Introduction

Introduction

 

Since 1991, the European railway sector has constantly been reformed by the European Union. The 4th Railway Package, which was adopted in 2016 is by far the largest and most complex legal initiative introduced so far.

The 4th Railway Package consists of a political and a technical pillar which introduce substantial reforms for all stakeholders concerned. Whilst the implementation of the political pillar has only started in late 2017, the one of the technical pillar is already in full swing.

Given the numerous initiatives launched by the European Commission and the European Union Agency for Railways (“ERA”/ “the Agency”) and the scope of reforms under way, the Group of Representative Bodies (GRB) decided in mid-2017 to prepare a Guide for Beginners to explain the technical pillar to the wider rail sector.

This Guide illustrates in four different chapters the reforms in the field of vehicle authorisation, safety certification and ERTMS trackside approval as well as the new role of the European Union Agency for Railways as ‘frequently asked questions’.

The Guide has been written and designed for all railway actors, such as railway undertakings, infrastructure managers, wagon keepers, entities in charge of maintenance, manufacturers, locomotive leasing companies, etc. Given the fact that the implementation of the 4th Railway Package is an ongoing process, the Guide will be updated on a regular basis, in line with the progress of the reforms being made on EU level.

 

Prof Andy Doherty

Chairman of the Group of Representative Bodies (GRB)

Brussels, November 2017

The 4th Railway Package - Technical Pillar

What does it contain?

 

The 4th Railway Package is a set of 6 legislative texts designed to complete the single market for Rail services (Single European Railway Area). Its overarching goal is to revitalise the rail sector and make it more competitive vis-à-vis other modes of transport. It comprises two 'pillars' which have been negotiated largely in parallel:

The technical pillar addresses interoperability, safety authorisation, ERTMS track-side certification but also the reduction of national rules and the increased role of the EU Agency for Railways (ERA) to deliver authorisations and certifications.

The 'technical pillar' was adopted by the European Parliament and the Council in April 2016 and comprises:

The political pillar addresses market opening, tendering of public service contracts and access to national rail passenger markets.

The 'market pillar' was adopted in December 2016 and comprises:

Why was it proposed?

 

The 4th Railway Package (RP) is meant to achieve the following objectives:

  • Achieve cost reductions
  • Remove administrative and technical barriers
  • Increase competitiveness
  • Accelerate the processes of vehicle authorisation and safety certification
  • Harmonise the implementation of ERTMS

The EC quantifies the benefits of the 4th RP on its website :

  • Over €40bn of financial benefits for citizens and companies by 2035 (combined with structural reforms);
  • Provision of up to about €16bn additional passenger-km;
  • 20% reduction in the time to market for new RUs;
  • 20% reduction in the cost and duration for the authorisation of rolling stock;
  • Total savings for companies of €500 million until 2025.

⇒ It is too early to state if and when these benefits will be realised. According to the EU, costs for the sector will increase in the first 5 years after the reforms are implemented and then drop considerably afterwards. Therefore, the rail sector has every interest in being closely involved with the implementation to make sure that the cost increase is limited and that the estimated benefits will materialise!

What are the milestones?

 

The overview of the milestones of the 4th RP is shown below:

4th Railway Package Entry into force* Transposition**
Political Pillar
DIR (EU) 2016/2370 ‘Governance‘  24/12/2016  25/12/2018 
REG (EU) 2016/2338 ‘PSO’  24/12/2017  -
Technical pillar 
DIR 2016/797 ‘Interoperability’  15/06/2016  16/06/2019 
DIR 2016/798 ‘Safety’ 15/06/2016  16/06/2019
REG (EU) 2016/796 ‘ERA’   15/06/2016  -

 

*Entry into force: Legal texts need to be published. After the 20th day following its publication in the Official Journal of the European Union, a text enters into force.;

**Transposition: Member States are given a certain period to transpose EU legislation into national law. The timeframe depends on the type of the legal initiative. In the case of a Directive, Member States normally have 2 years from the date of the entry into force. For the case of Directive 2016/797 and 2016/798 the transposition period is three years i.e. until 16th June 2019. Member States have an option to postpone the transposition by 1 year, i.e. until 16th June 2020. To be allowed to do so, they will have to notify the EC and the ERA by 16th December 2018 and set out their reasons for doing so. In the case of a Regulation, there is no transposition period as this type of legislation applies immediately to EU countries' national law when they entered into force (see point 1 above).);

In the case of very complex legislation, such as the 4th Railway Package, the EU foresees various initiatives to help the Member States preparing the transposition. During this so-called “implementation phase”, the EU launches e.g. shadow running processes, pilot schemes, etc. This Guide addresses exactly this phase.

