New German authorisation regulation in 2018

die neue EIGV

In a surprising move, the transport ministry has initiated the legislative procedure for a new authorisation regulation for rail vehicles and rail infrastructure which is intended to come into force before the end of this year. 

The new Railway Commissioning Authorisation Regulation (EIGV)

The new national EIGV is intended to come into force before the end of 2018, but it still addresses the old EU Interoperability Directive of 2008. So the German railway industry must prepare itself for two new authorisation regulations within the next 18 months – in rapid succession!

A look back

At the end of December 2017, the Federal Ministry of Traffic and Digital Infrastructure (BMVI) tabled the ministerial draft bill for a 13th regulation governing the enactment and amendment of regulations in railway law and submitted it for consultation with the relevant associations. The core of the draft bill is the amendment, adaptation and revision of the Trans-European Railway Interoperability Regulation (TEIV), which governs the planning, construction, commissioning, retrofitting, renewal, operation and maintenance of railway systems.

For many years now, the step currently being taken by the BMVI, that of adapting the TEIV and updating it to include the existing European specifications, has been called for by many protagonists in the rail industry, but the fact that it is being taken now comes as a complete surprise. For as recently as the summer of 2015 the transport ministry – with reference to the 4th railway package and the efforts being made by the European Commission to create a pan-European authorisation regulation – shelved all actions toward a revision of the national regulations for the authorisation of railway systems. 

The EIGV and new EU authorisation regulation from the 4th railway package

The above-mentioned European authorisation regulation for rail vehicles is now available. It was adopted in November 2017 by the member states of the European Union, is scheduled for publication in April this year by the European Commission, and is due to come into force in the EU as early as June 2019. Given that, one might ask – just one year before the planned coming-into-force of the European authorisation regulation – why the transport ministry is once again aiming to bring in legislative measures of its own which will modify the national regulations in the very same area. It is also doubtful what benefit the user will finally derive from this modification, since the European procedure will take effect only a short time later. After all, the legislative procedure as such will take up a considerable amount of time, the more so because at present there is no new federal government in office which might implement such a scheme.

Having said that, the question why is one that can be answered quite quickly. Currently, there are proceedings ongoing in Brussels for breach of contract against the member state of Germany for not implementing – or not completely implementing – the Interoperability Directive 2008/57/EC. Strictly speaking, the directive should already have been implemented by July 2010, so that in cases of doubt, each subsequent delay or failure to implement it ends up being taken to the ECJ. It follows that this legislative initiative does not in fact aspire to cater to the long-felt wants of the German rail industry, but merely to bring an end to the current proceedings for breach of contract.

Important for manufacturers and users

Having said all that, what is considerably more interesting are the questions of what changes the new set of rules will bring and what impacts the initiative will have on the manufacturers and users of the material. The transport ministry is pursuing the ambitious plan of bringing the new EIGV into force before the end of this year, i.e. several months before the new European regulation. This could mean that applicants are faced with the complex problems of having to apply for and undergo three different authorisation procedures in parallel (TEIV, EIGV and EU) for their products, subsequent on-call orders and retrofits within a very short time. In order not to be exposed in this environment to a possible shutdown, or to contractual risks with enormous extra costs, applicants require detailed knowledge of the individual authorisation procedures, forward-looking, robust authorisation planning, and watertight contractual provisions in respect of their customers

[March 7th, 2018]