CELEX: 
Language: en
Date: 2020-03-19 00:00:00
Title: COMMISSION IMPLEMENTING REGULATION (EU) …/... on submitting information to the Commission as regards non-application of technical specifications for interoperability in accordance with Directive (EU) 2016/797

EUROPEAN
                             COMMISSION
                                                      Brussels, 19.3.2020
                                                      C(2020) 1646 final
               COMMISSION IMPLEMENTING REGULATION (EU) …/...
                                          of 19.3.2020
   on submitting information to the Commission as regards non-application of technical
       specifications for interoperability in accordance with Directive (EU) 2016/797
EN                                                                                     EN
 ---pagebreak---                   COMMISSION IMPLEMENTING REGULATION (EU) …/...
                                              of 19.3.2020
     on submitting information to the Commission as regards non-application of technical
         specifications for interoperability in accordance with Directive (EU) 2016/797
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union,
   Having regard to 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 Union1, and in
   particular Article 7(5) thereof,
   Whereas:
   (1)     Article 7(1) of the Directive (EU) 2016/797 provides that Member States may allow
           an applicant not to apply one or more technical specifications for interoperability
           (‘TSIs’) or part of them, in cases, which are listed exhaustively in points (a) to (e) of
           the Article.
   (2)     Member States’ communication of their decision in cases referred to in point (a) of
           Article 7(1), or Member States’ request for non-application in the cases referred to in
           points (c), (d) and (e), should contain information justifying the non-application and
           specifying the alternative provisions to be applied instead of the TSIs.
   (3)     The request should include the reference to the non-applied TSI provisions, describe
           the project concerned, its scope and timelines as well as provide any other relevant
           information to assist the Commission in assessing the compliance of the non-
           application with the requirements set out in Article 7(1).
   (4)     Once transitional measures provided by a TSI expire, Member States should permit
           applicants not to apply the TSI or parts of them pursuant to Article 7(1)(a) of the
           Directive only in duly justified case. In that event, the communication to the
           Commission should include all necessary information and justifications.
   (5)     In order to facilitate communication with the Commission, Member States should use
           a template when they submit their non-application decision for a project at an
           advanced stage of development pursuant to point (a) of Article 7(1). This template
           could also be used for the notification of a list of projects at an advanced stage of
           development pursuant to Article 7(2) of the Directive.
   (6)     The request for non-application of one or more TSIs or parts of them should be sent to
           the Commission by electronic means in order to ensure a paperless administration. The
           date by which Member States are delivering a request or supplement information to
           the Commission’s mailbox should be the submission date for the purpose of Article
           7(7) of the Directive.
   (7)     The measures provided for in this Regulation are in accordance with the opinion of the
           Rail Interoperability and Safety Committee,
   1
           OJ L 138, 26.5.2016, p. 44
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 ---pagebreak---    HAS ADOPTED THIS REGULATION:
                                             Article 1 - Scope
   This Regulation establishes the information to be included in, and the format and the method
   to be used for the transmission of a request for non-application of one or more technical
   specifications for interoperability (‘TSIs’) or parts of them within the meaning of Article 7(4)
   of Directive (EU) 2016/797 (hereafter “request for non-application”), in accordance to which
   Member States shall either, communicate to the Commission a decision of non-application
   under point (a), or submit to the Commission a request for non-application under points (c),
   (d) or (e) of Article 7(1) of the Directive.
                  Article 2 – Information contained in the request for non application
   1.        A request for non-application shall contain the following information:
             (a)   a reference to the case referred to in Article 7(1) of Directive (EU) 2016/797
                   under which the non-application is considered to be justified;
             (b)   the reference to the title(s) of the TSI or TSIs covered by the request for non-
                   application and to the provision(s) not applied. Each reference shall include,
                   where relevant for assessing compliance, the time period or an estimate
                   thereof, during which the non-application will continue;
             (c)   the essential details of the project concerned, consisting of the technical,
                   operational and geographical elements of the project, including a detailed
                   description of the subsystem, vehicle or infrastructure requested to benefit from
                   the non-application, and relevant key dates, or any other details distinguishing
                   it from other projects;
             (d)   a reference to and details of the alternative provisions that the Member State
                   intends to apply to compensate each non-application in the light of relevant
                   essential requirements, including the measures to be taken to monitor their
                   implementation and, where operational alternatives were agreed, their
                   continuous application..
             (e)   where more than one Member State is concerned, information on coordination
                   taking place in accordance with the final sentence in Article 7(4) of Directive
                   (EU) 2016/797 and/or Article 17(2) of Commission Regulation (EU)
                   2018/5452, when requests for non-application are linked to vehicle
                   authorisations; the same information shall be provided for cross border
                   infrastructure projects;
             (f)   an economic or technical analysis or both, ensuring that the non-application is
                   justified and limited to the extent necessary under the particular circumstances.
