# EUR-Lex - 52014PC0338 - EN

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# 52014PC0338

**Proposal for a COUNCIL DECISION establishing the position to be adopted by the Union at the 25th session of the OTIF Revision Committee as regards certain amendments to the Convention concerning International Carriage by Rail (COTIF) and to its Appendices /* COM/2014/0338 final - 2014/0172 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

The
proposed Council Decision has the objective to establish the position of the
European Union at the OTIF Revision Committee due to take place from 25 to 27
June 2014 as regards certain amendments to the Convention concerning
International Carriage by Rail (COTIF) as well as to its Appendices B (Uniform
Rules concerning the Contract of International Carriage of Goods by Rail –
CIM), D (Uniform Rules concerning Contracts of Use of Vehicles in International
Rail Traffic – CUV), E (Uniform Rules concerning the Contract of Use of
Infrastructure in International Rail Traffic – CUI), F (Uniform Rules
concerning the Validation of Technical Standards and the Adoption of Uniform
Technical Prescriptions applicable to Railway Material intended to be used in
International Traffic – APTU) and G (Uniform Rules concerning the Technical
Admission of Railway Material used in International Traffic – ATMF) which are
due to be decided upon by the said committee.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

The
amendments to Appendix G (ATMF) and to Appendix D (CUV) have been discussed at
several meetings of dedicated working groups within the Intergovernmental
Organsation for International Carriage by Rail (OTIF). Both the European
Commission and the European Railway Agency (ERA) have taken part actively in
all these meetings, together with a number of Member States. However, other
proposals have not been discussed at preparatory meeting within OTIF before
presenting them to the Revision Committee.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

The
 Union acceded to COTIF in July 2011 by virtue of Council Decision 2013/103/EU[1]. COTIF is a mixed agreement where both the
Union and all Member States having a railway network are contracting parties.
Annex III to the Decision establishes the internal arrangements for the
Council, the Member States and the Commission in proceedings under OTIF. In
matters of exclusive EU competence, the EU votes with the number of votes of
all Member States which are parties to COTIF. There are 26 EU Member States
that are also Member States of OTIF. However, 3 EU Member States have not
ratified COTIF 1999 while 3 EU Member States have not withdrawn their
declarations concerning the non-application of Appendices E (CUI) and F (APTU)
and 4 EU Member States have not withdrawn their declarations concerning the
non-application of Appendix G (ATMF) made when these Appendices were still
incompatible with EU law. As a result, these EU Member States cannot vote on
amendments which concern provisions they do not apply. OTIF has 46 active
Member States (membership of 2 other members has been suspended until
international rail traffic is restored).

In
accordance with Article 35 of Title VI of COTIF, once decided upon by the
Revision Committee, the amendments shall enter into force for all contracting
parties on the first day of the twelfth month following that during which the
Secretary General of OTIF has given notice of them to the contracting parties.
A contracting party may formulate an objection within the period of four months
from the day of the notification. In the case of objection by one-quarter of
the Contracting Parties, the modification shall not enter into force.

In
the contracting parties which have formulated objections against a decision
within the foreseen period, the application of the Appendix in question shall
be suspended, in its entirety, from the moment the decisions take effect, in so
far as it concerns traffic with and between those parties. However, in the case
of objection to the validation of a technical standard or to the adoption of a
uniform technical prescription, only that standard or prescription shall be
suspended in respect of traffic with and between the Member States from the
time the decisions take effect; the same shall apply in the case of a partial
objection.

Unless
a sufficient number of objections are raised by the parties, the amendments
concerned under this proposal are expected to enter into force on the twelfth
month following that during which the Secretary General of OTIF has given
notice of them to the contracting parties. As from that date, they will become
binding on the Union and the Member States, forming an integral part of the
Union acquis.

Article 38 of Title VII of COTIF
establishes that for the purposes of the exercise of the right to vote and the
right to object provided for in Article 35§2 and 35§4, the regional
organisation, in particular the European Union shall enjoy the number of votes equal
to those of its members which are also Member States of the Organisation.

The
proposal has been developed based on the provisions of the Council Decision on
EU accession to COTIF (Decision 2013/103/EU). The legal basis of the proposed
Council Decision is Article 91 TFEU in conjunction with Article 218(9) TFEU.

The
proposal for a Council Decision provides for in its Annex a detailed list of
the envisaged amendments, specifying which amendments can be accepted by the
Union as presented by the Secretary General and which amendments should be
rejected at this session of the Revision Committee as they require further
consideration and/or further measures to bring them in line with EU law. A
large number of the envisaged amendments are considered to be appropriate for
safe and reliable international rail transport, taking into account
technological progress, and can therefore be supported while some amendments
(in particular the ones regarding financing of OTIF or contracts of carriage of
goods) have no impact on EU law.

