Case handler: Caspar Ebrecht Brussels,27 Jvne2013 Tel: (+32)(0)22861829 Case No: 73441 e-mail: [email protected] Event No: 676588

Gert Andre Madsen Gangarstien 38 N-4021

Dear Mr Madsen"

Subject: Complaint against Norway concerning new road tunnel project "Ryfast"

1 Background

On22 February 2013, the EFTA Surveillance Authority ("the Authority'') registered your complaint conceming the road tunnel project "R;rfast" in Western Norway. Essentially, you submit that the decision to build the new road tunnel project "Ryfast" is in conflict with EEA law and, in particular, with the provisions in Directive 20041541EC of the European Parliament and of the Council of 29 April 2004 on minimum safety requirements for tunnels in the Trans-European Road Network ("the Directive"). You submit that the proposed tunnel project is not in conformity with the provisions of the Directive, in particular with paragraph 2.2.2 of Annex I which foresees that longitudinal gradients above 5 per cent shall not be permitted in new tunnels, unless no other solution is geographically possible. Further, you claim that the risk involved in building tunnels with a longitudinal gradient exceeding 5%o, is not being compensated by other risk- reduction measures which provide at least an equivalent level of safety as that foreseen by the Directive.

The Ryfast tunnel project consists of two consecutive subsea tunnels, the Hundvaag tunnel (5.7 kilometres long, up to 96 metres below sea level) and the Solbakk tunnel (14.3 kilometres long and ap to 292 metres below sea level). Both tunnels are twin{ube tunnels with unidirectional traffic and two lanes each. These tunnels will supersede the current ferry connection between northern Jrren and Stavanger on one side and , the north/eastern part of County, on the other side.

According to information provided by the Norwegian authorities, a stretch of about 2.0 km of the Hundvaag tunnel has a longitudinal gradient of 5.9 to 6.0 per cent, while the gradient of the rest of the tunnel is less than 5 per cent. The ramps to and from the island of Buoy have a gradient of 7 .3 to 8 per cent. Furtherrnore, a stretch of about 1.5 km of the Solbakk tunnel has a longitudinal gradient of 7.9 per cent and another stretch of about 4.0 km has a longitudinal gradient of 7.2 per cent, while the remaining sections are less than 5 per cent.

Rue Belliard 35, B- 1040 Brussels, tel: (+32X0)2 286 l8 I I , fax: (+32)(0)2 286 18 00, www.eftasurv.int Page 2

According to the Norwegian authorities, the current route of the RV l3 between Stavanger in the south and Sognefiord in the north will be altered on the completion of the Ryfast project. This alteration will make the tunnels of the Ryfast project a part of the RV 13.

Having assessed your complaint, the Authority's lntemal Market Affairs Directorate ("the Directorate") takes the preliminary view that the decision at issue to build the new road tunnel does not conflict with EEA law. This assessment is based on the following considerations:

2 Relevant EEA law

Directive 20041541EC has been incorporated into Point l7i of Annex XIII to the Agreement on the European Economic Area.

According to Article l(2) of the Directive, the scope of the Directive is limited to "all tunnels in the trans-European road network with lengths of over 500 metres, whether they are in operation, under construction or at the design stage." Furthermore, the Directive stipulates in Article 3(1) that "Member States shall ensure that tunnels in their teruitory folling within the scope of this Directive meet the minimum safety requirements laid down in Annex 1'. Pursuant to Annex [, paragraph 2.2.2, "longitudinal gradients above 5 ok shall not be permitted in new tunnels, unless no other solution is geographically possible." Article 3(2) of the Directive foresees that "wltere certain structural requirements laid down in Annex I can only be satisfied through technical solutions which either cannot be achieved or can be achieved only at disproportionate cost, the administrative authority as referred to in Article 4 may accept the implementation of risk reduction meqsures as an alternative to application of those requirements, provided that the alternative measures will result in equivalent or improved protection."

3 Relevant national law

The Directive has been implemented into the Norwegian legal order by way of the national regulation on minimum safety requirements for certain road tunnels.l With regard to the scope of the national regulation, it foresees in $2(l): "The regulations are used in tunnels with a length of more than 500 metres on the trans-European road network (TERN) and on roads. other national -The regulations apply to tunnels that are in use, under construction or being designed."2

4 Assessment

Article 1(2) of the Directive foresees that the Directive shall apply to tunnels in the trans- European road network (TERN). The TERN is composed of the major communication routes by rail and road in Europe. The scope of the trans-European road network is defined by Annex I to Decision No 66ll20l0lEU on Union guidelines for the development of the trans-European transport network (recast), which is referred to at point 5 of Chapter II of Annex XIII to the Agreement on the European Economic Area.

' Forskrift om minimum sikkerhetskrav til visse vegtunneler (tunnelsikkerhetsforskriften), FOR-2007-05-15- 517. 2 Original text in Norwegian: "$ 2 Virkeomrdde: Forskrtften fdr anvendelse pd tunneler med lengde pd over 500 meter pd det transeuropeiske vegnettet (TERN) og pd andre rilcveger. Forskriften gjelder for htnneler som er i bruk, under bygging eller pd prosjekteringsstadiet." Page 3

Annex I to Decision66l/20I0lEU contains TERN maps for the EU Member States but no maps for the EEA EFTA States. However, the first TEN-T Guidelines of 1996 (as referred to in Decision No I692l96lEC on Community guidelines for the development of the trans- European transport network, as amended by Council Regulation (EC) No 179112006), include a map of the TERN network in the EEA. Furthermore, the European Commission's 2012 proposal for a Regulation on EU guidelines for the development of the TEN-T3 contains an Annex with a map for the EEA nnfe Statesa.

According to both these maps, the major roads, typically the "E(uropa)-roads", linking the bigger Norwegian cities and different parts of the country, form part of the TERN. In contrast, the RV 13 is a national (intra-Norwegran) road which, although of significant length in the context of the entire Norwegian road network, does not form part of the European road network and is therefore not included in the TERN.

Consequently, pursuant to Article l(2) of the Directive, the Directive does not apply to the tunnels in this project. Hence, there is no possibility for the Authority to intervene and to assess the questions you raise in your complaint, i.e. whether the tunnel as planned by the Norwegian authorities is in conformity with the requirements set forth in the Directive. The fact that the Norwegian national regulation implementing the Directive, in defining the scope of the regulation, goes beyond the requirements set by the Directive and foresees that it shall apply also to "other roads" (i.e. those that are not part of the TERN), does not alter this assessment, as the Norwegian authorities may choose to implement the same or stricter safety levels for road tunnels not being part of the TERN. According to Recital 25 of the Directive, Member States are even expressly encouraged to do so.

As the proposed tunnel project at issue, therefore, does not appear to conflict with EEA law, and in particular not with Directive 2004/54lEC, the Directorate intends to propose to the Authority to close the case. The Authority may, however, revert to the matter should any relevant developments occur in facts or in EEA law.

Before the Directorate makes such a proposal, you are invited to submit your observations on the above assessment and to present any new information by 26 July 201 2.

Yours sincerely, E /{rtr'""rW

Director Internal Market Affairs Directorate

3 cf. o cf.