(1) Subject to paragraph (5), the infrastructure manager, in its legal form, must be independent of any railway undertaking and, in vertically integrated undertakings, also be independent of any other legal entity within the undertaking.

(2) In vertically integrated undertakings, the other legal entities must not exercise any decisive influence on the decisions of the infrastructure manager in relation to the essential functions.

(3) Members of the supervisory board and the management board, and managers reporting directly to them, must act in a non-discriminatory manner and their impartiality must not be affected by any conflict of interest.

(4) The same individuals cannot be concurrently appointed or employed—

(a) as members of the management board or an infrastructure manager and as members of the management board of a railway undertaking;

(b) as persons in charge of taking decisions on the essential functions and as members of the management board of a railway undertaking;

(c) where a supervisory board exists, as members of the supervisory board of an infrastructure manager and as members of the supervisory board of a railway undertaking;

(d) as members of the supervisory board of an undertaking which is part of a vertically integrated undertaking and which exercises control over both a railway undertaking and an infrastructure manager and as members of the management board of that infrastructure manager.

(5) Paragraph (1) and sub-paragraphs (c) and (d) of paragraph (3) do not apply where infrastructure charging and path allocation functions are performed by a charging body and an allocation body by virtue of regulations 14(6) and 19(3) respectively.

(6) In vertically integrated undertakings, the members of the management board of the infrastructure manager and the persons in charge of taking decisions on the essential functions must not receive—

(a) any performance-based remuneration from any other legal entities within the vertically integrated undertaking, or

(b) any bonuses principally related to the financial performance of particular railway undertakings,

however, they may be offered incentives related to the overall performance of the railway system.

(7) Where information systems are common to different entities within a vertically integrated undertaking, access to sensitive information relating to essential functions must be restricted to authorised staff of the infrastructure manager and not passed on to other entities within the vertically integrated undertaking.

8B

(1) Provided that no conflicts of interest arise and that the confidentiality of commercially sensitive information is guaranteed, the infrastructure manager may outsource—

(a) functions to a different entity, provided the latter is not a railway undertaking, does not control a railway undertaking, or is not controlled by a railway undertaking;

(b) the execution of works and related tasks on development, maintenance and renewal of the railway infrastructure to railway undertakings or companies which control the railway undertaking, or are controlled by the railway undertaking.

(2) Within a vertically integrated undertaking, the infrastructure manager must not outsource essential functions to any other entity of the vertically integrated undertaking under paragraph (1)(a), unless that entity exclusively performs essential functions.

(3) Any entity carrying out essential functions which have been outsourced under paragraph (1)(a) must comply with regulations 8A, 8C, 9A, 14(6) and 19(3).

Impartiality of the infrastructure manager in respect of traffic management and maintenance planning

8C

(1) The infrastructure manager must exercise the functions of traffic management and maintenance planning in a transparent and non-discriminatory manner and ensure that the persons in charge of taking decisions in respect of those functions are not affected by a conflict of interest.

(2) As regards traffic management, the infrastructure manager must ensure that railway undertakings, in cases of disruption concerning them, have full and timely access to relevant information. Where the infrastructure manager grants further access to the traffic management process, it must do so for the railway undertakings concerned in a transparent and non-discriminatory way.

(3) The infrastructure manager must carry out the scheduling of maintenance works in a non-discriminatory way. As regards the long-term planning of major maintenance and/or renewal of the railway infrastructure, the infrastructure manager must consult applicants and, so far as reasonably practicable, take into account the concerns expressed.

Separation of accounts

Financial transparency

9A

(1) Infrastructure managers must not use income from infrastructure network management activities for any purposes other than to finance the business of the infrastructure manager, but this may include the servicing of the infrastructure manager’s loans and the payment of dividends to its shareholders provided that the income is not used to pay dividends to undertakings within a vertically integrated undertaking which exercise control over both a railway undertaking and the infrastructure manager.

(2) Infrastructure managers must not grant loans to railway undertakings, either directly or indirectly.

(3) Railway undertakings must not grant loans to infrastructure managers, either directly or indirectly.

(4) Loans between legal entities of a vertically integrated undertaking may only be granted, disbursed and serviced at market rates and conditions which reflect the risk profile of the entity concerned.

(5) Other legal entities within a vertically integrated undertaking may only provide services to the infrastructure manager if those services are provided on a contractual basis and paid for at market rates or at prices which reflect the cost of production, plus a reasonable margin of profit.

(6) Debts attributed to the infrastructure manager must be—

(a) clearly separated from debts attributed to other legal entities within vertically integrated undertakings, and

(b) serviced separately from debts attributed to other legal entities within vertically integrated undertakings,

but, this does not prevent the final payment of debts being made via an undertaking which is part of a vertically integrated undertaking and which exercises control over both a railway undertaking and an infrastructure manager, or via another entity within the undertaking.

(7) Within vertically integrated undertakings, the infrastructure manager must keep detailed records of any commercial and financial relations with the other legal entities within that undertaking.

(8) In vertically integrated undertakings, the accounts of the infrastructure manager and of the other legal entities must be kept in a way that ensures fulfilment of the requirements of this regulation and allows for separate accounting and transparent financial circuits within the undertaking.

