S.I. No. 536/2003 - European Communities (Access To Railway Infrastructure) Regulations, 2003

Arrangement of Regulations

I, Seamus Brennan, Minister for Transport, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001¹ , amending Council Directive 91/440/EC of 29 July 1991² on the development of the Community's railways, hereby make the following Regulations:

1. Citation

These Regulations may be cited as the European Communities (Access to Railway Infrastructure) Regulations 2003.

2. Interpretation

(1)     In these Regulations, unless the context otherwise requires:-

“Chief Railway Inspecting Officer” means the person who, for the time being holds the position of Chief Railway Inspecting Officer within the Minister's Department;

“Directive” means Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001;

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

“Member State” means Member State of the European Communities, other than the State;

“Minister” means the Minister for Transport.

(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.

(3)     In these Regulations -

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

(b)   a reference to a paragraph, or subparagraph, is a reference to a paragraph or subparagraph of the provision in which the paragraph or subparagraph occurs, unless it is indicated that reference to some other provision is intended.

3. Scope

(1)     These Regulations apply to the management of the railway infrastructure in the State, access to the railway infrastructure for certain services, and to rail transport activities in the State of railway undertakings established, or to be established, in the State or in a Member State.

(2)     Railway undertakings whose activities are limited to urban, suburban, or regional services shall be excluded from the scope of these Regulations.

4. Separation of accounts

(1)     Any railway undertaking which is also the Infrastructure Manager shall keep and publish, annually, separate profit and loss accounts and balance sheets, on the one hand for business relating to the provision of rail transport services, and on the other, for business relating to the management and maintenance of the railway infrastructure.

(2)     Any railway undertaking to which the provisions of paragraph (1) apply shall ensure that state aid granted to that railway undertaking for the provision of transport services is not transferred for use in the management of the railway infrastructure. The accounts of such a railway undertaking shall be maintained so as to reflect this prohibition.

(3)     Any railway undertaking shall keep and publish, annually, separate profit and loss accounts and, either, balance sheets or statements of assets and liabilities in respect of the provision of rail freight-transport services. Funds paid for activities relating to the provision of passenger-transport services as publicservice remits must be shown separately in the relevant accounts. Such funds must not be transferred for use in activities relating to the provision of other transport services or any other business.

5. Access to railway infrastructure

(1)     An international grouping formed by railway undertakings established in the State and in one or more of the Member States shall be granted access and transit rights in the State for international services between the State and any of the Member States, or between any of the Member States, in which the railway undertakings forming the international grouping are established.

(2)     An international grouping formed by railway undertakings established in two or more of the Member States shall be granted access and transit rights in the State for international services between any of the Member States in which the railway undertakings forming the international grouping are established.

(3)     Any railway undertaking shall be granted access, on equitable conditions, to the State's railway infrastructure for the purpose of operating international combined transport goods services.

(4)     Any railway undertaking shall be granted access, on equitable conditions, to the State's railway infrastructure that forms part of the Trans-European Rail Freight Network, as defined in Article 10(a) and in Annex I of the Directive, and, after 15 March 2008, to the State's entire railway infrastructure for the purpose of operating international freight services.

(5)     Access and transit rights granted under this Regulation shall only be granted to railway undertakings and international groupings meeting the necessary safety requirements of the European Communities (Allocation of Railway Infrastructure Capacity and Charging of Infrastructure Fees) Regulations, 1999 and the licensing requirements of the European Communities (Licensing of Railway Undertakings) Regulations, 2003.

(6)     Accidents shall be investigated in accordance with Section 7 of the Railway Regulations 1871.

(7)     The Chief Railway Inspecting Officer shall be responsible for ensuring that rolling stock used in the provision of any rail transport services referred to in paragraphs (1) to (4) is certified in accordance with the requirements of Regulation 16 of the European Communities (Allocation of Railway Infrastructure Capacity and Charging of Infrastructure Fees) Regulations, 1999.

(8)     Existing national safety standards and technical rules shall be applicable to all railway undertakings and international groupings.

(9)     Any railway undertaking or international grouping engaged in any rail transport services referred to in paragraphs (1) to (4) shall conclude agreements with the relevant Infrastructure Manager covering all necessary administrative, technical and financial matters in order to regulate traffic control and safety issues concerning the services provided by them.

(10)   The terms and conditions of agreements made pursuant to paragraph (9) shall be non-discriminatory between railway undertakings or between railway undertakings and the Infrastructure Manager as a provider of transport services.

(11)   Track access to ports and services related to access and transit services governed by these Regulations shall be provided to railway undertakings in a non-discriminatory manner, provided these railway undertakings are licensed and fulfill the necessary safety requirements.

6. Market monitoring

(1)     The Minister or a body designated by the Minister shall be responsible for monitoring competition in the rail services market in the State including the rail freight transport market for the purposes of these Regulations.

(2)     Any railway undertaking, international grouping or interested party may lodge a complaint with the Minister or a body designated by the Minister under paragraph (1) if that railway undertaking, international grouping or interested party feels it has been treated unjustly, or treated in a non-equitable or discriminatory manner with regard to access or transit or any other matters relevant to these Regulations.

(3)     If the party that lodged a complaint referred to in paragraph (2) is dissatisfied with the decision of the Minister, or designated body, that party may appeal to the High Court within 21 days of the date of the decision of the Minister, or designated body.

(4)     On hearing an appeal under paragraph (3) the High Court may either confirm or vary the decision of the Minister or designated body or uphold the complaint.

(5)     The Minister, or designated body, may, with or without a complaint being made pursuant to paragraph (2), decide on appropriate measures to correct undesirable developments in the rail services markets.

7. Infrastructure Business Plan

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

(2)     Accordingly references in the Directive and in this Regulation to the infrastructure manager shall be construed as references to Iarnród éireann.

(3)     The Infrastructure Manager shall draw up a business plan in accordance with Article 7(4) of the Directive.

(4)     The Infrastructure Manager may consult with relevant parties in the formulation of this business plan including the Minister.

(5)     The business plan shall be submitted to the Minister for approval.

(6)     The business plan may be reviewed from time to time jointly by the Infrastructure Manager and the Minister.

8. Revocation

The European Communities (Access to Railway Infrastructure) Regulations, 1996, S.I. No. 204 of 1996 are revoked.

EXPANATORY NOTE

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

The purpose of these Regulations is to give effect to Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC on the development of the Community's railways and to revoke the European Communities (Access to Railway Infrastructure) Regulations 1996, S.I. No. 204 of 1996 .

¹ OJ No. L75, 15.3.2001, p.1

² OJ No. L237, 24.08.1991, p. 25-28