1

COM(2020) 179 Final

Information Note

1. Proposal Proposal for a Directive of the European Parliament and of the Council amending Directive (EU)

2016/7971 (rail interoperability) and Directive (EU) 2016/798

2 (railway safety), as regards the

extension of their transposition period.

2. Date of Commission document 29/04/2020

3. Number of Commission document COM(2020) 179 final

4. Number of Council document: 2020/0071 (COD)

5. Dealt with in Brussels by The Transport, Telecommunications and Energy Council Working Party on Land Transport.

6. Department with primary responsibility Department of Transport, Tourism and Sport.

7. Other Departments involved Not applicable.

8. Background to, short summary and aim of the proposal The proposal is part of the emergency measures adopted by the Commission in reaction to the

extraordinary situation caused by the COVID-19 outbreak.

Directive (EU) 2016/7971 (rail interoperability) and Directive (EU) 2016/798

2 (railway safety) of the

technical pillar of the EU 4th Railway Package were due to be transposed by 16 June 2020. While 8

Member States completed national transposition in 2019, Ireland is among the remaining 17 Member

States who were due to complete transposition by 16 June 2020. In the light of COVID-19 outbreak

the focus of the national authorities and parliaments is on the emergency pandemic situation and most

of these 17 Member States requested that the transposition date be extended on the basis that Member

States will be unable to complete the necessary legislation before 16 June 2020. Such a failure to

comply with the transposition deadlines by all Member States could create legal uncertainty for the

rail industry, the national authorities and the European Railway Agency in relation to that legislation.

The existing Directives 2004/49/EC3 (railway safety) and 2008/57/EC

4 (rail interoperability) have

been recast by the above-named directives and are due to be repealed with effect from 16 June 2020.

1 Directive (EU) 2016/797 of the European Parliament and of the Council of 11 May 2016 on the interoperability of the rail system within

the European Union (OJ No. L138, 26.5.2016, p. 44)

2 Directive (EU) 2016/798 of the European Parliament and of the Council of 11 May 2016 on railway safety (OJ No. L138, 26.5.2016,

p.102)

3 Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive) (OJ

No. L164, 30.4.2004, p. 44)

4 Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008 on the interoperability of the rail system within the

Community (OJ No. L191, 18.7.2008, p. 1)

2

It is essential to provide legal clarity and certainty to the rail industry by allowing, where relevant,

Member States to continue to apply these Directives from 16 June 2020 for a limited period.

The Commission supported that the transposition deadline be extended and put forward the proposal

that Directive (EU) 2016/7971 and Directive (EU) 2016/798

2 be amended by extending the

transposition deadline of each by three months, to 16 September 2020. The repeal dates of the two

existing Directives would be be adjusted accordingly.

The amendment of the Directives aims to address the major current concerns of Member States,

railway undertakings, infrastructure managers and rail industry.

9. Legal basis of the proposal Article 91(1) of the TFEU.

10. Voting Method QMV.

11. Role of the EP Co-decision.

12. Category of proposal Minor significance.

13. Implications for Ireland & Ireland's Initial View Ireland is one of the 17 Member States which are due to transpose Directive (EU) 2016/797

1 and

Directive (EU) 2016/7982 by 16 June 2020. Ireland supports an extension of the transposition date and

supported the call by some other Member States for an extension of 12 months. The Commission,

however, prepared a proposal that provides for a period of 3 months only (to 16 September 2020). In

negotiations some Member States, including Ireland, requested that an extension to 31 December

2020, at the earliest, be considered as this would provide greater contingency in respect of the current

ongoing pandemic situation.

At an informal video conference of the Land Transport Working Party on 6 May 2020, a number of

other Member States requested that a longer extension be considered, with several requesting an

extension until at least the end of the year, while others requested an extension of one year, to 16 June

2021. The Permanent Representatives Committee decided to introduce an amendment to the

Commission proposal as regards the transposition deadline, extending it to 31 December 2020.

