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Document 52008AG0005

    Common Position (EC) No 5/2008 of 3 March 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Regulation of the European Parliament and of the Council amending Regulation (EC) No 881/2004 establishing a European Railway Agency (Agency Regulation) (Text with EEA relevance)

    OJ C 93E, 15.4.2008, p. 1–12 (BG, ES, CS, DA, DE, ET, EL, EN, FR, GA, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)

    15.4.2008   

    EN

    Official Journal of the European Union

    CE 93/1

    COMMON POSITION (EC) No 5/2008

    adopted by the Council on 3 March 2008

    with a view to adopting Regulation (EC) No …/2008 of the European Parliament and of the Council of … amending Regulation (EC) No 881/2004 establishing a European railway agency (Agency Regulation)

    (Text with EEA relevance)

    (2008/C 93 E/01)

    THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

    Having regard to the Treaty establishing the European Community, and in particular Article 71(1) thereof,

    Having regard to the proposal from the Commission,

    Having regard to the opinion of the European Economic and Social Committee (1),

    After consulting the Committee of the Regions,

    Acting in accordance with the procedure referred to in Article 251 of the Treaty (2),

    Whereas:

    (1)

    Regulation (EC) No 881/2004 of the European Parliament and of the Council of 29 April 2004 established a European Railway Agency (3), hereinafter referred to as ‘the Agency’, to make a technical contribution to creating a European railway area without frontiers. Following developments in Community legislation on rail interoperability and safety and market developments and on the basis of the experience gained in operating the Agency and the relationship between the Agency and the Commission, certain amendments need to be made to that Regulation, and in particular certain tasks need to be added.

    (2)

    National rules are to be notified to the Commission both in accordance with Directive 2008/…/EC of the European Parliament and of the Council of … on the interoperability of the rail system within the Community (4), hereinafter referred to as the ‘Railway Interoperability Directive’, and Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways (Railway Safety Directive) (5). The two sets of rules should therefore be examined in order to assess, in particular, if they are compatible with the common safety methods and the technical specifications for interoperability (TSIs) in force, as well as if they enable the common safety targets in force to be achieved.

    (3)

    In order to facilitate the procedure for authorising the placing in service of vehicles which do not conform to the relevant TSIs, all the technical and safety rules in force in each Member State should be classified into three groups and the results of this classification should be presented in a reference document. The Agency is therefore required to draw up a draft for creating and updating this document by cross-referencing the national rules for each of the relevant technical parameters and by providing ad hoc technical opinions on specific aspects of cross-accepting projects. After reviewing the list of the parameters, the Agency may recommend that it be modified.

    (4)

    Due to its legal attributions and its high level of technical expertise, the Agency is the entity which should provide clarification on complex matters emerging from the activity in the sector. Therefore, in the context of the procedures authorising the placing in service of vehicles, it should be possible to request the Agency to issue technical opinions in the case of a negative decision by a national safety authority or on the equivalence of national rules for the technical parameters established in the Railway Interoperability Directive.

    (5)

    It should be possible to request the opinion of the Agency on urgent modifications to TSIs.

    (6)

    Under Article 13 of Regulation (EC) No 881/2004, the Agency may monitor the quality of the work of the bodies notified by the Member States. A study conducted by the Commission has shown that there is much scope for interpretation of the criteria to be applied for notifying these bodies. Without prejudice to the Member States' responsibility with regard to the bodies that they choose to notify and the checks that they make to ensure that these criteria have been met, it is important to assess the impact of such differences in interpretation and to check that they do not cause difficulties with regard to the mutual recognition of conformity certificates and the EC declaration of verification. Therefore, at the request of the Commission, the Agency should be able to monitor the activity of the notified bodies and, if justified, perform checks with a view to ensuring that the criteria referred to in the Railway Interoperability Directive are met by the relevant notified body.

    (7)

    Article 15 of Regulation (EC) No 881/2004 authorises the Agency to assess, at the request of the Commission and from the point of view of interoperability, applications for Community funding for railway infrastructure projects. The definition of these projects should be extended so that the coherence of the system can also be assessed, as in the case of projects implementing the European Rail Traffic Management System (ERTMS), for example.

    (8)

    Following developments of an international dimension, and in particular the entry into force of the 1999 Convention concerning International Carriage by Rail (COTIF), the Agency should be asked to assess the relationship between railway undertakings and keepers, particularly with regard to maintenance, as an extension of its work in the area of maintenance workshop certification. In this context, it should be possible for the Agency to address recommendations regarding the implementation of the system of voluntary certification of maintenance in accordance with Article 14 of the Railway Safety Directive.

