Common Position (EC) No 5/2008 of 3 March 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Regulation of the European Parliament and of the Council amending Regulation (EC) No 881/2004 establishing a European Railway Agency (Agency Regulation) (Text with EEA relevance)
Date: 2008-03-03
Institutions: Council of the European Union
Subjects: European Union Agency for Railways, mutual recognition principle, rail transport, technical regulations, technical standard, trans-European network, transport safety, vehicle on rails

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III

(Preparatory Acts)

COUNCIL

COMMON POSITION (EC) No 5/2008

adopted by the Council on 3 March 2008

with a view to adopting Regulation (EC) No …/2008 of the European Parliament and of the Council
of … amending Regulation (EC) No 881/2004 establishing a European railway agency (Agency
Regulation)

(Text with EEA relevance)

(2008/C 93 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 71(1) thereof,

Having regard to the proposal from the Commission,

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

After consulting the Committee of the Regions,

Acting in accordance with the procedure referred to in
Article 251 of the Treaty (2),

(3)

Whereas:

(1)

the

European
Regulation (EC) No 881/2004 of
Parliament and of the Council of 29 April 2004 estab-
lished a European Railway Agency (3), hereinafter referred
to as ‘the Agency’, to make a technical contribution to
creating a European railway area without
frontiers.
Following developments in Community legislation on rail
interoperability and safety and market developments and
on the basis of the experience gained in operating the
Agency and the relationship between the Agency and the
Commission, certain amendments need to be made to
that Regulation, and in particular certain tasks need to be
added.

(2)

National rules are to be notified to the Commission both
the
in accordance with Directive 2008/…/EC of
European Parliament and of the Council of … on the

(1) OJ C 256, 27.10.2007, p. 39.
(2) Opinion of the European Parliament of 29 November 2007 (not yet
published in the Official
Journal), Council Common Position of
3 March 2008 and Position of the European Parliament of … (not yet
published in the Official Journal).

(3) OJ L 164, 30.4.2004, p. 1. Corrected version in OJ L 220, 21.6.2004,

p. 3.

the rail

interoperability of
system within the Com-
munity (4), hereinafter referred to as the ‘Railway Intero-
perability Directive’, and Directive 2004/49/EC of
the
European Parliament and of the Council of 29 April 2004
on safety on the Community's railways (Railway Safety
Directive) (5). The two sets of rules should therefore be
examined in order to assess,
if they are
compatible with the common safety methods and the
technical specifications for interoperability (TSIs) in force,
as well as if they enable the common safety targets in
force to be achieved.

in particular,

In order to facilitate the procedure for authorising the
placing in service of vehicles which do not conform to
the relevant TSIs, all the technical and safety rules in
force in each Member State should be classified into three
groups and the results of this classification should be
presented in a reference document. The Agency is there-
fore required to draw up a draft for creating and updating
this document by cross-referencing the national rules for
technical parameters and by
each of
providing ad hoc technical opinions on specific aspects
of cross-accepting projects. After reviewing the list of the
parameters, the Agency may recommend that it be modi-
fied.

relevant

the

(4)

Due to its legal attributions and its high level of technical
expertise, the Agency is the entity which should provide
clarification on complex matters emerging from the
activity in the sector. Therefore,
in the context of the
procedures authorising the placing in service of vehicles,
it should be possible to request the Agency to issue tech-
nical opinions in the case of a negative decision by a

(4) See page … of this Official Journal.
(5) OJ L 164, 30.4.2004, p. 44. Corrected version in OJ L 220, 21.6.2004,

p. 16.

(5)

(6)

(7)

(8)

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national
safety authority or on the equivalence of
national rules for the technical parameters established in
the Railway Interoperability Directive.

(10)

It should be possible to request
Agency on urgent modifications to TSIs.

the opinion of

the

Following adoption of the third railway package, refer-
ence should be made to Directive 2007/59/EC of the
European Parliament and of the Council of 23 October
2007 on the certification of train drivers operating loco-
motives and trains on the railway system in the Com-
munity (1), hereinafter referred to as the ‘Train Drivers
Directive’, which lays down various tasks to be performed
by the Agency and gives it the possibility to address
recommendations as well.

the work of

Under Article 13 of Regulation (EC) No 881/2004, the
the
Agency may monitor the quality of
bodies notified by the Member States. A study conducted
by the Commission has shown that there is much scope
for interpretation of the criteria to be applied for noti-
fying these bodies. Without prejudice to the Member
States' responsibility with regard to the bodies that they
choose to notify and the checks that they make to ensure
that these criteria have been met, it is important to assess
the impact of such differences in interpretation and to
check that they do not cause difficulties with regard to
the mutual recognition of conformity certificates and the
EC declaration of verification. Therefore, at the request of
the Commission, the Agency should be able to monitor
the activity of
justified,
perform checks with a view to ensuring that the criteria
referred to in the Railway Interoperability Directive are
met by the relevant notified body.

the notified bodies and,

if

Article 15 of Regulation (EC) No 881/2004 authorises
the Agency to assess, at the request of the Commission
and from the point of view of interoperability, applica-
tions for Community funding for railway infrastructure
these projects should be
projects. The definition of
extended so that the coherence of the system can also be
assessed, as in the case of projects implementing the
European Rail Traffic Management System (ERTMS), for
example.

