EFTA SURVEILLANCE AUTHORITY DECISION

No 30/15/COL

of 27 January 2015

to grant three derogations requested by the Principality of Liechtenstein in relation to Article 30, Article 36(2) and Point 1.1.3.6.3 lit. b of Annex 5 of the Liechtenstein Ordinance of 3 March 1998 on the transport of dangerous good by road (Verordnung über den Transport gefährlicher Güter auf der Strasse — VTGGS), based on Article 6(2)(a) of the Act referred to at point 13c in Chapter I of Annex XIII to the Agreement of the European Economic Area (Directive 2008/68/EC of the European Parliament and of the Council of 24 September 2008 on the inland transport of dangerous goods) [2015/1813]

THE EFTA SURVEILLANCE AUTHORITY,

Having regard to the Act referred to at point 13c in Chapter I of Annex XIII to the EEA Agreement, Directive 2008/68/EC of the European Parliament and of the Council of 24 September 2008 on the inland transport of dangerous goods (the ‘Directive’), as adapted by the EEA Agreement by Protocol 1 thereto, in particular Articles 6 and 9,

Having regard to Standing Committee Decisions No 3/12/SC and No 4/12/SC,

Having regard to EFTA Surveillance Authority Decision No 295/14/COL of 16 July 2014 (Event No 710373) to submit to the EFTA Transport Committee draft measures to be taken by the EFTA Surveillance Authority with regard to the Liechtenstein request, and empowering the competent College Member to adopt the final decision if the EFTA Transport Committee approves the draft decision unanimously,

Whereas:

1.   PROCEDURE

The Liechtenstein Government, by letter to the Authority of 20 December 2013 (Event No 694300), requested four derogations on the basis of Article 6(2)(a) of the Directive. The derogations as requested by Liechtenstein are laid down in Articles 29, 30, 36(2) and in Point 1.1.3.6.3 lit. b of Annex 5 of the Ordinance of 3 March 1998 on the transport of dangerous good by road (LR 741.621, as last amended) (Verordnung über den Transport gefährlicher Güter auf der Strasse – VTGGS) (‘Ordinance’) and concern the transport of explosives, tank inspection undertakings, the special training of drivers and construction site tanks, respectively.

Further clarifications were received by the Liechtenstein Government in 2014 by informal communications of 20 February (Event No 700062), 21 February (Event No 700131), 12 March (Event No 702345), 27 March (Event No 703760), 9 May (Event No 707772), 14 May (Event No 708302) and 16 May (Event No 708667).

By way of a service contract dated 4 March 2014 (Event No 700047), the Authority commissioned DNV GL AS (‘DNV’) to assess whether the requested derogations would conform to the requirements set out in Article 6(2)(a) of the Directive, with emphasis on any potential or actual risks brought about by the derogations; on whether these would lead to less, more or equal safety; and, if need be, on the identification of possible mitigating measures. On 16 April 2014, DNV submitted a preliminary report to the Authority (Event No 706289). On 23 May 2014, DNV delivered its final report (Event No 709161).

After having assessed the derogations requested by Liechtenstein, the Authority concluded that only the provisions in Articles 30, 36(2) and in Point 1.1.3.6.3 lit. b of Annex 5 of the Ordinance qualify as derogations within the meaning of Article 6(2)(a) of the Directive, whereas Article 29 of the Ordinance, concerning explosives in once opened transport packages, does not qualify as a derogation. (1)

On 16 July 2014, the Authority submitted to the EFTA Transport Committee the three draft measures (Event No 706153) to be taken by the Authority with regard to Liechtenstein's request for derogation based on Article 6(2)(a) of the Directive.

The draft measures submitted to the EFTA Transport Committee on 16 July 2014 read:

By letter of 16 July 2014 (Event 716061), the Authority informed the EFTA States of the draft measures to be taken by the EFTA Transport Committee and invited the EFTA States to assess the notification from Liechtenstein and the draft Opinion of the EFTA Transport Committee. Furthermore, with that letter, the Authority proposed that the opinion of the EFTA Transport Committee be obtained by written procedure, with reference to Articles 1 and 2 of the Decision of the Standing Committee of the EFTA States No 4/2012/SC of 26 October 2012. The Authority requested the EFTA States to provide it with any observations they may have on the draft Opinion of the EFTA Transport Committee by 25 August 2014.

By letter dated 21 August 2014 (Event 720223), the Norwegian Government informed the Authority that it had no comments on the draft Opinion of the EFTA Transport Committee. By letter dated 22 August 2014 (Event 719910), the Liechtenstein Government submitted observations on the draft Opinion of the EFTA Transport Committee. The Icelandic Government did not submit any reply.

On the basis of the observations received, the Authority revised and amended the draft Opinion initially submitted to the EFTA Transport Committee according to Decision No 295/14/COL of 16 July 2014. The Authority also revised the duration of the derogation, in line with Article 6(3) of the Directive. The Authority, in the revised and amended draft Opinion, considered that the requested derogations should be granted without conditions.

