SAFETY REGULATIONS AND STANDARDS FOR EUROPEAN RAILWAYS Final Report: Volume III Appendix 4 A Report for DG Energy

and Transport Prepared by NERA, Sedgwick Wharf, CERNA, FFE/TIFSA, IVE, Nomisma, RAND Europe/Kindunos, VTI, VTT, Marsh UK, UCL and LSE
February 2000 London

Project Team: Ian Jones, Stuart Holder, Michael Spackman, James Cameron (NERA) Adam Sedgwick (Sedgwick Wharf) Franois Lvque, Manuel Baritaud (CERNA) Joaquin Jimnez (FFE) Aurora Ruiz, Antonio Maestro (TIFSA) Bernd Seidel, Bernd Sewcyk, Thomas Witt (IVE) Marco Spinedi, Luigi Imperatrice, Antonio Gloria, Marco Esquilini (Nomisma) James P Kahan, Barbara van de Kerke (RAND Europe), John Stoop (KINDUNOS) Sven Fredn (VTI) Veli-Pekka Kallberg (VTT) Andy Brown (Marsh UK) Andrew Evans (UCL) Rob Baldwin (LSE)

National Economic Research Associates Economic Consultants 15 Stratford Place London W1N 9AF Tel: 0171 629 6787 Fax: 0171 493 5937 A Marsh & McLennan Company

Appendix 4. The First Questionnaire

APPENDIX 4.

THE FIRST QUESTIONNAIRE

Appendix 4. The First Questionnaire

SAFETY REGULATIONS AND STANDARDS FOR EUROPEAN RAILWAYS

FIRST QUESTIONNAIRE

27 APRIL 1999

Appendix 4. The First Questionnaire

CONTENTS
PAGE

Preface Completing the Questionnaire GLOSSARY [Now moved to the main text of the Final Report] PART 1: THE FORMAL STRUCTURE OF RAILWAY SAFETY REGULATION 1.1 Structure of the railway industry 1.2 Structure of responsibilities for railway safety 1.3 Structure of the regulations PART 2: HOW THE SAFETY REGULATION REGIME IS APPLIED 2.1 Design requirements 2.2 Acceptance procedures 2.3 External audit and inspection 2.4 Accident inquiry procedures 2.5 Enforcement 2.6 Liability rules 2.7 Insurance requirements PART 3: THE DECISION RULES AND PRINCIPLES ON WHICH THE REGULATIONS ARE BASED 3.1 The style and context of railway safety regulation 3.2 Safety regulation and the law 3.3 The measurement of safety 3.4 The nature of decision rules 3.5 The role of risk assessment PART 4: OVERALL ASSESSMENT

4 5 -

7 8 11

13 14 14 15 15 16 18

19 20 20 21 21 23

Appendix 4. The First Questionnaire

Preface The Commissions Specification requires this study to be carried out in two steps: 1) an overview of all EU Member States; 2) further investigation in seven nominated Member States and possibly others. This First Questionnaire relates to the first of these two steps. The Commission explicitly does not require a complete catalogue of the safety standards with which railways have to comply. However it wishes to know whether, how and to what extent railway safety regulation creates barriers to entry to railway operation and supply; or adds directly to costs (including the costs of interoperability between railway networks) to an excessive degree. The main focus is on the differences between Member States. The cost impact of safety regulation is likely to be fundamental. So too are questions of due process (transparency, certainty and equity of procedures), insofar as, where due process is observed, new entrants are unlikely to be disadvantaged, and cost implications are likely to be both apparent and open to challenge. There are several aspects of safety regulation which the study will not attempt to cover, such as: comparison of the safety performance of the different railways in the EU; the effect of safety regulation on safety performance. This study takes it given that the level of safety on railways in Member States is very high, whatever the regulatory regime; the implications of increased interoperation for safety; the interaction with safety regulation of financial support provided to the railway and financial constraints placed on it; the safety regulation regimes of other modes of transport.

They are all clearly important. It is because they are important, and complex, that they are beyond the scope of this study. Safety regulations which are general, and not specific to railways, are relevant only to the extent that they are considered to discriminate against railways relative to other activities, or appear to add excessively to the costs of interoperability. This First Questionnaire will be the main source of information for the Interim Report. Subsequent work will focus on a smaller number of Member States, examine particular aspects of railway safety regulation in more depth, and gather a wider range of viewpoints and experience.

