COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the position of the Council on the adoption of a Directive of the European Parliament and of the Council on railway safety (Recast)
Date: 2016-01-26
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: Community certification, European Union Agency for Railways, rail transport, safety standard, transport capacity, transport safety

EUROPEAN 
COMMISSION 

Brussels, 26.1.2016  
COM(2016) 33 final 

2013/0016 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council on the adoption of a Directive of the European Parliament and of 
the Council on railway safety (Recast) 

(Text with EEA relevance) 

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2013/0016 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council on the adoption of a Directive of the European Parliament and of 
the Council on railway safety (Recast) 

(Text with EEA relevance) 

1. 

BACKGROUND 

On  30  January  2013,  the  Commission  adopted  a  comprehensive  package  of  six  legislative 
proposals to deliver better quality and more choice in rail services in Europe. 

Improvements  in  service  quality  and  efficiency  are  needed  to  make  rail  a  more  attractive 
choice for passengers and to encourage modal shift. Better value for money and sustainability 
can be achieved for scarce public funds. 

The Package also aims to encourage innovation in EU railways to meet user expectations. It 
does this in three different and interrelated ways: 

(1) 

(2) 

(3) 

opening  domestic  passenger  markets  to  competition  and  making  it  mandatory  to 
tender for public service contracts; 

strengthening the independence of infrastructure managers so that they control all the 
core functions of the rail network and ensuring fair access for all to the railway; 

strengthening  the  role  of  the  Agency  to  make  it  a  ‘one  stop  shop’  for  issuing  EU-
wide  vehicle  authorisations  for  placing  on  the  market  as  well  as  EU-wide  safety 
certificates for operators. 

Date the proposal was sent to the European Parliament and to the 
Council 
(document COM(2013) 31 final — 2013/0016 COD): 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee:  

Date of the opinion of the Committee of Regions:  

31 January 2013 

22 August 2013 

8 October 2013 

Date of the position of the European Parliament, first reading:  

26 February 2014 

Date of adoption of the Council position: 

10 December 2015 

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2. 

OBJECTIVE OF THE COMMISSION’S PROPOSAL 

The  main  objective  of  recasting  the  Railway  Safety  Directive  2004/49/EC  of  the  European 
Parliament  and  of  the  Council1  is  to  simplify  the  process  of  granting  safety  certificates  to 
railway undertakings. It involves changing from the current two-part system [Part A (granted 
in the Member State where the railway undertaking was first established) and Part B (granted 
in each Member State where the railway undertaking intends to operate)] to a single EU safety 
certificate valid throughout the Union. 

The proposal also reviews the role of the national safety authorities (NSAs) and the division 
of  responsibilities  between  them  and  the  European  Railway  Agency  ("the  Agency").  Under 
the  proposal,  NSAs  would  focus  more  on  supervising  the  railway undertakings operating in 
their respective Member States and on activities where a local presence may be advantageous 
or which require local language knowledge (such as inspections/audits). The Agency should 
monitor  the  activity,  performance  and  organisation  of  the  NSAs  and  the  overall  safety 
performance of the system. 

Directive  2004/49/EC  has  already  been  substantially  amended  in  the  past.  Since  further 
amendments are made, the Commission proposed a recast in the interests of clarity. 

3. 

COMMENTS ON THE COUNCIL POSITION 

The political agreement adopted by the Transport Council on 10 December 2015 supports the 
main  objectives  of  the  Commission  proposal  to  simplify  the  process  for  granting  safety 
certificates. However, the political agreement differs from the Commission proposal in some 
respects, namely it gives railway undertakings operating in only one Member State the choice 
to apply for a safety certificate to either the Agency or the domestic NSA. However, in both 
cases the procedure and the decision criteria would remain the same. 

In addition, the Council position: 

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clarifies the role and responsibilities of the actors of the rail system to improve the 
safety level, through the strengthening of the provisions on the respective role of the 
actors  of  the  rail  system  in  developing  and  improving  railway  safety  (Article 4). 
Furthermore,  the  Council  considers  that  infrastructure  managers  and  railway 
undertakings  should  have  a  major  responsibility  for  the  safe  operation  of  the  train 
and that they should be obliged to establish safety management systems; 

clarifies that the Agency is accountable in the context of issuing safety certificates. A 
new recital (recital 27) is added to the text in order to recall the legal framework of 
the  Agency's  liability,  and  to  underline  the  importance  of  a  full  cooperation  with 
NSAs in the case of railway accidents. Furthermore, the Council's position provides 
that  the  Agency  is  fully  responsible  for  the  single  safety  certificate  it  issued 
(Article 10(6)). 