(11) As far as railway staff are concerned, the Agency should
also identify possible options for the certification of
other crew members performing safety-critical tasks and
assess the impact of these different options. It is intended
that, besides train drivers and other crew members
performing safety-critical tasks, the Agency reflects on
specifying criteria for defining vocational competences of
other staff involved in the operation and maintenance of
the rail system.

(12)

The Railway Interoperability Directive and the Railway
Safety Directive provide for various types of document,
namely, EC declarations of verification,
licences and
safety certificates and national
rules notified to the
Commission. Therefore, it should be the Agency's task to
ensure public access to those documents as well as to the
national registers on vehicles and infrastructure and to
the registers kept by the Agency.

(13)

The Agency should examine the appropriate revenues for
the tasks related to the accessibility of documents and
registers in accordance with Article 38(2) of Regulation
(EC) No 881/2004.

(14)

the entry into force of

Following developments of an international dimension,
the 1999
and in particular
Convention concerning International Carriage by Rail
(COTIF), the Agency should be asked to assess the rela-
tionship between railway undertakings and keepers, parti-
cularly with regard to maintenance, as an extension of its
work in the area of maintenance workshop certification.
In this context, it should be possible for the Agency to
address recommendations regarding the implementation
of the system of voluntary certification of maintenance in
accordance with Article 14 of the Railway Safety Direc-
tive.

(9) When developing the certification schemes of entities in
charge of maintenance and maintenance workshops, the
Agency should make sure that these schemes are consis-
tent with the responsibilities already allocated to railway
undertakings and the future role of entities in charge of
maintenance. These schemes should facilitate the safety
certification procedure of railway undertakings and avoid
undue administrative burden and duplication of controls,
inspections and/or audits.

a

the

adoption by

cooperation agreement,

Since the adoption of the second railway package, several
initiatives relating to the development and implementa-
tion of the ERTMS have been taken. These include the
signing of
cooperation agreement between the
Commission and the various stakeholders in the sector,
the setting up of a steering committee for implementing
the
this
Commission of a Communication to the European
Parliament and the Council on the deployment of the
European rail
the
appointment, by the Commission, of a European coordi-
nator for the ERTMS project as a priority project of Com-
munity interest, the definition of the Agency's role as
system authority in the context of the various annual
work programmes, and the adoption of
the ‘control-
for conventional rail (2).
command and signalling’ TSI
Given the growing importance of the Agency's input in
this area, its tasks should be specified.

system ERTMS/ETCS,

signalling

(1) OJ L 315, 3.12.2007, p. 51.
(2) Commission Decision 2006/679/EC of 28 March 2006 concerning the
technical specification for interoperability relating to the control-
command and signalling subsystem of the trans-European conven-
tional rail system (OJ L 284, 16.10.2006, p. 1). Decision as last modi-
fied by Decision 2007/153/EC (OJ L 67, 7.3.2007, p. 13).

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(15)

(16)

(17)

(18)

(19)

The Agency now has a large number of experts specia-
lising in the interoperability and safety of the European
rail system. It should be authorised to carry out ad hoc
tasks at the Commission's request, subject to the compat-
those tasks with the Agency's mission and
ibility of
compliance with the Agency's other priorities.
In that
light, the Agency's Executive Director should evaluate the
admissibility of this assistance and report at least once a
year on its provision to the Administrative Board. The
Board may assess this report
in accordance with the
powers attributed to it by Regulation (EC) No 881/2004.

The recruitment of project officers with a contract of a
maximum of five years was intensive during the first year
the Agency was established, which means that many of
the technical staff have to leave the Agency within a
short time span. In order to ensure an adequate quantity
and quality of expertise and to anticipate possible difficul-
ties in the recruitments procedures, the Agency should be
allowed to extend the working contracts of specially
qualified staff for another three years.

The date by which the Agency's annual work programme
is to be adopted should be amended to allow for better
synchronisation with the budgetary decision-making
process.

The Agency's work programme should identify the objec-
tive of each activity and to whom it is to be addressed.
The Commission should also be informed of the tech-
nical results of each activity, as this information goes well
beyond the scope of
report, which is
addressed to all the institutions.

the general

Since the objective of the this Regulation, namely the
extension of the Agency's mission to include its participa-
tion in the simplification of the Community procedure
for the certification of railway vehicles, cannot be suffi-
ciently achieved by the Member States and can therefore,
by reason of the scale of the action, be better achieved at
Community level, the Community may adopt measures,
in accordance with the principle of subsidiarity set out in
Article 5 of the Treaty. In accordance with the principle
of proportionality, as set out in that Article, this Regu-
lation does not go beyond what is necessary in order to
achieve that objective.

