STATUTORY INSTRUMENTS.

S.I. No. 238 of 1999.

EUROPEAN COMMUNITIES (LICENSING OF RAILWAY UNDERTAKINGS) REGULATIONS, 1999.

S.I. No. 238 of 1999.

EUROPEAN COMMUNITIES (LICENSING OF RAILWAY UNDERTAKINGS) REGULATIONS, 1999.

I, MARY O'ROURKE, Minister for Public Enterprise, 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 Council Directive 95/18/EC of 19 June 1995⁽¹⁾ , hereby make the following regulations:

Citation.

1. These Regulations, may be cited as the European Communities (Licensing of Railway Undertakings) Regulations, 1999.

Interpretation.

2. (1) In these Regulations--

“applicant railway undertaking” means a railway undertaking that--

(a) intends, as a member of an international grouping or otherwise, to provide any services referred to in Regulation 4, 5 or 6 of the European Communities (Access to Railway Infrastructure) Regulations, 1996 ( S.I. No. 204 of 1996 ), under the conditions laid down in those Regulations, and

(b) is entitled under Article 4.1 to apply for a licence in the State;

“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 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’;

“auditor” means a person qualified for appointment as an auditor of a company by virtue of the Companies Acts, 1963 to 1999,

“bank” means a recognised bank within the meaning of the Central Bank Acts, 1942 to 1998;

“company” has the same meaning as it has in the Companies Acts, 1963 to 1999, and, where appropriate, includes a cooperative and any other body corporate duly established;

“the Directive” means a Council Directive 95/18/EC of 19 June, 1995⁽¹⁾ , on the licensing of railway undertakings;

“functions” includes powers and duties;

“international grouping” means any association of at least two railway undertakings established in different member states for the purpose of providing international transport services between Member States;

“licence” means, except in Regulations 4(b) and 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, and

(c) subject to Article 10, is valid throughout the Community by virtue of Article 1.3,

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

“licensee” means the holder of a licence;

“Member State” means a Member State of the European Communities;

“the Minister” means the Minister for Public Enterprise;

“solicitor” means a person who holds a current practising certificate granted under the Solicitors Acts, 1954 and 1994.

(2) A word or expression that is used in these Regulations and is also used in the Directive has, unless the contrary intention appears, the same meaning in these Regulations as it has in the Directive.

(3) In these Regulations--

(a) a reference to an Article is to an Article of the Directive,

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

(c) a reference to a paragraph is to a paragraph of the Regulation in which the reference occurs.

Designation and functions of the Minister as licensing authority.

3. (1) The Minister is hereby designated in accordance with Article 3 as the body responsible for issuing licences and for carrying out the obligations imposed by the Directive in relation to the State, including, without prejudice to the generality of the foregoing, the obligations imposed by Articles 4.2, 11.2, 11.5, 11.7, 11.8 and 15.2.

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

(3) In addition to the powers conferred on the licensing authority by Articles 10.1, 11.1, 11.3, 11.4, and 11.5, the Minister's functions as the licensing authority shall include 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.

Requirement to hold a licence.

4. No person or undertaking shall provide any services referred to in Regulation 4, 5 or 6 of the European Communities (Access to Railway Infrastructure) Regulations, 1996 ( S.I. No. 204 of 1996 ), except in accordance with--

(a) a licence issued under these Regulations, or

(b) a licence recognised under Regulation 19 as valid in the State.

Application for licence.

5. (1) Each applicant railway undertaking shall comply with the requirement of the Directive and with the requirements imposed by or under this Regulation.

(2) 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 in accordance with Regulation 7;

(c) the particulars listed in section 1 of the Annex to the 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 in accordance with Article 7;

(d) the particulars listed in section II of the Annex to the Directive together with appropriate written proof of compliance with the qualification requirements for personnel responsible for safety;

(e) appropriate written proof of cover for civil liability in accordance with Article 9;

(f) the application fee specified under Regulation 14(1)(c).

(3) The Minister may--

(a) seek further particulars of any matter that appears to the Minister to be relevant to her or his 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.

(4) The Minister may make any enquiries that she or he 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).

Issue of licence.

6. (1) After considering an application made under Regulation 5, the Minister shall issue a licence to the applicant railway undertaking if he or she 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, the requirements relating to financial fitness, professional competence and cover for civil liability.

(2) For the purposes of Article 15.2, the Minister's proposal to refuse, or decision concerning, an application for a licence (including, in the case of a proposal to refuse or a refusal, the reason or reasons for the proposal or refusal) shall be communicated by written notice to the applicant railway undertaking.

Good repute.

7. (1) For the purpose of Article 6, the requirement of good repute is met if the applicant railway undertaking furnishes the Minister with an affidavit made by a solicitor confirming--

(a) that neither the undertaking nor any person in charge of its management has been convicted of an offence specified in the Schedule to these Regulations,

(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 as a partner in a partnership 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) 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 similar officer of the undertaking or purports to act in such a 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 similar officer of the company or cooperative or purported to act in such capacity.