Why is it important ?

 

The 4th RP brings by substantial reforms, especially in the technical pillar:

    • Shift of technical and safety rule-making from the national to the EU level;
    • Issuing of safety certificates and vehicle authorisations by the ERA;
    • Creation of a new ERTMS track-side approval procedure by the ERA;
    • Fees and charges levied by the ERA on applicants for its certification, authorisation and approval activities;
    • Reduction of national rules by the Member States;
    • Creation of new tools and processes by the ERA (IT portal, board of appeal, pool of experts, etc.).

⇒ Each of these individual reforms has a far-reaching impact on the rail sector (financial, operational, legal, procedural, etc.). In addition, some of these reforms will be delivered through the ‘fast-track’ instrument of delegated legislation (implementing and delegated acts), reducing considerably the time between the proposal and the adoption as well as the power of scrutiny by the co-legislators and the industry.

Why is the 4th Railway Package so particular ?

 

The 4th RP contains approximately 25 secondary legislative acts, especially in the technical pillar. This means that the Member States and its stakeholders will have to apply primary legislation (i.e. the Directive or Regulation) but also the secondary legislative acts, i.e. delegated and implementing acts. The EC (or rather its legal services) choses which type of act is the most suitable one.
Below a short distinction:

  • Delegated Acts: The power to draft and implement these acts is delegated from the European Parliament and the Council to the Commission. They are developed by the commission to supplement, amend or delete non-essential elements of a legislative act. The European Commission can opt to consult expert groups, but it is not obliged to do so. The EC can choose if it wants to submit the act to the Member States for voting, but it must submit it for adoption to the Council (Member States) and the European Parliament. The latter cannot amend the proposal for a delegated act, they can only adopt or reject it. The most recent example is the Delegated Act on TSIs, which was the first one to be adopted as a ‘delegated regulation’ in September 2017. This means that it applies immediately.
  • Implementing Acts: The responsibility for transposing directives into law usually rests with member states and their interpretation of the requirements. In certain cases when the national legislation must be the same across all member states an implementing act is drafted for member states by the EU for adoption by member states. In contrast to Delegated Acts, the European Commission has to seek input from and voting by the Member States in specific committees. The Council (Member States) and the European Parliament can ‘scrutinise’ the text but with the European Commission to modify the text. The most recent example is the implementing regulation on fees & charges, which is currently being prepared by all stakeholders.


⇒ The secondary acts have been introduced in 2009 to allow the European Commission to become more efficient in its rule-setting. This means that the decision-making process has shortened, and the flexibility of the European Commission has increased in proposing these acts.

⇒ As especially the technical pillar of the 4th RP contains the highest number of these these acts with > 90% of them currently under preparation, the rail sector has every interest to be closely involved with their preparation. 

The Interoperability Directive (EU) 2016/797

What is the Interoperability Directive?

 

1.This Directive establishes the conditions to be met to achieve interoperability within the Union rail system in a manner compatible with Directive (EU) 2016/798 in order to define an optimal level of technical harmonisation, to make it possible to facilitate, improve and develop rail transport services within the Union and with third countries and to contribute to the completion of the single European railway area and the progressive achievement of the internal market. Those conditions concern the design, construction, placing on the market, placing in service, upgrading, renewal, operation and maintenance of the parts of that system as well as the professional qualifications of, and health and safety conditions applying to, the staff who contribute to its operation and maintenance.

2.This Directive lays down the provisions relating to, for each subsystem, the interoperability constituents, the interfaces and procedures, and

How did EU interoperability legislation evolve?

 

Technical interoperability is at the core of virtually any reform of the EU railway sector. To create the single European railway area with smooth cross-border train operations, the EU decided to impose harmonisation of technical interfaces and subsystems in the form of technical specifications for Interoperability: Technical Specifications for Interoperability.

The first such Directive was adopted in 1996 with 1996/48/EC, which was amended 5 years later by 2001/16/EC, and again 3 years later by 2004/50/EC. These were amended 4 years later by recast directive 2008/57/EC, which received further amendments in 2009 by 2009/131/EC and 2011 by 2011/18/EU.