1. Article 2 shall be replaced by the following:

‘Article 2

Types of acts of the Agency

The Agency may:

(a) address

recommendations

Commission
concerning the application of Articles 6, 7, 9b, 12, 14,
16, 16a, 16b, 16c, 17 and 18; and

the

to

(b) issue opinions

to
Articles 9a, 10, 13 and 15, and to the authorities
concerned in the Member States pursuant to Article 10.’;

to the Commission pursuant

2. Article 3 shall be amended as follows:

(a)

the first sentence in paragraph 1 shall be replaced by
the following:

‘1.
For drawing up the recommendations provided
for in Articles 6, 7, 9b, 12, 14, 16, 17 and 18 the
Agency shall establish a limited number of working
parties.’;

(b) paragraph 3 shall be replaced by the following:

safety

The national

in
authorities
‘3.
the Railway Safety Directive, or,
Article 16 of
depending on the subject,
the competent national
authorities, shall appoint their representatives for the
working parties in which they wish to participate.’;

defined

3. Article 8 shall be deleted;

4. the following Chapter title shall be inserted immediately

after Article 9:

‘CHAPTER 2a

NATIONAL RULES, CROSS-ACCEPTANCE AND TECH-
NICAL OPINIONS’;

5. the following Articles shall be inserted:

(20)

Regulation (EC) No 881/2004 should therefore be
amended accordingly,

‘Article 9a

National rules

HAVE ADOPTED THIS REGULATION:

Article 1

Amendments

Regulation (EC) No 881/2004 is hereby amended as follows:

At the request of the Commission, the Agency shall
1.
carry out a technical examination of the new national rules
submitted to the Commission in accordance with Article 8
of the Railway Safety Directive or Article 17(3) of Direc-
tive 2008/…/EC of the European Parliament and of the
Council of … on the interoperability of the rail system
within the Community (*), hereinafter referred to as the
“Railway Interoperability Directive”.

The Agency shall examine the compatibility of the
2.
rules referred to in paragraph 1 with the CSMs and with
the TSIs in force. The Agency shall also examine whether
these rules enable the CSTs in force to be achieved.

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3.
If, after taking account of the reasons given by the
Member State, the Agency considers that any of these rules
either is incompatible with the TSIs or the CSMs or does
not allow CSTs to be reached, it shall submit an opinion to
the Commission within two months of transmission of the
rules to the Agency by the Commission.

Article 9b

Classification of national rules

1.
The Agency shall facilitate Member States' acceptance
of vehicles placed in service in another Member State in
accordance with the procedures laid down in paragraphs 2
to 4.

The Agency shall, by … [Six months after the entry
2.
into force of the Railway Interoperability Directive], review
the list of parameters in Section 1 of Annex VII to Directive
2008/…/EC and make the recommendations it considers
appropriate to the Commission.

3.
The Agency shall draw up a draft for a reference
document cross-referencing all the national rules applied by
the Member States for placing vehicles in service. This
document shall contain the national rules of each Member
State for each of the parameters listed in Annex VII to the
Railway Interoperability Directive and specify the group
referred to in Section 2 of that Annex to which these rules
belong. These rules shall comprise those notified under
Article 17(3) of Directive 2008/…/EC, including those noti-
fied following adoption of TSIs (specific cases, open points,
derogations) and those notified under Article 8 of
the
Railway Safety Directive.

4. With a view to gradually reducing the national rules
in Group B referred to in Section 2 of Annex VII of the
Railway Interoperability Directive, the Agency shall regu-
larly draw up a draft for updating the reference document
and forward it to the Commission. The first version of the
document shall be presented to the Commission no later
than … [One year after the entry into force of this Regu-
lation].

5.
For the purpose of implementation of this Article, the
Agency shall make use of the cooperation of the national
safety authorities established under Article 6(5) and set up
a working party in accordance with the principles of
Article 3.

(*) OJ L …’;

6. the following paragraphs shall be added to Article 10:

The Agency may be called upon to provide technical

‘2a.
opinions:

(a) by a national safety authority or the Commission, on
the equivalence of national rules for one or more para-
meters listed in Section 1 of Annex VII to the Railway
Interoperability Directive;

(b) by

the

competent

appeal body

referred to in
Article 21(7) of the Railway Interoperability Directive,
in the case of a decision by a competent national safety
authority refusing the placing in service of a railway
vehicle.

The Agency may be called upon by the Commission
2b.
to provide technical opinions on urgent modifications to
TSIs, in accordance with Article 7(1) of the Railway Intero-
perability Directive.’;

7. Article 11 shall be deleted;

8. Article 13 shall be replaced by the following:

‘Article 13

Notified bodies

1. Without prejudice to the responsibility of Member
States for the notified bodies which they designate, the
Agency may, at the request of the Commission, monitor
the quality of the work of those bodies. It shall submit an
opinion to the Commission where appropriate.