Appendix 4. The First Questionnaire

Completing this Questionnaire In collecting information for this First Questionnaire, Project partners are encouraged to draw on any sources of information which they believe may be useful. The answers to this questionnaire are the responsibility of the Project partner. It is not intended that the questionnaire be sent as a whole to safety regulation or railway organisations, for them to complete. That said, it is recognised that it is unlikely that the Project partner will be able to answer every question unaided. It may well be sensible to send particular questions or sections to particular individuals or organisations for advice. This is for the Project partner to decide. In addition to the First Questionnaire, separate arrangements will be made by the core team to approach some equipment suppliers and some international operators. This Questionnaire contains both factual questions and subjective questions, which ask for judgement about what the facts imply. Any subjective judgements recorded in the replies to this Questionnaire will not be quoted in any attributable form to the railway industry or the Commission. Partners are thus encouraged to be frank, and to draw upon the personal opinions of those applying or affected by safety regulation, as well as upon the basic facts. At the same time, our reports to the DGVII will of course need to be based on hard evidence, so that examples to support any judgements will be most valuable. There are other questions which involve objective reports of the subjective judgments of others (e.g. 3.1.14). We regard these as important in their own right, but we shall be careful to distinguish opinion from established fact. The Questionnaire uses a few terms, such as class of safety requirements, to define concepts which are essential for a coherent structuring of the Questionnaire, but which do not have well established definitions. These terms are defined for the purposes of this study in the Glossary at the front of the Questionnaire (this has been moved to the preceding section of the Final Report) The purpose of the First Questionnaire is to obtain an overview of the main structure of railway safety regulation, Europe-wide. Therefore feel free to omit matters of detail. To provide some guidance on the length and coverage of the replies, please refer to the draft response for Great Britain, circulated earlier. Questions about the meaning of the Questionnaire should be addressed to Adam Sedgwick (Adam.Sedgwick@sedgwf.globalnet.co.uk; tel ++44.171.387.5088; fax ++44.171.387.5089), or, in Adams absence, to Michael Spackman or Stuart Holder at NERA, or Andrew Evans at University College London.1 Replies to the Questionnaire should be returned please by 21 May 1999 to James Cameron (James.Cameron@nera.com; fax ++44.171.495.3216), copied to Adam Sedgwick.

NERA: email: firstname.lastname@nera.com; tel: ++44.171.629.6787; fax: ++44.171.495.3216 Andrew Evans: email: aevans@transport.ucl.ac.uk; tel: ++44.171.391.1559; fax: ++44.171.391.1567

Appendix 4. The First Questionnaire

Information becoming available after that date should be sent as soon as possible, and not later than 4 June.

Appendix 4. The First Questionnaire

PART 1: THE FORMAL STRUCTURE OF RAILWAY SAFETY REGULATION

1.1 1.1.1 STRUCTURE OF THE RAILWAY INDUSTRY Please describe the structure of the mainline (see Glossary) railway industry (see Glossary) in the Member State: List the three largest mainline infrastructure operators by route kilometres, and (where different) by train kilometres. List any other infrastructure operators operating more than 5% of the network in terms either of route kilometres or train kilometres. List all train operators operating over 1% of total train kilometres on the mainline network, indicating the proportion of activity (e.g. % of train, passenger, or tonne kilometres) operated by each.

1.1.2

Please describe the main features of the railway sectors other than mainline (metros, light rail/ tramways, but excluding non-commercial, entertainment, or Heritage operations, and excluding railways serving industrial sites and entirely within the site being served). List any operators comparable in scale to the mainline network (i.e. with operations representing more than 5% of the mainline on any measure e.g. passenger kilometres, freight tonne kilometres, route kilometres). Otherwise indicate the total scale of the different sectors of non-mainline rail, together with the number of operators in each sector.

1.1.3

Please describe the present situation in the Member State on liberalising the industry. Please cover briefly (no more than one side of A4): Separation of infrastructure operations from train operation. Open access. Infrastructure operations or train operations currently being undertaken by an organisation new to the railway in the Member State e.g.

1.1.4

management buy-out; established railway operator from another Member State; established company in another sector of the economy.

