Explanatory Memorandum to COM(2002)23 - European Railway Agency - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2002)23 - European Railway Agency. |
|---|---|
| source | COM(2002)23  |
| date | 23-01-2002 |
The process of creating an internal rail market is only just beginning. Directives 2001/12, 13 and 14/EC laid the foundation for establishing, by March 2003, a common framework for access to railway infrastructure, for licensing and safety certification, for allocation of railway infrastructure capacity and for charging for use thereof. Within this new framework, international freight services will be open to competition from March 2003 on.
To turn such an integrated railway area into reality, it emerged as essential to address the technical regulations and standards. In practice, the characteristic feature of the railway industry was the lack of international technical regulation by the public authorities. In each Member State, standards and procedures have been defined, often directly by the railway companies themselves. Although the cooperation between these companies within the UIC has produced a minimum of common ground, it has not really been able to draw together the different national systems.
Creation of an integrated railway area in Europe therefore entails putting in place common technical regulations monitored, as in other sectors of the economy, by the public authorities.
As a first step, the Community established a framework for progressively setting standards on the interoperability of rail systems (Directives 96/48/EC and 2001/16/EC).
This second package of measures on rail transport is designed to expand this approach, by adding the safety aspects, extending the work on interoperability to new areas and putting it all into a comprehensive, clear and consistent context.
In order to perform these tasks and prepare the individual proposals, a balance must be struck between, on the one hand, the public authorities, which must be subject to democratic control, and, on the other, the players on the market, whose expertise lies at the heart of the process. The balance existing, to one degree or another, in the Member States must also be maintained at European level. To achieve this, it is essential to create a centre of expertise at Community level alongside the public authorities to give guidance on this process.
However, the specialisation and expertise required are arguments against direct involvement by the Commission. The White Paper on European governance i served as a reminder that the Commission must concentrate on the tasks conferred on it by the Treaties and avoid having to assign resources to over-technical tasks. The same approach was also advocated in a study conducted for the Directorate-General for Energy and Transport on the externalisation of certain tasks, which focused, in particular, on the drafting of technical standards in the railway sector.
It therefore became clear that the most appropriate instrument for performing these technical tasks with experts from the industry would be an Agency. This solution had been under consideration since 1996 i and was recommended again in NERA's study for the Commission on railway safety i. This approach was confirmed by the September 2001 White Paper 'European transport policy for 2010: time to decide' i.
This proposal draws on the earlier proposals for a Maritime Safety Agency i and an Aviation Safety Agency i and on the Commission's thinking on governance.
The White Paper on European governance laid down the conditions for the creation of regulatory agencies at EU level. It recalled that the Treaties allow some responsibilities to be granted directly to agencies. However, this should be done in a way that respects the balance of powers between the institutions and does not impinge on their respective roles and powers. This implies the following conditions:
- "Agencies can be granted the power to take individual decisions in specific areas but cannot adopt general regulatory measures. In particular, they can be granted decision-making power in areas where a single public interest predominates and the tasks to be carried out require particular technical expertise.
- Agencies cannot be given responsibilities for which the Treaty has conferred a direct power of decision on the Commission (for example, in the area of competition policy).
- Agencies cannot be granted decision-making power in areas in which they would have to arbitrate between conflicting public interests, exercise political discretion or carry out complex economic assessments.
- Agencies must be subject to an effective system of supervision and control i."
The limits placed on the powers of the Railway Agency to be established under this proposal for a regulation and its institutional set-up are therefore based directly on the approach set out in the White Paper.
Contents
- 2. The European Railway Agency for Safety and Interoperability
- 2.1. The objective
- 2.2. The Agency
- 2.2.1. Tasks
- 2.2.2. Functioning
- 3. The choice of the legal basis
- 4. Justification of the proposed measure
- Is the envisaged action solely the responsibility of the Community or is the responsibility shared with the Member States*
- What is the most efficient solution taking into account the resources of the Community and the Member States*
- What is the concrete added value of the action envisaged by the Community and what would be the cost of inaction*
- What forms of actions are available to the Community (recommendation, financial assistance, regulation, mutual recognition)*
- Is uniform legislation necessary or would a Directive, setting the general objectives and leaving implementation to the Member States, suffice*
- 5. Comments on articles
- Article 2
- Article 3
- Article 4
- Article 5
- Chapter 2: Safety
- Article 7
- Article 8
- Article 9
- Article 10
- Article 11
- Chapter 3: Interoperability
- Article 13
- Article 14
- Article 15
- Article 16
- Article 17
- Article 18
- Article 19
- Chapter 4: Studies and promotion of innovation
- Article 21
- Chapter 5: Internal structure and operation
- Article 23
- Article 24
- Article 25
- Article 26
- Article 27
- Article 28
- Article 29
- Article 30
- Article 31
- Article 32
- Article 33
- Article 34
- Article 35
- Article 36
- Article 37
- Chapter 6: Financial provisions
- Article 39
- Article 40
- Article 41
- Chapter 7: General and final provisions
- Article 43
- Article 44
- 6. Final considerations
The objective is to establish a European Railway Agency responsible for safety and interoperability.