2. Without prejudice to the responsibility of Member
States, the Agency shall, at the request of the Commission
when it, in accordance with Article 28(4) of the Railway
Interoperability Directive, considers that a notified body
does not meet the criteria referred to in Annex VIII to that
Directive, check to ensure that those criteria are met. The
Agency shall issue an opinion to the Commission.’;

9. Article 15 shall be replaced by the following:

‘Article 15

Interoperability within the Community rail system

the Railway Interoperability Directive,

Without prejudice to the derogations provided for by
Article 9 of
the
Agency shall, at the request of the Commission, examine,
from the point of view of interoperability, any project invol-
ving the design and/or construction or the renewal or
upgrading of the subsystem for which an application for
Community financial aid has been submitted. Within a
period to be agreed with the Commission according to the
importance of the project and the resources available and
which cannot extend beyond two months, the Agency shall
give an opinion on whether the project conforms with the
relevant TSIs.’;

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10. the following Chapter title shall be inserted immediately

above Article 16:

‘CHAPTER 3a

MAINTENANCE OF VEHICLES’;

11. the following subparagraph shall be added to Article 16:

‘These recommendations
shall be consistent with the
responsibilities already allocated to railway undertakings as
provided for in Article 4 of the Railway Safety Directive
and the entity in charge of maintenance as provided for in
Article 14 of that Directive, and shall take full account of
the certification mechanisms of railway undertakings and
entities in charge of maintenance.’;

12. the following Article shall be inserted:

‘Article 16a

Certification of entities in charge of maintenance

By … (*), the Agency shall send to the Commission a
report setting out,
if necessary, recommendations on the
implementation of the system of voluntary certification of
maintenance in accordance with Article 14 of the Railway
Safety Directive.

The Agency's assessment and recommendations shall
in
particular cover the following aspects taking due account of
relations an entity in charge of maintenance can have with
other parties such as keepers, railway undertakings and
infrastructure managers:

(a) whether

the entity in charge of maintenance has
adequate systems in place,
including operational and
management processes, to ensure the effective and safe
maintenance of vehicles;

(b) the content and the specifications of a voluntary system

of certification valid throughout the Community;

(c)

the type of bodies competent for certification;

(d) the technical and operational inspections and controls.

(*) Six months after the entry into force of the Railway

Interoperability Directive.’;

13. the following Chapter title shall be inserted immediately

after Article 16a:

‘CHAPTER 3b

RAILWAY STAFF’;

14. the following Article shall be inserted:

‘Article 16b

Train drivers

1.
On matters related to Directive 2007/59/EC of the
European Parliament and of the Council of 23 October
2007 on the certification of train drivers operating locomo-

tives and trains on the railway system in the Com-
munity (*), hereinafter referred to as the “Train Drivers
Directive”, the Agency shall:

(a) prepare a draft for a Community model for the licence,
the certificate and the certified copy of the certificate,
taking into account
their physical
therein anti-forgery measures;

characteristics,

(b) cooperate with the competent authorities in order to
the registers for train
ensure the interoperability of
drivers' licences. To this end the Agency shall prepare a
draft on the basic parameters of the registers to be set
up, such as data to be recorded, their format and the
data exchange protocol, access rights, the duration of
data retention and the procedures to be followed in
cases of bankruptcy;

(c) prepare draft Community criteria on the choice of

examiners and examinations;

the

(d) evaluate the development of the certification of train
later
drivers by submitting to the Commission, not
than four years following the adoption of the basic
parameters of
in
registers,
Article 22(4) of the Train Drivers Directive, a report
containing, where appropriate,
improvements to be
made to the system and measures regarding the theore-
tical and practical examination of
the professional
knowledge of applicants for the harmonised certificate
for rolling stock and relevant infrastructure;

as provided for

(e) by 4 December 2012, examine the possibility of using
a smartcard combining the licence and certificates
provided for in Article 4 of the Train Drivers Directive,
and shall prepare a cost/benefit analysis thereof. The
Agency shall prepare a draft for the technical and oper-
ating specifications for such a smartcard;

(f) assist the cooperation amongst Member States in the
implementation of the Train Drivers Directive and orga-
nise appropriate meetings with representatives of the
competent authorities;

(g)

the provisions of

the application of

if asked by the Commission, carry out a cost/benefit
analysis of
the
Train Drivers Directive to train drivers operating exclu-
sively on the territory of the requesting Member State.
The cost/benefit analysis shall cover a period of ten
years. This cost/benefit analysis shall be submitted to
the Commission within two years of the setting-up of
the registers in accordance with point 1 of Article 37
of the Train Drivers Directive;

(h) if asked by the Commission, carry out another cost/be-
nefit analysis which is to be submitted to the Commis-
sion no later than 12 months prior to the expiry of the
temporary exemption period possibly granted by the
Commission;

