RESPONSES TO ISSUES RAISED BY EPTTOLA MEMBERS
Below are a collection of issues which have impacted on EPTTOLA members. These issues have been successfully challenged with the European authorities and as a result have delivered a positive outcome for EPTTOLA Members.
‘Registration of Keepers’
An EPTTOLA member received a letter from a NSA stating that all Keepers of Railway Vehicles that are registered as such in the particular Member States’ NVR, must have an address within that Member State. The letter confirmed at the time that this that would be a requirement as from 1st July 2011.
EPTTOLA’s view is that such a requirement from any Member State is an additional national requirement that has no basis in European Legislation. It imposes unnecessary burden on railway businesses outside of the particular Member State. This is contrary to the intent of European Legislation and seems to serve no positive purpose.
Once a Keeper has acquired its VKM Code via its own NSA, in order to have a pan-European market, it must be possible to register as Keeper of any Railway Vehicle in any Member State.
EPTTOLA wrote to the European Commission challenging the requirement that all Keepers of Railway Vehicles that are registered as such in the particular Member States’ NVR, must have an address within that Member State. Following an exchange of information between the European Commission and the Member State authorities, it has subsequently been noted that the Member State’s NSA has amended its Guide for the Registration of Railway Vehicles in the NVR and as such, has come into line with EU law. In conclusion, there is no EU law requiring that Keepers of Railway Vehicles that are registered as such in any Member States’ NVR, must have an address within that Member State.
‘NSA requirement to install video cameras in drivers’ cabs’
An EPTTOLA member received notification from one of its customers, that the particular NSA was demanding that operators install video cameras in all drivers’ cabs.
This requirement was raised with the European Commission by EPTTOLA members, as there was no legal basis identified for such a requirement. The European Commission sought a Technical Opinion via the ERA. The matter was discussed at the RISC meeting of October 2013.
Following discussions between the Commission and the Member State, it was confirmed that the ‘NSA requirements were intended as a recommendation addressed to railway undertakings using certain types of locomotive with visibility problems. Furthermore, the NSA agreed to revise its current system of regulations and norms, to bring them in line with the TSI’.
Subsequently, the EPTTOLA member concerned had confirmation from its customer, that they were no longer pursuing the installation of video cameras in drivers’ cabs of the locomotives on lease to them.
‘NSA Requirement for a vehicle identification number’
EPTTOLA members questioned the requirement for an additional vehicle identification number in a ‘country-specific’ form, to be displayed on a metal plate bonded to the vehicle body. It was felt that this requirement was an additional and unnecessary organisational and administration burden, based on a national requirement that has no basis in European railway legislation.
EPTTOLA wrote to the European Commission challenging this requirement for an additional vehicle identification number and was pleased to report in September 2014, that following a letter from the Commission; it was noted that the Member State authorities concerned, confirmed that that no rail vehicle falling under the scope of Directive 2008/57/EC is required to have a country-specific vehicle identification number. Furthermore, that there are no longer any cases where the requirement to have a country-specific vehicle identification number is applicable.
‘Main (Vehicle) Inspection’
EPTTOLA members questioned a member states’ national law (member state ‘A’), in which the member state requires a vehicle inspection to be carried out at 6 yearly-intervals, (which can be extended twice, by one year), and includes certain requirements such as an overhaul of the braking system. The application of this national law requires that a vehicle maintenance plan for any vehicle that operates in member state A needs to be structured around this time based maintenance event.
It is EPTTOLA’s understanding that maintenance regimes are specified by the Entity in Charge of Maintenance (ECM) and not the member state’s NSA. This requirement for a purely time-based maintenance event, for one country only, seems to be contrary to this principle and is inconsistent with the European Commission’s aims of interoperability and is a clear example of a national rule obstructing the interoperability of the European railway system.
EPTTOLA wrote to the European Commission and provided two different examples of where a locomotive, authorised to operate in both member states A and B, (with its initial registration and authorisation taking place in member state A); was then operated and maintained in member state B, in accordance with a valid maintenance plan. This valid maintenance plan did not include the national law requirement of member state A to perform the ‘Main (Vehicle) Inspection’ at the 6 yearly-intervals to comply with requirements to run in member state A.
Following an exchange of letters and meetings with the European Commission, they have invited the European Railway Agency to work urgently with NSAs to remove obsolete or redundant national rules and in this particular case, formal dialogue has been opened as of April 2016 with member State A.
‘ECM Clarification in a member state’
EPTTOLA members challenged the requirement in a member state where the National Safety Authority (NSA) requires a vehicle maintenance plan to be in a specific structure, with specific content and that the maintenance plan must be authorised by the NSA for each Railway Undertaking (RU).
EPTTOLA’s view is that it is not for the NSA to direct the structure of the maintenance plan (this is the ECM’s responsibility), nor is it a requirement for a maintenance plan to be authorised by the NSA.
A letter was sent to the European Commission outlining this issue and challenging this requirement. The European Commission followed this up with the member state concerned, who as a result, amended their national laws.
