Commission Implementing Regulation (EU) 2021/1903 of 29 October 2021 amending Implementing Regulation (EU) 2018/764 on the fees and charges payable to the European Union Agency for Railways and their conditions of payment (Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2016/796 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Railways and repealing Regulation (EC) No 881/2004 (1), and in particular Article 80(1) thereof,

Whereas:

(1) Commission Implementing Regulation (EU) 2018/764 (2) sets out the fees and charges payable to the European Union Agency for Railways (‘the Agency’) for the performance of certain activities and the provision of other services referred to in Regulation (EU) 2016/796.

(2) While the larger part of costs generated by the activities of the Agency is covered by the EU budget, Article 80(2), first subparagraph of Regulation (EU) 2016/796 requires the Agency to levy fees and charges for the issuing of vehicle (type) authorisations, single safety certificates and European rail traffic management system (‘ERTMS’) approvals, as well as the provision of other services. Pursuant to Article 80(3) of Regulation (EU) 2016/796, the amount of the fees and charges is to be fixed at such a level as to ensure that the revenue in respect thereof is sufficient to cover the full cost of the tasks performed and services provided by the Agency.

(3) Pursuant to Article 10 of Implementing Regulation (EU) 2018/764, the Commission is to assess the regime for fees and charges once every financial year. This assessment is to be based on the Agency’s previous financial results assessment and its estimate of future expenditure and revenue. Based on the assessment of financial results and forecasts of the Agency, the Commission is to revise fees and charges, if necessary. The Commission is to review the Regulation with a view to the progressive introduction of fixed fees by 16 June 2022 at the latest.

(4) In 2018, when Implementing Regulation (EU) 2018/764 was adopted, there was a lack of reliable financial data since Agency had not yet started to process applications. Since 2019, the Agency’s annual reports referred to in Article 51(1), point (a) of Regulation (EU) 2016/796 establish that, in exercising its role as the Union authority responsible for the certification and authorisation tasks referred to in Articles 14, 20, 21 and 22 of Regulation (EU) 2016/796, the Agency experiences a significant and recurrent negative imbalance in its budget. This imbalance results from the insufficient level of fees and charges levied in accordance with Article 80(2) of Regulation (EU) 2016/796 to compensate the costs linked to the processing of applications and the provision of services.

(5) In order for the Agency to cover costs for processing applications, the Union budget had to partly cover these costs. Moreover, in order to balance its budget, the Agency had to severely reduce the activities other than those that are financed by fees and charges. According to the Agency’s yearly single programming documents, forecasting for 2021 and 2022 implies a similar financial situation in the future. A revision of the Agency’s fees and charges regime is therefore necessary.

(6) It appears necessary to increase the hourly rate, which is currently lower than the hourly cost incurred by the Agency in delivering decisions to applicants for authorisations, certificates and approvals. The rates defined in Implementing Regulation (EU) 2018/764 should be therefore revised to cover the annual cost incurred by the Agency for processing application and for rendering available the one-stop shop (‘OSS’) to all applicants addressing the Agency for European vehicle authorisations, single safety certificates and ERTMS project approvals.

(7) The Agency has been levying fees and charges exclusively at an hourly rate calculated on the basis of the time dedicated to deliver its decisions and provide its services. A fixed fees regime should be introduced to further reduce the administrative burden and to enhance the predictability of the envisaged cost per application for the benefit of all parties involved. Moreover, since 2019, the Agency has gained experience and established a sufficiently robust methodology for calculating average cost for processing individual applications. Fixed fees should therefore apply to the processing of applications concerning a vehicle or a series of vehicles considered to be in conformity with a previously authorised vehicle type pursuant to Article 25(1) of Directive (EU) 2016/797 of the European Parliament and of the Council (3).

(8) The free of charge OSS generates considerable maintenance and development costs. Fees should therefore also be paid for the use of OSS when the addressee of applications submitted to the OSS is the Agency. Fees should be paid by applicants on fixed rates, depending on the impact of applications on the OSS’s facility in terms of documents uploaded and stored, functionalities exploited and exchanges held as well as in proportion to the overall estimated cost of the relevant decision. Moreover, where the application for a conformity to vehicle type is submitted to the Agency, the fee for using the OSS should become an integral part of the overall fee for delivering vehicle authorisations subject to fixed fees.

(9) Fees and charges should reflect the specific situation of micro, small and medium-sized enterprises. A specific reduction should be therefore applied.

(10) All criteria and methodology for defining the level of fees and charges are based on the principle that the revenue in respect thereof should cover the full cost of the services provided, avoiding a deficit or a significant accumulation of surplus, in accordance with Article 80(3), first subparagraph of Regulation (EU) 2016/796.

(11) Experience in applying Implementing Regulation (EU) 2018/764 has shown that the conditions of payment of fees and charges should be modernised and adjusted to mitigate the risk of failure to pay by applicants whose financial ability is at risk and applicants established in third countries, against whom the Agency lacks adequate legal enforcement safeguards. It is appropriate that the Agency should invoice the payable amounts early in the application process, in order to reduce the risk of late payment or failure to pay. It shall grant online payment options.

(12) Since fees and charges largely reflect the Agency’s expenditure for staff and associated direct expenditure related to the activities referred to in Article 80(2) of Regulation (EU) 2016/796, the relevant amounts should be indexed by the Agency once every financial year to take into account the inflation rate and the annual update of the remuneration of the Agency’s staff, based on reliable data.

(13) The Agency’s should fully embrace cost efficiency and therefore, continuously attempt to improve processes applied to deliver the tasks imposed on it under Regulation (EU) 2016/796, and in particular match the scope of tasks and resources available. In doing so it should realise a truly Single European Rail Area and should take account of the EU rail policy goals for more sustainable and smart mobility as well as an innovative, safe, strong and fully interoperable rail sector.

(14) Implementing Regulation (EU) 2018/764 should therefore be amended accordingly.

(15) The measures provided for in this Regulation are in accordance with the opinion of the committee established by Article 51 of Directive (EU) 2016/797,

HAS ADOPTED THIS REGULATION:

Article 1

Implementing Regulation (EU) 2018/764 is amended as follows:

(1) in Article 1, paragraph 1 is replaced by the following: ‘1.   This Regulation lays down the fees and charges payable to the European Union Agency for Railways (‘the Agency’) for the processing of applications pursuant to Articles 14, 20, 21, and 22 of Regulation (EU) 2016/796, including for the use by an applicant of the one-stop shop (‘OSS’) provided for in Article 12 of that Regulation for the submission of applications to the Agency), and for the provision of other services in accordance with the objectives for which the Agency has been established. It also specifies the method to be used for calculating those fees and charges and conditions for payment.’;

Article 2

The text set out in the Annex to this Regulation is added as an Annex to Implementing Regulation (EU) 2018/764.

Article 3

In respect of applications submitted before the entry into force of this Regulation, Article 1, point (3) shall not apply.

Article 4

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 29 October 2021.

For the Commission The President Ursula VON DER LEYEN

(1) OJ L 138, 26.5.2016, p. 1.

(2) Commission Implementing Regulation (EU) 2018/764 of 2 May 2018 on the fees and charges payable to the European Union Agency for Railways and their conditions of payment (OJ L 129, 25.5.2018, p. 68).

(3) Directive (EU) 2016/797 of the European Parliament and of the Council of 11 May 2016 on the interoperability of the rail system within the European Union (OJ L 138, 26.5.2016, p. 44).

(4) Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).