European Union (Regulation of Railways) (Amendment) Regulations 2020

• Jurisdiction: Ireland
• Citation: IR SI 398/2020
• Year: 2020

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 9th October, 2020.

The Minister for Transport in exercise of the powers conferred on him by section 3 of the European Communities Act 1972 (No. 27 of 1972) for the purpose of -

(a) giving further effect to Directive 2012/34/EU of the European Parliament and of the Council of 21 November 20121 in Regulations 3(e) (in so far as it relates to insertion of definitions of regional services, train path, and urban and suburban services), 4, 5 (in so far as it relates to Regulation 4B of the European Union (Regulation of Railways) Regulations 2015 ( S.I. No. 249 of 2015 )), 10, 12 (in so far as it relates to Regulations 12B and 12C of the European Union (Regulation of Railways) Regulations 2015), 13(a) and (b) (in so far as it relates to Regulation 13(9) of the European Union (Regulation of Railways) Regulations 2015), 14, 16, 17, 18(a), 19, 20(b), (c) and (f), 23 and 27,

(b) giving effect to Directive (EU) 2016/2370 of the European Parliament and of the Council of 14 December 20162 , in Regulations 3 (other than the provisions of Regulation 3(e) referred to in paragraph (a)), 5 (in so far as it relates to Regulation 4A of the European Union (Regulation of Railways) Regulations 2015), 6, 7, 8, 9, 11, 12 (in so far as it relates to Regulation 12A of the European Union (Regulation of Railways) Regulations 2015), 13(b) (in so far as it relates to Regulation 13(8) of the European Union (Regulation of Railways) Regulations 2015), 15, 18(b), 20 (a), (d), (e) and (g), 21, 22, 24 and 25, and

(c) giving effect to Commission Delegated Decision (EU) 2017/2075 of 4 September 20173 in Regulation 26,

hereby makes the following regulations:

Citation

1. These Regulations may be cited as the European Union (Regulation of Railways) (Amendment) Regulations 2020.

Interpretation

2. In these Regulations “Regulations of 2015” means the European Union (Regulation of Railways) Regulations 2015 ( S.I. No. 249 of 2015 ).

Amendment of Regulation 2 of Regulations of 2015

3. (1) Regulation 2(1) of the Regulations of 2015 is amended:

(a) by the substitution of the following definition for the definition of “Directive”:

“‘Directive’ means Directive 2012/34/EU of the European Parliament and of the Council of 21 November 20121 as amended by Directive (EU) 2016/2370 of the European Parliament and of the Council of 14 December 20162 ;”,

(b) by the substitution of the following definition for the definition of “essential functions”:

“‘essential functions’ of infrastructure management means decision-making concerning train path allocation, including both the definition and the assessment of availability and the allocation of individual train paths, and decision-making concerning infrastructure charging, including determination and collection of charges, in accordance with the capacity allocation framework and charging framework under Regulations 20 and 25;”,

(c) by the substitution of the following definition for the definition of “infrastructure manager”:

“‘infrastructure manager’ means any body or firm responsible for the operation, maintenance and renewal of railway infrastructure on a network, as well as responsible for participating in its development as determined by the Minister within the framework of the general policy on development and financing of infrastructure;”,

(d) in the definition of “Railway Safety Directive” by the substitution of “, Commission Directive 2009/149/EC of 27 November 20094 and Directive (EU) 2016/7985 ” for “and Commission Directive 2009/149/EC of 27 November 2009”,

and

(e) by the insertion of the following definitions:

“‘cross-border agreement’ means any agreement between the State and one or more than one other Member State or between the State (whether or not with another Member State) and one or more than one third country intended to facilitate the provision of cross-border rail services;

‘development of the railway infrastructure’ means network planning, financial and investment planning as well as the building and upgrading of the infrastructure;

‘high speed passenger services’ means passenger rail services operated without intermediate stops between two places separated at least by a distance of more than 200 kilometres on specially-built high-speed lines equipped for speeds generally equal or greater than 250 kilometres per hour and running on average at those speeds;

‘maintenance of the railway infrastructure’ means works intended to maintain the condition and capability of existing infrastructure;

