an element of the infrastructure has been declared to be congested in accordance with paragraphs (1) or (2) and either—

(a) a charge as described in paragraph 1(8) of Schedule 2 has not been levied; or

(b) the charge described in sub-paragraph (a) has been levied but has not achieved a satisfactory result,

the infrastructure manager may set priority criteria for the allocation of infrastructure capacity which includes that congested element of the infrastructure.

(6) The priority criteria referred to in paragraph (5) must—

(a) take account of the importance of a service to society, relative to any other service which will consequently be excluded; and

(b) ensure that freight services, and in particular international freight services, are given adequate consideration in the determination of those criteria.

(7) If during the course of the working timetable period to which the declaration of congested infrastructure relates, but before the completion of the capacity analysis, the congestion is resolved, the infrastructure manager may revoke the declaration made in accordance with sub-paragraph (1).

(8) Where sub-paragraph (7) applies, the infrastructure manager must inform the persons referred to in sub-paragraph (3) that the declaration has been revoked.

Capacity analysis

27

(1) Where required in accordance with regulation 26(4), the infrastructure manager must carry out a capacity analysis of the congested infrastructure in order to identify the reasons for the congestion and the measures which might be taken in the short and medium term to ease that congestion.

(2) In conducting the capacity analysis, and in order to identify the reasons for the congestion, the infrastructure manager must consider the—

(a) characteristics of the congested railway infrastructure;

(b) operating procedures used on that railway infrastructure; and

(3) In seeking to determine measures to alleviate congestion the infrastructure manager must consider, in particular—

(a) re-routing of services;

(b) re-timing of services;

(d) infrastructure improvements.

(4) The infrastructure manager must consult the Department during the preparation of the capacity analysis.

(5) The infrastructure manager must complete the capacity analysis within six months from the date on which the railway infrastructure is declared to be congested in accordance with regulation 26(1) or (2) and make the findings of the analysis available to the parties described in regulation 26(3).

Capacity enhancement plan

28

(1) The infrastructure manager must, within six months of the publication of a capacity analysis in accordance with regulation 27, produce a capacity enhancement plan.

(2) In producing the capacity enhancement plan, the infrastructure manager must—

(a) consult such interested parties as he considers necessary, including those described in regulation 26(3); and

(b) at least one month before the deadline for completion of the plan seek the prior approval of the Department to the capacity enhancement plan

(3) The capacity enhancement plan must identify the—

(a) reasons for the congestion;

(b) likely future development of traffic;

(d) options for and costs of enhancing the capacity, including the potential effect on access charges.

(4) On the basis of a cost benefit analysis of the potential measures for action identified in the capacity enhancement plan, that plan must include—

(a) details of the action to be taken to enhance the capacity of the congested infrastructure; and

(b) a timetable for the completion of the detailed measures identified in accordance with sub-paragraph (a).

(5) Subject to paragraph (6), if the utilisation of capacity on that element of the railway infrastructure which is the subject of the capacity enhancement plan attracts a scarcity charge, in accordance with paragraph 1(8) of Schedule 2 the infrastructure manager must cease the levying of such charge in situations where—

(a) paragraph (1) applies but a capacity enhancement plan for that part of the railway infrastructure which is subject to the scarcity charge has not been produced, as required by this regulation; or

(b) the infrastructure manager fails to make progress with implementation of those areas of the action plan produced in accordance with paragraph (4).

(6) Paragraph (5) does not apply where—

(a) the action plan produced in accordance with paragraph (4) cannot be implemented for reasons beyond the immediate control of the infrastructure manager; or

(b) the options identified in that action plan are not economical or financially viable,

provided that prior approval to continue to levy the scarcity charge is obtained from the Office of Rail and Road.

(7) At the end of the six month period starting with the publication of the capacity analysis in accordance with regulation 27, whether or not the approval sought under paragraph (2) (b) has been received, the infrastructure manager must provide the parties consulted under paragraph (2) (a) with a copy of the plan and the timetable for completion of the measures identified to resolve the congestion.

Use of train paths

29

(1) Subject to paragraph (2) the infrastructure manager must, in particular where railway infrastructure has been declared to be congested in accordance with regulation 26, require an applicant who has, over a period of at least one month, used a train path less often than the threshold quota stipulated in the network statement, to surrender that train path.

(2) Paragraph (1) does not apply if, in the view of the infrastructure manager, the failure to use the train path in accordance with the threshold quota stipulated in the network statement arose as a result of non-economic reasons outside the control of the applicant.

(3) The infrastructure manager must in the network statement specify conditions under which previous levels of capacity utilisation will be taken into account in determining the priorities to be used in making decisions on the allocation of capacity.

Special measures to be taken in the event of disruption

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(1) In the event of disruption to train movements caused by technical failure or accident, the infrastructure manager must take all such steps as are necessary to restore the normal operation of the network.

(2) The infrastructure manager must have in place a contingency plan listing the various bodies who are required to be informed in the event of a serious incident or serious disruption to train movements.

(2A) In the event of disruption which has the potential to affect cross-border traffic, the infrastructure manager must share any relevant information with other infrastructure managers whose network or traffic may be affected and the infrastructure managers concerned must cooperate to restore cross-border traffic to normal.

(3) The infrastructure manager may, in the event of an emergency and where absolutely necessary on account of a breakdown which renders a part of the railway infrastructure temporarily unusable, withdraw allocated train paths without warning and with immediate effect for such period as is necessary to repair the affected infrastructure.

(4) Subject to paragraph (5), the infrastructure manager may, if he deems it to be necessary, require applicants to make available to him such resources as the infrastructure manager considers appropriate to restore the normal operation of the network as quickly as possible.

(5) Where a contract or framework agreement between an applicant and the infrastructure manager incorporates conditions as to the special measures to be taken in the event of disruption, the resources required by the infrastructure manager under paragraph (4) must be in accordance with those conditions.

