LICENSING OF RAILWAY UNDERTAKINGS REGULATIONS

SUBSIDIARY LEGISLATION 499.65

LICENSING OF RAILWAY UNDERTAKINGS

REGULATIONS

*

LEGAL NOTICE 385 of 2015, as amended by Legal Notice 315 of 2018.

(1) The title of these regulations is the Licensing of

Railway Undertakings Regulations.

(2) These regulations implement the provisions of

(a) Chapter III of Directive 2012/34/EU of the European

Parliament and of the Council of 21 November 2012

establishing a single European railway area (recast);

and

(b) Directive (EU) 2016/2370 of the European Parliament

and of the Council of 14 December 2016 amending

Directive 2012/34/EU as regards the opening of the

market for domestic passenger transport services by

rail and the governance of the railway infrastructure.

(3) These regulations shall come into force on such date as the

Minister may by notice in the Gazette establish, and different dates

may be so established for different provisions of these regulations.

1. Financial fitness shall be verified by means of an undertaking’s annual

accounts or, in the case of applicant undertakings unable to present annual accounts,

a balance sheet. Detailed particulars must be provided, in particular on the following

aspects

(a) available funds, including the bank balance, pledged overdraft

provisions and loans;

(b) funds and assets available as security;

(c) working capital;

(d) relevant costs, including purchase costs of payments to account for

vehicles, land, buildings, installations and rolling stock;

(e) charges on an undertaking’s assets;

(f)

taxes and social security contributions.

2. In particular, an applicant is not financially fit if considerable arrears of

taxes or social security are owed as a result of the undertaking’s activity.

3. The Authority may in particular require the submission of an audit report

and suitable documents from a bank, public savings bank, accountant or auditor.

These documents must include information concerning the matters referred to in

paragraph 1.

(1) These regulations concern the criteria applicable to the

issuing, renewal, amendment, suspension and revocation of

licences required for the provision of rail transport services by

railway undertakings which are or will be established in the

European Union.

(2) The following are excluded from the scope of these

regulations

(a) undertakings which only operate rail passenger

services on local and regional stand-alone railway

infrastructure;

(b) undertakings which only operate urban or suburban

rail passenger services;

(c) undertakings which only operate regional rail freight

services;

(d) undertakings which only operate freight services on

privately owned railway infrastructure that exists

solely for use by the infrastructure owner for its own

freight operations;

(e) undertakings the business of which is limited to

providing shuttle services for road vehicles through

undersea tunnels or to transport operations in the form

of shuttle services for road vehicles through such

tunnels.

*not yet in force.

In these regulations, unless the context otherwise requires

"Act" means the Authority for Transport in Malta Act;

" A u t h o r i t y " m e a n s t h e A u t h o r i t y f o r Tr a n s p o r t i n M a l t a

established by the Act;

"licence" means an authorization issued by the Authority to an

undertaking, by which its capacity to provide rail transport services

as a railway undertaking is recognized. That capacity may be

limited to the provision of specific types of services;

"Minister" means the Minister responsible for transport, and

includes any person authorised by such Minister in that behalf;

"railway undertaking" means any public or private undertaking

licensed according to these regulations, the principal business of

which is to provide 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;

"regional services" means transport services operated to meet the

transport needs of a region;

"urban and suburban services" means transport services whose

principal purpose is to meet the transport needs of an urban centre

or conurbation, as well as the transport needs between such centre

or conurbation and surrounding areas.

(1) A railway undertaking shall be entitled to apply for a

licence in Malta if it is established in Malta.

(2) No railway undertaking shall be permitted to provide rail

transport services covered by these regulations unless it has been

granted the appropriate licence for the services to be provided.

(3) The Authority shall only issue a licence or extend the

validity thereof if it is satisfied that the requirements of these

regulations are fully complied with.

(4) A licence issued by the Authority in Malta shall be valid

throughout the European Union

Provided that such licence shall not in itself entitle the

holder to access the European Union’s railway infrastructure.

(1) All procedures for the issuing, renewal, amendment,

suspension, or revocation of licences shall be applied by the

Authority in a transparent, public, and non-discriminatory manner

in accordance with the Act and these regulations.

(2) A fee, the sum of which shall from time to time be

established by the Minister in consultation with the Authority, shall

be payable on every application for the issuing, renewal, or

amendment of a licence.

(3) The Authority may approve or refuse an application for the

issuing or renewal of or amendment to a licence provided that

(a) on approving an application, the Authority may

incorporate specific provisions governing the

suspension or revocation of the licence in the licence

itself; and

(b) on refusing an application, the Authority shall state the

reasons for such refusal in clear and unequivocal

terms.

(4) The Authority shall determine an application within a

reasonable time not exceeding three months from the date of its

receipt. Such time shall remain suspended until all the relevant

information, notably the particulars referred to in the Schedule, is

submitted.

(5) Decisions taken by the Authority shall be communicated to

the railway undertaking without delay.

A licence shall remain valid for as long as the railway

undertaking remains in conformity with these regulations unless it

is otherwise suspended or revoked.

Every licence issued by the Authority shall be subject to

review every five years.

(1) The Authority shall not issue a licence unless it is

satisfied that the applicant railway undertaking meets the

requirements of good repute, financial fitness, and professional

competence in terms of regulations 9 to 11, both inclusive, and that

it is also covered by a valid and sufficient insurance policy in terms

of regulation 12.

