title: COMMISSION IMPLEMENTING REGULATION (EU) …/... on submitting information to the Commission as regards non-application of technical specifications for interoperability in accordance with Directive (EU) 2016/797

text:
                             EUROPEAN
                             COMMISSION
                                                      Brussels, 19.3.2020
                                                      C(2020) 1646 final
               COMMISSION IMPLEMENTING REGULATION (EU) …/...
                                          of 19.3.2020
   on submitting information to the Commission as regards non-application of technical
       specifications for interoperability in accordance with Directive (EU) 2016/797
EN                                                                                EN
 ---pagebreak---                   COMMISSION IMPLEMENTING REGULATION (EU) …/...
                                              of 19.3.2020
     on submitting information to the Commission as regards non-application of technical
         specifications for interoperability in accordance with Directive (EU) 2016/797
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union,
   Having regard to 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 Union1, and in
   particular Article 7(5) thereof,
   Whereas:
   (1)     Article 7(1) of the Directive (EU) 2016/797 provides that Member States may allow
           an applicant not to apply one or more technical specifications for interoperability
           (‘TSIs’) or part of them, in cases, which are listed exhaustively in points (a) to (e) of
           the Article.
   (2)     Member States’ communication of their decision in cases referred to in point (a) of
           Article 7(1), or Member States’ request for non-application in the cases referred to in
           points (c), (d) and (e), should contain information justifying the non-application and
           specifying the alternative provisions to be applied instead of the TSIs.
   (3)     The request should include the reference to the non-applied TSI provisions, describe
           the project concerned, its scope and timelines as well as provide any other relevant
           information to assist the Commission in assessing the compliance of the non-
           application with the requirements set out in Article 7(1).
   (4)     Once transitional measures provided by a TSI expire, Member States should permit
           applicants not to apply the TSI or parts of them pursuant to Article 7(1)(a) of the
           Directive only in duly justified case. In that event, the communication to the
           Commission should include all necessary information and justifications.
   (5)     In order to facilitate communication with the Commission, Member States should use
           a template when they submit their non-application decision for a project at an
           advanced stage of development pursuant to point (a) of Article 7(1). This template
           could also be used for the notification of a list of projects at an advanced stage of
           development pursuant to Article 7(2) of the Directive.
   (6)     The request for non-application of one or more TSIs or parts of them should be sent to
           the Commission by electronic means in order to ensure a paperless administration. The
           date by which Member States are delivering a request or supplement information to
           the Commission’s mailbox should be the submission date for the purpose of Article
           7(7) of the Directive.
   (7)     The measures provided for in this Regulation are in accordance with the opinion of the
           Rail Interoperability and Safety Committee,
   1
           OJ L 138, 26.5.2016, p. 44
EN                                                  1                                                EN
 ---pagebreak---    HAS ADOPTED THIS REGULATION:
                                             Article 1 - Scope
   This Regulation establishes the information to be included in, and the format and the method
   to be used for the transmission of a request for non-application of one or more technical
   specifications for interoperability (‘TSIs’) or parts of them within the meaning of Article 7(4)
   of Directive (EU) 2016/797 (hereafter “request for non-application”), in accordance to which
   Member States shall either, communicate to the Commission a decision of non-application
   under point (a), or submit to the Commission a request for non-application under points (c),
   (d) or (e) of Article 7(1) of the Directive.
                  Article 2 – Information contained in the request for non application
   1.        A request for non-application shall contain the following information:
             (a)   a reference to the case referred to in Article 7(1) of Directive (EU) 2016/797
                   under which the non-application is considered to be justified;
             (b)   the reference to the title(s) of the TSI or TSIs covered by the request for non-
                   application and to the provision(s) not applied. Each reference shall include,
                   where relevant for assessing compliance, the time period or an estimate
                   thereof, during which the non-application will continue;
             (c)   the essential details of the project concerned, consisting of the technical,
                   operational and geographical elements of the project, including a detailed
                   description of the subsystem, vehicle or infrastructure requested to benefit from
                   the non-application, and relevant key dates, or any other details distinguishing
                   it from other projects;
             (d)   a reference to and details of the alternative provisions that the Member State
                   intends to apply to compensate each non-application in the light of relevant
                   essential requirements, including the measures to be taken to monitor their
                   implementation and, where operational alternatives were agreed, their
                   continuous application..
             (e)   where more than one Member State is concerned, information on coordination
                   taking place in accordance with the final sentence in Article 7(4) of Directive
                   (EU) 2016/797 and/or Article 17(2) of Commission Regulation (EU)
                   2018/5452, when requests for non-application are linked to vehicle
                   authorisations; the same information shall be provided for cross border
                   infrastructure projects;
             (f)   an economic or technical analysis or both, ensuring that the non-application is
                   justified and limited to the extent necessary under the particular circumstances.
   2.        The request for non-application shall also provide the following specific information:
             (a)   for requests made pursuant to point (a) of Article 7(1) of Directive (EU)
                   2016/797, the justification shall include:
   2
           Commission Implementing Regulation (EU) 2018/545 of 4 April 2018 establishing practical
           arrangements for the railway vehicle authorisation and railway vehicle type authorisation process
           pursuant to Directive (EU) 2016/797 of the European Parliament and of the Council (OJ L 90,
           6.4.2018, p. 66–104)
EN                                                    2                                                      EN
 ---pagebreak---             (i)   the details of the project concerned, using the template established in the
                  Annex. If the project is already on a list of advanced stage of
                  development drawn up according to the same template, Member States
                  may refer to it without having to re-submit the information already
                  provided. The information shall be updated where relevant.
