The European Union's (EU) quest to liberalise rail transport and create a single market is designed to benefit rail by encouraging new entrants and creating more dynamism through increased competition. Perversely, one of the greatest threats to liberalisation in Europe stems from an EU directive introduced in 2004 and ratified in 2006 to make national safety authorities (NSAs) responsible for certifying new operators and rolling stock.
New operators have to obtain two types of certificate to run trains in the EU. One is Europe-wide and concerns the operator's proficiency to run a train service and is relatively easy to obtain. The second certificate is a national licence to run trains in a particular country, and this is where the problem lies. The rules vary widely from country to country and are often extremely difficult to understand and comply with.
For example, in Germany the rules are laid down in law, and although compliance is onerous, the requirements are at least relatively clear. By contrast, in France the rules are more opaque, and while there is greater flexibility in their application there is considerable uncertainty about exactly what is required. In Italy, the NSA works very closely with Italian State Railways (FS), which makes it very difficult for newcomers or foreigners to obtain an operating licence.
Some of the rules act as obstacles to entry. For example, the German NSA insists that an operator must have somewhere in Germany where its rolling stock is kept and it must prove that it is well maintained. This gave rise to a ridiculous situation where DB Schenker's Scandinavian subsidiary found it difficult to obtain an operating licence to run freight trains in Germany.
In Germany, there is the added complication that staff working for the Federal Railway Authority (EBA), which certifies new rolling stock, are personally liable for the certificates they grant. This makes them extremely cautious and even reluctant to certify new trains, which has led to a huge backlog of fully-tested new trains sitting in sidings awaiting approval from the EBA. The situation also encourages the EBA to introduce ever-more onerous safety requirements, some of which apply to rolling stock after production has started.
One of the big weaknesses of the system is that operating certificates granted in one country are not recognised in another within the EU, and an operator must apply for a licence in each country in which it wants to run trains. This makes a mockery of encouraging cross-border services and liberalisation, and this is one of the main reasons why the initial proliferation of new operators has been largely snuffed out. As it stands, only very big operators such as the national railways have the time and resources to negotiate the Byzantine certification system.
We now have the ludicrous situation whereby the EU is blaming the railways for failing to fulfil their potential, while the railways see the current EU-inspired licensing system as a major obstacle to developing cross-border services. What started out as a means to ensure that new and existing operators ran their trains safely, has become a major block to developing rail services.
To make matters worse, rail's biggest competitor, road transport, does not face anything like the same obstacles. Nobody insists that car or truck drivers obtain new licences to drive their vehicles in each EU member state, or that British and Irish vehicles change the steering wheel to the other side so that they can drive more safely on the right. And yet these are the sort of requirements faced by rail operators. Which mode has the better safety record?
There are a number of possible solutions, but each faces a tough road ahead to obtain approval. One option could be to amend the legislation to transfer the risk from the NSA to the operator as with road transport. But this might risk an increase in rail accidents caused by poorly-run operators which could cause a public outcry and make the situation even worse.
Probably a better solution is to adopt Europe-wide safety standards and operating rules which would radically simplify the system, but would take a very long time to agree and implement.
One thing is clear, the politicians need to start listening to the railways to agree a solution to this ridiculous problem.