    (9)

    When developing the certification schemes of entities in charge of maintenance and maintenance workshops, the Agency should make sure that these schemes are consistent with the responsibilities already allocated to railway undertakings and the future role of entities in charge of maintenance. These schemes should facilitate the safety certification procedure of railway undertakings and avoid undue administrative burden and duplication of controls, inspections and/or audits.

    (10)

    Following adoption of the third railway package, reference should be made to Directive 2007/59/EC of the European Parliament and of the Council of 23 October 2007 on the certification of train drivers operating locomotives and trains on the railway system in the Community (6), hereinafter referred to as the ‘Train Drivers Directive’, which lays down various tasks to be performed by the Agency and gives it the possibility to address recommendations as well.

    (11)

    As far as railway staff are concerned, the Agency should also identify possible options for the certification of other crew members performing safety-critical tasks and assess the impact of these different options. It is intended that, besides train drivers and other crew members performing safety-critical tasks, the Agency reflects on specifying criteria for defining vocational competences of other staff involved in the operation and maintenance of the rail system.

    (12)

    The Railway Interoperability Directive and the Railway Safety Directive provide for various types of document, namely, EC declarations of verification, licences and safety certificates and national rules notified to the Commission. Therefore, it should be the Agency's task to ensure public access to those documents as well as to the national registers on vehicles and infrastructure and to the registers kept by the Agency.

    (13)

    The Agency should examine the appropriate revenues for the tasks related to the accessibility of documents and registers in accordance with Article 38(2) of Regulation (EC) No 881/2004.

    (14)

    Since the adoption of the second railway package, several initiatives relating to the development and implementation of the ERTMS have been taken. These include the signing of a cooperation agreement between the Commission and the various stakeholders in the sector, the setting up of a steering committee for implementing this cooperation agreement, the adoption by the Commission of a Communication to the European Parliament and the Council on the deployment of the European rail signalling system ERTMS/ETCS, the appointment, by the Commission, of a European coordinator for the ERTMS project as a priority project of Community interest, the definition of the Agency's role as system authority in the context of the various annual work programmes, and the adoption of the ‘control-command and signalling’ TSI for conventional rail (7). Given the growing importance of the Agency's input in this area, its tasks should be specified.

    (15)

    The Agency now has a large number of experts specialising in the interoperability and safety of the European rail system. It should be authorised to carry out ad hoc tasks at the Commission's request, subject to the compatibility of those tasks with the Agency's mission and compliance with the Agency's other priorities. In that light, the Agency's Executive Director should evaluate the admissibility of this assistance and report at least once a year on its provision to the Administrative Board. The Board may assess this report in accordance with the powers attributed to it by Regulation (EC) No 881/2004.

    (16)

    The recruitment of project officers with a contract of a maximum of five years was intensive during the first year the Agency was established, which means that many of the technical staff have to leave the Agency within a short time span. In order to ensure an adequate quantity and quality of expertise and to anticipate possible difficulties in the recruitments procedures, the Agency should be allowed to extend the working contracts of specially qualified staff for another three years.

    (17)

    The date by which the Agency's annual work programme is to be adopted should be amended to allow for better synchronisation with the budgetary decision-making process.

    (18)

    The Agency's work programme should identify the objective of each activity and to whom it is to be addressed. The Commission should also be informed of the technical results of each activity, as this information goes well beyond the scope of the general report, which is addressed to all the institutions.

    (19)

    Since the objective of the this Regulation, namely the extension of the Agency's mission to include its participation in the simplification of the Community procedure for the certification of railway vehicles, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

    (20)

    Regulation (EC) No 881/2004 should therefore be amended accordingly,

    HAVE ADOPTED THIS REGULATION:

    Article 1

    Amendments

    Regulation (EC) No 881/2004 is hereby amended as follows:

    1.

    Article 2 shall be replaced by the following:

    ‘Article 2

    Types of acts of the Agency

    The Agency may:

    (a)

    address recommendations to the Commission concerning the application of Articles 6, 7, 9b, 12, 14, 16, 16a, 16b, 16c, 17 and 18; and

    (b)

    issue opinions to the Commission pursuant to Articles 9a, 10, 13 and 15, and to the authorities concerned in the Member States pursuant to Article 10.’;

    2.

    Article 3 shall be amended as follows:

    (a)

    the first sentence in paragraph 1 shall be replaced by the following:

    ‘1.   For drawing up the recommendations provided for in Articles 6, 7, 9b, 12, 14, 16, 17 and 18 the Agency shall establish a limited number of working parties.’;

    (b)

    paragraph 3 shall be replaced by the following:

    ‘3.   The national safety authorities defined in Article 16 of the Railway Safety Directive, or, depending on the subject, the competent national authorities, shall appoint their representatives for the working parties in which they wish to participate.’;

    3.