Please describe any major changes (not covered under 1.1.3) to the structure of the industry in the last five years. Please summarise any changes to the above situation which are likely to occur in the next five years. Distinguish between changes where the decision is already taken, and changes which are likely but where the decision has not yet been taken.

1.1.5

Appendix 4. The First Questionnaire

1.2

STRUCTURE OF RESPONSIBILITIES FOR RAILWAY SAFETY

This Questionnaire is concerned both with self-regulation of safety by the railway operators and suppliers and with external regulation. Both self-regulation and external regulation should be covered in Sections 1.2.1 and 1.2.5. Sections 1.2.2 to 1.2.4 ask for more information on the external regulators (who may include operators regulating other operators). 1.2.1 Diagram(s) of main responsibilities

1.2.1.1 Please construct a table or diagram (or tables or diagrams) of the main bodies concerned with railway safety, including the track and train operators, regulatory bodies, relevant ministries and any other major contributors (such as insurance companies if relevant), showing how they relate to each other. 1.2.1.2 Please note any important differences applicable to railways other than mainline railways. 1.2.2 List of institutions providing external regulation of railway safety External regulation here means the imposition of safety requirements by one organisation, by legally enforceable means, on another legally distinct organisation. This normally includes the definition of requirements, some form of inspection, and enforcement where necessary (although these activities may be done by different organisations). Exclude from this definition of external regulation instances where railway operator X imposes conditions on supplier Y, by means of commercial contracts, to enable X to fulfil its own safety responsibilities. Include instances eg Sweden, where a competent authority A requires railway operator B to make contracts with supplier or other railway operator C, regulating the fulfilment of Cs safety obligations. In the latter case, explain the scope and requirements of such contracts under 1.2.3.4. 1.2.2.1 What institutions have responsibilities for external regulation of railway safety? 1.2.2.2 How has the structure of railway safety regulation changed materially in the last five years? 1.2.2.3 Please summarise any changes which are likely to occur in the next five years to the institutions with responsibilities for external regulation of railway safety. Distinguish between changes where the decision is already taken, and changes which are likely but where the decision has not yet been taken. 1.2.2.4 Please note any important differences applicable to railways other than mainline railways.

Appendix 4. The First Questionnaire

1.2.3

Description of institutions providing external regulation of railway safety Under this Section please provide a separate reply for each of the institutions listed in Section 1.2.2.

1.2.3.1 1.2.3.2

What is the name of the institution? What kind of institution is it, from the following list? a) An arm of government - e.g. Minister, central government department. b) A government agency, governed by its constitution but appointed by government and subject to government directives. c) A public company subject to commercial incentives (e.g. take-over, bankruptcy). d) A membership organisation (if so who are its members e.g. for a Trade Union: individual employees). e) Autonomous, subject only to general and specific law e.g. Courts of law. f) Other. (In this case please record its source of funding; its relationship to government; and the arrangements for appointing and dismissing its directing staff.) What is the source of the institutions formal powers to regulate safety?

1.2.3.3

1.2.3.4a With what broad areas of railway activity is the institution concerned, in terms of The aspect of railway operation: traffic operation; and/or rolling stock; and/or infrastructure provision; and/or other (please specify)

1.2.3.4b Do the directing staff of the institution collectively possess the bulk of the technical expertise and practical experience necessary for the informed exercise of the regulatory activities the institution undertakes? (Yes/No/For certain (specified) activities only) If No, or No for some activities, from where is the necessary expertise and experience obtained? eg Subordinate staff of the institution Committees of national or international standards institutions such as CENELEC What is the scale of activity of the institution, as measured by, for example:

1.2.3.5

1.2.4 1.2.4.1

Annual budget; Number of staff; Proportion of activity devoted to railway safety?

New entrants What responsibilities, if any, do existing railway operators have for the safety regulation of new entrants? 9

Appendix 4. The First Questionnaire

1.2.4.2

Do new entrants in any other respect face a regulatory regime which is different from that of existing operators? Table of safety functions against safety institutions.

