EN Official Journal of the European Union C 57/1

POSITION (EU) No 2/2016 OF THE COUNCIL AT FIRST READING

with a view to the adoption of a Directive of the European Parliament and of the Council on the interoperability of the rail system within the European Union

(Recast)

(Text with EEA relevance)

Adopted by the Council on 10 December 2015

(2016/C 057/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 91(1), 170 and 171 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the ordinary legislative procedure (3),

Whereas:

(1) Directive 2008/57/EC of the European Parliament and of the Council (4) has been substantially amended several times. Since further amendments are to be made, that Directive should be recast in the interests of clarity.

(2) In order to enable citizens of the Union, economic operators and competent authorities to benefit to the full from the advantages deriving from the establishment of a single European railway area, it is appropriate, in particular, to improve the interlinkage and interoperability of the national rail networks as well as access to those networks and to implement any measures that may be necessary in the field of technical standardisation as provided for in Article 171 of the Treaty on the Functioning of the European Union (TFEU).

(3) The pursuit of interoperability within the Union rail system should lead to the definition of an optimal level of technical harmonisation and make it possible to facilitate, improve and develop international rail transport services within the Union and with third countries, and contribute to the progressive creation of the internal market in equipment and services for the construction, renewal, upgrading and operation of the Union rail system.

(4) In order to contribute to the completion of the single European railway area, reduce the costs and duration of authorisation procedures and improve railway safety it is appropriate to streamline and harmonise authorisation procedures at Union level.

(5) Metros, trams and other light rail systems are subject in many Member States to local technical requirements. Such local public transport systems are usually not subject to licensing within the Union. Trams and light rail systems are furthermore often subject to road legislation because of shared infrastructure. For those reasons, such local systems do not need to be interoperable and should therefore be excluded from the scope of this Directive. This does not prevent Member States from applying the provisions of this Directive to local rail systems on a voluntary basis if they deem this appropriate.

(6) A tram-train is a public-transport concept which allows for a combined operation on both light-rail infrastructure and heavy-rail infrastructure. Member States should be permitted to exclude from the scope of the measures implementing this Directive those vehicles primarily used on light-rail infrastructure but equipped with some heavy-rail components necessary to enable transit to be effected on a confined and limited section of heavy-rail infrastructure for connectivity purposes only. When tram-trains use railway infrastructure, compliance with all essential requirements should be ensured, as well as compliance with the expected safety level on the relevant lines. For cross-border cases, competent authorities should cooperate.

(7) The commercial operation of trains throughout the rail network requires, in particular, excellent compatibility between the characteristics of the infrastructure and those of the vehicles, as well as efficient interconnection of the information and communication systems of the different infrastructure managers and railway undertakings. Performance levels, safety, quality of service and cost depend upon such compatibility and interconnection, as does, in particular, the interoperability of the Union rail system.

(8) The railway regulatory framework at Union and Member State level should set clear roles and responsibilities for ensuring compliance with the safety, health and consumer protection rules applying to the railway networks. This Directive should not lead to a reduced level of safety or increase costs in the Union rail system. To that end, the European Union Agency for Railways (‘the Agency’) established by Regulation (EU) …/… of the European Parliament and of the Council (5) (6) and the national safety authorities should take full responsibility for the authorisations they issue.

(9) Major differences exist between national regulations, internal rules and technical specifications applicable to rail systems, subsystems and components, since they incorporate techniques that are specific to the national industries and lay down specific dimensions and devices as well as special characteristics. That situation may prevent trains from running without hindrance throughout the Union.

(10) In order to enhance their competitiveness at world level, the Union railway industries require an open and competitive market.

(11) It is therefore appropriate to define essential requirements relating to rail interoperability for the whole of the Union which should apply to its rail system.

(12) The development of technical specifications for interoperability (‘TSIs’) has shown the need to clarify the relationship between the essential requirements and TSIs on the one hand, and the European standards and other documents of a normative nature on the other. In particular, a clear distinction should be drawn between the standards or parts of standards which should be made mandatory in order to achieve the objectives of this Directive, and the ‘harmonised standards’ that have been developed in accordance with Regulation (EU) No 1025/2012 of the European Parliament and of the Council (7). Where strictly necessary, the TSIs may make an explicit reference to European standards or specifications, which become mandatory from the moment the TSI is applicable.

(13) In order to genuinely increase the competitiveness of the Union railway sector without distorting competition between key actors of the Union rail system, the TSIs and the recommendations of the Agency related to these TSIs should be drafted by respecting the principles of openness, consensus and transparency as defined in Annex II to Regulation (EU) No 1025/2012.

(14) The quality of rail services in the Union depends, inter alia, on excellent compatibility between the characteristics of the network (in the broadest sense, i.e. the fixed parts of all the subsystems concerned) and those of the vehicles (including the on-board components of all the subsystems concerned). Performance levels, safety, quality of service and cost depend upon that compatibility.

(15) TSIs have a direct or potential impact on the staff involved in the operation and maintenance of subsystems. When preparing TSIs, therefore, the Agency should consult social partners, where appropriate.

(16) A TSI should set out all the conditions with which an interoperability constituent is to conform, and the procedure to be followed in assessing conformity. In addition, it is necessary to specify that every constituent should undergo the procedure for assessing conformity and suitability for the use indicated in the TSIs and should have the corresponding certificate, comprising either the assessment of the conformity of an interoperability constituent, considered in isolation, to the technical specifications to be met, or the assessment of the suitability for use of an interoperability constituent, considered within its railway environment, in relation to the technical specifications.

(17) In the development of new TSIs, the aim should always be to ensure compatibility with the existing subsystems. This will help to promote the competitiveness of rail transport and prevent unnecessary additional costs through the requirement of upgrading or renewal of existing subsystems to ensure backward compatibility. In those exceptional cases where it will not be possible to ensure compatibility, it should be possible for TSIs to establish the framework necessary to decide whether the existing subsystem needs a new decision or authorisation for placing in service or placing on the market, and the corresponding deadlines.

(18) If certain technical aspects corresponding to the essential requirements cannot be explicitly covered in a TSI, those aspects which still need to be addressed should be identified in an annex to that TSI as open points. For those open points, as well as for specific cases, and with the aim of compliance with the existing systems, national rules that may be adopted in a Member State by any competent national, regional or local authority should apply. To avoid redundant verifications and unnecessary administrative burdens, national rules should be classified to establish the equivalence between national rules of different Member States covering the same topics.

(19) The procedure to be followed in the case of essential requirements applicable to a subsystem which have not yet been covered in the corresponding TSI should be specified. In such a case, the bodies responsible for the conformity assessment and verification procedures should be the designated bodies referred to in this Directive.

(20) This Directive should apply to the entire Union rail system and the scope of the TSIs should be extended to cover the vehicles and networks not included in the trans-European rail system. Therefore, Annex I to Directive 2008/57/EC should be simplified.

(21) The functional and technical specifications to be met by subsystems and their interfaces may vary according to the use of the subsystems concerned, for example according to the categories of lines and vehicles, in particular for ensuring coherence between high-speed and conventional rail systems.

(22) In order to ensure the progressive implementation of rail interoperability within the whole of the Union and to gradually reduce the diversity of legacy systems, the TSIs should specify the provisions to be applied in the event of renewal or upgrading of existing subsystems and may include proposals for the staged completion of the target system. However, in order to keep the railway sector competitive and to prevent undue costs, the entry into force of new or amended TSIs should not lead to an immediate adaptation of vehicles and infrastructure to the new specifications.

(23) TSIs should indicate when the upgrade and renewal of infrastructure and vehicles requires a new authorisation. In all cases for the upgrade and renewal of infrastructure, the applicant should submit, through the one-stop-shop referred to in Regulation (EU) …/… (8), a file to the national safety authority so that it can decide whether a new authorisation is needed on the basis of the criteria set out in this Directive. In the case of the upgrade and renewal of vehicles which have an authorisation to place on the market, the applicant should be able to decide whether it needs to seek a new authorisation from the national safety authority or the Agency on the basis of the criteria set out in this Directive.

(24) In view of the gradual approach to eliminating obstacles to the interoperability of the Union rail system and of the time consequently required for the adoption of TSIs, steps should be taken to avoid a situation where Member States adopt new national rules or undertake projects that increase the diversity of the present system.

(25) In order to eliminate the obstacles to interoperability, and as a consequence of extending the scope of the TSIs to the whole of the Union rail system, the volume of national rules should progressively be reduced. National rules strictly relating to existing systems should be differentiated from those needed to cover open points in TSIs. Rules of the latter type should be progressively removed as a result of closure of open points in the TSIs.

(26) National rules should be drafted and published in such a way that any potential user of a national network can understand them. Such rules often refer to other documents such as national standards, European standards, international standards or other technical specifications which might be partly or fully protected by intellectual property rights. Therefore, the obligation of publication should not apply to documents referred to directly or indirectly in the national rule.

