RM: Where do you see the biggest gap from legal perspective that railway companies are neglecting?
Ondřej Kocourek, coLEGAL: In our experience, the main gaps are related to a lack of understanding and implementation of legislation, especially those related to safety and interoperability. It can be said that only the largest companies in the market monitor new legislation on a regular basis and are fully aware of the complexity of the scope of European and national legislation. For medium-sized and smaller companies, this often leads to non-compliance with standards and regulation.
Furthermore, the railway companies do the same mistakes as any other commercial subjects. Instead of preventing legal problems, they often deal with the consequences of the situation itself. There is then, of course, less room to do anything about it than if we could have eliminated or at least mitigated the problem at the start.
RM: In what cases and which companies turn to you for help in legal issues?
Ondřej Kocourek, coLEGAL: Our clients include passenger and freight carriers, rail vehicle manufacturers, infrastructure operators, logistics companies and certification bodies. For these entities we do not only deal with highly specialized issues related to railway law, but we also provide them with comprehensive legal support in common business-related areas, such as in relations with their business partners, contracts, acquisitions, dispute resolution, participation in public procurement, competition law issues, compliance and more.
The fact that we understand their business allows us to provide them with a much better service than anyone else could. What our clients appreciate about us is that we think about legal issues in the context of their business. Indeed, the most appropriate legal solution may often not be the most appropriate from a business perspective.
RM: Railways are getting more international every day. How complex did the legal issues become over the past years and what areas cause the biggest difficulties for companies from your point of view?
Ondřej Kocourek, coLEGAL: Recently, there has been more and more harmonisation of rail-related standards at EU level than ever before, with the aim of increasing interoperability and safety within the EU market. This development is naturally linked to a change in processes and the need to adapt to new conditions and regulation on the side of the companies. Recent examples include changes to the approval processes for railway vehicles, ECM, acquisition of single safety certificates, revision packages of TSIs, etc. A significant problem for railway undertakings are also the costs related to implementation of new technologies, such as ETCS or DAC. For many smaller carriers, these technologies represent major investments in their operations with huge uncertainty about future returns. On a purely personal level, I think that these technologies may result in the end of a number of smaller players in the market.
RM: The legal proceedings are many times preventable by risk mitigations. What measures in risk mitigation in railway transport do you recommend to your clients?
Ondřej Kocourek, coLEGAL: We have stumbled upon this topic in the first question. From a legal risk perspective, mediocre prevention will always be better than the best damage control. Therefore, we will always recommend to our clients the proactive approach, including regular compliance audits, monitoring legislative changes, thorough preparation of contracts and documentation, and educating employees about legal and safety regulations.
RM: Can you mention some very unique situations you had to solve in railway business during your career?
Ondřej Kocourek, coLEGAL: Well, most of the cases we deal with are unique. That is what makes our job so interesting. As attorneys, we have confidentiality obligations, so we can't be completely specific. But recently, there have been a few moments that have made us particularly happy. The first was when we provided our client with legal support that convinced the Ministry of Transportation of the need to amend the Railways Act, where this partial change could have a major impact on the market and implementation of ETCS in the Czech Republic. The second and third were cases where we supported our clients in relation to their newly developing technologies related to railway vehicles. If all goes well, we think that both of these technologies could be groundbreaking.