The Agency will be an integral part of the Community system. It will be the technical body providing the Community with the necessary means to act effectively on railway safety and interoperability. A fuller description of the Agency's tasks is contained in Section 5 ("Comments on articles").
(a) Management bodies
If the Agency is to function properly, its Executive Director must be left with a high degree of independence and flexibility on organisation of the internal functioning of the Agency. The Executive Director will also be responsible for preparation and implementation of the budget and the work programme of the Agency and for personnel matters.
In order to provide the necessary legitimacy, the Executive Director should preferably be appointed by the administrative board on a proposal from the Commission.
An administrative board will be established to supervise the Agency. It will be made up of six representatives appointed by the Commission, six representatives appointed by the Council and three recognised experts in the sector, who will not be entitled to vote. This membership is proposed in line with the principles set out in the White Paper on European governance of 25 July 2001 i. The administrative board will adopt the Agency's work programme, its general report and, at the beginning of the financial year, the Agency's budget, which it will adjust to the contributions and fees received.
A full description of the powers of the Executive Director and of the administrative board is contained in Section 5 ("Comments on articles").
(b) Personnel
For carrying out the tasks described above, the Agency needs a sufficient number of highly qualified staff. The number of staff required is estimated at around 100 persons.
The personnel of the Agency will be subject to the Staff Regulations applicable to Officials of the European Communities and the Conditions of Employment of Other Servants. The plan is that only a small number of staff will be seconded from the Community institutions. The other personnel will be recruited on the basis of experience and merit. Without prejudice to the need to have stable, qualified staff in sufficient number, the personnel will be employed on temporary contracts with a maximum duration of five years so as to ensure continuous renewal with staff who are abreast of technological developments and maintain the experience built up.
(c) Budget
The Agency needs a budget allocation large enough to hire its personnel as described above, to carry out its tasks and to function smoothly. For the first year this annual budget can be estimated at approximately EUR 5 million, increasing to around EUR 14.5 million when the Agency is fully operational.
The Agency's budget will be financed mainly by a contribution from the Community. The Agency may charge fees for its publications or for its training activities or other services. However, the amount from these fees will remain minor in relation to the total budget of the Agency.
The Community spends approximately EUR 2 600 million a year on financing railway projects (TEN, Cohesion Fund, Structural Funds, ISPA, Research Programme, etc). The Agency's annual budget is equivalent to less than 0.6% of this total and will allow far more efficient use of the Community resources allocated to developing the railways. In proportion to the Member States' spending on railways (approximately EUR 35 billion a year), the Agency's budget represents less than 0.04%.
(d) Location
The Agency will need to be sited at a convenient location where it will be able to build up working relations with the appropriate Community institutions and where it will be easy to organise meetings of experts from the Member States. Taking into account these requirements and the applications received, the Commission will propose one or more potential locations to the competent authorities. On the basis of the resultant proposal, the competent authorities will have to decide the location not later than six months after adoption of this Regulation.
(e) Transparency
The Agency will adopt its rules regarding transparency and access to documents in compliance with the decisions of the European Parliament and the Council, in the context of Article 255 of the EC Treaty.
The legal basis proposed is Article 71 i, which is consistent with the objective of the proposal and with all the legislation adopted or proposed so far in the railways field, particularly on safety, with the exception of the directives adopted on interoperability based on Article 156.
