Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive (EU) 2016/797 and Directive (EU) 2016/798, as regards the extension of their transposition period
Date: 2020-04-29
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: European standard, epidemic, harmonisation of standards, infectious disease, intra-EU transport, national implementing measure, rail transport, safety standard, technical standard, transport safety

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 29.4.2020  COM(2020) 179 final 2020/0071 (COD)  Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive (EU) 2016/797 and Directive (EU) 2016/798, as regards the extension of their transposition period (Text with EEA relevance)  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The proposal is part of the emergency measures adopted by the Commission in reaction to the 
extraordinary situation caused by the COVID-19 outbreak.  

Unusually,  Directive  (EU)  2016/797  and  Directive  (EU)  2016/798  of  the  technical  pillar  of 
the  4th  Railway  Package  provided  Member  States  with  a  choice  of  two  transposition 
deadlines1 – 16 June 2019, or, upon notification to the Commission and the European Union 
Agency  for  Railways,  16  June  2020.  Only  8  MS  have  transposed  both  Directives  in  2019 
(BG, FI, FR, GR, IT, NL, RO, SI).  

In the light of COVID-19 outbreak, most of the remaining 17 Member States have requested a 
delay  to  transposition,  claiming  they  will  be  unable  to  complete  the  necessary  legislation 
before 16 June 2020.  

Given  the  extraordinary  circumstances,  it  is  entirely  understandable  that  final  transposition 
may  be  impossible  before  16  June  2020.  It  is  vital  to  provide  legal  clarity  and  certainty,  in 
particular  to  the  railway  industry  and  undertakings  that  are  the  main  beneficiaries  of  the 
Fourth Railway Package. The COVID-19 outbreak struck in the final stage of adoption of the 
national transposition measures. Member States should still be able to complete the process in 
an additional period of three months. Therefore,  the Commission  considers a short delay of 
three months to be reasonable. 

A  number  of  implementing  acts  and  delegated  acts  have  been  adopted  in  accordance  with 
Directive (EU) 2016/797 and Directive (EU) 2016/798. Given the dual transposition deadline, 
according transitional provisions and dates for entry into force have been introduced therein. 
The  Commission  will  propose  a  set  of  amendments  to  the  implementing  acts  to  align  them 
with  the  extension  of  the  transposition  deadlines  following  the  adoption  of  the  proposed 
Directive.  For  the  relevant  delegated  acts2,  the  existing  procedure  set  out  in  Article  6  of 
Directive (EU) 2016/798 would not allow an alignment with the extension of the transposition 
deadlines  on  time.  Thus,  a  legal  basis  and  simplified  procedure  for  the  further  alignment  is 
provided in the proposal. This will ensure a coherent legal framework and implementation of 
the technical pillar of the Fourth Railway Package. 

This is not an initiative within the Regulatory Fitness Programme (REFIT). 

• 

Consistency with existing policy provisions in the policy area 

The proposals are consistent with the overall emergency measures the Commission is taking 
to mitigate and overcome negative effects of COVID-19 outbreak.  

1  Article 57 of Directive (EU) 2016/797 on the interoperability of the rail system within the European Union and 

Article 33 of Directive (EU) 2016/798 on railway safety. 

2  Commission Delegated Regulation (EU) 2018/761 of 16 February 2018 establishing common safety methods 
for  supervision  by  national  safety  authorities  after  the  issue  of  a  single  safety  certificate  or  a  safety 
authorisation  pursuant  to  Directive  (EU)  2016/798  of  the  European  Parliament  and  of  the  Council  and 
repealing Commission Regulation (EU) No 1077/2012 (OJ L129, 25.5.2018, p. 16). 
Commission Delegated Regulation (EU) 2018/762 of 8 March 2018 establishing common safety methods on 
safety management system requirements pursuant to Directive (EU) 2016/798 of the European Parliament and 
of the Council and repealing Commission Regulations (EU) No 1158/2010 and (EU) No 1169/2010 (OJ L129, 
25.5.2018, p. 26). 

EN 

1 

  EN 

                                                 
It  is  essential  to  adopt  these  measures  in  order  to  ensure  the  continuity  of  the  transport  of 
goods and persons. 

• 

Consistency with other Union policies 

The  effective  functioning  of  the  internal  market  in  rail,  the  free  flow  of  essential  goods, 
passengers  and  personnel,  related  services  depends  on  the  economic  performance  of  the 
railway undertakings, infrastructure managers and rail industry, as well as a well-functioning 
legal  and  administrative  framework.  The  negative  economic  consequences  of  the  current 
COVID-19  outbreak  could  endanger  the  financial  health  of  railway  undertakings  and 
infrastructure  managers  and  have  serious  negative  effects  on  the  transport  system  and  the 
economy as a whole.  

Commission  developed  a ‘green  lanes’  concept  to  keep  borders  open  for  freight  and  reduce 
traffic delays. Guidance  on passenger rights  has  been issued,  and will be further updated to 
address further changes in the overall situation. 