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(i) ensure that the system set up in paragraph 2(a) and (b)
of Article 22 of the Train Drivers Directive complies
with Regulation (EC) No 45/2001 of
the European
Parliament and of the Council of 18 December 2000
on the protection of
individuals with regard to the
processing of personal data by the Community institu-
tions and bodies and on the free movement of such
data (**).

tion and maintenance of the rail system but which is not
covered by Articles 16b or 16c.’;

17. the following Chapter title shall be inserted immediately

after Article 17:

‘CHAPTER 3c

On matters related to the Train Drivers Directive, the

2.
Agency shall make recommendations on:

REGISTERS AND AGENCY'S PUBLIC DATABASE’;

18. Article 18 shall be replaced by the following:

(a) modification of the Community Codes for the different
types in categories A and B as referred to in Article 4(3)
of the Train Drivers Directive;

(b) the codes reflecting additional information, or medical
restrictions for use imposed by a competent authority
in accordance with Annex II to the Train Drivers Direc-
tive.

3.
The Agency may make a reasoned request to the
competent authorities for information on the status of train
driver licences.

(*) OJ L 315, 3.12.2007, p. 51.
(**) OJ L 8, 12.1.2001, p. 1.’;

‘Article 18

Registers

The Agency shall draw up and recommend to the

1.
Commission common specifications for:

(a)

registers

in accordance with
the national vehicle
Article 33 of
the Railway Interoperability Directive,
including arrangements for exchange of data and a
standard application form for registration;

(b) the register of authorised vehicle types in accordance
with Article 34 of the Railway Interoperability Direc-
tive, including arrangements for exchange of data with
the national safety authorities;

15. the following Article shall be inserted:

(c)

register of

the
infrastructure
Article 35 of the Railway Interoperability Directive.

in accordance with

‘Article 16c

Other on-board staff

In accordance with Article 28 of the Train Drivers Direc-
tive, the Agency shall, in a report to be presented by 4 June
2009, and taking into account the TSI on operation and
traffic management developed under Directives 96/48/EC
identify the profile and tasks of other
and 2001/16/EC,
crew members performing safety-critical
tasks whose
professional qualifications accordingly contribute to railway
safety which should be regulated at Community level by
means of a system of licences and/or certificates which may
be similar to the system established by the Train Drivers
Directive.’;

16.

in Article 17, the title and paragraph 1 shall be replaced by
the following:

‘Article 17

Vocational competences and training

1.
The Agency shall make recommendations on speci-
fying common criteria for defining vocational competences
and assessing staff in the case of staff involved in the opera-

The Agency shall set up and keep a register of types
2.
of vehicles authorised by the Member States for placing in
service on the rail network within the Community,
in
accordance with Article 34 of the Railway Interoperability
Directive. The Agency shall also prepare a draft for the
model of declaration of conformity to type, in accordance
with Article 26(4) of that Directive.’;

19. Article 19 shall be replaced by the following:

‘Article 19

Accessibility of documents and registers

1.
the
The Agency shall make publicly accessible
following documents and registers provided for by the
Railway Interoperability Directive and the Railway Safety
Directive:

(a)

the EC declarations of verification of subsystems;

(b) the EC declarations of conformity of constituents avail-

able to the national safety authorities;

(c)

licences

the
95/18/EC;

issued in accordance with Directive

(d) the

safety certificates

issued in accordance with

Article 10 of the Railway Safety Directive;

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(e)

the investigation reports sent to the Agency in accord-
ance with Article 24 of the Railway Safety Directive;

(f)

rules notified to the Commission in
the national
accordance with Article 8 of the Railway Safety Direc-
tive and Articles 5(6) and 17(3) of the Railway Intero-
perability Directive;

(g) the link to the national vehicle registers;

(h) the link to the registers of infrastructure;

(i)

the European register of authorised types of vehicles;

(j)

the register of
changes
System (ERTMS) specifications;

for changes and planned
to the European Rail Traffic Management

requests

(k) the register of vehicle keeper markings kept by the
Agency in accordance with the TSI on operation and
traffic management.

3.
The Agency shall support the efforts of the Commis-
sion in migrating to ERTMS and coordinating installation
of the ERTMS along the trans-European transport corri-
dors.

4.
The Agency shall develop a strategy for managing the
different versions of the ERTMS with a view to ensuring
technical and operational compatibility between networks
and vehicles fitted with different versions.

Should technical

incompatibilities emerge between
5.
networks and vehicles in the context of specific ERTMS
projects, notified bodies and national safety authorities shall
make sure that the Agency obtains any relevant information
on the applied procedures for EC verification and placing in
service as well as on the operational conditions. The
Agency
appropriate
measures to the Commission.

if necessary,

recommend

shall,

2.
The practical arrangements for transmitting the docu-
ments referred to in paragraph 1 shall be discussed and
agreed by Member States and the Commission on the basis
of a draft of the Agency.