    Article 8 shall be deleted;

    4.

    the following Chapter title shall be inserted immediately after Article 9:

    5.

    the following Articles shall be inserted:

    ‘Article 9a

    National rules

    1.   At the request of the Commission, the Agency shall carry out a technical examination of the new national rules submitted to the Commission in accordance with Article 8 of the Railway Safety Directive or Article 17(3) of Directive 2008/…/EC of the European Parliament and of the Council of … on the interoperability of the rail system within the Community (8), hereinafter referred to as the “Railway Interoperability Directive”.

    2.   The Agency shall examine the compatibility of the rules referred to in paragraph 1 with the CSMs and with the TSIs in force. The Agency shall also examine whether these rules enable the CSTs in force to be achieved.

    3.   If, after taking account of the reasons given by the Member State, the Agency considers that any of these rules either is incompatible with the TSIs or the CSMs or does not allow CSTs to be reached, it shall submit an opinion to the Commission within two months of transmission of the rules to the Agency by the Commission.

    Article 9b

    Classification of national rules

    1.   The Agency shall facilitate Member States' acceptance of vehicles placed in service in another Member State in accordance with the procedures laid down in paragraphs 2 to 4.

    2.   The Agency shall, by … [Six months after the entry into force of the Railway Interoperability Directive], review the list of parameters in Section 1 of Annex VII to Directive 2008/…/EC and make the recommendations it considers appropriate to the Commission.

    3.   The Agency shall draw up a draft for a reference document cross-referencing all the national rules applied by the Member States for placing vehicles in service. This document shall contain the national rules of each Member State for each of the parameters listed in Annex VII to the Railway Interoperability Directive and specify the group referred to in Section 2 of that Annex to which these rules belong. These rules shall comprise those notified under Article 17(3) of Directive 2008/…/EC, including those notified following adoption of TSIs (specific cases, open points, derogations) and those notified under Article 8 of the Railway Safety Directive.

    4.   With a view to gradually reducing the national rules in Group B referred to in Section 2 of Annex VII of the Railway Interoperability Directive, the Agency shall regularly draw up a draft for updating the reference document and forward it to the Commission. The first version of the document shall be presented to the Commission no later than … [One year after the entry into force of this Regulation].

    5.   For the purpose of implementation of this Article, the Agency shall make use of the cooperation of the national safety authorities established under Article 6(5) and set up a working party in accordance with the principles of Article 3.

    6.

    the following paragraphs shall be added to Article 10:

    ‘2a.   The Agency may be called upon to provide technical opinions:

    (a)

    by a national safety authority or the Commission, on the equivalence of national rules for one or more parameters listed in Section 1 of Annex VII to the Railway Interoperability Directive;

    (b)

    by the competent appeal body referred to in Article 21(7) of the Railway Interoperability Directive, in the case of a decision by a competent national safety authority refusing the placing in service of a railway vehicle.

    2b.   The Agency may be called upon by the Commission to provide technical opinions on urgent modifications to TSIs, in accordance with Article 7(1) of the Railway Interoperability Directive.’;

    7.

    Article 11 shall be deleted;

    8.

    Article 13 shall be replaced by the following:

    ‘Article 13

    Notified bodies

    1.   Without prejudice to the responsibility of Member States for the notified bodies which they designate, the Agency may, at the request of the Commission, monitor the quality of the work of those bodies. It shall submit an opinion to the Commission where appropriate.

    2.   Without prejudice to the responsibility of Member States, the Agency shall, at the request of the Commission when it, in accordance with Article 28(4) of the Railway Interoperability Directive, considers that a notified body does not meet the criteria referred to in Annex VIII to that Directive, check to ensure that those criteria are met. The Agency shall issue an opinion to the Commission.’;

    9.

    Article 15 shall be replaced by the following:

    ‘Article 15

    Interoperability within the Community rail system

    Without prejudice to the derogations provided for by Article 9 of the Railway Interoperability Directive, the Agency shall, at the request of the Commission, examine, from the point of view of interoperability, any project involving the design and/or construction or the renewal or upgrading of the subsystem for which an application for Community financial aid has been submitted. Within a period to be agreed with the Commission according to the importance of the project and the resources available and which cannot extend beyond two months, the Agency shall give an opinion on whether the project conforms with the relevant TSIs.’;

    10.

    the following Chapter title shall be inserted immediately above Article 16:

    11.

    the following subparagraph shall be added to Article 16:

    ‘These recommendations shall be consistent with the responsibilities already allocated to railway undertakings as provided for in Article 4 of the Railway Safety Directive and the entity in charge of maintenance as provided for in Article 14 of that Directive, and shall take full account of the certification mechanisms of railway undertakings and entities in charge of maintenance.’;

    12.

    the following Article shall be inserted:

    ‘Article 16a

    Certification of entities in charge of maintenance

    By … (9), the Agency shall send to the Commission a report setting out, if necessary, recommendations on the implementation of the system of voluntary certification of maintenance in accordance with Article 14 of the Railway Safety Directive.

