Communication of the Commission to the Council and the European Parliament - "Facilitating the movement of locomotives across the European Union" {SEC(2006) 1640} {SEC(2006) 1641} {SEC(2006) 1642}
Date: 2006-12-13
Institutions: European Commission
Subjects: European standard, rail network, rail transport, technical regulations, trans-European network, transport infrastructure, vehicle on rails

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 13.12.2006 
COM(2006) 782 final 

COMMUNICATION OF THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT 

"Facilitating the movement of locomotives across the European Union" 

{SEC(2006) 1640} 
{SEC(2006) 1641} 
{SEC(2006) 1642} 

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   EN 

 
 
 
  
COMMUNICATION OF THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT 

"Facilitating the movement of locomotives across the European Union" 

1. 

INTRODUCTION 

In  the  context  of  the  review  of  the  September  2001  White  Paper  on  European  transport 
policy1,  the  Commission  reaffirmed  the  environmental  and  societal  advantages  of  railways, 
and  the  key  role  they  can  play  in  ensuring  sustainable  mobility.  On  that  occasion,  the 
Commission  announced  initiatives  to  remove  technical  and  operational  barriers  to 
international  rail  activities  with  the  help  of  the  rail  industry  and  the  European  Railway 
Agency. 

Rail  transport  did  in  fact  experience  an  unprecedented  rise  in  popularity  during  the  19th 
century and the first half of the 20th century before spiralling into decline with the upsurge of 
car ownership and commercial aviation. In order to arrest this downward trend, the European 
Community  has  adopted  legislation  whose  main  aim  is  to  revive  rail  transport  through  the 
gradual development of an integrated European railways area.  

The  foundations  were  laid  with  the  adoption  of  Directives  91/440,  95/18  and  95/19  on  the 
separation  of  accounts,  infrastructure  charging  and  capacity  allocation.  In  parallel,  the  first 
measures  were  adopted  in  order  to  eliminate  the  "technical"  barriers  hindering  the 
development  of  rail  transport.  The  Rail  Interoperability  Directives2  made  it  possible  to 
launch  the  technical  work  needed  to  define  the  technical  specifications  for  interoperability 
(TSIs), which are essential to ensure that trains can run safely and seamlessly throughout the 
entire trans-European rail transport network.  

Adopted at the end of 2000, the first railway package enables any railway company licensed 
in accordance with Community criteria to be granted access to the railway infrastructure on 
fair  and  non-discriminatory 
to  provide  pan-European  services,  starting  with 
international  freight  services  on  the  trans-European  rail  freight  network.  On  the  basis  of 
decisions in the first railway package, the September 2001 White Paper on European transport 
policy clearly advocated the continued development of a European railway area.  

terms 

This  is  the  basis  on  which  the  second  railway  package  was  adopted,  on  30  April  2004, 
comprising  a  precise  timetable  for  more  extensive  opening  up  of  the  freight  market  on  1 
January  2007,  a  Railway  Safety  Directive,  a  Regulation  establishing  a  European  Railway 
Agency and an updating of the Railway Interoperability Directives.  

1 

2 

See COM(2006) 314: Keep Europe Moving – Sustainable mobility for our continent; mid-term review 
of the Transport White Paper published by the European Commission in 2001.  
Council  Directive  96/48/EC  of 23 July  1996  on  the  interoperability  of  the  trans-European  high-speed 
rail network, OJ L 235, 17 September 1996, and Directive 2001/16/CE of the European Parliament and 
of the Council of 19 March 2001 on the interoperability of the trans-European conventional rail system, 
OJ L 110, 20 April 2001. 

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Since  March  2004,  the  Commission  has  put  forward  a  third  railway  package  with  new 
proposals,  this  time  on  the  opening  up,  by  2010,  of  the  international  passenger  transport 
market, the certification of train crews and passengers' rights. On 24 July 2006, the Council 
adopted its common position on the third package, which is currently at the second reading 
stage.  Once  the  third  package  has  been  adopted,  it  will  be  true  to  say  that  the  European 
regulatory  framework  for  the  railway  sector  is  complete,  which  does  not  mean  that 
improvements cannot be made.  