PART 6 — REGULATION AND APPEALS

Regulatory body

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(1) The Office of Rail and Road is designated as the regulatory body for the purposes of these regulations and when carrying out its functions under these Regulations shall have a duty to act in a manner which is best calculated—

(a) to promote improvements in railway service performance;

(b) to protect the interests of users of railway services;

(c) to promote the use of the railway network for the carriage of passengers and goods, and the development of that network, to the extent that it considers economically practicable;

(d) to contribute to the development of an integrated system of transport of passengers and goods;

(e) to promote efficiency and economy on the part of persons providing railway services;

(f) to promote measures designed to facilitate the making, by passengers, of journeys which involve use of the services of more than one passenger service operator;

(g) to take account of the need to protect all persons from dangers arising from the operation of railways;

(h) to have regard to the effect on the environment of activities connected with the provision of railway services;

(i) to have regard to any general guidance given to it, by the Department, about railway services or other matters relating to railways;

(j) to have regard to the funds available to the Department for the purposes of its functions in relation to railways and railway services;

(k) to have regard to the interests of persons who are disabled when performing its duties relating to the services for the carriage of passengers by railway or to station services; and

(l) where any general guidance is given to the Office of Rail and Road for the purposes of subparagraph (i) above—

(i) it may be varied or revoked by the Department at any time; and

(ii) the guidance, and any variation or revocation of the guidance, must be published by the Department in such manner as it considers appropriate.

(2) The Office of Rail and Road must ensure that charges for the use of railway infrastructure imposed by the infrastructure manager comply with the requirements of Part 4 and Schedule 2.

(3) Negotiations between an applicant and the infrastructure manager about the level of infrastructure charges are only permitted if carried out under the supervision of the Office of Rail and Road and, if such negotiations are likely to contravene the requirements of these regulations, it is the duty of the Office of Rail and Road to intervene.

(4) The Office of Rail and Road may in particular, as part of the intervention mentioned in paragraph (3), issue such directions to the applicant or the infrastructure manager as it considers appropriate for the purpose of ensuring that no contravention arises or, to the extent that a contravention has arisen, that it ceases.

(5) Where the Office of Rail and Road prescribes the manner and form in which any notification or appeal must be lodged in accordance with these regulations, it must publicise this information in such manner as it considers appropriate.

(6) Procedural arrangements made by the Office of Rail and Road must ensure that a person with ultimate responsibility for taking a decision under regulations 32, 33, 34 and 35, complies with the criteria listed in paragraph (7); and

(a) shall include arrangements under which a member, employee or committee-member who has a financial or other personal interest which is likely to influence his performance of a particular function is obliged-

(i) to declare the interest; and

(ii) to withdraw from the performance of the function to the relevant extent.

(b) Procedural arrangements made by the Office of Rail and Road shall include arrangements under which a member, employee or committee-member who has a financial or other personal interest which is relevant to a particular function but does not fall under sub-paragraph (a) is obliged –

(i) to declare the interest; and

(ii) unless the members of the Office of Rail and Road direct otherwise, to withdraw from the performance of the function to the relevant extent

(7) The criteria are that such persons—

(a) must make an annual declaration of—

(i) their commitment to the impartial fulfilment of their duties under these regulations, and

(ii) any direct or indirect interests which may be considered prejudicial to their independence and which might influence their performance of any function;

(b) must withdraw from decision making in cases which concern an undertaking with which they have had a direct or indirect connection in the year before the commencement of any procedure relating to a decision described in paragraph (6);

(d) must have no professional position or responsibility with any regulated railway undertaking or entity for a period of not less than a year commencing at the end of their term of employment to take decisions under paragraph (6).

(8) Without prejudice to the right of any person to make an application to the Court under Order 53 of the Rules of Court Judicature (NI) 1980 , it is the duty of any person to whom a direction is given under paragraph (4) to comply with and give effect to that direction.

(9) The Office of Rail and Road may levy a charge on the Infrastructure Manager for such fees and expenses as are appropriate for the discharge of its duties.

Appeals to the regulatory body

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(1) Subject to paragraph (3), an applicant has the right of appeal to the Office of Rail and Road if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved and, in particular, against decisions adopted by the infrastructure manager, an allocation body, a charging body, a service provider or as the case may be, a railway undertaking or any interested party, concerning the matters described in paragraph (2).

(2) Those matters are—

(a) the network statement produced in accordance with regulation 13, in its provisional and final versions;

(b) the information which, by virtue of regulation 13(4), must be included in that network statement;

(d) the charging scheme and charging system established in accordance with regulation 14;

(e) the level of structure of railway infrastructure charges, the principles of which are prescribed in Part 4 and Schedule 2, which it is, or may be, required to pay;

(f) the arrangements for access granted under Part 2 and Schedule 1; ...

(g) access to and charging for services provided under Part 2 and Schedule 1 ;

(h) traffic management;

(i) renewal planning and scheduled or unscheduled maintenance;

(j) compliance with the requirements, including those regarding conflicts of interest, set out in regulations 8A, 8B, 8C, 9A, 14(6) and 19(3).

(3) Where the Office of Rail and Road has received an appeal under paragraph (1) it must -

(a) as appropriate, ask for all relevant information and initiate a consultation with the relevant parties within one month of the date of receipt of the appeal; and

(b) within a predetermined and reasonable time, and, in any case, within six weeks of the date of receipt of all relevant information (including information provided pursuant to regulations 31 and 36)—

(i) make a decision;

(ii) inform the relevant parties of its decision, providing reasons for this;

(iii) where appropriate, issue a direction to the infrastructure manager, allocation body, charging body, service provider or, as the case may be, railway undertaking, to remedy the situation from which the appeal arose; and

(iv) publish the decision.