The European Parliament (EP) reviewed the proposal at a plenary session held from 13 to 16 May.

The EP did not support the extension to the end of 2020 but instead opted for a shorter extension of

the transposition deadlines, to 31 October 2020.

14. Impact on the public No direct impact.

15. Have any consultations with Stakeholders taken place or are there any plans to do

so? The Commission for Railway Regulation was notified of the proposal. The extension of the national

transposition beyond 16 June 2020 will not pose any difficulty for this national regulatory body.

16. Are there any subsidiarity issues for Ireland? No.

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17. Anticipated negotiating period Not applicable.

18. Proposed implementation date The proposed Directive will enter into force on the day following that of its publication in the Official

Journal of the European Union.

19. Consequences for national legislation Directive (EU) 2016/797

1 and Directive (EU) 2016/798

2 are due to be transposed by 16 June 2020,

with Directive 2004/49/EC3 and Directive 2008/57/EC

4 being repealed from that date.

Directive 2004/49/EC3 was transposed under the European Union (Railway Safety) Regulations 2013

(S.I. No. 444 of 2013) and the European Union (Railway Safety) (Reporting and Investigation of

Serious Accidents, Accidents and Incidents) Regulations 2014 (S.I. No. 258 of 2014), and Directive

2008/57/EC4 was transposed under the European Communities (Interoperability of the Rail System)

Regulations 2011 (S.I. No. 419 of 2011) as amended. The making of replacement statutory

instruments will be required.

If this Proposal is adopted, and given the EP amendment, it will allow for an additional four months to

transpose the new Directives, allowing our existing S.I.s which transposed Directive 2004/49/EC and

Directive 2008/57/EC to remain in force for that period.

20. Method of Transposition into Irish law The Statutory Instruments for transposition of the two rail Directives concerned will take into account

the relevant dates.

21. Anticipated Transposition date The amended dates that are adopted at EU level for the two rail Directives will determine the

transposition date.

22. Consequences for the EU budget in Euros annually Not known.

23. Contact name, telephone number and e-mail address of official in Department with

primary responsibility

Jennifer Brennan / Ann Cody

Public Transport Regulation Division

Phone: 01 604 1614 / 01 604 1413

Email: jenniferbrennan@dttas.gov.ie / anncody@dttas.gov.ie

7645/20 PC/el

TREE.2.A EN

Council of the European Union

Brussels, 29 April 2020 (OR. en) 7645/20 TRANS 176 CODEC 321

Interinstitutional File: 2020/0071(COD)

PROPOSAL

From: Secretary-General of the European Commission, signed by Mr Jordi AYET PUIGARNAU, Director

date of receipt: 29 April 2020

To: Mr Jeppe TRANHOLM-MIKKELSEN, Secretary-General of the Council of the European Union

No. Cion doc.: COM(2020) 179 final

Subject: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive (EU) 2016/797 and Directive (EU) 2016/798, as regards the extension of their transposition period

Delegations will find attached document COM(2020) 179 final.

Encl.: COM(2020) 179 final

EN EN

EUROPEAN COMMISSION

Brussels, 29.4.2020

COM(2020) 179 final

2020/0071 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Directive (EU) 2016/797 and Directive (EU) 2016/798, as regards the extension

of their transposition period

(Text with EEA relevance)

EN 1 EN

EXPLANATORY MEMORANDUM

1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

The proposal is part of the emergency measures adopted by the Commission in reaction to the

extraordinary situation caused by the COVID-19 outbreak.

Unusually, Directive (EU) 2016/797 and Directive (EU) 2016/798 of the technical pillar of

the 4th Railway Package provided Member States with a choice of two transposition

deadlines1 – 16 June 2019, or, upon notification to the Commission and the European Union

Agency for Railways, 16 June 2020. Only 8 MS have transposed both Directives in 2019

(BG, FI, FR, GR, IT, NL, RO, SI).