This  initiative  is  aimed  precisely  at  making  such  improvements  to  the  technical  part  of  the 
regulatory  framework,  namely  the  Railway  Interoperability  Directives,  the  Rail  Safety 
Directive and the Regulation establishing the European Railway Agency (hereinafter referred 
to as "the Agency").  

Firstly, as stated in the report on the implementation of Annex XIII of the first package, one 
of  the  crucial  points  still  requiring  improvement  to  facilitate  the  movement  of  trains 
concerns the procedure for the approval of locomotives. According to manufacturers and 
railway companies, this procedure is still often very long and too costly. They believe there is 
little  justification  on  purely  technical  grounds  for  some  of  the  requirements  imposed  by  the 
competent authorities. This is the problem which the Commission proposes to resolve through 
this initiative by providing for changes to the legislative framework and asking the competent 
authorities of the Member States to adjust their procedures with immediate effect.  

Secondly, in the framework of the programme for simplifying legislation3 the Commission 
proposes consolidating and merging the Railway Interoperability Directives (96/48, 2001/16, 
2004/50).  

Thirdly,  drawing  on  its  ten  years'  experience  of  implementing  the  "Interoperability" 
Directives4, and working on the basis of the Member States' contribution to the work done by 
the committee assisting the Commission and the contributions which were forthcoming from 
all stakeholders to the development of the TSIs, the Commission intends to propose a series of 
improvements to the technical part of the regulatory framework. 

2. 

SIMPLIFYING NATIONAL PROCEDURES FOR THE APPROVAL OF LOCOMOTIVES 

2.1. 

Difficulties encountered 

Rolling  stock  accepted  for  operational  service  within  one  Member  State  is  not  necessarily 
cross-accepted for operation in any other Member State. The cross-acceptance of rolling stock 
is  subject  to  the  various  and  divergent  national  requirements  in  the  Member  States  for 
authorising the placing of rolling stock in service. International operators have to go through 
repeated  approval  processes  in  each  Member  State  where  they  intend  to  operate,  often 
requiring  the  provision  of  evidence  not  mutually  recognised  by  Member  States.  Experience 
demonstrates  that  this  results  in  delays  and  costs  to  both  railway  undertakings  and 
manufacturers when placing rolling stock into service. 

3 

4 

See  COM(2005) 535  and  COM(2006) 690:  Implementing  the  Community  Lisbon  programme:  A 
strategy for the simplification of the regulatory environment. 
See  also  the  Commission's  report  on  the  implementation  of  the  interoperability  directives  adopted  on 
6 November 2006. 

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The situation differs according to the type of rolling stock. 

As far as locomotives and multiple units are concerned, in order to obtain authorisation to 
enter  into  service  in  another  Member  State,  in-use  locomotives  must  be  demonstrated  to  be 
compliant  with  the  national  rules  of  that  Member  State.  National  rules  will  comprise 
specifications and standards relating to infrastructure compatibility and also specific national 
safety  requirements.  Railway  infrastructures  across  the  Member  States  have  differing 
characteristics,  such  as  infrastructure  gauge,  electro-magnetic  interference  characteristics, 
traction  power  supply  voltages  and  control  command  systems.  Specific  national  safety 
requirements  have  their  basis  in  national  technical  characteristics  and  also  reflect  historical 
lessons  learnt  from  accidents  and  incidents  that  have  occurred  within  individual  Member 
States.  

