S.L. 427.99 Art. 4Non-application of TSIs.

(1) The Technical Regulations Division may allow the applicant not to apply one or more TSIs or parts of them in the following cases:

(a) for a proposed new subsystem or part of it, for the renewal or upgrading of an existing subsystem or part of it, or for any element referred to in Regulation 1(2) which is at an advanced stage of development or which is the subject of a contract in the course of performance on the date of application of the TSI(s) concerned;

(b) where, following an accident or a natural disaster, the conditions for the rapid restoration of the network do not economically or technically allow for partial or total application of the relevant TSIs, in which case the non-application of the TSIs shall be limited to the period before the restoration of the network;

(c) for any proposed renewal, extension or upgrading of an existing subsystem or part of it, when the application of the TSI(s) concerned would compromise the economic viability of the project and/or the compatibility of the rail system in Malta, for example in relation to the loading gauge, track gauge, space between tracks or electrification voltage;

(d) for vehicles arriving from or going to third countries the track gauge of which is different from that of the main rail network within the Union;

(e) for a proposed new subsystem or for the proposed renewal or upgrading of an existing subsystem in Maltese territory when its rail network is separated or isolated by the sea or separated as a result of special geographical conditions from the rail network of the rest of the Union.

(2) In the case referred to in sub-regulation (1)(a), Malta shall communicate to the Commission, within one year of entry into force of each TSI, a list of projects that are taking place within its territory and which, in the view of the Technical Regulations Division, are at an advanced stage of development.

(3) In the cases referred to in sub-regulation (1)(a) and (b), the Technical Regulations Division shall communicate to the Commission its decision not to apply one or more TSIs or parts of them.

(4) In the cases referred to in sub-regulation (1) (a), (c), (d) and (e), the Technical Regulations Division shall submit to the Commission the request for non-application of the TSIs or parts of them, accompanied by a file containing the justification for the request, and specifying the alternative provisions that the Technical Regulations Division intends to apply instead of the TSIs. In the case referred to in sub-regulation (1)(e), the Commission shall analyse the request and decide whether or not to accept it on the basis of the completeness and coherence of the information contained in the file.

In the cases referred to in sub-regulation (1)(c) and (d), the Commission shall adopt its decision by means of implementing acts on the basis of such analysis. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 51(3) of Directive (EU) 2016/797. In the cases referred to in the third sub-paragraph of Article 21(6) of Directive (EU) 2016/797, the applicant shall submit the file to the Agency. The Agency shall consult the relevant safety authorities and give its final opinion to the Commission.

(5) Pending the decision of the Commission, the Technical Regulation Division may apply the alternative provisions referred to in sub-regulation (4) without delay.