Where
the amendments adopted by the Revision Committee are not in accordance with the
Union's position established in the Annex to the draft Decision, the Union should formulate an objection following the procedure established in Article 35.4 of Title VI of COTIF in order to avoid such
amendment to enter into force.

2014/0172 (NLE)

Proposal for a

COUNCIL DECISION

establishing the position to be adopted by
the Union at the 25th session of the OTIF Revision Committee as regards certain
amendments to the Convention concerning International Carriage by Rail (COTIF)
and to its Appendices

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the
Treaty on the Functioning of the European Union, and in
particular Article 91 in conjunction with Article 218(9) thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1)       The Union acceded to the
Convention concerning International Carriage by Rail of 9 May 1980 as amended
by the Vilnius Protocol of 3 June 1999 (hereinafter referred to as the
"COTIF Convention", by virtue of Council Decision 2013/103/EU of 16
June 2011 on the signing and conclusion of the Agreement between the European
Union and the Intergovernmental Organisation for International Carriage by Rail
(OTIF) on the accession of the European Union to the said Convention[2].

(2)       All Member States, with
the exception of Cyprus and Malta, apply the COTIF Convention.

(3)       The Revision Committee set
up in accordance with Article 13.1(c) of the COTIF Convention, at its 25th
session due to take place from 25 to 27 June 2014, is expected to decide upon
certain amendments to the COTIF Convention as well as to its Appendices B
(Uniform Rules concerning the Contract of International Carriage of Goods by
Rail – CIM), D (Uniform Rules concerning Contracts of Use of Vehicles in
International Rail Traffic – CUV), E (Uniform Rules concerning the Contract of
Use of Infrastructure in International Rail Traffic – CUI), F (Uniform Rules
concerning the Validation of Technical Standards and the Adoption of Uniform
Technical Prescriptions applicable to Railway Material intended to be used in
International Traffic – APTU) and G (Uniform Rules concerning the Technical
Admission of Railway Material used in International Traffic – ATMF).

(4)       The amendments to the
COTIF Convention have the objective (a) to update the tasks of the Committee of
Technical Experts and a reference to the definition of “keeper” in line with EU
law and (b) to modify certain rules concerning the financing of OTIF, its
auditing and reporting as well as minor administrative changes.

(5)       The amendments to Appendix
B (CIM) aim at giving preference to the electronic form of the consignment note
and its accompanying documents and at clarifying certain provisions of the
contract of carriage.

(6)       The amendments to Appendix
D (CUV) presented by the Secretary General of OTIF have the objective to
clarify the roles of the keeper and the entity in charge of maintenance in the
contracts of use of vehicles in international rail traffic. France has presented a separate proposal concerning the liability for damage caused by a
vehicle.

(7)       The amendments to Appendix
G (ATMF) aim at updating the provisions concerning the technical admission of
railway material used in international traffic, clarifying the functions of and
relations between the Contracting State, the competent authority and the
assessing entity as well as harmonising terms in line with EU law.

(8)       The amendments to Appendix
F (APTU) aim at maintaining consistency with the revised Appendix G.

(9)       The amendments to Appendix
E (CUI) suggested by the CIT aim at extending the scope of the uniform rules
concerning the contract of use of infrastructure to domestic rail transport, at
creating a legal basis for general terms and conditions of use of railway
infrastructure and at extending the liability of the infrastructure manager for
damage or losses caused by the infrastructure.

(10)     The Secretary General of
OTIF also proposes editorial changes to replace the term “European Communities”
by “European Union” throughout the COTIF Convention and its Appendices.

(11)     Most of the proposed
amendments are in line with the law and with the strategic objectives of the
European Union, and should therefore be supported by the Union. Certain
amendments have no impact on EU law and don’t need a position to be agreed at
EU level. Finally, some amendments need more discussion within the European
Union and should be rejected at this meeting of the Revision Committee. Should
the latter amendments be approved without modification acceptable for the
Union, the Union should formulate an objection following the procedure
established in Article 35.4 of the COTIF Convention.

HAS ADOPTED THIS DECISION:

Article 1
Position of the European Union

1.         The position to be taken by the European Union at the 25th
session of the Revision Committee in the framework of the Convention concerning
International Carriage by Rail shall be in accordance with the Annex to this
Decision.

2.         Minor changes to the documents mentioned in the Annex to this
Decision may be agreed by the representatives of the Union in the Revision
Committee without further Decision of the Council.