   2.        The request for non-application shall also provide the following specific information:
             (a)   for requests made pursuant to point (a) of Article 7(1) of Directive (EU)
                   2016/797, the justification shall include:
   2
           Commission Implementing Regulation (EU) 2018/545 of 4 April 2018 establishing practical
           arrangements for the railway vehicle authorisation and railway vehicle type authorisation process
           pursuant to Directive (EU) 2016/797 of the European Parliament and of the Council (OJ L 90,
           6.4.2018, p. 66–104)
EN                                                    2                                                      EN
 ---pagebreak---             (i)   the details of the project concerned, using the template established in the
                  Annex. If the project is already on a list of advanced stage of
                  development drawn up according to the same template, Member States
                  may refer to it without having to re-submit the information already
                  provided. The information shall be updated where relevant.
            (ii)  evidence that the project is at an advanced stage of development or
                  subject to a contract in course of performance, with documentation
                  providing the evidence for relevant dates and scope of the project;
            (iii) evidence that the planning or construction stage of a project at an
                  advanced stage of development has reached a point where a change in the
                  technical specifications may compromise the viability of the project as
                  planned, in accordance with the definition of “project at advanced stage
                  of development” in Article 2(23) of Directive (EU) 2016/797.
      (b)   for requests made pursuant to point (c) of Article 7(1) of Directive (EU)
            2016/797, the justification shall include, depending on the nature of the non-
            application requested:
            (i)   evidence that the application of one or more TSIs or part of them
                  compromises the economic viability of the project. This evidence shall
                  include a thorough economic analysis establishing unavoidable costs of
                  compliance with the TSI, and providing evidence that such cost would
                  render the project unviable. The analysis shall take into account
                  exploitation revenue if the non-application allows earlier deployment and
                  the longer term economic viability of the project within the national and
                  European rail system; and/or
            (ii)  evidence of the technical details justifying the negative impact of the
                  application of one or more TSIs or part of them, on the project’s
                  technical compatibility with the national rail system.
      (c)   for requests made pursuant to point (d) of Article 7(1) of Directive (EU)
            2016/797, the justification shall include a list of the Member States and third
            countries concerned and the railway lines where the vehicles covered by the
            request are circulating;
      (d)   for requests made pursuant to point (e) Article 7(1), the justification shall
            identify the network or network area(s) relevant for the request and justify its
            separation from the rail network of the rest of the Union, and/or its isolation.
                      Article 3 - Format and method of transmission
   1. The request for non-application shall be limited to 10 pages maximum.
      Supplementing information may be added through annexes to the request.
   2. A communication or request for non-application and any subsequent information to
      complete the file shall be submitted by electronic means only, to the dedicated mail
      address of the Commission:
      MOVE-RAIL-DEROGATIONS@ec.europa.eu.
   3. The date for the purpose of Article 7(7) of Directive (EU) 2016/797 is the date when
      the request or subsequent information to complete the file was submitted by mail
      according to paragraph 2.
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 ---pagebreak---    4.       The acknowledgement of receipt issued by the Commission to the Member State
            within 7 days will contain a unique identifier with reference to the Member State
            concerned, the project and the year of submission
            Member State shall refer to the unique identifier, whenever communicating with the
            Commission on the non-application case.
                                     Article 4 – Entry into force
   This Regulation shall enter into force on the twentieth day following that of its publication in
   the Official Journal of the European Union.
   This regulation shall apply from 16 September 2020.
   This Regulation shall be binding in its entirety and directly applicable in all Member States.
   Done at Brussels, 19.3.2020
                                                 For the Commission
                                                 The President
                                                 Ursula VON DER LEYEN
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 ---documentbreak---                              EUROPEAN
                             COMMISSION
                                                     Brussels, 19.3.2020
                                                     C(2020) 1646 final
                                                     ANNEX
                                            ANNEX
                                             to the
                    COMMISSION IMPLEMENTING REGULATION
   on submitting information to the Commission as regards non-application of technical
       specifications for interoperability in accordance with Directive (EU) 2016/797
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 ---pagebreak---                                                                          ANNEX
     Template for presenting a project at an advanced stage of development where the non-application of one or more TSIs or part of them is
        requested for this project under point (a) of Article 7(1) of Directive (EU) 2016/797 and in line with the information requested with
                                                    Article 2, points 1. and 2(a) of this Regulation
   Name of      Details concerning the scope of the project        All dates and         Technical        Any other     Information    Derogations
  the project                                                   actions relevant for   specifications      relevant       to justify      already
                                                                   justifying the     not applied and   information,      the non-    granted to that
                                                                 advanced state of       alternative  such as area(s)    viability of project (if any)
                                                                   development           provisions         of use,      the project
                                                                  character or the          and/or        including
                                                                  contract signed         standards   coordination in
                                                                                           applied       accordance
                                                                                                      with Art. 17(2)
                                                                                                      of Commission
                                                                                                          regulation
                                                                                                          2018/545.
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