(27) The adoption of a gradual approach satisfies the objective of interoperability of the Union rail system, which is characterised by old national infrastructure and vehicles requiring heavy investment for adaptation or renewal, and particular care should be taken to maintain the competitiveness of rail vis-à-vis other modes of transport.

(28) In view of the extent and complexity of the Union rail system, it has proved necessary, for practical reasons, to break it down into the following subsystems: infrastructure, trackside control-command and signalling, on-board control-command and signalling, energy, rolling stock, operation and traffic management, maintenance and telematics applications for passenger and freight services. For each of those subsystems, the essential requirements need to be specified and the technical specifications determined, particularly in respect of constituents and interfaces, in order to meet those essential requirements. The same system is broken down into fixed and mobile elements comprising, on the one hand, the network, which is composed of the lines, stations, terminals, and all kinds of fixed equipment needed to ensure safe and continuous operation of the system and, on the other hand, all vehicles travelling on that network. Therefore, for the purposes of this Directive, a vehicle is composed of one subsystem (rolling stock) and where applicable other subsystems (mainly the on-board control-command and signalling subsystem). Although the system is divided into several elements, the Agency should retain an overview of the system, in order to promote interoperability and safety.

(29) The United Nations Convention on the Rights of Persons with Disabilities, to which the Union is a party, establishes accessibility as one of its general principles and requires state Parties to take appropriate measures in order to ensure access for persons with disabilities on an equal basis with others, including by developing, promulgating and monitoring the implementation of minimum standards and guidelines for accessibility. Accessibility for persons with disabilities and persons with reduced mobility is therefore an essential requirement for the interoperability of the Union rail system.

(30) No person is to be discriminated against, either directly or indirectly, on the basis of a disability. In order to ensure that all Union citizens can enjoy the benefits resulting from the establishment of single European railway area, Member States should promote a railway system accessible to all.

(31) Implementation of the provisions on the interoperability of the Union rail system should not give rise to unjustified costs nor undermine the preservation of the interoperability of existing rail networks.

(32) TSIs also have an impact on the conditions of use of rail transport by users, and it is therefore necessary to consult those users on aspects concerning them, including organisations of persons with disabilities, where appropriate.

(33) Each Member State concerned should be allowed not to apply certain TSIs in a limited number of duly substantiated situations. Those situations and the procedures to be followed in cases of non-application of a given TSI should be clearly defined.

(34) The drawing-up of TSIs and their application to the Union rail system should not impede technological innovation, which should be directed towards improving economic performance.

(35) In order to comply with the appropriate provisions on procurement procedures in the rail sector and, in particular, those laid down in Directive 2014/25/EU of the European Parliament and of the Council (9), contracting entities are to include technical specifications in the general documents or in the terms and conditions for each contract. To that end, it is necessary to draw up a set of rules to serve as references for those technical specifications.

(36) An international system of standardisation capable of generating standards which are actually used by those involved in international trade and which meet the requirements of Union policy would be in the Union’s interest. The European standardisation organisations should therefore continue their cooperation with international standardisation bodies.

(37) The contracting entity ordering the design, construction, renewal or upgrading of a subsystem could be a railway undertaking, an infrastructure manager, an entity in charge of maintenance, a keeper, or a concession-holder responsible for carrying out a project. Contracting entities should define the requirements needed to complete European specifications or other standards. Those specifications should meet the essential requirements that have been harmonised at Union level and which the Union rail system is to satisfy.

(38) The procedures governing the assessment of conformity or of suitability of use of constituents should be based on the use of the modules for the procedures for assessment of conformity, suitability for use and ‘EC’ verification to be used in the technical specifications for interoperability adopted under this Directive. As far as possible, and in order to promote industrial development, it is appropriate to draw up the procedures involving a system of quality assurance.

(39) Conformity of constituents is linked mainly to their area of use in order to guarantee the interoperability of the system and not only their free movement in the Union market. The suitability for use of the most critical constituents as regards safety, availability or system economy should be assessed. It is therefore not necessary for a manufacturer to affix the ‘CE’ marking to constituents that are subject to this Directive. On the basis of the assessment of conformity and/or suitability for use, the manufacturer’s declaration of conformity should be sufficient.

(40) Manufacturers are nonetheless obliged to affix the ‘CE’ marking to certain components in order to certify their compliance with other Union law relating to them.

(41) When a TSI enters into force, a number of interoperability constituents are already on the market. A transitional period should be provided for, so that those constituents can be integrated into a subsystem, even if they do not strictly conform to that TSI.

(42) The subsystems constituting the Union rail system should be subject to a verification procedure. That verification should enable the entities responsible for their placing in service or placing on the market to be certain that, at the design, construction and placing into service stages, the result is in line with the regulations and technical and operational provisions in force. It should also result in manufacturers being able to count upon equality of treatment in all Member States.

(43) After a subsystem is placed in service or on the market, care should be taken to ensure that it is operated and maintained in accordance with the essential requirements relating to it. In accordance with Directive (EU) …/… of the European Parliament and of the Council (10) (11), responsibility for meeting those requirements lies, for their respective subsystems, with the infrastructure manager, the railway undertaking or the entity in charge of maintenance, each for their own part.

(44) When during operation it appears that a vehicle or a vehicle type does not meet one of the applicable essential requirements, the necessary corrective measures should be taken by the railway undertakings concerned in order to bring the vehicle(s) into conformity. In addition, if that non-conformity leads to a serious safety risk, it should be possible for the national safety authorities responsible for the supervision of the circulation of the vehicle to take the necessary temporary safety measures, including immediately restricting or suspending the relevant operation. If the corrective measures are insufficient and the serious safety risk generated by the non-conformity remains, national safety authorities or the Agency should be allowed to revoke or amend the authorisation. A serious safety risk in this context should be understood as being serious non-compliance with legal obligations or safety requirements that may in itself or in a series of consequential events cause an accident or a serious accident. The process of revocation should be supported by an appropriate exchange of information between the Agency and the national safety authorities, including the use of registers.

(45) The respective roles and responsibilities of all actors involved should be clarified in relation to the procedures for the placing on the market and use of vehicles, and for the placing in service of fixed installations.

(46) The Agency and national safety authorities should cooperate and share competencies as appropriate for the issuing of authorisations with due regard to safety. To that end, cooperation agreements between the Agency and the national safety authorities should be established.

(47) In order to ensure that European Rail Traffic Management System (ERTMS) equipment complies with the relevant specifications in force and to prevent additional requirements in relation to the ERTMS from undermining its interoperability, the Agency should act as the ERTMS system authority. To that end, the Agency should be in charge of assessing the technical solutions envisaged before any call for tenders relating to ERTMS trackside equipment is launched or published, in order to check whether those technical solutions are compliant with the relevant TSIs and are fully interoperable. Any overlap between this assessment by the Agency and the tasks of the notified bodies in the verification procedure should be avoided. The applicant should therefore inform the Agency if the verification procedure carried out by the notified body has already started or if any conformity certificate is already available. The applicant should be able to choose to request such an assessment from the Agency either for each individual ERTMS project or for a combination of projects, a line, a group of lines or a network.

(48) The entry into force of this Directive should not delay the deployment of ERTMS projects for which the tendering or contracting process has been completed.

(49) In order to facilitate the placing on the market of vehicles and to reduce administrative burdens, the notion of a vehicle authorisation for placing on the market that is valid throughout the Union should be introduced. While authorisations for placing on the market allow for commercial transactions of vehicles anywhere on the Union market, a vehicle may only be used within the area of use covered by its authorisation. In that context, any extension of the area of use should be subject to an updated authorisation for the vehicle. It is necessary that vehicles already authorised under earlier Directives also receive an authorisation for placing on the market if they are intended to be used on networks not covered by their authorisation.

(50) When the area of use is limited to a network or networks within one Member State, the applicant should be able to choose whether it submits its application for vehicle authorisation, through the one-stop shop referred to in Regulation (EU) …/… (12), to the national safety authority of that Member State or to the Agency. The choice made by the applicant should be binding until the application is completed or terminated.

(51) An appropriate procedure should be available to enable the applicant to appeal against a decision of, or a failure to act by, the Agency or the national safety authorities. In addition, clear procedural and dispute resolution provisions should be established to address situations where the Agency and the national safety authorities disagree on assessments made in relation to the issuing of vehicle authorisations.

(52) Specific measures, including cooperation agreements, should take account of the specific geographical and historical situation of certain Member States, while ensuring the proper functioning of the internal market.

(53) Where operation is limited to networks requiring specific expertise for geographical or historical reasons, and where such networks are isolated from the rest of the Union rail system, it should be possible for the applicant to fulfil the necessary formalities locally by interacting with the relevant national safety authorities. To that end, for the purpose of reducing administrative burdens and costs, it should be possible for the cooperation agreements that are to be concluded between the Agency and the relevant national safety authorities to provide for the appropriate allocation of tasks, without prejudice to the assumption by the Agency of final responsibility for issuing the authorisation.