⇒ With each Directive, the EU extended the scope of interoperability and strengthened the role of the EU vs the Member States. However, the powers and the status of the ERA remained unchanged.

What is 2016/797 about?

 

Directive 2016/797 extends the scope of interoperability whilst introducing a new process for European vehicle authorisation and for ERTMS trackside approval. For that purpose, ERA has been given an enhanced role and is developing several new tools and processes, such as:

  • a One-Stop-Shop (OSS) which will serve as IT-portal for all stakeholders to submit their applications for vehicle authorisation;
  • a Board of Appeal (BoA) which will serve as body deciding on litigation cases;
  • databases (i.e. Register of infrastructure (RINF), Single Rules Database (SRD), among others.

What is the scope of 2016/797?

 

The Directive applies to:

  • the entire Union rail system;
  • ‘tram-trains’ as when they operate on national rail infrastructure;

The Directive does NOT apply to (unless Member States do not decide otherwise):

  • Local public transport systems (metros, trams and other light rail systems);
  • privately owned railway infrastructure (incl sidings);
  • local, historical or touristic infrastructure and vehicles;
  • light rail infrastructure occasionally used;
  • vehicles primarily used on light rail infrastructure.

What are the main changes?

 

The main changes in 2016/797 are summarised below:

ERA:

  • the Agency will issue vehicle authorisation and approve ERTMS trackside tenders;
  • more details can be found in the chapter on the ERA Regulation.

TSIs:

  • the cases for possible non-application of TSIs is reduced;
  • the EC published delegated acts defining the Agency’s mandate and objectives for the forthcoming TSI revisions starting in September 2017.

RUS/IMs:

  • the role of RUs and IMs in the technical route compatibility processes via the register of infrastructure (‘RINF’) is re-defined.

How will the new processes look like?

 

Directive 2016/797 defines the procedure for vehicle authorisation and ERTMS track-side approval:

  • the final procedure for vehicle authorisation and ERTMS track-side approval is still under discussion[1];
  • Directive 2016/797 foresees that all applications for national and international vehicle authorisations as well as for the approval of ERTMS track-side equipment tenders will have to be submitted to the ERA via its IT portal (One-Stop-Shop, OSS)[2];
  • the applicant can still choose the relevant NSA as authorising entity if the area of use is limited to one Member State;
  • the ERA can outsource the processing of the applications to individual experts via a pool of external experts (incl those of NSAs);
  • the recommendation of NSAs involved in the application procedure will have to be taken into consideration by the ERA with all approvals;
  • the ERA will charge fees & charges for the processing of the applications following a pre-defined calculation method;
  • in the case of a positive opinion, the ERA will grant the vehicle authorisation or the approval of the ERTMS track-side component tender to the applicant;
  • following the positive decision of the ERA, the NSA will then continue processing the ERTMS track-side equipment tendering.

 


[1]     For both procedures to work in practice, a so-called ‘pre-engagement phase’ (a sort of commitment on the date for submissions) has been designed but which can only be applied once the practical arrangements themselves have been agreed upon.

[2]     Directive 2016/797 stipulates that all applications, whether they are national or international, will have to be submitted and processed via the ERA IT tool. This will then also involve cases which are handled by national actors only (i.e. the NSA and the national applicant) for national vehicle authorisations. This will imply that NSAs review their processes.

 

Will there be a transition period?

 

Vehicle authorisations are amongst the lengthiest and costly processes in the railway sector with up to 2 years or more duration. With the new EU vehicle authorisation procedure to start on 16th of June 2019, the ERA proposes a 1-year shadow-running phase, starting on 16th of June 2018.

Furthermore, the practical details of the transition are still being discussed. These are of particularly importance for all pending applications with NSAs and their further processing by the ERA from 16th of June 2019 onwards. The ERA and the NSAs are currently discussing the practicalities for transferring applications and the acceptance and processing by ERA of those parts already assessed by the NSAs.

With regard to the transposition, Member States may consider extending the transposition of the directive by up to 1 year, by 16th June 2020.

In addition, ERA has to sign a cooperation agreement with each national safety authority (NSA).

Which role will NSAs have in the future?

