Proposal for a Council Directive on the approximation of the laws of Member States with regard to the transport of dangerous goods by rail (94/C 389/15) (Text with EEA relevance) COM(94) 573 final - 94/0284(SYN)

(Submitted by the Commission on 9 December 1994)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 75 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social Committee,

In cooperation with the European Parliament,

Whereas, in recent years, the transport of dangerous goods by rail has considerably expanded, thus increasing the risks of accidents occurring, whereas it is therefore necessary that measures should be taken to ensure that such transport is carried out under the best possible conditions of safety;

Whereas all Member States of the Community are Contracting Parties to the Convention concerning international carriage by rail (Cotif), Appendix B constituting the uniform rules concerning the contract for international carriage of goods by rail (CIM), Annex 1 to which constitutes the regulations concerning the international carriage of dangerous goods by rail (RID) - and the geographical scope of which extends beyond the Community alone; whereas these regulations only cover the transport of dangerous goods by rail between States; whereas, consequently, the transport of such goods by rail at national level falls outside its scope;

Whereas, therefore, the application of uniform safety rules throughout the Community is indispensable; whereas the most appropriate means of achieving this is to make the RID applicable not only to transport operations between Member States, but also within Member States;

Whereas this action does not create additional rules, but rather brings the various national laws applied by the Member States into line with the RID, with the aim of creating a set of harmonized rules applicable in a uniform way throughout the Community area, compatible with the requirements of the Single Market;

Whereas, having regard to the principle of subsidiarity, it is appropriate that action be taken at Community level to ensure a sufficiently high level of safety for national and international transport operations, to guarantee the elimination of distortions of competition by facilitating the free movement of goods and services throughout the Community and to ensure that the consistency of such legislation with that arising from other Community policies is assured;

Whereas Member States should retain the right, with regard to the transport of dangerous goods by rail at national level, to implement rules reflecting the multimodal United Nations' recommendations on the transport of dangerous goods, in so far as the RID is not yet harmonized with these rules, which would facilitate the inter-modal transport of dangerous goods;

Whereas Member States should be able to retain the right to maintain more stringent requirements for certain operations involving the transport of dangerous goods by rail performed as national transport;

Whereas, in particular, this harmonization of conditions should take into account specific national circumstances and, therefore, this Directive should allow sufficient flexibility in providing Member States with the possibility of certain temporary derogations, particularly with regard to the construction of wagons, tanks, receptacles, packaging or the use of an emergency action code; whereas the application of new developments in technology and industry should not be hindered and that temporary derogations should be provided for this purpose;

Whereas the provisions of the CIM authorize the conclusion of agreements, or tariff clauses, derogating from the RID and that the large number of these agreements, or tariff clauses, negociated on a bilateral basis between Member States, or rail networks, creates distortion in the free provision of transport services for dangerous goods;

Whereas the inclusion of necessary provisions in the Annex to this Directive should overcome the need for such derogations; whereas it is necessary to provide for a transitional period during which existing agreements, or tariff clauses, may still be applied by Member States;

Whereas the transport of dangerous goods by rail to or from a third country is authorized, provided it is carried out in accordance with the requirements of the RID;

Whereas the provisions of this Directive are without prejudice to the application of other existing or future Community provisions in the field of worker safety and environmental protection;

Whereas no Community legislation exists to cover the classification, packaging and labelling of dangerous substances for transport; whereas the Community has adopted Directive 67/548/EEC (1) on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances for placing on the market which does not contain specific provisions concerning transport; whereas the provisions of this Directive are without prejudice to the engagement of the Community to strive for a future harmonization of classification systems for dangerous chemicals, which was undertaken by the Community and its Member States in accordance with the goals set under Agenda 21 Chapter 19 at the Unced conference of June 1992 in Rio de Janeiro;

Whereas there is as yet not specific Community legislation to govern the conditions of safety under which biological agents and genetically modified micro-organisms, regulated under Council Directives 90/219/EEC (2), 90/220/EEC (3) and 90/679/EEC (4) should be transported by rail; whereas only international transport of such goods is governed by the RID; whereas rules identical to those provided for by these regulations should be laid down with regard to the transport of these goods by rail within Member States;

Whereas measures for the safety and health of workers at work have been set down in Council Directive 89/391/EEC (5), whereas further Community measures are being developed on the minimum safety and health requirements for transport activities and workplaces on means of transport;

Whereas it must be possible to adapt this Directive rapidly to technical progress, notably by adoption of new provisions laid down in the RID; whereas, in order to facilitate implementation of the measures required for this purpose, to create a Committee and to establish a procedure for close cooperation between Member States and the Commission within this Committee,

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I Scope

Article 1

1. This Directive shall apply to the transport of dangerous goods by rail within or between Member States. However, Member States may exempt from the scope of this Directive the transport of dangerous goods by rail belonging to or under the responsibility of the armed forces.

