The railways are not only a sustainable and environmentally friendly means of transport. They are also one of the safest means of transport and, thanks to technological advances throughout their evolution, they have become safer and safer.
However, it is not possible to achieve a level of safety where every single risk is ruled out. The railways are obliged to do everything that is technically possible and reasonable in order to counter risks. In particular, when they are weighing up their business interests, they must not allow safety issues to take a back seat to profitability aspects.
In Germany, one cornerstone of operating safety is enshrined in Section 4(1) of the General Railways Act:
"Railway infrastructure and rolling stock must satisfy the requirements of public safety
in terms of their construction at the time of commissioning and
in terms of their operation."
This individual responsibility of the railway undertakings, which was statutorily codified by the structural reform of the railways in December 1993, takes into account the special technical complexity of the railways as a transport system. In addition to the railway companies, the manufacturers have also, since 30 June 2012, been subject to the responsibility codified in Section 4(1) of the General Railways Act. European law also provides for this. Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification was transposed into national law in Germany on 16 April 2007 by the General Railways (Amendment) Act and the Act on the Federal Railway Administration.
If railways in Germany are to be able to meet their statutory obligation, they must have a safety management system in place and/or employ highly skilled staff, namely operations and safety managers. The latter are responsible for safety management. Vis-à-vis the management board, they enjoy special statutorily enshrined rights to safeguard safety aspects where there is a potential conflict with commercial interests (Section 5 of the Regulations on Railway Operations and Safety Managers). They receive their licence after they have passed a special state examination (Regulations on the Examination of Railway Operations and Safety Managers). Their appointment as an operations and safety manager has to be confirmed by the competent regulatory authority. It can be revoked if the public interest is at risk.
The activities of the railway inspectorate include checking whether the railway undertakings are complying with their obligation to have a safety management system.
The Federal Railway Authority, as the rail regulatory authority for the federal railways and private railways without a registered office in Germany, performs the functions of the national safety authority required by European law. The federal states are responsible for the regulation of the other private railways.
If, as part of the random checks it carries out in its capacity as a rail regulator or within the scope of accident investigations conducted by the National Investigation Body, the Federal Railway Authority becomes aware that an undertaking is inadequately meeting its operational responsibility, it will intervene.
Court judgments on the obligation to ensure traffic safety
Judgments issued by the Federal Court of Justice on the obligation to ensure traffic safety are of great importance when assessing safety issues. The operation of railway services by a railway undertaking, by its very nature, creates significant risks. This imposes on the undertaking an obligation to do everything that is technically possible and reasonable in order to counter these risks. However, it is not possible to achieve a level of safety where every single risk is ruled out. Consequently, undertakings do not have to, indeed cannot, take precautions for all possible scenarios. A potential risk that has actually materialized in an incident or accident does not constitute grounds for liability unless an expert, looking ahead, should have reached a professional judgment that there was a not only theoretical possibility of the legal interests of others being harmed. Railway operators must therefore take those safety precautions that, based on the state of the art and as wise, prudent, cautious and conscientious railway experts, they can consider to be sufficient to protect other persons against harm and are reasonable under the circumstances.
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