            (ii)  evidence that the project is at an advanced stage of development or
                  subject to a contract in course of performance, with documentation
                  providing the evidence for relevant dates and scope of the project;
            (iii) evidence that the planning or construction stage of a project at an
                  advanced stage of development has reached a point where a change in the
                  technical specifications may compromise the viability of the project as
                  planned, in accordance with the definition of “project at advanced stage
                  of development” in Article 2(23) of Directive (EU) 2016/797.
      (b)   for requests made pursuant to point (c) of Article 7(1) of Directive (EU)
            2016/797, the justification shall include, depending on the nature of the non-
            application requested:
            (i)   evidence that the application of one or more TSIs or part of them
                  compromises the economic viability of the project. This evidence shall
                  include a thorough economic analysis establishing unavoidable costs of
                  compliance with the TSI, and providing evidence that such cost would
                  render the project unviable. The analysis shall take into account
                  exploitation revenue if the non-application allows earlier deployment and
                  the longer term economic viability of the project within the national and
                  European rail system; and/or
            (ii)  evidence of the technical details justifying the negative impact of the
                  application of one or more TSIs or part of them, on the project’s
                  technical compatibility with the national rail system.
      (c)   for requests made pursuant to point (d) of Article 7(1) of Directive (EU)
            2016/797, the justification shall include a list of the Member States and third
            countries concerned and the railway lines where the vehicles covered by the
            request are circulating;
      (d)   for requests made pursuant to point (e) Article 7(1), the justification shall
            identify the network or network area(s) relevant for the request and justify its
            separation from the rail network of the rest of the Union, and/or its isolation.
                      Article 3 - Format and method of transmission
   1. The request for non-application shall be limited to 10 pages maximum.
      Supplementing information may be added through annexes to the request.
   2. A communication or request for non-application and any subsequent information to
      complete the file shall be submitted by electronic means only, to the dedicated mail
      address of the Commission:
      MOVE-RAIL-DEROGATIONS@ec.europa.eu.
   3. The date for the purpose of Article 7(7) of Directive (EU) 2016/797 is the date when
      the request or subsequent information to complete the file was submitted by mail
      according to paragraph 2.
EN                                            3                                               EN
 ---pagebreak---    4.       The acknowledgement of receipt issued by the Commission to the Member State
            within 7 days will contain a unique identifier with reference to the Member State
            concerned, the project and the year of submission
            Member State shall refer to the unique identifier, whenever communicating with the
            Commission on the non-application case.
                                     Article 4 – Entry into force
   This Regulation shall enter into force on the twentieth day following that of its publication in
   the Official Journal of the European Union.
   This regulation shall apply from 16 September 2020.
   This Regulation shall be binding in its entirety and directly applicable in all Member States.
   Done at Brussels, 19.3.2020
                                                 For the Commission
                                                 The President
                                                 Ursula VON DER LEYEN
EN                                                 4                                                EN
 ---documentbreak---                              EUROPEAN
                             COMMISSION
                                                     Brussels, 19.3.2020
                                                     C(2020) 1646 final
                                                     ANNEX
                                            ANNEX
                                             to the
                    COMMISSION IMPLEMENTING REGULATION
   on submitting information to the Commission as regards non-application of technical
       specifications for interoperability in accordance with Directive (EU) 2016/797
EN                                                                                EN
 ---pagebreak---                                                                          ANNEX
     Template for presenting a project at an advanced stage of development where the non-application of one or more TSIs or part of them is
        requested for this project under point (a) of Article 7(1) of Directive (EU) 2016/797 and in line with the information requested with
                                                    Article 2, points 1. and 2(a) of this Regulation
   Name of      Details concerning the scope of the project        All dates and         Technical        Any other     Information    Derogations
  the project                                                   actions relevant for   specifications      relevant       to justify      already
                                                                   justifying the     not applied and   information,      the non-    granted to that
                                                                 advanced state of       alternative  such as area(s)    viability of project (if any)
                                                                   development           provisions         of use,      the project
                                                                  character or the          and/or        including
                                                                  contract signed         standards   coordination in
                                                                                applied       accordance
                                                                                with Art. 17(2)
                                                                                of Commission
                                                                                regulation
                                                                                2018/545.
EN                                                                          1                                                                          EN


title: COMMISSION IMPLEMENTING REGULATION (EU) …/... on the reporting structure to be followed for railway accident and incident investigation reports

text:
                            EUROPEAN
                            COMMISSION
                                                      Brussels, 24.4.2020
                                                      C(2020) 2518 final
               COMMISSION IMPLEMENTING REGULATION (EU) …/...
                                          of 24.4.2020
   on the reporting structure to be followed for railway accident and incident investigation
                                             reports
                                   (Text with EEA relevance)
EN                                                                                EN
 ---pagebreak---                   COMMISSION IMPLEMENTING REGULATION (EU) …/...
                                               of 24.4.2020
    on the reporting structure to be followed for railway accident and incident investigation
                                                  reports
                                        (Text with EEA relevance)
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union,
   Having regard to Directive (EU) 2016/798 of the European Parliament and of the Council of
   11 May 2016 on railway safety1, and in particular Article 24(2) thereof,
   Whereas:
   (1)    Directive (EU) 2016/798 provides a framework to ensure that the results of accident
          and incident investigations are disseminated by the national investigating bodies
          (NIBs) in charge of reporting on rail accident and incident investigation across the
          Union, in accordance with its Article 22.
   (2)    The reports on investigations and any findings and subsequent recommendations
          provide crucial information for the future improvement of rail safety in the Single
          European Rail Area. In accordance with Article 26 of the Directive (EU) 2016/798,
          safety recommendations have to be acted upon by the addressees and actions reported
          back to the investigating body.