By letter dated 24 November 2014 (Event 730389), the Authority submitted the revised and amended draft Opinion to the EFTA Transport Committee, requesting the EFTA States to provide the Authority with their observations on the revised and amended draft Opinion of the EFTA Transport Committee before end of business of 12 December 2014.

The Liechtenstein Government, by letter of 5 December 2014 (Event 731864), informed the Authority that it had no further observations and asked the Authority to follow the suggestions made by the EFTA Transport Committee and to authorise the requested derogations. By letter dated 11 December 2014 (Event 732607), the Norwegian Government informed the Authority that it had no comments on the draft Opinion of the EFTA Transport Committee. The Icelandic Government did not submit any reply.

2.   ASSESSMENT

Further to the clarifications and new information submitted by the Liechtenstein Government in its observations on the draft Opinion of 22 August 2014, the Authority has concluded that the three derogations as contained in Articles 30, 36(2) and in Point 1.1.3.6.3 lit. b of Annex 5 to the Ordinance should be authorised.

With regard to the first derogation request, the Liechtenstein Government clarified in its letter of 22 August 2014 that all drivers from tank inspection undertakings in Liechtenstein operating under the conditions of Article 30 VTTGS have to complete a three week CITEC training covering security and environment related aspects as regards their professional activities. The Liechtenstein Government further specified that every driver of Liechtenstein tank inspection undertakings is in possession of a so-called Swiss Confederate Specialist Certificate for Tank Security (Spezialist/-in für Tanksicherheit mit eidgenössischem Fachausweis). Hence, as the drivers have completed the specific CITEC training, the derogation does not compromise safety. Accordingly, the Authority considers that the request for derogation as regards Article 30 of the Ordinance should be authorised.

With regard to the second derogation request, the Liechtenstein Government, in its letter of 22 August 2014, submitted new information in support of its view that the BBT licence is equivalent to ADR training for drivers. The Authority therefore considers that this further information is sufficient to demonstrate equivalence in this regard, as BBT licence holders are authorised to transport goods belonging to class 1 ADR and the training to acquire a BBT licence covers all relevant aspects necessary for the transport of such goods.

Finally, with regard to the third derogation request, the Liechtenstein Government, in its written observations of 22 August 2014, confirmed that the construction tanks at issue have double shells, as they consist of an inner tank and a closed outer collection basin (defined as such in point 6.14.1.1 of Annex 5 VTGGS). Accordingly, the Authority considers that also the request for derogation as regards Point 1.1.3.6.3 lit. b of Annex 5 to the Ordinance should be authorised.

In conclusion, the Authority considers that safety will not be compromised by granting these derogations and that the three requests for derogations meet the conditions in Article 6(2)(a) of the Directive. Thus, the derogations contained in Articles 30, 36(2) and in Point 1.1.3.6.3 lit. b of Annex 5 to the Ordinance should be authorised. The Authority therefore grants the derogation as requested, based on Article 6(2)(a) of the Directive. The derogation shall be valid for six years, as provided for in Article 6(3) of the Directive. The Authority may, in line with Article 6(4) of the Directive, renew its authorisation.

For these reasons, the EFTA Surveillance Authority, pursuant to Article 6 of the Act referred to at point 13c in Chapter I of Annex XIII to the EEA Agreement, Directive 2008/68/EC of the European Parliament and of the Council of 24 September 2008 on the inland transport of dangerous goods, as adapted by Protocol 1 to the EEA Agreement,

HAS ADOPTED THIS DECISION:

Article 1

The derogations requested by the Principality of Liechtenstein in relation to Article 30, Article 36(2) and Point 1.1.3.6.3 lit. b of Annex 5 of the Liechtenstein Ordinance of 3 March 1998 on the transport of dangerous good by road (Verordnung über den Transport gefährlicher Güter auf der Strasse – VTGGS), are granted.

Article 2

The derogations set out in Article 1 of this Decision shall be published in the EEA section of the Official Journal of the European Union and in the EEA Supplement thereto, according to point 6 of Protocol 1 to the EEA Agreement.

Article 3

The derogations set out in Article 1 of this Decision shall be valid for a period of six years.

Article 4

This Decision is addressed to the Principality of Liechtenstein and shall enter into force upon notification to that State.

Article 5

This Decision shall be authentic in the English language.

(1)  Reference is made to the assessment in Decision No 295/14/COL.

(2)  CITEC: Swiss Association for the protection of the waters and the security of tanks (Association pour la protection des eaux et la sécurité des citernes)

(3)  BBT: Swiss Federal Office for Professional Education and Technology (Bundesamt für Berufsbildung und Technologie)

(4)  ADR: European Agreement concerning the International Carriage of Dangerous Goods by Road