DRAFT
Draft 22
Law on Railways of Bosnia and Herzegovina
I. General Provisions
Article 1
Scope of Application
This law applies to the public railway sector within the territory of Bosnia and Herzegovina in order to provide for the freedom of movement of people, goods and services, and a safe, economically efficient and viable rail transport sector for Bosnia and Herzegovina as covered by the competency of the state over all international and inter-entity transport.
Article 2
General Goals for Railway Sector in Bosnia and Herzegovina
In regulating and managing the railway sector in Bosnia and Herzegovina, the following goals have to be pursued:
a) To ensure the continued development of a sound rail transportation system with effective competition among Train Operators, and with other modes, to meet the needs of the public;
b) To ensure a non-discriminating access to and use of the Railway Infrastructure;
c) To encourage efficient and transparent management of railway sector with harmonization of operations and standards;
d) To follow prevailing international practices and applicable Directives of the European Union;
e) To promote a safe and efficient rail transportation system;
f) To ensure fair and expeditious regulatory decisions and handling of all proceedings required or permitted to be brought under this Law.
Article 3.
Definitions
For the purpose of this law:
‘Brcko District’ means the Brcko District of Bosnia and Herzegovina.
‘Entities or Entity’: the Federation of Bosnia and Herzegovina and/or the Republika Srpska.
‘Licence’ means an authorization, by which the capacity as a Train Operator is recognized. That capacity may be limited to the provision of specific types of services.
‘Infrastructure Manager’ means any public undertaking or company that is responsible for establishing and maintaining the Public Railway Infrastructure or privately owned railway infrastructure connected to the Public Railway Infrastructure.
‘Network’ means the entire railway infrastructure managed by an Infrastructure Manager.
‘Network Statement’ means the statement, which sets out in detail the general rules, deadlines, procedures and criteria concerning the charging schedule of fees and capacity allocation schemes. It shall also contain such other information as is required to enable application for infrastructure capacity.
‘Permit’ means an authorization by which the capacity as an Infrastructure Manager is recognized. This capacity may be limited to the provision of specific types of services.
‘Public Railway Infrastructure’ means the railway infrastructure assets owned, wholly or partially, by the Entities as well as such assets owned by the Brcko District of Bosnia and Herzegovina and all the items listed in Annex I. A to the Commission Regulation (EEC) N° 2598/70 of 18 December 1970 specifying the items to be included under the various headings in the forms of accounts shown in Annex I to Regulation (EEC) N° 1108/70(1) with the exception of the final indent which, for the purposes of this Directive only, shall read as follows: 'Buildings used by the infrastructure department` and items 2. b c d in Annex II to Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification.
‘Safety Certificate’ means an authorization, by which a Train Operator proves to meet all prescribed safety conditions for safe transportation.
‘State’ means the State of Bosnia and Herzegovina.
‘Driving Schedule ’ means the data defining all planned train and rolling stock movements that will take place on the relevant infrastructure during the period for which it is in force,
‘Train Operator’ means any public undertaking or company, which provides 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.
‘Train Path’ means the infrastructure capacity needed to run a train between two places over a given time-period.
Article 4
Railway Transport and Railway Infrastructure
Functioning of the railway system pursuant to the Law hereto shall be established on the principle of distinction between the railway transport services and railway infrastructure.
No Train Operator shall be permitted to provide rail transport services in Bosnia and Herzegovina unless it has been granted the appropriate licence as well as a safety certificate pursuant to this Law.
No Infrastructure Manager shall be allowed to manage the Public Railway Infrastructure or privately owned railway infrastructure connected to the Railway Infrastructure unless he has been granted a Permit pursuant to this Law.
II. Bosnia and Herzegovina Railway Regulatory Board
Section 1. Establishment and Powers of the Railway Regulatory Board
Article 5
Establishment, Organization and Financing
Within the Ministry of Communications and Transport of Bosnia and Herzegovina, is established the Bosnia and Herzegovina Railway Regulatory Board (hereinafter: the Railway Regulatory Board).
