Article by legal advisor Michal Zięba Regulatory bottlenecks or

We recommend reading the article by legal advisor Michał Zięba, Managing Partner of HANTON on Regulatory bottlenecks in railway legislation. This article has been compiled as a compilation of a few selected thoughts from ongoing legal activities on behalf of clients. The legal bottlenecks described below are more or less onerous, but, in the opinion of the author of the publication, they have one thing in common - they require sooner or later to be resolved at the decision-making and legislative level, or at least to be reconsidered in terms of the need to maintain them. 

Railway line location decision unfortunately not for local government companies

The decision on the location of a railway line, issued by the provincial governor, provides some facilitation in the implementation of railway investments. It is not the pinnacle of dreams for investors in the railway sector, but there is no better legal support - in relation to the general rules. The problem is that, according to the Railway Transport Act, the decision can only be requested by:

- PKP PLK;

- CPK;

- Local government unit.

However, this catalogue does not include self-government companies (whose shareholders are JST), which nevertheless have a separate legal personality from JST and could carry out investments in railway lines more efficiently than, for example, a department in the Marshal's Office. The same applies to other types of self-government entities which have a separate legal personality. It might be said that a self-government company is a kind of "extension" of the dominion of a local government unit, but this thesis has many opponents and generates unnecessary controversy.

And there are such companies and entities in Poland! And they are struggling with this problem, which in my opinion is worth solving by means of an amendment to the Railway Transport Act - let's facilitate the construction of railway lines!

SHP in newly approved rail-road vehicles vs. the need for an active track permit

The requirement for SHP to be built into rail and road vehicles came into force with the entry into force of the UTK President's Letter of 5 November 2021 and was very controversial from the outset. From that point onwards, any newly introduced type of rail and road vehicle, in order to obtain a marketing authorisation from the UTK President, would have to comply with the requirement to be installed and to undergo testing at a body designated to comply with the UTK President's List. The installation of an electromagnet was potentially feasible from a technical point of view but would normally nullify the possibility of using such a vehicle on public roads due to the 'clearance' to the road surface. It would also have generated a mass of other technical problems e.g. in re-railing. Interestingly, fulfilling the requirements of Appendix S-04 of the UTK President's Letter stating "emptying the main line through the SHP pneumatic duct at a rate greater than 0.18 MPa/3s, i.e. implementing emergency braking" was impossible if only because of the lack of a 'main line' in such a vehicle, which is largely a 'truck' with auxiliary railway wheels....

An analysis of publicly available sources shows that, based on the President's List of 5 November 2021 - no type of rail-road vehicle has been granted a permit allowing it to run on the active track.

Fortunately, several years of appeals from the environment have finally resulted in a draft amendment to the UTK President's List, which is currently in the consultation phase. Hopefully, the draft will turn into the final version.

It is only a pity about this lost time and the many legal problems with the supply of vehicles to the PKP PLK group companies....

Access to Service Infrastructure Facilities for railway undertakings only

Under the Railway Transport Act, the provision of IOUs consists of allowing railway operators to access the tracks in the IOU and use the services provided therein. However, some IOUs are not only used by carriers. A good example is the maintenance facilities, which are, after all, contracted to repair wagons or locomotives by Rolling Stock Companies (ROSCOs), which are not carriers. An even more glaring example is freight terminals, which have terminal use agreements mainly with shippers (and not with carriers - although this also sometimes happens). It can therefore be seen that the provisions of the Act are not aligned with the business models operating in the market. After all, the use of the IOU "back-office point" of a rail carrier and by ROSCO should not differ either from a technical point of view or from the point of view of ensuring non-discriminatory access. It must be acknowledged that also Directive 34 is not ideally written from this angle and speaks of services provided to "railway undertakings". There is certainly a difference in scope between the terms "railway undertaking" (national law) and "railway undertaking" (EU law) but how big - that is debatable. Even if these provisions cannot be so easily fixed (due to wording in the Directive) it is nevertheless worth bearing in mind that customers of IOUs are sometimes not only railway undertakings....