1.2.5

1.2.5.1 The following Table lists thirteen functions of safety management and regulation. These correspond to the stages of a control cycle model of safety management. Each stage follows logically and chronologically from previous stages. Later stages feed back into earlier stages: for example, reporting on safety performance (stage 7) can lead to changes in any of stages 1 to 6. Some of the Table will represent in summary form the responses to Questions 1.2.2 to 1.2.4. However it also includes self-regulating roles within the railway operators, which should be included in the institutions covered by the Table. Each column A to F represents an organisation, or a class of organisation such as train operator where each member of the class has the same safety functions. Each institution described under 1.2.2 should be included in the table, and also the different classes of railway operator if not covered by 1.2.2. Please fill in boxes with Yes or No, or a numerical coding (defined by the Project partner), or a reference to a longer explanation if this is necessary. Please distinguish between cases where the organisation is controlling its own operations and where it is regulating those of another organisation. Safety functions and safety institutions
INSTITUTION: 1 Risk assessment (see Glossary) 2 Standard-setting (i.e. prescribing engineering and operational arrangements) 3 Acceptance of Safety Cases (i.e. proposals for organisational arrangements for safety) 4 Acceptance of new works, methods and equipment 5 Setting objectives for safety performance 6 Controlling operations 7 Reporting on safety performance 8 Auditing and/or inspection 9 Developing new safety measures 10 Providing advice 11 Investigating railway accidents A B C D E F

10

Appendix 4. The First Questionnaire

12 Recommending changes following accident investigations 13 Enforcement of the law

1.3 1.3.1

STRUCTURE OF THE REGULATIONS What are the classes of safety requirements (see Glossary) which apply to railways: a) as general safety requirements, not specific to railways? (Safety regulations which are general, and not specific to railways, are relevant only to the extent that they are considered to discriminate against railways relative to other activities, or appear to add excessively to the costs of interoperability); b) as safety requirements specific to railways? (The study is not concerned with requirements originating in contracts, nor in regulations designed to control monopoly. However requirements developed by the railway operators or suppliers themselves, to apply to their own activities, should be included in the Section.)

For each class: 1.3.2 1.3.3 What is the name of the class of requirements; or how is it otherwise described? Which organisation(s) in practice

1.3.4 1.3.5 1.3.6

formulates the precise terms of the requirement? e.g. a CENELEC drafting Committee is responsible for the decision to make the requirement mandatory? e.g. the Minister of Transport applies the requirements? e.g a manufacturer of trains has responsibilities for ensuring that it is being applied? e.g. the train operator

To what extent are the requirements determinate (see Glossary)? Do the requirements apply to organisations other than the one imposing the requirement? To which aspect(s) of railway operations do the requirements apply: traffic operation; and/or rolling stock; and/or infrastructure provision; and/or other (please specify)? Please note any important differences applicable to railways other than mainline railways.

1.3.7

To which stage(s) of the regulatory cycle do the requirements apply: design; and/or 11

Appendix 4. The First Questionnaire

1.3.8

acceptance; and/or audit and monitoring; and/or accident investigation, and/or law enforcement?

What is the source of authority of the requirements: legal force (specify the law or other legal source); or instruction internal to the organisation setting the requirement; or other (please specify)?

1.3.9

Please provide some key activity statistics to indicate the scale of the activity involved in this class of safety requirement, such as, for example:

Volume of documentation of these requirements in physical terms; Number of staff engaged in maintaining and updating these requirements; (for procedures) The number of times the procedure has been applied in a recent representative period; The average resources involved in each such application.

12

Appendix 4. The First Questionnaire

PART 2:
2.1

HOW THE SAFETY REGULATION REGIME IS APPLIED

DESIGN REQUIREMENTS

The following questions should be answered for each class of safety requirement (see Glossary) which applies to the design of the railway operation (equipment or organisation). 2.1.1 2.1.2 2.1.3 2.1.4 What is the name of the class of requirements, or how is it otherwise described? Is a complete and up-to-date version of these requirements publicly available? How does an operator or supplier obtain a statement of the requirements? Is there a certification procedure that the requirement has been fulfilled? Can compliance be achieved by showing that an alternative method can produce the same or better safety outcome?

Procedures for changing a requirement: 2.1.5 Does the organisation responsible for determining what these this class of requirements should be (as at 1.3.3 above) initiate changes to the requirements? If so, what are the organisations objectives in proposing changes? Does this organisation evaluate the requirements ex post - i.e. in the light of experience? If a party affected by a requirement proposes that the requirement should be changed, is it mandatory to consider the proposal? What have been the main changes to the requirements in the last five years? Is the process for changing a safety requirement documented?

2.1.6 2.1.7 2.1.8 2.1.9

Where the procedure is documented, please answer questions 2.1.10 to 2.1.15. If a requirement is changed: 2.1.10 Is the change subject to staged timetables (whether event driven or calendar driven)? 2.1.11 Does the process provide for relevant information being available to all parties? 2.1.12 Does it provide for the views of all affected parties to be heard? 2.1.13 Are decision criteria (see Glossary) specified? 2.1.14 Are reasons given for decisions? 2.1.15 Are decisions subject to independent appeal? 2.1.16 To what extent does the process of change provide for involvement of outsiders? What is the role of any outsiders? (Most standards-setting processes are operated by insiders - that is by railway operators. Outsiders, who include safety agencies, consumers and Trade Unions, either have or represent interests which may conflict with those of railway operators.

13

Appendix 4. The First Questionnaire

Consultants and professional bodies would count as outsiders only if they were nominated by an outsider organisation.) 2.1.17 Are any aspects of these requirements criticised by anyone for safeguarding safety inadequately, or imposing unjustifiable costs or delays, or creating barriers to competition? If so, please describe the critic(s) and the criticism(s). 2.1.18 What is your assessment of this class of regulation, in terms of its actual or potential impact on safety or on barriers to entry or on costs? 2.2 ACCEPTANCE PROCEDURES

The following questions should be answered for each acceptance procedure (as defined in the Glossary). 2.2.1 2.2.2 2.2.3 2.2.4 2.2.5 2.2.6 2.2.7 2.2.8 2.2.9 What is the name of the acceptance procedure, or how is it otherwise described? Which organisation imposes the procedure (as opposed to organisations which may operate the procedure), and under what powers? Which body has authority to accept applications for acceptance? What safety objectives does the procedure fulfil? (Exclude the formal certification of determinate conditions.) Is the procedure documented? Is the procedure subject to staged timetables (whether event driven or calendar driven)? Does the procedure provide for all relevant information to be available to all parties? Are the decision criteria (see Glossary) specified? Are reasons given for decisions?

2.2.10 Does the procedure provide for independent appeal against decisions? 2.2.11 Are any aspects of these requirements criticised by anyone for safeguarding safety inadequately, or imposing excessive costs or delays, or creating barriers to competition? If so, please describe the critic(s) and the criticism(s). 2.2.12 What is your assessment of this acceptance procedure, in terms of its actual or potential impact on safety or on barriers to entry or on costs? 2.3 2.3.1 2.3.2 2.3.3 EXTERNAL AUDIT AND INSPECTION Which organisations commission audits or inspections (i.e. decides that it should be undertaken, is responsible for its design, and takes delivery of the results)? What empowers the commissioning organisation to audit or inspect another organisation? What type(s) of organisation are subject to the audit or inspection?

14

Appendix 4. The First Questionnaire

2.3.4 2.3.5 2.3.6 2.3.7

What classes of safety requirement are audited or inspected? Is the frequency of audit or inspection specified in advance? Are audits or inspections conducted with or without advance notice? Are any aspects of these functions criticised by anyone for safeguarding safety inadequately, or imposing excessive costs or delays, or creating barriers to competition? If so, please describe the critic(s) and the criticism(s). What is your assessment of this auditing and inspection function, in terms of its actual or potential impact on safety or on barriers to entry or on costs? ACCIDENT INQUIRY PROCEDURES

2.3.8

2.4

The following questions should be answered for each procedure for the conduct of external inquiries into accidents. Do not include internal investigations by bodies into accidents arising in the course of their own activities. Where a particular body conducts inquiries into accidents under more than one procedure, and the procedures have materially different status, please provide answers for each procedure. 2.4.1 2.4.2 2.4.3 2.4.4 2.4.5 2.4.6 2.4.7 2.4.8 What is the name of the Accident Inquiry institution (and procedure, where relevant)? What types of accident does the institution investigate? What is the purpose of the Inquiry (e.g. fact finding, safety deficiency identification, safety enhancement recommendations, guilt-determination, etc)? Where there is discretion about which accidents should be subject to an inquiry, who makes the choice? Does the Inquiry (i.e. the formal hearing of evidence) take place in public? Is legal representation permitted? Is the report publicly available? Are any aspects of this inquiry process criticised by anyone for safeguarding safety inadequately, or imposing excessive costs or delays, or creating barriers to competition? If so, please describe the critic(s) and the criticism(s). What is your assessment of this inquiry function, in terms of its actual or potential impact on safety or on barriers to entry or on costs? ENFORCEMENT Administrative enforcement procedures and sanctions