(4) When an appeal under paragraph (1) contests a decision under regulation 5(4) to refuse a request for access to, and the supply of services described in paragraph 2 of Schedule 1, a decision under paragraph (3) must include a determination as to whether, in respect of the access and provision of services to which the appeal relates, a viable alternative exists.

(5) When an appeal under paragraph (1) contests a decision to refuse or restrict the provision of services in circumstances where there are conflicting requests as described in regulation 5(7), a determination under paragraph (3) must include a determination, as appropriate and in respect of the circumstances to which the appeal relates, of—

(a) whether a viable alternative as described in regulation 5(4) exists;

(b) whether it is possible to accommodate the conflicting requests on the basis of demonstrated need; and

(6) Where a decision under paragraph (3) concerns a refusal by the infrastructure manager or allocation body to allocate infrastructure capacity, or concerns an appeal against the terms of an offer of infrastructure capacity, the Office of Rail and Road must, in such a decision, either—

(a) confirm that no modification of the infrastructure manager or allocation body's decision is required; or

(b) require modification of that decision in accordance and issue directions to that effect.

(7) Without prejudice to the right of any person to make an application to the court under Order 53 of the Rules of the Court of Judicature (Northern Ireland) 1980 .

(a) a decision by the Office of Rail and Road on an appeal brought under this regulation is binding on all parties affected by that decision;

(b) it is the duty of any person to whom a direction is given under this regulation to comply with and give effect to that direction.

Regulatory decisions concerning international passenger services

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(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) At the request of a relevant party submitted within one month of receipt of the information on the intended passenger service referred to in regulation 19(14), the Office of Rail and Road must —

(a) ... in accordance with paragraphs (5) and (6) determine whether the exercise of the right conferred under regulation 4 by an applicant for infrastructure capacity notified under regulation 19(14) would compromise the economic equilibrium of a relevant public service contract; and

(b) make the determination on the basis of an objective economic analysis and in accordance with pre-determined criteria published by it.

(4) For the purposes of paragraph (3), and (6)(d) a relevant party is—

(a) the competent authority or authorities that awarded the public service contract;

(b) any other competent authority with a right to limit access along the route of the ... passenger service notified under regulation 19(14);

(d) the railway undertaking performing the relevant public service contract to which the request relates.

(5) Within one month of receipt of a request under paragraph (3)(a), the Office of Rail and Road must consider the information provided, and, as appropriate, ask for further relevant information from, and initiate consultation with, all relevant parties.

(6) The Office of Rail and Road must, within six weeks of receipt of all relevant information and, where appropriate, of any representations made by the Department—

(a) complete a consultation initiated under paragraph (5) or, as the case may be, under paragraph (9) if required;

(b) make a decision on a request made under paragraph (3);

(c) where appropriate, issue a direction to the infrastructure manager, allocation body, charging body, service provider or, as the case may be, railway undertaking, limiting the access rights conferred under regulation 4, if the exercise of those rights would compromise the economic equilibrium of a relevant public service contract;

(d) provide the relevant parties and any railway undertaking seeking access for the purpose of operating a passenger service with—

(i) the grounds for its decision,

(ii) the conditions under which any of those parties may request a reconsideration of the decision or direction or both, and

(iii) where paragraph (6)(c) applies, an indication of possible changes to the service which would ensure that the conditions to grant the right of access provided for in regulation 4 are met.

(6A) A request for a reconsideration in accordance with paragraph (6)(d)(ii) must be made within one month of receipt of the information referred to in paragraph (6)(d).

(7) Where the Office of Rail and Road has received a properly made request for a reconsideration of its decision or direction in accordance with paragraph (6)(d) (ii) and (6A) , any decision or direction it has made under paragraph (6) will not take effect pending reconsideration.

(8) Where the Office of Rail and Road has received a properly made request for a reconsideration of its decision or direction in accordance with paragraph (6)(d) (ii) and (6A) , it must, within six weeks of the date of receipt of all relevant information and of any representations made by the Department—

(a) make a reconsidered decision on the request; and

(b) where appropriate, issue or reissue a direction or directions to the infrastructure manager, allocation body, charging body, service provider or, as the case may be, railway undertaking.

(9) In making a decision on a request made under paragraph (3), or a request for a reconsideration of its decision under paragraph (6), the Office of Rail and Road must either—

(a) confirm that no modification of the infrastructure manager or allocation body's decision to award access rights is required; or

(b) require modification of that decision in accordance with directions issued by the Office of Rail and Road.

(10) Without prejudice to the right of any person to make an application to the Court under Order 53 of the Rules of the Court of Judicature (Northern Ireland) 1980 –

(a) a decision by the Office of Rail and Road on a request made under paragraph (3) or a request for a reconsideration of its decision under paragraph (6) is binding on all parties affected by that decision; and

(b) it is the duty of any person to whom a direction is given under this regulation to comply with and give effect to that direction.

(11) The procedure and criteria to be applied by the Office of Rail and Road in the performance of its functions under paragraphs (3) and (8) shall be subject to, and include, the relevant procedures and criteria set out in Commission Implementing Regulation (EU) No. 869/2014 of 11 August 2014 on new rail passenger services.

Monitoring the rail services markets

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(1) The Office of Rail and Road must monitor the competitive situation in the rail services markets , including the market for passenger services and the activities of infrastructure managers in relation to the matters referred to in regulation 32(2) .

(2) In particular it must-

(a) verify compliance with the matters referred to in regulation 32(2) on its own initiative and with a view to preventing discrimination against applicants; and

(b) check whether the network statement contains discriminatory clauses or creates discretionary powers for the infrastructure manager that may be used to discriminate against applicants.

(3) The Office of Rail and Road must, where appropriate and on its own initiative, give appropriate directions to correct—

(a) discrimination against applicants;

(b) market distortion; or

(c) undesirable developments in relation to the competitive situation in the rail services markets, in particular with reference to the matters referred to in paragraph 32(2).

