S.I. No. 537 of 2003

REGULATIONS

entitled

European Communities (Licensing of Railway Undertakings) Regulations, 2003

PUBLISHED BY THE STATIONARY OFFICE, DUBLIN

Made by the Minister

for Transport

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 2001/13/EC of the European Parliament and of the Council of 26 February 2001¹ , amending Council Directive 95/18/EC of 19 June 1995² on the licensing of railway undertakings, hereby make the following Regulations:

1. Citation

These Regulations may be cited as the European Communities (Licensing of Railway Undertakings) Regulations, 2003.

2. Interpretation

(1)     In these Regulations -

“accountant” means a person who has been admitted as a member of an incorporated society of accountants, or of a Chartered Institute or Association of Accountants, or a person who has been admitted as a member of the body incorporated under the Companies Act, 1963 , on the 31st day of December, 1975, as ‘The Institute of Taxation in Ireland’;

“applicant railway undertaking” means a railway undertaking that has applied for a licence;

“auditor” means a person qualified for appointment as an auditor of a company by virtue of the Companies Acts, 1963 to 2001;

“bank” means a recognised bank within the meaning of the Central Bank Acts, 1942 to 2001;

“company” has the same meaning as it has in the Companies Acts, 1963 to 2003, and, where appropriate, includes a co-operative and any other body corporate duly established;

“Directive” means Directive 2001/13/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 95/18/EC on the licensing of railway undertakings;

“Directive 91/440/EEC” means Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways, as amended by Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001;

“functions” includes powers and duties;

“licence” means, except in Regulation 19, an authorisation which -

(a)        is issued by the Minister to a railway undertaking,

(b)       subject to any limitations as to the specific services that may be provided, recognises the undertaking's capacity as a railway undertaking,

but which does not itself entitle the undertaking to access to railway infrastructure;

“licensee” means the holder of a licence;

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

“Minister” means the Minister for Transport;

“Principal Directive” means Council Directive 95/18/EC of 19 June 1995 on the licensing of railway undertakings;

“railway undertaking” means, except in Regulation 19, any public or private undertaking, established, or to be established, in the State, the main business of which is, or will be, the provision of services for the transport of goods and/or passengers by rail, with a requirement that the undertaking must ensure traction; this also includes undertakings which provide traction only;

“solicitor” means a person who holds a current practising certificate granted under the Solicitors Acts 1954 to 2002.

(2)     A word or expression which is used in these Regulations and which is also used in the Principal Directive, or the Directive, has unless the context otherwise requires, the same meaning in these Regulations as it has in the Principal Directive, or 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 issue, renewal, modification, amendment, revocation or suspension of licences to railway undertakings established, or to be established, in the State.

(2)     Subject to paragraph (4), no railway undertaking shall provide rail services in the State without a licence.

(3)     Possession of a licence does not in itself entitle a railway undertaking to access to the State's railway infrastructure.

(4)     The following categories of railway undertakings and the rail services they provide shall be excluded from the scope of these Regulations:

(a)  railway undertakings which only operate urban or suburban rail passenger services,

(b)  railway undertakings which only operate rail passenger services on local and regional stand alone railway infrastructure,

(c)  railway undertakings whose activity is limited to the provision of regional rail freight services that are not covered by the scope of Directive 91/440/EEC,

(d)  railway undertakings which only carry out freight operations on privately owned railway infrastructure that exists solely for use by the infrastructure owner for its own freight operations,

(e)  railway undertakings which only operate train services or railway infrastructure of historical or touristic interest.

4. Designation and functions of the Minister as licensing authority

(1)     The Minister is designated in accordance with Article 3 of the Principal Directive as the body responsible for issuing licences and for carrying out the obligations imposed on the State by the Principal Directive.

(2)     Accordingly, a reference in the Directive to the licensing authority shall be construed as a reference to the Minister.

(3)     In addition to any further powers conferred on the Minister by these Regulations the Minister shall have the power to -

(a)    limit the services that may be provided under a licence,

(b)    incorporate in a licence conditions requiring the licensee to submit to a review of its licence at least every five years during the currency of the licence, and

(c)    incorporate in a licence specific provisions governing the suspension or revocation of the licence.

5. Application for licence

(1)     Any railway undertaking shall be entitled to apply for a licence.

(2)     Each applicant railway undertaking shall comply with the requirements of the Principal Directive, the Directive, and these Regulations. The Minister shall not issue, or renew, a licence unless the applicant railway undertaking complies with these requirements.