(54) The railway networks located in the Baltic States (Estonia, Latvia and Lithuania) have 1 520 mm track gauge, which is the same as in neighbouring third countries, but is different from that of the main rail network within the Union. These Baltic networks have inherited common technical and operational requirements, which provide de facto interoperability between them, and, in this respect, the vehicle authorisation issued in one of these Member States might be valid for the rest of these networks. To facilitate the efficient and proportionate allocation of resources for vehicle authorisation for placing on the market or a type authorisation of vehicles, and to reduce the financial and administrative burden for the applicant in such cases, the specific cooperation arrangements between the Agency and relevant national safety authorities should include, where necessary, the possibility of contracting tasks to these national safety authorities.

(55) Member States with an important share of rail traffic with third countries having the same railway gauge which is different from that of the main rail network within the Union should be able to maintain different vehicle authorisation procedures for freight wagons and passenger coaches which are in shared use with those third countries.

(56) For traceability and safety reasons, Member States’ competent authorities should assign a European vehicle number to a vehicle when requested to do so by the vehicle’s keeper. The vehicle information should then be entered in a vehicle register. The vehicle registers should be open to consultation by all Member States and by certain economic players within the Union. The vehicle registers should be consistent as regards the data format. They should therefore be covered by common operational and technical specifications. In order to reduce administrative burdens and undue costs, the Commission should adopt a specification for a European vehicle register that would incorporate national vehicle registers, with a view to creating a common tool, while, at the same time, allowing for the maintenance of additional functions relevant to Member States’ specific needs.

(57) To ensure traceability of vehicles and their history, the references of the vehicle authorisations for placing on the market should be recorded together with other vehicle data.

(58) Procedures should be established for checking the compatibility between vehicles and the routes on which they are to be deployed after delivery of the vehicle authorisation for placing on the market and before the use by a railway undertaking of a vehicle in its area of use as specified in the vehicle authorisation for placing on the market.

(59) The notified bodies responsible for examining the procedures for assessment of conformity and suitability for use of constituents, together with the procedure for the assessment of subsystems, should, in particular in the absence of any European specification, coordinate their decisions as closely as possible.

(60) Transparent accreditation, as provided for in Regulation (EC) No 765/2008 of the European Parliament and of the Council (13), ensuring the necessary level of confidence in conformity certificates, should be considered by the national public authorities throughout the Union to be the preferred means of demonstrating the technical competence of notified bodies and, mutatis mutandis, of the bodies designated to check compliance with national rules. However, national authorities should be able to consider that they possess the appropriate means of carrying out this evaluation themselves. In such cases, in order to ensure the appropriate level of credibility of evaluations carried out by other national authorities, they should provide the Commission and the other Member States with the necessary documentary evidence demonstrating the compliance of the conformity assessment bodies evaluated with the relevant regulatory requirements.

(61) This Directive should be limited to establishing the interoperability requirements for interoperability constituents and subsystems. In order to facilitate compliance with those requirements, it is necessary to provide for a presumption of conformity for interoperability constituents and subsystems which are in conformity with harmonised standards that are adopted in accordance with Regulation (EU) No 1025/2012 for the purpose of expressing detailed technical specifications relating to those requirements.

(62) Measures adopted pursuant to this Directive should be complemented by initiatives aimed at providing financial support to innovative and interoperable technologies in the Union rail sector.

(63) In order to supplement non-essential elements of this Directive, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of the specific objectives of each TSI. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

(64) In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission relating to: TSIs and amendments to TSIs, including those amendments needed to remedy deficiencies in TSIs; the template of the ‘EC’ declaration of conformity or suitability for use of interoperability constituents and the accompanying documents; the information to be included in the file which should accompany the request for non-application of one or more TSIs or parts of them, the format and the transmission methods of that file and, where appropriate, the decision on non-application of TSIs; the classification of the notified national rules in different groups with the aim of facilitating the compatibility checks between fixed and mobile equipment; the details of the ‘EC’ verification procedure and the verification procedure in the case of national rules and the templates for the ‘EC’ declaration of verification and the templates for documents of the technical file that should accompany the declaration of verification as well as the templates for certificates of verification; the practical arrangements for the purposes of vehicle authorisation; the model of the declaration of conformity to type and, where appropriate, ad hoc modules for conformity assessment; the national vehicle registers, the European Vehicle register and the register of authorisation to place types on the market; and the common specifications relating to content, data format, functional and technical architecture, operating mode and rules for data input and consultation for the register of infrastructure. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (14).

(65) The TSIs should be revised at regular intervals. When deficiencies are discovered in the TSIs, the Agency should be asked to issue an opinion which, under certain conditions, might be published and used by all stakeholders (including industry and notified bodies) as an acceptable means of compliance pending the revision of the TSIs concerned.

(66) Implementing acts establishing new TSIs or amending TSIs should reflect the specific objectives set out by the Commission by way of delegated acts.

(67) Certain organisational steps are necessary in order to prepare the Agency for its enhanced role under this Directive. Accordingly, an appropriate transitional period should be provided for. During that period, the Commission should review the progress made by the Agency in preparing for its enhanced role. Thereafter, the Commission should report periodically on the progress made in implementing this Directive. In particular, the report should evaluate the vehicle authorisation process, the cases where the TSIs are not applied and the use of registers. The Commission should also report on actions taken regarding the identification and traceability of safety-critical components.

(68) It is necessary to allow Member States, national safety authorities and stakeholders sufficient time in which to prepare to implement this Directive.

(69) Since the objective of this Directive, namely interoperability within the rail system on a Union-wide scale, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(70) The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive amendment as compared to Directive 2008/57/EC. The obligation to transpose the provisions which are unchanged arises under Directive 2008/57/EC.

(71) This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives set out in Part B of Annex V,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter and scope

1. This Directive establishes the conditions to be met to achieve interoperability within the Union rail system in a manner compatible with Directive (EU)…/… (15). 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 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 the conditions of overall compatibility of the Union rail system required in order to achieve its interoperability.

3. This Directive shall not apply to:

(a) metros;

(b) trams and light rail vehicles, and infrastructure used exclusively by those vehicles;

(c) networks that are functionally separate from the rest of the Union rail system and intended only for the operation of local, urban or suburban passenger services, as well as undertakings operating solely on those networks.

4. Member States may exclude from the scope of the measures implementing this Directive:

(a) privately owned railway infrastructure, including sidings, used by its owner or by an operator for the purpose of their respective freight activities or for the transport of persons for non-commercial purposes, and vehicles used exclusively on such infrastructure;

(b) infrastructure and vehicles reserved for a strictly local, historical or touristic use;

(c) light rail infrastructure occasionally used by heavy rail vehicles under the operational conditions of the light rail system, where it is necessary for the purposes of connectivity of those vehicles only; and

(d) vehicles primarily used on light rail infrastructure but equipped with some heavy rail components necessary to enable transit to be effected on a confined and limited section of heavy rail infrastructure for connectivity purposes only.

5. In the case of tram-trains operating in the Union rail system, where there are no TSIs that apply to those tram-trains, the following shall apply:

(a) Member States concerned shall ensure that national rules or other relevant accessible measures are adopted in order to ensure that such tram-trains meet the relevant essential requirements;

(b) Member States may adopt national rules in order to specify the authorisation procedure applicable to such tram-trains. The authority issuing the vehicle authorisation shall consult the relevant national safety authority in order to ensure that mixed operation of tram-trains and heavy rail trains meet all essential requirements as well as relevant common safety targets (‘CSTs’);

(c) by way of derogation from Article 21, in the case of cross-border operation, the relevant competent authorities shall cooperate with a view to issuing the vehicle authorisations.

This paragraph does not apply to vehicles excluded from the scope of this Directive in accordance with paragraphs 3 and 4.