What are the objectives of the planned action in relation to the obligations of the Community and what is the Community dimension of the problem (for instance how many Member States are involved and what solution has been adopted until now)*
The Treaty provides for the establishment of a common transport policy. The measures envisaged to implement this policy include laying down common rules applicable to international transport and measures to improve transport safety, as provided for in Article 71 i. Establishment of the Agency will help to attain the objectives of the common transport policy by facilitating creation of a European railway area without technical barriers and guaranteeing a high level of safety.
Is the envisaged action solely the responsibility of the Community or is the responsibility shared with the Member States*
The Agency will deal with matters for which the Community is responsible since it will assist in implementing Community legislation. The Agency will allow permanent networking of the national authorities responsible for railway safety and interoperability and will draw on their experience in order to perform its tasks.
What is the most efficient solution taking into account the resources of the Community and the Member States*
Common rules on railway interoperability and safety can only be defined at Community level. For such a highly precise, technical task in a field where the technology is constantly changing, the most appropriate instrument is a specialist Agency and not an institution with general responsibilities like the Commission.
What is the concrete added value of the action envisaged by the Community and what would be the cost of inaction*
The decline of the railways and their inability to recapture market share are due largely to the plethora of incompatible national rules. Establishment of the Agency is one way of contributing to creation of an integrated, competitive railway area.
Without rapid, determined action in this field, it will be impossible to stem the decline of the railways, particularly for freight, at a time when this mode needs to be expanded to allow sustainable mobility.
What forms of actions are available to the Community (recommendation, financial assistance, regulation, mutual recognition)*
A regulation is the only possible way to achieve the objective of the measure. It is also the form of legislation generally used to establish an Agency in the Community.
Is uniform legislation necessary or would a Directive, setting the general objectives and leaving implementation to the Member States, suffice*
As stated in the previous point, the choice of form of legislation is dictated by the very objective of the measure.
Chapter 1: Principles
Article 1
This article provides for establishment of the Agency and states that its objectives will be to provide the Commission and the Member States with technical assistance in order to enhance the level of interoperability and safety of the European rail system. In performing all its tasks, the Agency must take full account of the enlargement process and of rail links with third countries.
This article specifies the type of acts which the Agency may adopt, i.e. either recommendations or opinions. This implies that the Agency has no autonomous decision-making powers and that its responsibilities will be limited to carrying out technical work on behalf of the Commission and the Member States.
This article establishes the principle of participation by professionals from the sector in the work done by the Agency and defines the form which this is to take.
This article establishes the principle of consultation of the social partners, within the framework of the Social Dialogue Committee, on the work done by the Agency of direct relevance to them.
This article establishes the principle of consultation of rail freight users and customers on the work done by the Agency of direct relevance to them.
Article 6
Article 5 of the Directive on railway safety provides for drawing up common safety targets and common safety methods. The Agency will be in charge of the technical side of drafting these texts.
Article 14 of the Directive on railway safety provides for developing a harmonised structure for safety certificates. The Agency will be responsible for developing a harmonised format for safety certificates and for applications for such certificates.
This article ties in with Article 8 of the proposed Directive on railway safety concerning examination of new national safety measures. It gives details of the role to be played by the Agency in examining them.
At the request of the Commission, the Agency will examine the measures in question and submit an opinion to the Commission.
This article ties in with Article 6 of the proposed Directive on railway safety and gives details of the role to be played by the Agency in monitoring safety performance on the railways.
The Agency will be responsible for establishing common indicators and collecting and processing the data available. To ensure maximum transparency, every two years the Agency will submit a report on safety performance in the railway industry. In order to perform these tasks, the Agency will cooperate with Eurostat.
Open access for international freight and the right for operators to move beyond the Member State in which they are based will have to be guaranteed by the bodies regulating the market set up by Directive 2001/14/EC. This, together with Directive 2001/12/EC, provides for the establishment of a committee which should be informed of any problem with access to the infrastructure.
These bodies for regulating the market are neither intended nor equipped to judge safety-related technical issues on their own. However, safety issues could arise in the cases drawn to their attention.
It is therefore essential that the national bodies regulating the market and the abovementioned committees have the possibility to request an independent technical opinion. The Agency will give such opinions within two months.
To ensure transparency, a version of the Agency's opinion containing no data relating to any trade secret will be made public.
On open markets documents such as licences, which are valid throughout the Union, and safety certificates should be accessible to all concerned directly, easily and transparently, while keeping commercial data and intellectual property confidential.
This is particularly important for the national authorities which, as the need arises, must be able to check that operators on their territory conform to the rules.
