Commission Decision
of 23 January 2009
amending Decisions 2006/861/EC and 2006/920/EC concerning technical specifications of interoperability relating to subsystems of the trans-European conventional rail system
(notified under document number C(2009) 38)
(Text with EEA relevance)
(2009/107/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to 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 (Recast), and in particular Article 6(1) thereof,
OJ L 191, 18.7.2008, p. 1.
Having regard to the recommendation of the European Railway Agency on the intermediate revision of the freight wagon TSI (ERA/REC/INT/03-2008) of 27 October 2008,
Whereas:
(1) Article 12 of Regulation (EC) No 881/2004 of the European Parliament and the Council of requires that the European Rail Agency (hereinafter referred to as the Agency) shall ensure that the technical specifications for interoperability (TSIs) are adapted to technical progress and market trends and to the social requirements and propose to the Commission the amendments to the TSIs which it considers necessary.
OJ L 164, 30.4.2004, p. 1, as corrected OJ L 220, 21.6.2004, p. 3.
(2) By Decision C(2007) 3371 of 13 July 2007, the Commission gave a framework mandate to the Agency to perform certain activities under Council Directive 96/48/EC of 23 July 1996 on the interoperability of the trans-European high-speed rail system and Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on the interoperability of the trans-European conventional rail system. Under the terms of this framework mandate, the Agency was requested to perform the revision of the TSI Rolling Stock — Freight wagon, adopted by Commission Decision 2006/861/EC of 28 July 2006 concerning the technical specification of interoperability relating to the subsystem rolling stock — freight wagons of the trans-European conventional rail system, as well as to provide technical opinions on critical errors and to publish a list of detected minor errors.
OJ L 235, 17.9.1996, p. 6.
OJ L 110, 20.4.2001, p. 1.
OJ L 344, 8.12.2006, p. 1.
(3) The entry into force of the 1999 Convention concerning International Carriage by Rail (COTIF) on 1 July 2006 brought in new rules governing the technical specifications applicable to wagons. The former RIV Agreement between railway undertakings was replaced partially by a new private and voluntary agreement, the General Contract of Use (GCU) between railway undertakings and wagon keepers, as well as by Decision 2006/861/EC.
The GCU website: http://www.gcubureau.org
(4) Whilst wagons registered under the RIV agreement required only one authorisation issued by the registering Railway Undertaking, Directive 2001/16/EC required an authorisation for each Member State. This problem was provisionally resolved by section 7.6 of the Annex to Decision 2006/861/EC which provides that once safety certification or authorisation of placing in service is granted for grouped wagons in one Member State, this certification or authorisation shall be mutually recognised by all Member States in order to avoid duplication of safety and interoperability checks by Safety Authorities. It also provides that insofar as Decision 2006/861/EC contains open points, authorisations for placing in service will be mutually accepted, except as indicated in Annex JJ to that Decision. However, insofar as Annex JJ does not clearly identify the conditions under which an authorisation of placing in service of a wagon in one Member State has to be mutually recognised in other Member States, the application of section 7.6 of the Annex to Decision 2006/861/EC has led to differing interpretations. This has resulted in legal uncertainty and difficulties for the industry which has called for immediate action by the Commission.
(5) That problem can now be resolved because Article 23(1) of Directive 2008/57/EC provides that vehicles in complete conformity with TSIs covering all aspects of the relevant subsystems without specific cases and without open points that are strictly related to technical compatibility between vehicle and network, shall not be subject to any additional authorisation for placing in service as long as they run on TSI conform networks in the other Member States or under the conditions specified in the corresponding TSIs.
(6) Decision 2006/861/EC contains a number of open points and technical errors. Whilst National Technical Rules could apply in order to comply with the essential requirements linked to the open points, there is no legal certainty that these national solutions would be accepted by other Member States. In addition, in accordance with Article 7 of Directive 2008/57/EC, the appropriate procedure in the case of important or critical errors is to amend the relevant TSI specifications immediately.
(7) In order to reinstate full interoperability of freight wagons dedicated to international transport, an immediate revision of to Decision 2006/861/EC is necessary in order to clarify the conditions under which an authorisation for placing in service a TSI conform wagon shall be valid in all other Member States.
(8) Wagons which have been authorised to be placed in service according to Article 22(1) of Directive 2008/57/EC and which are provided with an authorisation valid in all Member States in accordance with Article 23(1) of Directive 2008/57/EC should be marked with a clear and easy to recognise alphabetical marking. It is therefore necessary to amend Annex P.5 to the TSI relating to the subsystem Traffic Operation and Management of the trans-European conventional rail system adopted under Commission Decision 2006/920/EC.
OJ L 359, 18.12.2006, p. 1.
(9) Decisions 2006/861/EC and 2006/920/EC should therefore be amended accordingly.
(10) The measures provided for in this Decision are in accordance with the opinion of the Committee established in accordance with Article 29(1) of Directive 2008/57/EC,
HAS ADOPTED THIS DECISION: