Legal framework and new EU railway legislation Sofia, 22-23 May 2008 Legal framework and new EU railway legislation Lucio Lanucara, LL.M. Trenitalia - Legal Department Deputy Director, EU and International Affairs

Structure of the presentation General framework of EU rail legislation Historical background; Legislation developed from the 1990’s; Latest developments. Interoperability and safety EU legislation Interoperability regulations and new proposal; Safety regulations and new proposal; European Rail Agency’s Regulation and new proposal Conclusions

A summary of the EU acquis in the rail sector since the early 1990’s

Historical background Railways as the first of the modern mode of transport, with an unprecedented success during the 19th century and the first half of the 20th century. Decline in the second half of the 20° century (motor cars and commercial aviation became increasingly popular and successful). In order to reverse decline and favour modal shift, European Community adopted a number of legislative measures aimed at gradually creating a competitive “railway area” integrated at a European level. Both liberalisation rules and technical/safety rules necessary in order to achieve this goal.

Main legislation adopted in the 1990’s Basis of EU regulation in the railway sector laid out in the 1990’s: Directive 91/440/EEC (and later amendments): Gradual granting of access to the infrastructure to licensed railway undertaking; Begins from international associations; Separation between RUs and IMs. Directive 95/18/EC: Regulates licensing regime; Licenses issued in a Member State valid throughout the Community. Directive 95/19/EC (infrastructure allocation, repealed and substituted by Directive 2001/14) Directive 96/48/EC (interoperability of high-speed systems)

White Papers and Railway Packages - 1 White Papers of 1996 and 2001 Established EU transport policies until 2010; Impulse for acceleration of legislative production First railway package (“infrastructure package”, adopted in February 2001) By building on EU legislation of the Nineties, it enabled licensed RUs to access railway infrastructure on fair, non‑discriminatory terms and began liberalisation of freight transport. Directive 2001/12/EC on infrastructure access (amends Regulation 91/440/CEE); Directive 2001/13/EC on licenses; Directive 2001/14/EC on charges, infrastructure allocation and safety certification. (Directive 2001/16/EC on interoperability of conventional systems)

White Books and Railway Packages - 2 Second railway package (adopted in April 2004) Further liberalisation of freight transport (full liberalisation by January 2007) and introduced important reforms in the field of safety. Directive 2004/49/EC on railway safety, Directive 2004/50/EC on railway interoperability (related to ERA institution); Directive 2004/51/EC on freight liberalisation (amends Regulation 91/440/CEE); Regulation (EC) 881/2004 establishing a European Railway Agency. Third railway package (adopted in December 2007) Focused on passenger services: introduces liberalisation on international services (by January 2010) and rules on passengers’ rights. Certification of rail drivers to improve competition. Directive 2007/58/EC on international passenger liberalisation; Directive 2007/59/EC on certification of train drivers; Regulation (EC) 1371/07 on passengers’ rights. (Proposed Regulation on Quality of Freight Transport rejected by the EP)

Latest Developments Public Service Contracts Regulation 1371/2007 on rail passengers’ rights and obligations (Rail and road, possibly inland waterways), repelling and substituting Regulation 1191/69 and Regulation 1107/70. Dangerous Goods Directive aimed at unifying rules on rail, road and inland waterways (consensus reached, formal approval expected in June). State Aids to the Rail Sector Adoption of Commission guidelines establishing specific rules, in various points derogating from general regimes and clarifying a number of issues.

on interoperability and safety The EU legal framework on interoperability and safety

Goals of the EU system

Legislation Main legislation Interoperability Safety European Railway Agency 1990 -1999 Directive 96/48/EC (interoperability of high-speed rail system) 2000-2001 White book and First Railway package Directive 2001/16/EC (interoperability of conventional rail system) 2004 Second Railway package Directive 2004/49/EC (Railway Safety Directive) Regulation (EC) No 881/2004 (European Railway Agency) 2008 Status of on-going proposals Directive proposal 2006/0273/Cod (approved by Council in 1st reading) Directive proposal 2006/0272/Cod (common position, political agreement) Regulation proposal 2006/0274/Cod (common position)

Interoperability “Interoperability" means the ability of the […] rail system to allow the safe and uninterrupted movement of trains which accomplish the required levels of performance for these lines. This ability rests on all the regulatory, technical and operational conditions which must be met in order to satisfy the essential requirements” (Directive 2001/16/EC, art. 2-b). Decision 884/2004/EC on Community guidelines for the development of the Trans-European transport network Sets the objectives of interoperability, amending Decision 1692/96/EC. Interoperability Directives (essential requirements and mechanism for defining mandatory TSIs) Directive 96/48/EC on the interoperability of the Trans-European high-speed rail system. Directive 2001/16/EC on the interoperability of the Trans-European conventional rail system.

