Explanatory Memorandum to COM(2002)21 - Safety on the EC's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2002)21 - Safety on the EC's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive ... |
|---|---|
| source | COM(2002)21  |
| date | 23-01-2002 |
Contents
- 1.1. The EU regulatory framework
- 1.2. The Commission's study
- 1.3. The safety level of the European rail system
- 1.4. The safety directive
- 2. The safety regulatory structure
- 2.1. Responsibilities of the actors
- 2.2. The national safety authorities
- 2.3. Harmonisation of national safety rules
- 3. Removing obstacles to a functioning single market
- 3.1. Safety certification
- 3.2. Common safety targets, common safety methods
- 4. Application of due process in railway regulation
- 4.1. Availability of information on regulation and processes
- 4.2. Common safety indicators
- 4.3. Annual reports
- 5. Investigation of accidents and incidents
- 5.1. The current state of the art
- 5.2. Two types of investigation
- 5.3. An independent investigating body
- 5.4. Defining the mandatory domain
- 6. Links with other proposals
- 6.1. Interoperability and safety
- 6.2. The European Rail Agency
- 6.3. Consequential changes in existing directives
- 7. Justification of the proposal
- Do the intended activities fall within the exclusive competence of the Community or within a competence that is shared with the Member States*
- Comparatively speaking is the Community or the Member States approach more efficient*
- What practical added value do the intended Community activities provide and what would be the cost of inaction*
- What forms of action is the Community able to take*
- Is a uniform body of regulations needed or would a directive laying down general aims and transferring implementation to the Member States be sufficient*
- 8. Comments on the articles
- 8.1. Chapter I
- 8.1.1. Article 2
- 8.1.2. Article 3
- 8.2. Chapter II
- 8.2.1. Article 4
- 8.2.2. Article 5
- 8.2.3. Article 6
- 8.2.4. Articles 7 and 8
- 8.2.5. Article 9
- 8.3. Chapter III
- 8.3.1. Article 10
- 8.3.2. Article 11
- 8.3.3. Article 12
- 8.3.4. Article 13
- 8.3.5. Article 14
- 8.4. Chapter IV
- 8.4.1. Articles 15 and 16
- 8.5. Chapter V
- 8.5.1. Article 18
- 8.5.2. Article 19
- 8.5.3. Article 20
- 8.5.4. Articles 21 and 22
- 8.5.5. Article 22
- 8.6. Chapters VI and VII
- 8.6.1. Articles 25-26
- 8.7. Chapter VII
- 8.7.1. Articles 27-28
- 9. Financial impact
Since the first steps towards a single market for rail transport services were taken with Directive 91/440/EEC it has been evident that differences in railway safety regulation and different national safety requirements are principal reasons behind the fact that international rail transport still is mainly managed in the old way, by national operators handing over trains and responsibilities at the borders. Railway safety must be tackled more thoroughly on the European level.
Through the directives on interoperability, 96/48/EC (on the high-speed rail system) and 2001/16/EC (on the conventional rail system), essential requirements for safety on subsystem level have been defined and further specified by technical specifications for interoperability (TSI). Notified bodies will be used to assess conformity or suitability for use of the interoperability constituents and for appraising the procedure for verification of the subsystems.
The TSIs are, however, not applicable to the existing railway equipment and do not cover overall requirements on safety and the managerial and regulatory aspects. The assessment and verification procedures have been carried out in a variety of ways for existing subsystems, making it difficult to achieve mutual acceptance for existing subsystems between Member States and their rail networks.
Directives 95/18/EC, on licensing, and 95/19/EC, which among other issues deal with safety certification of railway undertakings, made very little to improve the situation. They provide for that an EU licence should be issued and that it could be combined with national safety certificates covering the different territories of operation by a railway undertaking. However, there are few examples of a railway undertaking carrying out international services under the provisions of the directives.
The infrastructure package, Directives 2001/12/EC, 2001/13/EC and 2001/14/EC, introduced only minor adjustments to the safety regulatory framework by obliging the Member States to take responsibility for laying down and enforcing safety rules and standards and for ensuring that accidents would be investigated.
In the Commission's White Paper in 1996 i, with a strategy for revitalising the Community's railways, safety was noted as one of the subjects that the Commission needed to investigate further. It stated that the Community should work towards the development of common safety appraisal techniques and a probability based safety regime.