Recent  studies5  have  shown  that  similar  safety  rules  exist  across  all  Member  States,  for 
example  for  vehicle  rear-end  indication,  the  fire  safety  of  rolling  stock,  the  operation  of 
passenger  doors,  emergency  lighting  etc.  However,  the  detailed  national  criteria  for 
demonstrating compliance with these rules vary enormously. Nonetheless, the level of railway 
safety  does  not  vary  a  great  deal  between  Member  States,  indicating  that  the  approach  to 
safety is comparable across national railways. 

In some Member States, safety and technical rules are still emerging and are in the process of 
being  identified,  documented  and  published,  as  provided  for  in  the  Railway  Interoperability 
and  Safety  Directives.  However,  a  preliminary  assessment  of  these  rules  has  revealed 
significant  divergences  regarding  the  interpretation  of  what  is  a  national  safety  rule,  along 
with a failure to notify rules for a number of reasons, for example when rules are considered 
to  be  covered  by  IPR.  Consequently,  there  is  still  a  lack  of  full  visibility  across  the  EU 
railways  of  the  national  rules  in  place  for  the  approval  of  rolling  stock.  This  presents 
manufacturers and railway undertakings with additional problems when seeking authorisation 
of new or  in-use  rolling stock, as they risk incorporating  specific national requirements late 
into the design of the vehicle, causing delay in or increasing the cost of placing rolling stock 
in service.  

For  wagons  and  passenger  cars,  existing  agreements  such  as  RIC  and  RIV  have  ensured 
cross-acceptance on the basis of a number of conditions, one of which is the registration of 
wagons and passenger cars with UIC members, who in turn take charge of the maintenance of 
this rolling stock. Once the European Interoperability and Safety Directives are implemented, 
the  provisions  of  RIV/RIC  will  be  replaced  partially  by  EU  provisions  and  partially  by  the 
new GCU contract. Until all TSIs are adopted, infrastructure and rolling stock registers are in 
place, national safety authorities are set up and able to place rolling stock in service, including 
registration,  and  Member  States  have  fully  implemented  the  Interoperability  and  Safety 
Directives,  we  are  in  a  period  of  transition.  It  is  important  that  all  actors  know  their 
responsibilities and which provisions they have to apply during this transitional period. This is 
why  a  “transition  guide”  has  been  developed  by  the  Commission  in  consultation  with  all 
stakeholders  and  the  Member  States.  The  principle  of  mutual  acceptance  of  existing 
wagons/cars marked RIV/RIC is already accepted.  

5 

NERA  study  on  Safety  Regulations  and  Standards  for  European  Railways,  February  2000,  and  IVE 
study on the Safety Certification of Railway Undertakings, June 2005. 

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2.2. 

The perspective of industry 

Historically,  national  rolling  stock  manufacturers  have  had  close  relationships  with  the 
nationalised  railway  industry  in  the  design  and  placing  into  service  of  rolling  stock. 
Knowledge  of  national  specificities  became  an  ‘in-house’  competence  for  manufacturers, 
contributing  to  a  closed  manufacturing  market.  The  impact  of  the  Single  Market  and 
Community railway legislation, together with a shrinking rolling stock market, is encouraging 
rolling  stock  manufacturers  to  compete  and  enter  other  markets  outside  their  own  Member 
State. Unfortunately, the divergent, and non-visible, rules and processes have frustrated them 
as  they  involve  the  costly  development  of  specific  national  solutions,  extensive  approval 
processes and late modifications and changes to vehicle design.  

2.3. 

Current solutions: bilateral / multilateral agreements 

International cross-accepted rolling stock has been successfully introduced as a result of close 
bilateral  cooperation  between  suppliers,  railway  undertakings  and  national  railway 
administrations. The  work  carried  out  through the cooperation of these parties demonstrates 
that, where there is a will, there is also the ability to achieve consensus and results. Examples 
of  such  bilateral  cooperation  are  the  agreement  signed  in  2006  between  EBA  and  a 
department of the French Ministry of Transport and the agreement on the Rotterdam-Genoa 
corridor.  