In the light of COVID-19 outbreak, most of the remaining 17 Member States have requested a

delay to transposition, claiming they will be unable to complete the necessary legislation

before 16 June 2020.

Given the extraordinary circumstances, it is entirely understandable that final transposition

may be impossible before 16 June 2020. It is vital to provide legal clarity and certainty, in

particular to the railway industry and undertakings that are the main beneficiaries of the

Fourth Railway Package. The COVID-19 outbreak struck in the final stage of adoption of the

national transposition measures. Member States should still be able to complete the process in

an additional period of three months. Therefore, the Commission considers a short delay of

three months to be reasonable.

A number of implementing acts and delegated acts have been adopted in accordance with

Directive (EU) 2016/797 and Directive (EU) 2016/798. Given the dual transposition deadline,

according transitional provisions and dates for entry into force have been introduced therein.

The Commission will propose a set of amendments to the implementing acts to align them

with the extension of the transposition deadlines following the adoption of the proposed

Directive. For the relevant delegated acts2, the existing procedure set out in Article 6 of

Directive (EU) 2016/798 would not allow an alignment with the extension of the transposition

deadlines on time. Thus, a legal basis and simplified procedure for the further alignment is

provided in the proposal. This will ensure a coherent legal framework and implementation of

the technical pillar of the Fourth Railway Package.

This is not an initiative within the Regulatory Fitness Programme (REFIT).

1 Article 57 of Directive (EU) 2016/797 on the interoperability of the rail system within the European Union and

Article 33 of Directive (EU) 2016/798 on railway safety. 2 Commission Delegated Regulation (EU) 2018/761 of 16 February 2018 establishing common safety methods

for supervision by national safety authorities after the issue of a single safety certificate or a safety

authorisation pursuant to Directive (EU) 2016/798 of the European Parliament and of the Council and

repealing Commission Regulation (EU) No 1077/2012 (OJ L129, 25.5.2018, p. 16).

Commission Delegated Regulation (EU) 2018/762 of 8 March 2018 establishing common safety methods on

safety management system requirements pursuant to Directive (EU) 2016/798 of the European Parliament and

of the Council and repealing Commission Regulations (EU) No 1158/2010 and (EU) No 1169/2010 (OJ L129,

25.5.2018, p. 26).

EN 2 EN

• Consistency with existing policy provisions in the policy area

The proposals are consistent with the overall emergency measures the Commission is taking

to mitigate and overcome negative effects of COVID-19 outbreak.

It is essential to adopt these measures in order to ensure the continuity of the transport of

goods and persons.

• Consistency with other Union policies

The effective functioning of the internal market in rail, the free flow of essential goods,

passengers and personnel, related services depends on the economic performance of the

railway undertakings, infrastructure managers and rail industry, as well as a well-functioning

legal and administrative framework. The negative economic consequences of the current

COVID-19 outbreak could endanger the financial health of railway undertakings and

infrastructure managers and have serious negative effects on the transport system and the

economy as a whole.

Commission developed a ‘green lanes’ concept to keep borders open for freight and reduce

traffic delays. Guidance on passenger rights has been issued, and will be further updated to

address further changes in the overall situation.

The amendment of the Directives aims to address the major current concerns of Member

States, railway undertakings, infrastructure managers and rail industry, and is therefore of

utmost importance.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

This initiative is based on Article 91(1) of the Treaty on the Functioning of the European

Union.

• Subsidiarity (for non-exclusive competence)

The objective of the proposal cannot be sufficiently achieved by the Member States as they

are bound by the transposition arrangements set out in the Directives and cannot unilaterally

amend them. This objective may be achieved only through an amendment of the Directives

themselves by the co-legislator.

• Proportionality

The proposal is proportionate to the problems created by the crisis and does not go beyond

what is necessary to achieve the objective of alleviating the impact of the current COVID-19

outbreak for the purposes of transposition of the Directives.