When agreement was reached by the Council on the infrastructure package in December 1999 the Commission consequently announced its intention to complete the legislative framework with a directive on railway safety. Preparatory work had already started in March 1999 with a study i on railway safety regulations and standards, which was completed in February 2000.
The key recommendation of the study was that EU policy should be designed to steer European rail safety regulation progressively towards due process within which procedures:
- are documented;
- make relevant information available to all parties; and provide for all affected parties to be heard;
- are applied consistently, with specified substantive (as well as procedural) decision rules;
- give reasons for decisions;
- are subject to independent appeal; and
- are preferably subject to staged timetables.
Other recommendations aimed at: providing information on safety performance and accident data; steering railway safety regulation towards stronger analysis of costs and benefits; provision of due process and separation of powers in Member States; strengthening and coordination of the European level bodies and the creation of a European Railway Agency.
The study showed that there are currently different national approaches to railway safety, different targets and different methods applied. Technical standards as well as requirements on staff and management organisation differ from Member State to Member State and the process to approve rolling stock or certify staff or railway undertakings has not been adapted to the needs of an integrated European rail system. Even though there are many safety requirements that emanates from technical and operational differences of the networks there is also in the sector a lack of understanding of the different national approaches and sometimes mutual suspicion that have its origins in lack of knowledge and absence of transparency.
The restructuring of European railways has led to the separation of functions between infrastructure managers and railway undertakings, a process that is still evolving. Many regulatory functions have been transferred from the railway actors themselves to public authorities, bringing rapid change also to the way safety is regulated and managed in the sector. During this transition it is essential that the roles of the different actors be clearly defined and that responsibilities for managing, regulating and enforcing safety are redistributed in a similar and harmonised way in Europe. The opening of the market may not be carried out at the expense of safety, neither should safety be used as an excuse for maintaining status quo.
Safety performance of the rail transport mode in Europe is generally very good, in particular in comparison with its main competitor, road transport. Introduction of centralised traffic control, automatic train protection systems, more crashworthy vehicles and modern safety management has reduced fatality rates substantially during the last 30 years. The number of passengers killed in accidents average on around 100 a year in the EU Member States and total fatalities (mainly trespassers and car occupants on level crossings) are about 800-900, while on the other hand more than 40.000 people are killed on the roads each year.
Railway accidents happen however and whenever they occur they reveal weaknesses in safety and illustrate further risk reduction potentials. The high impact on public opinion of multiple-fatality rail crashes is evident and pictures from the accident scenes of Eschede (Germany 1998) and Ladbroke Grove (Paddington Station, United Kingdom 1999) remind us of the possible catastrophic consequences of human errors or technical failures in rail transport. In a society where such accidents are less and less tolerated efforts should be made to further reduce risks without endangering the competitiveness of the rail mode. With the emerging single market for rail transport services and supply of railway equipment such efforts need to be co-ordinated and harmonised on the European level.
The proposed directive on the regulation of safety and investigation of accidents and incidents on the Community's railways addresses four main problem areas related to the development of safe railways in Europe: harmonisation of the safety regulatory structure and the content of safety rules; remaining obstacles to further market opening; the provision of transparency and information on safety; and investigation of serious accidents and incidents.
The directive aims at completing the regulatory structure for a single European rail system and is linked to other proposals in this same package, in particular the proposal to amend the directives on interoperability and the proposal to create a European Rail Agency. It applies a gradual approach to harmonisation and the development of common principles, taking into account the great differences that exist between the Member States.
The migration from national rail networks to a single European rail system will require time and a significant amount of effort from all those involved and interested in the development. With synchronous progress of market and safety performance the rail transport mode will be strengthened and given the possibility to exploit its inherent advantages on the transport market.
The first and most important task in the evolving restructuring of European railways is to modernise and harmonise the safety regulatory structure and the content of safety rules in the Member States and on the European level. This is to ensure that responsibilities are defined and distributed in a common manner and that safety is ensured through the restructuring process.
The main concern raised by the safety professionals of the sector is that the separation of infrastructure management from rail traffic operations will bring obscurity and confusion into safety management of the railway system, bearing in mind its integrated character. A single entity or company will no longer have full and undivided responsibility for safety in the restructured railway sector. It is therefore of the utmost importance to make a clear distinction between the operative responsibilities of the infrastructure managers and the railway undertakings on one side and the regulatory and supervisory responsibility of the Member State safety authorities on the other. The safety regulator may not play an operative role and thus deprive the actors of their responsibilities.