(4) Without prejudice to the right of any person to make an application to the court under Order 53 of the Rules of the Supreme Court (Northern Ireland) 1980, it is the duty of any person to whom a direction is given under paragraph (3) to comply with and give effect to that direction.

(5) The Office of Rail and Road must regularly, and in any case at least every two years, consult representatives of users of the rail freight and passenger transport services, to take into account their views on the rail market.

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) The Office of Rail and Road and the Department as safety authority must co-operate closely, in particular with a view jointly, to develop a framework for information sharing and co-operation aimed at preventing adverse effects on competition or safety in the rail services markets.

Audits

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(1) The Office of Rail and Road may carry out an audit or initiate an external audit of an infrastructure manager, service provider and, where relevant, railway undertakings to verify compliance with the account separation provisions laid down in regulation 9 and the provisions on financial transparency laid down in regulation 9A .

(2) For the purposes of paragraph (1) the power of the Office of Rail and Road, under regulation 36 to request relevant information to perform its functions includes a power to request any relevant party to provide all or part of the accounting information listed in Schedule 5 with a sufficient level of detail as is deemed necessary and proportionate.

(3) For the purposes of paragraph (2) “any relevant party” includes an infrastructure manager, service provider, railway undertaking or other entity performing or integrating different types of rail transport or infrastructure management as referred to in regulations 5 and 9(1).

(3A) In the case of vertically integrated undertakings, the powers of the Office of Rail and Road under this regulation extend to all legal entities within the vertically integrated undertaking.

(4) The Office of Rail and Road may draw conclusions from the accounts concerning state aid issues which it must report to the Department.

Duty of certain persons to furnish information to the Department or the Office of Rail and Road

36

(1) The infrastructure manager, applicant, service provider, allocation body, charging body or any other party shall be under a duty to furnish to the Department or the Office of Rail and Road, in such form and manner as requested, such information as is required, being information which the Department or the office of Rail and Road considers necessary for the purpose of facilitating the performance of any functions of the Department or the Office of Rail and Road, or any other function or activity in relation to railway services.

(2) Holder of European licences shall be under a duty to furnish to the office of Rail and Road, in such form and manner as it may by notice request, such information as it may so request, being information which the Office of Rail and Road considers necessary for the purpose of facilitating the performance of any of its functions under any instrument made for the purpose of implementing Directive 2004/49/EC dated 29th April 2004 , both of the European Parliament and of the Council, and Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012.

(3) A request under subsections (1) and (2) above must be complied with within such time (being not less than 28 days from the making of the request) as may be specified in the request.

(4) If a request under subsection (1) above is not complied with, the Department or the office of Rail and Road may serve a notice under subsection (6) below on the person from whom the information was requested under subsection (1) above.

(5) If a request under subsection (2) above is not complied with, the Office of Rail and Road may serve a notice under subsection (6) below on the person from whom the information was requested under subsection (2) above.

(6) A notice under this subsection is a notice signed by the Department or the Office of Rail and Road and requiring the person on whom it is served to produce, at a time and place specified in the notice, to the Department or to the Office of Rail and Road, any documents which are specified or described in the notice and are in that person's custody or under this control.

(7) No person shall be required under this section to produce any documents which he could not be compelled to produce in civil proceedings in the court, or, in complying with any requirement for the furnishing of information, to give any information which he could not be compelled to give in evidence in any such proceedings.

(8) A person who intentionally alters, suppresses or destroys any document which he has been required by any notice under subsection (6) above to produce, is guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum, or

(b) on conviction or indictment, to a fine.

(9) If a person makes default in complying with a notice under subsection (6) above, the court may, on the application of the Department or the office of Rail and Road in the case of a request under subsection (1) above, or the Office of Rail and Road in the case of a request under subsection (2) above, make such order as the court thinks fit for requiring the default to be made good; and any such order may provide that all the costs or expenses of and incidental to the application, shall be borne by the person in default or by any officers of a company or other association who are responsible for its default.

(10) Any reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form; and the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.

(11) In this section “the court” means the Court of Judicature.

Co-operation between regulatory bodies

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 7 — ENFORCEMENT BY THE REGULATORY BODY

Enforcement of decisions, directions and notices

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(1) If the Office of Rail and Road or the Department, in respect of its function under regulation 6(10), is satisfied that a relevant operator has contravened, or is contravening, a relevant decision, direction or notice, the authority may impose on the relevant operator a penalty of such amount as is reasonable.

(2) A penalty is payable to the Department.

(3) The amount of a penalty imposed on a relevant operator may not exceed 10 per cent. of his turnover in accordance with a direction made by the Department.

(4) In this regulation—

(a) “relevant decision, direction or notice” means—

(i) a decision made, or direction issued, by the Office of Rail and Road under regulation 31, 32, 33 or 34; or

(ii) a notice served by the Office of Rail and Road under regulation 36.

(b) “relevant operator” means—

(i) a person issued with a decision or direction under regulations 31, 32, 33, or 34; or

(ii) a person on whom a notice is served under regulation 36.

Statement of policy

39

(1) The Office of Rail and Road, in consultation with the Department and other interested parties, shall prepare and publish a statement of policy with respect to the imposition of penalties and the determination of their amount.

(2) A statement of policy may include provision for a decision whether to impose a penalty, or the determination of the amount of any penalty, in respect of the contravention of any relevant condition or requirement or direction to be influenced by—

(a) the desirability of securing compliance with that relevant condition or requirement or direction;

(b) the consequences or likely consequences of anything which has been or is being done or omitted to be done in contravention of that relevant condition or requirement or direction; and

(c) the desirability of deterring contraventions of relevant conditions and requirements and final and provisional directions.