   (3)    A common structure of the investigation report should facilitate sharing the reports. To
          this end a public database managed under the responsibility of the European Union
          Agency for Railways was established in accordance with Article 37(3)(e) of
          Regulation (EU) 2016/7962, and is accessible through the Agency.
   (4)    To facilitate the access to useful information and its application to other European
          stakeholders, some parts of the report are requested in two European languages.
   (5)    The structure should protect the NIB from external interferences, guarantee that the
          investigation has been carried in an independent manner in accordance with
          Article 21(4) of the Directive (EU) 2016/798.
   (6)    Safety accident and incident investigation reports should ensure that lessons are
          learned from past accidents and incidents. They should facilitate the identification of
          safety hazards and eliminataion of similar safety risk in the future and allow actors in
          the rail sector to review their assessment of the risks related to their operations and
          update their safety management systems where necessary, including where applicable
          to adopt corrective measures, pursuant to point 7.1.3. of Annex I and point 7.1.3. of
   1
           OJ L 138, 26.5.2016, p. 102.
   2
           Regulation (EU) 2016/796 of the European Parliament and of the Council of 11 May 2016 on the
           European Union Agency for Railways and repealing Regulation (EC) No 881/2004 (OJ L138 of
           26.05.2016, p. 1)
EN                                                   1                                                  EN
 ---pagebreak---             Annex II to Commission Regulation (EU) 2018/7623. For this purpose the information
            contained in such reports should be structured to be easily accessible.
   (7)      The European Union Agency for Railways (the ‘Agency’), which collects the reports,
            should maintain the appropriate informatics tool providing an easy retrieval, tailored
            on the specific needs of the user (e.g. using keywords).
   (8)      The measures provided for in this Regulation are in accordance with the opinion of the
            Committee referred to in Article 28(1) of Directive (EU) 2016/798.
   HAS ADOPTED THIS REGULATION:
                                                    Article 1
                                          Subject matter and scope
   This Regulation lays down a common reporting structure for the accident and incident
   investigations referred to in Article 20(1) and (2) of Directive (EU) 2016/798.
                                                    Article 2
                                                   Definitions
   For the purpose of this Regulation the following definitions apply:
   (1)        'causal factor' means any action, omission, event or condition, or a combination
              thereof that if corrected, eliminated, or avoided would have prevented the
              occurrence, in all likelihood;
   (2)        'contributing factor' means any action, omission, event or condition that affects an
              occurrence by increasing its likelihood, accelerating the effect in time or increasing
              the severity of the consequences, but the elimination of which would not have
              prevented the occurrence;
   (3)        ‘systemic factor’ means any causal or contributing factor of an organisational,
              managerial, societal or regulatory nature that is likely to affect similar and related
              occurrences in the future, including, in particular the regulatory framework
              conditions, the design and application of the safety management system, skills of the
              staff, procedures and maintenance.
                                                    Article 3
                                             Reporting structure
   Without prejudice to the provisions of Articles 20, 24(1) and (2) of Directive (EU) 2016/798,
   the investigation reports shall be issued following the structure, as closely as possible, as set
   out in Annex I.
   Points 1, 5 and 6 of the Annex I shall be written in a second official European language. This
   translation should be available no later than 3 months after the delivery of the report.
   The reports shall be made available to the Agency in a digital format allowing access to it, its
   digital indexation and analysis.
   3
            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 Regulation (EU) No 1158/2010 and
            (EU) No 1169/2010 (OJ L 129, 25.5.2018, p. 26)
EN                                                       2                                                   EN
 ---pagebreak---                                                Article 4
                                              Transition
   With regard to accidents and incidents for which a decision to launch the investigations has
   already been taken in accordance with Article 22(3) of Directive (EU) 2016/798 at the time of
   entry into force of this Regulation, the investigation body may decide whether to follow the
   reporting structure as set out in Annex I, or to follow that of Annex V to Directive
   2004/49/EC.
                                               Article 5
                                  Entry into force and application
   This Regulation shall enter into force on the twentieth day following that of its publication in
   the Official Journal of the European Union.
   This Regulation shall be binding in its entirety and directly applicable in all Member States.
   Done at Brussels, 24.4.2020
                                                 For the Commission
                                                 The President
                                                 Ursula VON DER LEYEN
EN                                                 3                                                EN
 ---documentbreak---                             EUROPEAN
                            COMMISSION
                                                      Brussels, 24.4.2020
                                                      C(2020) 2518 final
                                                      ANNEX
                                           ANNEX
                                             to the
                     COMMISSION IMPLEMENTING REGULATION
   on the reporting structure to be followed for railway accident and incident investigation
                                            reports
EN                                                                                EN
 ---pagebreak---                                                          ANNEX
                                   The structure to follow on the reporting
   According to Article 24(1) of Directive (EU) 2016/798, accident and incident reports shall
   follow as closely as possible the structure here established, adapted to the type and
   seriousness of the accident or incident. This includes input, in principle, to all titles 1 to 6
   including their subtitles in letters, where relevant. Where no relevant information is available
   or not required due to the circumstances of the occurrence, the statement “not applicable”
   shall be introduced for the corresponding titles or subtitles, identifying them as not being
   considered relevant in the context of this investigation. The statement can be done in an
   aggregated manner either at the beginning or at the end of the relevant title or subtitle.
   1.         Summary
   The summary is an integral part of to the report and shall be self-explanatory so that it can be
   read without further context.
   It shall provide an outline of the basic facts of the occurrence: a short description of the
   accident or incident; when, where and how it happened; and a conclusion on its causes and
   consequences. The summary shall refer to all factors (causal, contributing and/or systemic)
   identified by the investigation. Where applicable, the summary shall list the safety
   recommendations and their addressees.
