The Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016

[F1 Infrastructure management: independence; outsourcing and sharing functions and impartiality in respect of traffic management and maintenance planning U.K.

5.   After regulation 8 (management independence) insert—

“Independence of the infrastructure manager

8A.— (1) Subject to paragraph (5), the infrastructure manager, in its legal form, must be independent of any railway undertaking and, in vertically integrated undertakings, also be independent of any other legal entity within the undertaking.

(2) In vertically integrated undertakings, the other legal entities must not exercise any decisive influence on the decisions of the infrastructure manager in relation to the essential functions.

(3) Members of the supervisory board and the management board, and managers reporting directly to them, must act in a non-discriminatory manner and their impartiality must not be affected by any conflict of interest.

(4) An individual must not be concurrently appointed or employed—

(a) as a member of the management board of an infrastructure manager or the head of division in charge of the management of infrastructure, and as a member of the management board of a railway undertaking or the head of division in charge of railway services;

(b) as a person in charge of taking decisions on the essential functions and as a member of the management board of a railway undertaking;

(c) where a supervisory board exists, as a member of the supervisory board of an infrastructure manager and as a member of the supervisory board of a railway undertaking;

(d) as a member of the supervisory board of an undertaking which is part of a vertically integrated undertaking and which exercises control over both a railway undertaking and an infrastructure manager and as a member of the management board of that infrastructure manager.

(5) Paragraph (1) and sub-paragraphs (c) and (d) of paragraph (4) do not apply where infrastructure charging and path allocation functions are performed by a charging body and an allocation body by virtue of regulations 14(9) and 19(4) respectively.

(6) In vertically integrated undertakings, the members of the management board of the infrastructure manager or, as the case may be, the head of division in charge of the management of infrastructure, and the persons in charge of taking decisions on the essential functions must not receive—

(a) any performance-based remuneration from any other legal entities or divisions within the vertically integrated undertaking; or

(b) any bonuses principally related to the financial performance of particular railway undertakings or, as the case may be, divisions providing railway services,

but they may be offered incentives related to the overall performance of the railway system.

(7) Where information systems are common to different entities within a vertically integrated undertaking, access to sensitive information relating to essential functions must be restricted to authorised staff of the infrastructure manager and not passed on to other entities within the vertically integrated undertaking.

Outsourcing and sharing the infrastructure manager’s functions

8B.— (1) Subject to paragraphs (2) and (3), an infrastructure manager may outsource—

(a) functions to a different entity, provided the latter is not a railway undertaking, does not control a railway undertaking, or is not controlled by a railway undertaking;

(b) the execution of works and related tasks on development, maintenance and renewal of the railway infrastructure to railway undertakings or companies which control the railway undertaking, or are controlled by the railway undertaking.

(2) When outsourcing functions or the execution of works and related tasks under paragraph (1) the infrastructure manager must—

(a) ensure that no conflicts of interest arise and that the confidentiality of commercially sensitive information is guaranteed; and

(b) except where the functions and obligations pass to a charging or allocation body by virtue of regulations 14(9) and 19(4) respectively, retain the supervisory power over, and bear ultimate responsibility for, the exercise of the functions described in the definition of “infrastructure manager” set out in regulation 3 (interpretation).

(3) Within a vertically integrated undertaking, the infrastructure manager must not outsource essential functions to any other entity of the vertically integrated undertaking under paragraph (1)(a), unless that entity exclusively performs essential functions.

(4) Any entity carrying out essential functions which have been outsourced under paragraph (1)(a) must comply with regulations 8A, 8C, 9A, 14(9) and 19(4).

(5) Provided that compliance by the infrastructure manager with its obligations concerning the development of the network in regulations 11 and 12 and 15(1) is ensured, a power supply operator which does not carry out any essential functions is exempt from any provisions of these Regulations that apply to infrastructure managers.

(6) Infrastructure management functions may be performed by different infrastructure managers, including parties to public-private partnership arrangements, provided that each infrastructure manager fulfils the obligations under regulations 8A, 8C, 9A, 14(9) and 19(4) and assumes full responsibility for the exercise of the functions assigned to it.

(7) Subject to supervision by the Office of Rail and Road, an infrastructure manager may conclude cooperation agreements with one or more railway undertakings provided that these are non-discriminatory and concluded with a view to delivering benefits to customers such as reduced costs or improved performance on the part of the network covered by the agreement.

Impartiality of the infrastructure manager in respect of traffic management and maintenance planning

8C.— (1) The infrastructure manager must exercise the functions of traffic management and maintenance planning in a transparent and non-discriminatory manner and ensure that the persons in charge of taking decisions in respect of those functions are not affected by a conflict of interest.

(2) As regards traffic management, the infrastructure manager must ensure that railway undertakings, in cases of disruption concerning them, have full and timely access to relevant information.

(3) Where the infrastructure manager grants further access to the traffic management process, it must do so for the railway undertakings concerned in a transparent and non-discriminatory way.

(4) The infrastructure manager must carry out the scheduling of maintenance works in a non-discriminatory way.

(5) As regards the long-term planning of major maintenance or renewal of the railway infrastructure, the infrastructure manager must consult applicants and, so far as reasonably practicable, take into account any concerns expressed.”.]

Textual Amendments

F1 Sch. 6 inserted (11.2.2019) by The Railways (Access, Management and Licensing of Railway Undertakings) (Amendment) Regulations 2019 (S.I. 2019/82), reg. 1(2), Sch. 2