40.—(1) Where the railway infrastructure of a F37[railway organisation] is used by another F37[railway organisation] to operate trains or where the activities of one F37[railway organisation] may affect the safe operation of another F37[railway organisation], the F37[railway organisation]s concerned shall agree systems and procedures to ensure compliance with the duty imposed on each of them by section 36.

(2) F37[railway organisation]s shall co-operate with each other and provide to each other, without undue delay, all information reasonably required by the other party to enable the agreement in subsection (1) to be made.

(3) The Commission may give a direction to a F37[railway organisation] requiring it to make an agreement under subsection (1) or to co-operate with another F37[railway organisation] under subsection (2) and the F37[railway organisation] shall comply with such direction.

(4) A F37[railway organisation] may only refuse to give its agreement under subsection (1) where to give such agreement, in its reasonable opinion, would be failing in its duty under section 36.

(5) An agreement under subsection (1) shall form a separate part of the F38[safety management document] of each relevant F37[railway organisation].

(6) An agreement under this section shall include provisions for—

(a) monitoring, reviewing and updating of the agreement, and

(b) procedures for dealing with alleged non-compliance by any of the parties involved in the agreement.

(7) A F37[railway organisation] shall not operate trains on the railway infrastructure of another F37[railway organisation], and an operator of railway infrastructure shall not give permission for such trains to operate, unless all parties have an agreement in accordance with subsection (1) and the F38[safety management document] of each relevant F37[railway organisation] has been accepted by the Commission in accordance with section 46.

F39[(8) Subsection (7) does not apply to a railway organisation that operates a railway service immediately before the commencement of this section in respect of the period specified in sections 45(1) and 46(8).]

(9) Where a F37[railway organisation] is contravening subsection (7), the Commission may give a direction to it to cease operating its trains on the railway infrastructure of the other F37[railway organisation].

(10) A F37[railway organisation] shall comply with a direction of the Commission given to it under this section.

(11) Where the Commission proposes to give a direction under this section, it shall notify the F37[railway organisation] concerned of the proposal and the F37[railway organisation] may, within 21 days of the notification, make representations to the Commission, which shall consider them.

(12) Where the Commission decides to give a direction under this section, the F37[railway organisation] concerned may, within 21 days of notification of the decision, appeal to the High Court and the direction 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 or withdrawn.

(13) On hearing an appeal under subsection (12), the Court may either confirm or vary the decision of the Commission or allow the appeal.

(14) A decision of the High Court on an appeal under subsection (12) shall be final, save that, by leave of the Court, an appeal from the decision shall be to the Supreme Court on a specified point of law.

(15) A F37[railway organisation] which, without reasonable excuse, fails to comply with a direction of the Commission under this section is guilty of an offence and is liable—

(a) on summary conviction, to a fine not exceeding €3,000, or

(b) on conviction on indictment, to a fine not exceeding €500,000.