Working document on questions of interpretation: How to deal with TSI errors?

Transcription

1 EUROPEAN COMMISSION DIRECTORATE-GENERAL FOR ENERGY AND TRANSPORT 04/50-IQ07 QUESTIONS Version EN02 Origin EN status NA Working document on questions of interpretation: How to deal with TSI errors? A number of questions have been put to the Commission Services concerning the interpretation of Directives 96/48/EC and 2001/16/EC. This question has arisen from two particular discussions within the Committee: firstly the question put by NB Rail (QC ) to the Committee on how non-certified interoperable constituents within subsystems should be dealt with and secondly the Committee discussions on how derogations to the TSIs should be dealt with (Guidelines now finalised in document 96/48-DV63EN07) Question Experience of the high speed TSIs has shown that the TSIs themselves contain errors. Errors that are not identified during the TSI development, review, adoption and publication process may only become apparent when the TSI is applied to the design of a subsystem or interoperable constituent, or when the subsystem / interoperable constituent is undergoing conformity assessment. A question has been raised by various members of the Committee on whether it is possible to implement a method of resolving TSIs errors rapidly, such that the risk of delays (and resultant costs) to the subsystem / interoperability constituent design and production, the placing into service of the subsystem or placing onto the market of the interoperable constituent, is minimised. NB Rail have also raised, in their QC to the Committee, the question of whether the time taken to resolve TSI errors can be reduced. Analysis Errors in the TSIs When an error in the TSI is identified it will have a range of consequences, from preventing the completion of the subsystem/interoperable constituent design and production, completing its conformity assessment and possibly placing the subsystem into service or placing the interoperable constituent onto the market. - 1/5 -

2 Errors identified in the initial versions of the high speed TSIs, published in May 2002, have been corrected and will be included in their next revisions, with the intention that the revised high speed TSIs will be adopted in early It is expected that the TSIs will be revised every three to four years. In accordance with the document Guidelines on Derogations (96/48-DV63EN07) and with the Article(s) 7 of Directives 96/48/EC and 2001/16/EC as amended by Directive 2004/50/EC, derogations are not the appropriate mechanism to deal with errors in the TSIs. However in Article 17 in both 96/48 and 2001/16, it is stated that: Where it appears that the TSIs do not fully meet the essential requirements the Committee referred to in Article 21 may be consulted at the request of Member State or on the initiative of the Commission Hence it is clear that the Commission and the Committee have a role with regards to TSI errors. Revision of the TSIs The TSIs are legal texts, in force once notified to Member States. Their frequent modification is undesirable, as the process of adoption, translation and notification is lengthy. Further, the TSI preparation and review process is extensive and all Member States, users and social partners are consulted in the process. Directives 96/48 and 2001/16 and their related TSIs do not make any provisions for their revision or amendment in the case where errors are identified within them. However, from experience of the high speed TSIs and in order to take technical innovation into consideration, it is expected that the TSIs will be revised every three to four years. Currently, the only mechanism available in the interoperability directives to solve a TSI error is through the adoption of a revised TSI. However, the long timescales involved in this process pose a cost in terms of delay should such an error be preventing the completion of subsystem/interoperable constituent design, its conformity assessment or placing it into service/placing it on the market The AEIF have been responsible for the development and revision of the TSIs; their activities come to an end at the end of At this time their work will be taken over by the European Rail Agency. The Agency will be tasked with producing new TSIs and to carry out revisions to the existing TSIs. Any future errors, not resolved in the high speed TSI revisions and any errors identified in the conventional rail TSIs, must be dealt with by the Agency. The task of developing new TSIs will be given to the Agency under a mandate agreed and adopted by the Committee; this is provided for in Article 12(a) of the Regulations establishing the Agency (881/2004). These regulations also make provision, in Article 10(2), for the Agency to provide technical opinions to the Committee which will be delivered within two months (Article 10(3) of the regulations). This mechanism may be put to use when an error in the TSI is identified and made known to the Committee or the Commission. - 2/5 -