2.4.9

2.5 2.5.1

Administrative in this context describes the legal authority of a safety regulator to require action by the operator without the need for court proceedings. Such actions might include, for example, the compulsory implementation of a safety measure, or the cessation of an operation.

15

Appendix 4. The First Questionnaire

For any administrative procedure or sanction available to the authorities responsible for enforcement (as defined in the Glossary): 2.5.1.1 What is the name of the administrative procedure or sanction? 2.5.1 2 What enforcement authority employs it? 2.5.1 3 What is the nature of the procedure or sanction? 2.5.1 4 How often is it applied to respect of railway operations (for example how often in the most recent complete 12 month period)? 2.5.2 Criminal proceedings

2.5.2.1 What is the frequency of criminal prosecutions for violations of railway safety regulations? (For example, number of proceedings in the last five years.) 2.5.2.2 Are criminal proceedings a last resort? If so, what procedures have to be exhausted first? 2.5.2.3 What is the pattern of penalties imposed? For example, number in each of the following categories in the last five years: Small fines (say no more than 10,000); Large fines; Imprisonment; Other (please specify). 2.5.3 Overview

2.5.3.1 Are the enforcement authorities mainly rule-governed, or do they mainly use discretion? in choosing the cases on which action is taken; in the modes of action taken? 2.5.3.2 If rule-governed, what are the main rule/rules? 2.5.3.3 Are any aspects of these enforcement processes criticised by anyone for safeguarding safety inadequately, or imposing excessive costs or delays, or creating barriers to competition? If so, please describe the critic(s) and the criticism(s). 2.5.3.4 What is your assessment of this enforcement function, in terms of its actual or potential impact on safety or on barriers to entry or on costs? 2.6 LIABILITY RULES

Please answer the following questions for the following categories of victim who may be injured in the course of railway operation: Employees; Passengers; Level crossing users; Trespassers; Others. 16

Appendix 4. The First Questionnaire

If materially different arrangements apply for different types of accident within these groups, please describe them 2.6.1 In determining liability, is the operators obligation to compensate victims one of: Absolute liability: liability whatever the circumstances of the accident and whoever caused it; Strict liability: liability only when the operator caused the accident, but whether or not the operator was negligent or otherwise at fault; Qualified liability: full liability unless the operator can show that he had taken appropriate precautions, or that the victims had contributed at least partially to the accident; Liability following fault: liability only where it can be shown that the operator was negligent or otherwise at fault (e.g. reckless); or Other: (please specify)?

(There may be cases, apparently of Absolute or Strict Liability, where the operator is able, legally and practically, to obtain recompense from parties controlling the factors leading to the accident for any compensation paid to victims. Such situations should be regarded for the purposes of this Questionnaire as Qualified liability.) 2.6.2 In the cases of Qualified liability or Liability following fault, what conditions need to be fulfilled to avoid or establish liability? Please set out the relevant legal tests - e.g. for negligence or other forms of fault. What rules or conventions determine the type of sanction: Criminal (with potential sanctions of fine or imprisonment); Civil (with the possibility of compensating parties or paying damages); Administrative (where enforcement steps such as licensing reviews or cessation of operations may be triggered by the accident, and which may be investigated without involvement of the courts); Contractual (where, for example under an insurance agreement, premia are liable to adjustment following an accident).

2.6.3

2.6.4

What of the following rules or conventions determine levels of compensation: Damages equivalent to loss; Damages subject to a ceiling which may be less than loss; Damages greater than loss (e.g. where a punitive element is involved); Other (please specify)?

2.6.5

Where operators liability for sanctions or compensation is limited, please state how this is done, by for example: Contractual terms such as standard Conditions of Carriage (which exclude liability or restrict its scope); Statute (where a law restricts liability or its extent); Administrative means (where enforcers have a policy of not imposing liability or sanctions).