2. The provisions of this Directive shall not prejudice other Community provisions relating to worker safety and environmental protection.

Article 2

For the purposes of this Directive:

- 'RID` shall mean the regulations concerning the international carriage of dangerous goods by rail, appearing as Annex 1 to Appendix B of the Convention concerning international transport by rail (Cotif), together with its amendments,

- 'CIM` shall mean the uniform rules concerning the Contract for international carriage of goods by rail, Appendix B of the Convention concerning international carriage by rail (Cotif),

- 'dangerous goods` shall mean those substances and articles, the transport by rail of which is prohibited by, or authorized only on certain conditions by the Annex to this Directive,

- 'transport` shall mean any operation for the transport of dangerous goods by rail, conducted fully or partially on the territory of a Member State, including the activities of loading, unloading and transfer to and from another mode of transport and temporary storage related to the transport operation, covered by the Annex to this Directive, without prejudice to the arrangements laid down by the laws of the Member States concerning liability in respect of such operations. It shall not include transport wholly performed within the perimeter of an enclosed site.

Article 3

1. Without prejudice to Article 6, dangerous goods whose transport is prohibited by the Annex to this Directive may not be transported by rail.

2. Save as otherwise provided for in this Directive, transport of other dangerous goods by rail shall be authorized, subject to compliance with the conditions laid down in the Annex to this Directive.

CHAPTER II Derogations, restrictions and exemptions

Article 4

Each Member State may, for the purposes of national rail transport operations on its territory, retain provisions existing in national law on the transport of dangerous goods by rail which are consistent with the UN recommendations on the transport of dangerous goods, until such time as the Annex to this Directive are revised to reflect those recommendations. In such cases, the Member States concerned shall inform the Commission thereof.

Article 5

1. Without prejudice to other Community legislation, each Member States shall retain the right to regulate or prohibit, strictly for reasons other than safety during transport, in particular for reasons of national security, the transport of certain dangerous goods in its territory.

2. Member States may continue to apply more stringent provisions than those provided for by the Annex to this Directive for the transport of dangerous goods by rail in its territory, excluding construction requirements.

3. If a Member State considers that the applicable safety provisions have been found to be capable of improvement, following in accident or an incident, to limit better the hazards involved in the transport operation and if there is an urgent need to take action, it shall notify the Commission, at the planning stage, of the measures which it proposes to take. Acting in accordance with the procedure laid down in Article 9, the Commission shall decide whether the implementation of the said measures should be authorized and shall determine the duration thereof.

Article 6

1. Each Member States may accept for transport by rail in its territory dangerous goods classified, packed and labelled in accordance with the international requirements for maritime or air transport whenever the transport operation involves a sea or air voyage. Where an international journey involves carriage by sea, Member States may apply provisions additional to those of the Annex to this Directive to take account of international rules governing that mode of transport.

2. Any provisions given in the Annex to this Directive concerning the format of documentation or the use of languages in relevant marking or documentation shall not apply to transport operations confined to the territory of a single Member State. Member States may authorize the use of languages other than those provided for in the Annex for transport operations performed in their territories.

3. Each Member State may allow, in its territory only, the use of rail wagons constructed before 1 January 1997 which do not conform with the provisions herein, but were constructed according to national provisions in force up to 31 December 1996, provided that those wagons are maintained to the required safety levels.

4. Each Member State may retain national provision as at 31 December 1996 relating to the construction, use and conditions of carriage of new tanks, and new receptacles within the meaning of Class 2 of the Annex to this Directive, which differ from the provisions laid down in that Annex, until such time as references to standards for the construction and use of tanks and receptacles are provided in the Annex to this Directive, with the same binding force as the provisions therein and no later than 31 December 1998. Receptacles and tanks constructed before 1 January 1999 and maintained to the required safety levels may continue to be used under the original conditions.

