Brussels, 22 April 2009 UITP EU Committee Position on the ERA Draft Final Report IU-ExtScope-20090320-FinalReport dated 20th March 2009 on the Extension of field of application of TSIs The UITP European Union Committee, which brings together urban, suburban and regional public transport undertakings in the European Union has read with great interest the draft Final report dealing with the Extension of field of application of the Technical Specifications for Interoperability (TSIs) dated 20th March 2009. With the letter sent to DG TREN on 19th January 2009, the UITP EU-Committee (together with the other sector organisations) has expressed its concern about this report : an approach in which only ERA and NSAs are involved in the drafting is unacceptable. In the end it is the rail sector that will be impacted and therefore the representative organisations of all market stakeholders have to be consulted before the finalisation of the document. In the following position, the UITP EU-Committee identifies a number of issues which require a clarification or some additions in the draft. GENERAL REMARKS 1. Status of the report The TSIs as published in the Official Journal of the European Union (OJ) do not specify as clearly as the ERA draft report their current scope. The ERA report is the only place where a global vision of the TSIs content and evolution is provided. For this reason the future ERA report on TSI Application Guide should have a higher/stronger status than the TSIs from the legal point of view at EU level. The ERA TSI Application Guide, once approved by the RIS Committee, should be published in the OJ.
2. Scope of the Railway Legislation The European railway legislation has introduced many concepts which are not so clear and for which no definition has been provided. This creates many problems regarding the understanding of the scope of the various legal documents (directives, regulations, decisions ). Indeed, the purpose of the legislation is to establish the conditions to be met to achieve interoperability within the Community rail system, presented as a single system, as the use of the implies it. However, the Community rail system is not defined. The only definition of the rail system - coming from Article 2.0) of Interoperability Directive 2008/57/EC 1 - is self redundant: the existing rail system is made of lines and fixed installations of the existing rail system plus the vehicles travelling on that infrastructure! One can understand that the Community rail system is made according to Article 1.4 of the Interoperability Directive 2008/57/EC - of the whole rail system (existing rail system?), after Member states have excluded, by application of Article 2.2 of the Safety Directive 2004/49/EC and Article 1.3 of the Interoperability Directive 2008/57/EC, a number of systems, networks, infrastructure and vehicles, and even some railway undertakings operating solely on functionally separate networks [ ]. First, this shows that the Community rail system is not unique (there are other rail systems ). Second, it shows also that the scope of the TSIs cannot only refer to sub-systems or categories of lines, since some railway undertakings can be excluded. In addition, many technical requirements do apply only to railway undertakings 2, which means that non licensed undertakings operating railway services are not in the scope. The UITP EU-Committee therefore requests the introduction in the ERA report of the concept of the European (potentially) interoperable rail network. This network shall be defined by Member States thanks to a national map, showing for each country the borderline of the rail system potentially covered at least partially by the future TSIs. 3. Definition of international services The Passenger Right Regulation introduces the concept of urban, suburban and regional rail services. During the joint EC-ERA-UITP meeting held in UITP on 28 th January on the TSI scope extension, it has been clearly stated by the European Commission that when an urban, suburban and regional rail service is crossing a border, such a cross-border (local) service is not an international service. This sentence a cross-border (local) service is not regarded as an international service for the application of TSIs has to be included in the ERA report in order to clarify the TSI scope (and especially the TAP TSI one). 4. Categorisation of TSIs The imprecision in the meaning of the words leads to a confusion in the categorisation of TSIs. The categorisation should not refer mainly to categories of infrastructure, or of various 1 Article 2 o) existing rail system means the structure composed of lines and fixed installations of the existing rail system plus the vehicles of all categories and origin travelling on that infrastructure; 2 Article 2 k). railway undertaking. means any public or private undertaking, licensed according to applicable Community legislation, the principal business of which is to provide services for the transport of goods and/or passengers by rail with a requirement that the undertaking must ensure traction; this also includes undertakings which provide traction only; 2