(3) In deciding whether to impose a penalty, and in determining the amount of any penalty, in respect of a contravention the Office of Rail and Road shall have regard to any statement of his, their or its policy published at the time when the contravention occurred.

(4) The Office of Rail and Road —

(a) may at any time alter or replace a statement of their policy; and

(b) shall publish the altered or replacement statement.

(5) The Office of Rail and Road shall undertake appropriate consultation when preparing, altering or replacing a statement of policy.

(6) Office of Rail and Road shall publish a statement of policy in the manner that appears most suitable for bringing it to the attention of those likely to be affected by it.

(7) This regulation applies in relation to sums required to be paid by virtue of regulation 41 above as to penalties, but as if—

(a) references to the imposition of penalties were to the inclusion in a direction of a requirement to pay a sum;

(b) references to relevant conditions or requirements were omitted; and

(c) the reference in subparagraph (2)(b) above to anything which has been or is being done or omitted to be done included a reference to anything which is likely to be done or omitted to be done.

Procedural requirements for penalties

40

(1) Before it imposes a penalty on a relevant operator, the Office of Rail and Road shall give notice—

(a) stating that it proposes to impose a penalty on the relevant operator and the amount of the penalty proposed,

(b) setting out the relevant condition or requirement or direction in question,

(c) specifying the acts or omissions which, in its opinion, constitute contraventions of that condition or requirement or direction and the other facts which, in its opinion, justify the imposition of a penalty and the amount of the penalty proposed,

(d) specifying the manner in which, and place at which, it is proposed to require the penalty to be paid, and

(e) specifying the period (not being less than 21 days from the date of publication of the notice) within which representations or objections with respect to the proposed penalty may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(2) A notice under paragraph (1) above shall be given—

(a) by publishing the notice in such manner as the Office of Rail and Road considers appropriate; and

(b) by serving a copy of the notice on the relevant operator.

(3) Where the Office of Rail and Road serves a copy of a notice under paragraph (1) above on a licence holder, he shall also serve a copy on the Department.

(4) The Office of Rail and Road shall not modify a proposal to impose a penalty except—

(a) with the consent of the relevant operator;

(b) where the modifications consist of a reduction of the amount of the penalty or a deferral of the date by which it is to be paid; or

(5) The requirements mentioned in subparagraph (4)(c) above are that the Office of Rail and Road shall—

(a) give to the relevant operator such notice as appears to it requisite of its modified proposal;

(b) unless the proposed modifications are trivial, in that notice specify a period (not being less than seven days from the date of service of the notice) within which representations or objections with respect to the proposed modifications may be made; and

(6) As soon as practicable after imposing a penalty, the Office of Rail and Road shall give notice—

(a) stating that it has imposed a penalty on the relevant operator and its amount;

(b) setting out the relevant condition or requirement or direction in question;

(c) specifying the acts or omissions which, in its opinion, constitute contraventions of that condition or requirement or direction and the other facts which, in its opinion, justify the imposition of the penalty and its amount;

(d) specifying the manner in which, and place at which, the penalty is to be paid; and

(e) specifying the date (not being less than fourteen days from the date of publication of the notice) by which the penalty is to be paid.

(7) A notice under paragraph (6) above shall be given—

(a) by publishing the notice in such manner as the Office of Rail and Road considers appropriate; and

(b) by serving a copy of the notice on the relevant operator.

(8) The relevant operator may, within 21 days of the date of service on him of the notice under paragraph (6) above, make an application to the Office of Rail and Road for it to specify different dates by which different portions of the penalty are to be paid.

Interest and payment of instalments

41

If the whole or any part of a penalty is not paid by the date by which it is to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in Article 127 of the Rules of the Court of Judicature (Northern Ireland) 1980 .

Validity and effect of penalties

42

(1) If the relevant operator to whom a penalty notice relates is aggrieved by a penalty and desires to question its validity on the ground—

(a) that it was not within the powers of regulation 38 above,

(b) that any of the requirements of regulation 38 above have not been complied with in relation to it and his interests have been substantially prejudiced by the non-compliance, or

he may make an application to the court under this section.

(2) An application under this section by a person shall be made—

(a) where it is on the ground mentioned in subparagraph (1)(c) above, within 42 days from the date on which he is notified of the decision not to grant the application under regulation 40(8) above, and

(b) in any other case, within 42 days from the date of service on him of the notice under regulation 40(6) above.

(3) If an application is made under this section in relation to a penalty, the penalty need not be paid until the application has been determined.

(4) On an application under this section on the ground mentioned in paragraph (1)(a) or (b) above the court, if satisfied that the ground is established, may quash the penalty or (instead of quashing it) make provision under either or both of subparagraphs (a) and (b) of paragraph (5) below.

(5) The provision referred to in paragraph (4) above is—

(a) provision substituting a penalty of such lesser amount as the court considers appropriate in all the circumstances of the case; and

(b) provision substituting as the date by which the penalty, or any portion of the penalty, is to be paid a date later than that specified in the notice under regulation 40(6) above.

(6) On an application under this section on the ground mentioned in subparagraph (1)(c) above the court, if satisfied that the ground is established, may specify different dates by which different portions of the penalty are to be paid.

(7) Where the court substitutes a penalty of a lesser amount it may require the payment of interest on the substituted penalty at such rate, and from such date, as it determines; and where it specifies as the date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application it may require the payment of interest on the penalty, or portion, from that date at such rate as it determines.

(8) Except as provided by this section, the validity of a penalty shall not be questioned by any legal proceedings whatever.

PART 8 — EUROPEAN LICENCES

Prohibition of unlicensed provision of international services

43

(1) Where a person is a railway undertaking to which these regulations apply, that person shall not provide a train service in Northern Ireland unless he is authorised to do so by a European licence which is appropriate for that train service, and any person who provides such services without such a licence shall be guilty of an offence.

