S.I. No. 61/2004 - European Communities (Interoperability of the Trans-European Conventional Rail System) Regulations 2004

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

2. The work sub-contracted must 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 with 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 with does not need to be notified. The Minister and the notified body shall ensure that there is effective monitoring of the competence of the body sub-contracted.

5. There must be a written contract between the notified body and the body with which it has 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 State..

GIVEN under my Official Seal,

this

18

th

day of

February

, 2004

SEAMUS BRENNAN, T.D.,

Minister for Transport

Explanatory Note

(This not 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 2001/16/EC of 19 March 2001 on the interoperability of the trans-European conventional rail system. The aim of Council Directive 2001/16/EC is to remove obstacles to interoperability on the rail lines of the trans-European conventional 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 L110, 20.4.2001, p.1

2

OJ L 235, 17.9.1996, p.6

3

OJ L110, 20.4.2001, p.1

4

OJ L199, 9.8.1993, p.84

4

OJ LO15, 17/01/97, P.01

5

OJ L228, 9.9.1996, p.1

6

OJ L220, 30/08/93, P. 23-39

8. Ensure confidentiality of the information obtained in the course of the performance of its duties as a notified body under these Regulations.

9. Be adequately insured.

10. Take part in co-ordination activities and working groups in association with

the

other notified bodies, including bodies notified by other Member States.

SCHEDULE 9

Conditions that must be complied with by a notified body seeking to sub-contract part of its work.

11. Staged works decisions

(1) Notwithstanding the provisions of Regulation 7, a stage of a relevant upgrading or renewal project may be placed into service prior to an authorisation being given pursuant to Regulation 7 if it is placed into service in accordance with the provisions of this Regulation.

(2) A contracting entity may at any time during an upgrading or renewal project make a request in writing to the Minister for a decision on whether a stage of that project may be placed into service prior to an authorisation being given pursuant to Regulation 7.

(3) A request made under paragraph (2) shall be accompanied by the following information —

(a) a description of the upgrading or renewal project;

(b) the dates when each stage of the project is due to commence and finish and be placed into service;

(c) a description of how the work will be carried out in each stage;

(d) the arrangements to be put in place by the contracting entity to ensure the continued safety of any part of a railway system affected by the upgrading or renewal project for the duration of that project; and

(e) the date when an authorisation under Regulation 7 will be sought.

(4) If the Minister considers that the information provided by a contracting entity in a request made under paragraph (2) is insufficient to enable the Minister to make a staged works decision, he or she shall notify the contracting entity in writing of the additional information considered necessary in order to make that decision.

(5) The Minister shall notify the contracting entity in writing of its staged works decision.

(6) The staged works decision may contain such conditions as the Minister considers necessary to ensure that the overall level of safety of the relevant part of a railway system is not adversely affected.

(7) If at any stage of the upgrading or renewal project there is a change in circumstances that materially affect the information provided by the contracting entity to the Minister under paragraphs (3) or (4), the contracting entity shall notify the Minister of that change and the Minister shall consider whether that change affects the staged works decision given under paragraph (5) or the conditions attached to that decision under paragraph (6).

(8) If a change notified under paragraph (7) affects the staged works decision, or the conditions attached to that decision, the Minister -

(a) shall confirm or vary the staged works decision; and

(b) may remove or amend the conditions given under paragraph (7) or attach new conditions to the staged works decision,

and the requirements of paragraphs (5) and (6) shall apply to any action taken by the Minister under this paragraph.

(9) For the purpose of this regulation “a relevant upgrading or renewal project” means a project to upgrade an infrastructure subsystem, an energy subsystem, or a control and command and signalling subsystem.

12. Registers of infrastructure and rolling stock

(1) The owner of all relevant rolling stock shall create and maintain a register in accordance with paragraph (3) (“the rolling stock register”).

(2) The owner of all relevant railway infrastructure shall create and maintain a register in accordance with paragraph (4) (“the infrastructure register”).