structural and functional areas of sub-systems. It should give more importance to the categories subdividing the network of the Trans-European conventional rail system presented in Annex I, 1.1 of the Directive 2008/57/EC. These categories, even if they use the word lines do in fact refer to categories of long distance - rail services. On a given line or infrastructure may coexist different categories of international or domestic rail services. The first level of categorisation of TSIs should be made of categories of rail services (passenger services on a commercial basis, passenger services covered by PSR - see below remark 5.2 -, freight services). 5. Additional categories of rail services (or rail lines) One important rail services market segment is missing in the Safety and Interoperability Directives: that of urban, suburban and regional rail passenger services. This market of (local) rail services is made of two categories depending on the level of interoperability of infrastructure: they can be operated either on the Interoperable European Rail System (part of the Community rail system targeted by the TSIs) or they can be excluded from it by application of the Article 1.3 of the Directive 2008/57/EC. 5.1 Rail installations or undertakings potentially excluded in application of Article 1.3 of the Directive 2008/57/EC Systems, networks, infrastructure, vehicles and railway undertakings excluded by application of the Article 1.3 of the Directive 2008/57/EC are not in the scope of any TSI as they are not interoperable 3. 5. 2 Local rail services potentially candidate for TSIs The local (suburban and regional) services which are potentially partly interoperable are also potentially (at least partly) covered by the TSI. However this category of local services (suburban and regional) which are operated under Public Service Requirements must be addressed separately in the extension of the scope of the TSIs. Indeed there are conventional rail rolling stock which are only used for suburban and regional services on a small territory (even cross-border)(e.g. Regio-Shuttles of the Ortenau-S-Bahn), and there are railway stations which are located on the European (potentially) interoperable railway system but which are only used for suburban and regional services, that is where no long distance train shall ever stop. A costly mandatory upgrade or over-specification applying through TSIs to these rolling stock and/or infrastructures may lead regional authorities in charge of financing suburban and regional services operated under Public Service Requirements in the frame of Regulation 1370/2007 and under Rail Passenger Rights Regulation 1371/2007- deciding to close such services and stations rather than accepting additional financial burden. In such a case, local rail services might be replaced by bus or coach services which have a lower level of service in many aspects. 3 See joint UITP-UNIFE position URBAN RAIL: TOWARDS A BETTER HARMONISED MARKET. November 2008 and further coordination with DG TREN for a specific approach of urban rail. 3
Most TSIs (for TAP TSIs, see below remark 7.3) should include a provision according to which rolling stock and infrastructures (and other relevant installations or equipment) only used for suburban and regional services operated under public service contracts on a small territory (even cross-border) may not need to apply all TSIs in the future, even when upgraded 4, provided that there is no negative impact on the functioning of long distance rail services. In case of application of TSIs to some local rail services (suburban and regional) which are operated under Public Service Requirements, this category of services must be addressed separately in the extension of the scope of the TSIs. They require performing relevant Cost Benefit Analysis. 6. Additional European Legislation influencing urban, suburban and regional rail services and additional actor ( Competent Authority ) The local (suburban and regional) services which are potentially partly interoperable are operated under Public Service Contracts. Therefore they have to cope with the PSR Regulation 1370/2007/EC, which involves an additional stakeholder in the overall technical framework: the Competent Authority, which is not a national body but a regional or local authority awarding a PSC (public service contract). This Regulation leaves the responsibility of the relationship to the Passenger to the Competent Authority financing the compensation for PSR services. This Competent Authority is very often also funding part or all of the rail infrastructure or of the fixed installations, and/or of the rail vehicles and of various equipment. On the other hand, the Directive 2007/58/EC on the market opening states in its Article 1.8 that cabotage rail services may be operated on international rail services, provided that they do not compromise the: economic equilibrium of a public service contract. Whether the economic equilibrium would be compromised shall be determined by the relevant regulatory body or bodies referred to in Article 30 of Directive 