However, such ventures are not without difficulty and have tended to be extensive, resource-
intensive and costly processes. Evidence shows that the proportion of cross-accepted rules is 
actually quite small in comparison to the national rules still in place. Further, the benefits of 
these cooperative relationships are limited to the Member States involved and do not provide 
an  opportunity  to  share  the  best-practice  lessons  learnt.  In  addition,  there  is  a  risk  that  the 
proliferation  of  such  "variable  geometry"  agreements  will  not  open  the  market,  but  instead 
will contribute to further fragmentation and complication. 

2.4. 

The Treaty and relevant Community legislation 

2.4.1. 

Interoperability Directives 

The  Interoperability  Directives  (2001/16/EC  on  Conventional  Rail  and  96/48/EC  on  High 
Speed  Rail)  require  the  railways  to  move  towards  harmonisation  of  systems  and  operations 
through the progressive adoption of Technical Specifications for Interoperability (TSIs).  

Annex I describes the principles laid down in the Interoperability Directives and the status of 
the  TSI  adoption  process.  It  further  describes  the  procedure  for  placing  rolling  stock  in 
service.  

As  shown  in  Annex  II,  once  a  subsystem  is  certified  to  be  in  conformity  with  a  TSI,  the 
resulting  certificate  must  be  accepted  by  all  Member  States  and  the  conformity  assessment 
must  not  be  repeated.  Conformity  assessment  against  the  TSIs  is  carried  out  by  Notified 
Bodies.  

However,  authorisation  in  each  Member  State  for  placing  in  service  is  still  required  by 
Article 14 of the Interoperability Directives for the reasons detailed in Annex I. 

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2.4.2.  The Railway Safety Directive 

The  Infrastructure  Directive  (2001/14/EC)6  established  the  principles  of  harmonised  safety 
certification and licensing of railway undertakings in order for a railway undertaking to enter 
into  operational  service,  which  are  accepted  by  all  Member  States.  The  Railway  Safety 
Directive  (2004/49/EC)7  further  develops  the  principles  of  safety  certification  and  creates  a 
common framework for safety and its regulation. As explained in Annex III, national safety 
authorities are responsible under Article 14 for the authorisation of in-use rolling stock not yet 
covered by a TSI. 

2.4.3.  The mutual recognition principle 

During the consultation process, it became evident that the mutual recognition principle was 
not sufficiently applied in the rail sector. 

There  are  two  main  types  of  instrument  for  eliminating  regulatory  non-fiscal  barriers  to  the 
free  movement  of  goods  within  the  EU,  namely  the  approximation  or  harmonisation  of 
national  legislation  and,  in  the  absence  of  harmonisation,  mutual  recognition  under 
Articles 28 and 30 of the EC Treaty.  

Under  the  mutual  recognition  principle,  Member  States  of  destination  cannot  forbid  the 
marketing or placing in service on their territories of products that are lawfully marketed or 
placed  in  service  in  another  Member  State  and  which  are  not  subject  to  Community 
harmonisation,  even  if  the  products  in  question  were  manufactured  according  to  different 
technical  and  quality  rules  than  those  that  must  be  met  for  their  own  products.  The  only 
exception to this principle are restrictions imposed by the Member State of destination on the 
grounds set out in Article 30 of the EC Treaty or on the basis of overriding requirements of 
general public importance as recognised by the Court of Justice’s case law, provided they are 
proportionate. 

The  mutual  recognition  principle  and  its  possible  application  to  the  rail  sector  are  further 
described in Annex IV. The conclusion is that the mutual recognition principle can be partly 
applied to existing rolling stock. Actually, this is what has been proposed by the Task Force 
of  Member  State  representatives  set  up  in  2005  by  the  Commission  and  in  the  attached 
Commission proposal for modifying the Railway Safety Directive. 