Article 2

Definitions

For the purposes of this Directive:

(1) ‘Union rail system’ means the elements listed in Annex I;

(2) ‘interoperability’ means the ability of a rail system to allow the safe and uninterrupted movement of trains which accomplish the required levels of performance;

(3) ‘vehicle’ means a railway vehicle suitable for circulation on wheels on railway lines, with or without traction. A vehicle is composed of one or more structural and functional subsystems;

(4) ‘network’ means the lines, stations, terminals, and all kinds of fixed equipment needed to ensure safe and continuous operation of the Union rail system;

(5) ‘subsystems’ means the structural or functional parts of the Union rail system, as set out in Annex II;

(6) ‘mobile subsystem’ means the rolling stock subsystem and the on-board control-command and signalling subsystem;

(7) ‘interoperability constituents’ means any elementary component, group of components, subassembly or complete assembly of equipment incorporated or intended to be incorporated into a subsystem, upon which the interoperability of the rail system depends directly or indirectly, including both tangible objects and intangible objects;

(8) ‘product’ means a product obtained through a manufacturing process, including interoperability constituents and subsystems;

(9) ‘essential requirements’ means all the conditions set out in Annex III which must be met by the Union rail system, the subsystems, and the interoperability constituents, including interfaces;

(10) ‘European specification’ means a specification which falls into one of the following categories: — a common technical specification as defined in Annex VIII of Directive 2014/25/EU, — a European technical approval as referred to in Article 60 of Directive 2014/25/EU, or — a European standard as defined in point (b) of Article 2(1) of Regulation (EU) No 1025/2012;

(11) ‘technical specification for interoperability’ (TSI) means a specification adopted in accordance with this Directive by which each subsystem or part of a subsystem is covered in order to meet the essential requirements and ensure the interoperability of the Union rail system;

(12) ‘basic parameter’ means any regulatory, technical or operational condition which is critical to interoperability and is specified in the relevant TSIs;

(13) ‘specific case’ means any part of the rail system which needs special provisions in the TSIs, either temporary or permanent, because of geographical, topographical or urban environment constraints or those affecting compatibility with the existing system, in particular railway lines and networks isolated from the rest of the Union, the loading gauge, the track gauge or space between the tracks and vehicles strictly intended for local, regional or historical use, as well as vehicles originating from or destined for third countries;

(14) ‘upgrading’ means any major modification work on a subsystem or part of it which results in a change in the technical file accompanying the ‘EC’ declaration of verification, if that technical file exists, and which improves the overall performance of the subsystem;

(15) ‘renewal’ means any major substitution work on a subsystem or part of it which does not change the overall performance of the subsystem;

(16) ‘existing rail system’ means the infrastructure composed of lines and fixed installations of the existing rail network as well as the vehicles of all categories and origins travelling on that infrastructure;

(17) ‘substitution in the framework of maintenance’ means any replacement of components by parts of identical function and performance in the framework of preventive or corrective maintenance;

(18) ‘tram-train’ means a vehicle designed for combined use on both a light-rail infrastructure and a heavy-rail infrastructure;

(19) ‘placing in service’ means all the operations by which a subsystem is put into its operational service;

(20) ‘contracting entity’ means a public or private entity which orders the design and/or construction or the renewal or upgrading of a subsystem;

(21) ‘keeper’ means the natural or legal person that, being the owner of a vehicle or having the right to use it, exploits the vehicle as a means of transport and is registered as such in a vehicle register referred to in Article 47;

(22) ‘applicant’ means a natural or legal person requesting an authorisation, be it a railway undertaking, an infrastructure manager or any other person or legal entity, such as a manufacturer, an owner or a keeper; for the purpose of Article 15, the ‘applicant’ means a contracting entity or a manufacturer, or its authorised representatives; for the purpose of Article 19, the ‘applicant’ means a natural or legal person requesting the Agency’s decision for the approval of the technical solutions envisaged for the ERTMS trackside equipment projects;

(23) ‘project at an advanced stage of development’ means any project the planning or construction stage of which has reached a point where a change in the technical specifications may compromise the viability of the project as planned;

(24) ‘harmonised standard’ means a European standard as defined in point (c) of Article 2(1) of Regulation (EU) No 1025/2012;

(25) ‘national safety authority’ means a safety authority as defined in point (7) of Article 3 of Directive (EU) …/… (16);

(26) ‘type’ means a vehicle type defining the basic design characteristics of the vehicle as covered by a type or design examination certificate described in the relevant verification module;

(27) ‘series’ means a number of identical vehicles of a design type;

(28) ‘entity in charge of maintenance’ (‘ECM’) means an entity in charge of maintenance as defined in point (20) of Article 3 of Directive (EU)…/… (16);

(29) ‘light rail’ means an urban and/or suburban rail transport system with a crashworthiness of C-III or C-IV (in accordance with EN 15227:2011) and a maximum strength of vehicle of 800 kN (longitudinal compressive force in coupling area); light rail systems may have their own right of way or share it with road traffic and usually do not exchange vehicles with long-distance passenger or freight traffic;

(30) ‘national rules’ means all binding rules adopted in a Member State, irrespective of the body issuing them, which contain railway safety or technical requirements, other than those laid down by Union or international rules which are applicable within that Member State to railway undertakings, infrastructure managers or third parties;

(31) ‘design operating state’ means the normal operating mode and the foreseeable degraded conditions (including wear) within the range and the conditions of use specified in the technical and maintenance files;

(32) ‘area of use of a vehicle’ means a network or networks within a Member State or a group of Member States in which a vehicle is intended to be used;

(33) ‘acceptable means of compliance’ means non-binding opinions issued by the Agency to define ways of establishing compliance with the essential requirements;

(34) ‘acceptable national means of compliance’ means non-binding opinions issued by Member States to define ways of establishing compliance with national rules;

(35) ‘placing on the market’ means the first making available on the Union’s market of an interoperability constituent, subsystem or vehicle ready to function in its design operating state;

(36) ‘manufacturer’ means any natural or legal person who manufactures a product in the form of interoperability constituents, subsystems or vehicles, or has it designed or manufactured, and markets it under his name or trademark;

(37) ‘authorised representative’ means any natural or legal person established within the Union who has received a written mandate from a manufacturer or a contracting entity to act on behalf of that manufacturer or contracting entity in relation to specified tasks;

(38) ‘technical specification’ means a document that prescribes technical requirements to be fulfilled by a product, subsystem, process or service;

(39) ‘accreditation’ means accreditation as defined in point (10) of Article 2 of Regulation (EC) No 765/2008;

(40) ‘national accreditation body’ means a national accreditation body as defined in point (11) of Article 2 of Regulation (EC) No 765/2008;

(41) ‘conformity assessment’ means the process demonstrating whether specified requirements relating to a product, process, service, subsystem, person or body have been fulfilled;

(42) ‘conformity assessment body’ means a body that has been notified or designated to be responsible for conformity assessment activities, including calibration, testing, certification and inspection. A conformity assessment body is classified as a ‘notified body’ following notification by a Member State. A conformity assessment body is classified as a ‘designated body’ following designation by a Member State;

(43) person with disabilities and person with reduced mobility’ shall include any person who has a permanent or temporary physical, mental, intellectual or sensory impairment which, in interaction with various barriers, may hinder the full and effective use by that person of transport on an equal basis with other passengers or whose mobility when using transport is reduced due to age;

(44) ‘infrastructure manager’ means an infrastructure manager as defined in point (2) of Article 3 of Directive 2012/34/EU of the European Parliament and of the Council (17);

(45) ‘railway undertaking’ means a railway undertaking as defined in point (1) of Article 3 of Directive 2012/34/EU, and any other public or private undertaking, the activity of which is to provide transport of goods and/or passengers by rail on the basis that the undertaking is to ensure traction; this also includes undertakings which provide traction only.

Article 3

Essential requirements

1. The Union rail system, subsystems and interoperability constituents including interfaces shall meet the relevant essential requirements.

2. The technical specifications referred to in Article 60 of Directive 2014/25/EU, which are necessary to complete European specifications or other standards in use within the Union, shall not conflict with the essential requirements.

CHAPTER II

TECHNICAL SPECIFICATIONS FOR INTEROPERABILITY

Article 4

Content of TSIs

1. Each of the subsystems defined in Annex II shall be covered by one TSI. Where necessary, a subsystem may be covered by several TSIs and one TSI may cover several subsystems.

2. Fixed subsystems shall comply with the TSIs and national rules in force at the time of the request for authorisation of placing in service in accordance with this Directive and without prejudice to point (f) of paragraph 3.

Vehicles shall comply with TSIs and national rules in force at the time of the request for authorisation of placing on the market in accordance with this Directive and without prejudice to point (f) of paragraph 3.

The conformity and compliance of fixed subsystems and vehicles shall be permanently maintained while they are in use.

3. To the extent necessary to achieve the objectives of this Directive referred to in Article 1, each TSI shall:

(a) indicate its intended scope (part of network or vehicles referred to in Annex I; subsystem or part of subsystem referred to in Annex II);

(b) lay down essential requirements for each subsystem concerned and its interfaces in relation to other subsystems;

(c) establish the functional and technical specifications to be met by the subsystem and its interfaces in relation to other subsystems. If necessary, these specifications may vary according to the use of the subsystem, for example according to the categories of line, hub and/or vehicles provided for in Annex I;

(d) determine the interoperability constituents and interfaces which must be covered by European specifications, including European standards, which are necessary to achieve interoperability within the Union rail system;

(e) state, in each case under consideration, which procedures are to be used in order to assess the conformity or the suitability for use of the interoperability constituents, on the one hand, or the ‘EC’ verification of the subsystems, on the other. Those procedures shall be based on the modules defined in Commission Decision 2010/713/EU (18);

(f) indicate the strategy for the application of the TSI. In particular, it is necessary to specify the stages to be completed, taking into account the estimated costs and benefits and the expected repercussions for the stakeholders affected in order to make a gradual transition from the existing situation to the final situation in which compliance with the TSI shall be the norm. Where coordinated implementation of the TSI is necessary, such as along a corridor or between infrastructure managers and railway undertakings, the strategy may include proposals for staged completion;

(g) indicate, for the staff concerned, the professional qualifications and health and safety conditions at work required for the operation and maintenance of the above subsystem, as well as for the application of the TSIs;

(h) indicate the provisions applicable to the existing subsystems and vehicles, in particular in the event of upgrading and renewal and, in such cases, the modification work which requires an application for a new authorisation;

(i) indicate the parameters of the vehicles and fixed subsystems to be checked by the railway undertaking and the procedures to be applied to check those parameters after the delivery of the vehicle authorisation for placing on the market and before the first use of the vehicle to ensure compatibility between vehicles and the routes on which they are to be operated.

