NSRs Management Potential scenarios. Workshop on NSRs rail TDG Valenciennes, 07 March 2014 Kyriakos DOULIS, Safety Unit

Transcription

1 NSRs Management Potential scenarios Workshop on NSRs rail TDG Valenciennes, 07 March 2014 Kyriakos DOULIS, Safety Unit

2 Disclaimer The scenarios suggested in this presentation are fictitious and indicative serving as examples for the sole purpose to help the MS in their work of notifying NSRs. In case of individual rules, the MS shall take into account all the requirements relevant to the rule on a case-by-case basis. The actions suggested in the scenarios do not bind the Agency for individual rules. 2

3 Purpose To present hypothetical examples taking into account the relevant EU railway legislation and the NSR Task Force Report Not to give solutions to the scenarios, but to trigger reflections on the methodology and way of working To provide an understanding of the approach of ERA in notifying NSRs 3

4 Sections A. Existing National Safety Rules (NSRs) B. Draft National Safety Rules C. Urgent National Safety Rules D. NSRs: Substantial and procedural faults 4

5 A. Existing National Safety Rules (NSRs) 5

6 Scenario 1 A MS notifies an existing NSR under the process foreseen in Directive 2008/68/EC and not under the RSD 6

7 Answer All NSRs shall be notified under Art. 8 of RSD. According to the Final Report of the Task Force on National Safety Rules ( ), the obligation of notification under the Directive 2008/68/EC does not replace the obligation of notification under RSD (Art. 8). Action: MS must notify the NSR under the RSD in NOTIF-IT. 7

8 Scenario 2 A National Authority requests a RU to comply with an existing NSR which differs from the requirement defined in a TSI 8

9 Answer TSIs indicate whether they allow room for NSRs MS are obliged to reduce NSRs in line with the TSIs and following their implementation plan TSIs are EU legal acts (decisions or regulations art. 288 TFEU) binding in their entirety EU legal acts enjoy supremacy to the national legislation (ECJ Costa v. ENEL, Simmenthal II) Therefore, TSIs take precedence over any different national provision (current or future) The MS may not issue any NSR in the areas already covered by a TSI Action 1: The RU may a) raise the issue to the MS to revoke the rule as soon as possible in line with the TSI and b) in case of non-revoking the rule, the RU may complain to the EC; and/or Action 2: Depending on the case, the RU may request the annulment of the NSR before the national courts 9

10 Scenario 3 A new EU legal act (e.g. an amendment to a TSI) covers the scope of a previously notified in the NOTIF-IT still existing NSR 10

11 Answer The new legal act of the EU leaves no room for the notified rule Action: MS has to withdraw the notified rule and update the notification in the NOTIF-IT (The action implies that the MS has to continuously monitor the EU legislation and there is a need of continuous cooperation of TDG and NSR responsible persons) 11

12 Scenario 4 A MS maintains a NSR in the field of TDG that has never been notified to the EC 12

13 Answer Action 1: The MS has to notify the rule, according to article 8 (4) of RSD Action 2: The MS has to check whether this rule is in line with the EU legislation 13

14 B. Draft National Safety Rules 14

15 Scenario 5 A MS is drafting a new TDG rule which is also a NSR 15

16 Answer Action: MS has to check the necessity of the draft and whether there is room for this rule according to the EU legislation: A)If there is no room for a NSR, the MS should stop drafting the rule. If the MS considers necessary, it may raise the issue of deficiency of the EU rules. B) If there is a room for NSRs, the MS is obliged to follow the procedure of art. 8 (6) and 8 (7): consultation at national level and notification of draft to the EC, wait for the feedback of the EC: In case of serious doubts, EC will request MS to suspend the adoption, entry into force and implementation of the NSR. If serious doubts are confirmed, EC will issue a Decision within the following 6 months (including RISC procedure). Annex 7 of the NSR report includes the flowchart, helping to understand the steps. 16

17 Scenario 6 A National Authority requests a RU to implement a NSR which has been notified to the EC as a draft and EC has expressed its serious doubts 17

18 Answer Action 1: The MS is obliged to suspend the adoption, entering into force or implementation of the NSR, until an EC decision is adopted. Action 2: The RU can check the status in NOTIF-IT a) If the rule is marked as validation complete, this means that rule has been verified by the EC; b) If it is marked rule not accepted, this means that MS needs to withdraw the rule Action 3: The RU may ask the EC on the status of the rule and whether EC has serious doubts on it 18

19 Scenario 7 The European Commission confirms its serious doubts on a notified draft NSR by issuing a Decision; however the MS still adopts it 19

20 Answer Action 1: With the adoption of this draft rule, the EC and other MS (258 and 259 TFEU) may initiate infringement proceedings against the MS Action 2: Any legal person has legal grounds to request the annulment of the rule before its national courts. 20

21 C. Urgent National Safety Rules 21

22 Scenario 8 Immediately after a railway accident, RUs are informed by the MS that additional NSRs are applied in the railway system* * The Agency works on a quick response procedure after an accident to avoid such scenarios 22

23 Answer No explicit provisions in RSD for urgent cases If the MS takes the responsibility to establish an urgent rule, the process for urgent rules is identical to the normal process (article 8 RSD in conjunction with the NSR report). Action 1: The MS must notify to the EC the urgent NSR as a DRAFT rule (art. 8 (7) RSD) Action 2: The EC will analyse the rule according to the process and might request the suspension or withdrawal of the rule. Action 3: RUs have to apply the NSR unless the EC expresses its serious doubts 23

24 D. NSRs: Substantial - procedural faults 24

25 Scenario 9 A MS issues a law which allows RUs transporting dangerous goods to operate having a safety certificate not renewed for the last 8 years 25

26 Answer National provisions for the transport of dangerous goods under Directive 2006/68/EC and RID apply IN ADDITION to the requirements of the RSD and must not be conflicting with them. This national provision is not in line with the obligation set by the RSD to the RUs to possess a safety certificate and to renew it within 5 years; Thus, this law which allows RUs transporting dangerous goods to operate with a safety certificate which is not renewed within 5 years constitutes an infringement of the RSD Action 1: Amend the rule in line with the RSD Action 2: The MS should notify it according to art. 33 of RSD 26

27 Making the railway system work better for society. era.europa.eu