Commission Opinion pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty on the European Parliament's amendments to the Council Common Position regarding the Proposal for a Directive of the European Parliament and of the Council on the certification of train crews operating locomotives and trains on the Community's rail network amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2007-02-22
Institutions: European Commission
Subjects: common transport policy, drivers, professional qualifications, rail transport, vocational training

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 22.2.2007 
COM(2007)80 final 

2004/0048 (COD) 

COMMISSION OPINION 

pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty 
on the European Parliament's amendments 
to the Council Common Position regarding the 
Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT 
AND OF THE COUNCIL 

on the certification of train crews operating locomotives and trains on the Community's 
rail network 

AMENDING THE PROPOSAL OF THE COMMISSION 
pursuant to Article 250 (2) of the EC Treaty 

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2004/0048 (COD) 

COMMISSION OPINION 

pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty 
on the European Parliament's amendments 
to the Council Common Position regarding the 
Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT 
AND OF THE COUNCIL 

on the certification of train crews operating locomotives and trains on the Community's 
rail network 

(Text with EEA relevance) 

1. 

INTRODUCTION 

Article 251(2), third subparagraph, point (c) of the EC Treaty provides that the Commission 
shall deliver an opinion on the amendments proposed by the European Parliament at second 
reading. The Commission's opinion on the 33 amendments proposed by Parliament is set out 
below.  

2. 

BACKGROUND 

Date  of  transmission  of  the  proposal  to  the  European  Parliament  and 
the Council (COM(2004) 0142 – C6 – 0002/2004 – 2004/0048 (COD) 

4 March 2004

Date of the opinion of the Committee of Regions 

17 November 2004

Date of the opinion of the European Economic and Social Committee 

9 February 2005

Date of the opinion of the European Parliament at first reading 

28 September 2005

Date of adoption of the Common Position by qualified majority 

24 July 2006

Date of adoption of the resolution at second reading by the European 
Parliament comprising 33 amendments to the Common Position 

18 January 2007

3. 

AIM OF THE PROPOSAL 

On  3  March  2004  the  Commission  proposed  a  series  of  measures  (the  “third  railway 
package”),  which  the  Council  began  examining  in  April  2004  and  Parliament  began 
examining  in  October  2004.  The  package  comprises  four  legislative  proposals,  including  a 
proposal for a directive on the certification of train crews operating locomotives and trains on 
the  Community's  rail  network.  Drawn  up  in  consultation  with  the  industry  and  the  social 
partners, this text provides for a mechanism to define more clearly powers and responsibilities 

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as  regards  the  training  of  train  drivers  and  crews  who  perform  safety-related  tasks,  and  the 
assessment  and  recognition  of  their  qualifications.  Train  drivers  will  have  to  hold  a  licence 
certifying their general skills; this licence will be their property and will be valid throughout 
the Community. The licence will have to be supplemented by a certificate issued by a railway 
undertaking  confirming  that  specific  training  has  been  followed  for  the  line  concerned,  the 
rolling  stock  used  and  the  operational  and  safety  procedures  which  are  specific  to  that 
undertaking.  

4. 

THE COMMISSION'S OPINION ON THE EUROPEAN PARLIAMENT'S AMENDMENTS 

4.1. 

Amendments acceptable to the Commission 

In summary: 

–  16 amendments are acceptable as they stand: 2-3-5-6-7-8-9-12-20-21-22-24-25-28-29-30 

–  4 amendments are acceptable in principle: 15-17-18-19 

–  5 amendments are acceptable in part: 1-16-26-27-33 

4.1.1 Amendments accepted in principle 

The right to appeal provided for in amendment 15 is in fact already provided for in Articles 15 
and 21 of the Common Position. 

Amendments 17 and 18 aim to correct an inconsistency between Article 19(1) and (2), but are 
themselves imprecisely formulated. 

Amendment 19 gives details regarding the possibility for the competent authority to delegate 
tasks. However, it changes the terminology of the relevant articles and must therefore be re-
worded. 

4.1.2 Amendments accepted in part 

Amendment 1 refers to the agreement on work/rest times. However, this is not relevant in this 
instance and reference to it is therefore inappropriate. 

Checks by employers referred to in amendment 16 are already provided for in Article 18 of 
the Common Position. 

Amendment  26  deals  with  the  certification  of  crew  members  directly  performing  train  and 
passenger safety-related tasks. 

The Commission supports this requirement which reverts to the scope of its original proposal, 
which  was  aimed  not  only  at  drivers  but  also  at  the  train  crew  performing  security-related 
tasks. It must be re-worded because: 

–  paragraph 3 is incompatible with paragraph 2, which does not provide for the intervention 

of the competent authority; 

–  Articles 20 and 21 referred to in paragraph 5 should be replaced by Article 22 (registers). 