Access by railway undertakings to the technical file of the vehicle (how extensive should this access be?) and the vehicle software licence

In the light of the national regulation on the general technical conditions for the operation of railway vehicles, the technical file of the vehicle is also the construction file, together with the technical conditions for implementation, but only to the extent specified in the contract for the supply of the railway vehicle. This provision therefore leaves the contracting authority free to determine the scope of the construction documentation obtained. In theory this is a good principle, but in practice it appears that contracting authorities are often surprised by 'deficiencies' that make it impossible (or very difficult) to carry out repairs at higher maintenance levels. Perhaps this area of the railway system also needs to be tightened up?

Certainly today's "slack decision-making", which leaves the contracting authority the right to determine the scope of the construction documentation on its own, means that every regional vehicle contracting authority (and there are more than a dozen of them in Poland) applies and will apply different standards in this respect - depending on its budget, negotiating capacity and competence. The consequences of this are slowly coming to light, for example during parliamentary committees.

On the issue of software licences - an analysis of the MIB regulation shows that "software algorithms" should be an element of the technical documentation of the vehicle, or more precisely an annex to the DTR. The regulation does not, however, specify how to interpret this notion, but one may be tempted to say that the Polish legislator already in 2005 (!), i.e. at the time of publication of the original text of the regulation, envisaged that the knowledge of the vehicle's software should be transferred to the future user in a certain manner (e.g. in the manner of description of software algorithms).

In the light of the regulation, however, it is not clear whether only information about the "software algorithms" of the train as such (and thus the said main "operating system" of which the vehicle manufacturer is the ultimate developer) or also about the software of the train components is part of the technical documentation. A further question relates to the licensing of the various fields of operation, i.e. the vehicle manufacturer's authority to grant further licences and the need for the keeper and then the operator to have these in order to operate and maintain the vehicle.

Need to define a reliable date for the start of operation of the observed GSM-R on line No. 9.

The installation of GSM-R radios in traction railway vehicles after renewal and upgrading (and in new ones) is an obligation originally deriving from the National ERTMS Implementation Plan. This obligation can also be interpreted from the CCS TSI.

Related to this is also the necessity of installing radiotelephones in the vehicles that will be operated on line No. 9 Warsaw - Gdańsk, where operation is to take place on the basis of digital communication only. If a carrier operates on or near this line, the installation of a GSM-R radio is essential. Fulfilling this obligation is quite expensive and often requires planning and budgeting in advance. To conclude - railway operators (and rolling stock owners) should know a reliable date for the start of observed operation on Line 9, which date should be set out in an official and formalised document that will be a reliable basis for deciding whether to purchase radios, start certification and obtain authorisation for such vehicles. Perhaps the new ERTMS CSC should be this document (possibly another supplement to the existing CSC)? Alternatively, there should be a dedicated act published in the Official Journal of the MI?

In addition to the above examples, it is also worth mentioning some additional bottlenecks, each of which lends itself to a separate publication: Rules for granting open access enforcing the necessity to "freeze" rolling stock and human assets pending an open access decision (let's assume it will be positive) and their "unfreezing" almost as soon as such a decision is obtained - on pain of revoking the open access decision. Perhaps it is acceptable for Polish carriers but extremely disadvantageous for foreign ones.

Introducing a legal basis for the development of light rail in Poland, defining the term 'local infrastructure' and a deeper reflection on the application of other exemptions from the Interoperability Directive. Such a reflection would certainly improve the investment process in the regions, which is what we are all about.
Resolving at regulatory level whether it is possible to locate and build railway sidings in a "railway area"? It seems logical and even obvious, however, the statutory definition itself makes it difficult for investors to build siding infrastructure in the railway area, which is supposedly reserved only for railway lines.

There is no mechanism in the Railway Transport Act for the "transition" of the safety certificate for railway sidings to a new entity when mergers or acquisitions take place. This exposes administrative penalties and, in view of the UTK's use of the concept of so-called "no-effect" infringements, every day without a certificate means an administrative penalty and the infringement itself cannot be remedied....

Perhaps the legal problems mentioned will prove to be an inspiration for discussions about changes to the regulations.