 
  • The NSA will issue vehicle authorisations for single country applications (single Member State only) when selected by the applicant.;
  • For all other cases, the NSA role will be limited to the assessments for the defined area of use based on national rules (if any);
  • The same system of cooperation between the Agency and the NSA also exists for ERTMS track-side approvals.;
  • For this dual system to work, the ERA must have concluded a cooperation agreement with each NSA.

The future cooperation between NSAs and the ERA will require the cooperation agreements to be signed, audit tools to be approved and NSAs to agree with the usage conditions of ERA’s application tool (OSS), the appeal processes and the fees & charges related to authorisations and approvals.

How much will the new procedure costs?

 

The Interoperability Directive foresees that the ERA will charge for its services. These so-called “fees and charges” are currently under discussion between the EC DG MOVE, EC DG Budget, the ERA as well as the Member States (NSAs). It is worth noting that the ERA intends to become partially self-funding.

It is worth noting that the vehicle authorisation procedure already exists in the EU and for which fees & charges are levied by NSAs. However, the approval of ERTMS track-side equipment tenders is a new procedure. Therefore, IMs will have to prepare for a new procedure and costs as regards to ERTMS track-side equipment. So far 5 IMs have agreed to participate in so-called ‘learning cases’ launched by ERA in order to better define ERTMS track-side approval processes and thereby limiting their costs. However, the outcome of these cases will be too late for the intended legislative act on ERTMS track-side component approval which is to be adopted by May 2018.

What is the role of the Appeal Body?

 
  • The Interoperability Directive stipulates that the ERA and the NSAs take full responsibility for the authorisations they issue;
  • In the case of litigations related to a vehicle authorisation, the applicant shall refer its case to a so-called ‘Board of Appeal’ of the ERA;
  • This body will be composed of experts which are appointed by the Management Board of the ERA (Member States/NSAs, EC, ERA);
  • In the case of diverging views between the ERA, the NSAs and / or the applicant, the Board of Appeal shall provide an opinion;
  • The ERA will charge fees & charges for the opinion of the Board of Appeal to the plaintiff.

The ERA Appeal Body can overrule the opinion of a NSA, and thus overrule national interests;

The Executive Director of the ERA can overrule the Appeal Body;

Disclaimer: The final text will be adopted early 2018.

What are the open issues?

 

There are several open issues:

  • the EU has reduced the budget allocation for all EU agencies by 10%. This has an impact on available resources, the quality and quantity of vehicle authorisations to be processed, but also the future fees and charges to be applied by the ERA to the sector;
  • the EU is empowered to adopt implementing and delegated acts to change TSIs or vehicle authorisation processes. These ‘secondary acts’ follow a shorter timescale and a ‘limited’ consultation procedure. This means that changes could be more frequent, making the legal and technical framework less predictable;
  • the final details of the vehicle authorisation procedure must be adopted in November 2017 (implementation regulation on practical arrangements for vehicle authorisation) to allow for the preparation of the shadow running phase in mid-2018; 
  • Member States must have transposed Directive 2016/797 into national law to allow the sector to submit applications with the ERA. By December 2018, Member States must have communicated their date for the transition period;
  • the role of RINF in the route compatibility checks between RUs and IMs is considered by the GRB to be insufficient. The sector (CER, EIM, UNIFE, EPTTOLA, UIRR, FEDECRAIL) published a ‘RINF Vision Paper’ which has yet to be assessed by the EC and by ERA ;
  • national technical rules (NTRs) which have not been notified to the EC until 16th of June 2016 or do not comply with the new legislation and EU criteria will have to be deleted from the relevant register. Furthermore, national rules should not only be reduced but replaced by a harmonised European solution. The Single Rule Database tool which is due to contain all national rules after the cleaning up process is still to be created. This may create an unclear framework which rules apply and are in line with EU legislation;
  • current agreements of non-EU Member States (e.g. Switzerland, Norway and others) with EU Member States regulating vehicle authorisation and cross-acceptance procedures will become void and require these non-EU Member States to conclude an agreement directly with the ERA by June 2019.

What are the next steps?

