Explanatory Memorandum to COM(2006)852 - Inland transport of dangerous goods

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dossier COM(2006)852 - Inland transport of dangerous goods.
source COM(2006)852 EN
date 22-12-2006
110

1)

Contents

1.

Context of the proposal



2.

Grounds for and objectives of the proposal


The international transport of dangerous goods is regulated by international agreements. In Europe, there are two instruments of this kind in force for road and rail transport. For the inland waterway mode, a corresponding agreement is currently at the ratification stage. In the EU, the regulations for road and rail have been introduced into Community law via two directives, extending the scope of the rules to national transport and creating a single set of rules for all transport operations within the single market. As the agreement for inland waterway transport is expected to be ratified soon, it would be logical, for harmonisation reasons, to bring it also into Community law. In this context, there is an opportunity to update and harmonise the existing legislation.

The legal basis for the EU to act in this area is Article 71(1)(c) of the Treaty.20

3.

General context


The total amount of dangerous goods transport in the Union is about 110 billion tonne-kms / year, of which 58% is by road, 25% by rail and 17% by inland waterway. The trend for road and inland waterway transport has been increasing, but decreasing for rail transport. The share of dangerous goods transport in total freight transport is about 8%.

In order to ensure safety and security for the transport of dangerous goods as well as free and multimodal movement of international transport services, the United Nations (UN) has created and updated a document Recommendations on the Transport of Dangerous Goods Model Regulations.

The international agreements regulating international transport of dangerous goods are based on the UN Recommendations, which have been implemented in the inland transport sector in Europe by means of three instruments:

· European Agreement concerning the international carriage of dangerous goods by road (ADR);

· Regulations concerning international carriage of dangerous goods by rail (RID);

· European Agreement concerning the international carriage of dangerous goods by inland waterways (ADN).

Almost all EU countries are signatories of ADR and RID.

ADN is not yet in force. It is in the process of ratification and is expected to be in force in 2009 at the latest. Nine of the EU countries are signatories of ADN. Two other, ADN-based, systems (ADN-R, ADN-D) are currently applied in the areas of the Rhine and Danube, where countries in those areas are signatories. In addition, there are national rules for national transport.

In 1997 the Commission made a proposal for a Directive of the European Parliament and of the Council on the approximation of the laws of the Member States with regard to the transport of dangerous goods by vessels on inland waterways (amended in 1999). However, the proposal was never adopted, because ADN was not duly concluded. The proposal was withdrawn in 2004. For this reason, EU legislation covers only road and rail modes for the land transport of dangerous goods. For those modes, the legislation ensures a high level of transport safety, free provision of transport services and free movement of the means of transport within the territory of the EU. No European rules exist for the transport of dangerous goods by inland waterway.

With ADN soon to enter into force, the development of two different regimes should be avoided: one for international and one for national transport. The rationale for incorporating international road and rail agreements into Community law, namely to extend these rules to national transport as well, is equally valid for inland waterways.

In multimodal transport operations, it is undesirable to maintain separate sets of rules for each mode, which a user of these operations will have to respect. Wherever possible, the rules should be identical, as is the objective of the UN Recommendations.

For historic reasons the existing EU legislation on the transport of dangerous goods is rather complicated. Mode-specific pieces of legislation contain unnecessary inconsistencies. Moreover, some of the provisions are already, or will soon become, obsolete. Two directives can be considered superfluous, since their provisions have been incorporated into ADR, RID and ADN.

Apart from the foregoing issues of substance, a technical problem has been encountered, which is linked to the current structure of the existing directives. Each time a revision of the international agreements takes place, at two-year intervals, the directives require the provision of full translations of the voluminous technical annexes, which has proved extremely difficult, if not impossible to achieve.