(2) Any person who is guilty of an offence under this regulation shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

(3) No proceedings shall be instituted in Northern Ireland in respect of an offence under this regulation except by or on behalf of the Office of Rail and Road.

(4) In this regulation the expression “European licence” includes a licence granted pursuant to any action taken by an EEA State for the purpose of implementing the 1995 Directive or the Directive and a licence granted by the Office of Rail and Road pursuant to the Railway (Licensing of Railway Undertakings) Regulations 2005 .

Appointment of licensing authority and grant of European licences

44

(1) The Department is hereby designated as the body responsible for granting European licences.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The Department shall determine and publish the procedures for the granting of European licences ....

(4) Subject to and in accordance with these regulations, the Department shall grant a European licence to a railway undertaking if that undertaking—

(a) is established in Northern Ireland, and

(b) makes an application to the Department in accordance with the published procedures.

(5) An applicant shall submit with his application such application fee as the Department may reasonably require and such information, specified in the published procedures referred to in paragraph (4)(b), as the Department reasonably requires in order to be satisfied that the applicant satisfies the requirements referred to in Schedule 4.

(6) Before granting or modifying a European licence the Department shall consult the Health and Safety Executive for Northern Ireland.

(7) A European licence may authorise the provision of train services generally or be restricted to particular types of service specified in the licence.

(8) At any time after submitting the application the applicant shall submit such further information as the Department may reasonably require in connection with the application.

(9) The Department shall grant a European licence if, and only if, it is satisfied before the start of the applicant's activities, that the applicant will be able at any time to satisfy the requirements referred to in Schedule 4 as to good repute, financial fitness, professional competence and insurance cover for civil liberties.

(10) An application for a European licence shall be determined by the Department as soon as possible and in any event within three months of receipt of the information referred to in paragraph (8).

(11) In respect of each application for a European licence the Department shall give notice stating—

(a) that the applicant has made an application for a European licence;

(b) the name of the applicant and the address of its registered or principal office; and

(12) A notice under paragraph (11) shall be given by publishing the notice in such manner as the Department considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the European licence.

(13) The Department shall inform the applicant in writing of its decision and, where it refuses to grant a European licence, the refusal shall state the reasons for its decision.

(14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(15) As soon as practical after granting a European licence the Department shall send a copy of the licence to the Health and Safety Executive for Northern Ireland.

(16) Any sums received by the Department under this regulation shall be paid into the Consolidated Fund.

(17) Schedule 4 (qualifications for European licence) shall have effect.

Validity of European licences

45

(1) A European licence shall, unless previously revoked or surrendered in accordance with any provision in these regulations or the licence, continue in force as long as the Department is satisfied that the railway undertaking concerned continues—

(a) to satisfy the requirements referred to in Schedule 4 as to good repute, financial fitness, professional competence and insurance cover for civil liabilities, and

(b) to submit the licence to the Department for review or approval when so required under regulation 46.

(2) A European licence may incorporate specific provisions governing the suspension or revocation of the licence.

Monitoring, suspension and revocation of European licences

46

(1) Subject to paragraph (5), this regulation applies to a railway undertaking to which a European licence has been granted.

(2) The Department must take such steps as necessary to enable it to determine whether the railway undertaking complies with the requirement referred to in Schedule 4—

(a) at regular intervals of at least 5 years; or

(b) at any time the Department considers that there is serious doubt whether or not a railway undertaking complies with the requirement.

(3) If, having taken the steps referred to in paragraph (2), the Department is satisfied that a railway undertaking does not comply with any such requirement, it shall revoke the European licence held by the railway undertaking or suspend it.

(4) The Department shall revoke a European licence if proceedings have been commenced for the winding up of a railway undertaking on the grounds that the undertaking is unable to pay its debts and the Department is satisfied that there is no reasonable prospect of satisfactory financial restructuring of the undertaking within a reasonable period of time.

(5) Where the Department is satisfied that there is a serious doubt whether a railway undertaking to which a licence has been granted by the Office of Rail and Road pursuant to the Railway (Licensing of Railway Undertakings) Regulations 2005 complies with any requirement of those Regulations, it must without delay so notify the Office of Rail and Road.

(6) Where the Department has suspended or revoked a European licence solely on the grounds of the non-compliance by the railway undertaking with the requirements of financial fitness specified in Schedule 4 but the Department considers that there is a realistic prospect of a satisfactory financial restructuring of the undertaking taking place within a reasonable period of time, it may grant to the undertaking a temporary European licence pending such financial restructuring.

(7) A temporary European licence under paragraph (6) shall not be granted—

(a) where the Department considers that safety would be jeopardised, or

(b) for a period exceeding six months.

(8) Where a railway undertaking to which a European licence has been granted has either ceased the operations to which the licence relates for a continuous period of six months or, subject to paragraph (9), has not commenced such operations within six months of the date of such grant, then the Department may either require the railway undertaking to resubmit its European licence to the Department for approval or suspend the European licence.

(9) When making an application for a European licence, or where the Department has required a railway undertaking to resubmit its European licence in pursuance of paragraph (8) on the grounds that the railway undertaking has not commenced such operations, the railway undertaking shall be entitled to request that a period longer than six months be granted in which it can commence operations, taking into account the specific nature of the services to be provided.

(10) In the event of a change affecting the legal situation of a railway undertaking, in particular following a change in the control or ownership of the railway undertaking as a result of a merger with or take-over by another undertaking, the Department may require the railway undertaking to submit the European licence to the Department for approval.

(11) Where a European licence is submitted for approval pursuant to paragraph (10), the railway undertaking may continue operations whilst its European licence is under review unless the Department decides that safety is jeopardised by the change referred to in paragraph (10).

(12) If the Department decides that safety is jeopardised by that change, it shall notify the railway undertaking of its decision and of the grounds for it.