(3) The rolling stock register shall contain the following information in respect of relevant rolling stock -

(a) all the information required by any relevant TSI; and

(b) where conformity with the whole or part of a TSI is not required pursuant to Regulation 4, or in the circumstances provided for in Regulation 9(3), details of the part of the TSI for which conformity is not required.

(4) The infrastructure register shall contain the following information in respect of relevant infrastructure -

(a) all the information required by any relevant TSI; and

(b) where conformity with the whole or part of a TSI is not required pursuant to Regulation 4, or in the circumstances provided for in regulation 9(3), details of the part of the TSI with which conformity is not required.

(5) The owners of rolling stock and infrastructure shall update annually any register that they are required to create and maintain in accordance with this Regulation.

(6) The owners of rolling stock and infrastructure shall: -

(a) send to the Minister and the Committee: -

(i) any register that they are required to create under this Regulation; and

(ii) any information that they are required to add to any register in accordance with paragraph (5),

and

(b) shall ensure that the said registers are made publicly available.

13. Notified Bodies

(1) The Minister may notify to the Commission from time to time such persons or bodies as he or she thinks fit to be notified bodies for the purposes of these Regulations.

(2) The Minister must verify the competence of bodies seeking notification taking into account the criteria set out in Schedules 7 and 9.

(3) A notification: -

(a) shall relate to such descriptions of structural subsystems and interoperability constituents as the Minister may specify, and

(b) shall be made subject to such conditions as the Minister may specify, including any such conditions as are to apply upon, or following, withdrawal of the notification.

(4) The duration of the notification shall be at the discretion of the Minister, or shall be agreed between the Minister and the notified body.

(5) The Minister may decide to notify a body for a limited period of time, and renew or withdraw the notification as appropriate.

(6) Subject to paragraph (7), a notification under this Regulation shall be for such period as may be specified in the notification.

(7) A notification shall be withdrawn : —

(a) upon the expiry of any period specified in the notification pursuant to paragraph (6),

(b) upon the expiry of 90 days notice in writing given by the notified body to the Minister, or

(c) upon the withdrawal of notification pursuant to Regulation 14.

(8) The functions of notified bodies in the State shall include: -

(a) assessing the conformity or suitability for use of interoperability constituents, including interfaces, against the relevant essential requirements by applying the procedures referred to in Regulation 7,

(b) applying the procedures for verification of structural subsystems referred to in Regulation 8,

(c) verification of the interfaces of structural subsystems with the rail systems into which they are incorporated.

(d) consulting notified bodies notified by other Member States in relation to the functions referred to in paragraphs 2(a) and 2(b) on relevant matters including ensuring that, in the absence of TSIs, the procedures for assessment and verification required under the Directive are consistently applied throughout the European Community.

(9) An EC declaration of conformity, an EC declaration of suitability for use, or an EC declaration of verification approved by a body notified by another Member State shall be acceptable in the State as if approved by a body notified by the Minister.

(10) A notified body shall be responsible for compiling the technical file that has to accompany the verification declaration in accordance with Schedule 5. The technical file must contain all the necessary documents relating to the characteristics of the subsystem and, where appropriate, all the documents certifying conformity of the interoperability constituents. It must also contain all of the elements relating to the conditions and limits of use and to the instructions concerning servicing, constant or routine monitoring, adjustment, and maintenance.

(11) The general criteria provided for in Schedules 7 and 9 shall apply in respect of the assessment by the Minister of the bodies to be notified as notified bodies.

(12) To effect notification, the Minister shall inform the Commission and the other Member States that a body which fulfils the necessary requirements has been designated to carry out conformity, suitability for use and verification assessment procedures in accordance with these Regulations and the Directive.

(13) Official notification of a body shall only take place when all the information required and the identification number which has been allocated to the notified body by the Commission is sent by the Minister to the other Member States and to the Commission.

(14) The Minister shall publish in Iris Oifigiuil the relevant information concerning all notified bodies notified by the Minister.

(15) A notified body can have part of its work carried out, or sub-contracted, by another body subject to the provisions of Schedule 10.