Experience from Member States applying full institutional separation between infrastructure management and transport operations has shown that it is possible to distribute these operational responsibilities between the parties without endangering the overall safety of the system. In this respect the railway system must also draw on the experiences by other transport modes that operate under rigorous safety requirements, such as aviation. No particular airport or national carrier has the overall responsibility for aviation safety in a Member State, but all actors must fulfil the safety requirements and cooperate within the given regulatory framework. It is the safety authority that grants access to the system.
Infrastructure managers must provide a safe infrastructure and, where applicable, control the movements of train through the signalling and control command system, implementing a safety management system to control risks and applying rules and regulations laid down by the relevant authorities. Railway undertakings must operate on the network under the signalling and control command system operated by the infrastructure manager who also in other aspects should coordinate their activities. They shall implement the safety management system to control risks and apply rules and regulations.
The directive states that infrastructure managers and railway undertakings have the full responsibility for the safe operation of their respective part of the system and for the control of risks that they create, with regards to users, customers and third parties. This includes also the supply of material or services provided for by manufacturers, contractors or assessment bodies. The safety management system of any infrastructure manager or railway undertaking must provide for the control of risks created by contractors or the introduction of new material. Suppliers and assessment bodies bear responsibility for their products or service under normal liability rules vis-à-vis the infrastructure manager or the railway undertaking, as regulated under national law or in contracts.
The directive provides for the creation of authorities in the Member States with responsibility to regulate and supervise safety and for their coordination on the European level. A common minimum set of tasks for these authorities is outlined.
The directives currently in force allow for a variety of bodies dealing with safety regulation. In many Member States these functions or some of them have been attributed to the infrastructure manager, for example the granting of safety certificates. The infrastructure manager should, however, according to the main ideas established by Directive 2001/14/EC, be set up with responsibility for offering and allocating capacity on the network and maintaining and developing the infrastructure. This is not in the long run compatible with the execution of regulatory authority for safety. Fair and transparent regulation requires equal treatment of all actors in the sector under a public authority to avoid that safety costs and risk control responsibilities are levied on railway undertakings in an undue way.
In order to facilitate the coordination of safety regulation on the European level it is necessary to establish harmonised structures in all Member States. Currently the interoperability directives define it as a Member State responsibility to authorise the placing into service of the subsystems of the trans-European rail networks and the supervision of their compliance with the essential requirements. They shall also supervise that interoperability constituents meet the essential requirements.
This directive goes one step further in attributing these tasks to the safety authorities, although the tasks do involve other essential requirements on the subsystems and interoperability constituents than those related to safety. For the same reason it is important to concentrate all crucial safety regulatory functions, such as adoption of legally binding safety rules, to one body. There is nothing in the directive preventing the Member States from combining the safety regulatory tasks with the market regulation as provided for in Directive 2001/14/EC, Article 30 or with other authorities involved in railway regulation.
It should be noted that the proposed directive does not regulate how safety regulatory provisions are developed. Even if the safety authority shall be responsible for the formal decisions, the development of safety rules, for example, should well involve the different actors of the sector and their professional organisations. Infrastructure managers could play a role for the preparation of safety certification, in particular concerning route acceptance checks for rolling stock.
The authorities established, and other bodies currently carrying out the safety regulatory tasks, apply a variety of methods for inspecting and assessing conformity with safety requirements. They range from detailed technical inspections by field inspectors to system inspections and audits, in many cases by the use of external auditors. When introducing a European approach to railway safety it will be increasingly important to reach a common understanding of how inspections should be carried out, and to what extent, to facilitate trust and mutual recognition of results between the safety authorities.
By applying the gradual approach the directive defines procedures for the development of common inspection and assessment methods, common safety methods (CSM).
Safety rules and standards - such as operating rules, signalling rules, staff requirements, technical requirements on rolling stock and fixed installations - have developed mainly from national sources. Based on technical differences - but sometimes also on different traditions in rolling stock design, safety philosophy or worker protection regulations - the national rules impose barriers on the road to a single European rail system. Through the provisions of the directives on interoperability a harmonisation process have been initiated. These directives do however not apply to the full scope of national safety rules and the transition period to complete interoperability will in many cases cover decades.