(3)     An application for a licence shall be in such form as the Minister may from time to time direct and shall be accompanied by the following:

(a)    appropriate written proof that the applicant railway undertaking is established in the State;

(b)    an affidavit for the purposes of good repute in accordance with Regulation 7;

(c)    the particulars listed in section 1 of the Annex to the Principal Directive together with an affidavit made by an auditor, and suitable documents from a banker or accountant, confirming that the applicant railway undertaking meets the financial fitness requirements referred to in Article 7 of the Principal Directive and these Regulations, and such other information concerning the financial fitness of the applicant railway undertaking as the Minister may reasonably request for the performance of his functions under these Regulations;

(d)    the particulars listed in section 2 of the Annex to the Principal Directive;

(e)    appropriate written proof of cover for civil liability;

(f)    appropriate written proof that the applicant railway undertaking fulfills the requirements relating to professional competence referred to in Article 8 of the Principal Directive and these Regulations;

(g)    appropriate written proof that the applicant railway undertaking intending to operate international goods services complies with the customs and tax regulations of any Member State in which it proposes to operate services;

(h)    appropriate written proof that the applicant railway undertaking maintains adequate insurance cover, or has made arrangements having equivalent effect, covering its liabilities in the event of accident to passengers, luggage, freight, mail, and third parties;

(i)     the application fee required under Regulation 14(1)(c).

(4)       The Minister may -

(a)    seek further particulars of any matter that appears to the Minister to be relevant to his or her consideration of an application, and

(b)    require those particulars to be given by means of an affidavit or statutory declaration or in such other manner as the Minister may direct.

(5)     The Minister may make any enquiries that he or she sees fit in order to verify the following:

(a)    any information contained in an application for a licence or in an accompanying affidavit;

(b)    any particulars given to the Minister under paragraph (3).

6. Issue of licence

(1)     The Minister shall, after considering an application made under Regulation 5, issue a licence to the applicant railway undertaking if the Minister is satisfied that the undertaking will be able, at all times during the currency of the licence, to meet -

 (a) in accordance with Regulation 7, the requirement of good repute, and

 (b) in accordance with Articles 7 to 9 of the Principal Directive and these Regulations, the requirements relating to financial fitness, professional competence and cover for civil liability.

(2)     A licence issued pursuant to paragraph (1) shall be in such form as the Minister may from time to time direct.

(3)     The Minister's decision in respect of an application for the issue of a licence shall be made as soon as possible and, in any event, not later than 3 months from the date of receipt, by the Minister, of all relevant information from the applicant railway undertaking. In particular, the relevant information shall include the information referred to in section 1 of the Annex to the Principal Directive. The applicant railway undertaking shall be notified in writing of the Minister's decision and the grounds for that decision as soon as possible.

(4)     The Minister shall inform the Commission of the fact of the issue of a licence as soon as practicable.

7. Good repute

(1)     For the purposes of seeking to comply with the requirement of good repute, the applicant railway undertaking shall furnish the Minister with an affidavit, sworn by an officer of the applicant railway undertaking, confirming -

(a)  that neither the applicant railway undertaking nor any person in charge of its management has been convicted of an offence under the laws of the State or under the laws of a foreign state. An offence shall mean an offence for which the penalty upon conviction is at least one, or both, of the following punishments, or their equivalent under the law of a foreign state:

(i)      a sentence of imprisonment exceeeding 6 months,

(ii)     a fine exceeding €3000,

(b)  that no person in charge of the management of the undertaking -

(i)       has been declared bankrupt,

(ii)      has made (whether as an individual or otherwise and whether under the control of a court or otherwise) a composition or arrangement with creditors, or

(iii)     has been in charge of the management of a company or cooperative which has been wound up by a court or which has committed any act of insolvency, and

(c) in the case of an undertaking that is an individual or a partnership, the individual or any partner in the partnership has not been declared bankrupt or has not made (whether as an individual or as a partner in a partnership and whether under the control of a court or otherwise) a composition or arrangement with creditors.

(2)     In determining whether an applicant railway undertaking is of good repute the Minister shall also have regard to all relevant evidence, including any information in his or her possession as to the previous conduct of any officer of the undertaking if that conduct appears to the Minister to relate to the applicant railway undertaking's fitness to hold a licence

(3)     For the purposes of this Regulation, a person shall be considered -

(a)  to be in charge of the management of a railway undertaking if that person is a director, manager, secretary or other officer of the undertaking or purports to act in such capacity, and

(b)  to have been in charge of the management of a company or cooperative if that person was a director, manager, secretary or other officer of the company or cooperative or purported to act in such capacity.