With regard to its organization, financing, powers and decision-making, the Railway Regulatory Board is independent from the Train Operators and Infrastructure Managers.
The Law on Civil Service in the Institutions of Bosnia and Herzegovina applies to the Railway Regulatory Board.
The management of the Railway Regulatory Board shall consist of one Director who shall report to the Minister of Communications and Transport of Bosnia and Herzegovina.
The organization of the Railway Regulatory Board shall be developed by the Director to ensure the effective discharge of the functions and responsibilities of the Railway Regulatory Board as stipulated in this Law and the regulations based on this Law. The organization of the Railway Regulatory Board is subject to approval by the Minister of Communications and Transport of Bosnia and Herzegovina.
The Railway Regulatory Board shall be financed by the budget of the Institutions of Bosnia and Herzegovina and other sources.
The main office of the Railway Regulatory Board shall be located in Doboj. The Railway Regulatory Board may have offices in other municipalities or cities of the State as appropriate.
Article 6
Powers of the Railway Regulatory Board
The powers of the Railway Regulatory Board are the following:
- Regulatory Powers
The Railway Regulatory Board shall enact regulations and control the railway sector of Bosnia and Herzegovina having regard to European Union Directives relating to railways that are appropriate for Bosnia and Herzegovina. Regulations shall be published in the Official Gazette of Bosnia and Herzegovina and the Entity Official Gazettes.
In specific matters, the Railway Regulatory Board may delegate to the Entity Ministries of Communications and Transport the power to enact sub-regulations or by-laws.
Without limiting the regulatory powers of the Railway Regulatory Board, the Minister of Communications and Transport of Bosnia and Herzegovina may, at the request of the Railway Regulatory Board or of the Minister's own motion, issue policy directions and procedures the implementation of which shall be supervised by the Railway Regulatory Board in its operations.
- Licensing Powers
The Railway Regulatory Board is the unique authority responsible for issuance, compliance and revocation of Licenses, Safety Certificates and Permits. To this respect the Railway Regulatory Board shall issue instructions and prescribed forms relating to applications for, and conditions of, Licenses, Safety Certificates and Permits. The Railway Regulatory Board may not delegate these powers.
- Other Powers and Functions
The Railway Regulatory Board shall also:
a) issue instructions for the safety and interoperability of the railway system, monitor compliance with such instructions and approve railway equipment with respect to safety and interoperability;
b) conduct and report on inspections ;
c) conduct and report on accident investigations;
d) compile and issue accident statistics;
e) be the authority of appeal for the Train Operators pursuant to Article 20 of this Law.
Unless otherwise stipulated, the Minister of Communications and Transport of Bosnia and Herzegovina may delegate, upon request of the Director, the above listed functions (a) to (d) to the Entity Ministries of Communications and Transport. The Entity Ministries of Communications and Transport may sub-delegate the allocated functions to any properly qualified legal person, domestic or foreign, if authorized by the Minister of Communications and Transport of Bosnia and Herzegovina. All delegations and sub-delegations shall be in writing and shall specify the withdrawal conditions. Entity Ministries of Communications and Transport or legal persons to which functions are or were delegated or sub-delegated shall report to the Minister of Communications and Transport of Bosnia and Herzegovina and the Entity Ministries of Communications and Transports respectively. Sub-delegations by legal persons are not permitted.
Article 7.
Appeal against the Railway Regulatory Board
A Railway Regulatory Board decision may be appealed against to the Ministry of Communications and Transport of Bosnia and Herzegovina. In the letter of appeal the plaintiff shall specify the particulars of the decision against which he/she appeals, how it should be changed and the reasons why it should be changed. The Ministry of Communications and Transport of Bosnia and Herzegovina shall decide in writing within thirty (30) days from the date the appeal was received. The State Court of Bosnia and Herzegovina shall be competent to review the acts or silence of the Ministry of Communications and Transport of Bosnia and Herzegovina in this matter.
Article 8.