Article 21b

Assistance to the Commission

3. When transmitting the documents referred to in para-
graph 1, the bodies concerned may indicate which docu-
ments are not to be disclosed to the public for reasons of
security.

4.
The national authorities responsible for issuing the
documents referred to in paragraph 1(c) and (d) shall notify
the Agency within one month of each individual decision
to issue, renew, amend or revoke them.

1. Within the limits of Article 30(2)(b), the Agency shall,
at the request of the Commission, assist the Commission in
the implementation of the Community legislation aimed at
enhancing the level of interoperability of railway systems
and at developing a common approach to safety on the
European railway system.

2.
This assistance shall be limited in time and scope, and
carried out without prejudice to all other tasks assigned to
the Agency in this Regulation and may include:

5.
The Agency may add to this public database any
public document or link relevant to the objectives of this
Regulation.’;

(a) communicating information on how specific aspects of

the Community legislation are implemented;

20. the title of Chapter 4 shall be replaced by the following:

know-how;

(b) providing technical advice in matters requiring specific

‘SPECIAL TASKS’;

21. the following Articles shall be inserted:

‘Article 21a

ERTMS

(c) collecting information through the cooperation of
safety authorities and investigation bodies

national
provided for in Article 6(5).

3.
The Executive Director shall report at least once a
year to the Board on the implementation of this Article,
including its impact on resources.’;

1.
The Agency shall assume the tasks set out in para-
graphs 2 to 5 with a view to contributing to a coherent
development and implementation of the ERTMS.

2.
The Agency shall set up a procedure for managing
requests for changes to specifications of the ERTMS. To this
end, a register of requests for changes and planned changes
to ERTMS specifications shall be set up and maintained by
the Agency.

22. Article 24(3) shall be replaced by the following:

‘3. Without prejudice to Article 26(1), the Agency's staff
shall consist of:

— temporary employees recruited by the Agency for a
maximum of five years from among professionals from
the sector on the basis of their qualifications and experi-
ence in the field of railway safety and interoperability,

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— officials assigned or seconded by the Commission or

Member States for a maximum of five years, and

— other servants, as defined in the Conditions of Employ-
ment of other servants of the European Communities,
to carry out implementing or secretarial tasks.

During the first 10 years of operation of the Agency, the
period of five years in the first indent may be extended for
another period of up to a maximum of three years when
required to guarantee the continuity of its services.’;

23. Article 25 shall be amended as follows:

(a)

in paragraph 2, point
following:

(c) shall be replaced by the

be

shall

to the Member States,

‘(c) adopt, by 30 November each year, and taking the
opinion of the Commission into account, the work
programme of the Agency for the coming year and
the European
forward it
Parliament, the Council and the Commission. That
work programme
adopted without
prejudice to the annual Community budgetary
procedure.
the date of
If, within 15 days of
adoption of the work programme, the Commission
expresses its disagreement with the programme, the
Administrative
the
Board
programme and adopt
it, amended if necessary,
within a period of two months, in second reading
either with a two-thirds majority,
including the
Commission representatives, or by unanimity of the
representatives of the Member States;’;

re-examine

shall

(b) the following paragraph shall be added:

‘3.
The Agency's work programme shall identify the
objectives of each activity. As a general rule, each
activity and/or each outcome shall be the subject of a
report to the Commission.’;

24. Article 26(1) shall be replaced by the following:

‘1.
The Administrative Board shall be composed of one
representative of each Member State and four representa-
tives of the Commission, as well as of six representatives,

15.4.2008

representing at

without
European level the following groups:

the right

to vote,

the latter

(a) railway undertakings;

(b) infrastructure managers;

(c)

the railway industry;

(d) worker unions;

(e) passengers;

(f)

freight customers.

For each of these groups, the Commission shall appoint a
four
representative and an alternate from a shortlist of
names submitted by their respective European organisations
with a view to ensure appropriate representation of all
interests.

Board members and their alternates shall be appointed on
the basis of their relevant experience and expertise.’;

25. Article 33(1) shall be replaced by the following:

‘1.
In order to perform the tasks entrusted to it by Arti-
cles 9, 9a, 10, 13 and 15, the Agency may carry out visits
to the Member States in accordance with the policy defined
by the Administrative Board. The national authorities of the
Member States shall
the Agency's
staff.’;

facilitate the work of

26. Article 36(1) shall be replaced by the following:

‘1.
The Agency shall be open to participation by
European countries and countries within the scope of the
European Neighbourhood Policy which have concluded
agreements with the European Community under which
the countries concerned have adopted and are applying
Community legislation in the field covered by this Regu-
lation.’.

Article 2

This Regulation shall enter into force on the day following that
of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at …

For the European Parliament

The President

For the Council

The President

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STATEMENT OF THE COUNCIL'S REASONS

I.