(2) Each applicant railway undertaking shall provide all

relevant information required by the Authority in order to ascertain

the applicant’s conformity with these regulations.

The requirement of good repute shall be satisfied when the

applicant railway undertaking and the persons in charge of its

management provide the Authority with satisfactory evidence that

(a) they have not been convicted of serious criminal

offences including offences of a commercial nature;

(b) they have not been declared bankrupt and bankruptcy

or similar proceedings have not been initiated against

them;

(c) they have not been convicted of serious offences set

out in specific legislation applicable to transport;

(d) they have not been convicted of serious or repeated

failure to fulfil social or labour law obligations,

including obligations under occupational safety and

health legislation, and customs law obligations in case

of a company seeking to operate cross-border freight

transport subject to customs procedures;

(e) they have not been convicted of serious offences

resulting from obligations arising in terms of the law

from binding collective agreements, where applicable.

(1) The requirement of financial fitness shall be satisfied

when the applicant railway undertaking provides the Authority with

satisfactory evidence that it will be able to meet its actual and

potential obligations, established under realistic assumptions, for a

period of twelve months.

(2) For the purposes of sub-regulation (1), each applicant shall

give at least the particulars listed in the Schedule.

The requirement of professional competence shall be

satisfied when the applicant railway undertaking provides the

Authority with satisfactory evidence that it has or will have a

management organisation which possesses the knowledge or

experience necessary to exercise safe and reliable operational

control and supervision of the type of operations which the railway

undertaking may perform in terms of the licence granted to it by the

Authority.

(1) A railway undertaking shall not be granted a licence

unless it is adequately insured in accordance with national and

international law.

(2) The insurance shall provide coverage for liabilities that

may arise in the event of accidents, in particular in respect of

passengers, luggage, freight, mail, and third parties.

(1) If there is serious doubt whether a railway undertaking

licensed by the Authority is in compliance with the requirements of

these regulations, and in particular with those of regulation 8, the

Authority may, at any time, check whether that railway undertaking

is in fact in compliance with these regulations.

For the purposes of this regulation, the Authority may

demand the submission of all documents, evidence or other proof it

may require in order to ascertain that the railway undertaking is in

conformity with these regulations.

The Authority shall also be entitled to access a railway

undertaking’s books, databases and premises in so far as such

access is necessarily required for this purpose.

(2) Where the Authority is satisfied that a licensed railway

undertaking can no longer meet the requirements of these

regulations, and in particular those of regulation 8, it shall suspend

or revoke the licence with immediate effect.

(3) Where the Authority is satisfied that there is serious doubt

regarding compliance with the requirements laid down in these

regulations on the part of a railway undertaking which has been

licensed by a licensing authority in another Member State, it shall

inform the latter authority without delay.

(4) Notwithstanding the provisions of sub-regulation (2), where

a licence is suspended or revoked on grounds of non-compliance

with the requirement for financial fitness, the Authority may grant

a temporary licence pending the reorganization of the railway

undertaking, provided that safety is not jeopardized.

A temporary licence shall not, however, be valid for more

than six months after its date of issue.

For the purposes of this regulation, the Authority may

require the assistance of other Member States’ licensing authorities

and of infrastructure managers responsible for railway

infrastructure in terms of the Directive of the European Parliament

and of the Council of 21 November 2012 in order to ensure that the

provision of a temporary licence does not jeopardize railway safety.

(5) Where a railway undertaking has ceased operations for a

period of six months or has not started operations six months after

the grant of a licence, the Authority shall suspend the licence or

require that the licence be resubmitted for approval

Provided that railway undertakings may apply to the

Authority for an extension of the period established in this sub-

regulation. In this regard, the Authority shall only uphold such

request if it is satisfied that such extension is necessary, regard

being had to the specific nature of the services to be provided by

the railway undertaking.

(6) In the event of a change affecting the legal situation of an

undertaking and, in particular, in the event of a merger or takeover,

the Authority may require that the licence be resubmitted for

approval.

The railway undertaking in question may continue

operations, unless the Authority decides that safety is jeopardized;

in that event, the reasons for such a decision shall be given.

For the purposes of this regulation, the Authority may

require the assistance of other Member States’ licensing authorities

and of infrastructure managers responsible for railway

infrastructure in terms of the Directive of the European Parliament

and of the Council of 21 November 2012 in order to ascertain

whether allowing the railway undertaking to continue operations

following the change affecting its legal situation may jeopardize

railway safety.

(7) Where a railway undertaking intends to significantly

change or extend its activities, its licence shall be resubmitted to

the Authority for review.

(8) The Authority shall not permit a railway undertaking

against which bankruptcy or similar proceedings are commenced to

retain its licence unless it is convinced that there is realistic

prospect of satisfactory financial restructuring within a reasonable

period of time.

Upon issuing, renewing, amending, suspending, or

revoking a licence, the Authority shall immediately inform the

European Railway Agency accordingly in order that the European

Railway Agency may inform the licensing authorities of other

Member States forthwith.

All decisions taken by the Authority under these

regulations shall be subject to review by the Administrative Review

Tribunal established by article 5 of the Administrative Justice Act.

LICENSING OF RAILWAY UNDERTAKINGS

LICENSING OF RAILWAY UNDERTAKINGS