(16) The Minister shall ensure that notified bodies maintain their competence at all times and are capable of carrying out the work for which they are notified. For this purpose the Minister, or a body designated by the Minister, may carry out surveillance and re-assessment of notified bodies.

(17) A notified body notified to the Commission by another Member State shall be recognised in the State as shall the assessment for conformity or suitability for use as referred to in Article 13 and the checking procedure referred to in Article 18 carried out by such notified bodies.

(18) In relation to paragraph (16), the Minister may require as necessary that the notified body be familiar with the special characteristics of the existing railway system and operations in the State.

(19) Where the Minister considers that a body notified by another Member State no longer meets the relevant criteria, the Minister shall refer the matter to the Committee.

14. Refusal to give a Certificate of Conformity

(1) Where a notified body is proposing to decline to draw up a certificate of conformity in relation to a structural subsystem, or is proposing to decline to confirm that a conformity declaration or suitability declaration can be drawn up in respect of an interoperability constituent, it shall—

(a) give notice in writing to the applicant of the reasons why it is proposing to do so;

(b) give the applicant the opportunity to make representations within a period of 21 days beginning with the day on which such notice is given; and

(c) consider any representations made within that period by the applicant before making its decision.

(2) If the notified body rejects these representations the applicant shall have a further 21 days to appeal to the Minister, whose decision in the matter shall be final.

(3) A notified body shall not draw up a certificate of conformity in relation to a structural subsystem unless satisfied that that subsystem conforms to such of the TSIs or notified standards as that subsystem is required to conform with pursuant to Regulation 9(3).

(4) A notified body shall not confirm that a conformity declaration or suitability declaration can be drawn up in respect of an interoperability constituent unless satisfied that that constituent conforms to such of the European specifications, TSIs or notified standards as are required pursuant to Regulation 5(1).

15. Withdrawal or suspension of Notification of a Notified Body

(1) Where, in the opinion of the Minister a notified body ceases to fulfil the requirements or its obligations, the Minister may withdraw, or if appropriate, suspend the notification having contacted the body in question. If this course of action is undertaken, the Minister shall have this information published, and shall inform the Commission and the other Member States following a procedure similar to that of the notification.

(2) The Minister is solely entitled to withdraw notification of a notified body notified by the Minister.

(3) The body whose notification has been withdrawn shall have the right to appeal the decision.

(4) In the event of a withdrawal or suspension of notification the Minister shall notify the body in question that the body has 21 days from the date of notification to make written representations to the Minister, which the Minister shall consider.

(5) If the Minister having considered representations made under paragraph (4) is subsequently satisfied that there are no longer grounds for withdrawal and/or suspension the notified body having established that it has the necessary competence to carry out its functions the Minister may revoke the withdrawal and/or suspension by means of a written notice to the body in question.

(6) If the Minister rejects the representations made under paragraph (4) the body may appeal in writing, within 21 days of the decision, to a judge of the District Court, and the withdrawal or suspension shall not take effect until the time allowed for such appeal has elapsed and, in the event of an appeal, until the appeal is determined.

(7) On hearing an appeal under Regulation 9(4) the District Court may either confirm or vary the decision of the Minister or allow the appeal.

(8) 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, or points, of law.

(9) Where the Committee has delivered an opinion in respect of a notified body referred to it pursuant to Article 20(4) and the Commission has informed the Minister of the changes necessary for the notified body to retain its status as a notified body, the Minister shall give notice in writing to the notified body of the necessary changes.

(10) Where a notified body has been given notice in writing by the Minister pursuant to paragraph (9), the notified body shall take all necessary steps to effect the changes referred to in the notice.

(11) For the purposes of paragraph (10), the Minister shall specify in the notice referred to in that paragraph the period of time in which the notified body must take the necessary steps to effect the changes referred to in the notice.

(12) Where the notified body fails to effect the necessary changes within the period of time specified in the notice, the Minister shall withdraw the notification of the notified body. The Minister shall communicate the fact of this withdrawal to the Commission and to the other Member States.