   2.         The investigation and its context
   This part of the report shall give the objectives and the context of the investigation. It shall
   make reference to any factors such as delays that might have detrimental impact or otherwise
   influence the investigation or its conclusions.
   1.      The decision to establish an investigation:
   2.      The motivation to the decision to establish an
           investigation, e.g. by reference to Art. 20.1
           (serious accident) or Art. 20 (2) a) – d):
   3.      The scope and limits of the investigation          Information on scope and limits may further be
           including a justification thereof, as well as an   detailed under point 4.
           explanation of any delay that are considered a
           risk or other impact to the conduct of the
           investigation or its conclusions:
   4.      An aggregated description of the technical         If anonymity is granted to persons or entities please
           capabilities and the functions in the team of      clarify.
           investigators. This includes those belonging to
           other investigation bodies or external parties
           involved, as well as evidence for their
           independence from parties involved in the
           occurrence:
   5.      A description of the communication and             If anonymity is granted to persons or entities please
           consultation process established with persons or
EN                                                          1                                                       EN
 ---pagebreak---           entities involved in the occurrence during the        clarify.
          investigation and in relation to the information
          provided:
   6.     A description of the level of cooperation offered     If anonymity is granted to persons or entities please
          by the entities involved:                             clarify.
   7.     A description of the investigation methods and        e.g. interviews, access to documentation and
          techniques as well as analysis methods applied        recordings on the operating system,
          to establish the facts and findings referred to in
          the report. The facts shall at least establish:
               - events and conditions that led to the
                    occurrence;
               - any precursors that led to the above;
               - instructions, mandatory procedures,
                    feedback mechanisms and/or control
                    mechanisms that led to the occurrence
                    or otherwise played a role regarding it.
   8.     A description of the difficulties and specific
          challenges encountered during the investigation.
   9.     Any interaction with the judicial authorities,
          where appropriate
   10.    Where appropriate, any other information
          relevant in the context of the investigation.
   3.       Description of the occurrence
   This part of the report shall contain a detailed description of the occurrence mechanism, based
   on the information collected during the investigation carried out.
   (a)      The occurrence and background information:
   1.     The description of the occurrence type:
   2.     The date, exact time and location of the
          occurrence:
   3.     The description of the occurrence site, including
          weather and geographical conditions at the
          moment of the occurrence and if any works
          were carried out at or in the vicinity of the site:
   4.     Deaths, injuries and material damage:                 If anonymity is granted to persons or entities please
               - passengers, employees or contractors,          clarify.
                    level crossing users, trespassers, other
                    persons at a platform, other persons not
                    at a platform,
               - cargo, luggage and other property,
               - rolling stock, infrastructure and the
                    environment.
EN                                                            2                                                       EN
 ---pagebreak---    5.     The description of other consequences,
          including the impact of the occurrence in the
          regular operations of the actors involved:
   6.     The identification of the persons, their           If anonymity is granted to persons or entities please
          functions, and entities involved, including        clarify.
          possible interfaces to contractors and/or other
          relevant parties:
   7.     The description and identifiers of train(s) and
          their composition including the rolling stock
          involved and their registration numbers:
   8.     A description of the relevant parts of the
          infrastructure and signalling system – track
          type, switch, interlocking, signal, train
          protection systems:
   9.     Where appropriate, and any other information
          relevant for the purpose of the description of the
          occurrence and background information:
   (b)      The factual description of the events:
   1.     The proximate chain of events leading up to the    e.g. starting point of a train ride, beginning of the
          occurrence, including:                             shift of an involved staff member
               - actions taken by persons involved,
                                                             e.g. measures taken by staff for traffic control and
               - the functioning of rolling stock and
                                                             signalling, exchange of verbal messages and written
                    technical installations,
                                                             orders in connection with the occurrence
               - the functioning of the operating
                    system:                                  e.g. signalling and control command system,
                                                             infrastructure, communications equipment, rolling
                                                             stock, maintenance, etc.
   2.     The chain of events from the occurrence until
          the end of the actions of the rescue services,
          including:
               - measures taken to protect and               e.g. trigger of the railway emergency plan, trigger of
                    safeguard the site of the occurrence,    the emergency plan of the public rescue services, the
               - the efforts of the rescue and emergency     police and the medical services and its chain of
                    services.                                events
   4.       Analysis of the occurrence, where necessary in respect of individual contributing
            factors
   This part of the report shall analyse the established facts and findings (i.e. performance of
   operators, rolling stock and/or technical installations) which caused the occurrence. The
   analysis shall lead to the identification of the safety critical factors that caused or otherwise
   contributed to the occurrence, including facts identified as precursors. An accident or incident
   may be caused by causal, systemic and contributing factors which are equally important and
   should be considered during an investigation.
EN                                                         3                                                        EN
 ---pagebreak---    The analysis may be extended to conditions, feedback mechanisms and/or control
   mechanisms throughout the entire railway system that were identified as actively influencing
   the development of similar occurrences. This could comprise the functioning of safety
   management systems of involved parties and regulatory activities covering certification and
   supervision.
   The following items shall be covered for each of the identified events or factors (causal or
   contributing) that appear safety critical, in line with the flexibility offered by the structure (see
   above).
   (a)       Roles and duties
   Without prejudice to Article 20(4) of Directive (EU) 2016/798 this part of the report shall
   lead to the identification and analysis of roles and duties of individual persons and entities,
   including if necessary relevant staff and their defined tasks and functions, identified as
   having been involved in the occurrence in a safety critical manner, or any activity leading to
   it.
   1.       Railway undertaking(s) and/or infrastructure manager(s):    If anonymity is granted to persons or
                                                                        entities please clarify.
