COMMISSION IMPLEMENTING REGULATION (EU) …/...

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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 Union 1 , and in particular Article 7(5) thereof,

Whereas:

(1)Article 7 (1) of Directive (EU) 2016/797 provides that Member States may authorise 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 that article. Pursuant to Article 7(4) of the directive, the request for non-application of the TSIs or part of them in the cases referred to in points (a), (c), (d) and (e) of Article 7(1), is to be accompanied by a file containing the justification for the request and specifying the alternative provisions that the Member State intends to apply instead of the TSIs. 

(2)Requirements for submitting information to the Commission as regards non-application of TSIs or part of them should be laid down in order to ensure that the requests for non-application contain all necessary information, giving the legal reference to non-applied TSI provisions, describing clearly the project concerned, its scope and timeline as well as any other information relevant for assessing the legality of the request for non-application. 

(3)In its request to the Commission for non-application of one or more TSIs or parts of them, the Member State concerned should provide detailed justification for the derogation under Article 7(1) of Directive (EU) 2016/797, as well as information on alternative provisions, which are to be applied to compensate for the non-application of the TSIs. 

(4)In order to facilitate communication with the Commission, when Member States submit their decision to allow non-application of one or more TSIs or part of them for a project at an advanced stage of development pursuant to point (a) of Article 7(1) of Directive (EU) 2016/797, they should use a template. 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.

(5)Member States should consider the transition periods granted under new or amended TSIs sufficient to allow the possibility of the non-application of TSIs or parts of them, due to an advanced stage of development of a project.

(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.

(7)The measures provided for in this Regulation are in accordance with the opinion of the Rail Interoperability and Safety Committee,

HAS ADOPTED THIS REGULATION:

Article 1

This Regulation lays down the information to be included in a request by a Member State to the Commission for non-application as regards a particular project, of one or more technical specifications for interoperability (‘TSIs’) or parts of them pursuant to Article 7 of Directive (EU) 2016/797 (hereafter “non-application”).

Article 2

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 legal reference to the TSI or TSIs covered by the request for non-application or, if only parts of one or more TSIs are subject to the request, details of the actual provisions. Each reference should include the time period or an estimate thereof, during which the non-application will continue;

(c)the essential details of the project consisting of the technical, financial and operational elements of the project, including a detailed description of the works, goods or services subject to the non-application , specifying key dates, geographical location and 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;

(e)an economic and/or technical analysis 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 under point (a) Article 7(1) of Directive (EU) 2016/797, the justification shall include:

(i)a presentation of the project, 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 a presentation, subject to updating it where relevant.

(ii)evidence that the project is in 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 the project in 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.

(b)for requests made pursuant to point (c) of Article 7(1) of Directive (EU) 2016/797, the justification shall include:

(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 of the savings from non-application, taking into account as eligible cost the essential cost for ensuring application, exploitation revenue and future fitness of the project within the national rail system; and/or

(iii)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 covered by the request;

(d)for requests made pursuant to point (e) Article 7(1), the justification shall include:

(i)a clear identification of the network or network area covered by the request justifying its separation from the EU main network and/or its isolation;

(ii)a technical justification, based on national law where applicable, to confirm the separation/isolation of the network, including any link to third country’ rail network.

Article 3

Member State shall submit requests for non-application of one or more TSIs or parts of them by electronic means only, to the email address of the Commission: 
MOVE-RAIL-DEROGATIONS@ec.europa.eu.

Article 4

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

It shall apply from its entry into force. In the Member States that have notified the Agency and the Commission in accordance with Article 57(2) of Directive (EU) 2016/797 it shall apply from 16 June 2020.

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

Done at Brussels,