• Choice of the instrument

In order to achieve its objective, the legal instrument should be of the same form as the one to

be amended. The main purpose of the proposal is to amend the transposition deadline as

requested by Member States.

EN 3 EN

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER

CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

This is an urgent measure which is triggered by the sudden and unforeseeable outbreak and

spread of the COVID-19 virus. For this reason, the measure is not relevant for the regulatory

fitness programme and no ex-post evaluation has been carried out.

• Stakeholder consultations

Given the urgency of the matter formal stakeholder consultation could not be carried out.

However, both Member States authorities and stakeholders have called upon the Commission

to adopt a proposal for appropriate measures in the context of the Directives.

• Collection and use of expertise

As explained, the proper collection of expertise was not possible due to the urgency of the

situation. The Commission’s emergency measures are taken on the basis of the scientific

evidence on the development of epidemiological circumstances.

• Impact assessment

Given the urgency of the situation, an impact assessment could not be carried out.

• Regulatory fitness and simplification

Not applicable.

• Fundamental rights

No impacts on the fundamental rights.

4. BUDGETARY IMPLICATIONS

Not applicable.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

To ensure proper implementation of the proposed measure, which also has a direct impact on

the legal clarity to the rail sector, the Commission proposes to introduce a notification clause

for Member States opting for the extension of transposition deadline until 16 September 2020.

• Explanatory documents (for directives)

Not applicable.

EN 4 EN

2020/0071 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Directive (EU) 2016/797 and Directive (EU) 2016/798, as regards the extension

of their transposition period

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular

Article 91(1) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee1,

Having regard to the opinion of the Committee of the Regions2,

Acting in accordance with the ordinary legislative procedure,

Whereas:

(1) In accordance with Article 57(1) of Directive (EU) 2016/797 of the European

Parliament and of the Council3 and Article 33 (1) of Directive (EU) 2016/798 of the

European Parliament and of the Council 4 , Member States should have brought their

laws, regulations and administrative provisions necessary to comply with the relevant

provisions of the Directives by 16 June 2019. However, pursuant to Article 57(2) of

Directive (EU) 2016/797 and Article 33(2) of Directive (EU) 2016/798, Member

States had the possibility to extend the transposition period by one year.

(2) Seventeen Member States have notified the Commission and the European Union

Agency for Railways (the ‘Agency’) about the extension of the transposition deadline

of Directives (EU) 2016/797 and (EU) 2016/798 to 16 June 2020.

1 OJ C , , p. . 2 OJ C , , p. . 3 Directive (EU) 2016/797 of the European Parliament and of the Council of 11 May 2016 on the

interoperability of the rail system within the European Union (recast) (OJ L 138, 26.5.2016, p. 44) 4 Directive (EU) 2016/798 of the European Parliament and of the Council of 11 May 2016 on railway

safety (recast) (OJ L 138, 26.5.2016, p. 102)

EN 5 EN

(3) Due to the extraordinary and unforeseeable situation caused by the COVID-19

outbreak, some of those Member States face difficulties to complete the legislative

works within the given transposition deadline and therefore risk a failure to comply

with this deadline. Such a failure could create legal uncertainty for the rail industry,

the national authorities and the Agency as to the legislation that applies to rail safety

and interoperability. The inability of certain Member States to transpose the Directives

as a result of the COVID-19 outbreak has detrimental consequences for the rail sector.

(4) It is essential to provide legal clarity and certainty to the rail industry by allowing,

where relevant, Member States to continue to apply, as of 16 June 2020 and for a

limited period, Directive 2004/49/EC of the European Parliament and of the Council5

and Directive 2008/57/EC of the European Parliament and of the Council6.

(5) Since the COVID-19 outbreak struck in the final stage of adoption of the national

transposition measures Member States should be allowed an additional period of three

months to complete the transposition process.