Article 2

After its adoption, the Decision of the
Revision Committee shall be published in the Official Journal of the European
Union.

Article 3
Entry into force

This Decision shall enter into force on the day of its adoption.

Done at Brussels,

For
the Council

The
President

[1]               Council Decision of 16 June 2011 on the signing and
conclusion of the Agreement between the European Union and the
Intergovernmental Organisation for International Carriage by Rail on the
Accession of the European Union to the Convention concerning International
Carriage by Rail (COTIF) of 9 May 1980, as amended by the Vilnius Protocol of 3
June 1999, OJ L 51 of 23.2.2013, p. 1.

[2]               OJ L 51 of 23.2.2013, p.1.

ANNEX

to the proposal of the

Council Decision

establishing the position to be
adopted by the Union at the 25th session of the OTIF Revision Committee as
regards certain amendments to the Convention concerning International Carriage
by Rail (COTIF) and to its Appendices

1. 
Introduction

OTIF Secretariat General (SG) has convened
the 25th session of the Revision Committee (RC) of COTIF 99 in Berne on 25-27 June 2014.

The objective of this working document is to develop the EU coordinated position to be presented at the RC
meeting. The document was prepared by DG MOVE with the help of other Commission
services involved (TAXUD, SANCO, SJ, SG).

2. 
Referenced documents

Documents concerning the agenda items were
circulated to OTIF Member States on 25 April 2014 and are available on the
website of OTIF at the following link: http://otif.org/en/law/revision-committee/working-documents.html.

3. 
Comments on each agenda item

Item 1. Opening the meeting and establishing the quorum

Document:
none.

Competence:
shared.

Exercising
voting rights: not applicable.

Recommended coordinated position: none.

There shall be a quorum in the Revision
Committee when the majority of the Member States enjoying the right to vote are
represented there at the time of the vote. However, one has to take into
account Article 13 § 3 of the Convention that provides that Member States
having made a declaration concerning the non-application of one or more
Appendices do not have the right to vote concerning amendments to the given
Appendix.

The following Member States have not
withdrawn their declarations on the non-application of certain Appendices:

Pakistan, Russia (concerning CIV, RID, CUV,
CUI, APTU and ATMF), Georgia (concerning CUV, CUI, APTU and ATMF), the Czech
Republic, Norway, Slovakia, the United Kingdom (concerning CUI, APTU and ATMF),
France (concerning ATMF).

When discussing amendments to the relevant
Appendices, the number of Member States having made a declaration on the
non-application of the Appendix in question has to be deducted from the number
of active members of OTIF (46) to establish the quorum concerning the vote on
the Appendix in question.

In case of EU competence, the EU may vote for
all of its members having the right to vote, without regard to the physical
presence of those members at the vote; thus, the quorum may be different in
case of the EU representing its Member States and in case of EU Member States
voting for themselves.

Item 2. Election of chair and vice chair

Document:
none.

Competence:
shared.

Exercising
voting rights: MS.

Recommended coordinated position: none.

Item 3. Adoption of the agenda

Document:
CR 25/3.

Competence:
shared.

Exercising
voting rights: MS.

Recommended coordinated position: none.

Item 4. Partial revision of COTIF – Basic Convention

Documents:  CR 25/4, CR 25/4
Add. 1.

Competence:
shared.

Exercising
voting rights: MS.

Recommended coordinated position:

Amendments for Article 3 (International
cooperation) to be supported (editorial change to replace the reference to the
"European Communities" with a reference to the "European Union).

Amendments for Article 12 (Execution of
judgements. Attachment) to be supported as it amends the definition of
"keeper" in line with EU law.

Amendments for Article 20 (Committee of
Technical Experts) to be supported as they are necessary to update the Uniform
Rules APTU and ATMF in order to keep them in line with EU law.

Other amendments: no EU position necessary as
these amendments relate to financing of the organisation, auditing or include
administrative changes regarding the work programme, the annual report and the
lists of lines or services which have no impact on EU law.

Item 5. Partial Revision of Appendix B (CIM UR)

Documents: CR 25/5, CR
25/5 Add. 1, CR 25/5 Add. 2, CR 25/5.1.

Competence:
shared.

Exercising
voting rights: EU for Articles 6 and 6a; MS for other Articles.