4. Each TSI shall be drawn up on the basis of an examination of an existing subsystem and indicate a target subsystem that may be obtained gradually within a reasonable timescale. Accordingly, the adoption of the TSIs and compliance with them shall gradually facilitate achievement of the interoperability of the Union rail system.

5. TSIs shall retain, in an appropriate manner, the compatibility of the existing rail system of each Member State. For that purpose, specific cases for each TSI may be provided for, with regard to both network and vehicles, and in particular for the loading gauge, the track gauge or space between the tracks and vehicles originating from or destined for third countries. For each specific case, the TSIs shall stipulate the implementing rules of the elements of the TSIs provided for in points (c) to (g) of paragraph 3.

6. If certain technical aspects corresponding to the essential requirements cannot be explicitly covered in a TSI, they shall be clearly identified in an annex to the TSI as open points.

7. TSIs shall not prevent the Member States from deciding on the use of infrastructures for the movement of vehicles not covered by the TSIs.

8. TSIs may make an explicit, clearly identified reference to European or international standards or specifications or technical documents published by the Agency where this is strictly necessary in order to achieve the objectives of this Directive. In such a case, these standards or specifications (or their relevant parts) or technical documents shall be regarded as annexes to the TSI concerned and shall become mandatory from the moment the TSI is applicable. In the absence of such standards or specifications or technical documents, and pending their development, reference may be made to other clearly identified normative documents that are easily accessible and in the public domain.

Article 5

Drafting, adoption and review of TSIs

1. In order to set out the specific objectives of each TSI, the Commission shall be empowered to adopt delegated acts in accordance with Article 50 concerning, in particular and where appropriate:

(a) the geographical and technical scope of the TSIs;

(b) the applicable essential requirements;

(c) the list of regulatory, technical and operational conditions to be harmonised at the level of subsystems and at the level of the interfaces between subsystems and their expected level of harmonisation;

(d) the railway-specific procedures for assessment of conformity and suitability for use of the interoperability constituents;

(e) the railway-specific procedures to assess the ‘EC’ verification of the subsystems;

(f) the categories of staff involved in the operation and maintenance of the subsystems concerned and the general objectives for setting the minimum requirements for professional qualifications and health and safety conditions for the staff concerned;

(g) any other necessary element to be taken into account to ensure interoperability pursuant to Article 1(1) and (2) within the Union rail system, such as alignment of TSI with European and international standards or specifications.

When adopting those delegated acts, the Commission shall justify the need for a new or substantially amended TSI, including its impact on existing rules and technical specifications.

2. In order to ensure uniform implementation of the delegated acts referred to in paragraph 1, the Commission shall request that the Agency draft TSIs and amendments thereto and make the relevant recommendations to the Commission.

Each draft TSI shall be drawn up in the following stages:

(a) the Agency shall identify the basic parameters for the TSI as well as the interfaces with the other subsystems and any other specific cases that may be necessary;

(b) the Agency shall draw up the draft TSI on the basis of the basic parameters referred to in point (a). Where appropriate, the Agency shall take account of technical progress, of standardisation work already carried out, of working parties already in place and of acknowledged research work.

3. When drafting or reviewing each TSI, including the basic parameters, the Agency shall take account of the estimated costs and benefits of all the technical solutions considered, together with the interfaces between them, so as to establish and implement the most viable solutions. That assessment shall indicate the likely impact on all the operators and economic actors involved and shall take due account of the requirements of Directive (EU)…/… (19). Member States shall participate in this assessment by providing, where appropriate, the requisite data.

4. The Agency shall draft the TSIs and amendments thereto in accordance with Articles 5 and 19 of Regulation (EU) …/… (20) while fulfilling the criteria of openness, consensus and transparency as defined in Annex II to Regulation (EU) No 1025/2012.

5. The committee referred to in Article 51 (‘the committee’) shall be kept periodically informed of the preparatory work on the TSIs. During that work, to comply with the delegated acts referred to in paragraph 1 of this Article, the Commission may formulate any terms of reference or useful recommendations concerning the design of the TSIs and a cost-benefit analysis. In particular, the Commission may require that alternative solutions be examined and that the assessment of the cost and benefits of those alternative solutions be set out in the report annexed to the draft TSI.

6. Where different subsystems have to be placed in service simultaneously for reasons of technical compatibility, the dates of application of the relevant TSIs shall be the same.

7. When drafting, adopting or reviewing the TSIs, the Agency shall take account of the opinion of users as regards the characteristics which have a direct impact on the conditions in which they use the subsystems. To that end, the Agency shall consult associations and bodies representing users during the drafting and review phases of the TSIs. It shall enclose with the draft TSI a report on the results of that consultation.

8. In accordance with Article 7 of Regulation (EU) …/… (20), the Commission, with the assistance of the committee, shall draw up and periodically update the list of passengers’ associations and bodies to be consulted. That list may be re-examined and updated at the request of a Member State or upon the initiative of the Commission.

9. When drafting or reviewing the TSIs, the Agency shall take account of the opinion of the social partners as regards the professional qualifications and health and safety conditions at work referred to in point (g) of Article 4(3). To that end, the Agency shall consult the social partners before submitting to the Commission recommendations on TSIs and their amendments. The social partners shall be consulted within the Sectoral Dialogue Committee set up in accordance with Commission Decision 98/500/EC (21). The social partners shall issue their opinion within three months of the consultation.

10. When the revision of a TSI leads to a change of requirements, the new TSI version shall ensure compatibility with subsystems placed in service in accordance with former TSI versions.

11. The Commission shall establish, by means of implementing acts, TSIs to implement the specific objectives set out in the delegated acts referred to in paragraph 1. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 51(3). They shall include all the elements listed in Article 4(3) and meet all the requirements set out in Article 4(4) to 4(6) and (8).

Article 6

Deficiencies in TSIs

1. If, after its adoption, it appears that a TSI has a deficiency, that TSI shall be amended in accordance with Article 5(11). If appropriate, the Commission shall apply this procedure without delay. Such deficiencies shall include cases which could result in unsafe operations within a Member State.

2. Pending the review of a TSI, the Commission may request an opinion from the Agency. The Commission shall analyse the Agency’s opinion and inform the committee of its conclusions.

3. At the request of the Commission, the Agency’s opinion referred to in paragraph 2 shall constitute acceptable means of compliance and may therefore be used for the assessment of projects, pending the adoption of a revised TSI.

4. Any member of the network of representative bodies referred to in Article 38(4) of Regulation (EU) …/… (22) may make the Commission aware of possible TSI deficiencies.

Article 7

Non-application of TSIs

1. Member States may allow the applicant not to apply one or more TSIs or parts of them in the following cases:

(a) for a proposed new subsystem or part of it, for the renewal or upgrading of an existing subsystem or part of it, or for any element referred to in Article 1(1) which is at an advanced stage of development or which is the subject of a contract in the course of performance on the date of application of the TSI(s) concerned;

(b) where, following an accident or a natural disaster, the conditions for the rapid restoration of the network do not economically or technically allow for partial or total application of the relevant TSIs, in which case the non-application of the TSIs shall be limited to the period before the restoration of the network;

(c) for any proposed renewal, extension or upgrading of an existing subsystem or part of it, when the application of the TSI(s) concerned would compromise the economic viability of the project and/or the compatibility of the rail system in the Member State concerned, for example in relation to the loading gauge, track gauge, space between tracks or electrification voltage;

(d) for vehicles arriving from or going to third countries, the track gauge of which is different from that of the main rail network within the Union;

(e) for a proposed new subsystem or for the proposed renewal or upgrading of an existing subsystem in the territory of the Member State concerned when its rail network is separated or isolated by the sea or separated as a result of special geographical conditions from the rail network of the rest of the Union.

2. In the case referred to in point (a) of paragraph 1, the Member State concerned shall communicate to the Commission, within one year of entry into force of each TSI, a list of projects that are taking place within its territory and which, in the view of the Member State concerned, are at an advanced stage of development.

3. In the cases referred to in points (a) and (b) of paragraph 1, the Member State concerned shall communicate to the Commission its decision not to apply one or more TSIs or parts of them.

4. In the cases referred to in points (a), (c), (d) and (e) of paragraph 1 of this Article, the Member State concerned shall submit to the Commission the request for non-application of the TSIs or parts of them, accompanied by a file containing the justification for the request, and specifying the alternative provisions that that Member State intends to apply instead of the TSIs. In the case referred to in point (e) of paragraph 1 of this Article, the Commission shall analyse the request and decide whether or not to accept it on the basis of the completeness and coherence of the information contained in the file. In the cases referred to in points (c) and (d) of paragraph 1 of this Article, the Commission shall adopt its decision by means of implementing acts on the basis of such analysis. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 51(3).

