ERA-GUI-100.pdf - Europa

Guide for the application of the Art 14 (a) of the Safety Directive and Commission Regulation (EU) No 445/2011
on a system of certification of entities in charge of maintenance for freight wagons – VERSION 1.0
necessary to ensure the proper functioning of the internal market. In particular, the EU has adopted
two regulations, one dealing with the law applicable to contractual obligations and the other one
dealing with the law applicable to non-contractual obligations (See respectively Regulation (EC) No
593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to
contractual obligations (Rome I) and Regulation (EC) No 864/2007 of the European Parliament and
of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)).
These two regulations establish a set of binding rules of private international law which determine
which (national) law is applicable.
So EU Regulations applicable to ECM are “Without prejudice to civil liability in accordance with the
legal requirements of the Member States” (See Article 4(3) of the Safety Directive) or “without
prejudice to existing national and international liability rules” (See Article 7(4) of the Safety
Directive).
An ECM is liable to its contract partners (RU, IM, keepers, etc.) for breaches of contract (as
provided in the contract and in the law governing the contract) whereas it is liable for damages
caused to others than its contract partners (or to its contract partners but outside the scope of the
contract) under the national laws governing the damage and the resulting liability.
Court jurisdiction
Article 6(3) of the ECM Regulation provides that “Member States shall take the measures
necessary to ensure that decisions taken by the certification bodies are subject to judicial review”.
Article 7(5) of the same Regulation provides that “The certification body shall set out in detail the
reasons on which each of its decisions is based. The certification body shall notify its decision and
the reasons to the entity in charge of maintenance, together with an indication of the process, time
limit for appeal and the contact details of the appeal body”.
The “appeal body” referred to in the ECM Regulation is not a new body to be established by the
Member States but rather an existing judicial (or administrative) body within the Member State
where the certification body is established competent to hear appeal cases by applicants ECM
against decisions of such certification body.
9.8 When a new authorisation for placing into service is necessary?
New authorisation for placing in service of vehicle is not required when substituted parts are
compliant with references or specifications in the technical file.
For instance, in the case of the substitution of a wheel by another one complying with the
specification of the technical file, it would not be necessary to proceed to a new authorisation for
placing in service neither a communication to the NSA. It should only be necessary to have this
substitution recorded in the configuration file of the vehicle. This information is, of course, available
to NSAs upon request.
If the specification of the new parts impairs the design operating state, it is considered as a major
change of the technical design and possibly leads to a new authorisation for placing in service
according to the Interoperability Directive.
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