    The Agency's assessment and recommendations shall in particular cover the following aspects taking due account of relations an entity in charge of maintenance can have with other parties such as keepers, railway undertakings and infrastructure managers:

    (a)

    whether the entity in charge of maintenance has adequate systems in place, including operational and management processes, to ensure the effective and safe maintenance of vehicles;

    (b)

    the content and the specifications of a voluntary system of certification valid throughout the Community;

    (c)

    the type of bodies competent for certification;

    (d)

    the technical and operational inspections and controls.

    13.

    the following Chapter title shall be inserted immediately after Article 16a:

    14.

    the following Article shall be inserted:

    ‘Article 16b

    Train drivers

    1.   On matters related to Directive 2007/59/EC of the European Parliament and of the Council of 23 October 2007 on the certification of train drivers operating locomotives and trains on the railway system in the Community (10), hereinafter referred to as the “Train Drivers Directive”, the Agency shall:

    (a)

    prepare a draft for a Community model for the licence, the certificate and the certified copy of the certificate, their physical characteristics, taking into account therein anti-forgery measures;

    (b)

    cooperate with the competent authorities in order to ensure the interoperability of the registers for train drivers' licences. To this end the Agency shall prepare a draft on the basic parameters of the registers to be set up, such as data to be recorded, their format and the data exchange protocol, access rights, the duration of data retention and the procedures to be followed in cases of bankruptcy;

    (c)

    prepare draft Community criteria on the choice of examiners and examinations;

    (d)

    evaluate the development of the certification of train drivers by submitting to the Commission, not later than four years following the adoption of the basic parameters of the registers, as provided for in Article 22(4) of the Train Drivers Directive, a report containing, where appropriate, improvements to be made to the system and measures regarding the theoretical and practical examination of the professional knowledge of applicants for the harmonised certificate for rolling stock and relevant infrastructure;

    (e)

    by 4 December 2012, examine the possibility of using a smartcard combining the licence and certificates provided for in Article 4 of the Train Drivers Directive, and shall prepare a cost/benefit analysis thereof. The Agency shall prepare a draft for the technical and operating specifications for such a smartcard;

    (f)

    assist the cooperation amongst Member States in the implementation of the Train Drivers Directive and organise appropriate meetings with representatives of the competent authorities;

    (g)

    if asked by the Commission, carry out a cost/benefit analysis of the application of the provisions of the Train Drivers Directive to train drivers operating exclusively on the territory of the requesting Member State. The cost/benefit analysis shall cover a period of ten years. This cost/benefit analysis shall be submitted to the Commission within two years of the setting-up of the registers in accordance with point 1 of Article 37 of the Train Drivers Directive;

    (h)

    if asked by the Commission, carry out another cost/benefit analysis which is to be submitted to the Commission no later than 12 months prior to the expiry of the temporary exemption period possibly granted by the Commission;

    (i)

    ensure that the system set up in paragraph 2(a) and (b) of Article 22 of the Train Drivers Directive complies with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (11).

    2.   On matters related to the Train Drivers Directive, the Agency shall make recommendations on:

    (a)

    modification of the Community Codes for the different types in categories A and B as referred to in Article 4(3) of the Train Drivers Directive;

    (b)

    the codes reflecting additional information, or medical restrictions for use imposed by a competent authority in accordance with Annex II to the Train Drivers Directive.

    3.   The Agency may make a reasoned request to the competent authorities for information on the status of train driver licences.

    15.

    the following Article shall be inserted:

    ‘Article 16c

    Other on-board staff

    In accordance with Article 28 of the Train Drivers Directive, the Agency shall, in a report to be presented by 4 June 2009, and taking into account the TSI on operation and traffic management developed under Directives 96/48/EC and 2001/16/EC, identify the profile and tasks of other crew members performing safety-critical tasks whose professional qualifications accordingly contribute to railway safety which should be regulated at Community level by means of a system of licences and/or certificates which may be similar to the system established by the Train Drivers Directive.’;

    16.

    in Article 17, the title and paragraph 1 shall be replaced by the following:

    ‘Article 17

    Vocational competences and training

    1.   The Agency shall make recommendations on specifying common criteria for defining vocational competences and assessing staff in the case of staff involved in the operation and maintenance of the rail system but which is not covered by Articles 16b or 16c.’;

    17.

    the following Chapter title shall be inserted immediately after Article 17:

    18.