16. Inspectors

(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 reasonable times, any place or premises which he or she has reasonable cause to believe-

(i) is part of a rail system which forms part of the trans-European conventional 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).

(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) 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 Schedule 2,

(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 conventional 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 conventional 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 conventional rail system in accordance with section 7 of the Railway Regulations 1871, 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) is 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 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.

17. Prohibition notice

(1) If an inspector, appointed under Regulation 16, is of the opinion that a person: -

(a) has placed into service, constructed, upgraded or renewed a subsystem, or

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

in contravention of these Regulations, or

(c) has contravened these Regulations in any other way,

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) be in writing,

(b) state that the inspector has formed the relevant opinion,

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

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

(4) A prohibition notice shall take effect on one of the following dates: —

(a) Upon receipt by the person to whom it is directed if the notice specifies that it is to have immediate effect,

(b) On the day specified in the notice,

(c) 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, or

(d) 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) 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.

(6) 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 determined.

(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) Notwithstanding paragraph 4(d), where a prohibition notice is confirmed on appeal, the Court 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 as it considers appropriate and the order by which an application under paragraph (10) is determined may contain such terms and conditions 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 is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000 or to a term of imprisonment for a term not exceeding 6 months, or both.

18. Notices relating to interoperability constituents, including interfaces, not meeting the essential requirements

(1) If the Minister is of the opinion that an interoperability constituent, including interfaces, in relation to which a conformity declaration or suitability declaration has been drawn up does not meet the essential requirements relating to it, the Minister may serve a notice on the person who is using, or intending to use, that interoperability constituent in the construction, upgrading, or renewal of a structural subsystem in relation to which that person is a contracting entity, to prohibit the use, or restrict the area of use, of that interoperability constituent.

(2) The information to be contained in a notice served under paragraph (1) is -

(a) a statement that the Minister is of the opinion referred to in paragraph (1),

(b) the reasons for that opinion,

(c) a direction that the interoperability constituent to which that notice relates shall not be used, or that its area of use shall be restricted as specified in the notice, in the construction, upgrading, or renewal, and

(d) the date by which the contracting entity shall comply with the notice.

(3) Any notice served under paragraph (1) may be withdrawn by the Minister serving written notice of the withdrawl on the contracting entity.

(4) Where a notice has been served on the contracting entity in accordance with this regulation, the contracting entity shall -

(a) comply with that notice; and

(b) notify the person who supplied him with the interoperability constituent in relation to which the notice under paragraph (1) was served -

(i) that a notice under paragraph (1) has been served,

(ii) the contents of the notice, and

(iii) that he or she requires that person in turn to notify his or her supplier with the same information required by this paragraph.

19. Fees payable to notified bodies

(1) Subject to paragraph (2) a notified body appointed by the Minister may charge such fees in connection with or incidental to, carrying out functions referred to in Regulation 12 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,

(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) The power in paragraph (1) includes the power to require the payment of fees in advance of carrying out the work requested by the applicant.

20. Fees payable to Minister

(1) A fee may be payable by the contracting entity to the Minister for work carried out in the State by or on behalf of the Minister in relation to: -

(a) an application pursuant Regulation 7 for an authorisation,

(b) a request pursuant to Regulation10 for a screening decision,

(c) a request pursuant to Regulation 11 for a staged works decision.

(2) The fees payable under paragraph (1) shall not exceed the sum of the costs incurred by the Minister in carrying out the work referred to in paragraph (1).

(3) The Minister may charge such reasonable fee in connection with, or incidental to, carrying out functions under Regulation 12.

21. Prosecution of offences

(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 committed with the consent, connivance, or approval of any person, being a director, manager, secretary, other officer, or a person who was purporting to act in any such capacity or is attributable to the wilful neglect of any such person, that person, as well as the body corporate, is guilty of an offence and isliable to be prosecuted and punished as if he or she was guilty of the first-mentioned offence.

SCHEDULE 1

THE TRANS-EUROPEAN CONVENTIONAL RAIL SYSTEM

INFRASTRUCTURE