EPTTOLA were invited to respond to the consultation of the change in national law and supported the member state authorities’ change of national rules; such that the NSA’s approval of the maintenance regime for freight wagons is no longer necessary. However, it is EPTTOLA’s view that the responsibility for the maintenance regime of ALL railway vehicle types is that of the ECM and that NSAs should not continue to approve changes, for vehicles other than freight vehicles.
Following an exchange of letters and meetings with the European Commission, they have invited the European Railway Agency to work urgently with NSAs to remove obsolete or redundant national rules
The Maintenance Plan ‘DSU’ Poland
During 2012, an EPTTOLA member became aware that the Polish NSA (UTK) requires the maintenance plans (known in Polish as the ‘DSU’ (Dokumentacja Systemu Utrzymania)) for locomotives to be in a specific structure, with specific content and is required to be authorised by the NSA in Poland (UTK) for each RU.
Approval of maintenance plans is undertaken by the UTK on the basis of the following Polish laws:
- the Minister of Infrastructure Regulation of 12. 10.2005 on General Technical Conditions for Operation of the Railway Vehicles - Journal of Laws no. 212, item 1771
- the Minister of Infrastructure Regulation of 7. 11.2007 amending the Regulation on General Technical Conditions for Operation of the Railway Vehicles - Journal of Laws no. 212, item 1567
EPTTOLA raised these national laws with the European Commission, in the context of the wider EU legislation; in that it is not for the NSA to direct the structure of the maintenance plan (this is the ECM’s responsibility), nor is it a requirement for a maintenance plan to be authorised by the NSA.
EPTTOLA argued that additional national laws have no basis in European Legislation. They lead to different maintenance plans being applied to the same vehicles depending on which country it is operating in. Furthermore, they do not allow the ECM to optimise the maintenance based on its own operations and experience, leading to increased costs for no demonstrable increase in safety.
EPTTOLA’s view is that the responsibility for the maintenance regime of ALL railway vehicle types is that of the ECM and that UTK should not continue to approve changes for vehicles other than freight vehicles.
EPTTOLA considered that the ECM should be free to adapt the maintenance plan based on its own operations and experience.
Following meetings and correspondence with the European Commission, it was finally confirmed on 11 August 2017, when a new decree was sent by UTK to the Ministry of Transport, that the obligation to have a DSU approved by UTK only applies to vehicles that are not subject to NVR registration. Therefore all vehicles listed in the NVR no longer require the DSU to be approved by the UTK.
The Maintenance Plan ‘Hauptuntersuchung’ Germany
The German general railway law ‘Eisenbahn-Bau und Betriebsordnung - EBO’, section 32, had a specific requirement for a vehicle inspection, the ‘Hauptuntersuchung (HU)’, at 6 yearly-intervals, which can be extended twice by one year and includes certain requirements, such as an overhaul of the braking system. The application of this law required that a vehicle maintenance plan for any vehicle that operates in Germany needed to be structured around this event.
Locomotives with French and German authorisation, operating and maintained in France according to the valid maintenance plan, but without the ‘HU’ being performed, were not permitted to re-enter Germany. This was a clear example of a national rule blocking interoperability. EPTTOLA questioned if the requirement for a vehicle inspection every 6 years, as stated in the ‘EBO’, is inconsistent with the European laws regarding Entities in Charge of Maintenance (ECM) and the management of maintenance for rail vehicles?
It is EPTTOLA’s understanding that maintenance regimes are specified by the ECM. This requirement for a purely time-based maintenance event, for one country only, seems to be contrary to this principle and inconsistent with the European Commission’s aims of Interoperability.
Following exchanges of correspondence, (including detailed examples of the issue) and meetings with the Commission since the issue was first raised in October 2012; the Commission raised a formal ‘exchange of information process’ with the German authorities in 2013. Subsequently an infringement case was opened.
As a result of this, the German authorities amended the rule in question; section 32(3) of the EBO, in particular Article 2, by adopting the ’Twelfth Regulation amending the legal provisions governing the rail sector of 25 July 2017’.
EPTTOLA members studied the text of the amended section 32(3) of the EBO both in German and the English translation. Concern remained with EPTTOLA members, that the amended text was open to interpretation, in that it suggested removal of the ‘HU’ requirement only applied to freight wagons, as these are the only type of rail vehicles, that under current Regulations require certification of ECM, whereas EPTTOLA’s argument and understanding of the Regulations on ECM, applied to all vehicles with an ECM assigned, certificated or not.
In a final letter from the Commission received in December 2018, it was confirmed that the problem of inconsistent interpretation of the amended EBO Article 32 by the German NSA (EBA) had been brought to the attention of the German Authorities. As a result, the German authorities had assured the Commission that the correct interpretation is that an HU is not mandatory where an ECM has set and implemented maintenance requirements for any type of rail vehicle. The German NSA follows this interpretation of the amended rule.