    Article 18 shall be replaced by the following:

    ‘Article 18

    Registers

    1.   The Agency shall draw up and recommend to the Commission common specifications for:

    (a)

    the national vehicle registers in accordance with Article 33 of the Railway Interoperability Directive, including arrangements for exchange of data and a standard application form for registration;

    (b)

    the register of authorised vehicle types in accordance with Article 34 of the Railway Interoperability Directive, including arrangements for exchange of data with the national safety authorities;

    (c)

    the register of infrastructure in accordance with Article 35 of the Railway Interoperability Directive.

    2.   The Agency shall set up and keep a register of types of vehicles authorised by the Member States for placing in service on the rail network within the Community, in accordance with Article 34 of the Railway Interoperability Directive. The Agency shall also prepare a draft for the model of declaration of conformity to type, in accordance with Article 26(4) of that Directive.’;

    19.

    Article 19 shall be replaced by the following:

    ‘Article 19

    Accessibility of documents and registers

    1.   The Agency shall make publicly accessible the following documents and registers provided for by the Railway Interoperability Directive and the Railway Safety Directive:

    (a)

    the EC declarations of verification of subsystems;

    (b)

    the EC declarations of conformity of constituents available to the national safety authorities;

    (c)

    the licences issued in accordance with Directive 95/18/EC;

    (d)

    the safety certificates issued in accordance with Article 10 of the Railway Safety Directive;

    (e)

    the investigation reports sent to the Agency in accordance with Article 24 of the Railway Safety Directive;

    (f)

    the national rules notified to the Commission in accordance with Article 8 of the Railway Safety Directive and Articles 5(6) and 17(3) of the Railway Interoperability Directive;

    (g)

    the link to the national vehicle registers;

    (h)

    the link to the registers of infrastructure;

    (i)

    the European register of authorised types of vehicles;

    (j)

    the register of requests for changes and planned changes to the European Rail Traffic Management System (ERTMS) specifications;

    (k)

    the register of vehicle keeper markings kept by the Agency in accordance with the TSI on operation and traffic management.

    2.   The practical arrangements for transmitting the documents referred to in paragraph 1 shall be discussed and agreed by Member States and the Commission on the basis of a draft of the Agency.

    3.   When transmitting the documents referred to in paragraph 1, the bodies concerned may indicate which documents are not to be disclosed to the public for reasons of security.

    4.   The national authorities responsible for issuing the documents referred to in paragraph 1(c) and (d) shall notify the Agency within one month of each individual decision to issue, renew, amend or revoke them.

    5.   The Agency may add to this public database any public document or link relevant to the objectives of this Regulation.’;

    20.

    the title of Chapter 4 shall be replaced by the following:

    21.

    the following Articles shall be inserted:

    ‘Article 21a

    ERTMS

    1.   The Agency shall assume the tasks set out in paragraphs 2 to 5 with a view to contributing to a coherent development and implementation of the ERTMS.

    2.   The Agency shall set up a procedure for managing requests for changes to specifications of the ERTMS. To this end, a register of requests for changes and planned changes to ERTMS specifications shall be set up and maintained by the Agency.

    3.   The Agency shall support the efforts of the Commission in migrating to ERTMS and coordinating installation of the ERTMS along the trans-European transport corridors.

    4.   The Agency shall develop a strategy for managing the different versions of the ERTMS with a view to ensuring technical and operational compatibility between networks and vehicles fitted with different versions.

    5.   Should technical incompatibilities emerge between networks and vehicles in the context of specific ERTMS projects, notified bodies and national safety authorities shall make sure that the Agency obtains any relevant information on the applied procedures for EC verification and placing in service as well as on the operational conditions. The Agency shall, if necessary, recommend appropriate measures to the Commission.

    Article 21b

    Assistance to the Commission

    1.   Within the limits of Article 30(2)(b), the Agency shall, at the request of the Commission, assist the Commission in the implementation of the Community legislation aimed at enhancing the level of interoperability of railway systems and at developing a common approach to safety on the European railway system.

    2.   This assistance shall be limited in time and scope, and carried out without prejudice to all other tasks assigned to the Agency in this Regulation and may include:

    (a)

    communicating information on how specific aspects of the Community legislation are implemented;

    (b)

    providing technical advice in matters requiring specific know-how;

    (c)

    collecting information through the cooperation of national safety authorities and investigation bodies provided for in Article 6(5).

    3.   The Executive Director shall report at least once a year to the Board on the implementation of this Article, including its impact on resources.’;

    22.