(13) When a railway undertaking intends significantly to change or extend its activities from those in respect of which a European licence was granted to it, the railway undertaking shall submit its European licence to the Department for review.

(14) When the Department amends, suspends or revokes a European licence it shall forthwith inform the the Office of Rail and Road of such an amendment, suspension or revocation.

Review

47

(1) The Department must, from time to time—

(a) carry out a review of these Regulations;

(b) set out the conclusion of the review in a report; and

(2) In carrying out the review the Department must, so far as is reasonable, have regard to how the 2012 Directive (2012/34/EU), (which is implemented by means of these Regulations) is implemented in other EEA states.

(3) The report must, in particular—

(a) set out the objectives intended to be achieved by the regulatory system established by these Regulations;

(b) assess the extent to which those objectives are achieved; and

(c) assess whether those objectives remain appropriate and, if so, the extent to which they would be achieved with a system which imposes less regulation.

(4) The first report under this regulation must be published before the end of a period of 5 years beginning with the day on which these Regulations come into force.

(5) Reports under this regulation are afterwards to be published at intervals not exceeding 5 years.

PART 9 — STATEMENTS OF NATIONAL REGULATORY PROVISIONS

Prohibition on operating trains without a statement of national regulatory provisions

48

(1) Where a person is a railway undertaking to which these regulations apply, that person may not act as the operator of a train for the purpose of providing train services in Northern Ireland unless (in addition to being authorised by a European licence) he holds a valid statement of national regulatory provisions (SNRP).

(2) Any person who provides such services without holding such a statement shall be guilty of an offence.

(3) Any person who is guilty of an offence under this regulation shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum, or

(b) on conviction on indictment, to a fine.

(4) No proceedings shall be instituted in Northern Ireland in respect of an offence under this regulation except by or on behalf of the Department.

(5) In this regulation and in regulations 49 and 50, the expression “European licence” includes a licence granted pursuant to any action taken by an EEA State for the purpose of implementing the 1995 Directive or the Directive and a licence granted by the Office of Rail and Road pursuant to the Railway (Licensing of Railway Undertakings) Regulations 2005.

Statements of national regulatory provisions (“SNRPs”)

49

(1) Upon application being made, the Department shall issue a SNRP to a holder of a valid European licence.

(2) Any application for a SNRP—

(a) shall be made in writing to the Department and in such form and manner as the Department may from time to time determine and publish, and

(b) shall be accompanied by a copy of the European licence, if already held.

(3) A SNRP shall continue in force for such period as may be specified in or determined by or under the SNRP.

Conditions of SNRPs

50

(1) Subject to paragraph (4), a SNRP may include one or more conditions (whether or not relating to the activities for which the applicant for the SNRP requires a European licence) as appear to the Department to be requisite or expedient.

(2) Subject to paragraph (4), a SNRP may include conditions requiring the rendering to the Department of a payment on the grant of the SNRP or payments during the currency of the SNRP, or both, of such amount or amounts as may be determined by or under the SNRP

(3) Without prejudice to the generality of paragraph (1), conditions included in a SNRP by virtue of paragraph (1) may impose any of the following requirements—

(a) specific technical and operational requirements for rail services;

(b) safety requirements applying to staff, rolling stock and the internal organisation of the undertaking;

(d) requirements applying to all undertakings in the relevant railway sector designed to offer benefits or protection to consumers.

(4) A condition may not—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) be applied in a discriminatory manner.

(5) Any sums received by the Department in consequence of the provisions of any condition of a SNRP shall be paid into the Consolidated Fund.

Referral for Commission's opinion

51

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

52

(1) Subject to regulation 50 and to the following provisions of this regulation, the Department may modify the conditions of a SNRP if the SNRP holder consents to the modifications.

(2) Before making modifications under this regulation, the Department shall give notice—

(a) stating that it proposes to make the modifications and setting out their effect;

(b) stating the reasons why it proposes to make the modifications; and

(c) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall, before making the modifications, consider any representations or objections which are duly made and not withdrawn.

(3) A notice under paragraph (2) shall be given—

(a) by publishing the notice in such manner as the Department considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and

(b) by serving a copy of the notice on the SNRP holder.

PART 10 — MISCELLANEOUS

Statutory authority to run trains

53

Any applicant granted access rights under these regulations shall, if and to the extent that it would not, apart from this regulation, have statutory authority to run trains over any track in exercise of such rights, be taken to have statutory authority to do so.

Civil proceedings

54

(1) Any obligation which a person owes under or arising from these regulations is a duty owed to any person who may be affected by a breach of that obligation and is actionable by any such person who sustains loss, damage or injury caused by the breach at the suit or instance of that person.

(2) In any proceedings brought against the infrastructure manager, railway undertaking, charging body, service provider, allocation body or applicant under paragraph (1), it is a defence for it to prove that it took all reasonable steps and exercised all due diligence to avoid the breach of duty.

(3) Without prejudice to the right, which any person may have by virtue of paragraph (1) to bring civil proceedings in respect of any breach of duty, the obligation to comply shall be enforceable by civil proceedings by the Office of Rail and Road in the case of their functions under these Regulations or by the Department, in the case of their functions under regulation 6(11) for an injunction or any other relief.

Making of false statements etc.

55

(1) If any person, in giving any information or making any application under or for the purposes of any provision of these regulations, makes any statement which that person knows to be false in a material particular, or recklessly makes any statement which is false in a material particular, that person is guilty of an offence and liable—

(a) on summary conviction, to fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

(2) No proceedings shall be instituted in Northern Ireland in respect of an offence under this regulation except by or with the consent of the Department or the Director of Public Prosecutions.