   2.       The entity/entities in charge of maintenance, the           If anonymity is granted to persons or
            maintenance workshops, and/or any other maintenance         entities please clarify.
            suppliers:
   3.       Manufacturers of rolling stock or other supplier of rail    If anonymity is granted to persons or
            products:                                                   entities please clarify.
   4.       National safety authorities and/or the European Union       If anonymity is granted to persons or
            Agency for Railways:                                        entities please clarify.
   5.       Notified bodies, designated bodies and/or risk assessment   If anonymity is granted to persons or
            bodies:                                                     entities please clarify
   6.       Certification bodies of entities in charge of maintenance   If anonymity is granted to persons or
            mentioned under 2:                                          entities please clarify.
   7.       Any other person or entity relevant to the occurrence,      If anonymity is granted to persons or
            documented or not in one of the relevant safety             entities please clarify
            management systems or referred to in a register or relevant
                                                                        e.g. keepers of vehicles, terminal providers,
            legal framework:
                                                                        loaders or fillers
   (b)       Rolling stock and technical installations
   Causal factors to or the consequences of an occurrence that were identified as relating to the
   condition of rolling stock or technical installations, including possible contributing factors
   related to activities and decisions, such as:
   1.         Stemming from the design of the rolling stock,
              railway infrastructure or technical installations:
EN                                                           4                                                     EN
 ---pagebreak---    2.        Stemming from the installation and taking into
             service of the of rolling stock, railway infrastructure
             or technical installation:
   3.        Laying with the manufacturers or other supplier of
             rail products:
   4.        Stemming from the maintenance and/or the
             modification of the rolling stock or technical
             installations:
   5.        Laying with the entity in charge of maintenance, the
             maintenance workshops and other maintenance
             suppliers:
   6.        And any other factors or consequences considered
             relevant for the purpose of the investigation:
   (c)      Human factors
   Where causal or contributing factors or the consequences of an occurrence were related to
   human actions, attention shall be paid to the particular circumstances and the manner in which
   routine activities are performed by staff during normal operations and the human and
   organisational factors that may influence actions and/or decisions, including:
   1.        Human and individual characteristics:
             (a)         training and development, including
                         skills and experience,
             (b)         medical and personal circumstances
                         with influence on the occurrence,
                         including existence of physical or
                         psychological stress,
             (c)         fatigue,
             (d)         motivation and attitude.
   2.        Job factors
             (a)         task design,
             (b)         design of equipment with impact on the
                         man-machine interface,
             (c)         the means of communication,
             (d)         practices and processes,
             (e)         operating rules, local instructions, staff
                         requirements, maintenance prescriptions
                         and applicable standards,
             (f)         working time of the staff involved,
             (g)         risk handling practices
             (h)         context, machinery, equipment and
EN                                                          5                                     EN
 ---pagebreak---                       instructions shaping work practices.
   3.      Organisational factors and assignments:
           (a)        workforce planning and workload,
           (b)        communications, information and team
                      working,
           (c)        recruitment and selection, resources,
           (d)        performance            management         and
                      supervision,
           (e)        compensation (remuneration),
           (f)        leadership, power issues,
           (g)        organisational culture,
           (h)        legal issues (incl. relevant EU and
                      national rules and regulations),
           (i)        the regulatory framework conditions
                      and the application of the safety
                      management system.
   4.      Environmental factors:
           (a)        working conditions (noise, lighting,
                      vibrations, …),
           (b)        weather and geographical conditions,
           (c)        works carried out at or in the vicinity of
                      the site.
   5.      And any other factor relevant for the purpose of the
           investigation in the above points (1),(2),(3),(4):
   (d)   Feedback and control mechanisms, including risk and safety management as well as
         monitoring processes.
   1.  The relevant regulatory framework conditions:
   2.  The processes, the methods, the content and the results
       of risk assessment and monitoring activities, performed
       by any of the involved actors: railway undertakings,
       infrastructure managers, entities in charge of
       maintenance, maintenance workshops, other
       maintenance providers, manufacturers and any other
       actors, and the independent assessment reports referred
       in Article 6 of Implementing Regulation (EU) No
       402/20131:
   1
        Implementing Regulation (EU) No 402/2013 of 30 April 2013 on the common safety method for risk
        evaluation and assessment and repealing Regulation (EC) No 352/2009, (OJ L 121, 3.5.2013, p. 8).
EN                                                       6                                               EN
 ---pagebreak---    3.     The safety management system of the involved railway
          undertaking(s) and infrastructure manager(s) including
          the basic elements stated in Article 9(3) of Directive
          (EU) 2016/798 and any EU legal implementing acts:
   4.     The management system of the entity/entities in charge
          of maintenance and maintenance workshops including
          the functions stated in the Article 14(3) and Annex III of
          Directive (EU) 2016/798 and any subsequent
          implementing acts:
   5.     The results of supervision performed by the national
          safety authorities in accordance with Article 17 of
          Directive (EU) 2016/798:
   6.     The authorisations, certificates and assessment reports
          granted by the Agency, the National Safety Authorities
          or other conformity assessment bodies:
               - Safety authorisation/safety certificates of the
                   involved infrastructure manager(s) and railway
                   undertaking(s),
               - Authorisations for the placing in service of
                   fixed installations and vehicles authorisations
                   for placing on the market,
               - Entity in charge of maintenance and
                   maintenance workshops (incl. certification).
   7.     Other systemic factors:
   (e)      Previous occurrences of a similar character, if available.
   5.       Conclusions
   The conclusions shall contain:
   (a)      A summary of the analysis and conclusions with regard to the causes of the
            occurrence
   The conclusions shall summarise the identification of the causal and contributing factors to
   the occurrence, including both immediate and deeper systemic factors, as well as missing or
   inadequate safety measures for which compensatory measures are recommended. Moreover, it
   shall refer to the capability of the involved organisations to address this via their safety
   management systems, in order to prevent future accidents and incidents.