    Article 24(3) shall be replaced by the following:

    ‘3.   Without prejudice to Article 26(1), the Agency's staff shall consist of:

    —

    temporary employees recruited by the Agency for a maximum of five years from among professionals from the sector on the basis of their qualifications and experience in the field of railway safety and interoperability,

    —

    officials assigned or seconded by the Commission or Member States for a maximum of five years, and

    —

    other servants, as defined in the Conditions of Employment of other servants of the European Communities, to carry out implementing or secretarial tasks.

    During the first 10 years of operation of the Agency, the period of five years in the first indent may be extended for another period of up to a maximum of three years when required to guarantee the continuity of its services.’;

    23.

    Article 25 shall be amended as follows:

    (a)

    in paragraph 2, point (c) shall be replaced by the following:

    ‘(c)

    adopt, by 30 November each year, and taking the opinion of the Commission into account, the work programme of the Agency for the coming year and forward it to the Member States, the European Parliament, the Council and the Commission. That work programme shall be adopted without prejudice to the annual Community budgetary procedure. If, within 15 days of the date of adoption of the work programme, the Commission expresses its disagreement with the programme, the Administrative Board shall re-examine the programme and adopt it, amended if necessary, within a period of two months, in second reading either with a two-thirds majority, including the Commission representatives, or by unanimity of the representatives of the Member States;’;

    (b)

    the following paragraph shall be added:

    ‘3.   The Agency's work programme shall identify the objectives of each activity. As a general rule, each activity and/or each outcome shall be the subject of a report to the Commission.’;

    24.

    Article 26(1) shall be replaced by the following:

    ‘1.   The Administrative Board shall be composed of one representative of each Member State and four representatives of the Commission, as well as of six representatives, without the right to vote, the latter representing at European level the following groups:

    (a)

    railway undertakings;

    (b)

    infrastructure managers;

    (c)

    the railway industry;

    (d)

    worker unions;

    (e)

    passengers;

    (f)

    freight customers.

    For each of these groups, the Commission shall appoint a representative and an alternate from a shortlist of four names submitted by their respective European organisations with a view to ensure appropriate representation of all interests.

    Board members and their alternates shall be appointed on the basis of their relevant experience and expertise.’;

    25.

    Article 33(1) shall be replaced by the following:

    ‘1.   In order to perform the tasks entrusted to it by Articles 9, 9a, 10, 13 and 15, the Agency may carry out visits to the Member States in accordance with the policy defined by the Administrative Board. The national authorities of the Member States shall facilitate the work of the Agency's staff.’;

    26.

    Article 36(1) shall be replaced by the following:

    ‘1.   The Agency shall be open to participation by European countries and countries within the scope of the European Neighbourhood Policy which have concluded agreements with the European Community under which the countries concerned have adopted and are applying Community legislation in the field covered by this Regulation.’.

    Article 2

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

    This Regulation shall be binding in its entirety and directly applicable in all Member States.

    Done at …

    For the European Parliament

    The President

    For the Council

    The President

    (1)  OJ C 256, 27.10.2007, p. 39.

    (2)  Opinion of the European Parliament of 29 November 2007 (not yet published in the Official Journal), Council Common Position of 3 March 2008 and Position of the European Parliament of … (not yet published in the Official Journal).

    (3)  OJ L 164, 30.4.2004, p. 1. Corrected version in OJ L 220, 21.6.2004, p. 3.

    (4)  See page … of this Official Journal.

    (5)  OJ L 164, 30.4.2004, p. 44. Corrected version in OJ L 220, 21.6.2004, p. 16.

    (6)  OJ L 315, 3.12.2007, p. 51.

    (7)  Commission Decision 2006/679/EC of 28 March 2006 concerning the technical specification for interoperability relating to the control-command and signalling subsystem of the trans-European conventional rail system (OJ L 284, 16.10.2006, p. 1). Decision as last modified by Decision 2007/153/EC (OJ L 67, 7.3.2007, p. 13).

    (8)  OJ L …’;

    (9)  Six months after the entry into force of the Railway Interoperability Directive.’;

    (10)  OJ L 315, 3.12.2007, p. 51.

    (11)  OJ L 8, 12.1.2001, p. 1.’;

    STATEMENT OF THE COUNCIL'S REASONS

    I.   INTRODUCTION

    On 13 December 2006, the Commission submitted three legislative proposals primarily aimed at facilitating the movement of railway vehicles across the European Union:

    —

    a proposal for a Directive amending Directive 2004/49/EC on safety on the Community's railways (1) (hereinafter referred to as the Railway Safety Directive),

    —

    a proposal for a Directive on the interoperability of the Community rail system (1) (hereinafter referred to as the Railway Interoperability Directive),

    —

    a proposal for a Regulation amending Regulation (EC) No 881/2004 establishing a European Railway Agency (1) (hereinafter referred to as the Agency Regulation).