However, the use of the mutual recognition principle also suffers from fundamental problems 
such  as  lack  of  awareness  of  enterprises  and  national  authorities  about  the  existence  of  the 
mutual recognition principle, as well as legal uncertainty about the scope of the principle and 
the  burden  of  the  proof.  These  problems  are  further  detailed  in  Annex  IV.  They  have  been 
taken into account in considering all the options for facilitating the cross-acceptance of rolling 
stock.  

6 

7 

Directive  2001/14/EC  of  the  European  Parliament  and  of  the  Council  of  26  February  2001  on  the 
allocation  of  railway  infrastructure  capacity  and  the  levying  of  charges  for  the  use  of  railway 
infrastructure and safety certification. 
Part of the second package, adopted in 2004 and to be implemented in Member States by April 2006. 

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2.5. 

Aims and options 

In the spring of 2006, an initial consultation document was drafted to highlight the problems, 
the aims and the options. It was presented to the members of the "interoperability" committee 
(which  is  competent  in  this  area)  and  the  various  organisations  which  represent  the  railway 
sector (UIC, CER, UNIFE, UIP, etc) at a workshop held on 27 April 2006. The results of the 
workshop were encouraging and a number of official positions had reached the Commission 
by the end of June 2006. The Commission's analysis of these positions has enabled a solution 
to  be  found  consisting  of  both  non-legislative  measures  which  can  be  implemented 
immediately and a legislative proposal.  

2.6. 

Impact assessment 

All  the  options  have  been  subject  to  an  impact  assessment  in  accordance  with  the 
Communication  of  16  March  2005  from  the  Commission  to  the  Council  and  the  European 
Parliament on Better Regulation for Growth and Jobs in the European Union. 

The  impact  assessment  results  are  given  in  the  Commission's  report  published  at: 
http://ec.europa.eu/transport/rail/index_en.html. A summary of this analysis is attached to this 
Communication. 

3. 

CONCLUSION: SOLUTIONS ADOPTED 

3.1. 

Recommendation and legislative proposal 

The solutions which emerge from the impact assessment are:  

–  to  propose  that  the  Member  States  apply  the  guide  developed  by  the  task-force  with 
immediate  effect.  The  Commission  has  published  this  guide  on  its  website  at: 
http://ec.europa.eu/transport/rail/safety/cross-acceptance_en.htm - Chapter 3 below sets out 
the main points; 

–  to amend the legislation in order to clarify the procedure for authorising  the  placing  into 
service of new rolling stock (see Article 14 of the Railway Interoperability Directives) and 
existing rolling stock (see Article 14 of the Railway Safety Directive). 

The recommendation that the Member States should apply the guide immediately is justified 
by  the  fact  that,  by  adjusting  their  procedures,  the  competent  authorities  may  rapidly  create 
favourable  conditions  for  the  emergence  of  new  services,  especially  in  the  freight  sector, 
which would dovetail with the full opening up of the rail freight market on 1 January 2007. 

The legislative amendment is necessary not only to create rights for manufacturers, keepers of 
wagons and railway companies as well as for the competent authorities, but also to create a 
precise  framework  procedure,  which  could  be  a  valuable  aid  for  the  newly  created  national 
safety authorities. For the record, national safety authorities are starting to be set up in several 
Member States, and it appears that the skilled personnel needed are difficult to find.  

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3.2. 

Guide for the approval of existing rolling stock 

The  use  of  the  common  checklist  (Annex  V)  for  cross-acceptance  projects  by  all  Member 
States is recommended.  

Member  States  should  fill  in  a  table  of  requirements  based  on  the  common  checklist  and 
following the guidelines given in Annex VI. Member States are also encouraged to use these 
guidelines together on a bi- or multilateral basis for actual projects. 

The  European  cross-acceptance  process  should  be  permanently  monitored  by  the  Agency 
(ERA).  The  Agency  should  extend  and  update  this  cross-acceptance  tool  on  the  basis  of 
Member State contributions. It could do this under its mandate for the development of TSIs, 
because  an  analysis  of  the  technical  rules  in  a  given  subsystem  should  be  the  first  step  in 
developing a TSI; in addition, national rules notified to the Commission under Article 8 of the 
Railway Safety Directive are forwarded to the Agency for assessment and publication.  