 
  • 14-16/11/2017: Adoption of the implementing act on practical arrangements for vehicle authorisation;
  • 16/06/2018: Adoption of an implementing act regarding the technical and functional specifications for the European vehicle register (EVR);
  • 16/06/2018: ERA’s IT portal (OSS) to be completed to allow ERA to process authorisations and certifications in the shadow running phase;
  • 16/06/2018: Potential date for the start of the shadow running phase for vehicle authorisations;
  • 16/06/2019: ERA to issue vehicle authorisations in those Member States not having asked for an extension and which have transposed the Interoperability Directive into national law on that date;
  • 16/06/2020: ERA to issue vehicle authorisations in all MSs which have transposed 2016/797 into national law by that date.;

The Safety Directive (EU) 2016/798

What is the Safety Directive?

 

This Directive lays down provisions to ensure the development and improvement of the safety of the Union rail system and improved access to the market for rail transport services by:

  1. harmonising the regulatory structure in the Member States;
  2. defining responsibilities between the actors in the Union rail system;
  3. developing common safety targets (‘CSTs’) and common safety methods (‘CSMs’) with a view to gradually removing the need for national rules;
  4. setting out the principles for issuing, renewing, amending and restricting or revoking safety certificates and authorisations;
  5. requiring the establishment, for each Member State, of a national safety authority and an accident and incident investigating body; and
  6. defining common principles for the management, regulation and supervision of railway safety.

How did EU safety legislation evolve?

 

In 2004, the Railway Safety Directive 2004/49/EC was adopted to create a common European regulatory framework for safety, i.e. the tasks and responsibilities related to a safety management system (SMS).

The Directive introduced common safety methods (CSMs), developed by ERA to provide a common approach to assess the level of safety and performance of all actors (RUs, IMs, wagon keepers, etc.) at EU level and in Member States. It introduced a certification scheme for entities in charge of maintenance (ECM) of freight wagons and required Member States to develop a system of national safety rules.

Directive 2004/49/EC was complemented by Directive 2008/57/EC (interoperability) and 2008/68/EC (inland transport of dangerous goods).

The EC adopted Regulation 445/2011/EU introducing a system of certification of entities in charge of maintenance for freight wagons.

⇒ With each Directive, the EU extended the scope of safety and strengthened the role of the EU vs the Member States. However, the powers and the status of the ERA as such remained unchanged.

What is 2016/798 about?

 

Directive 2016/798 extends the scope of safety whilst centralising supervision on EU level. This is achieved by making ERA the single body for granting single safety certificates and by creating new bodies, tools and processes with the ERA to allow it to exercise its new mandate.

What is the scope of 2016/798?

 

The Directive applies to:

  • the entire Union rail system.;
  • as well as to ‘tram-trains’ as so far as they operate on national rail infrastructure.

The Directive does NOT apply to (unless Member States decide otherwise):

  • local public transport systems (metros, trams and other light rail systems);
  • Member States may exclude privately owned railway infrastructure (incl sidings), local, historical or touristic infrastructure and vehicles, light rail infrastructure occasionally used, vehicles primarily used on light rail infrastructure.

What are the main changes?

 

The main changes in 2016/798 are summarised below:

ERA:

  • the Agency will issue the single safety certificate;
  • introduction of a European common occurrence reporting (COR) instrument;
  • clarification of the role and responsibilities of the railway actors;
  • the supervision role is maintained by the national safety authorities;
  • More details can be found in the chapter on the ERA Regulation.

RUs/IMs:

  • Directive 2016/798 states clearly that “each actor is responsible for its own part in the railway system”, but the need for corporation between RUs and IMs increases due to the number of interfaces that need to be addressed to ensure a safe railway;.

Common Occurrence Reporting (COR):

  • The discussions on the common occurrence reporting comprising SAIT (Safety Alerts IT Tool) and SMD (Safety Management Data) are ongoing. A SAIT system was launched by ERA in September 2016 and is available for use, this system will also be developed further. For the SMD system, consultation has taken place over the past year and the options of a tool are currently being defined by ERA. A final solution has not yet been found for the interface between European and national occurrence reporting.

How will the future processes look like?

 
  • The implementing act on practical arrangements for single safety certificates was adopted on 7th of July 2017 by the Member States and will have to be implemented in practice with the beginning of the transition period;
  • The Implementing Act on Practical Arrangement foresees that all applications for national and international safety certifications will have to be submitted to the ERA via its IT portal (One-Stop Shop -OSS) ;
  • The ERA will be responsible for multi-country safety certifications (the single safety certificate) and could be responsible for single country safety certificates if the applicant choses so;
  • The ERA can outsource the processing of the applications to individual experts via a pool of external experts (incl those of NSAs);
  • The recommendation of NSAs involved in the application procedure will have to be taken into consideration by the ERA with all approvals;
  • The ERA will charge fees & charges for the processing of the applications for safety certification following a pre-defined calculation method;
  • In the case of a positive opinion, the ERA will grant the safety certification to the applicant and allocates a so-called EIN (European Identification Number).