Recommended coordinated position:

Amendments to Article 6 and new Article 6a
concern EU law because of the use of the consignment note and its accompanying
documents for customs and sanitary and phytosanitary (SPS) procedures. The EU
agrees with the intention of OTIF to give priority to the electronic form of
consignment notes. However, at present the adoption of these amendments may
lead to unintended consequences. The current simplified procedure for customs
transit by rail is only possible with paper documents. Therefore, if railways
opt for the electronic consignment note, they will have to use the standard transit
procedure and the New Computerised Transit System (NCTS). The Commission has
started preparations for a working group to discuss the use of electronic
transport documents for transit under the Union Customs Code. This working
group will have its kick-off meeting on 4-5 June 2014. The EU agrees also with
the intention to provide the accompanying documents in electronic format.
However, in the current EU law there is no legal basis to provide the documents
(e.g. Common Veterinary Entry Document, Common Entry Document) which have to
accompany SPS related goods in electronic format and therefore they need to be
provided in paper. The Commission has prepared a draft Regulation, which will
cater for electronic certification and the draft is currently under discussion
in Council and Parliament. That Regulation (Official Control Regulation) is
envisaged to be adopted by end of 2015/beginning of 2016, however, there will
be a transitional period for the enforcement.

Therefore, the EU suggests that no decision
is taken on these items at the present RC and that OTIF continue cooperation
with the EU on this issue in order to have a well-prepared solution for an
upcoming revision of CIM which should ideally be synchronised with the new UCC
and its implementing provisions which are to be in force on 1 May 2016. Certain
electronic procedures may be phased in between 2016 and 2020 in accordance with
Article 278 of the UCC.

Other amendments: no EU position necessary as
these provisions do not interfere with EU law.

Item 6 Electronic documents concerning the carriage of dangerous goods –
information on the work of the RID Committee of Experts

Document: CR 25/6.

Competence:
EU.

Exercising
voting rights: not applicable.

Recommended
coordinated position: to take note of the information.

Item 7. Partial revision of Appendix D (CUV UR)

Documents:
CR 25/7, CR 25/7 Add. 1, CR 25/7 Add. 2.

Competence:
shared.

Exercising
voting rights: EU.

Recommended EU position: amendments to
Articles 2 and 9 to be supported as they clarify the roles of the keeper and of
the entity in charge of maintenance in line with EU law. However, the proposed
amendment to Article 7 submitted by France concerning the liability of the
person who has provided the vehicle for use as a means of transport in case of
damage resulting from a defect of the vehicle needs further analysis as its
possible impact on other COTIF instruments, which may have also an effect on EU
legislation, could not have been assessed in sufficient detail. The Commission
also believes that EU Member States’ proposals that may have an impact on EU
law should be discussed within the EU before being submitted to OTIF.
Therefore, the EU is not in a position to support this amendment proposal at
this Revision Committee.

Item 8. Revision of Appendix G (ATMF UR)

Documents: CR 25/8, CR
25/8 Add. 1, CR 25/8 Add. 2.

Competence:
EU.

Exercising
voting rights: EU.

Recommended coordinated position: see Working
Document for COTIF-CTE7. The position will have to be updated taking into
account the results of the CTE meeting to be held in 4-5 June 2014.

Item 9. Partial revision of Appendix F (APTU UR)

Documents: Ref.: CR
25/9, CR 25/9 Add. 1.

Competence:
EU.

Exercising
voting rights: EU.

Recommended coordinated position: editorial
amendments to be supported.

Item 10. Mandate for the consolidation of the Explanatory Report

Document: CR 25/10.

Competence:
shared.

Exercising
voting rights: MS.

Recommended EU position: to be supported.

Item 11. Editorial amendments

Document: CR 25/11.

Competence:
shared.

Exercising
voting rights: EU.

Recommended coordinated position: to be
supported.

Item 12. Partial revision of Appendix E (CUI UR)

Document:
CR 25/12.

Competence:
EU.

Exercising
voting rights: EU.

Recommended coordinated position: amendments
to be rejected. These amendments suggested by CIT include the extension of the
scope of CUI to domestic operations, the introduction of contractually binding
General Terms and Conditions and the extension of the infrastructure manager's
liability for damage. They may deserve further consideration but as they have
not been discussed in any internal forum of OTIF before the Revision Committee,
their impact could not have been assessed in sufficient detail. It seems to be
immature to amend CUI (that is at present in line with EU law) at this RC
without proper preparation.

Item 13. Rules of Procedure for the Working Groups of the Revision
Committee concerning Appendices A, B, D and E

Document:
CR 25/13.

Competence:
shared.

Exercising
voting rights: EU.

Recommended coordinated position: to be
supported.

Item 14. Information on future work.

Document:
CR 25/14 (not available yet).

Competence:
shared.

Exercising
voting rights: not applicable.

Recommended coordinated position: tbd on the
spot.