8. Duty of licensee to comply with Directive

A licensee shall comply with the requirements of the Principal Directive and the Directive, including, without prejudice to the generality of the foregoing, Articles 12 and 13 of the Principal Directive.

9. Review of licence

(1)     Where a licence is submitted for review in accordance with a condition of the licence, the Minister -

(a)    shall determine whether or not the licensee continues to comply with -

(i)       the requirements imposed by or under these Regulations, and

(ii)      the conditions of the licence, and

(b)    may require the licensee to provide the Minister with any information the Minister considers necessary for the purposes of making that determination.

(2)     On submitting to a review of a licence, the licensee shall -

(a)    provide any information required under paragraph (1)(b), and

(b)    pay the fee specified in Regulation 14(1)(c).

(3)     In the event of a change to a licensee's legal situation, in particular following a change in the control or ownership of the licensee as a result of a merger with, or take-over by, another railway undertaking, the Minister may require the licensee to submit its licence for review. The licensee may continue operations while its licence is under review unless the Minister is satisfied, after consultation with the Chief Railway Inspecting Officer, that safety is jeopardised by the change. The licensee shall discontinue operations immediately upon being notified by the Minister of his or her decision that safety has been, or will be, jeopardised. Such notification shall be in writing and shall include the grounds for the Minister's decision.

(4)     When a licensee intends to significantly change or extend its activities from those in respect of which a licence was granted to it, the licensee shall submit its licence to the Minister for review.

(5)     Upon review of a licence under this Regulation, the Minister may renew, suspend, revoke or amend such licence. The licensee shall be notified in writing of the Minister's decision and the grounds for the Minister's decision.

(6)     If the Minister has serious doubt that a licensee continues to comply with the requirements of these Regulations, the Minister may, at any time, require the licensee to submit its licence for review under this Regulation for the purposes of determining whether the licensee continues to comply with the requirements of these Regulations.

(7)     When a licensee has ceased operations for, or has not commenced operations, six months after the issuing of a licence, the Minister may require the licensee to submit the licence for review. In respect of the commencement of operations, the licensee may request a longer time period on the basis of the specific nature of the services to be provided by the licensee.

10. Suspension and revocation of licence

(1)     The Minister shall suspend or revoke a licence if the licensee fails to provide any information required by the Minister on review of that licence.

(2)     The Minister may suspend a licence if the licensee -

(i)     has ceased operations for six months, or

(ii)    has not started operations within six months after the issue of the licence or within a longer period agreed to by the Minister.

(3)     Subject to paragraphs (4), the Minister shall suspend or revoke a licence where he is satisfied that the licensee can no longer satisfy the requirements specified in these Regulations.

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

(5)     When the Minister suspends, revokes, or amends a licence, the Minister shall inform the Commission of the fact of the suspension, revocation, or amendment of that licence as soon as practicable.

(6)     Where the Minister has suspended or revoked a licence solely on the grounds of non-compliance with the requirements of financial fitness, but considers that there is a realistic prospect of a satisfactory re-organisation of the licensee taking place within a reasonable period of time, the Minister may, provided the Minister is satisfied that safety is not jeopardised, grant a temporary licence to the licensee, valid for a period of time not exceeding 6 months, pending such re-organisation.

(7)     The licensee shall be notified in writing of the Minister's proposal or decision to suspend or revoke a licence and the grounds for that proposal or decision.

11. Representations and appeals

(1)     Where the Minister proposes to refuse an application for, suspend, or revoke a licence, the applicant railway undertaking or the licensee, as the case may be, may, not later than 21 days after notification of the proposal was issued to the applicant railway undertaking or licensee, make written representations to the Minister to review the proposal. The Minister shall consider any such representations so made.

(2)     Where the Minister decides to refuse an application for, suspend, or revoke a licence, the applicant railway undertaking or the licensee, as the case may be, may, not later than 21 days after notification of the decision was issued to the applicant railway undertaking or licensee, appeal against that decision to the High Court.

(3)     A decision of the Minister to refuse an application for, suspend, or revoke, a licence shall take effect on the expiry of the period of 21 days after notification of the decision was issued to the applicant railway undertaking or licensee.

(4)     On hearing an appeal under paragraph (2), the High Court may either confirm the Minister's decision or allow the appeal.

(5)     If an appeal is allowed, the Minister shall -

(a)    issue the licence, if the appeal is from a decision to refuse an application for a licence, or,

(b)    cancel the suspension or revocation, if the appeal is from a decision to suspend or revoke the licence.

(6)     Notwithstanding paragraph (3), in the case of an appeal from a decision of the Minister to suspend or revoke a licence, the licensee may apply to the High Court for an order suspending the decision of the Minister until such time as the appeal is determined by the High Court or otherwise disposed of by the parties.