The  amendment  of  the  Directives  aims  to  address  the  major  current  concerns  of  Member 
States,  railway  undertakings,  infrastructure  managers  and  rail  industry,  and  is  therefore  of 
utmost importance.  

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

This  initiative  is  based  on  Article  91(1)  of  the  Treaty  on  the  Functioning  of  the  European 
Union.  

• 

Subsidiarity (for non-exclusive competence)  

The objective of the proposal cannot be sufficiently achieved by the Member States as they 
are bound by the transposition arrangements set out in the Directives and cannot unilaterally 
amend them. This  objective may  be  achieved only  through  an amendment  of the Directives 
themselves by the co-legislator. 

• 

Proportionality 

The proposal  is  proportionate to  the problems  created by  the  crisis  and does not  go beyond 
what is necessary to achieve the objective of alleviating the impact of the current COVID-19 
outbreak for the purposes of transposition of the Directives. 

• 

Choice of the instrument 

In order to achieve its objective, the legal instrument should be of the same form as the one to 
be  amended.  The  main  purpose  of  the  proposal  is  to  amend  the  transposition  deadline  as 
requested by Member States.  

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

This is an urgent measure which is triggered by the sudden and unforeseeable outbreak and 
spread of the COVID-19 virus. For this reason, the measure is not relevant for the regulatory 
fitness programme and no ex-post evaluation has been carried out. 

EN 

2 

  EN 

• 

Stakeholder consultations 

Given  the  urgency  of  the  matter  formal  stakeholder  consultation  could  not  be  carried  out. 
However, both Member States authorities and stakeholders have called upon the Commission 
to adopt a proposal for appropriate measures in the context of the Directives. 

• 

Collection and use of expertise 

As  explained,  the  proper  collection  of  expertise  was  not  possible  due  to  the  urgency  of  the 
situation.  The  Commission’s  emergency  measures  are  taken  on  the  basis  of  the  scientific 
evidence on the development of epidemiological circumstances. 

• 

Impact assessment 

Given the urgency of the situation, an impact assessment could not be carried out.  

• 

Regulatory fitness and simplification 

Not applicable. 

• 

Fundamental rights 

No impacts on the fundamental rights. 

4. 

BUDGETARY IMPLICATIONS 

Not applicable. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

To ensure proper implementation of the proposed measure, which also has a direct impact on 
the legal clarity to the rail sector, the Commission proposes to introduce a notification clause 
for Member States opting for the extension of transposition deadline until 16 September 2020. 

• 

Explanatory documents (for directives) 

Not applicable. 

EN 

3 

  EN 

2020/0071 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Directive (EU) 2016/797 and Directive (EU) 2016/798, as regards the extension 
of their transposition period 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee1,  
Having regard to the opinion of the Committee of the Regions2,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

1 
2 
3 

4 

In  accordance  with  Article  57(1)  of  Directive  (EU)  2016/797  of  the  European 
Parliament and of the Council3 and Article 33 (1) of Directive (EU) 2016/798 of the 
European Parliament and of the Council  4 , Member States should have brought their 
laws, regulations and administrative provisions necessary to comply with the relevant 
provisions  of the Directives by 16 June 2019. However, pursuant  to  Article 57(2) of 
Directive  (EU)  2016/797  and  Article  33(2)  of  Directive  (EU)  2016/798,  Member 
States had the possibility to extend the transposition period by one year. 

Seventeen  Member  States  have  notified  the  Commission  and  the  European  Union 
Agency for Railways (the ‘Agency’) about the extension of the transposition deadline 
of Directives (EU) 2016/797 and (EU) 2016/798 to 16 June 2020. 

Due  to  the  extraordinary  and  unforeseeable  situation  caused  by  the  COVID-19 
outbreak,  some  of  those  Member  States  face  difficulties  to  complete  the  legislative 
works  within  the  given  transposition  deadline  and  therefore  risk  a  failure  to  comply 
with  this  deadline.  Such  a  failure  could  create  legal  uncertainty  for  the  rail  industry, 
the national authorities and the Agency as to the legislation that applies to rail safety 
and interoperability. The inability of certain Member States to transpose the Directives 
as a result of the COVID-19 outbreak  has detrimental consequences for the rail sector.  

OJ C , , p. . 
OJ C , , p. . 
Directive  (EU)  2016/797  of  the  European  Parliament  and  of  the  Council  of  11  May  2016  on  the 
interoperability of the rail system within the European Union (recast) (OJ L 138, 26.5.2016, p. 44) 
Directive  (EU)  2016/798  of  the  European  Parliament  and  of  the  Council  of  11  May  2016  on  railway 
safety (recast) (OJ L 138, 26.5.2016, p. 102) 

EN 

4 

  EN 

                                                 
(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

It  is  essential  to  provide  legal  clarity  and  certainty  to  the  rail  industry  by  allowing, 
where  relevant,  Member  States  to  continue  to  apply,  as  of  16  June  2020  and  for  a 
limited period, Directive 2004/49/EC of the European Parliament and of the Council5 
and Directive 2008/57/EC of the European Parliament and of the Council6.  