For this reason, the Agency will be responsible for gathering all the relevant documents and making them available to the public on a website. In order to achieve this, it will form a network with the bodies issuing the documents in question and with the competent authorities in the Member States.
Article 12
The Agency will be the principal implementer of Directives 96/48/EC and 2001/16/EC on the interoperability of the rail system. As such, it will be in charge of the technical side of preparation of the technical specifications for interoperability, taking account of technical progress and of compliance with other European standards.
The Interoperability Directives (96/48/EC and 2001/16/EC) provide for the Member States to designate bodies to assess the conformity or suitability for use of interoperability constituents and to verify subsystems with a view to establishing the 'EC declaration'. It is essential that these bodies adopt common approaches and methods and exchange experience. It is equally important that they keep abreast of developments on interoperability and, conversely, that they can publicise any difficulties with application of certain specifications. The Agency will therefore be responsible for organising cooperation between the notified bodies.
In some cases neutral evaluation of the quality of the work of notified bodies could be desirable. Responsibility for such inspections lies primarily with the Member State which approved the bodies. Nevertheless, the Agency may directly conduct additional inspections on any notified body, case by case. In such cases, it will have no power over the body inspected, but will report to the Commission, which can then refer the matter to the committee of representatives of the Member States provided for in the Interoperability Directives.
Constant monitoring of progress with interoperability in the field is indispensable. The Agency will perform this task and present a report every two years.
To keep the Union's transport policies consistent, it is important to make sure that, from the technical point of view, the infrastructure projects receiving Community support comply with the rules and objectives on interoperability. At the request of the Commission, the Agency will act as technical evaluator of such projects.
This article provides for development of a certification system for maintenance workshops. To limit empty journeys and cut maintenance costs, operators and users must be able to have maintenance operations carried out wherever their rolling stock is located. Often this will not be in the Member State where the rolling stock was registered. In order to achieve this, they must be sure that the maintenance will be carried out correctly from both the quality and safety points of view. A European certification system for maintenance workshops must therefore be put in place. The Agency will be responsible for carrying out the technical groundwork and making recommendations.
Today vocational qualifications for train drivers are completely different from one Member State to another and depend largely on the companies themselves. To make progress towards interoperability and allow free movement of workers in this industry, common, recognised training modules must gradually be defined. This key task of taking stock of, analysing and aligning the training systems and diplomas will be performed by the Agency, in cooperation with the social partners. The Agency must draw up, with all concerned, a system for accreditation of training institutes and drivers' diplomas so that they are recognised throughout the Community. It will make recommendations on this subject. As called for by the European Parliament i, the Agency will also promote exchanges of staff, particularly of drivers, between Member States.
If various operators are to cross national frontiers in an open network, a common system for registration of rolling stock will be needed to enable national authorities and infrastructure managers to check the conformity of the rolling stock and to retrieve information on it (owner, when it was brought into service and by whom, technical data, maintenance record, etc.).
This system need not necessarily be centralised, but a common format combined with interconnection of the databases must allow easy identification of the rolling stock and consultation of information about it.
The Agency will draw up a standard format for the registration of rolling stock. It will make a recommendation to the Commission, which will adopt a decision, as provided for in Article 14 of Directive 96/48/EC and in Article 14 of Directive 2001/16/EC.
On open markets documents certifying the conformity of the rolling stock should be accessible to all concerned directly, easily and transparently, while keeping commercial data and intellectual property confidential. This is particularly important for the national authorities which, as the need arises, must be able to check that rolling stock moving around their territory complies.
For this reason, the Agency will be responsible for keeping a public list of all the relevant documents. In order to achieve this, it will form a network with the bodies issuing the documents in question and with the competent authorities in the Member States.
Article 20
This article stipulates that the Agency can have studies carried out whenever necessary for its work.
This article will allow the Agency to promote innovation in the fields of railway safety and interoperability, particularly use of new technologies.
Article 22
This article stipulates that the Agency will be a Community body with the broadest legal personality in every Member State. Its location will have to be decided by the competent authorities, at the latest six months after the adoption of this regulation, on a proposal from the Commission. The Agency will be represented by its Executive Director.
This provision stipulates that, like the European Community, the Agency will also benefit from the same privileges and immunities as set out in the Protocol on the Privileges and Immunities of the European Communities.