Common features of Interoperability Directives - 1 Directives 96/48/EC and 2001/16/EC General principles Establish conditions to be met to achieve interoperability of rail systems within the Community. territory. Design, construction, putting into service, upgrading, renewal, operation and maintenance of the parts of this system, as well as professional qualifications and health and safety conditions of staff. Pursuit of this objective must lead to the definition of a minimum level of technical harmonisation. Technical specifications for interoperability (TSIs) Each subsystem covered by a TSI. Mandate by Commission: drafted “under the responsibility of the Agency” in cooperation with Working Parties.

Common features of Interoperability Directives - 2 Interoperability constituents Placed on market only if enable interoperability of rail system while meeting essential requirements; used in their area of use as intended and suitably installed and maintained. Subsystems Structural subsystems constituting the rail system located in Member States or operated by railway undertakings; May be placed in service only if they designed, constructed and installed and/or operated in such a way as not to hinder satisfaction of their essential requirements when integrated into the rail system. Notified bodies Bodies responsible for carrying out the procedure for assessment of conformity or suitability; Obligation to notify Commission and other Member States, indicating each body's area of responsibility. Committee Assists the Commission, discussing any matter concerning interoperability.

Interoperability: On-going developments Proposed new Interoperability Directive (no. 2006/0273/Cod) Status: Council approval in 1st reading, 14 May 2008. Main features: Consolidate and merge Railway Interoperability Directives (96/48 and 2001/16); Simplify approving of locomotives (long and expensive procedures, requests from authorities; sometimes poor technical justification); Clarify national standards and approval procedures for existing rolling stock. Expected effects: Competitiveness (reduce costs, contribute to competitiveness and position of EU’s industry); Safeguard of jobs; Contribution of sustainable development.

Safety Directive 2004/49/EC Harmonization of national safety rules Establishes a framework for the regulation and management of safety on the railways of Europe. Harmonization of national safety rules Common safety indicators; Common safety targets; Common safety methods. State safety bodies Member States shall institute: A national safety authority to grant safety certificates and safety authorizations to RUs and IMs; An independent investigation body for accidents. Commission Regulation (EC) 653/2007 Adopted pursuant to Article 10 of Directive 2004/49. Standard format for safety certificates.

Safety: On-going developments Proposed directive amending Safety Directive (no. 2006/0272/Cod) Status: Adoption of common position, 3.3.2008 (end of first reading). Main features: Mutual recognition of rolling stock authorisations (it should be unnecessary for operators to obtain authorisation in each Member State for placing rolling stock into service) Clarify relationship between wagon keeper and RU (particularly regarding maintenance) Extend European Railways Agency’s powers (inventory of national procedures/technical regulations, verifying when compliance should be checked only once) Expected effects: Reduce multiple unnecessary verifications and obstacles to entering markets

European Railway Agency (ERA) - 1 Regulation (EC) No 881/2004 General principles Simultaneous pursuit of safety and interoperability requires substantial technical work, to be carried on by a specialised body. Thus necessary, within the existing institutional framework and with respect for the balance of power in the Community, a European agency responsible for safety and interoperability. ERA’s functions Keeps a public database of relevant documents and publishes every two years a report on the development of railway safety; Supports the national bodies in their cooperation to further harmonise decision-making principles and investigation methods. Safety Unit responsible for realisation of measures laid on the Agency in the Safety Directive, complemented by Regulation (EC) No 881/2004.

European Railway Agency (ERA) - 2 Works closely together with all the stakeholders of the rail sector to develop its proposals. Contributes to the development of a European railway culture, as an essential tool of dialogue, consultation and exchange between all the actors in the railway sector; Acts as an information centre for the development of safety on the railways; Ultimate goal of contributing to creation of integrated European railway area where the rail transport mode can fully develop its potential.

ERA: On-going developments Proposed regulation amending Regulation (EC) No 881/2004 (no. 2006/0272/Cod) Status: Adoption of common position, 3.3.2008 (end of first reading). Main features: Grants ERA powers necessary pursuant to proposed package on interoperability and safety: Classify national rules about interoperability and safety; Identify equivalences of national rules; Coordination, advisory, appellate role in national approval procedures for placing rolling stock into service. Expected effects: Necessary complement to directives proposed for interoperability and safety

Conclusions Liberalization process nearly completed Safety dealt with and under fine tuning Interoperability framework established, will require continuous work Increasingly important role for ERA