Freight wagons and passenger carriages have been designed to operate cross-border traffic according to rules laid down by the International Union of Railways (UIC) and the corresponding RIV and RIC regulations. In other fields the UIC has issued non-binding standards through its system of normative leaflets. The main body of the safety regulation has however remained a matter for the Member State or the state owned monopoly railway company, given that the normal mode of cooperation between these railway companies was to hand over wagons and carriages at the border-crossing, but letting locomotives and train crews operate only on the home country network.
It is thus necessary to overcome these differences in national rules and, complementary to the interoperability directives, provide for harmonisation during the transition period before all relevant TSI have been adopted and implemented. In any case the development of new national rules, or amendment of old ones, should be carried out in a process that takes into account the need for harmonisation on Community level.
The directive establishes a mechanism for migration towards common safety rules by a notification procedure, which requires European acceptance of new or amended national safety rules.
The second problem addressed by the directive is the removal of barriers to further market opening and the creation of a single European rail transport market. The safety certificate, granted to the railway undertaking for operation on a specific network, is still recognised as the means to achieve access to infrastructure. Experience from the implementation of the earlier EU directives show, however, that it is a difficult and time-consuming procedure to obtain a safety certificate for operation on a foreign network. The difficulties are often seen as insurmountable, shown by the fact that most international operations are still pursued under the old cooperative mode, even by newcomers on the market.
The safety certificate as outlined in the current directives consists of different parts: certification of the railway undertakings internal organisation; its commitment to adhere to national rules for the operation; the certification of its rolling stock; and the certification of the staff used in the operation.
In this directive the concept is further developed by introducing common requirements for and common elements of a safety management system that must be implemented by all railway undertakings. The safety management system must also be established by the infrastructure managers in line with the general concept of the directive. The directive provides for that once the safety management system of a railway undertaking is established and certified in one Member State it shall not be subject to renewed certification in other Member States. It will have Community validity for the type of operation it covers. The European Rail Agency will keep a public record of all such safety certificates.
In addition the railway undertaking would still need to declare its intention to adhere to national rules and be granted an acceptance of the rolling stock and staff used for each of the networks it intends to operate on. These parts are still mainly subject to national rules, but the safety authorities are obliged to cooperate when they issue safety certificates for railway undertakings using international train paths.
The directive obliges the Member States to ensure that training facilities and certification of staff are available to undertakings planning to take up rail transport services. It defines a procedure for mutual acceptance and certification of rolling stock that has been certified in at least one Member State.
The concept of different national safety certificates is, however, still and impediment to the development of a single European rail system. Ultimately there should be one single Community certificate subject to recognition by all Member States. The directive imposes on the Agency to develop a migration strategy to reach this goal.
One concern raised during the work of the Member State Committee on the TSI for interoperability is that there is no common understanding of the safety levels that should be attained by the European rail system. This can give rise to suspicion and might be used as an argument for not accepting railway undertakings or railway equipment coming from another Member State. Some of the TSI may define a level of safety that must be contained by the relevant subsystem, for example the signalling and control command system, but the interoperability process do not define safety levels for the system as a whole. The Committee has however come to the agreement that the present safety level, although not quantified and known in detail, is sufficient.
For the creation of the single European rail transport market it is therefore important to increase confidence between actors on the market and between Member States. For that purpose the directive introduces a mechanism to adopt common minimum safety targets (CST) expressed in risk acceptance criteria for individuals and the society. Different targets could be valid for different parts of the system, such as the high-speed system, the conventional rail system or lines dedicated for freight traffic.
The common safety methods (CSM) will also be developed to assess if the targets are met.
The third problem area addressed by the directive concerns transparency, information and the application of due process in national railway regulation.
The world of the old state owned monopoly railways was from many aspects a closed world. It was mainly self-regulatory and there was no real need to give information to the public on safety and to apply transparent decision rules. Development of operating rules, acceptance of new material and certification of staff were mainly in-house processes. With an open market and regulation by public authorities the requirements on the rail sector will increase. It must develop in the same direction as other modes of transport.
The directive introduces common principles for decisions by the railway authorities and harmonises them on the European level. It requires public availability of rules, regulations and standards, stages timetables and makes mandatory provisions for actors to be allowed to appeal against all decisions. It stipulates that the safety authority must be independent in its organisation and decision-making from infrastructure managers and railway undertakings.
Information on the safety performance of railways is scarce. It is not normally published in the annual reports of the railway companies and only some Member States publish detailed statistics on accidents. The UIC collects accident data among its member railway companies and publishes part of them. However, given the voluntary character and that the statistics only cover UIC members, these accident statistics have grown less reliable, as have all other European railway statistics based on UIC figures.
