PART 5ALLOCATION OF INFRASTRUCTURE CAPACITY
Capacity allocation19
1
Whilst respecting the requirements for management independence stipulated in regulation 8, the Office of Rail and Road may establish a framework for the allocation of infrastructure capacity.
2
The infrastructure manager must, subject to paragraph (3), be responsible for the establishment of specific capacity allocation rules and for the process of allocating infrastructure capacity in respect of the infrastructure for which it has responsibility.
3
If the infrastructure manager, in its legal form, organisation and decision making functions, is not independent of any railway undertaking, the infrastructure manager must ensure that the functions described in this Part and Schedule 3 are performed by an allocation body that is independent in its legal form, organisation and decision-making from any railway undertaking.
F13A
In paragraph (3) the infrastructure manager is not independent in its organisation or decision-making functions if, in particular—
a
a railway undertaking or any other legal entity exercises a decisive influence on the infrastructure manager in relation to the train path allocation elements of the essential functions, without prejudice to the allocation framework established pursuant to this regulation;
b
a railway undertaking or any other legal entity within the vertically integrated undertaking has decisive influence on appointments and dismissals of persons in charge of taking decisions on the train path allocation elements of the essential functions; or
c
the mobility of persons in charge of the train path allocation elements of the essential functions creates a conflict of interest.
4
Subject to paragraph (7), any applicant may apply to the infrastructure manager for the allocation of infrastructure capacity.
5
In order to use such capacity, an applicant which is not a railway undertaking must appoint a railway undertaking to conclude a contract with the infrastructure manager in accordance with paragraph (14): this is without prejudice to the right of the applicant to conclude an agreement with the infrastructure manager under regulation 22(1).
6
The infrastructure manager must ensure that the allocation process is conducted in accordance with the timetable set out in Schedule 3.
7
Subject to paragraph (8), an applicant who has been granted capacity by the infrastructure manager, whether that capacity is in the form of—
a
a framework agreement made in accordance with regulation 21 specifying the characteristics of the infrastructure granted; or
b
specific infrastructure capacity in the form of a train path,
must not trade that capacity with another applicant or transfer it to another undertaking or service.
8
Any person who trades in capacity contrary to the provisions of paragraph (6) shall not be entitled to apply for capacity under paragraph (4) for the period of the working timetable period to which the allocation of capacity transferred related.
9
The use of capacity by a railway undertaking on behalf of an applicant who is not a railway undertaking, in order to further the business of that applicant, is not a transfer for the purpose of paragraph (6).
10
The infrastructure manager must not allocate capacity in the form of specific train paths for any period in excess of one working timetable period.
11
A contract, either in the form of a framework agreement or any other type of contract, setting out the rights and obligations of the parties, must be concluded between the infrastructure manager and any applicant to whom infrastructure capacity is allocated before that infrastructure capacity is utilised.
12
The infrastructure manager must—
a
ensure that infrastructure capacity is allocated on a fair and non-discriminatory basis;
b
ensure that the agreements referred to in paragraph (10) are non-discriminatory, transparent, and in accordance with the requirements of these regulations; and
c
respect the confidentiality of information supplied as part of the capacity allocation process, including the identity of other applicants during disclosure under regulation 23(5) unless the relevant applicant has agreed to disclosure of their identity. .
13
In reserving infrastructure capacity for the purposes of scheduled track maintenance, as requested under regulation 22(3), the infrastructure manager must take into account the effect of that reservation on applicants.
14
An applicant applying for infrastructure capacity with a view to operating F2a passenger service must give notice of that fact to the infrastructure manager concerned and to the Office of Rail and Road F3at least 18 months before the entry into force of the working timetable to which the request for capacity relates and provide such information as the Office of Rail and Road may reasonably require or prescribe.
15
When the Office of Rail and Road receives a notice from an applicant under F5paragraph (14) it must F4, without undue delay and at the latest within 10 days, provide—
a
any competent authority that has awarded a rail passenger service, defined in a relevant public service contract;
b
any railway undertaking which is a relevant public service operator; and
c
with a copy of the information in relation to that service provided to it in accordance with that paragraph.
16
The infrastructure manager may set requirements with regard to applicants to ensure that its legitimate expectations about future revenues and utilisation of the infrastructure capacity are safeguarded.
17
Requirements under paragraph (16)—
a
Must be appropriate, transparent and non-discriminatory;
b
Must be specified in the network statement; and
c
May only include the provision of a financial guarantee by an applicant if the level of such guarantee does not exceed an appropriate level which is proportional to the contemplated level of activity of the applicant, and where such guarantee provides assurance of the applicant's capability to prepare compliant bids for infrastructure capacity.
18
The infrastructure manager must set any requirements under paragraph (15) in accordance with the criteria contained in Commission Implementing Regulation (EU) 2015/10 of 6 January 2015 M1 on criteria for applicants for rail infrastructure capacity and repealing implementing Regulation (EU) No. 870/2014 M2.