In the cases referred to in the third subparagraph of Article 21(6), the applicant shall submit the file to the Agency. The Agency shall consult the relevant safety authorities and give its final opinion to the Commission.

5. The Commission shall, by means of an implementing act, establish the information to be included in the file referred to in paragraph 4, the required format of that file and the method to be used for its transmission. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 51(3).

6. Pending the decision of the Commission, the Member State may apply the alternative provisions referred to in paragraph 4 without delay.

7. The Commission shall give its decision within four months of submission of the request supported by the complete file. In the absence of such a decision, the request shall be deemed to have been accepted.

8. Member States shall be informed of the results of the analyses and of the outcome of the procedure set out in paragraph 4.

CHAPTER III

INTEROPERABILITY CONSTITUENTS

Article 8

Conditions for the placing on the market of interoperability constituents

1. Member States shall take all necessary steps to ensure that interoperability constituents are:

(a) placed on the market only if they enable interoperability to be achieved within the Union rail system while at the same time meeting the essential requirements;

(b) used in their area of use as intended and suitably installed and maintained.

This paragraph shall not prevent the placing on the market of those constituents for other applications.

2. Member States shall not, in their territory and on the basis of this Directive, prohibit, restrict or hinder the placing on the market of interoperability constituents for use in the Union rail system where these constituents comply with this Directive. In particular, they shall not require checks which have already been carried out as part of the procedure for ‘EC’ declaration of conformity or suitability for use as provided for in Article 10.

Article 9

Conformity or suitability for use

1. Member States and the Agency shall consider that an interoperability constituent meets the essential requirements if it complies with the conditions laid down in the corresponding TSI or the corresponding European specifications developed to comply with those conditions. The ‘EC’ declaration of conformity or suitability for use shall attest that the interoperability constituents have been subject to the procedures laid down in the corresponding TSI for assessing conformity or suitability for use.

2. Where the TSI so requires, the ‘EC’ declaration shall be accompanied by:

(a) a certificate, issued by a notified body or bodies, of the intrinsic conformity of an interoperability constituent considered in isolation, to the technical specifications to be met;

(b) a certificate, issued by a notified body or bodies, of the suitability for use of an interoperability constituent considered within its railway environment, particularly in the case of functional requirements concerned.

3. The ‘EC’ declaration shall be dated and signed by the manufacturer or its authorised representative.

4. The Commission shall establish, by means of implementing acts, the template of the ‘EC’ declaration of conformity or suitability for use of interoperability constituents and the list of accompanying documents. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 51(3).

5. Spare parts for subsystems that are already placed in service when the corresponding TSI enters into force may be installed in those subsystems without being subject to paragraph 1.

6. TSIs may provide for a period of transition for rail products identified by those TSIs as interoperability constituents which have already been placed on the market when the TSIs enter into force. Such constituents shall comply with Article 8(1).

Article 10

Procedure for ‘EC’ declaration of conformity or suitability for use

1. In order to establish the ‘EC’ declaration of conformity or suitability for use of an interoperability constituent, the manufacturer or his authorised representative shall apply the provisions laid down by the relevant TSIs.

2. Where the corresponding TSI so requires, assessment of the conformity or suitability for use of an interoperability constituent shall be carried out by the notified body with which the manufacturer or his authorised representative has lodged the application.

3. Where interoperability constituents are the subject of other legal acts of the Union covering other matters, the ‘EC’ declaration of conformity or suitability for use shall state that the interoperability constituents also meet the requirements of those other legal acts.

4. Where neither the manufacturer nor his authorised representative has met the obligations laid down in paragraphs 1 and 3, those obligations shall be incumbent on any person who places interoperability constituents on the market. For the purposes of this Directive, the same obligations shall apply to any person who assembles interoperability constituents, or parts of interoperability constituents having diverse origins, or manufactures interoperability constituents for his own use.

5. If a Member State finds that the ‘EC’ declaration has been drawn up improperly, it shall ensure that the interoperability constituent is not placed on the market. In such a case, the manufacturer or his authorised representative shall be required to restore the interoperability constituent to a state of conformity under the conditions laid down by that Member State.

Article 11

Non-compliance of interoperability constituents with essential requirements

1. Where a Member State finds that an interoperability constituent covered by the ‘EC’ declaration of conformity or suitability for use and placed on the market is, when used as intended, unlikely to meet the essential requirements, that Member State shall take all necessary steps to restrict its field of application, prohibit its use, withdraw it from the market or recall it. The Member State shall forthwith inform the Commission, the Agency and the other Member States of the measures taken and give reasons for its decision, stating in particular whether the failure to conform is due to:

(a) failure to meet the essential requirements;

(b) incorrect application of European specifications where application of such specifications is relied upon;

(c) inadequacy of European specifications.

2. The Agency, on a mandate from the Commission, shall start the consultation process with the parties concerned without delay and in any case within 20 days of the date of receipt of that mandate. Where, following that consultation, the Agency establishes that the measure is unjustified, it shall forthwith inform the Commission, the Member State that has taken the initiative as well as other Member States, and the manufacturer or his authorised representative. Where the Agency establishes that the measure is justified, it shall forthwith inform the Member States.

3. Where the decision referred to in paragraph 1 results from an inadequacy of European specifications, the Member States, the Commission or the Agency, as appropriate, shall apply one or more of the following measures:

(a) partial or total withdrawal of the specification concerned from the publications containing them;

(b) if the relevant specification is a harmonised standard, restriction or withdrawal of that standard in accordance with Article 11 of Regulation (EU) No 1025/2012;

(c) review of the TSI in accordance with Article 6.

4. Where an interoperability constituent bearing the ‘EC’ declaration of conformity fails to comply with the essential requirements, the competent Member State shall take appropriate measures against any entity which has drawn up the declaration and shall inform the Commission and the other Member States thereof.

CHAPTER IV

SUBSYSTEMS

Article 12

Free movement of subsystems

Without prejudice to the provisions of Chapter V, Member States shall not, in their territory and on grounds relating to this Directive, prohibit, restrict or hinder the construction, placing in service and operation of structural subsystems constituting the rail system which meet the essential requirements. In particular, they shall not require checks which have already been carried out:

(a) as part of the procedure leading to the ‘EC’ declaration of verification; or

(b) in other Member States, before or after the entry into force of this Directive, with a view to verifying compliance with identical requirements under identical operational conditions.

Article 13

Conformity with TSIs and national rules

1. The Agency and the national safety authorities shall consider as meeting the essential requirements, those structural subsystems constituting the rail system which are covered, as appropriate, by the ‘EC’ declaration of verification established by reference to TSIs, in accordance with Article 15, or the declaration of verification established by reference to national rules in accordance with Article 15(8), or both.

2. National rules for implementing the essential requirements and, where relevant, acceptable national means of compliance, shall apply in the following cases:

(a) where the TSIs do not cover, or do not fully cover, certain aspects corresponding to the essential requirements, including open points as referred to in Article 4(6);

(b) where non-application of one or more TSIs or parts of them has been notified under Article 7;

(c) where a specific case requires the application of technical rules not included in the relevant TSI;

(d) national rules used to specify existing systems, limited to the aim of assessing technical compatibility of the vehicle with the network;

(e) networks and vehicles not covered by TSIs;

(f) as an urgent temporary preventive measure, in particular following an accident.

Article 14

Notification of national rules

1. Member States shall notify to the Commission and to the Agency the existing national rules referred to in Article 13(2) in the following cases:

(a) where the national rule(s) has/have not been notified by … (23). In that case, they shall be notified by … (24);

(b) each time the rules are changed;

(c) when a new request has been submitted in accordance with Article 7 for non-application of the TSI;

(d) where national rules become redundant after publication or revision of the TSI concerned.

2. Member States shall notify the full text of national rules referred to in paragraph 1 through the appropriate IT system in accordance with Article 27 of Regulation (EU) …/… (25).

3. Member States shall ensure that national rules referred to in paragraph 1, including those covering the interfaces between vehicles and networks, are easily accessible, in the public domain and formulated in terminology that all interested parties can understand. Member States may be requested to provide additional information on those national rules.

4. Member States may lay down new national rules only in the following cases:

(a) when a TSI does not fully meet the essential requirements;

(b) as an urgent preventive measure, in particular following an accident.

5. Member States shall submit, through the appropriate IT system in accordance with Article 27 of Regulation (EU) …/… (25), the drafts of new national rules to the Agency and the Commission for consideration before the expected introduction of the proposed new rule into the national legal system, in due time and within the deadlines referred to in Article 25(1) of Regulation (EU) …/… (25) and provide justification for the introduction of that new national rule. Member States shall ensure that the draft is sufficiently developed to allow the Agency to carry out its examination in accordance with Article 25(2) of Regulation (EU) …/… (25).