In February 2001 the Commission submitted a proposal for a regulation of the European Parliament and the Council on rail transport statistics i. The regulation provides for the submission of accident data by the Member States, which will render it possible to have an overall estimation of the development of safety on the railways and to allow modal comparisons. Indicators on accidents, required by this directive, have been outlined to coincide with data required by the proposed regulation. They will be collected according to the procedures laid down in the proposed regulation.
Accident data are anyway blunt instruments when safety on the railways shall be assessed and when proactive measures are considered. Serious accidents on the railways are rare, but have a huge impact on the perception of safety. If possible, risks should be acted upon by proactive measures - assessing precursors as more useful safety indicators. The directive lists some indicators that are known to be used in Member States for assessment of safety performance, such as signals passed at danger, broken rails and broken wheels. They relate to the activities of both infrastructure managers and railway undertakings. Other indicators that can be used for the follow-up and monitoring of rail safety are indicators related to the standard of the network, to the functioning of the safety management system and to costs.
Common safety indicators (CSI) as described above are laid down by the directive but need to be further developed through the committee procedure. To make them globally useful they must be based on common definitions, including where possible standard statistical definitions, and common calculation methods. The indicators will render it possible to monitor the development of railway safety in the Member States and on Community level and facilitate the assessment of the safety level according to the common safety targets.
Railway undertakings and infrastructure managers will be obliged to submit annual reports on the development of safety to their national safety authority which in its turn must publish a report each year and make it available to the European Rail Agency. The European rail Agency will make information available on the European level.
This transparency will further open up the closed structures and enable all actors to share experience and gain confidence.
The fourth area addressed by the directive is investigation of accidents and incidents.
It has shown that there is a great variety in Member State legislation on accident investigations. In many cases accidents are still investigated by the national state railway, or by the judicial authorities such as police or prosecutors, whereas in some Member States independent accident investigation bodies have been set up.
Influenced by legislation for accident investigation in aviation, provided for on Community level by Directive 94/56/EC, many Member States move towards independent accident investigation also for other transport modes and, in some cases, towards the creation of multi-modal investigation boards, modelled after National Transportation Safety Board (NTSB) in the USA.
Serious rail accidents have a huge impact on public opinion and it requires in increasing degree information from independent sources. The creation of a single market for rail transport and railway equipment renders it in addition more important to share information and learn lessons from accidents and incidents Europe-wide. Technical failures and operational and managerial deficiencies could be more easily detected and avoided if information would be available and spread within the sector.
The safety investigation aims at establishing root causes to avoid future occurrences, whereas the police investigation (judicial inquiry) aims at finding the person responsible for a criminal offence, if there is one. If no one is prosecuted the police report will normally not be made public. The two types of investigation deal with different aspects of the accident, apply different methodologies and require different skills by their investigators. If they are not kept apart the appropriate lessons for safety will never be learned. To achieve this Member States must provide for that the police investigation will not hamper or delay the safety investigation and that all necessary information is shared.
The involved parties and persons must be encouraged to submit information and evidence to the safety investigation without having to fear that their testimony will be used against them. For that reason the sole purpose of the investigation should be to find the causes of the accident or incident in order to prevent future occurrences. Recommendations resulting from such an investigation should not presume blame or liability. Openness and transparency should be guiding principles during the investigation and the results must be published.
A permanent body should carry out investigation of accidents above a certain level of seriousness. This is to ensure consistency in investigations and to facilitate harmonisation and cooperation on Community level. The permanent body must also be responsible for the follow-up of safety recommendations that have been issued after such investigations.
For the sake of public trust in a safety investigation, as well as the confidence of involved parties, an independent body must carry it out. Since underlying causes of an accident often can be traced back to the regulatory framework for safety and the certification of railway undertakings, staff and rolling stock, the investigation body should be independent also of the safety regulator. In fact the safety authority is normally the main addressee of recommendations and responsible for implementation and enforcement of safety improvements after investigations.
Serious train accidents, such as derailments and collisions with fatal consequences, occur rarely, but when they do they attract public interest and the interest of the safety professionals all over Europe. It is therefore justified to define a minimum level where serious collisions and derailments should be mandatory investigated by the independent body. Other serious accidents, such as level crossing accidents, fires or discharge of dangerous goods should also be investigated if it is justified or of importance from a safety point of view. In this case the investigation body should have a possibility to decide whether an investigation is necessary or not.