5. Each Member State may retain national provisions other than those set out in the Annex to this Directive with regard to the reference temperature for the transport in its territory of liquefied gases or mixtures of liquefied gases, until such time as provisions relating to appropriate reference temperatures for designated climatic areas are incorporated into European standards and referred to in the Annex to this Directive.

6. Each Member State may allow the use, for transport in its territory, of packagings constructed before 31 December 1996, but not certified in accordance with the requirements of the RID, provided that the packaging bears the date of manufacture and is capable of passing the tests according to the requirements of national legislation in force up to 31 December 1996 and provided that all such packagings are maintained to the relevant safety levels (including testing and inspection where required), according to the following scheme: metal intermediate bulk containers and metal drums exceeding 50 litres in capacity may be used for a maximum period of 15 years from their date of manufacture; other metal packagings and all plastics packagings may be used for a maximum period of five years from the date of their manufacture, but not beyond 31 December 1998.

7. Each Member State may allow certain dangerous goods packaged prior to 1 January 1997 to be transported in its territory until 31 December 1998, provided that the goods are classified, packed and labelled in accordance with the requirements in national legislation in force prior to 1 January 1997.

8. Each Member State may retain provisions in national legislation in force before the date of transposition of this Directive into national legislation, relating to the display of an emergency action code in place of the hazard identification number, as required by the Annex to this Directive, for rail transport operations performed in its territory.

9. Each Member State may, after consulting the Commission, maintain provisions less stringent than those set out in the Annex to this Directive for the transport by rail within its territory of small quantities of certain dangerous goods, with the exception of substances having a medium or high level of radioactivity.

10. Each Member State may authorize ad hoc transport operations in its territory of dangerous goods which are either prohibited by the Annex to this Directive or which are performed under different conditions from those in the said Annex.

11. Provided that no loss of safety arises, Member States may grant temporary derogations from the Annex to this Directive for the purpose of carrying out in their territory the trials necessary with a view to amending the provisions of the Annex in order to adapt them to technological and industrial developments. The Commission shall be informed thereof and shall inform the other Member States thereof.

Any such derogations shall be applied without discrimination with regard to nationality or place of establishment of the consignor, operator or consignee; they shall last for a maximum period of five years and shall be non-renewable.

12. Each Member State may, until 31 December 1998 at the latest, apply existing agreements with other Member States, without discrimination with regard to nationality or place of establishment of the consignor, operator or consignee. Any future derogations shall comply with the requirements of paragraph 10.

Article 7

Subject to national or Community provisions on market access, the transport of dangerous goods by rail between Community territory and third countires shall be in accordance with the requirements of the RID.

CHAPTER III Final provisions

Article 8

The amendments necessary to adapt the Annex to scientific and technical progress in the fields covered by this Directive, notably to take account of the amendments to the RID, shall be adopted in accordance with the procedure laid down in Article 9.

Article 9

1. The Commission shall be assisted by the Committee on the Transport of Dangerous Goods, hereinafter referred to as 'the Committee`, which shall be composed of representatives of the Member States and chaired by a representative of the Commission.

2. The representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148 of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission.

When votes are taken within the Committee, the votes of the representatives of the Member States shall be weighted in the manner set out in the aforesaid Article. The chairman shall not vote.

3. The Commission shall adopt measures which shall have immediate effect. However, if these measures are not in accordance with the opinion of the Committee, they shall be communicated by the Commission to the Council forthwith.

4. In that event, the Commission shall defer application of the measures which it has decided on for a period of three months from the date of communication.

The Council, acting by a qualified majority, may take a different decision within the time limit referred to in the previous paragraph.

Article 10

1. Member States shall bring into force the laws, regulations and administrative provisions which are necessary to comply with this Directive before 1 January 1997. They shall immediately inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The procedure for making such a reference shall be laid down by Member States.

2. The Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field governed by this Directive.

Article 11

This Directive is addressed to the Member States.

(1) OJ No 196, 16. 8. 1967, p. 1.

(2) OJ No L 117, 8. 5. 1990, p. 1.

(3) OJ No L 117, 8. 5. 1990, p. 15.

(4) OJ No L 374, 31. 12. 1990, p. 1.

(5) OJ No L 183, 29. 6. 1989, p. 1.