If nothing is done, the problems outlined above will remain and be exacerbated: the current complex rules are likely to become more complex with changes in international agreements; obsolete rules will remain and confuse users; the risk of non-compliance will increase. The EU rules may well become less rather than more user-friendly. With increasing use of multimodal concepts, different rules for different transport modes will cause even more practical daily problems for multimodal operations and increase costs unnecessarily. In inland waterway transport, different rules for international and national transport will hamper the development of this mode, which would otherwise, on the basis of statistics, be the preferable mode in many cases. 130

Existing provisions in the area of the proposal

Community law contains four pieces of legislation in this area:

Council Directive 94/55/EC of 21 November 1994 on the approximation of the laws of the Member States with regard to the transport of dangerous goods by road;

Council Directive 96/49/EC of 23 July 1996 on the approximation of the laws of the Member States with regard to the transport of dangerous goods by rail;

Council Directive 96/35/EC of 3 June 1996 on the appointment and vocational qualification of safety advisers for the transport of dangerous goods by road, rail and inland waterway;

Directive 2000/18/EC of the European Parliament and of the Council of 17 April 2000 on minimum examination requirements for safety advisers for the transport of dangerous goods by road, rail or inland waterway.

Provisions of Directives i and i are currently included in annexes to Directives i and i, thus rendering the former superfluous for road and rail modes.

The proposal integrates and updates Directives i and i without essentially changing current provisions for road and rail modes. In contrast, the proposal extends the scope of Community law to inland waterway transport, which is a significant change.140

4.

Consistency with the other policies and objectives of the Union


The proposal is linked to existing EU legislation in respect of transport safety, the internal market and environment policies, and supports the objectives of the sustainable development and Lisbon strategies.

5.

2) Consultation of interested parties and impact assessment


Consultation of interested parties211

Consultation methods, main sectors targeted and general profile of respondents

As a result of the existing EU legislation on dangerous goods transport, there is already a Regulatory Committee available to deal with this subject. The Member States and EFTA countries were consulted via the Committee in several meetings and also between meetings, using the Internet.

Through regular correspondence between the Committee and the European Parliament, the latter was kept informed of the work of the Committee.

Stakeholders, which are industrial associations representing companies involved in the transport of dangerous goods, have the right to attend the Committee meetings as observers. In this way they made their views known during the preparation of the proposal.

In addition, the Central Commission for Navigation on the Rhine was consulted, in view of its importance for transport operations on the Rhine, the share of dangerous goods transport on the Rhine being about 80% of that in Europe.2

An open consultation was conducted over the Internet from 21/05/2006 to 31/07/2006. The Commission received 108 responses. The results are available on: ec.europa.eu/dgs/energy_transport/security

6.

Summary of responses and how they have been taken into account


Member States' and stakeholders' input has had a crucial impact on the content of the proposal. Common positions were sought as much as possible throughout the consultation process.

7.

In the public consultation a very large majority of respondents were in favour of the policy proposed by the Commission. 213


Collection and use of expertise

There was no need for external expertise.230

Impact assessment

The impact assessment examined three policy options:

'No policy change, only codification'

The scope and content of the existing EU legislation on dangerous goods transport would be kept in its present format. Transport by inland waterway would not be included in Community law. Only the codification procedure in respect of the existing legislation, which has already tentatively started, would be completed. The codification is likely to make the application of rules, to a limited extent, more user-friendly. However, although these changes would be welcomed by stakeholders, their impact in all areas is believed to be limited.

'Codification and new legislation for inland waterways'

Codification would be carried out as in option 1, and in addition a new piece of EU legislation would be created to cover dangerous goods transport by inland waterway. Different regional or national rules currently apply to inland waterway transport in the territory of the Union. The new act would be based on the forthcoming international agreement and would cover both international and national transport, thus harmonising the rules within the Union. This would have a positive economic impact for transport operators, because the rules would be simpler, as well as having a positive social impact for transport workers and the environment, as the risk of accidents would be reduced. Moreover, enforcement of the rules would be simpler for the national authorities.

'Revision of legislation, encompassing inland waterways'

The existing EU legislation on dangerous goods transport would be revised and simplified, the existing directives merged and the scope of the legislation extended to inland waterways transport. Option 3 would include revision and simplification elements in addition to option 2. Firstly, outdated clauses would be eliminated. Their continuing existence would only render an inherently complex matter unnecessarily complicated, resulting in increased risks and costs. Secondly, the rules governing the three land modes — road, rail and inland waterway — would be harmonised as far as possible. A harmonised set of rules would substantially facilitate multimodal transport. These two elements would not be available in options 1 and 2. Complex rules entail inherent risks for safety and the environment. It is therefore recognised that harmonising the rules would have a positive impact in all areas: economic because it reduces costs; social because the rules are more easily applied and therefore provide better safety; and reduced environmental risks for the same reasons. Enforcement by national authorities is made easier by fewer variations in the rules. A harmonised, more user-friendly set of rules should also significantly improve compliance by stakeholders. Clearly, option 3 offers the most positive economic, social, environmental and enforcement impacts.