(7)     In determining an application under paragraph (6), the High Court shall have regard to all matters deemed relevant by the High Court. In particular, the High Court shall have regard to the matters specified in Articles 5 to 9 of the Principal Directive and these Regulations.

(8)     If the High Court grants an order pursuant to an application under paragraph (6), it may do so subject to such terms and conditions deemed appropriate by the High Court.

(9)     Any decision or proposal of the Minister may be appealed to the High Court not later than 21 days after notification of the decision or proposal was issued to the applicant railway undertaking or licensee.

12. Publication of notice of issue, suspension or revocation of licence

The Minister shall cause a notice to be published in the Iris Oifigiúil of every licence issued, amended, suspended, or revoked.

13. Railway licences register

(1)     The Minister shall establish and maintain a register of licences issued, amended, suspended, or revoked. The register shall be in such form and contain such particulars as the Minister may specify from time to time.

(2)     The register of licences shall be open to inspection by any person during normal office hours subject to written application and payment of the fee specified in Regulation 14(1)(a).

(3)     Any person shall be entitled to obtain from the Minister a copy of any entry in the register of licences on written application and payment of the fee specified in Regulation 14(1)(b).

(4)     Every document purporting to be a copy of an entry in the register of licences and purporting to be certified by an officer of the Minister as a true copy of the entry shall, without proof of the signature of the person purporting to so certify or proof that he or she was an officer of the Minister, be received in evidence in any legal proceedings and shall, until the contrary is proved, be deemed to be a true copy of the entry and be evidence of the terms of the entry.

(5)     Within 21 days after any change in a licensee's name or address, the licensee shall notify the Minister of the change.

14. Fees

(1)     The following fees shall be paid to the Minister in such manner as he or she may direct:

(a)    for inspection of the registry, a fee of €6.35 per hour or part thereof;

(b)    for the provision of a certified copy of any entry in the registry, a fee of €12.70 per copy;

(c)    for an application for, or upon review of, a licence, a fee in an amount as may be specified by the Minister from time to time in consultation with the Minister for Finance.

(2)     All fees paid to the Minister shall be taken and collected in such manner as the Minister for Finance may from time to time direct and shall be paid into, or disposed of for the benefit of, the Exchequer in accordance with the directions of the Minister for Finance.

(3)     The Public Offices Fees Act, 1879, shall not apply in respect of fees paid to the Minister.

15. Offence of operating without a licence or making false declarations, etc.

A person who -

(a)    contravenes Regulation 3(2), or

(b)    for the purpose of obtaining a licence or satisfying any requirements specified in these Regulations, makes a declaration or statement or provides any information which is false or which, to his or her knowledge, is misleading in a material respect,

shall be guilty of an offence.

16. Offence by railway undertaking

(1)     Where an offence specified in Regulation 15 is committed by a railway undertaking and is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of any person, being a director, manager, secretary or other officer of the railway undertaking, or a person who was purporting to act in any such capacity, that person, as well as the railway undertaking, shall be guilty of an offence.

(2)     Where the affairs of a railway undertaking are managed by its members, paragraph (1) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or other officer of the railway undertaking.

17. Penalty

A person who commits an offence specified in Regulation 15 or 16 shall be liable, on summary conviction, to a fine not exceeding €3000 or to a term of imprisonment not exceeding 6 months, or both.

18. Prosecutions by Minister

Proceedings relating to offences specified in these Regulations may be brought and prosecuted by the Minister.

19. Recognition of validity of licences issued by Member States

(1)     A licence, as defined in Article 2 of the Principal Directive, issued by a licensing authority of a Member State, shall be, during the currency of the licence, valid in the State.

(2)     If the Minister is satisfied that there is serious doubt regarding compliance with the requirements of the Principal Directive or the Directive on the part of a railway undertaking to which a licence has been issued by the licensing authority of a Member State, the Minister shall inform the licensing authority in question, immediately.

20. Revocation

The European Communities (Licensing of Railway Undertakings) Regulations, 1999, S.I. No. 238 of 1999 are revoked.

EXPLANATORY NOTE

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

The purpose of these Regulations is to give effect to Council Directive 2001/13/EC of 26 February 2001 which amends Council Directive 95/18/EC of 19 June 1995 on the licensing of railway undertakings, and to revoke the European Communities (Licensing of railway undertakings) Regulations, 1999, S.I. No. 238 of 1999 .

¹ OJ No. L75, 15.3.2001, p.26

² OJ No.L43, 27.6.1995, p.70-74