6. When they adopt a new national rule, Member States shall notify it to the Agency and the Commission through the appropriate IT system in accordance with Article 27 of Regulation (EU) …/… (25).

7. In the case of urgent preventive measures, Member States may adopt and apply a new national rule immediately. That rule shall be notified in accordance with Article 27(2) of Regulation (EU)…/… (25) and subject to the assessment of the Agency in accordance with Article 26(1), (2) and (5) of that Regulation.

8. When notifying a national rule referred to in paragraph 1 or a new national rule, Member States shall provide justification of the need for that rule in order to fulfil an essential requirement not already covered by the relevant TSI.

9. Draft national rules and national rules referred to in paragraph 1 shall be examined by the Agency in accordance with the procedures laid down in Articles 25 and 26 of Regulation (EU) …/… (25).

10. The Commission shall establish, by means of implementing acts, the classification of the notified national rules in different groups with the aim of facilitating cross-acceptance in different Member States and the placing on the market of vehicles, including compatibility between fixed and mobile equipment. Those implementing acts shall build on the progress achieved by the Agency in the field of cross-acceptance and shall be adopted in accordance with the examination procedure referred to in Article 51(3).

The Agency shall classify, in accordance with the implementing acts referred to in the first subparagraph, the national rules which are notified in accordance with this Article.

11. Member States may decide not to notify rules and restrictions of a strictly local nature. In such cases, Member States shall mention those rules and restrictions in the registers of infrastructure referred to in Article 49.

12. National rules notified under this Article are not subject to the notification procedure set out in Directive (EU) 2015/1535 of the European Parliament and of the Council (26).

13. National rules not notified in accordance with this Article shall not apply for the purposes of this Directive.

Article 15

Procedure for establishing the ‘EC’ declaration of verification

1. In order to establish the ‘EC’ declaration of verification necessary for placing on the market and placing in service referred to in Chapter V, the applicant shall request the conformity assessment body or bodies that it has selected for that purpose to apply the ‘EC’ verification procedure set out in Annex IV.

2. The applicant shall establish the ‘EC’ declaration of verification of a subsystem. The applicant shall declare on his sole responsibility that the subsystem concerned has been subject to the relevant verification procedures and that it satisfies the requirements of relevant Union law and any relevant national rule. The ‘EC’ declaration of verification and the accompanying documents shall be dated and signed by the applicant.

3. The task of the notified body responsible for the ‘EC’ verification of a subsystem shall begin at the design stage and cover the entire manufacturing period through to the acceptance stage before the subsystem is placed on the market or in service. It shall, in accordance with the relevant TSI, also cover verification of the interfaces of the subsystem in question with the system into which it is incorporated.

4. The applicant shall be responsible for compiling the technical file that is to accompany the ‘EC’ declaration of verification. That technical file shall contain all the necessary documents relating to the characteristics of the subsystem and, where appropriate, all the documents certifying conformity of the interoperability constituents. It shall also contain all the elements relating to the conditions and limits of use and to the instructions concerning servicing, constant or routine monitoring, adjustment and maintenance.

5. In the event of the renewal or upgrading of a subsystem resulting in an amendment to the technical file and affecting the validity of the verification procedures already carried out, the applicant shall assess the need for a new ‘EC’ declaration of verification.

6. The notified body may issue intermediate statement verifications to cover certain stages of the verification procedure or certain parts of the subsystem.

7. If the relevant TSIs allow, the notified body may issue certificates of verification for one or more subsystems or certain parts of those subsystems.

8. Member States shall designate the bodies responsible for carrying out the verification procedure in respect of national rules. In that regard, designated bodies shall be responsible for the tasks involved. Without prejudice to Article 30, a Member State may appoint a notified body as a designated body, in which case the entire process may be carried out by a single conformity assessment body.

9. The Commission may specify, by means of implementing acts:

(a) the details of the ‘EC’ verification procedures for subsystems, including the verification procedure in the case of national rules and the documents to be submitted by the applicant for the purposes of that procedure;

(b) the templates for the ‘EC’ declaration of verification, including in the case of a modification of the subsystem or in the case of additional verifications, the intermediate statement of verification, and templates for documents of the technical file that is to accompany those declarations as well as templates for the certificate of verification.

Those implementing acts shall be adopted in accordance with the examination procedure referred to Article 51(3).

Article 16

Non-compliance of subsystems with essential requirements

1. Where a Member State finds that a structural subsystem covered by the ‘EC’ declaration of verification accompanied by the technical file does not fully comply with this Directive and, in particular, does not meet the essential requirements, it may request that additional checks be carried out.

2. The Member State making the request shall forthwith inform the Commission of any additional checks requested and set out the reasons therefor. The Commission shall consult the interested parties.

3. The Member State making the request shall state whether the failure to fully comply with this Directive is due to:

(a) non-compliance with the essential requirements or with a TSI, or incorrect application of a TSI, in which case the Commission shall forthwith inform the Member State where the person who drew up the ‘EC’ declaration of verification in error resides and shall request that Member State to take the appropriate measures;

(b) inadequacy of a TSI, in which case the procedure for amending the TSI as referred to in Article 6 shall apply.

Article 17

Presumption of conformity

Interoperability constituents and subsystems which are in conformity with harmonised standards or parts thereof, the references of which have been published in the Official Journal of the European Union, shall be presumed to be in conformity with the essential requirements covered by those standards or parts thereof.

CHAPTER V

PLACING ON THE MARKET AND PLACING IN SERVICE

Article 18

Authorisation for the placing in service of fixed installations

1. The trackside control-command and signalling, energy and infrastructure subsystems shall be placed in service only if they are designed, constructed and installed in such a way as to meet the essential requirements, and the relevant authorisation is received in accordance with paragraphs 3 and 4.

2. Each national safety authority shall authorise the placing in service of the energy, infrastructure and trackside control-command and signalling subsystems which are located or operated in the territory of its Member State.

3. National safety authorities shall provide detailed guidance on how to obtain the authorisations referred to in this Article. An application guidance document describing and explaining the requirements for those authorisations and listing the documents required shall be made available to applicants free of charge. The Agency and the national safety authorities shall cooperate in disseminating such information.

4. The applicant shall submit a request for authorisation of the placing in service of fixed installations to the national safety authority. The application shall be accompanied by a file which includes documentary evidence of:

(a) the declarations of verification referred to in Article 15;

(b) the technical compatibility of the subsystems with the system into which they are being integrated, established on the basis of the relevant TSIs, national rules and registers;

(c) the safe integration of the subsystems, established on the basis of the relevant TSIs, national rules, and the common safety methods (‘CSMs’) set out in Article 6 of Directive (EU) …/… (27);

(d) in the case of trackside control-command and signalling subsystems involving European train control system (ETCS) and/or global system for mobile communications — railway (GSM-R) equipment, the positive decision of the Agency issued in accordance with Article 19 of this Directive; and, in the case of a change to the draft tender specifications or to the description of the envisaged technical solutions that occurred after the positive decision, the compliance with the result of the procedure referred to in Article 30(2) of Regulation (EU)…/… (28).

5. Within one month of receipt of the applicant’s request, the national safety authority shall inform the applicant that the file is complete or ask for relevant supplementary information, setting a reasonable deadline for the provision thereof.

The national safety authority shall verify the completeness, relevance and consistency of the file, and, in the case of trackside ERTMS equipment, compliance with the positive decision of the Agency issued in accordance with Article 19 of this Directive and, where appropriate, compliance with the result of the procedure referred to in Article 30(2) of Regulation (EU) …/… (29). Following such verification, the national safety authority shall issue the authorisation for placing in service of fixed installations, or inform the applicant of its negative decision, within a predetermined, reasonable time, and, in any case, within four months of receipt of all relevant information.

6. In the event of renewal or upgrading of existing subsystems, the applicant shall send a file describing the project to the national safety authority. Within one month of receipt of the applicant’s request, the national safety authority shall inform the applicant that the file is complete or ask for relevant supplementary information, setting a reasonable deadline for the provision thereof. The national safety authority, in close cooperation with the Agency in the case of trackside ERTMS projects, shall examine the file and shall decide whether a new authorisation for placing in service is needed, on the basis of the following criteria:

(a) the overall safety level of the subsystem concerned may be adversely affected by the works envisaged;

(b) it is required by the relevant TSIs;

(c) it is required by the national implementation plans established by the Member States; or

(d) changes are made to the values of the parameters on the basis of which the authorisation was already granted.

The national safety authority shall take its decision within a predetermined, reasonable time, and, in any case, within four months of receipt of all relevant information.

7. A decision refusing a request for an authorisation for the placing in service of fixed installations shall be duly substantiated by the national safety authority. The applicant may, within one month of receipt of the negative decision, submit a request that the national safety authority review its decision. The request shall be accompanied by a justification. The national safety authority shall have two months from the date of receipt of the request for review in which to confirm or reverse its decision. If the negative decision of a national safety authority is confirmed, the applicant may bring an appeal before the appeal body designated by the relevant Member State under Article 18(3) of Directive (EU) …/… (30).

