Certification of entities in charge of maintenance in Great Britain
This page summarises the approach to the certification of entities in charge of maintenance (ECM) in Great Britain, as a result of recent changes to European legislation, including possible scenarios in the event of a no-deal Brexit.
What is an entity in charge of maintenance?
An entity in charge of maintenance (ECM) is defined in the Railways and Other Guided Transport Systems (Safety) Regulations 2006 (as amended) (ROGS). The Office of Rail and Road (ORR) guide to ROGS describes an ECM as ‘any person or organisation that is responsible for the safe maintenance of a vehicle and is registered as an ECM in the national vehicle register. This can include people or organisations such as [railway] undertakings, infrastructure managers, a keeper or a maintenance organisation.’
What is happening now?
Under regulation 18A of ROGS an ECM must have a maintenance system in place to ensure that a vehicle for which is it responsible is safe to run on the mainline railway. Under the maintenance system, the vehicle is maintained in accordance with:
- the maintenance file for that vehicle;
- applicable maintenance rules; and
- applicable Technical Specifications for Interoperability.
If the vehicle is a freight wagon the ECM must obtain an ECM certificate from a certification body. In the UK, the following certification bodies have been accredited by the United Kingdom Accreditation Service (UKAS) to perform ECM certification:
- Network Rail Certification Body Ltd trading as Network Certification Body
- SGS United Kingdom Ltd; and
- TUV Rheinland Ltd
However, an ECM can apply to any certification body accredited in the EU. The European Union Agency for Railways (the Agency) maintains a list of certification bodies on the European Railway Agency Database of Interoperability and Safety. The requirements for a certification body to be accredited by UKAS are aligned with some of the requirements for Rail Industry Supplier Approval Bodies (RISAB) to be accredited by RSSB to carry out S01 or S04 assessments (see RISAS Briefing Note BN – 008) under the Railway Industry Supplier Approval Scheme (RISAS). Therefore, RISABs can issue RISAS certificates that are equivalent to ECM certificates. However, a UKAS-accredited certification body that does not hold RISAB accreditation currently cannot issue RISAS certificates.
European Commission Regulation (EU) 445/2011 (the current ECM Regulation) sets out the system of certification of ECMs in respect of freight wagons. The purpose of the system of certification is to provide evidence that an ECM has established its maintenance system and can meet the requirements to ensure the safe state of running of any freight wagon that it is responsible for. The maintenance system is composed of four functions:
- the management function, which supervises and coordinates the maintenance functions referred to in points (b) to (d) and ensures the safe state of the freight wagon in the railway system;
- the maintenance development function, which is responsible for the management of the maintenance documentation, including the configuration management, based on design and operational data as well as on performance and return on experience;
- the fleet maintenance management function, which manages the freight wagon’s removal for maintenance and its return to operation after maintenance; and
- the maintenance delivery function, which delivers the required technical maintenance of a freight wagon or parts of it, including the release to service documentation.
The ECM must ensure that these four functions comply with the requirements and assessment criteria set out in Annex III of the current ECM Regulation. It must carry out the management function itself but can outsource the maintenance functions (b to d), or parts of them, to its contractors. This is provided that the ECM retains responsibility for the outcome of the maintenance activities it manages and establishes a system to monitor performance of those activities.
A contractor that takes on responsibility for any of the maintenance functions (b to d) can voluntarily apply to a certification body for a maintenance function certificate to demonstrate that it meets the requirements for those activities. Accredited certification bodies can award maintenance function certificates under their accreditation. RISABs can issue RISAS certificates that are equivalent to maintenance function certificates.
When and what are the changes being made?
Commission Implementing Regulation (EU) 2019/779 (“the new ECM Regulation”) came into force on 16 June 2019. However, it does not apply until 16 June 2020, when the current ECM Regulation is repealed.
The new ECM Regulation sets out a system of certification for ECMs in respect of all vehicles. In addition, it sets out requirements that the ECM and manufacturers must meet regarding the management of safety-critical components. It also mandates the ECM to use the Safety Alert IT Tool (or another informatics tool provided by the Agency) for reporting poorly controlled safety risks to industry and the supply chain. Like the current ECM Regulation, the new ECM Regulation has provisions for the certification of outsourced maintenance functions.
Whereas the current ECM Regulation contains the requirements in relation to the maintenance system and the four functions, these are not in the new ECM Regulation. Instead, those requirements are in Article 14 of European Directive (EU) 2016/798 (the recast safety Directive), which will require transposition in the UK for them to take effect (see What about Brexit? below).
ECM certification is mandatory under the new ECM Regulation for an ECM which is either:
- responsible for the maintenance of freight wagons, or
- not a railway undertaking or an infrastructure manager maintaining vehicles exclusively for its own operations.
ECMs must meet the assessment criteria set out in Annex II of the new ECM Regulation to obtain ECM certification. However, railway undertakings and infrastructure managers can demonstrate their compliance with Annex II through safety certification or safety authorisation respectively.
All ECMs for vehicles that do not have equivalent attestations of conformity must comply with the new ECM Regulation by 16 June 2022. This is except for vehicles, excluding freight wagons, that are maintained by railway undertakings and infrastructure managers solely for their own purposes. This means that in the UK, any ECM that is not a railway undertaking or infrastructure manager maintaining vehicles exclusively for its own purpose will have until 16 June 2022 to obtain ECM certification under the new ECM Regulation if, on 16 June 2020, it does not have an ECM certificate under the current ECM Regulation.
What about Brexit?
The Rail Safety (Amendment etc.) (EU Exit) Regulations 2019 (the No-deal Safety Regulations) makes changes to ROGS in the event of the UK leaving the EU without a withdrawal agreement (a deal) in place. In a no-deal scenario, the No-deal Safety Regulations correct deficiencies that will arise in ROGS and EU tertiary legislation applicable in the UK as a result of the UK’s withdrawal from the EU, including those identified in the current ECM Regulation. The No-deal Safety Regulations will therefore revoke the current ECM Regulation on exit day but will substantially reproduce its content into ROGS. This includes Annexes IV and V, which will be set out in two new Schedules in a no-deal scenario - Schedules 9 and 10. This will have the effect of maintaining the current ECM Regulation.
The No-deal Safety Regulations will therefore preserve the status quo, so that in the event on a no-deal exit, the situation described above under What is happening now? will continue as present.
The UK government has notified the European Commission that it intends to transpose the Fourth Railway Package (which includes the recast safety Directive) by 16 June 2020. This means that if the UK leaves the EU with a deal in place and there is a transition period beyond this date, then the UK will be required to transpose the recast safety Directive, as the UK will still have the obligations of a full Member State. If the UK transposes the recast safety Directive by 16 June 2020, the requirements in the recast safety Directive and the new ECM Regulation will apply from that date.
RSSB will work with industry, the ORR and the Department for Transport to develop guidance on the practical application of the new ECM Regulation in Great Britain.