S.I. No. 118/2002 - European Communities (Interoperability of the Trans-European High-Speed Rail System) Regulations 2002

1. The Minister shall be informed prior to the work being sub-contracted.

2. The work sub-contracted shall be confined to limited technical tasks, such as tests and examinations, provided these tasks can be defined as substantial and coherent parts of the technical operation and sub-contracting can be carried out in the field of certification of quality systems by using external persons as auditors, provided that the notified body carries out the evaluation of the audit results.

3. The work carried out shall be on the basis of established and regularly monitored competence,

4. The body sub-contracted by the notified body shall be technically competent, and display independence and objectivity according to the same criteria and under the same conditions as the notified body, but the body sub-contracted does not need to be notified and the Minister and the notified body shall ensure that there is effective monitoring of the competence of the body sub-contracted.

5. There shall be a formal contract between the notified body and the body sub-contracted.

6. A notified body which has sub-contracted part of its work-

(a) shall remain responsible for all the activities covered by its notification,

(b) sub-contracting shall not entail the delegation of powers or responsibilities, and

(c) certificates shall always be issued in the name and under the responsibility of the notified body.

7. The conditions for sub-contracting shall apply to all sub-contractors whether or not such sub-contractor is established within the Community.

GIVEN under my Official Seal,

28th March 2002.

__________________________

Mary O'Rourke, J.D.

Minister for Public Enterprise.

Explanatory 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 Council Directive 96/48/EC of 23 July 1996 on the interoperability of the trans-European high speed rail system. The aim of Council Directive 96/48/EC is to remove obstacles to interoperability on the rail lines of the trans-European high speed rail system. Technical Specifications for Interoperability (TSIs), provided for in the Directive, and agreed by Member States provide the basis for the achievement of interoperability.

1

OJ No. L 235, 17.9.96, p.6

2

OJ No. L 235, 17.9.96, p.6.

3

OJ No. L 199, 9.8.93, p.84.

8. It shall ensure confidentiality of the information obtained in the course of conformity assessment.

9. It shall be adequately insured.

10. It shall take part in co-ordination activities and working groups in association with the other notified bodies.

SCHEDULE 2

Conditions which must be complied with by notified bodies who wish to sub-contract

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Regulation 10

11. (1) Where a notified body refuses to give a verification declaration or a conformity declaration or suitability declaration it shall:-

(a) give notice in writing to the applicant of the reasons for the refusal,

(b) give notice in writing to the applicant that the applicant has 21 days from the date of notification of the refusal to make representations to the notified body,

(2) If the notified body rejects the representations made by the applicant pursuant to paragraph (1) (b), the applicant shall have a further 21 days to appeal to the Minister from the date of notification of such rejection, and the decision of the Minister in the matter shall be final.

Withdrawal or suspension of notification of a notified body

12.(1) Where, in the opinion of the Minister, a notified body ceases to fulfil the requirements or its obligations, the Minister may withdraw or suspend the notification having informed the body in question, and the Minister shall take all steps to give appropriate publicity to his or her decision, and shall inform the Commission and the other Member States.

(2) Where the Minister withdraws or suspends the notification of a body the Minister shall at the same time as he or she informs the body of such withdrawal or suspension inform the body concerned that the body has 21 days, from the date of the issue of the notice so informing the body, to make written representations to the Minister, which the Minister shall consider.

(3) If the Minister, having considered representations made under paragraph (2), is subsequently satisfied that there are no longer grounds for withdrawal or suspension the Minister may revoke the withdrawal or suspension by means of a written notice to the body in question.

(4) If the Minister rejects the representations made under paragraph (2) the Minister shall so inform the body by notice in writing and the body may appeal in writing, within 21 days of the issue of the notice referred to in this paragraph, to the District Court in the District Court district in which the principal place of business in the State of the body concerned is situated, and the withdrawal or suspension shall not take effect until the time allowed for such appeal has elapsed or, in the event of an appeal, until the appeal is determined whichever be the later date.

(5) On hearing an appeal under this Regulation the District Court may either confirm or vary the decision of the Minister or allow the appeal.

(6) A decision of the District Court shall be final, save that by leave of the court, an appeal from the decision shall be to the High Court on a specified point of law.