Annual Report of the Railway Regulatory Board
The Railway Regulatory Board shall submit to the Minister of Communications and Transport of Bosnia and Herzegovina an annual report on its activities and the development of the railway sector in Bosnia and Herzegovina not later than 4 months after the end of the preceding year.
Such report shall include without limitations
a) the overall operations of the railway sector in terms of traffic carried and its efficiency measured by the traffic levels per unit of labor employed and other key ratios;
b) the accident records and the assessment of the safety of the railway sector;
c) the assessment of the operations of the railway sector as well as any difficulties observed in the administration of this Law.
Section 2. Licensing Powers by the Railway Regulatory Board
Article 9
Applications for Licenses, Safety Certificates and Permits
Each applicant that intends to undertake rail transport services or infrastructure management in Bosnia and Herzegovina shall apply to the Railway Regulatory Board for a License, a Safety Certificate or a Permit by submitting to the Railway Regulatory Board an application including the documents and information in accordance with the instructions issued by the Railway Regulatory Board pursuant to Article 6 Paragraph 4 of this Law.
The Railway Regulatory Board shall confirm to the applicant that it has received the application no later than seven (7) days after receipt.
Are excluded from the scope of this Article:
a) Undertakings that only operate urban rail passenger services on railway infrastructure not connected to the Railway Infrastructure as defined in this Law;
b) Undertakings that only carry freight operations on privately owned railway infrastructure that exists solely for use by the infrastructure owner for its own freight operations.
Article 10
Conditions of License
In order to obtain a License, each applicant must meet the conditions as follows:
a) Financial fitness: the applicant shall demonstrate that it is solvent and likely to be able to meet its actual and future liabilities established under realistic assumptions in the next twelve (12) months. The applicant must have no considerable arrears with respect to tax or social security liabilities. For the assessment of the financial fitness, each applicant shall give an audited annual account or in the case of applicant unable to present annual accounts, a balance sheet. Detailed particulars must be provided on the 1) available funds, including bank balance and loans; 2) funds and assets available as security; 3) working capital; 4) relevant costs including purchase costs of payments to account for vehicles, land, buildings, installations and rolling stock; and 5) charges on an applicant’s assets.
b) Insurance Coverage: the applicant must be adequately insured;
c) Good repute: the applicant and its senior management must be of good repute, in particular:
I. the applicant and/or the senior managers has/have not been declared bankrupt in the last five (5) years or is/are not subject to ongoing bankruptcy proceedings;
II. no action or legal proceedings have been started or any other steps are taken to liquidate the applicant or declare it insolvent or enforce a security interest over, take possession of, or levy, enforce upon or sue out against, any material asset of the applicant;
III. the applicant and/or the senior managers have not been convicted of a serious criminal offences (including commercial and transport offences);
IV. the applicant and/or the senior managers have not seriously or repeatedly breached any applicable laws governing customs, social security or employment, including occupational safety, health and the working environment in the last five (5) years.
d) Professional competence and technical equipment: the applicant, its senior management and employees are such that the rail transport services to be provided by the applicant are safe and reliable. The applicant possesses quality rolling stock and other appropriate technical equipment.
Article 11
Conditions of Safety Certificate
Apart from the License referred to in Article 10 of this Law, the Train Operator must also meet safety conditions for safe transportation.
In order to obtain a Safety Certificate by the Railway Directorate, the applicant must:
a) demonstrate that the activities shall be organised in such away that damages to personal property or injuries are prevented or mitigated;
b) issue an internal safety instruction consistent with the safety instructions issued by the Railway Regulatory Board ;
c) allocate safety related duties to suitably qualified employees, who have had regular medical examinations which have not revealed any health condition that might affect their ability to perform their duties;
d) issue a procedure in order to report all accidents and near accidents to the Railway Regulatory Board within seven (7) days and all serious accidents within 12 hours .
Article 12
Conditions of Permit
To be granted the Permit for managing the Public Railway Infrastructure or privately owned railway infrastructure connected to the Public Railway Infrastructure, the Infrastructure Manager must meet the following conditions:
a) To have its seat in the territory of Bosnia and Herzegovina;