   (b)      Measures taken since the occurrence
   (c)      Additional observations:
   Safety issues identified during the investigation, but without relevance to the conclusions on
   causes and consequences of an occurrence.
   6.       Safety recommendations
EN                                                         7                                      EN
 ---pagebreak---    Where appropriate this part of the report shall set out safety recommendations for the sole aim
   to prevent similar occurrences in the future.
   The absence of recommendations shall be explained.
   Safety recommendations shall be based on established facts and additional observations
   thereof, as well as their analysis leading to conclusions on safety relevant causes and
   consequences of an occurrence.
   Safety recommendations may also be issued in relation to additional observations in no causal
   or contributing context to the occurrence.
EN                                                 8                                               EN


title: COMMISSION IMPLEMENTING REGULATION (EU) …/... amending Implementing Regulation (EU) No 1206/2011 laying down requirements on aircraft identification for surveillance for the single European sky and Implementing Regulation (EU) No 1207/2011 laying down requirements for the performance and the interoperability of surveillance for the single European sky

text:
                             EUROPEAN
                             COMMISSION
                                                       Brussels, 29.4.2020
                                                       C(2020) 2620 final
               COMMISSION IMPLEMENTING REGULATION (EU) …/...
                                          of 29.4.2020
   amending Implementing Regulation (EU) No 1206/2011 laying down requirements on
   aircraft identification for surveillance for the single European sky and Implementing
   Regulation (EU) No 1207/2011 laying down requirements for the performance and the
                interoperability of surveillance for the single European sky
                                   (Text with EEA relevance)
EN                                                                                EN
 ---pagebreak---                  COMMISSION IMPLEMENTING REGULATION (EU) …/...
                                                 of 29.4.2020
     amending Implementing Regulation (EU) No 1206/2011 laying down requirements on
     aircraft identification for surveillance for the single European sky and Implementing
     Regulation (EU) No 1207/2011 laying down requirements for the performance and the
                   interoperability of surveillance for the single European sky
                                         (Text with EEA relevance)
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union,
   Having regard to Regulation (EU) 2018/1139 of the European Parliament and of the Council
   of 4 July 2018 on common rules in the field of civil aviation and establishing a European
   Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No
   1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and
   2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC)
   No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and
   Council Regulation (EEC) No 3922/911, and in particular point (a) of Article 44(1) thereof,
   Whereas:
   (1)    In order to ensure safe and efficient operations of aircraft, aerodromes, air traffic
          management, air navigation and of the European air traffic management network, it is
          necessary to provide for certain improvements to the operating rules related to the use
          of airspace, aircraft equipment and air traffic management and air navigation services
          systems and their constituents required for the use of airspace. New and updated
          safety-related interoperability requirements should therefore be set out in Commission
          Implementing Regulation (EU) No 1206/20112 and Commission Implementing
          Regulation (EU) No 1207/20113.
   (2)    Taking into account the experiences from the ongoing implementation of airborne
          surveillance capability and the capability of the ground systems to process data,
          effective and timely installation of aircraft equipment is necessary to enable the full
          surveillance chain to achieve the expected benefits within the established deadlines.
          The criteria for exemptions from the requirements to equip aircraft should be amended
          to provide clarity as to which aircraft are to be equipped and which ones are to benefit
          of an exemption from those requirements. At the same time, the overall number of
          aircraft equipped should remain effective and should not impose an undue economic
          burden.
   1
          OJ L 212, 22.8.2018, p. 1.
   2
          Commission Implementing Regulation (EU) No 1206/2011 of 22 November 2011 laying down
          requirements on aircraft identification for surveillance for the single European sky (OJ L 305,
          23.11.2011, p. 23)
   3
          Commission Implementing Regulation (EU) No 1207/2011 of 22 November 2011 laying down
          requirements for the performance and the interoperability of surveillance for the single European sky
          (OJ L 305, 23.11.2011, p. 35).
EN                                                     1                                                        EN
 ---pagebreak---    (3)   A significant number of equipped aircraft is already certified in line with the
         international standard for airborne parts and appliances for the surveillance systems,
         corresponding to Annex 10 to the Chicago Convention, Volume IV, Third Edition,
         including all amendments up to No 77. That standard is fully compatible with the
         anticipated surveillance systems. Mandating the use of the standard corresponding to
         Annex 10 to the Chicago Convention, Volume IV, Fourth Edition including all
         amendments up to No 85 as currently provided in Annex II to Regulation (EU) No
         1207/2011 would impose an undue economic burden. Therefore, the standard
         corresponding to Annex 10 to the Chicago Convention, Volume IV, Third Edition
         including all amendments up to No 77 should be considered as the minimum
         requirement. Therefore, the minimum technical standards to which aircraft operators
         are to comply laid down in Implementing Regulation (EU) No 1207/2011 should be
         amended.
   (4)   State aircraft operating as general air traffic should be equipped with serviceable
         secondary surveillance radar transponders in line with the requirements applicable to
         civil aircraft laid out in points (a) and (c) of Article 5(5) of Implementing Regulation
         (EU) No 1207/2011. The procedures and conditions related to state aircraft that cannot
         be equipped with serviceable secondary surveillance radar transponders should remain
         those laid out in Article 8 of Implementing Regulation (EU) No 1207/2011.
   (5)   The requirements for the formal arrangements on transferring surveillance data
         between air navigation service providers should be amended to reflect existing data
         distribution scenarios to facilitate exchange of surveillance data and to avoid excessive
         onerous constraints on the delivering provider.