    On 29 November 2007, the European Parliament voted its opinion at first reading.

    On 3 March 2008, the Council will adopt its Common Position. In carrying out its work, the Council took account of the opinion of the Economic and Social Committee (2). The Committee of the Regions decided not to adopt an opinion on the above mentioned proposals.

    II.   ANALYSIS OF THE COMMON POSITION

    1.   General

    With a view to enabling railways to play its key role with regard to sustainable mobility in the European Union, the Council aims at the gradual development of an integrated European railways area. In this context, the Council considers that the three legislative proposals recasting the interoperability directives for conventional and high-speed rail and amending both the Railway Safety Directive and the Agency Regulation can bring important improvements to the technical part of the regulatory framework for European railways. These proposals lower existing barriers to the free circulation of railway vehicles on the European rail network thereby facilitating cross acceptance of authorisations of railway vehicles amongst Member States.

    Council and Parliament succeeded in reaching an agreement at first reading on the proposal for a Railway Interoperability Directive so that Council can adopt the proposed act thus amended. Council and Parliament could however not align their positions at first reading on the proposals amending the Railway Safety Directive and the Agency Regulation. Consequently, Council adopted Common Positions on both proposals, thereby taking due account of some amendments which the Parliament adopted at its first reading Opinions.

    2.   Key policy issues

    The proposal amending the Agency Regulation is primarily aimed at adapting the legislative framework for the European Railway Agency to the new tasks that result from the amended Railway Safety Directive and the Railway Interoperability Directive. Therefore, in drawing up its Common Position on the Commission proposal amending the Agency Regulation, Council took as a starting point the text which forms the basis of the first reading agreement between Council and Parliament on the Railway Interoperability Directive and the Common Position on the proposal amending the Railway Safety Directive. In addition, Council made some changes to the Commission proposal with a view to ensuring a better use of the Agency's technical expertise.

    2.1.   Classification of national rules

    Even though Council significantly restructures the Commission proposal, overall it keeps the important provisions as proposed by the Commission. In this context, it needs to be mentioned that the Council maintains the key provision on the classification of all national rules regarding the authorisation of placing railway vehicles in service. The European Railway Agency is tasked to create a reference document comparing the national technical and safety rules and to update it regularly. In so doing, it can be gradually identified which national rules should be considered equivalent and, consequently, cannot be used as ground for additional checks. This will contribute to increased cross-acceptance of vehicle authorisations amongst Member States.

    Council agrees with Parliament's amendment 3 which aims at the reduction of national rules on authorisations for placing vehicles in service that are equivalent amongst Member States. However, in sharing that aim, Council considers it more effective to ask the Agency to submit a regular update of the reference document than — as Parliament proposes — to set a single and fixed date (1 January 2010) before which the Agency must propose solutions. Furthermore, Council cannot accept amendment 2, as it prefers establishing a general task for the Agency to prepare a reference document than requiring the Agency to give priority to those national rules which concern differences between Member States regarding safety clearance for infrastructure and rolling stock.

    2.2.   Main modifications to Commission proposal

    Taking the Commission's proposal as the basis, Council introduces several modifications.

    (a)

    Council agreed to make better use of the Agency's expertise. Firstly, the Agency may be called upon to provide technical opinions in the case of a negative decision by a National Safety Agency and on the equivalence of national rules for the technical parameters established in the Railway Interoperability Directive. Secondly, the Agency may be requested to deliver an opinion on urgent modifications of Technical Specifications for Interoperability (TSIs).

    (b)

    In the Common Position, the Agency is tasked to prepare — within 6 months from the date on which the Railway Interoperability Directive enters into force — a report setting out, if necessary, recommendations on the implementation of a system of voluntary certification of vehicle maintenance as set out in the Railway Safety Directive. In its Common Position, the Council further indicates that these recommendations must be consistent with the roles and responsibilities of railway undertakings and entities in charge of maintenance as laid down in the Railway Safety Directive while facilitating the safety certification procedure of railway undertakings and avoiding the administrative burden of duplication of controls, inspections and/or audits. Considering that it would increase the administrative burden and impose additional costs to the industry, the Council cannot support the main element of amendment 6 which calls for a mandatory system of certification.