(6) The transposition deadlines of Directives (EU) 2016/797 and (EU) 2016/798 should be

extended by three months until 16 September 2020. The repeal dates of Directive

2004/49/EC and Directive 2008/57/EC, as set out in Article 58 of Directive (EU)

2016/797 and Article 34 of Directive (EU) 2016/798 respectively, should be adjusted

accordingly.

(7) A number of delegated acts have been adopted on the basis of Directive

(EU) 2016/798 reflecting previous transposition deadlines. These acts need to be

aligned with the new transposition deadline in the current situation. A simplified

procedure should be provided where imperative grounds of urgency require an

amendment of delegated act.

(8) Directives (EU) 2016/797 and (EU) 2016/798 should be amended accordingly.

(9) In order to allow for the prompt application of the measures provided for in this

Directive, this Directive should enter into force on the day following that of its

publication in the Official Journal of the European Union,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive (EU) 2016/797 is amended as follows:

(1) in Article 57, the following paragraph 2a is inserted:

5 Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the

Community's railways and amending Council Directive 95/18/EC on the licensing of railway

undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the

levying of charges for the use of railway infrastructure and safety certification (Railway Safety

Directive) (OJ L 164, 30.4.2004, p. 44). 6 Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008 on the

interoperability of the rail system within the Community (OJ L 191, 18.7.2008, p. 1).

EN 6 EN

"2a. Member States, that have extended the transposition period in accordance with

paragraph 2, may further extend it until [16 September 2020]. Their transposition

measures shall apply from that date. Those Member States shall notify the Agency

and the Commission thereof by one day following the entry into force of Directive

(EU) 2020/… at the latest.";

(2) in the first paragraph of Article 58,

“16 June 2020” is replaced by “16 September 2020”.

Article 2

Directive (EU) 2016/798 is amended as follows:

(1) the following Article 6a is inserted:

“Article 6a

Alignment of CSMs with revised deadlines

The Commission shall be empowered to adopt delegated acts in accordance with

Article 27(7) to align the application dates of delegated acts adopted under

Article 6(6), with the transposition deadline set out in Article 33(2a).”

(2) in Article 27, the following paragraph 7 is added:

“7. By derogation from paragraphs 1 to 6, the power to adopt delegated acts under

Article 6a is conferred on the Commission from [date of entry into force of Directive

(EU) 2020/…] to [16 September 2020]. The procedure provided for in Article 27a

shall apply. ”

(3) in Article 27, the following paragraph 8 is added:

“8. By derogation from paragraphs 2 to 6, and without prejudice of paragraph 7,

where imperative grounds of urgency so require, the procedure provided for in

Article 27a shall apply to delegated acts adopted pursuant to this Article.”

(4) the following Article 27a is inserted:

"Article 27a

Urgency procedure

1. Delegated acts adopted under this Article shall enter into force without delay

and shall apply as long as no objection is expressed in accordance with

paragraph 3.

2. As soon as the Commission adopts a delegated act pursuant to this Article, it

shall notify it simultaneously to the European Parliament and to the Council

and shall state the reasons for the use of the urgency procedure.

EN 7 EN

3. Either the European Parliament or the Council may object to a delegated act in

accordance with the procedure referred to in Article 27(6). In such a case, the

Commission shall repeal the act immediately following the notification of the

decision to object by the European Parliament or by the Council."

(5) in Article 33, the following paragraph 2a is inserted:

“2a. Member States, that have extended the transposition period in accordance with

paragraph 2, may further extend it until [16 September 2020]. Their transposition

measures shall apply from that date. Those Member States shall notify the Agency

and the Commission thereof by one day following the entry into force of Directive

(EU) 2020/… at the latest. ”

(6) in the first paragraph of Article 34,

“16 June 2020” is replaced by “16 September 2020”.

Article 3

This Directive shall enter into force on the day following that of its publication in the Official

Journal of the European Union.

Article 4

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament For the Council

The President The President