The Staff Regulations applicable to Officials of the European Communities will apply to the Agency's staff. Only a small number of staff will be seconded from the Community institutions. Most of the personnel will be recruited on a temporary basis in the light of the expertise and experience required. A steady flow of know-how must be ensured between the Agency, the national administrations and the railway industry, in order to have experts who are abreast of the latest technological developments. For this reason, the proposal is to set a maximum limit of five years for the contracts for the Agency's staff, with the exception of the Executive Director (see Article 26).
This article establishes the functions and powers of the Executive Director, who must accept no instructions from a government or any other body. However, the Executive Director must comply with all instructions or requests for assistance from the Commission. The Executive Director will also be responsible for management of the Agency and, in this capacity, will prepare and implement its budget and work programme and take charge of all staff issues.
This article lays down rules on appointments within the Agency.
To allow direct democratic control and budgetary powers, the European Parliament may ask for a hearing with the Executive Director of the Agency on submission of the annual report on the Agency's activities or at any other time.
Article 28 lays down the powers of the administrative board. It will appoint the Executive Director and exercise decision-making powers over adoption of the Agency's rules of procedure, budget, work programme and annual report. It must also ensure that the Agency works with the necessary transparency and neutrality.
This article specifies that the administrative board will consist of six representatives of the Member States designated by the Council, six representatives of the Commission and three independent members chosen for their recognised expertise in the sector by the Commission.
On the one hand the membership of the administrative board reflects the principle of separation between the executive and the legislator. The European Parliament must remain independent so that it can exercise its democratic control functions and therefore cannot be involved in the decisions of the administrative board of an Agency forming part of the executive which it has to control. At the same time, the membership of the board also reflects the principle of the parity of the executive bodies at Community level.
To enable the administrative board to perform its tasks efficiently and take full responsibility for them, the number of members must be limited.
This article stipulates that the administrative board will elect a Chairperson and a Deputy Chairperson from among its members and sets their terms of office at three years, which may be renewed once.
This article provides for ordinary and extraordinary meetings of the administrative board. In particular, it states that these meetings must be attended by the Executive Director of the Agency.
The administrative board will take decisions by a two-thirds majority of its members, each of whom will have one vote, with the exception of the three independent experts who will not be entitled to vote.
This article lays down the conditions under which Agency staff may conduct inspections in the Member States in order to fulfil the tasks entrusted to the Agency.
The regime of contractual and non-contractual liability of the Agency corresponds to the regime applicable to the Community by virtue of Article 288 of the Treaty.
The Agency will adopt as working languages the languages most widely used in the railway industry. They match the working languages currently used for the work on interoperability in particular. For efficiency reasons, it is proposed that the same working languages should therefore be retained for the Agency's in-house work.
This article stipulates that the Agency will be open to participation by European countries which have entered into agreements with the European Community whereby they have adopted and are applying the Community law in the field covered by this regulation.
This article stipulates that the Agency will apply Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents.
Article 38
The Agency's budget will be financed mainly by a contribution from the Community. Services which it provides (such as publications, training or others) may be paid for in the form of fees. Another possibility is a contribution from non-EU countries participating in the Agency's work as provided for by Article 36.
The Agency requires a sufficient budget allocation to recruit its personnel, as described above, to carry out its tasks and to function smoothly and efficiently.
The Executive-Director will establish a preliminary draft budget to be adopted by the administrative board and then forwarded to the Commission, which, in turn, will process it in accordance with standard budgetary procedures.
This article specifies that the Executive Director will be responsible for implementation of the budget. Financial control will be ensured by the Financial Controller of the Commission. The Court of Auditors will examine the Agency's accounts and publish an annual report. The European Parliament, acting on a recommendation from the administrative board, will give a discharge to the Executive Director of the Agency in respect of implementation of the budget.
This article specifies that, to help the Agency to prepare and implement the budget, a Financial Regulation will be adopted by the administrative board following the agreement of the Commission and the endorsement of the Court of Auditors.
All the Community provisions in force to combat fraud will apply to the Agency and to its employees and any contractors.
Article 42
This article provides for the Agency's activities to be phased in over two years.
This article stipulates that within five years from the date when the Agency starts up its activities, the Commission will carry out an independent evaluation on implementation of this regulation.
This article sets the date when the regulation will enter into force.
A financial statement is attached to this proposal. No impact assessment form has been attached since the proposal does not affect businesses.