Offences by bodies corporate

56

For the purposes of these regulations section 20(2) of the Interpretation Act (Northern Ireland) 1954 applies with the omission of the words “the liability of whose members is limited” and where the affairs of the body corporate are managed by its members, applies in relation to the acts or defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Breaches of duty outside the United Kingdom

57

(1) For the purpose of determining whether a breach of the duty imposed by regulation 9 has occurred, it is immaterial that the relevant acts or omissions occurred outside the United Kingdom if, when they occurred, the person—

(a) was a United Kingdom national; or

(b) was a body incorporated under the law of any part of the United Kingdom; or

(c) was a person (other than a United Kingdom national or such a body) maintaining a place of business in the United Kingdom.

(2) In this regulation “United Kingdom national” means an individual who is—

(a) a British citizen, a British Dependent Territories citizen, a British National (Overseas) or a British Overseas citizen;

(b) a person who under the British Nationality Act 1981 is a British subject; or

Revocation

58

The Railways Infrastructure Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2005 are hereby revoked.

SCHEDULE 1 — SERVICES TO BE SUPPLIED TO RAILWAY UNDERTAKINGS

1

The minimum access package referred to in regulation 5(1) must comprise—

(a) handling of requests for infrastructure capacity; and

(b) the right to utilise such capacity as is granted and, in particular—

(i) such railway infrastructure including track, points and junctions as are necessary to utilise that capacity;

(ii) the use of electrical supply equipment for traction current;

(iii) train control, including signalling, train regulation, dispatching and the communication and provision of information on train movements; and

(iv) all other information as is necessary to implement or to operate the service for which capacity has been granted.

2

Access including track access to services facilities and the supply of services, referred to in regulations 4, 5 and 10 must comprise where they exist—

(a) refuelling facilities, and supply of fuel in these facilities, charges for which must be shown on the invoices separately;

(b) passenger stations, including buildings and other facilities such as travel information display and a suitable location for ticketing services;

(d) marshalling yards;

(e) train formation facilities including shunting facilities;

(f) storage sidings;

(g) maintenance facilities with the exception of heavy maintenance facilities dedicated to rolling stock requiring specific facilities;

(h) other technical facilities, including cleaning and washing facilities; and

(i) relief facilities.

3

The additional services referred to in regulation 5(10) may comprise—

(a) traction current, charges for which must be shown on the invoices separately from the charges for using the electrical equipment, without prejudice to the application of Directive 2009/72/EC of the European Parliament and of the Council of 13th July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC;

(b) pre-heating of passenger trains;

(i) control of the transport of dangerous goods; and

(ii) assistance in running abnormal trains.

4

The ancillary services referred to in regulation 5(11) may comprise—

(a) access to the telecommunications network;

(b) the provision of supplementary information;

(d) ticketing services in passenger stations; and

(e) heavy maintenance services supplied in maintenance facilities dedicated to rolling stock requiring specific facilities.

SCHEDULE 2 — ACCESS CHARGING

Principles of access charging

1

(1) The infrastructure manager must ensure that the application of the charging scheme—

(a) complies with the rules set out in the Network Statement produced in accordance with regulation 13; and

(b) results in equivalent and non-discriminatory charges for different railway undertakings that perform services of an equivalent nature in a similar part of the market.

(2) The calculation of the charge may in particular take into account the mileage, composition of the train and any specific requirements in terms of such factors as speed, axle load and the degree or period of utilisation of the infrastructure.

(3) Except where specific arrangements are made in accordance with paragraph 3, the infrastructure manager must ensure that the charging scheme in use is based on the same principles over the whole of the network.

(4) Without prejudice to sub-paragraph (8) the charges for the minimum access package and track access to service facilities referred to in paragraphs 1 and 2 of Schedule 1 shall be set at the cost that is directly incurred as a result of operating the train service.

(5) From 2 August 2019 or earlier, the infrastructure manager must calculate the cost under sub-paragraph (4) in accordance with the Commission Implementing Regulation (EU) 2015/909 of 12th June 2015 on the modalities for the calculation of the cost that is directly incurred as a result of operating the train service .

(6) The charge imposed for track access within service facilities referred to in paragraph (2) of Schedule 1 and the supply of service in such service facilities must not exceed the cost of providing it, plus a reasonable profit.

(7) If the additional or ancillary services referred to in paragraphs 3 and 4 of Schedule 1 are offered by only one supplier the charge imposed for the supply of those services must not exceed the cost of providing the serviceplus a reasonable profit.

(8) The infrastructure charge may include a charge to reflect the scarcity of capacity of the identifiable segment of the infrastructure during periods of congestion.

(9) The charges referred to in subparagraph (4) and (8) may be averaged over a reasonable spread of train services and times, but the relevant magnitudes of the infrastructure charges must be related to the costs attributable to the services.

Exceptions to the charging principles

2

(1) In order to obtain full recovery of the costs incurred the infrastructure manager, with the approval of the Department, may levy mark-ups on the basis of efficient, transparent and non-discriminatory principles, whilst guaranteeing optimum competitiveness, in particular in respect of rail market segments.

(2) The effect of sub-paragraph (1) must not be to exclude the use of infrastructure by market segments which can pay at least the cost that is directly incurred as a result of operating the railway service, plus a rate of return which the market can bear.

(3) The charging system must respect the productivity increases achieved by applicants.

(4) Before approving the levy of a mark-up under sub-paragraph (1) the Department must ensure that the infrastructure manager evaluates the relevance of a mark-up for the specific market segments, considering at least the pairs listed in sub-paragraph (9) and retaining the relevant ones.

(5) The list of market segments to be considered by the infrastructure manager under sub-paragraph (3) must contain at least the three following segments: freight services, passenger services within the framework of a public service contract and other passenger services.

(6) In addition to the market segments considered under paragraph (4) the infrastructure manager may consider further market segments according to commodity or passengers transported.

(7) Market segments in which railway undertakings are not currently operating but in which they may provide services during the period of validity of the charging system, must also be defined. The infrastructure manager must not include a mark up in the charging system for those market segments.

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