2001/14/EC on the basis of an objective economic analysis and based on predetermined criteria. It is necessary to mention this Directive as a reference document in the ERA report because consistency must be ensured between the predetermined criteria used in application of Directive 2007/58/EC and the criteria used in the Cost Benefit Analysis assessing the impact of the TSI scope extension in application of Directive 2008/57/EC. According to UITP EU Committee the ERA report must mention the Competent Authority in charge of rail services operated under Public Service Contracts as a specific actor. In addition, two important legislations (showing that this Competent Authority has to be considered) must be added in the Reference Documents (chapter 2, pages 13-14): the PSR Regulation 1370/2007/EC and the Directive 2007/58/EC. UITP EU Committee recalls that it had been requested to introduce in the economic evaluation methodology for TSI impact assessment the evaluation of the potential impact on Competent Authorities responsible for PSR services affected by the TSI scope extension. 4 See the position of the VDV, the German Association of Public Transport on the ERA draft report. 4
7. Scope of TAP TSIs 7.1. The scope of TAP TSIs is not the whole Community rail system As a consequence of the fact that some undertakings are not railway undertakings (since they do not have any license) and that some railway undertakings (with a license) can be exempted from the provisions of Article 1.3 of the Directive 2008/57/EC, the statement of the ERA report that the scope of TAP TSI is the whole Community rail system is wrong, even if the Community rail system is seen as the whole rail system : Contrary to what is written in ERA report on page 33, last sentence, the Passenger Rights Regulation 1371/2007/EC does not apply to all rail journeys in Europe. It does not apply to journeys travelled on undertakings which are not licensed. And it does not apply either to journeys travelled on services operated by railway undertakings that are exempted from the scope of the Interoperability Directive 2008/57/EC in application of Article 1.3 (b) or from the scope of the Rail Passenger Rights Regulation 1371/2007/EC in application of Article 1.5 5. 7.2. The scope of TAP TSIs is smaller than the one covered by the current draft ERA TAP TSI report IU-TAP-170209-TSI 0.8 The scope of Telematics Applications is restricted to the topics described in Annex II, 2.5 of the Directive 2008/57/EC 6. Therefore, taking TAP TSI draft report version 8 as a reference, UITP EU Committee is asking for transferring the basic parameters dealing with train paths (paragraphs 4.2.14 to 4.2.17 included and 4.2.19) into a revised OPE TSI. 7.3. The scope of TAP TSIs must exclude local rail services operated under Public Service Contracts The TAP TSI are currently designed under the provisions of the Interoperability Directive 2008/57/EC, while this Directive must be applied without prejudice to the application of Regulation 1370/2007/EC on public passenger transport services by rail and by road 7 ( PSR regulation ) and of Regulation 1371/2007/EC on rail passengers rights and obligations ( RPR regulation ). They ignore the fact that suburban and regional rail services ( commuter services) are serving an extremely far larger amount of passengers than long distance rail services: the passengers on suburban and regional conventional rail services (metro and light rail not included) represent by far the biggest share of all heavy rail trips in Europe: they account for about 90% out of the total number of rail passengers and 50% of the total number of passenger x kilometers per year. 5 Article 1.5. With the exception of the provisions set out in paragraph 3 of this Article, a Member State may exempt from the application of the provisions of this Regulation urban, suburban and regional rail passenger services. In order to distinguish between urban, suburban and regional rail passenger services, Member States shall apply the definitions contained in Council Directive 91/440/EEC of 29 July 1991 on the development of the Community s railways. 6 2.5. Telematics applications In accordance with Annex I, this subsystem comprises two elements: (a) applications for passenger services, including systems providing passengers with information before and during the journey, reservation and payment systems, luggage management and management of connections between trains and with other modes of transport; (b) applications for freight services, including information systems (real-time monitoring of freight and trains), marshalling and allocation systems, reservation, payment and invoicing systems, management of connections with other modes of transport and production of electronic accompanying documents. 7 According to Regulation 1370/2007/EC on public passenger transport services by rail and by road (Recital 17), all what relates to social and quality standards for e.g. passenger rights and needs of persons with reduced mobility falls under the responsibility of competent authorities in charge of public transport services operated under public service contracts, in keeping with the principle of subsidiarity. Information services and ticketing services are part of social and quality specifications of public service contracts. 5