Article 19

Harmonised implementation of ERTMS in the Union

1. In the case of trackside control-command and signalling subsystems involving ETCS and/or GSM-R equipment, the Agency shall ensure the harmonised implementation of ERTMS in the Union.

2. In order to ensure the harmonised implementation of ERTMS and interoperability at Union level, before any call for tenders relating to ERTMS trackside equipment, the Agency shall check that the technical solutions envisaged are fully compliant with the relevant TSIs and are therefore fully interoperable.

3. The applicant shall submit a request for the Agency’s approval. The application relating to individual ERTMS projects or for a combination of projects, a line, a group of lines or a network, shall be accompanied by a file which includes:

(a) the draft tender specifications or the description of the envisaged technical solutions;

(b) documentary evidence of the conditions necessary for technical and operational compatibility of the subsystem with the vehicles intended to operate on the relevant network;

(c) documentary evidence of the compliance of technical solutions envisaged with the relevant TSIs;

(d) any other relevant documents, such as national safety authority opinions, declarations of verification or conformity certificates.

That application and information about all applications, the stages of the relevant procedures and their outcome, and, where applicable, the requests and decisions of the Board of Appeal, shall be submitted through the one-stop shop referred to in Article 12 of Regulation (EU) …/… (31).

The national safety authorities may issue an opinion on the request for approval either to the applicant before the submission of the request or to the Agency after such a submission.

4. Within one month of receipt of the applicant’s request, the Agency shall inform the applicant that the file is complete or ask for relevant supplementary information, setting a reasonable deadline for the provision thereof.

The Agency shall issue a positive decision, or inform the applicant of possible deficiencies, within a predetermined, reasonable time period, and in any case, within two months of receipt of all relevant information. The Agency shall base its opinion on the file of the applicant and on possible opinions from the national safety authorities.

If the applicant agrees with the deficiencies identified by the Agency, the applicant shall rectify the project design and introduce a new request for approval to the Agency.

If the applicant does not agree with the deficiencies identified by the Agency, the procedure referred to in paragraph 5 shall apply.

In the case referred to in point (a) of Article 7(1), the applicant shall not request a new assessment.

5. If the decision of the Agency is not positive, it shall be duly substantiated by the Agency. The applicant may, within one month of receipt of such a decision, submit a reasoned request that the Agency review its decision. The Agency shall confirm or reverse its decision within two months of the date of receipt of the request. If the Agency confirms its initial decision, the applicant is entitled to bring an appeal before the Board of Appeal established under Article 55 of Regulation (EU) …/… (31).

6. In the case of a change to the draft tender specifications or to the description of the envisaged technical solutions that occurred after the positive decision, the applicant shall inform, without undue delay, the Agency and the national safety authority through the one-stop shop referred to in Article 12 of Regulation (EU) …/… (31). In that case, point (a) of Article 30(2) of that Regulation shall apply.

Article 20

Placing on the market of mobile subsystems

1. Mobile subsystems shall be placed on the market by the applicant only if they are designed, constructed and installed in such a way as to meet the essential requirements.

2. In particular, the applicant shall ensure that the relevant declaration of verification has been provided.

Article 21

Vehicle authorisation for placing on the market

1. The applicant shall place a vehicle on the market only after having received the vehicle authorisation for placing on the market issued by the Agency in accordance with paragraphs 5 to 7 or by the national safety authority in accordance with paragraph 8.

2. In its application for a vehicle authorisation for placing on the market, the applicant shall specify the area of use of the vehicle. The application shall include evidence that the technical compatibility between the vehicle and the network of the area of use has been checked.

3. The application for a vehicle authorisation for placing on the market shall be accompanied by a file concerning the vehicle or vehicle type and including documentary evidence of:

(a) the placing on the market of the mobile subsystems of which the vehicle is composed in accordance with Article 20, on the basis of the ‘EC’ declaration of verification;

(b) the technical compatibility of the subsystems referred to in point (a) within the vehicle, established on the basis of the relevant TSIs, and where applicable, national rules;

(c) the safe integration of the subsystems referred to in point (a) within the vehicle, established on the basis of the relevant TSIs, and where applicable, national rules, and the CSM’s referred to in Article 6 of Directive (EU) …/… (32);

(d) the technical compatibility of the vehicle with the network in the area of use referred to in paragraph 2, established on the basis of the relevant TSIs and, where applicable, national rules, registers of infrastructure and the CSM on risk assessment referred to in Article 6 of Directive (EU) …/… (32).

That application and information about all applications, the stages of the relevant procedures and their outcome, and, where applicable, the requests and decisions of the Board of Appeal, shall be submitted through the one-stop shop referred to in Article 12 of Regulation (EU) …/… (33).

Whenever tests are necessary in order to obtain documentary evidence of the technical compatibility referred to in points (b) and (d) of the first subparagraph, the national safety authorities involved may issue temporary authorisations to the applicant to use the vehicle for practical verifications on the network. The infrastructure manager, in consultation with the applicant, shall make every effort to ensure that any tests take place within three months of receipt of the applicant’s request. Where appropriate, the national safety authority shall take measures to ensure that the tests take place.

4. The Agency or, in the case of paragraph 8, the national safety authority shall issue vehicle authorisations for placing on the market or inform the applicant of its negative decision within a predetermined, reasonable time, and in any case within four months of receipt of all relevant information from the applicant. The Agency, or, in the cases provided for in paragraph 8, the national safety authority, shall apply the practical arrangements on the authorisation procedure to be established in an implementing act, as referred to in paragraph 9. Those authorisations shall allow vehicles to be placed on the Union market.

5. The Agency shall issue vehicle authorisations for placing on the market in respect of vehicles having an area of use in one or more Member States. In order to issue such authorisations, the Agency shall:

(a) assess the elements of the file specified in points (b), (c) and (d) of the first subparagraph of paragraph 3 in order to verify the completeness, relevance and consistency of the file in relation to the relevant TSIs; and

(b) refer the applicant’s file to the national safety authorities concerned by the intended area of use for assessment of the file in order to verify its completeness, relevance and consistency in relation to point (d) of the first subparagraph of paragraph 3 and to the elements specified in points (a), (b) and (c) of the first subparagraph of paragraph 3 in relation to the relevant national rules.

As part of the assessments pursuant to points (a) and (b) and in the case of justified doubts, the Agency or the national safety authorities may request that tests be conducted on the network. In order to facilitate those tests, the national safety authorities involved may issue temporary authorisations to the applicant to use the vehicle for tests on the network. The infrastructure manager shall make every effort to ensure that any such test takes place within three months of the request of the Agency or the national safety authority.

6. Within one month of receipt of the applicant’s request, the Agency shall inform the applicant that the file is complete or ask for relevant supplementary information, setting a reasonable deadline for the provision thereof. With regard to the completeness, relevance and consistency of the file, the Agency may also assess the elements specified in point (d) of paragraph 3.

The Agency shall take full account of the assessments under paragraph 5 before taking its decision on the issuance of the vehicle authorisation for placing on the market. The Agency shall issue the authorisation for placing on the market, or inform the applicant of its negative decision, within a predetermined, reasonable time, and in any case within four months of receipt of all relevant information.

In the event of non-application of one or more TSIs or parts of them as referred to in Article 7, the Agency shall issue the vehicle authorisation only after application of the procedure laid down in that Article.

The Agency shall take full responsibility for the authorisations it issues.

7. When the Agency disagrees with a negative assessment carried out by one or more national safety authorities pursuant to point (b) of paragraph 5, it shall inform the authority or authorities in question, giving reasons for its disagreement. The Agency and the national safety authority or authorities shall cooperate with a view to reaching a mutually acceptable assessment. Where necessary, as decided by the Agency and the national safety authority or authorities, this process shall also involve the applicant. If no mutually acceptable assessment can be agreed on within one month after the Agency has informed the national safety authority or authorities of its disagreement, the Agency shall take its final decision unless the national safety authority or authorities have referred the matter for arbitration to the Board of Appeal established under Article 55 of Regulation (EU) …/… (34). The Board of Appeal shall decide whether to confirm the Agency’s draft decision within one month of the request of the national safety authority or authorities.

Where the Board of Appeal agrees with the Agency, the Agency shall take a decision without delay.

Where the Board of Appeal agrees with the negative assessment of the national safety authority, the Agency shall issue an authorisation with an area of use excluding the parts of the network which received a negative assessment.

Where the Agency disagrees with a positive assessment of one or more national safety authorities pursuant to point (b) of paragraph 5, it shall inform the authority or authorities in question, giving reasons for its disagreement. The Agency and the national safety authority or authorities shall cooperate with a view to agreeing on a mutually acceptable assessment. Where necessary, as decided by the Agency and the national safety authority or authorities, this process shall also involve the applicant. If no mutually acceptable assessment can be agreed on within one month after the Agency has informed the national safety authority and authorities of its disagreement, the Agency shall take its fin