INTRODUCTION

On 13 December 2006, the Commission submitted three legislative proposals primarily aimed at facili-
tating the movement of railway vehicles across the European Union:

— a proposal for a Directive amending Directive 2004/49/EC on safety on the Community's railways (1)

(hereinafter referred to as the Railway Safety Directive),

— a proposal for a Directive on the interoperability of the Community rail system (1) (hereinafter

referred to as the Railway Interoperability Directive),

— a proposal

for a Regulation amending Regulation (EC) No 881/2004 establishing a European

Railway Agency (1) (hereinafter referred to as the Agency Regulation).

On 29 November 2007, the European Parliament voted its opinion at first reading.

On 3 March 2008, the Council will adopt its Common Position. In carrying out its work, the Council
took account of the opinion of the Economic and Social Committee (2). The Committee of the Regions
decided not to adopt an opinion on the above mentioned proposals.

II. ANALYSIS OF THE COMMON POSITION

1. General

With a view to enabling railways to play its key role with regard to sustainable mobility in the
European Union, the Council aims at the gradual development of an integrated European railways
area. In this context, the Council considers that the three legislative proposals recasting the interoper-
ability directives for conventional and high-speed rail and amending both the Railway Safety Directive
and the Agency Regulation can bring important improvements to the technical part of the regulatory
framework for European railways. These proposals lower existing barriers to the free circulation of
railway vehicles on the European rail network thereby facilitating cross acceptance of authorisations
of railway vehicles amongst Member States.

Council and Parliament succeeded in reaching an agreement at first reading on the proposal for a
Railway Interoperability Directive so that Council can adopt the proposed act thus amended. Council
and Parliament could however not align their positions at first reading on the proposals amending
the Railway Safety Directive and the Agency Regulation. Consequently, Council adopted Common
Positions on both proposals, thereby taking due account of some amendments which the Parliament
adopted at its first reading Opinions.

2. Key policy issues

The proposal amending the Agency Regulation is primarily aimed at adapting the legislative frame-
work for the European Railway Agency to the new tasks that result from the amended Railway Safety
Directive and the Railway Interoperability Directive. Therefore, in drawing up its Common Position
on the Commission proposal amending the Agency Regulation, Council took as a starting point the
text which forms the basis of the first reading agreement between Council and Parliament on the
Railway Interoperability Directive and the Common Position on the proposal amending the Railway
Safety Directive. In addition, Council made some changes to the Commission proposal with a view to
ensuring a better use of the Agency's technical expertise.

(1) OJ C 126, 7.6.2007, p. 7.
(2) OJ C 256, 27.10.2007, p. 39.

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2.1. Classification of national rules

Even though Council significantly restructures the Commission proposal, overall it keeps the
important provisions as proposed by the Commission. In this context, it needs to be mentioned
that the Council maintains the key provision on the classification of all national rules regarding
the authorisation of placing railway vehicles in service. The European Railway Agency is tasked
to create a reference document comparing the national technical and safety rules and to update
it regularly. In so doing, it can be gradually identified which national rules should be considered
equivalent and, consequently, cannot be used as ground for additional checks. This will contri-
bute to increased cross-acceptance of vehicle authorisations amongst Member States.

Council agrees with Parliament's amendment 3 which aims at the reduction of national rules on
authorisations for placing vehicles in service that are equivalent amongst Member States.
However, in sharing that aim, Council considers it more effective to ask the Agency to submit a
regular update of the reference document than — as Parliament proposes — to set a single and
fixed date (1 January 2010) before which the Agency must propose solutions. Furthermore,
Council cannot accept amendment 2, as it prefers establishing a general task for the Agency to
prepare a reference document than requiring the Agency to give priority to those national rules
which concern differences between Member States regarding safety clearance for infrastructure
and rolling stock.

2.2. Main modifications to Commission proposal

Taking the Commission's proposal as the basis, Council introduces several modifications.

(a) Council agreed to make better use of the Agency's expertise. Firstly, the Agency may be
called upon to provide technical opinions in the case of a negative decision by a National
Safety Agency and on the equivalence of national rules for the technical parameters estab-
lished in the Railway Interoperability Directive. Secondly, the Agency may be requested to
deliver an opinion on urgent modifications of Technical Specifications for Interoperability
(TSIs).

(b) In the Common Position, the Agency is tasked to prepare — within 6 months from the date
on which the Railway Interoperability Directive enters into force — a report setting out, if
necessary, recommendations on the implementation of a system of voluntary certification of
vehicle maintenance as set out in the Railway Safety Directive. In its Common Position, the
Council further indicates that these recommendations must be consistent with the roles and
responsibilities of railway undertakings and entities in charge of maintenance as laid down
in the Railway Safety Directive while facilitating the safety certification procedure of railway
undertakings and avoiding the administrative burden of duplication of controls, inspections
and/or audits. Considering that it would increase the administrative burden and impose
additional costs to the industry, the Council cannot support the main element of amend-
ment 6 which calls for a mandatory system of certification.