(9) Where essential functions are performed by a charging or allocation body in accordance with regulation 14(6) or 19(3), the provisions of this regulation apply to that body and references in this regulation to infrastructure manager, railway undertaking and other legal entities of a vertically integrated undertaking are to be taken as references to the respective divisions of the undertaking in question.

(10) This regulation does not apply to private infrastructure managers that are party to a public-private partnership concluded before 24th December 2016 where—

(a) the infrastructure manager does not receive any public funds, and

(b) any loans or financial guarantees operated by the infrastructure manager do not directly or indirectly benefit specific railway undertakings.

Independence of service providers from dominant bodies and firms

Indicative railway infrastructure strategy

Business Plans

Network Statement

Coordination mechanisms

13A

(1) The main infrastructure manager must put in place appropriate a coordination mechanism to ensure it coordinates, at least annually, with all interested railway undertakings as well as applicants referred to in regulation 12(3) regarding the matters set out in paragraph (3).

(2) Where relevant, representatives of users of the rail freight and passenger transport services, and national, local or regional authorities, must be invited to participate in the coordination required by paragraph (1) and the Office of Rail and Road may participate as an observer.

(3) The matters referred to in paragraph (1) are—

(a) the needs of applicants related to the maintenance and development of the infrastructure capacity;

(b) the content of the user-oriented performance targets contained in the agreement referred to in regulation 15(2) and of the incentives referred to in regulation 15(3) and their implementation;

(d) issues of intermodality and interoperability;

(e) any other issues related to the conditions for access, the use of the infrastructure and the quality of the services of the infrastructure manager.

(4) The main infrastructure manager must draw up and publish guidelines for the coordination required by paragraph (1) in consultation with interested parties and must publish on its website an overview of the activities undertaken pursuant to this regulation.

European Network of Infrastructure Managers

13B

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

Regulatory decisions concerning ... passenger services

The Schedule for the Allocation Process set out in Annex 7 to the Directive (the text of which was replaced by the text annexed to Commission delegated Decision (EU) 2017 replacing Annex 7 to Directive 2012/34/EU of the European Parliament and of the council establishing a single European railway area applies for the purpose of this Schedule.

Monitoring, suspension and revocation of SNRPs issued to holders of European licences”

52A

(1) This regulation applies where the Department has issued a SNRP under regulation 49 to the holder of a licence granted pursuant to any action taken by an EEA State for the purpose of implementing the Directive or the 1995 Directive.

(2) The Department must take such steps as are necessary to enable it to determine whether or not the licence holder complies with the requirements referred to in Schedule 4 as to good repute, financial fitness, professional competence and insurance cover for civil liabilities at any time the Department considers that there is serious doubt whether the licence holder complies with any of those requirements, and in doing so, the Department must treat Schedule 4 as if it applies in relation to holders of licences granted pursuant to any action taken by an EEA State for the purposes of implementing the Directive or the 1995 Directive.

(3) If, having taken the steps referred to in paragraph (2), the Department is satisfied that the licence holder does not comply with any such requirement, the Department must revoke or suspend the SNRP issued to the licence holder.

SCHEDULE 3A — BASIC PRINCIPLES AND PARAMETERS OF CONTRACTUAL AGREEMENTS BETWEEN COMPETENT AUTHORITIES AND INFRASTRUCTURE MANAGERS

The contractual agreement referred to in regulation 15(2) must specify provisions of regulation 15(2) to (8) and include at least the following elements—

(a) the scope of the agreement as regards infrastructure and service facilities, structured in accordance with Schedule 1 (services to be supplied to railways undertakings). It must cover all aspects of infrastructure management, including maintenance and renewal of the infrastructure already in operation. Where appropriate, construction of new infrastructure may also be covered;

(b) the structure of payments or funds allocated to the infrastructure services listed in Schedule 1, to maintenance and renewal and to dealing with existing maintenance and renewal backlogs. Where appropriate, the structure of payments or funds allocated to new infrastructure may be covered;

(i) train performance, such as in terms of line speed and reliability, and customer satisfaction,

(ii) network capacity,

(iii) asset management,

(iv) activity volumes,

(v) safety levels, and

(vi) environmental protection;

(d) the amount of possible maintenance backlog and the assets which will be phased out of use and therefore trigger different financial flows;

(e) the incentives referred to in regulation 15(3);

(f) minimum reporting obligations for the infrastructure manager in terms of content and frequency of reporting, including information to be published annually;

(g) the agreed duration of the agreement, which must be synchronised and consistent with the duration of the infrastructure manager’s business plan, concession or licence, where appropriate, and the charging framework and rules set by the Department under regulation 14(1);

(h) rules for dealing with major disruptions of operations and emergency situations, including contingency plans and early termination of the contractual agreement, and timely information to users;

(i) remedial measures to be taken if either of the parties is in breach of its contractual obligations, or in exceptional circumstances affecting the availability of public funding; this includes conditions and procedures for renegotiation and early termination.

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

Independence of the infrastructure manager

8A

Outsourcing and sharing the infrastructure manager’s functions

8B