3 Identification of Errors in the TSIs Errors identified in the existing high speed TSIs have so far been made known in a number of ways : through QC s raised by NB Rail to the Committee and also directly to AEIF from various organisations, such as Member States themselves and the railway industry. It is important that, when an error is identified, it is communicated to the Committee or the Commission. The mechanism for notifying such errors already exists for NB Rail, through the process of QC s (Questions and Clarifications). However manufacturers, Contracting Entities, railway undertakings, infrastructure managers and other railway organisations must also be able to bring such errors to the attention of the Committee and/or the Commission. Critical Errors Where a TSI error: prevents the completion of subsystem or interoperable constituent design prevents the conformity assessment of the subsystem or the interoperable constituent prevents the placing into service of the subsystem or the placing onto the market of the interoperable constituent prevents the interoperability of the subsystem or the interoperable constituent then these shall be considered to be critical errors and a mechanism to solve them rapidly is considered below. Once a subsystem has been placed into service, operational experience may also indicate that a TSI error exists where such an error: prevents interoperability of the subsystem or interoperable constituent or contributes to unsafe operation not foreseen as part of the certification of the subsystem and/or the interoperable constituent contributes directly to an accident or incident then these shall also be considered to be critical errors. Where an error in the TSI does not result in the above, then it must still be made known to the Committee or the Commission. However, there is less urgency for a rapid resolution and as such, their correction can be dealt with as part of a formal TSI revision Where a specification is impossible to apply in one Member State or in one specific situation, this difficulty should be dealt with through the revision, for example by including a specific case to the TSI. This can be dealt with as part of the normal TSI revision process. In the case of urgency, the Member State shall use the rapid mechanism proposed hereunder. The Member State may use the derogation process, however not on the ground of an error because this case is not foreseen by the directive. - 3/5 -

4 Proposal Where a critical TSI error is identified it is important that it is made known, as soon as possible, to the Committee or the Commission. If notified bodies identify such errors, they are able to raise a QC through the NB Rail group. At a national level it is of value for Member States to provide a method for railway organisations (such as RU s, IM s, contracting entities, manufacturers, wagon keepers etc) to communicate such errors. Once an error is formally made known, the Commission shall present it to the Committee and the following actions taken: (1) The Commission shall prepare a request to the Agency to provide a technical opinion on the error. The Agency shall consider: the impact of the error on interoperability the impact of the error on the interfaces (to other TSIs and within the TSI itself) a solution to resolve the error and its economic impact its interoperability impact its impact on interfaces within the TSI, and to other TSIs confirmation that the essential requirements are met details of its conformity assessment The technical opinion shall be provided by the Agency within two months, as stated within Article 13(3) of Regulation 881/2004, and shall contain detailed information on each of the areas identified above. The technical opinion of the Agency shall be presented to the Committee. (2) The Committee shall decide whether to adopt the technical opinion of the Agency. If adopted, then the solution and its conformity assessment shall be included within the next revision of the relevant TSI. (3) The Agency shall publish the technical opinion and inform the safety authorities network thereof which will be requested to ensure wide dissemination. The technical opinion shall also be formally communicated, by the Commission, to the originator of the issue and to all Member States. It may also be placed on the NB Rail website. The adoption of the technical opinion is a confirmation that it will be included in the next revision of the TSI. Where an urgent solution is required for critical errors, the technical opinion may then be used (by the Contracting Entity, manufacturer or the Notified Body) to continue the design of the subsystem/interoperable constituent, or by the Notified Body for its conformity assessment. When critical errors impact on a system already in revenue - 4/5 -

5 service the Member State concerned will put into place all the measures deemed necessary for the mitigation of the problems if a two-month awaiting for a technical opinion is not sustainable. Notwithstanding this fact, the Member State concerned will notify the Commission of the specific unilateral measures it implemented for such mitigation. The solution provided by the technical opinion has no legal force and is not part of the TSI, until its formal revision, adoption and notification is complete. The EC declaration for the subsystem and/ or the interoperable constituent must clearly state the technical opinion, and the related solution and conformity assessment, applied. - 5/5 -