A proactive approach should be applied to the development of railway safety. Therefore the investigation of serious incidents and near misses is often more important than investigation of accidents, although there is rarely any public request for such investigations. The opening of investigations on incidents and near-misses should be left to the discretion of the investigating body, taking into account some principles laid down by the directive.
Besides the serious accidents and incidents that need to be investigated by an independent body there are numerous of other occurrences that need some kind of investigation. The safety management systems of infrastructure managers and railway undertakings require all accidents and incidents to be investigated and acted upon within their relevant organisation. The safety authority may also carry out certain investigations as a part of its supervisory tasks.
The safety directive should not be seen as an isolated piece of legislation. It is complementary on system level what the interoperability directives introduced on sub-system level and it relies on the same committee (Article 21 Committee, established by Directive 96/48) as is used for the development of the TSI. Thus it ensures that interoperability and safety will be developed in a consistent and coherent way.
Furthermore it builds on the proposal to amend the interoperability directives, included in this package. In particular its starting point is that the scope of these directives should no longer be restricted to the trans-European Networks, but be extended to cover the whole European rail system.
The gradual approach is similar to that introduced by Directive 2001/16/EC on the interoperability of the conventional rail system and will heavily depend on support by the actors of the sector and by the European Rail Agency, proposed in this same package.
The Agency will develop draft proposals for the common safety targets and common safety methods and prepare amendments to the common safety indicators. It will elaborate harmonised definitions and calculation methods linked to the indicators and bear responsibility for coordination of the national safety authorities and investigation bodies. The Agency will scrutinise new national safety rules, keep records and registers of safety indicators, investigation reports and safety certificates and monitor the development of railway safety. It will be indispensable for the implementation of this directive.
Safety regulation for railways could not be developed without the close involvement of the actors of the sector. As for interoperability this means that the railway operators and infrastructure managers and the manufacturing industry through their relevant organisations must play a decisive role when the proposals are prepared by the Agency. When it comes to the development of safety targets, methods and indicators and harmonisation of safety certificates the relevant safety authorities in the Member States should also be involved in the process.
Involvement of the sector in the process is covered in detail by the regulation establishing the Agency and is not provided for in this directive.
Since the regulation of safety certification for railway undertakings will be provided by this directive the current Article 32 of Directive 2001/14/EC will be redundant and the directive could be amended. This is done through this directive together with consequential changes in Article 30 (appeal functions for safety regulation) including also a change of the title. The content of Article 7 i of Directive 91/440/EEC will also be covered by the provisions of the safety directive and the abrogation of this Article is provided for by the proposed directive to amend Directive 91/440/EEC in this package.
Directive 95/18/EC on licensing of railway undertakings duplicates to a certain degree requirements on the safety management system provided for in the safety directive. This directive therefore amends part of Article 8 and section II of the Annex to Directive 95/18/EC.
What are the aims of the intended activities as compared with the Community's obligations and what is the Community dimension of the problem (for example how many Member States are involved and what solution has been applied so far)*
The Treaty foresees the implementation of a common transport policy which among others allow the Community to lay down common rules applicable to international transport to and from the territory of a Member State and measures to improve transport safety. A Community regulatory framework for railway safety concerns all Member States and is necessary to accomplish the common transport policy and a single market for rail transport services.
Do the intended activities fall within the exclusive competence of the Community or within a competence that is shared with the Member States*
The activities in question are a matter of shared competence in accordance with Article 71 of the EC Treaty.
The Member States are not in a position to harmonise the regulatory framework for safety and to lay down common principles for railway safety and create common safety targets and common safety methods. This could only be achieved by Community action.
What practical added value do the intended Community activities provide and what would be the cost of inaction*
This directive will, together with other proposals in this package, complete the regulatory framework for an open market for rail transport services, in particular for freight transport. This is necessary to halt the decline of the rail transport mode, experienced during the last 30 years. A revitalisation of the railways is an integrated part of the common transport policy and a precondition for a more sustainable transport system in Europe.
Any absence of action is deemed to be detrimental to the development of rail transport, its competitiveness and its efficiency. In the long run this would affect the whole European transport system and increase its costs for congestion, pollution and accidents.
The only suitable form of action is a directive addressed to the Member States. Many of the provisions of the proposal need to be implemented in Member State legislation and integrated in their existing legal provisions for railway safety.