   (6)   In order to ensure the effectiveness of State aircraft operations, the ability of the
         European ATM system to ensure that those State aircraft engaged in sensitive
         operations and training are able to operate with the assignment of discrete SSR codes
         should be established and therefore Implementing Regulation (EU) No 1206/2011
         should be amended accordingly.
   (7)   The outbreak of the pandemic of Covid-19 virus and the resulting impact on the
         aviation sector has led to unforeseeable obstacles for aircraft operators to pursue their
         activities to bring the aircraft in compliance with certain requirements of
         Implementing Regulation (EU) No 1207/2011. As a result, the deadline for aircraft
         operators laid out in Article 5(5), Article 8(1) and Article 8(2) of Implementing
         Regulation (EU) No 1207/2011 should be postponed to 7 December 2020, and
         Implementing Regulation (EU) No 1207/2011 should be amended accordingly.
   (8)   Implementing Regulation (EU) No 1206/2011 and Implementing Regulation (EU) No
         1207/2011 should therefore be amended accordingly.
   (9)   The measures provided for in this Regulation are in accordance with the opinion of the
         Committee referred to in Article 127(1) of Regulation (EU) 2018/1139,
   HAS ADOPTED THIS REGULATION:
                                                Article 1
   Annex II to Implementing Regulation (EU) No 1206/2011 is amended in accordance with
   Annex I to this Regulation.
EN                                                  2                                              EN
 ---pagebreak---                                                 Article 2
   Implementing Regulation (EU) No 1207/2011 is amended as follows:
   (1)    in Article 2, paragraph 2 is replaced by the following:
          ‘2. This Regulation shall apply to all flights operating as general air traffic in
          accordance with instrument flight rules within the Single European Sky airspace with
          the exception of Article 7(3) and 7(4) which shall apply to all flights operating as
          general air traffic’;
   (2)    in Article 4, paragraph 4 is deleted;
   (3)    in Article 5, paragraphs 5 and 6 are replaced by the following:
          ‘5. By 7 December 2020 operators shall ensure that:
                (a)    aircraft operating flights referred to in Article 2(2) are equipped with
                       serviceable secondary surveillance radar transponders that comply with
                       the following conditions:
                       (i)    they have the capabilities set out in Part A of Annex II;
                       (ii)   they have the continuity sufficient to avoid presenting an
                              operational risk;
                (b)    aircraft with a maximum certified take-off mass exceeding 5700 kg or
                       having a maximum cruising true airspeed capability greater than 250
                       knots, operating flights referred to in Article 2(2), with an individual
                       certificate of airworthiness first issued on or after 7 June 1995, are
                       equipped with serviceable secondary surveillance radar transponders that
                       comply with the following conditions:
                       (i)    they have the capabilities set out in Parts A and B of Annex II;
                       (ii)   they have the continuity sufficient to avoid presenting an
                              operational risk;
                (c)    fixed wing aircraft with a maximum certified take-off mass exceeding
                       5700 kg or having a maximum cruising true airspeed capability greater
                       than 250 knots, operating flights referred to in Article 2(2), with an
                       individual certificate of airworthiness first issued on or after 7 June 1995,
                       are equipped with serviceable secondary surveillance radar transponders
                       that comply with the following conditions:
                       (i)    they have the capabilities set out in Parts A, B and C of Annex II;
                       (ii)   they have the continuity sufficient to avoid presenting an
                              operational risk.
          Points (b) and (c) of the first subparagraph shall not apply to aircraft that operate
          within the Single European Sky airspace and that belong to one of the following
          categories:
                       (i)    they are being flown to undergo maintenance;
                       (ii)   they are being flown for export;
                       (iii) their operations will be ceased by 31 October 2025.
EN                                                  3                                                EN
 ---pagebreak---         Operators of aircraft with a first certificate of airworthiness issued before 7
        December 2020 shall comply by 7 June 2023 with the requirements set out in points
        (b) and (c) of the first subparagraph, subject to the following conditions:
                     (i)   they have established before 7 December 2020 a retrofit
                           programme demonstrating compliance with points (b) and (c) of
                           the first subparagraph;
                     (ii)  those aircraft have not benefitted from any Union funding granted
                           to bring such aircraft in compliance with the requirements set out in
                           points (b) and (c) of the first subparagraph.
        For aircraft where the capability of the transponders to comply with the requirements
        of points (b) and (c) of the first subparagraph is temporarily inoperative, operators
        shall be entitled to operate that aircraft in the Single European Sky airspace for a
        maximum of 3 consecutive days.
        6. Operators shall ensure that aircraft equipped in accordance with paragraph 5 and
        having a maximum certified take-off mass exceeding 5700 kg or having a maximum
        cruising true airspeed capability greater than 250 knots, operate with antenna
        diversity, with a minimum performance as prescribed in paragraph 3.1.2.10.4 of
        Annex 10 to the Chicago Convention, Volume IV, Third Edition, including all
        amendments up to No 77.’;
   (4)  in Article 5, paragraph 7 is deleted;
   (5)  in Article 6, paragraph 2 is deleted;
   (6)  in Article 7, paragraph 2 is deleted;
   (7)  in Article 7, paragraph 3 is replaced by the following:
        ‘3. Member States shall ensure that the assignment of 24-bit ICAO aircraft addresses
        to aircraft equipped with a Mode S transponder complies with Chapter 9 and its
        appendix of Annex 10 to the Chicago Convention, Volume III, Second Edition
        including all amendments up to No 90.’;
   (8)  in Article 8, paragraphs 1 and 2 are replaced by the following:
        ‘1. Member States shall ensure that, by 7 December 2020 at the latest, State aircraft
        comply with point (a) of Article 5(5).