3.3. 

Codification-merger-recasting of the Railway Interoperability Directives 

Directives 96/48/EC and 2001/16/EC on the interoperability of the trans-European high-speed 
rail  system8  and  the  interoperability  of  the  trans-European  conventional  rail  system9, 
respectively, were substantially amended in 200410. For the sake of clarity, the opportunity of 
the  new  changes  proposed  by  the  Commission  in  this  Communication  should  be  taken  to 
recast them.  

Furthermore,  the  differences  between  a  high-speed  rail  system  and  the  conventional  rail 
system  do  not  justify  having  two  separate  directives.  In  fact,  the  work  carried  out  in 
developing  the  TSIs  showed  that,  for  some  subsystems,  a  single  TSI  can  serve  for  both 
systems. The two "Interoperability" Directives should therefore be incorporated into a single 
instrument, and this is the subject of the attached proposal.  

The amendment to which this initiative refers concerns the procedure for placing rolling stock 
into  service.  It  is  therefore  proposed  to  amend  the  future  integrated  "Interoperability" 
Directive to simplify and clarify this procedure.  

Moreover,  as  soon  as  these  two  directives  have  been  integrated  and  amended,  it  would  be 
prudent to clarify and improve certain matters on the basis of the many interpretations made 
by the "interoperability" committee.  

3.4. 

Amendment of the Rail Safety Directive 

Chapter  2  justifies  the  need  to  amend  Article  14  of  Directive  2004/49/CE.  The  solution 
proposed is to establish a Community procedure consisting of:  

–  the  introduction  of  the  principle  of  mutual  recognition  by  other  Member  States  of 
authorisations  already  issued  by  a  Member  State  for  placing  equipment  into  service. 
According to this principle, rolling stock already authorised to be put into service in  one 
Member  State  should  not  be  required  to  undergo  complementary  certification  in  another 

8 
9 
10 

OJ L 235, 17.9.1996, p. 6. 
OJ L 110, 20.4.2001, p. 1. 
Directive 2004/50/EC. 

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Member  State  as  regards  the  additional  national  requirements  arising,  for  example,  from 
local system specifications;  

–  the  extension  of  the  Agency's  powers  to  enable  it  to  make  an  inventory  of  the  different 
national procedures and technical regulations in force and to establish and update (extend) 
the  list  of  requirements  where  compliance  should  be  checked  once  only  because  the 
requirements concern internationally accepted rules or can be deemed to be equivalent to 
them.  

Furthermore,  the entry  into  force of  the new COTIF Convention 1999 brought in new rules 
regarding contracts for the use of vehicles and thus led to the revocation of the former RIV 
agreement between railway companies. There is therefore a proposal to define the keeper of a 
wagon and to specify the relationship between the company and the keeper, in particular as 
regards maintenance.  

These  two  substantial  changes  are  the  subject  of  the  proposed  amendment  of  the  Safety 
Directive, as attached.  

3.5. 

Amendment of the Regulation establishing a European Railway Agency 

The  new  tasks  proposed  for  the  Agency  in  the  framework  of  the  mutual  recognition  of 
locomotives are to:  

–  develop  a  reference  document  cross-referencing  all  the  national  rules  applied  by 

the Member States for putting rolling stock into service;  

–  organise  the  systems  work  of  the  national  safety  authorities  so  as  gradually  to 
reduce  the  number  of  national  rules  imposed  by  each  Member  State  and  to 
identify those which can be deemed to be equivalent;  

–  produce  technical  opinions  if  requested  by  the  national  safety  authorities  or  the 

Commission.  

In addition, the amendment of the Regulation has provided an opportunity to clarify or spell 
out a number of different points based on the experience gained following the establishment 
of the Agency.  

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