Q&A: rail transport safety regulation in Germany

Safety regulation

How is rail safety regulated?

Directive (EU) No. 2016/798 on railway safety, which is part of the fourth EU railway package, repealed Directive 2004/449/EC. To transpose the Directive, on 16 March 2020, the German legislator adopted the Law on the implementation of the technical pillar of the fourth EU railway package. The relevant national safety rules for the rail system in Germany were first notified to the European Commission in 2006. The current notification of German national safety rules under Directive (EU) No. 2016/798 is still under evaluation by the European Union Agency for Railways (ERA). A list of national safety rules as of August 2020 is available on the EBA website. The European Commission has issued Implementing Regulation (EU) No. 2018/763 of 9 April 2018, establishing practical arrangements for issuing single safety certificates to railway undertakings. The Ordinance on Railway Safety of 17 June 2020 complements this Commission Implementing Regulation.

Regulations by the Federal Railway Authority (EBA), guidelines by the Association of German Transport Companies and German railways Deutsche Bahn (DB AG), as well as DIN Standards (ie, the 27200 series of technical standards) regulate technical aspects of rail safety. These rules apply in Germany for regular public railways, as far as they do not operate networks of regional transport or service facilities or regional railways. The above-mentioned guidelines and DIN Standards qualify as recognised rules pursuant to article 2 of the Railway Construction and Operating Regulations (EBO), thus creating a code of practice.

What body has responsibility for regulating rail safety?

Following the transposition of the fourth EU Railway Package, the ERA is responsible for the issuance of single safety certificates if operations are to take place in more than one member state (one stop shop). If operations are to be limited to Germany the applicant can choose whether to address ERA or the EBA. The EBA will remain responsible for assessing compliance with national safety rules in the certification procedure and for monitoring ongoing compliance throughout the duration of the validity of the certificate. The EBA has to inform the ERA if the holder of a safety certificate issued by the ERA poses a significant security risk (article 5a (2) AEG). The EBA also has to inform other national safety authorities in the case of security relevant findings with respect to railway undertakings operating cross-border (article 5a (2a) AEG). Applicants can request the review of a negative decision by a safety certification body pursuant to article 14 of Regulation (EU) No. 2018/763. A procedure can be lodged against decisions by the EBA before German administrative courts. For decisions taken by the ERA an appeal can be brought before a board of appeal and then before the European Court of Justice pursuant to articles 58 and 63 of Regulation (EU) No. 2016/796.

What safety regulations apply to the manufacture of rail equipment?

The following safety regulations apply to the manufacture of rail equipment: the EBO, the Technical Principles for the Approval of Safety Systems published by the EBA, Guidelines 406 for Driving and Building and Guidelines 807 Aerodynamics/Crosswind published by DB AG. The third part of the EBO (paragraphs 18–33) lays down the specifications for vehicles, and modules 807.400-807.499 of Guidelines 807 include the technical requirements regarding aerodynamics and crosswind.

What rules regulate the maintenance of track and other rail infrastructure?

The maintenance of track and other rail infrastructure is regulated by a performance and financing agreement (LuFV) between Germany, represented by the Federal Ministry of Transport and Digital Infrastructure, railway infrastructure companies (ie, DB Network AG, DB Station & Service AG and DB Energy GmbH) and DB AG. On 1 January 2020, the LuFV III entered into force. It has a duration of 10 years (2020–2029). Under this agreement, infrastructure companies will receive around €63.4 billion for repairs in the existing network and also spend €1.3 billion of own funds. The railway infrastructure companies also undertake to spend a total of at least €22.78 billion on the maintenance of railways during the contract period.

This agreement provides the railway infrastructure companies with funds for the infrastructure to use at their discretion and increases their planning security. In return, they undertake to invest in repairs in the railways at least at the agreed level, to make a minimum maintenance contribution, to contribute to the maintenance and modernisation of the existing network, and to maintain the infrastructure in a high-quality condition. The EBA is tasked with monitoring the implementation of the agreement.

What specific rules regulate the maintenance of rail equipment?

Pursuant to article 4a (1) of the AEG, owners of rolling stock are responsible for the maintenance of their rolling stock and may transfer this task to a third party responsible for maintenance. Commission Implementing Regulation (EU) 2019/779 of 16 May 2019 laying down detailed provisions on a system of certification of entities in charge of maintenance (ECM) of vehicles repealed Commission Regulation (EU) No. 445/2011 and has been applicable since 16 June 2020. It extended the previous system of certification of the entity in charge of maintenance for freight wagons to all rail vehicles. The EBA is responsible for accreditation and recognition of ECM certification bodies under Regulation (EU) 2019/779.

The rules that are contained in the 27200 series of the DIN standards specify the technical requirements for safety-relevant systems and components of rolling stock with standard gauge. They create a uniform safety framework for the condition of rolling stock in operation for all railway undertakings operating railway traffic on the federal rail network.

What systems and procedures are in place for the investigation of rail accidents?

The Federal Railway Accident Investigation Board is the national investigation body pursuant to Directive (EU) No. 2016/798 on railway safety.

Serious accidents pursuant to article 20 (1) and (2) of Directive (EU) No. 2016/798 are systematically examined in four steps: initial measures, recording the accident investigation, fact-finding and factual analysis. The result of the investigation will be summarised and published in an investigation report.

Are there any special rules about the liability of rail transport companies for rail accidents, or does the ordinary liability regime apply?

Regulation (EU) No. 1371/2007 of 23 October 2007 on rail passengers’ rights and obligations in article 26 renders rail transport companies liable for the loss or damage resulting from the death of, personal injuries, or any other physical or mental harm, to a passenger, caused by an accident arising out of the operation of the railway and happening while the passenger is in, entering or alighting from railway vehicles regardless of the railway infrastructure used. The Regulation also stipulates the circumstances in which it is relieved from liability in this context.

The Liability Act of 4 January 1978, last amended on 17 July 2017, creates special rules for the liability of rail transport companies for rail accidents. It establishes a strict liability regime. Liability is excluded if the event is attributable to force majeure.

Law stated date

Give the date on which the information above is accurate.

10 August 2020.