        2. Member States shall ensure that, by 7 December 2020 at the latest, transport-type
        State aircraft comply with point (c) of Article 5(5).’;
   (9)  in Article 8, the following paragraph 8 is inserted:
        ‘8. For State aircraft where the capability of the transponders to comply with the
        requirements of paragraphs 1 and 2 is temporarily inoperative, Member States shall
        be entitled to allow the operation of that aircraft in the Single European Sky airspace
        for a maximum of 3 consecutive days.’;
   (10) Article 14 is deleted;
   (11) the following Article 14a is inserted:
        ‘Article 14a
        Flight Plans
EN                                              4                                                EN
 ---pagebreak---             Operators of non-equipped State aircraft communicated as per Article 8(3) and
            operators of aircraft not equipped in accordance with Article 5(5) operating within
            the Single European Sky airspace, shall include the indicators SUR/EUADSBX or
            SUR/EUEHSX or SUR/EUELSX or a combination thereof, in Item 18 of the flight
            plan.’;
   (12)     Annex II is amended in accordance with Annex II to this Regulation.
   (13)     Annex IV is amended in accordance with Annex III to this Regulation.
                                               Article 3
   This Regulation shall enter into force on the twentieth day following that of its publication in
   the Official Journal of the European Union.
   This Regulation shall be binding in its entirety and directly applicable in all Member States.
   Done at Brussels, 29.4.2020
                                                 For the Commission
                                                 The President
                                                 Ursula VON DER LEYEN
EN                                                 5                                                EN
 ---documentbreak---                             EUROPEAN
                            COMMISSION
                                                     Brussels, 29.4.2020
                                                     C(2020) 2620 final
                                                     ANNEXES 1 to 3
                                          ANNEXES
                                            to the
                           Commission Implementing Regulation
       amending Commission Implementing Regulation (EU) 1206/2011 laying down
     requirements on aircraft identification for surveillance for the single European sky
         and Commission Implementing Regulation (EU) No 1207/2011 laying down
   requirements for the performance and the interoperability of surveillance for the single
                                        European sky
EN                                                                                EN
 ---pagebreak---                                                ANNEX I
   Point 3 of Annex II to Implementing Regulation (EU) No 1206/2011 is amended as follows:
   (1)      point (c) is replaced by the following:
            ‘(c) an aircraft which is eligible for the assignment of the conspicuity code
            established in accordance with point (c) of Article 4(6) exits or is otherwise diverted
            outside the airspace volume referred to in point (1);’;
   (2)      the following point (d) is added:
            ‘(d) State aircraft engaged on nationally sensitive operations or training, that require
            security and confidentiality.’.
EN                                                  1                                                EN
 ---pagebreak---                                               ANNEX II
   Annex II to Implementing Regulation (EU) No 1207/2011 is amended as follows:
           (1)    Part A is amended as follows:
                  (a)   point 1 is replaced by the following:
           ‘1. The minimum capability for the secondary surveillance transponder shall be
           Mode S Level 2 meeting the performance and functionality criteria of Annex 10 to
           the Chicago Convention, Volume IV, Third Edition including all amendments up to
           No 77.’;
                  (b)   point 5 is replaced by the following:
           ‘5. The data items referred to in point 4 shall only be transmitted by the transponder
           via the Mode S protocol. The aircraft and equipment certification process shall cover
           the transmission of those data items.’;
                  (c)   point 6 is deleted;
           (2)    Part B is amended as follows:
                  (a)   point 1 is replaced by the following:
           ‘1. The minimum capability for the secondary surveillance transponder shall be
           Mode S Level 2 meeting the performance and functionality criteria of Annex 10 to
           the Chicago Convention, Volume IV, Third Edition including all amendments up to
           No 77.’;
                  (b)   point 15 is replaced by the following:
           ‘15. Except for military reserved formats, the data items referred to in point 14 shall
           only be transmitted by the transponder via the extended squitter ADS-B protocol.
           The aircraft and equipment certification process shall cover the transmission of these
           data items. ’;
                  (c)   point 16 is deleted;
           (3)    Part C is amended as follows:
                  (a)   in point 2, the introductory phrase is replaced by the following:
           ‘2. The following data items, where available on a digital bus, shall be transmitted by
           the transponder as requested by the ground-based surveillance chain, via the Mode S
           protocol and in accordance with the formats specified in ICAO document 9871 (2nd
           edition):’;
                  (b)   point 4 is replaced by the following:
           ‘4. The data items referred to in point 3 shall only be transmitted by the transponder
           via the Mode S protocol. The aircraft and equipment certification process shall cover
           the transmission of these data items.’.
EN                                                 2                                               EN
 ---pagebreak---                                              ANNEX III
   Annex IV to Implementing Regulation (EU) No 1207/2011 is amended as follows:
          (1)    ANNEX IV is replaced by the following:
                                                  ‘Annex IV
          Requirements for the establishment of formal arrangements referred to in
          Article 5(2)
          Formal arrangements between air navigation service providers for the exchange or
          provision of surveillance data shall include the following minimum content:
          (a) the parties to the arrangements;
          (b) the period of validity of the arrangements;
          (c) the scope of the surveillance data;
          (d) the sources of the surveillance data;
          (e) the exchange format of the surveillance data;
          (f) the service delivery point of the surveillance data;
          (g) agreed service levels in terms of the following;
          — surveillance data performance                 as   established by    Article  4(3)
          — procedures in case of unserviceability;
          (h) change management procedures;
          (i) reporting arrangements with respect to performance and availability including
          unforeseen outage;
          (j) management and coordination arrangements;
          (k) ground-based surveillance chain safeguarding and notification arrangements.’.
EN                                                3                                            EN