Is a uniform body of regulations needed or would a directive laying down general aims and transferring implementation to the Member States be sufficient*
As mentioned above the directive is the most suitable action. This directive gives however a framework for further Community decision-making by leaving open the development of common safety targets and common safety methods and the further development of common safety indicators and adaptation of technical annexes. Decisions on these issues will be adopted by the Commission according to a Committee procedure where the Member States participate.
The scope of the directive coincides mainly with the scope of the directives on interoperability as proposed in this package. Compared with the directives of the infrastructure package, Directives 2001/12/EC, 2001/13/EC and 2001/14/EC, the scope has been widened to cover all relevant railway undertakings operating on the European rail system irrespective of their geographical coverage or whether they carry out domestic or international transport activities.
Member States may exclude isolated networks and private sidings as long as the railway undertakings operating on these lines are not involved in operations on the main network.
The definitions of the directive are harmonised with those of other directives, except for the definition of railway undertaking which in this directive includes all such undertakings, not only those holding a licence. The consequence will be that infrastructure managers might be considered as railway undertakings to the extent that they carry out transport operations, for example for maintenance work or supply of material.
It should be noted that definitions related to the safety indicators will eventually be established by the Committee procedure adapting Annex I.
The current railway safety level in the Member States is generally considered as sufficient and should be globally maintained, which means that risk assessment should be used to verify that new activities or new equipment does not harmfully endanger the overall level. Improvements of safety should take into account the costs and other effects on the efficiency and competitiveness of the rail system. Member States should apply a European perspective to the development of the regulatory framework.
Infrastructure managers and railway undertakings bear the full responsibility for safe operations, as further described in Article 9.
The common safety targets (CST) and common safety methods (CSM) shall be developed by the Agency, based on an examination of existing targets and methods in the Member States. It is necessary to issue a mandate for the development where priorities and timetables could be laid down. The adoption process involves the Member States through the committee procedure.
The resulting safety targets will describe the minimum safety level, meaning that Member States could apply more demanding targets, for example for infrastructure, as long as they do not impose requirements above the CST on railway undertakings.
The CSM could harmonise the use of independent safety assessors for checking compliance with essential requirements or for assessing conformity with requirements of safety certificates.
Currently there are very few examples of safety indicators in use. Even if accident statistics are published the definitions are not harmonised. The Annex provides a first list of indicators and the procedure described in the article allows for their further development and for harmonisation of definitions and calculation methods.
I must be noted that the article only deals with the formal adoption or approval of national rules. The process leading to final adoption might very well involve other bodies than the safety authority, for example sector organisations.
The current situation where national safety rules still are dominating is seen by the directive as a transition period towards a situation where European rules normally apply. To avoid that further obstacles are raised and to steer the process towards harmonisation the articles define a procedure where new and amended national rules are scrutinised and subject to Community approval. This is in line with the general approach of gradual harmonisation applied by the directive.
The directives currently in force have not explicitly required a safety management system, although references to the internal organisation of the railway undertaking imply the establishment of such a system. Building on experiences in the Member States a set of common requirements and definition of the main elements of the safety management system have been developed in this article and in Annex III. The requirements apply equally to railway undertakings and infrastructure managers, whereas only the safety management system of the railway undertaking is subject to certification according to the provisions of Article 10. Member States are, however, allowed to introduce national certificates or licences for their infrastructure managers.
Through the provisions of the proposed regulation establishing the Agency a European standard for a safety management system could be developed, based on the principles laid down in this article and in Annex III. With such a standard independent conformity assessment of the safety management system with a Community validity will be facilitated.
Through this article the safety certificate is divided into two parts: one with European validity, covering the safety management system, and one with network wide validity, covering the safety rules, the rolling stock and the staff necessary for safe operations. The final aim is to have a single Community safety certificate.
Experience has shown that it is necessary to regulate the supply of information to railway undertakings and the obligation of the safety authorities to give guidance to applicants. The application procedure must be subject to staged timetables.
A critical aspect of safety certification concerns the training and certification of staff, in particular train drivers. If a railway undertaking applying for a safety certificate can not recruit trained and certified staff in the Member State where it plans to operate, it has to rely on that training and certification of their existing staff is available. Since training involves operating rules, the signalling and control command system, route knowledge and emergency procedures it will in the foreseeable future only be provided on a national network basis.
It must be the responsibility of the Member States and their safety authorities to ensure that training facilities and certification are available to all railway undertakings applying for a safety certificate. If in some cases a monopoly operator still provides these facilities the market should be opened on equal and non-discriminatory conditions.