From the point of view of European local Public Transport operators, it is not acceptable to oblige - even in the future - the use of technical specifications designed for long distance rail passenger information and ticketing systems, as long as they do not fulfill the requirements and needs of local integrated systems (covering as well many other urban public transport services by bus, metro, light rail, ferries and so on). The information and ticketing systems used for suburban and regional rail services are answering fully different passenger needs and following totally different technical specifications, governed by the requirements of public service contracts which are only under the responsibility of local authorities according to the PSR regulation. Enforcing international specifications would be contrary both to the subsidiarity principle and to the needs of local passengers (including local passengers using local cross-border services). Local rail services operated under public service contracts, be there national or cross-border (see remark 4 above), are to be regarded as a permanent specific case excluded from the scope of the TAP TSI. 8. Complementary studies The ERA report proposes in chapter 13.2, page 52, to carry out several complementary studies. The UITP EU Committee requests that the draft final report of complementary studies are presented by ERA to the relevant rail associations for comments before their finalisation, and that these comments can be presented to the European Commission if deemed necessary. 9. Market growth It is written in Annex 4, chapter 5, 5.1.1.1, page 17, that: The statistics relating to rail transport show a very clear decline in market share over the long term, and this is a reason for a greater involvement of the European Commission. However, this sentence is not applicable to urban, suburban and regional rail passenger services. The local rail sector has faced a sharp increase in ridership in many places over the last decade. The aim of the EC to boost the long distance rail services should not be counter productive and TSI scope extension should not weaken the dynamism of the local rail sector by introducing unnecessary technical requirements and additional administrative burden. 10. Proposed timetable and options According to UITP EU Committee, the option 2 the inclusion of the requirements of spare parts cannot be developed under the ERA responsibility. It deals with matters falling under the responsibility of the standardisation bodies. Only option 1 can therefore be mentioned. 11. Future ERA Work Program As mentioned in the ERA report, it is clear that a huge amount of work shall be required for achieving the target of extending the scope of TSI and revising them. The UITP EU Committee highlights the great difficulty faced by the local rail sector for the following reasons: 6
Very large diversity of local situations, which make a synthetic approach very difficult; Scarcity of resources: most railway undertakings are facing budget restraints in terms of both human resources and availability of experts; Very sophisticated skill: TSI contents are very specific, and even on a limited issue very few experts have a visibility of the technical problems covering a large area, or even a country. Adopting a Europe wide perspective for the local rail sector cannot be achieved without a strong political and financial support of the Commission and of the Members States to this sector. At the same time it is crucial to increase the awareness of the Competent Authorities of the need of a clarification by the sector of what should be harmonised at EU level and what should stay developed at the local level (city, region or country). -------------------------------------------------------------------------------------------------------------------------- DETAILED REMARKS Page 4 CCS. The ERTMS specification will not be additionally changed : To be checked. Page 5 TAP. The TAP TSI is being drafted for the whole network : not acceptable, see above remark 7.1. Page 5. Other aspects to be taken into account. The sentence After the adoption [ ], nearly any railway project in the EU will have to be TSI compliant should be rephrased. Only new projects on European potentially interoperable rail system are at stake. Page 5. The extension of scope may have impact on new stakeholders not present in the 9 representative associations (e.g. railway undertakings and infrastructure managers which do not operate on TEN). The sentence into brackets may be true for freight but not as a general statement, since many of such RUs are directly members of UITP or indirectly through their national association which is a member of UITP. Page 6. Locomotives and passenger rolling stock. The content of the complementary study is not clear. Page 6. Telematic Applications for Passenger Services. Finalisation of the ongoing revision. How can a revision be put forward, as long as the TAP TSI have not yet been produced? Page 14. Reference documents. Two are missing: PSR Regulation 1370/2007/EC and Directive 2007/58/EC. See above remark 6. Page 17. Chapter 4. See above remarks 2, 3, 4 and 7. Page 17. Footnote 1 is unacceptable. See above remark 7. Page 18. Footnote 2 does not reflect all possible exclusions as from Article 1.3, dealing also with systems, networks and RUS, and not only with infrastructure and vehicles. 7