(7) (a) Where under paragraph (3) the Minister revokes a withdrawal or suspension, the Minister shall inform the Commission and other Member States to that effect.

(b) Where the District Court pursuant to paragraph (5) or the High Court pursuant to paragraph (6) allows an appeal against a decision of the Minister, the Minister shall as soon as practicable after receiving the order of the Court, notify the Commission and the other Member States of that fact.

Inspectors

12. Withdrawal or suspension of notification of a notified body

13. (1) The Minister may appoint such person or persons as the Minister thinks fit to be an inspector for the purposes of these Regulations and may revoke any such appointment.

(2) The Minister shall issue to every inspector appointed by him or her under paragraph (1) a warrant of appointment and, when exercising his or her powers under these Regulations, the inspector shall, if requested by any person thereby affected, produce the warrant of appointment or a duly authenticated copy of the warrant of appointment.

(3) An inspector may, in accordance with his or her warrant of appointment, for the purposes of ascertaining whether these Regulations are being complied with, do any or all of the following

(a) enter, inspect, examine and search at all times, any place or premises which he or she has reasonable cause to believe-

(i) is part of a rail system which is part of the trans-European high-speed rail system,

(ii) contains interoperability constituents, or records documents or information relating to such constituents, or

(iii) contains any records, documents or information relating to the matters referred to in Regulation 3(2),

and therein carry out such inspections and examinations as he or she considers reasonable or necessary,

(b) bring with him or her any other person authorised by the Minister or any equipment or materials required for any purpose for which the power of entry is being exercised,

(c) when exercising a power under this Regulation, be accompanied by a member of the Garda Siochana if the inspector has reasonable cause to apprehend a serious obstruction in the execution of his or her duty,

(d) require any person to produce to the inspector any report, document or record (including in the case of information in a non-legible form a copy of an extract from such information in permanent legible form) which relates to any matter to which these Regulations apply,

(e) carry out checks on or take samples for examination, testing or analysis, of any infrastructure, rolling stock, interoperability constituent or any of the subsystems, including basic parameters, referred to in Annex II,

(f) inspect, examine and take copies of or extracts from or take away, if necessary, for the purposes of inspection or examination, any report, document or record (including in the case of information in a non-legible form a copy of an extract from such information in permanent legible form) kept or used in connection with the operation of a high-speed rail system and require the person by whom such document or record is kept to certify a copy thereof as a true copy,

(g) request the production of, examine and take copies of any relevant training certificate of staff involved in the operation of a high-speed rail system or employed or engaged on contract by a notified body,

(h) take any measurements or photographs or make any tape, electronic or other recordings which the inspector considers necessary for the purposes of any inspection, examination or inquiry made by him or her under these Regulations,

(i) require any person to afford the inspector such facilities and assistance within his or her control or responsibilities as are necessary to enable him or her to exercise any of the powers conferred on him or her by these Regulations,

(j) exercise such other powers as may be necessary for the carrying out of his or her functions or duties,

(k) investigate any accident which occurs on a high-speed rail system, and

(l) require the attendance before him or her of any person in the jurisdiction for the purpose of providing to the inspector any information which may be known to the person and which, in the inspector's opinion may be necessary to enable the inspector perform his or her functions or duties, and the person concerned shall comply with the requirement.

(4) (a) It shall be an offence for any person or body to wilfully prevent, obstruct impede or delay an inspector from exercising any functions conferred on him or her by these Regulations and it shall be an offence for any person or body wilfully to fail to comply with a bona fide request or instruction from an inspector in the exercise of his or her functions.

(b) A person guilty of an offence under subparagraph (a) shall be liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 6 months, or both.

(5) Where the Minister is satisfied that an inspector appointed by him or her has in a bona fide manner, exercised a power conferred on the inspector by or under these Regulations, the Minister shall indemnify the inspector against all actions or claims however arising in respect of the exercise by the inspector of that power.

Prohibition notice

14. (1) If an inspector, appointed under Regulation 13, is of the opinion that a person-

(a) has placed into service in the State a subsystem, or

(b) has placed on the market an interoperability constituent,

which does not meet the essential requirements or does not conform to the relevant TSIs the inspector may serve on that person a notice signed by the inspector referred to in these Regulations as a “prohibition notice”.

(2) If an inspector is of the opinion that an interoperability constituent that is covered by a conformity or suitability declaration (as the case may be) is unlikely to meet the essential requirements the inspector may by notice prohibit or restrict the use of that interoperability constituent.

(3) A prohibition notice shall -

(a) state that the inspector is of the said opinion,

(b) be in writing,

(c) specify the provisions of these Regulations which are being contravened,

(d) direct that the activities which are taking place in contravention of these Regulations should cease.

(4) A prohibition notice shall take effect -

(a) if the notice so declares, immediately the notice is received by the person body, undertaking to whom it is directed,

(b) in any other case

(i) if no appeal is taken against the notice, on the expiration of the period during which such an appeal may be taken or the day specified in the notice as that on which it comes into effect, whichever is the later,

(ii) where an appeal is taken, on the day following the day on which the notice is confirmed on appeal or the appeal is withdrawn or the day specified in the notice as that on which it is to come into effect whichever is the later.

(5) The bringing of an appeal against a prohibition notice shall not have the effect of suspending the operation of the notice; provided, however, that the appellant may apply to the Court to have the operation of the notice suspended until the appeal is disposed of and, on such application, the Court may, if it thinks proper to do so direct that the operation of the notice be suspended until the appeal is disposed of.

(6) A person who is aggrieved by a prohibition notice may, within 10 days beginning on the day on which the notice is served, appeal to the District Court in the District Court district in which the principal place of business in the State of the person to whom the prohibition notice is directed is situated.

(7) In determining the appeal the Court may if satisfied that in the circumstances of the case it is reasonable to so, confirm the notice, with or without modification, or cancel the notice.

(8) Where on hearing an appeal under this Regulation a prohibition notice is confirmed, notwithstanding paragraph (4)(b)(ii) the Court which heard the appeal may on the application of the appellant, suspend the operation of the notice for such period as in the circumstances of the case it is considered appropriate by the Court.

(9) An inspector may revoke a prohibition notice.

(10) Where a prohibition notice has been served and activities are being carried on in contravention of the notice, the High Court may, on the application of an inspector, by order prohibit the continuance of the activities.

(11) An application to the High Court under paragraph (10) shall be by motion on notice and the Court when considering the matter may make such interim or interlocutory order (if any) as it considers appropriate and the order by which an application under paragraph (10) is determined may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate.

(12) The Minister shall inform the Commission of any measures taken under this Regulation and shall furnish reasons stating in particular whether the failure to conform is due to-

(a) failure to meet the essential requirements;

(b) incorrect application of the European specifications where application of the specifications is invoked;

(c) inadequacy of the European specifications;

(d) any other reason which the Minister considers relevant.

(13) A person or body who fails to comply with a Prohibition Notice shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or to a term of imprisonment for a term not exceeding 12 months or to both.

Fees payable to notified bodies

15. (1) Subject to paragraph (2) a notified body appointed by the Minister may charge such fees in connection with or incidental to, the carrying out of the functions referred to in Regulation 10 as it may determine.

(2) The fees charged pursuant to paragraph (1) shall not exceed the sum of the following

(a) the costs incurred or to be incurred by the notified body in performing its duties under these Regulations, and

(b) an amount of profit which is reasonable in the circumstances having regard to the character and extent of the work done by the body on behalf of the applicant, and the commercial rate normally charged on account of profit for that work or similar work.

(3) A notified body shall be entitled to seek payment of fees which it is authorised to charge by this Regulation from the person requesting the work to be carried out prior to the carrying out of the work concerned.

Fees payable to Minister

16. The Minister may charge fees in respect of the carrying out of his or her functions and duties under Regulation 7, but any such fees shall not exceed the costs incurred by the Minister in carrying out his or her functions and duties in respect of that Regulation.

Prosecution of Offences

17. (1) An offence under these Regulations may be prosecuted by the Minister.

(2) Where an offence is committed under these regulations by a body corporate and is proved to have been so committed with the consent, connivance or approval of or to have been attributable to the wilful neglect on the part of any person, being a director manager, secretary or other officer of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, is guilty of an offence and is liable to be proceeded against and punished as if he or she was guilty of the first-mentioned offence.

SCHEDULE 1

Requirements to be met by notified bodies appointed by the Minister

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Regulation 10