Which role will NSAs have in the future?

 
  • The NSAs will issue safety certifications for single country applications (single Member State only) if selected by the applicant;
  • The concrete role of the NSAs in the safety certification procedure consists in checking the application as regards their respective national part; For this system to work, the ERA must have concluded a cooperation contract with each NSA; 
  • NSAs will keep the supervision role, which consists in overseeing the continued compliance with all legal obligations by Rus and IMs to use a SMS (safety management system), line with the CSM developed by the ERA;
  • NSAs will have to exchange information and coordinate their supervision activities for international RU operations with the Agency;
  • NSAs will also have to exchange information with the ERA as regards their supervision activities
  • NSAs will also have to report to the ERA within the scope of the new mandate of the ERA to monitor and audit them (as well as other bodies, such as ECMs, NoBos, etc.). The final audit conditions to be applied by ERA to NSAs are still under discussion.

⇒ The future cooperation between NSAs and the ERA will require the cooperation agreements, audit tools to be approved and NSAs to agree with the usage conditions of ERA’s application tool (OSS), the appeal processes and the fees & charges related to certifications.

Will there be a transition period?

 
  • With the new EU safety certification procedure to start on 16th of June 2019, the ERA proposes a 1-year shadow-running phase, starting on 16th of June 2018;
  • With regards to the transposition, Member States may consider postponing the transposition of the directive by up to 1 year, by 16th of June 2020; 
  • In addition, ERA has to sign a cooperation agreement with each national safety authority (NSA).

How much will the new procedure cost?

 
  • The Safety Directive foresees that the ERA will charge for its services, like for vehicle authorisations and approvals for ERTMS track-side equipment. These so-called “fees and charges” are currently under discussion between the EC DG MOVE, EC DG Budget, the ERA as well as the Member States (NSAs). It is worth noting that the ERA intends to become partially self-funding;
  • A first assessment conducted by an external consultant for the EC in 2016 into the fees and charges of NSAs for safety certifications revealed substantial varieties which prevented a benchmark to be established.

⇒ Applicants will have to get prepared for a new procedure with so far undefined costs (time, experts, ERA, etc.).

What is the role of the Appeal Body?

 
  • The Safety Directive stipulates that the ERA and the NSAs take full responsibility for the certifications they issue;
  • In the case of litigations related to a safety certification, the applicant shall refer its case to a so-called ‘Board of Appeal’ of the ERA;
  • This body will be composed of experts which are appointed by the Management Board of the ERA (Member States/NSAs, EC, ERA);
  • In the case of diverging views between the ERA, the NSAs and / or the applicant, the Board of Appeal shall provide an opinion;
  • The ERA will charge fees & charges for the opinion of the Board of Appeal to the plaintiff.

⇒ The ERA Board of Appeal can overrule the opinion of a NSA and thus overrule national interests.

⇒ The Executive Director of the ERA can overrule the Appeal Body.

⇒ Disclaimer: The final text will be adopted early 2018

What are the open issues?

 

There are several open issues:

  • The EU has reduced the budget allocation for all EU agencies by 10%. This has an impact on ERA in terms of available resources, the quality and quantity of safety certificates to be processed but also the future fees and charges to be applied by the ERA to the sector;
  • The EU is empowered to adopt implementing and delegated acts to change TSIs, CSMs or safety certification processes. This ‘secondary acts’ follows a shorter timescale and a ‘limited’ consultation procedure. This means that changes may be more frequent, making the legal and technical framework less predictable;
  • Member States must have agreed on the date for the transition period;
  • Member States must have transposed Directive 2016/798 into national law to allow the sector to submit applications for safety certification with the ERA;
  • National safety rules (NSRs) which have not been included in the revision of TSI OPE or notified to the EC until 16th of June 2016 or which do not comply with the new legislation and EU criteria will have to be deleted from the relevant register. Furthermore, national rules should not only be reduced but replaced by a harmonised European solution. The Single Rule Database tool which is due to contain all national rules after the cleaning up process is still to be created. This may create an unclear framework which rules apply and are in line with EU legislation;
  • The ERA is developing a common occurrence reporting system for the railway sector to exchange data on incidents which may have an impact on safety. Development and use are currently being discussed by all stakeholders;
  • Current agreements of non-EU Member States (e.g. Switzerland, Norway, others) with EU Member States regulating safety certification will become void and require these non-EU Member States to conclude an agreement directly with the ERA by June 2019.