8.

3) Legal elements of the proposal305


Summary of the proposed action

The proposed new directive updates the existing four directives and four Commission decisions on the transport of dangerous goods, integrating them into one piece of legislation and extending the scope of EU rules to cover not only road and rail transport but also inland waterway transport. The proposal brings the existing rules for international transport into Community law and also extends the application of international rules to national transport.310

Legal basis

Article 71(1)(c) of the Treaty.

9.

Subsidiarity principle


The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the Community.

10.

The objectives of the proposal cannot be sufficiently achieved by the Member States for the following reasons.321


· EU actions have already been taken and they are operational in the road and rail transport of dangerous goods.

· In the inland waterway transport of dangerous goods, two systems of regional rules are currently in place, regulating transport in the Rhine and Danube areas (ADN-R, ADN-D), and a third system (ADN of the UN) is expected to come into force soon. In addition, various rules exist for national transport in the Rhine and Danube countries and also other countries. Individual Member States' actions cannot achieve in the territory of the Union the same extent of harmonisation and application of rules for inland waterway transport as is the case for road and rail transport.

11.

Community action will better achieve the objectives of the proposal for the following reason.324


· The objective of creating uniform rules in the territory of the Union for all dangerous goods transport operations, whether national or international and whatever the land transport mode, cannot be achieved without the Community's intervention.

The following qualitative indicators demonstrate that the objectives of the proposal can be better achieved by the Union.

· Multimodal transport will increase;

· Transport operations will become simpler for transport operators and their costs will decrease;

· Risk of accidents for transport workers, citizens and the environment will decrease;

· Transport legislation and enforcement will become simpler for national authorities;

· Community legislation in the area will be simplified.

Reinforcing and extending the application of ADR and RID by including them in Community law governing road and rail transport modes has demonstrated that the EU intervention was justified. When extending the scope to the third land mode, inland waterway, the EU intervention is equally justified.

The proposal therefore complies with the subsidiarity principle.

12.

Proportionality principle


The proposal complies with the proportionality principle for the following reasons.331

The question of proportionality in this context is relevant for inland waterway transport only, because EU instruments already exist for road and rail transport of dangerous goods.

For Member States which already apply one of the regional ADNs (ADN-R, ADN-D) or which intend to do so, a very small additional effort is required to extend the scope of the rules to national transport, the more so because ADN already includes special provisions for vessels that carry goods for national transport only. Moreover, for Member States which have very little dangerous goods transport or no transport at all by inland waterway, there are special provisions contained in the proposed directive.

The proposed instrument, a directive, is the most appropriate for two reasons.

· The existing EU instruments in the area, which are to be replaced, are directives;

· For the implementation of the temporary and national provisions set out in the annexes of the proposal'.

Since the proposal harmonises and simplifies rules for the transport of dangerous goods in the Union, the financial and administrative burden will decrease rather than increase for all parties in the Member States. In inland waterway transport, where the ADN rules would be applied to national transport for the first time, there could theoretically be additional costs when adapting vessels, which have previously only operated in national transport, to ADN rules, but in practice this is unlikely.

13.

Choice of instruments341


Proposed instrument: a directive. 342

Other means would not be adequate for the following reasons.

First, the proposed instrument replaces and repeals four existing instruments that are all directives. Secondly, the extension of the scope of the proposed instrument to inland waterways follows similar legislative principles as the existing directives. Although the proposal contains mainly technical provisions, which are based on the UN Recommendations and cannot be changed, there are also exemptions and derogations, which can be implemented in Member States in different ways. Thirdly, the application of the proposal to inland waterway transport depends on the circumstances of each Member State. Thus, the choice of a directive is the most appropriate choice of instrument.

14.

4) Budgetary implication401


The proposal intends to move the necessary translation and publication of the technical annexes of the directive from the Community, in reality from the Commission level, to the Member States, when necessary. They are updated every two years. The Community should therefore be prepared to support financially the national translations. However, the Community saving in terms of translation and publication costs will outweigh the support given to Member States.

15.