provides  for  an  appeal  procedure  for  applicants  reflecting  the possibility  given  to 
refer the matter to a national court in case of disagreement with the decision taken by 
the Agency or by a NSA (Article 10 paragraph 12 ); 

Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the 
Community’s  railways  and  amending  Council  Directive  95/18/EC  on  the  licensing  of  railway 
undertakings  and  Directive  2001/14/EC  on  the  allocation  of  railway  infrastructure  capacity  and  the 
levying  of  charges  for  the  use  of  railway  infrastructure  and  safetycertification  (OJ  L 164,  30.4.2004, 
p. 44). 

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states  in  more  detail  how  the  Agency  and  the  NSAs  are  to  cooperate  when  issuing 
single  safety  certificates.  A  procedure  to  manage  divergences  between  the  Agency 
and an NSA is included in the Council's text (Article 10 paragraph 7); 

provides  details  on  the  supervision  activities  of  the  NSAs  and  how  they  relate  to 
certification. More specifically, this new provision (Article 17) aims at guaranteeing 
that the new safety certification procedure will not undermine the role of the national 
safety  authorities  in  their  supervision  tasks  on  the  railway  undertakings  and 
infrastructure managers; 

provides  implementing  powers  to  the  Commission  for  establishing  the  reporting 
structure for accident and incident investigation reports (Article 24). 

The Council position also includes new provisions addressing specific cases and the concerns 
of some Member States. The new provisions in the Council position are to: 

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allow Member States to exclude sidings from the scope of the measures implemented 
under the Directive; 

allow non-EU operators to reach a station within the EU close to the border without 
safety certificate; 

provide specific arrangements for cooperation between the Agency and NSAs when 
supervising networks isolated from the rest of the EU; 

allow  a  derogation  from  the  system  for  certifying  the  bodies  responsible  for 
maintaining freight wagons belonging to a pool of freight wagons shared with non-
EU countries; 

after a cost-benefit analysis, allow the Agency to establish a tool that facilitates the 
exchange  of  safety  related  information  among  the  relevant  actors  of  the  railway 
chain; 

foster the development of a culture of mutual trust, confidence and learning through 
the  safety  management  systems  of  the  infrastructure  managers  and  of  the  railway 
undertakings; 

stress  the  importance  on  development  of  safety  culture,  more  specifically  by 
requesting  to  the  Agency  an  evaluation  of  the  development  of  a  safety  culture 
including  occurrence  reporting  and  by  requesting  to  the  Commission  to  take 
appropriate measures on the basis of the Agency's recommendations. 

While  the  Commission  considers  the  above-mentioned  points  as  acceptable,  it  regrets  the 
following aspects of the Council position: 

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the transposition time-limit increased from 2 to 3 years; 

all  modifications  introduced  in  relation  to  the  delegated  and  implementing  powers, 
including the systematic recourse to the non-opinion clause, which is contrary to the 
letter  and  to  the  spirit  of  Article  5§4  second  subparagraph,  point  b)  of  Regulation 
(EU) No 182/2011; 

the suppression of the obligation of the Member State to supply to the Commission 
information  which  is  clear  and  precise  as  regards  the  transposition  of  Directives  in 
national  law,  as  acknowledged  by  the  European  Parliament,  the  Council  and  the 
Commission  in  their  Joint  Political  Declaration  of  27  October  2011  on  explanatory 
documents. 

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4. 

CONCLUSION 

The  Commission  considers  that  updating  legislation  on  the  safety  of  the  railway  system  is 
crucial  to  achieve  the  objectives  of  introducing  a  simplified  and  unified  safety  certification 
framework.  It  would  significantly  reduce  the  wide  array  of  national  rules  in  the  EU  and, 
equally  importantly,  the  major  discrepancies  in  Member  States’  safety  certification 
procedures. 

In a spirit of compromise, the Commission accepts the position adopted by the Council thus 
allowing the European Parliament to adopt the final text in a second reading, together with the 
other  five  proposals  under  the  Fourth  Railway  Package.  Indeed,  the  Commission  considers 
that  simultaneously  adopting  both  the  market  and  technical  pillars  would  maximise  the 
benefits  in  terms  of  the  quality  of  service,  efficiency  and  the  competitiveness  of  the  rail 
industry. 

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