Duty of licensee to comply with Directive.

8. A licensee shall comply with the requirements of the Directive, including without prejudice to the generality of the foregoing, Articles 9, 11.6, 12 and 13.

Review of licence.

9. (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 required under Regulation 14(1)(c) in relation to the review.

Suspension and revocation of licence.

10. (1) The Minister may--

(a) suspend or revoke a licence if the licensee fails--

(i) to comply with Regulation 8 or with a specific provision of the licence governing its suspension or revocation, or

(ii) to provide information required by the Minister under these Regulations, or

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 in accordance with Article 11.

(2) Paragraph (1) shall not be construed to prejudice the obligation imposed by Article 11.1 respecting the suspension or revocation of a licence where the Minister is satisfied that the licensee can no longer meet the requirements of the Directive and in particular, Article 5.

(3) The Minister shall, by written notice, advise the licensee of any proposal or decision to suspend or revoke a licence and of the reason or reasons for the proposal or decision.

Representations and appeal.

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

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

(3) A decision of the Minister to suspend or revoke a licence shall take effect on the expiry of the period of 21 days after the licensee is notified of that decision.

(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) In the case of an appeal from a decision of the Minister to suspend or revoke a licence and notwithstanding paragraph (3), the licensee may apply to the High Court for an order providing that the licence shall not stand revoked or suspended pending the determination or withdrawal of the appeal.

(7) The High Court may, on an application under paragraph (6), if it considers it proper so to do, having regard amongst other matters to the safety of persons, the professional competence of the licensee, or its servants or agents or the matter of cover for civil liability, grant such an order, subject to such terms and conditions, if any, as it thinks fit.

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

12. The Minister shall cause a notice to be published in the Iris Oifigiúil of every licence issued, suspended or revoked in accordance with these Regulations.

Railway licences register.

13. (1) The Minister shall keep a register of licences issued under these Regulations which shall be in such form and contain such particulars as the Minister may from time to time determine.

(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 under 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 under 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 so to certify or 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.

Fees.

14. (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 £5 per hour or part thereof;

(b) for the provision of a certified copy of any entry in the registry, a fee of £10 per copy;

(c) for an application for a licence, a fee of £500.

(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.

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

15. A person who--

(a) contravenes Regulation 4, or

(b) for the purpose of obtaining a licence or satisfying any requirements imposed by or under 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.

Offence by body corporate.

16. Where an offence under Regulation 15 is committed by a body corporate 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 or the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first mentioned offence.

Penalty.

17. A person who commits an offence under Regulation 15 or 16 shall be liable, on summary conviction, to a fine not exceeding £1,500.

Prosecutions by Minister.

18. Proceedings relating to offences under these Regulations may be brought and prosecuted by the Minister.

Recognition of validity of licences issued by other members.

19. A licence, as defined in Article 2, issued by a licensing authority of a Member State, other than the State is, during the currency of the licence, valid in the State.

Transitional provision.

20. (1) In this Regulation, the “transitional period” means the period beginning on the date of the making of these Regulations and ending on the first anniversary of that date.

(2) Until the expiry of the transitional period, Regulations 4, 15 and 16 shall not apply in respect of a railway undertaking that immediately before the date these Regulations come into operation was providing a service referred to in Regulation 4, 5 or 6 of the European Communities (Access to Railway Infrastructure) Regulations, 1996 ( S.I. No. 204 of 1996 ), under the conditions laid down in those Regulations.

Schedule

1. Any offence under--

(a) the Roads Act, 1920 or under the Roads Act, 1993 ;

(b) the Road Traffic Acts, 1961 to 1994;

(c) the Road Transport Act, 1932 ;

(d) any regulation made by the Minister under the European Communities Act, 1972 , relating to the carriage of passengers by road;

(e) the Offences Against the State Act, 1939;

(f) section 168 or 186 of the Customs Consolidation Act, 1876;

(g) section 19 of the Misuse of Drugs Act, 1977 , in so far as it relates to offences involving a mechanically propelled vehicle;

(h) the Firearms Acts, 1925 to 1990;

(i) the Explosive Substances Act, 1883;

(j) section 33 of the Larceny Act, 1916;

(k) section 21 of the Finance Act, 1935 or section 72 of the Finance Act, 1976 ;

(l) the Minimum Notice and Terms of Employment Acts, 1973 to 1989;

(m) the Protection of Young Persons (Employment) Act, 1996 ;

(n) the Unfair Dismissals Act, 1977 ;

(o) the Maternity Protection of Employees Act, 1981 ;

(p) the Holidays (Employees) Act, 1973 ;

(q) a law in force in a Member State other than the State, and which corresponds to any of the foregoing offences.

2. Any indictable offence, whether convicted on indictment or not.

⁽¹⁾ O.J. No. L143 of 27.6.95.

⁽¹⁾ O.J. No. L143 of 27.6.95.