What are the next steps?

 
  • 16/06/2018: ERA IT portal (OSS) to be completed to allow ERA to process safety certifications in the transition phase;
  • 16/06/2018: Potential date for the start of the shadow running for safety certifications;
  • 16/06/2019: ERA to issue safety certificates in those MSs not having asked the EC and the ERA for an extension of the right to issue safety certifications by 1 year and which have transposed the Safety Directive into national law on that date;
  • 16/06/2020: ERA to issue safety certificates in all MSs which have transposed 2016/797 into national law by that date.

The ERA Regulation (EU) 2016/796

What is the ERA Regulation?

 
  1. This Regulation establishes a European Union Agency for Railways (‘the Agency’).
  2. This Regulation provides for: (a) the establishment and tasks of the Agency; (b) the tasks of the Member States in the context of this Regulation.
  3. This Regulation supports the establishment of the single European railway area, and in particular the objectives relating to: (a) interoperability within the Union rail system provided for in Directive (EU) 2016/797; (b) safety of the Union rail system provided for in Directive (EU) 2016/798; (c) the certification of train drivers provided for in Directive 2007/59/EC of the European Parliament and of the Council

How did the EU legislation for the ERA evolve?

 

The European Railway Agency (ERA) was set up by means of Regulation (EC) no 881/2004 in April 2004 with the aim to improve interoperability and safety of the European rail network. Its main tasks have been to harmonise, register and monitor TSIs across the entire European rail network and to set common safety targets for the European railways.

At that time, ERA had no decision-making powers. Its only role consisted in supporting the EC with technical assistance in the fields of interoperability and safety.

In 2006, the EC adopted a decision concerning mandates to ERA for developing TSIs under Directive 2001/16/EC and common safety methods and common harmonised requirements for safety certification under Directive 2004/49/EC.

In 2007, the EC adopted a decision concerning a framework mandate to ERA for the performance or certain activities under Directives 96/48/EC and 2001/16/EC.

Regulation (EC) no 1335/2008 assigned new tasks to the Agency in response to the changes made to the Railway Safety Directive 2004/49/EC and to the Directive on the interoperability of the rail system 2008/57/EC.

In 2010, the EC adopted a decision concerning a mandate to ERA to develop and review TSIs with a view to extending their scope to the whole rail system in the EU.

⇒ With each legal act, the EU extended the scope of safety and strengthened the role of the EU vs the Member States. However, the powers and the status of the ERA remained unchanged.

What is 2016/796 about?

 
  • Regulation 2016/796 extends the mandate and tasks of the ERA in line with the scope of Directive 2016/797 (Interoperability Directive) and Directive 2016/798 (Safety Directive). De jure the Agency becomes an authority responsible for issuing authorisations for the placing on the market of railway vehicles and vehicle types, for issuing single safety certificates for railway undertakings in the European Union and for granting ERTMS trackside approval. With this new Regulation the Agency has become the ERTMS system authority;
  • The Agency was also given the mandate to reduce the number of the national rules;

What are the main changes?

 

The main changes in 2016/796 are summarised below: ERA:

  • the ERA is a legal body on its own;
  • the ERA is the only body to issue EU-wide vehicle authorisations, approvals of ERTMS track-side equipment tenders and safety certificates;
  • the ERA invoices fees & charges for its authorisations, approvals and certificates as well as for the support tools (IT tools, etc.);
  • the ERA has become the system authority for all registers and databases related to 2016/797, 2016/798 and 2007/59/EC ) and for ERTMS.;
  • the ERA can issue opinions, recommendations, technical documents, reports and guidelines;
  • the ERA has the mandate to supervise and audit National Safety Authorities (NSAs); ECMs (entities in charge of maintenance), NoBos (notified bodies), as well as to monitor RU’s and IM’s SMS;
  • the role and powers of the ERA to issue and apply EU rules as well as to reject national rules have been strengthened;
  • the ERA can conclude agreements with non-EU countries (cooperation agreements, etc.);
  • The ERA will be involved in R&D.