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–  in order to immediately specify the scope, a description of the security-related duties of the 
crew  concerned  should  be  annexed  to  the  Directive  and  paragraph  6  should  be  amended 
accordingly. 

In  August  2000  the  CER,  the  association  which  represents  a  large  number  of  railway 
undertakings and infrastructure managers in the Community, drew up and published a report 
on  the  responsibilities  of  personnel  carrying  out  interoperability  services.  The  report  was 
timed to coincide with the opening up of the market. 

On the basis of this report, the Commission proposes identifying the crew members covered 
by the Directive by specifying their duties, as set out below: 

–  checking the effectiveness of the brakes; 

–  opening and closing the doors; 

–  being involved in train departure procedures; 

–  responding to alarm signals; 

–  participating in manoeuvres; 

–  checking for faults and taking steps in the event of a fault while the train is moving; 

–  helping the driver in certain circumstances. 

Amendment 27 provides that, in order to amend the annexes to the Directive, the Agency and 
the  social  partners  must  be  systematically  involved.  However,  the  reference  to  the  Agency 
Regulation is not relevant. It is necessary to differentiate between the Technical Specifications 
for Interoperability (TSI) developed by the Agency in accordance with the directives on rail 
interoperability (Directives 96/48/EC and 2001/16/EC) and annexes to a directive which are 
subject to the co-decision procedure or, by delegation of powers, to the Committee procedure, 
but at the Commission's initiative. As a result, this amendment should be re-worded to state 
that social partners must be properly consulted about requirements which have an impact on 
working conditions and the health and safety of workers. 

Amendment  33,  which  refers  to  medical  examinations,  is  acceptable  provided  that  the 
expressions "occupational physician" and "accredited physician", which do not comply with 
Article 11 of the Common Position, are amended. 

4.2. 

Amendments not accepted by the Commission 

The Commission cannot accept seven amendments: 10-11-13-14-23-31-32 

Amendment  10  provides  for  a  measure  already  found  in  Article  18  on  the  tasks  of  the 
competent authority. 

Amendment 11, which proposes using the term "mutual recognition", is not acceptable as the 
licence is issued on the basis of harmonised criteria. The concept of "validity throughout the 
territory of the European Union" used in the Common Position is more appropriate. 

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Amendments  13  and  14  are  not  acceptable  as  it  would  not  be  practicable  to  involve  the 
competent authority each time a driver falls ill. Furthermore, it is the railway undertaking or 
the  infrastructure  manager  which  is  responsible  for  rail  safety  when  a  driver  works  on  its 
behalf, and it is therefore they and not the "employer" which must take the necessary steps in 
the event of risk. 

Amendment  23  proposes  that  if  a  driver  voluntarily  leaves  the  railway  undertaking  which 
trained  him,  the  railway  undertaking  which  recruits  that  driver  be  obliged  to  refund  the 
original  railway  undertaking  the  pro  rata  cost  of  the  training  received  by  the  driver  on  the 
basis of harmonised criteria which should be established on the basis of a Recommendation 
drawn up by the Agency. 

Despite the fact that in principle the proposal appears to protect the investment made by an 
employer for training a driver, this amendment is not acceptable for several reasons: 

–  there  are  no  equivalent  clauses  in  other  modes  of  transport,  in  particular  in  the  aviation 

sector in which training is also very expensive; 

–  a clause of this kind concerns labour law and hence does not seem particularly relevant in 

this directive; 

–  the reasons why a driver leaves an employer may be many and varied; if a driver leaves as 

a result of the employer’s fault, this type of reimbursement would not be justified. 

However, the Commission could accept a provision under which the matter is resolved on the 
basis of national or private law. 

Amendment  31  is  not  acceptable  as  the  date  for  transposition  proposed  by  the  EP 
(31 December 2007) is unrealistic. A conciliation would appear necessary, and the legislative 
process  should  end  in  autumn  2007.  This  would  not  leave  the  time  needed  for  the  Member 
States to transpose the Directive by the date proposed. 

Amendment  32  requires  adding  the  date  of  the  driver's  last  medical  examination  to  his 
complementary  certificate.  This  is  not  acceptable  as  it  would  represent  a  non-negligible 
additional  cost  for  railway  undertakings/infrastructure  managers  and  would  provide  no 
additional guarantee in terms of rail safety. 

5. 

CONCLUSION 

In accordance with Article 250(2) of the EC Treaty, the Commission is amending its proposal 
as indicated above. 

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