A railway undertaking operating in one Member State and applying for a safety certificate in another Member State usually wants to be granted certification also for its existing rolling stock, for example locomotives. Provided that the rolling stock meet the safety requirements of the network where it was originally certified it should be subject to mutual recognition in additional Member States as long as it complies with the restrictive parameters of the infrastructure. This is in line with the assumption that the safety level in the Member States generally is considered as sufficient, although the more detailed prescriptions may vary for cultural or historical reasons.
Experience has shown that such in-use rolling stock normally are subject to rules and procedures valid for new rolling stock in additional Member States, although it could be justified that they instead be compared with existing, in-use, rolling stock. Minor derogations from national prescriptions should be granted if they do not endanger safety. The burden of proof in such cases should be laid upon the applicant.
In line with the concept of gradual harmonisation this article provides for harmonisation of certification requirements and application guidance documents.
It is necessary to harmonise the structure for safety regulation in the Member States to facilitate the exchange of information and experience and coordination on Community level. Regulatory powers should be attributed to public bodies that have sufficient resources at their disposal. A minimum set of regulatory and supervisory tasks is outlined and some common decision-making principles described. Nothing prevents Member States from attributing these tasks to the regulatory bodies established by Article 30 of Directive 2001/14/EC.
The article deals only with investigations from a safety point of view and its objectives. In parallel Member States may require that a judicial inquiry be carried out. The safety authority may as well be assigned to carry out other investigations within its remit of supervising safety.
The definition of the occurrences that mandatory must be investigated according to this chapter is based on what should reasonably be of European interest. Member States are free to require that also occurrences below the thresholds defined in this article be investigated in the same way.
It is necessary for Member States to ensure that the judicial inquiry and the safety investigation are carried out separately, but in cooperation with each other. Both types of investigations need access to the accident site and its evidence and to witnesses. If nothing else is specifically legislated the judicial inquiry will in most Member States take precedence over the safety inquiry. This article is to ensure that the safety investigation will have access to all necessary evidence without involving itself in conflicts with the relevant authorities.
The independence criteria of the investigating body are tightly defined to ensure that it will not be incorporated in any of the actors of sector. The tasks may however be assigned to other existing bodies, for example investigating bodies for other modes of transport, universities, technical institutes or other suitable and independent organisations.
The independence of the investigators contracted in each case for an investigation should be guaranteed by the independence of the body and its internal rules established by the Member State. The permanent character of the body is guaranteed by the requirement to comprise at least one investigator-in-charge. This is also a minimum criterion if the body shall be able to respond to accident reports immediately.
It can be expected that accidents will have an increasing impact on the European level with the emerging single market. For that purpose the ERA should be required to put expertise at the disposal of national investigation bodies.
The purpose of safety investigations is to provide information to prevent accidents. Thus it is important to allow for all parties to be heard and supply information to the investigation. A public investigation will not gain public confidence unless it is open and transparent, allowing for all involved to have a word before the final report is published. Reports must be made available to all interested parties and to the professionals of the sector.
One of the main reasons behind the requirement to let a permanent body be responsible for safety investigations is that it ensures consistency and coherence of safety recommendations. The investigating body must also be responsible for follow-up of recommendations and the article requires the addressees to respond to recommendations.
In line with the gradual approach to harmonisation this directive will mainly provide a framework for the further development of Community railway safety. Requirements laid down in annexes to the directive can be adapted to technical and scientific progress through the committee procedure. The Agency will play a crucial role in the further development of the annexes as well as in the formulation of CST and CSM.
The close links between the interoperability directives and this directive has led to the use of a common Member State Committee. It will ensure the consistency between TSI and the provisions of the safety directive.
The provisions of parts of Article 8 and part of the Annex of Directive 95/18/EC will merely duplicate what will now be regulated in more detail in this directive through Article 9. Also the provisions for safety certification laid down in Directive 2001/14/EC will be superseded by this directive and should thus be abrogated.
This proposal does not include a financial statement. The costs incurred by the proposal (technical support for development of a common approach to railway safety and harmonisation of safety regulation) will be borne by the European Railway Agency and are accounted for in the financial statement of the proposed regulation establishing this agency. In addition an existing Committee (Directive 96/48/EC Article 21) will be used for the decision making procedures established by this proposal. A possible increase in the number of necessary meetings will be accounted for under the budget line of this Committee.