Member States:

  • the powers of the Member States to issue and apply national technical and safety rules are reduced whilst those of the ERA have been strengthened.

Registers:

  • the role of the infrastructure register (‘RINF’) has been strengthened and will be used for pre-operational route compatibility checks;
  • the ERA will set up a new register for changes and change requests related to the telematic TSIs (TAF and TAP);
  • the European vehicle register (EVR) must include information relevant for people with reduced mobility (PRM) and will incorporate all national vehicle registers;
  • the ERA will have to develop a single rules database (SRD) which will replace several existing registers. (Reference Document Database (RDD) and Notification IT (NOTIF-IT)).

Other IT tools:

  • the Agency developed the One-Stop Shop tool as electronic portal to submit applications for safety certification, vehicle authorisation and ERTMS trackside approval;
  • the ERA developed a new ‘instrument’ for the exchange of safety-related information between the different actors and bodies (COR SAIT and COR SMD).

How will the future processes look like?

 

The relevant processes related to vehicle authorisations, approvals of ERTMS track-side equipment tenders and safety certificates are described in the previous chapters.

Will there be a transition period?

 

No, as a Regulation applies from the date of its entering into force.

How much will the new procedure cost?

 
  • The ERA will apply fees and charges for vehicle authorisations, approvals of ERTMS track-side equipment tenders and safety certificates issued by its services;
  • Furthermore, the ERA is expected to apply indirect costs related to applications, such as the usage and maintenance costs of the IT tool (OSS).

⇒ The ERA fees & charges are a new financial instrument of the ERA which will determine the costs for all applicants for vehicle authorisations, approvals of ERTMS tracks-side equipment tenders and safety certificates.

Which role will NSAs have in the future?

 
  • The ERA needs to conclude cooperation agreements with the respective NSAs in the EU and non-EU countries;
  • These cooperation agreements also require the NSAs to accept the future ERA audit and monitoring tools;
  • NSAs will have to adapt their respective systems and processes, especially about the processing of national applications which will have to be processed through the ERA IT portal.

What is the role of the Appeal Body?

 
  • In the case of litigations related to a safety certification, vehicle authorisation or ERTMS trackside approval, the applicant shall refer its case to a so-called ‘Board of Appeal’ of the ERA;
  • This body will be composed of experts which are appointed by the Management Board of the ERA (Member States/NSAs, EC, ERA);
  • In the case of diverging views between the ERA, the NSAs and / or the applicant, the Board of Appeal shall provide an opinion;
  • The ERA will charge fees & charges for the opinion of the Board of Appeal to the plaintiff.

⇒ The ERA Board of Appeal can overrule the opinion of a NSA and thus overrule national interests.

⇒ The Executive Director of the ERA can overrule the Appeal Body.

⇒ Disclaimer: The final text will be adopted early 2018

What are the open issues?

 

There are several open issues which have been outlined in the previous chapter already. The main concerns / issues are:

  • insufficient budget allocation for ERA which may have an impact on the quality and quantity of all authorisations, approvals and certificates to be used by the ERA;
  • impact of the budget allocation on the future ERA fees and charges related to the above;
  • the cooperation of the ERA with the NSAs in these processes (time, double work, competence, redundancies, re-assessments, etc.);
  • the timely and smooth delivery of various generic processes and IT tools by the ERA;
  • the new tools developed by the ERA (i.e. common occurrence reporting tool, etc.);
  • the impact of the ERA on national rules;
  • the cooperation agreements of the ERA with non-EU Member States.

What are the next steps?

 
  • 16/06/2018: ERA IT portal (OSS) to be completed for all certification and authorisation processes;
  • 16/06/2018: Potential date for the start of the shadow running for vehicle authorisation, approvals of ERTMS track-side component tenders and safety certifications;
  • 16/06/2019: ERA to issue vehicle authorisations, approvals of ERTMS track-side component tenders and safety certificates in those MSs which have transposed the Interoperability and the Safety Directive into national law on that date; -
  • 16/06/2020: ERA to issue vehicle authorisations, approvals of ERTMS track-side component tenders and safety certificates in all MSs which have asked for 1 additional transitional year and have transposed 2016/797 and 2016/798 into national law on that date;
  • 16/06/2021: European Vehicle Register (EVR) expected to be operational .