European Union (Regulation of Railways) (Amendment) Regulations 2020.
Statutory Instruments
Source: Statutory Instruments

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paragraphs: These Regulations may be cited as the European Union (Regulation of Railways) (Amendment) Regulations 2020.
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paragraphs: In these Regulations “Regulations of 2015” means the European Union (Regulation of Railways) Regulations 2015 ( S.I. No. 249 of 2015 ).
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paragraphs: (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.
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paragraphs: 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).
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paragraphs: The Regulations of 2015 are amended by the insertion of the following Part after Regulation 4:
4A. IarnrÃ³d Ãireann is designated to be the vertically integrated undertaking in the State for the purpose of these Regulations and the Directive.
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 an existing company within the meaning of that Act, be able to require their own prior approval for major business management decisions in the same way as shareholders of private joint-stock companies.”.
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paragraphs: Regulation 5 of the Regulations of 2015 is amended -
(a) by the insertion of the following paragraphs after paragraph (2):
“(2A) The functions of the EFB shall be performed by CÃ³ras Iompair Ãireann and shall not be outsourced to any entity, including to any entity within the vertically integrated undertaking.
(2B) The EFB shall be independent in its decision-making from any railway undertaking.
(2C) The EFB shall not allow IarnrÃ³d Ãireann infrastructure manager, a railway undertaking or any other person or body to exercise a decisive influence on the decisions taken by the EFB in relation to the essential functions.
(2D) A railway undertaking or any person or body within the vertically integrated undertaking shall not have a decisive influence on the appointment or dismissal of a person in the EFB who is or is intended to be in charge of taking decisions on the essential functions.
(2E) Procedures shall be in place in the EFB to ensure that the mobility of a person into or from the EFB who is or is intended to be in charge of taking decisions on the essential functions shall not create a conflict of interest.”,
and
(b) by the substitution of the following paragraph for paragraph (4):
“(4) The EFB shall not itself provide any railway services and shall comply with -
(a) the requirements for management independence for the purposes of these Regulations, and
(b) this Regulation, paragraph (1A) of Regulation 6, paragraphs (2A) to (2D) of Regulation 7 and paragraphs (2) and (3) of Regulation 7B.”.
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paragraphs: Regulation 6 of the Regulations of 2015 is amended by the insertion of the following paragraph after paragraph (1):
“(1A) Income received by the EFB, including from the essential functions charge, may be used by the EFB only to meet the expenses properly incurred by it in the performance of its functions under these Regulations, including the servicing of its loans.”.
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paragraphs: Regulation 7 of the Regulations of 2015 is amended -
(a) by the substitution of the following paragraph for paragraph (2):
“(2) IarnrÃ³d Ãireann infrastructure manager shall be responsible for performance of the following functions under and in accordance with these Regulations:
(a) its own management, administration and internal control, while respecting the charging and allocation framework under these Regulations;
(b) the operation, maintenance and renewal of the railway infrastructure on its network;
(c) the development of the railway infrastructure of that network.”,
and
(b) by the insertion of the following paragraphs after paragraph (2):
“(2A) The same individual shall not be concurrently appointed or employed -
(a) as a member of the management board or head of a division of the EFB or IarnrÃ³d Ãireann infrastructure manager and as member of the management board or head of a division of a railway undertaking, or
(b) as a person in the EFB in charge of taking decisions on the essential functions and as a member of the management board of a railway undertaking.
(2B) Members of the supervisory board and of the management board of the EFB or IarnrÃ³d Ãireann infrastructure manager, and the managers directly reporting to them shall act in a non-discriminatory manner and in a way such that their impartiality is not affected by any conflict of interest.
(2C) A member of the management board or a head of a division of the EFB, or, within the vertically integrated undertaking, a member of the management board or a head of a division of IarnrÃ³d Ãireann infrastructure manager, in charge of taking decisions on the essential functions shall not receive any performance-based remuneration from, in the case of the EFB any, or in the case of IarnrÃ³d Ãireann infrastructure manager any other, legal entity within the vertically integrated undertaking, nor shall he or she receive any bonuses principally related to the financial performance of particular railway undertakings but may be offered incentives related to the overall performance of the railway system.
(2D) Where information systems are common to different entities within the vertically integrated undertaking, access to sensitive information, relating to essential functions shall be restricted to authorised staff of IarnrÃ³d Ãireann infrastructure manager and sensitive information shall not be passed on to other entities within the vertically integrated undertaking.”.
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paragraphs: The Regulations of 2015 are amended by the insertion of the following Regulations after Regulation 7:
7A. (1) IarnrÃ³d Ãireann infrastructure manager shall perform the functions of traffic management and maintenance planning conferred on it under these Regulations in a transparent and non-discriminatory manner and paragraph (2) shall apply to a person in charge of taking decisions in respect of those functions.
(2) A person in charge of taking decisions in respect of functions referred to in paragraph (1) shall at all times disclose to IarnrÃ³d Ãireann infrastructure manager if he or she has an interest in any matter such that it would cause him or her to have a conflict of interest in the performance of his or her functions and in that case shall -
(a) take no part in any deliberations of IarnrÃ³d Ãireann infrastructure manager relating to the matter,
(b) neither influence nor seek to influence a decision to be made in relation to the matter,
(c) absent himself or herself from any meeting or part of a meeting of IarnrÃ³d Ãireann infrastructure manager where the matter is to be discussed, and
(d) not vote on any decision in relation to the matter.
(3) (a) As regards traffic management, IarnrÃ³d Ãireann infrastructure manager shall provide railway undertakings with full and timely access to relevant information in the case of a disruption concerning them.