Page 18. Last sentence: replacing [ ] by Community rail system. The sentence has to be rephrased, since the installations etc. excluded by Article 1.3 cannot be in the scope. It is suggested to replace Community rail system by European potentially interoperable rail system. See also above remark 2. Page 25, paragraph 7.1.1. Sentence beginning by The current draft. See above remarks 4 and 5. In addition, what is the meaning of light passenger trains? Page 27, paragraph 7.3.1. This is not possible for the on board equipment. Full on-board equipment has to be installed regardless of the intended use of rolling stock. Isn t this sentence (which is doubtful) in contradiction with the sentence of page 28 At the extension [ ], new class B systems may appear? Page 29, paragraph 7.4.1. First paragraph: Its is difficult [ ]. Normally, the same rolling stock operates on both TEN and non-ten lines. This statement is too general, and excludes the local rail specificities which shall have to be addressed in the TSI scope extension. Page 32, paragraph 7.8.1. First sentence. What is a Commission Regulation? What is the difference with a Commission Decision? Why this sentence? What does it mean? Page 33, paragraph 7.8.1. The second sentence is a wrong assessment, see above remark 7.1. TAP TSI must make a difference between services which might be excluded and those which cannot, and introduce a difference between services operated under public service contracts and other services. Page 34. First sentence should not be presented that way. The most important point is that Undertakings not licensed are not in the scope of Directive 2008/57/EC and therefore journeys travelled on such undertakings cannot be in the scope of TAP TSI. See above remark 7. Page 34. Second sentence ( The TSI prescribes [ ] ) is not applicable to undertakings which are not licensed. Even in the case of (licensed) RUs, PSR services require a specific approach, not limited to rail. The RU is not the main decision maker in the case of PSR services: they are under the responsibility of the Competent Authority which most often integrates passenger information and ticketing in an urban wide information and ticketing system covering all public transport services (including bus etc.), and which are therefore not rail specific. This information and ticketing system may be operated by a different entity than the public transport operators. Page 34. TAP TSI scope: see part of above remark 7.2 about OPE TSI. Page 34. TAP TSI Scope: see above remark 4. Page 35, paragraph 7.10.1, last paragraph. See above remark 8. Page 40, last paragraph: After the scope [ ]. The sentence needs clarification. Page 43, paragraph 9.2. What is written is incomplete as far as PSR services are concerned. See above remark 6. 8
Page 44, paragraph 9.5. The sentence is not fully right: some RUs are members of UITP. In addition one stakeholder should be mentioned as well and is strongly affected: the Competent Authority in charge of PSR services. Page 48, chapter 12, indent 2. Mapping is only necessary for the lines which are part of the European potentially interoperable rail system. It is not useful for what is excluded in application of Article 1.3 of Directive 2008/57/EC. Page 48, chapter 12, indent 4. The sentence in the middle of the paragraph needs to be clarified ( Cases where [ ] needs to be identified ). How to proceed for this identification? Who shall do it? Page 48, chapter 12. A sentence should be added recalling that the impact on the Competent Authority shall also be measured when PSR services are impacted. Page 50, table 7. Energy. Which are the 3 rd rail systems at stake? Page 50, table 7. Locomotives and passenger rolling stock. As for complementary study, see above remark 8. Page 51, table 7. TAP TSI. The sentence is a wrong assessment. See above remark 7.1. Page 51, last paragraph. See above remarks 4 and 5 and above remark 6 about Competent Authority. Page 52. See above remark 8 about complementary studies. In addition, see above remark 10 about options. Page 53. Footnote 4 must be deleted. See above remark 7. Page 55, table 10. Option 2 must be deleted, see above remark 10. Annex 4, chapter 4, 4.1.3, page 13. The regulations 1370/2007/EC, 1371/2007/EC and the directive 2007/58/EC should be added. See above remark 6. Annex 4, chapter 5, 5.1.1.1, page 17. See above remark 9. Annex 4, chapter 6, 6.3.2.1, page 25. ICs do not cover interchangeable parts, which depend upon standardisation bodies. Annex 4, chapter 8. See above remark 6 about the need for consistent evaluation criteria, and addition of Competent Authority as a stakeholder. See also above remark 11. 9