17

Appendix 4. The First Questionnaire

Please note any important differences applicable to railways other than mainline railways. 2.6.6 Are any aspects of these liability procedures criticised by anyone for safeguarding safety inadequately, or imposing excessive costs or delays, or creating barriers to market entry? If so, please describe the critic(s) and the criticism(s). What is your assessment of this liability function, in terms of its actual or potential impact on safety or on barriers to entry or on costs? INSURANCE REQUIREMENTS

2.6.7

2.7

In many Member States it is a legal requirement for transport operators to have in place particular insurance cover. 2.7.1 2.7.2 What insurance requirements are obligatory for railway operators? arrangements involve private companies or state insurers? Who defines these insurance requirements? Do the

For each instance where insurance cover is required: 2.7.3 2.7.4 2.7.5 2.7.6 2.7.7 Are operators allowed to obtain this cover from competing insurance companies? Are operators allowed to self-insure? Do the requirements apply equally to all operators? Why are these requirements imposed? Do standard insurance policies cover operations across national boundaries. Does cross boundary activity trigger additional insurance costs - e.g. with respect to premiums or limitations on cover? Are any aspects of these insurance requirements criticised by anyone for safeguarding safety inadequately, or imposing excessive costs or delays, or creating barriers to competition? If so, please describe the critic(s) and the criticism(s). What is your assessment of this insurance function, in terms of its actual or potential impact on safety or on barriers to entry or on costs?

2.7.8

2.7.9

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Appendix 4. The First Questionnaire

PART 3: THE DECISION RULES AND PRINCIPLES ON WHICH THE REGULATIONS ARE BASED
3.1 THE STYLE AND CONTEXT OF RAILWAY SAFETY REGULATION

In responding to this Section please record where public statements and actual practice are substantially different. Where the dimensions are subjective, report the consensus of practitioners; or if views differ widely, note the differences. Please note any important differences applicable to railways other than mainline railways. 3.1.1 Is safety regulation separated from, or integrated with, the management of other factors? Examples of other factors are environmental; physical compatibility; other modes; commercial. This can operate at the national regulator level, where railway safety might be integrated with road safety or environmental issues; or at the company level in a self-regulating system, where instructions might cover commercial, engineering and safety issues. 3.1.2 3.1.3 3.1.5 Is safety regulation centralised, or devolved? Devolution could be to distinct bodies, or on a geographic basis, or both. Is safety regulation concentrated on any particular control stage? Intervention might be concentrated on particular stages as at 1.2.5 above Does safety regulation focus on design or on safety outcome? Design (i.e. the observable characteristics of the operation before any safety outcome) can apply to engineering or organisation. Safety outcome can be in terms of more or less serious incidents. Is enforcement punitive or co-operative? Regulation which intervenes little at the design and acceptance stages may be more likely to be punitive when infractions and serious accidents occur. But a punitive style can also reflect the degree of politicisation. Is enforcement applied mechanically, or it negotiated with wide discretion? Is safety regulation considered by practitioners to be light or heavy? Is safety regulation in practice mainly self-regulatory, or mainly externally imposed?

3.1.6

3.1.7 3.1.8 3.1.9

3.1.10 To what extent are trade-offs between safety and other factors overtly acknowledged? 3.1.11 How influential on safety policy is media opinion? Are there notable examples of media opinion either leading a decision or being overridden by expert advice? 3.1.12 How much weight is given in safety policy to reflecting the preferences of the mass of the population in their roles as passengers/taxpayers/staff, as opposed to the views of experts? 3.1.13 How much weight is given to due process, as opposed to decision making behind close doors and with no independent review?

19

Appendix 4. The First Questionnaire

3.1.14 Are there significantly differing bodies of opinion within practitioners or operators about whether or how the Member States approach to safety regulation is effective in promoting safety, and/or imposes barriers to entry or excessive costs? 3.1.15 How would you summarise the style of railway safety regulation in this Member State? 3.2 3.2.1 SAFETY REGULATION AND THE LAW Within the legal system are duties to provide safety expressed: in terms qualified by references to the costs of ensuring safety (as in the British duty to act so far as is reasonably practicable); or in absolute terms (so as to demand action irrespective of costs)? Where absolute terms are used, to what extent do the courts apply the principle of proportionality in deciding what is acceptable? THE MEASUREMENT OF SAFETY Like most other aspects of industry life, safety is unlikely to be well understood and controlled unless it is measured. To understand the style and scope of safety regulation the objectives and decision rules applied in regulating safety