‘management board’ means the senior body of an undertaking performing executive and administrative functions, which is responsible and accountable for day-to-day management of the undertaking;

‘operation of the railway infrastructure’ means train path allocation, traffic management and infrastructure charging;

‘regional services’ means transport services whose principal purpose is to meet the transport needs of a region, including a cross-border region;

‘renewal of the railway infrastructure’ means major substitution works on the existing infrastructure which do not change its overall performance;

‘supervisory board’ means the most senior body of an undertaking that fulfils supervisory tasks, including the exercise of control over the management board and general strategic decisions regarding the undertaking;

‘train path’ means the infrastructure capacity needed to run a train between two places over a given period;

‘upgrade of the railway infrastructure’ means major modification works to the infrastructure which improve its overall performance;

‘urban and suburban services’ means transport services whose principal purpose is to meet the transport needs of an urban centre or conurbation, including a cross-border conurbation, together with transport needs between such a centre or conurbation and surrounding areas;

‘vertically integrated undertaking’-

(a) means an undertaking -

(i) where, within the meaning of Council Regulation (EC) No 139/2004 of 20 January 20046 on the control of concentrations between undertakings -

(I) an infrastructure manager is controlled by an undertaking which at the same time controls one or several railway undertakings that operate rail services on the infrastructure manager’s network,

(II) an infrastructure manager is controlled by one or several railway undertakings that operate rail services on the infrastructure manager’s network, or

(III) one or several railway undertakings that operate rail services on the infrastructure manager’s network are controlled by an infrastructure manager, and

(ii) it consists of distinct divisions including an infrastructure manager and one or several divisions providing transport services that do not have a distinct legal personality,

(b) does not mean an infrastructure manager and a railway undertaking, who are fully independent of each other but are both controlled directly by the State or a Member State other than the State, without an intermediary entity, and

(c) in these Regulations, means the body designated to be the vertically integrated undertaking under Regulation 4A;”.

(2) Regulation 2(2) of the Regulations of 2015 is amended by the insertion of “or Commission Delegated Decision (EU 2017/2075) of 4 September 20173 ” after “Directive” in both places where it occurs.

Amendment of Regulation 4 of Regulations of 2015

4. Regulation 4 of the Regulations of 2015 is amended -

(a) in paragraph (2), by the deletion of subparagraphs (a) and (c), and

(b) in paragraph (3), by the deletion of subparagraphs (a) and (c).

Part 1A of Regulations of 2015

5. The Regulations of 2015 are amended by the insertion of the following Part after Regulation 4:

“Part 1A

Vertically Integrated Undertaking and Commercial Principles

Vertically integrated undertaking

4A. Iarnród Éireann is designated to be the vertically integrated undertaking in the State for the purpose of these Regulations and the Directive.

Management of railway undertakings according to commercial principles

4B. Railway undertakings shall:

(a) be managed according to the principles that apply to commercial companies, irrespective of their ownership, including in relation to the management of any public service obligations imposed on them and of public service contracts that they conclude with the National Transport Authority;

(b) determine their business plans, including their investment and financing programmes, and such business plans shall be designed to achieve the undertakings’ financial equilibrium and other technical, commercial and financial management objectives and shall indicate the means of achieving such objectives;

(c) without prejudice to Regulation (EC) No 1370/20077 amended by Regulation (EU) 2016/23388 and with reference to any general policy guidelines issued by the Minister and the Minister for Public Expenditure and Reform taking into account national plans and contracts (which may be multiannual) including investment and financing plans, be free to -

(i) establish their internal organisation, without prejudice to the provisions of Regulations 5, 7, 20 and 25,

(ii) control the supply and marketing of services and fix the pricing of such services,

(iii) take decisions on staff, assets and own procurement,

(iv) expand their market share, develop new technologies and new services and adopt any innovative management techniques, and

(v) establish new activities in fields associated with the railway business;

(d) without prejudice to the generality of paragraph (c) and to the powers of supervisory authorities relating to the appointment of board members, shareholders of publicly owned or controlled railway undertakings, and, where appropriate, in accordance with the Companies Act 2014 (No. 38 of 2014) as it applies to a company formed and registered under that Act or...