Since  the  COVID-19  outbreak  struck  in  the  final  stage  of  adoption  of  the  national 
transposition measures Member States should be allowed an additional period of three 
months to complete the transposition process.  

The transposition deadlines of Directives (EU) 2016/797 and (EU) 2016/798 should be 
extended  by  three  months  until  16  September  2020.  The  repeal  dates  of  Directive 
2004/49/EC  and  Directive  2008/57/EC,  as  set  out  in  Article  58  of  Directive  (EU) 
2016/797 and Article 34 of Directive (EU) 2016/798 respectively, should be adjusted 
accordingly. 

A  number  of  delegated  acts  have  been  adopted  on  the  basis  of  Directive 
(EU) 2016/798  reflecting  previous  transposition  deadlines.  These  acts  need  to  be 
aligned  with  the  new  transposition  deadline  in  the  current  situation.  A  simplified 
procedure  should  be  provided  where  imperative  grounds  of  urgency  require  an 
amendment of delegated act.  

Directives (EU) 2016/797 and (EU) 2016/798 should be amended accordingly. 

In  order  to  allow  for  the  prompt  application  of  the  measures  provided  for  in  this 
Directive,  this  Directive  should  enter  into  force  on  the  day  following  that  of  its 
publication in the Official Journal of the European Union, 

HAVE ADOPTED THIS DIRECTIVE: 

Directive (EU) 2016/797 is amended as follows: 

(1) 

in Article 57,  the following paragraph 2a is inserted: 

Article 1 

"2a.   Member States, that have extended the transposition period in accordance with 
paragraph  2,  may  further  extend  it  until  [16  September  2020].  Their  transposition 
measures  shall apply  from  that date.  Those Member States shall notify  the Agency 
and the Commission  thereof by one day following the entry into force of Directive 
(EU) 2020/… at the latest.";  

(2) 

in the first paragraph of Article 58,  

“16 June 2020” is replaced by “16 September 2020”. 

5 

6 

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  safety  certification  (Railway  Safety 
Directive) (OJ L 164, 30.4.2004, p. 44). 
Directive  2008/57/EC  of  the  European  Parliament  and  of  the  Council  of  17  June  2008  on  the 
interoperability of the rail system within the Community (OJ L 191, 18.7.2008, p. 1). 

EN 

5 

  EN 

                                                 
Directive (EU) 2016/798 is amended as follows: 

(1) 

the following Article 6a is inserted: 

Article 2 

“Article 6a 

Alignment of CSMs with revised deadlines 

The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article  27(7)  to  align  the  application  dates  of  delegated  acts  adopted  under 
Article 6(6), with the transposition deadline set out in Article 33(2a).” 

(2) 

in Article 27, the following paragraph 7 is added: 

“7. By derogation from  paragraphs 1 to  6, the power to  adopt  delegated  acts  under 
Article 6a is conferred on the Commission from [date of entry into force of Directive 
(EU)  2020/…]  to  [16  September  2020].  The  procedure  provided  for  in  Article  27a 
shall apply. ” 

(3) 

in Article 27, the following paragraph 8 is added: 

“8.  By  derogation  from  paragraphs  2  to  6,  and  without  prejudice  of  paragraph  7, 
where  imperative  grounds  of  urgency  so  require,  the  procedure  provided  for  in 
Article 27a shall apply to delegated acts adopted pursuant to this Article.” 

(4) 

the following Article 27a is inserted: 

"Article 27a 

Urgency procedure  

1.  Delegated  acts  adopted  under  this  Article  shall  enter  into  force  without  delay 
and  shall  apply  as  long  as  no  objection  is  expressed  in  accordance  with 
paragraph 3.  

2.  As soon  as  the Commission  adopts a delegated  act pursuant  to  this Article,  it 
shall  notify  it  simultaneously  to  the  European  Parliament  and  to  the  Council 
and shall state the reasons for the use of the urgency procedure.  

3. 

Either the European Parliament or the Council may object to a delegated act in 
accordance with the procedure referred to in Article 27(6). In such a case, the 
Commission shall repeal the act immediately following the notification of the 
decision to object by the European Parliament or by the Council." 

(5) 

in Article 33, the following paragraph 2a is inserted: 

“2a.  Member States, that have extended the transposition period in accordance with 
paragraph  2,  may  further  extend  it  until  [16  September  2020].  Their  transposition 
measures  shall apply  from  that date.  Those Member States shall notify  the Agency 
and the Commission  thereof by one day following the entry into force of Directive 
(EU) 2020/… at the latest. ” 

(6) 

in the first paragraph of Article 34,  

“16 June 2020” is replaced by “16 September 2020”. 

EN 

6 

  EN 

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

Article 3 

This Directive is addressed to the Member States. 

Done at Brussels, 

Article 4 

For the European Parliament 
The President 

For the Council 
The President 

EN 

7 

  EN