    (c)

    In the Agency Regulation, the Council lists all tasks of the Agency that are defined in Directive 2007/59/EC of the European Parliament and of the Council of 23 October 2007 on the certification of train drivers operating locomotives and trains on the railway system in the Community, hereinafter referred to as the Train Drivers Directive (3). In listing these tasks, the Council distinguishes between tasks with regard to train drivers, on the one hand, and tasks with regard to other crew members performing safety-critical tasks, on the other hand. As to the train drivers, the list includes tasks such as preparing a draft for a Community model for the train drivers licence and ensuring the interoperability of the registers for train drivers' licences. As to the other crew members performing safety-critical tasks, the Agency must present a report identifying their profile and tasks.

    Finally, for the staff involved in the operation and maintenance of the rail system but not belonging to either of the two categories mentioned above, the Agency is tasked to make recommendations suggesting common criteria for defining vocational competences and assessing staff.

    (d)

    Council adapts the provision on registers in the Agency Regulation in the light of the changes made to the Railway Safety Directive and the recasted Railway Interoperability Directive. The provision on registers in the Common Position reflects that the Agency needs to draw up common specifications for the newly created register of authorised vehicle types as well as for the infrastructure register, and that it must set up and keep the register for vehicle types. Parliament makes the same proposal on the setting up and keeping of a European register of vehicles types in amendment 7, which the Council of course supports. In addition, Council elaborates the rules on accessibility of documents and registers in a separate Article.

    (e)

    Building on the Commission proposal, Council specifies the conditions under which the Commission can request assistance from the Agency for the implementation of the Community's legislative framework on railway interoperability and safety.

    (f)

    Council takes over amendment 9 of the European Parliament which provides for more possibilities to extend work contracts of staff with a view to ensuring the continuity of its operations. However, the Council limits this more flexible regime to the first 10 years of operation as this period is the period where it will be particularly important to retain qualified staff.

    (g)

    Other changes Council made to the Commission proposal:

    —

    In view of the different national situations, Council provides for the possibility that not only national safety agencies, but, depending on the subject under discussion, also other competent national authorities can appoint representatives to participate in the working parties of the Agency.

    —

    Council supports the Commission's aim to have notified bodies across the Community which function on the basis of the same criteria. With a view to clarifying this provision, in the Common Position, a distinction is made between the different roles of the Agency as to monitoring the quality of the work of notified bodies, on the one hand, and as to checking whether a notified body still meets the set criteria, on the other hand.

    —

    The Council agrees with the Commission that the Agency should be involved in assessing the interoperability aspects of certain requests for Community funding, but specifies that the delay within which the Agency must give an answer is restricted to a maximum of two months.

    —

    The Council follows the Commission's proposal considering that the tasks of the Agency with respect to ERTMS need to be specified in the Regulation but chooses to reformulate the relevant provision somewhat.

    III.   AMENDMENTS OF THE EUROPEAN PARLIAMENT

    The response of Council to the amendments 2, 3, 6, 7 and 9 is set out in relation to the above key issues. In addition, Council cannot accept the following amendments:

    —

    Amendment 1 regarding working parties of the Agency as it falls outside the scope of the Commission proposal.

    —

    Amendment 4 entrusting the Agency as from 2015 with the task of granting authorisations for placing vehicles conforming to TSIs in service. This issue can however be considered solved, as the same amendment was the result of a compromise in the context of the Railway Interoperability Directive where Council and Parliament elaborated a procedure for National Safety Authorities when authorising the placing in service of vehicles, thereby adding the principle of mutual recognition of such authorisations. Moreover, both institutions agreed to invite the Commission to draw up a report on the effectiveness of this new procedure and on the possible future collaborative approaches between the Agency and the National Safety Agencies.

    —

    Amendments 5 and 8 on Technical Opinions by the Agency have only been partly incorporated in the Council's Common Position. In line with the compromise on the Railway Interoperability Directive, the Council rejects the possibility for individual applicants to request a Technical Opinion directly from the Agency as Parliament proposes in amendment 5. As to the possibility of the Agency to give Technical Opinions on ERTMS as proposed in both amendment 5 and 8, the Council agrees on a provision requiring the Agency to set up a procedure for managing requests for changes to ERTMS specifications.

    IV.   CONCLUSION

    The three legislative proposals on interoperability, safety and the European Railway Agency which aim at facilitating the movement of railway vehicles across the European Union make an important contribution to the further integration of the European railways area. Council and Parliament already achieved significant progress on these three proposals, in particular by reaching a first reading agreement on the Railway Interoperability Directive. This lays a solid basis for both co-legislators to find compromise solutions on the proposals amending the Agency Regulation and the Railway Safety Directive during their second reading discussions.

    (1)  OJ C 126, 7.6.2007, p. 7.

    (2)  OJ C 256, 27.10.2007, p. 39.

    (3)  OJ L 315, 3.12.2007, p. 51.

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