5) Additional information510


Simplification511

The proposal provides for simplification of legislation and of administrative procedures both for public authorities (EU or national) and for private bodies.512

The proposal means a substantial simplification of Community law in the field of dangerous goods transport, although the scope of the legislation would be extended. All three land transport modes would be covered by only one piece of legislation. The new directive would repeal existing Directives 94/55/EC and 96/49/EC, as amended, on the transport of dangerous goods, Directives 96/35/EC and 2000/18/EC on dangerous goods safety advisers, and Commission Decisions 2005/263/EC and 2005/180/EC, as amended, on national derogations from Directives 94/55/EC and 96/49/EC. Finally, the international agreements on dangerous goods transport would only be referred to in the annexes to the directive, not included as at present. This would reduce the Community acquis by about 2000 pages.

A minor issue is that in Council Directive 82/714/EEC laying down technical requirements for inland waterway vessels (undergoing amendment), Article 6 currently allows any craft carrying a certificate issued pursuant to the Regulation for the transport of dangerous substances on the Rhine (ADN-R) to carry dangerous goods throughout the territory of the Community. Given that the directive proposed here foresees the phasing-out of the certificate delivered under the ADN-R, this Article should consequently be repealed. 513

Simplified Community legislation would simplify the transposition of Community law into national legislation. The enforcement authorities' work, including reporting, would be made simpler and more effective by harmonising the rules governing transport of dangerous goods. 514

Administrative procedures for all participants in dangerous goods transport, from consignor to consignee, would be easier with simplified and harmonised rules. Documentation of transport operations and vehicles would also be simpler with harmonised rules, as would the training of persons involved and the work of dangerous goods safety advisers. 515

The proposal is included in the Commission's rolling programme for updating and simplifying the Community acquis, and in its Work and Legislative Programme under the reference 2005/TREN/017 .520

Repeal of existing legislation

Adoption of the proposal will lead to the repeal of existing legislation.550

Correlation table

The Member States are required to communicate to the Commission the text of national provisions transposing the directive as well as a correlation table between those provisions and this directive.560

European Economic Area

The proposed act concerns an EEA matter and should therefore extend to the European Economic Area.570

Detailed explanation of the proposal

Article 1: Scope

One of the main points of this article is to indicate when a Member State can be exempted from the application of the directive with regard to inland waterway transport.

16.

Article 2: Definitions


Relevant international agreements, dangerous goods and means of transport are defined.

17.

Article 3: General provisions


General provisions for dangerous goods transport are set out.

18.

Article 4: Third countries


Transport from and to non-EU countries which apply international agreements on dangerous goods transport is allowed.

19.

Article 5: Restrictions for reasons other than safety during transport


A Member State may, within its territory, apply additional provisions for dangerous goods transport, for reasons other than safety.

20.

Article 6: Restrictions for transport safety reasons


A Member State may apply additional provisions for national transport performed by national vehicles. In the event of an accident or incident, a Member State may take emergency measures, where necessary.

21.

Article 7: Derogations


Since international agreements and the annexes to the directive do not take into account all the particularities of national transport, Member States may, under certain conditions, grant derogations from the directive for national transport. In some cases, the derogations have to be adopted by the Commission in accordance with the comitology procedure. Derogations are subject to review at regular intervals and are listed in the annexes to the directive.

22.

Article 8: Transitory provisions


A Member State may maintain certain temporary national provisions that are listed in the annexes to the directive.

23.

Article 9: Adaptations


The amendments necessary to adapt the annexes to scientific and technical progress shall be adopted in accordance with the comitology procedure.

24.

Article 10: Committee


Provision is made for a Regulatory Committee on the transport of dangerous goods, which will assist the Commission in the comitology procedures.

25.

Article 11: Transposition


The target date for the application of the directive is 1 January 2009. On the same date, the biennial updates of the relevant international agreements will enter into force.

26.

Articles 12 and 13: Amendment and Repeals


The new directive will repeal existing Directives 94/55/EC and 96/49/EC, as amended, on the transport of dangerous goods, Directives 96/35/EC and 2000/18/EC on dangerous goods safety advisers, Decisions 2005/263/EC and 2005/180/EC, as amended, on derogations, and Article 6 of Council Directive 82/714/EEC, as amended, on technical requirements for inland waterway vessels.

27.

Articles 14 and 15: Entry into force and Addressees


Entry into force is on the twentieth day following the publication of the directive. The directive is addressed to the Member States.