(b) IarnrÃ³d Ãireann infrastructure manager shall grant further access to the traffic management process referred to in subparagraph (a) to the railway undertakings concerned in a transparent and non-discriminatory manner.
(4) As regards the long-term planning of major maintenance or renewal of the railway infrastructure, IarnrÃ³d Ãireann infrastructure manager shall -
(a) consult with applicants,
(b) to the best possible extent, take into account any concerns expressed, and
(c) inform the EFB of the proposed maintenance or renewal works.
(5) The scheduling of maintenance works referred to in paragraph (4) shall be carried out by IarnrÃ³d Ãireann infrastructure manager in a non-discriminatory manner.
7B. (1) Income from infrastructure network management activities, including public funding, may be used by IarnrÃ³d Ãireann infrastructure manager only -
(a) to finance its own business, including the servicing of its loans, and
(b) in accordance with the requirements of these Regulations or any other enactment or rule of law, to pay any dividends to be paid into, or disposed for the benefit of the Exchequer in such manner as the Minister, with the consent of the Minister for Public Expenditure and Reform, may determine.
(2) Neither IarnrÃ³d Ãireann infrastructure manager nor the EFB shall grant loans to railway undertakings, either directly or indirectly.
(3) Railway undertakings shall not grant loans to IarnrÃ³d Ãireann infrastructure manager or the EFB, either directly or indirectly.
(4) Loans between legal entities of the vertically integrated undertaking shall only be granted, disbursed and serviced at market rates and conditions which reflect the individual risk profile of the entity concerned.
(5) Any loans between legal entities of the vertically integrated undertaking granted before 24 December 2016 shall continue until their maturity, provided that they were contracted at market rates and that they are actually disbursed and serviced.
(6) Any services offered by other legal entities of the vertically integrated undertaking to IarnrÃ³d Ãireann infrastructure manager shall be provided on the basis of contracts and be paid either at market prices or at prices which reflect the cost of production, plus a reasonable margin of profit.
(7) Any debts attributed to IarnrÃ³d Ãireann infrastructure manager shall be clearly separated from debts attributed to other legal entities within the vertically integrated undertaking.
(8) Debts referred to in paragraph (7) shall be serviced separately.
(9) The requirement referred to in paragraph (8) shall not prevent the final payment of debts being made -
(a) through an undertaking which is part of the vertically integrated undertaking and which exercises control over both a railway undertaking and IarnrÃ³d Ãireann infrastructure manager, or
(b) through another entity within the undertaking.
(10) The accounts of IarnrÃ³d Ãireann infrastructure manager and of any other legal entities within the vertically integrated undertaking shall be kept in a way that ensures compliance with this Regulation and allows for separate accounting and transparent financial circuits within the undertaking.
(11) Within the vertically integrated undertaking, IarnrÃ³d Ãireann infrastructure manager shall keep detailed records of any commercial and financial relations with the other legal entities within the undertaking.
(12) Compliance with the requirements set out in this Regulation shall be demonstrated in the separate accounts of the respective divisions of the vertically integrated undertaking.
(13) A reference in this Regulation -
(a) to a railway undertaking is to a railway undertaking that is a division of the vertically integrated undertaking, and
(b) to IarnrÃ³d Ãireann infrastructure manager, a railway undertaking or any other legal entity of the vertically integrated undertaking is a reference to a division that is organised as a separate and distinct division of the vertically integrated undertaking and does not have a distinct legal personality.
7C. (1) Provided that no conflicts of interest arise, that the confidentiality of commercially sensitive information is guaranteed and that it retains supervisory power over, and bears ultimate responsibility for, the exercise of the functions as provided in the definition of ‘infrastructure manager’ in Regulation 2(1), IarnrÃ³d Ãireann infrastructure manager may-
(a) outsource functions, other than essential functions referred to in Regulation 5, to a different entity, provided that entity is not a railway undertaking, does not control a railway undertaking, or is not controlled by a railway undertaking, and
(b) outsource the execution of works and related tasks on development, maintenance and renewal of the railway infrastructure to railway undertakings or companies which control a railway undertaking, or are controlled by a railway undertaking.
(2) Where the holder of a licence granted in accordance with subparagraph (b) or (h) of section 14(1) of the Electricity Regulation Act 1999 (No. 23 of 1999) undertakes infrastructure management functions, other than essential functions referred to in Regulation 5, such a holder of a licence shall comply with the provisions of Regulations 7A, 10, 18(4), 27, 28, 28A and 29(6) to the extent relevant.
(3) Subject to supervision by the regulatory body, IarnrÃ³d Ãireann infrastructure manager may conclude cooperation agreements with one or more than one railway undertaking in a non-discriminatory way and with a view to delivering benefits to customers such as reduced costs or improved performance on the part of the network covered by the agreement and the regulatory body shall assess such agreements to ensure compliance with this Regulation and monitor the execution of such agreements and may, where justified, advise that they should be terminated.
7D. (1) IarnrÃ³d Ãireann infrastructure manager and, in so far as the essential functions of the infrastructure manager are concerned, the EFB, shall each have appropriate coordination mechanisms in place between them to ensure coordination between them and all interested railway undertakings as well as known and potential applicants referred to in Regulation 28(3).
(2) Where relevant, representatives of users of the rail freight and passenger transport services and the railway undertakings shall be invited by IarnrÃ³d Ãireann infrastructure manager and, as appropriate, the EFB, to participate in a coordination process under paragraph (1) and the regulatory body may participate as an observer.
(3) The matters in relation to which coordination under paragraph (1) shall take place shall include -
(a) the needs of the applicants referred to in paragraph (1) as respects the maintenance and development of the infrastructure capacity,