Community's railways: safety, licensing, levying of charges, certification. 2nd package

This progress report on the implementation of the Railway Safety Directive and of the Railway interoperability Directives describes the stage reached so far in implementing the Railway Safety Directive and in achieving interoperability of the European rail system since the first report adopted by the Commission in November 2006 (see COM(2006)0660). It responds to Article 31 of the Railway Safety Directive, Article 24 of the high-speed Interoperability Directiveand Article 28 of the conventional rail Interoperability Directive.

Moreover, it builds on the findings of the first biennial report on the development of railway safety in the European Community issued by the European Railway Agency in 2008.

To prepare for this report, the European Commission commissioned a study analysing the degree of implementation of rail interoperability and safety legislation and progress in the field, and carried out a public consultation. The results of the consultation are summarised in the annex to this report.

It should be noted that recent amendments to the legal framework for railway safety and interoperability have not been considered in this report as they are still being transposed at national level (see COD/2006/0273 et COD/2006/0272).

The main finding are as follows:

• Transposition by Member States: all Member States have notified the Commission of their national measures implementing the Railway Safety Directive, except for Luxembourg, against which infringement proceedings are still open. However, in several cases transposition has been delayed and did not meet the legal deadline specified in the Directive (30 April 2006). The next step is to check that all provisions of the Directive have been correctly implemented; this includes conformity checks and detailed analyses to verify, for example, the capacity of the national bodies to perform the tasks required by the Directives. These analyses are still in hand and it is therefore too early to draw final conclusions on this issue. However, some initial results are available on the notification of national safety rules and the setting up of national bodies.
• National safety rules and notification: almost 5000 national safety rules have been notified. On request of the Commission the Agency has examined these notifications and recommended asking for clarification or renotification of national safety rules by most Member States. As for the question of publishing the national safety rules, in 2009 the Agency is expected to propose ways to improve access.
• Setting up of national authorities and bodies: the role of the national safety authorities (NSA) is critical both in maintaining safety and in ensuring that safety is not a barrier to market opening when developing interoperability. Most of the NSAs were established in 2006 and 2007. At the end of 2008 there was only one Member State that had not yet established its NSA. Member States must also set up independent investigation bodies charged with investigating serious railway accidents. By April 2009, only one Member State had not yet set up its national investigation body (NIB). The Agency has established networks to facilitate cooperation and sharing of views and experience by these national bodies.
• Development and implementation of secondary legislation at European level: the Railway Safety Directive provides for a large amount of secondary legislation to be adopted by the Commission and drafted by the Agency based on mandates issued by the Commission. In 2007 the first instrument was adopted: Commission Regulation (EC) No 653/2007 on the use of a common European format for safety certificates and application documents in accordance with Article 10 of Directive 2004/49/EC and on the validity of safety certificates delivered under Directive 2001/14/EC. Common safety methods for risk assessment and to assess achievement of safety targets were respectively adopted on 24 April 2009  and 5 June 2009 while further legislation is in preparation.
• Safety Certification: further information on the status of safety certification, and a proposed strategy for migration towards a single Community safety certificate, will be produced by the Agency in 2010 based on an evaluation of the safety certification procedures in the Member States.
• Safety Reporting:NSAs must publish annual reports giving information on the railway safety situation. The Agency uses these reports to continuously monitor the development of railway safety in the EU. Overall, initial figures confirm that railways are very safe for rail users, with fewer than 100 fatalities annually compared to about 40 000 on EU roads. Furthermore, the development of railway safety in the EU Member States can be regarded as very positive, as the number of passenger fatalities went down from around 400 in 1970 to only 58 in 2006. However, figures show that there is high representation of third parties in fatal railway accidents such as trespassers and level crossing users (together around 1 500 fatalities per year). Suicides constitute another particular feature of rail accidents: these fatalities are not reported as accidents and they are seldom subject to press reports. In 2006 they accounted for about 2 300, i.e. more than 60% of all fatalities.
• Implementation of the Interoperability Directives: all Member States have notified national measures implementing the Interoperability Directives 96/48/EC (High-Speed), Directive 2001/16/EC (Conventional Rail) and Directive 2004/50 (alignment of High-Speed and Conventional Rail Directives and extension of the scope).

Main conclusions: the Commission considers that the progress made thanks to the Community regulatory framework for railway safety and interoperability should encourage further development of the internal rail market, helping the emergence of new businesses, the cutting of entry costs and, ultimately, the competitiveness of rail as compared to other modes of transport. The analyses carried out in this report show mixed results for the time being.

1) As for rail safety, statistics indicate that the railway system in the Community is safe and the organisational changes stemming from the Community framework not only had no negative impact on safety but are expected to raise safety levels in the short and medium terms. From the market perspective, safety requirements still impose significant entry barriers. These relate mainly to the cost and the duration of the procedures involved at national level, their disparity across Europe and the lack of transparency/predictability. Substantial progress in this field is expected, partly due to the harmonisation of safety certificates for railway undertakings and the introduction of Common Safety Methods, and partly due to the cross-acceptance of national rules when authorising the placing into service of rail vehicles.

The success of these activities will depend on two conditions:

• the full establishment of the newly created bodies, especially national safety authorities (NSAs), operating at similar levels of competence and efficiency. This is necessary to create mutual trust between NSAs. The Commission will therefore continue to check that Community legislation has been correctly transposed as far as new structures and tools are concerned;
• the leading role of the European Railway Agency in gradually harmonising safety rules and procedures and progressively replacing them with common methods. This role may evolve even further in the future towards complementing or supplementing the activities of NSAs in the certification and authorisation processes;

2) The secondary legislation on interoperability is expected to be completed in 2010 as far as the TEN-T network is concerned. This is certainly a priority for the Commission, as no real interoperability can be achieved without technical specifications for interoperability (TSIs) for all sub-systems. Another priority for the Commission is to manage the transition from the old regime to the new regime created by the TSIs and the registers of infrastructure and rolling stock.

Moreover, the increasing number of conformity certificates issued for sub-systems and the limited number of derogations indicate that, overall, the existing TSIs are being successfully applied. This also underlines the importance of Notified Bodies and their role in increasing competence and mutual trust. However, residual open points in TSIs and the limited geographical scope of the TSIs may hamper the future integration of the European rail system as they constitute obstacles to interoperability. Therefore it will be essential to close the open points and to extend the scope of TSIs in a reasonably short period of time.

The Commission also notes that progress towards interoperability is a slow process. Because of the long lifetime of rail infrastructure and rolling stock and the need to keep investment costs for the sector at an acceptable level, radical changes towards harmonised solutions are not possible. That is why the Commission intends to concentrate efforts on implementing those technical specifications that will deliver significant benefits in the short and medium term, namely the CCS, TAF, TAP and OPE TSIs.

Lastly, it will also be necessary for future revisions of TSIs to give a higher consideration to the principles developed under the strategy for simplifying the regulatory environment and to ensure the relevance, effectiveness and proportionality of the railway legislation. For example, more use of voluntary European standards will be considered.

The Commission will continue to check how the legal framework for railway safety and interoperability is implemented in practice, ensuring that all the secondary legislation is introduced (mainly TSIs for conventional rail and common safety methods) and the new Directives are transposed. It then intends to prepare a Communication reviewing its policies on interoperability and the safety of the Community railway system.