3.2.2

3.3 3.3.1

it is desirable to document the ways in which safety is measured in each regulatory regime. The following questions recognise that safety can be measured in different ways and for different purposes within a given regulatory regime. 3.3.2 Please indicate whether the following quantitative ways of measuring safety (in the past, in terms of actual performance, or in the future, in terms of predictions or objectives) are used in the Member States regulatory regime for railways: Numbers of fatal and non-fatal injuries Numbers of accidents or incidents Value or cost in monetary terms Other

Include instances where such measures are expressed as rates (e.g. per year, per vehicle-kilometre, per unit of monetary value). A way of measuring safety would count as being used in a regulatory regime if it was used in objectives set by a regulatory body to other organisations it was used in decision rules for taking decisions relating to safety eg to change a design standard, or to prosecute an operator.

Other uses might exist.

20

Appendix 4. The First Questionnaire

For each instance, where a quantitative measurement of safety is used in the regulatory regime, please state how the measurement is used. This should relate to the features of the regulation regime identified in Part 2 above the main features of the measurement (eg categories of accident or victim included; weightings applied to different categories).

3.4

THE NATURE OF DECISION RULES

A safety decision rule refers to the logic underlying the decisions taken by a particular decision-taking body for a particular class of safety decision. It may or may not be explicit; and even where explicit, it may not be completely specified. Existence of a decision rule implies that the decisions are broadly consistent with each other and through time. A decision rule may however be stable and consistent, but not uniform (e.g. more demanding requirements may be consistently applied to newly built equipment than to existing equipment). A decision rule may or may not be quantitative. The dimensions of a decision rule might include, for example: a weighting for passenger safety relative to staff safety; an acknowledgement or rejection of costs as a factor to consider; a relative weight for accidents which will attract publicity. 3.4.1 3.4.2 For each class of railway safety regulation (as identified at 1.3 above), to what extent can decision rules, whether explicit or implicit, be identified? Is any decision rule criticised publicly by anyone for safeguarding safety inadequately, imposing excessive costs or delays, or creating barriers to competition? If so, please describe the critic(s) and the criticism(s). What is your view of the effect of any decision rule in this Member State on safety, barriers to entry or excessive costs? THE ROLE OF RISK ASSESSMENT Are there any general (statutory or administrative) requirements to use risk assessment (as defined in the Glossary) in the design of any railway safety regulations? For each class of safety regulations, to what extent are there decision procedures (to change or remove an existing requirement, or to introduce a new requirement, or to choose between alternative possible requirements) which specify the information to be provided to the decision making body? Where the information is specified, to what extent does it specify the risk being reduced? identify the group affected? estimate the risk reduction? consider incidental effects? 21

3.4.3

3.5 3.5.1

3.5.2

1. 3.5.3.1 3.5.3.2 3.5.3.3 3.5.3.4

Appendix 4. The First Questionnaire

3.5.3.5 3.5.3.6 3.5.3.7 3.5.3.8 3.5.3.9 3.5.4

document the means by which the risk reduction is achieved? consider alternatives to the proposal? estimate time and cost to implement the proposal? consider effects on other policy areas? quantify the implications of the proposal? Please provide some key activity statistics, such as

Number of statements of decision-support information, as at 3.5.2 above, which have been submitted in the last 5 years.

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Appendix 4. The First Questionnaire

PART 4: OVERALL ASSESSMENT

4.1 Does the safety regulatory regime, in your view, provide adequate assurance of safety? If not, please quote an example Does the safety regulatory regime, in your opinion, create any significant barriers to entry by potential new providers of railway services? If so, please quote an example. Are differences in safety regulatory regimes, in your opinion, a significant obstacle to interoperability

4.2

4.3

between mainline systems of the Member State and neighbouring States? between different railway systems within the Member State?

If so, please quote an example. 4.4 Does the safety regulatory regime, in your opinion, add excessively to

the cost of supply of rolling stock? the cost of supply or maintenance of other railway equipment or structures? the cost of operating train services?

If so, please quote an example of where this seems likely.

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