(c) In the Agency Regulation, the Council lists all tasks of the Agency that are defined in Direc-
tive 2007/59/EC of the European Parliament and of the Council of 23 October 2007 on the
certification of train drivers operating locomotives and trains on the railway system in the
Community, hereinafter referred to as the Train Drivers Directive (1). In listing these tasks,
the Council distinguishes between tasks with regard to train drivers, on the one hand, and
tasks with regard to other crew members performing safety-critical tasks, on the other hand.
As to the train drivers, the list includes tasks such as preparing a draft for a Community
model for the train drivers licence and ensuring the interoperability of the registers for train
drivers' licences. As to the other crew members performing safety-critical tasks, the Agency
must present a report identifying their profile and tasks.

Finally, for the staff involved in the operation and maintenance of the rail system but not
belonging to either of the two categories mentioned above, the Agency is tasked to make
recommendations suggesting common criteria for defining vocational competences and
assessing staff.

(1) OJ L 315, 3.12.2007, p. 51.

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(d) Council adapts the provision on registers in the Agency Regulation in the light of the
changes made to the Railway Safety Directive and the recasted Railway Interoperability
Directive. The provision on registers in the Common Position reflects that the Agency needs
to draw up common specifications for the newly created register of authorised vehicle types
as well as for the infrastructure register, and that it must set up and keep the register for
vehicle types. Parliament makes the same proposal on the setting up and keeping of a
European register of vehicles types in amendment 7, which the Council of course supports.
In addition, Council elaborates the rules on accessibility of documents and registers in a
separate Article.

(e) Building on the Commission proposal, Council specifies the conditions under which the
Commission can request assistance from the Agency for the implementation of the Commu-
nity's legislative framework on railway interoperability and safety.

(f) Council takes over amendment 9 of the European Parliament which provides for more
possibilities to extend work contracts of staff with a view to ensuring the continuity of its
operations. However, the Council limits this more flexible regime to the first 10 years of
operation as this period is the period where it will be particularly important to retain quali-
fied staff.

(g) Other changes Council made to the Commission proposal:

— In view of the different national situations, Council provides for the possibility that not
only national safety agencies, but, depending on the subject under discussion, also other
competent national authorities can appoint representatives to participate in the working
parties of the Agency.

— Council supports the Commission's aim to have notified bodies across the Community
which function on the basis of the same criteria. With a view to clarifying this provision,
in the Common Position, a distinction is made between the different roles of the Agency
as to monitoring the quality of the work of notified bodies, on the one hand, and as to
checking whether a notified body still meets the set criteria, on the other hand.

— The Council agrees with the Commission that the Agency should be involved in asses-
sing the interoperability aspects of certain requests for Community funding, but specifies
that the delay within which the Agency must give an answer is restricted to a maximum
of two months.

— The Council follows the Commission's proposal considering that the tasks of the Agency
with respect to ERTMS need to be specified in the Regulation but chooses to reformulate
the relevant provision somewhat.

III. AMENDMENTS OF THE EUROPEAN PARLIAMENT

The response of Council to the amendments 2, 3, 6, 7 and 9 is set out in relation to the above key
issues. In addition, Council cannot accept the following amendments:

— Amendment 1 regarding working parties of the Agency as it falls outside the scope of the Commis-

sion proposal.

— Amendment 4 entrusting the Agency as from 2015 with the task of granting authorisations for
placing vehicles conforming to TSIs in service. This issue can however be considered solved, as the
same amendment was the result of a compromise in the context of the Railway Interoperability
Directive where Council and Parliament elaborated a procedure for National Safety Authorities when
authorising the placing in service of vehicles, thereby adding the principle of mutual recognition of
such authorisations. Moreover, both institutions agreed to invite the Commission to draw up a
report on the effectiveness of this new procedure and on the possible future collaborative approaches
between the Agency and the National Safety Agencies.

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— Amendments 5 and 8 on Technical Opinions by the Agency have only been partly incorporated in
the Council's Common Position. In line with the compromise on the Railway Interoperability Direc-
tive, the Council rejects the possibility for individual applicants to request a Technical Opinion
directly from the Agency as Parliament proposes in amendment 5. As to the possibility of the
Agency to give Technical Opinions on ERTMS as proposed in both amendment 5 and 8, the Council
agrees on a provision requiring the Agency to set up a procedure for managing requests for changes
to ERTMS specifications.

IV. CONCLUSION

The three legislative proposals on interoperability, safety and the European Railway Agency which aim at
facilitating the movement of railway vehicles across the European Union make an important contribu-
tion to the further integration of the European railways area. Council and Parliament already achieved
significant progress on these three proposals, in particular by reaching a first reading agreement on the
Railway Interoperability Directive. This lays a solid basis for both co-legislators to find compromise solu-
tions on the proposals amending the Agency Regulation and the Railway Safety Directive during their
second reading discussions.