EN Official Journal of the European Union L 149/3

COMMISSION IMPLEMENTING REGULATION (EU) 2018/867

of 13 June 2018

laying down the rules of procedure of the Board(s) of Appeal of the European Union Agency for Railways

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2016/796 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Railways and repealing Regulation (EC) No 881/2004 (1), and in particular Article 55(5),

Whereas:

(1) Regulation (EU) 2016/796 empowers the Management Board of the European Union Agency for Railways (‘the Agency’) to establish one or more Boards of Appeal which are to be in charge of the appeals and arbitration procedures referred to in Articles 58 and 61 of that Regulation.

(2) As Regulation (EU) 2016/796 lays down only essential principles on the processing of appeals, rules of procedure of the Board of Appeal including the voting rules, the procedures for filing an appeal and the conditions for the reimbursement of expenses of their members need to be established. On a proposal made by the Agency, and after consulting the Agency's Management Board, the Commission should establish the rules of procedure of the Board of Appeal.

(3) At least one Board of Appeal should be established as a permanent body by the Agency's Management Board, to ensure consistency and coherence in decision-making and to reduce the administrative workload and time-consuming appointment of members each time there is an appeal or arbitration request and to draw on the individual and collective expertise of its members.

(4) The Agency's Management Board may establish the Board(s) of Appeal with three or five members and the respective number of alternates, in accordance with Article 55(4) of Regulation (EU) 2016/796.

(5) To ensure that the Board of Appeal can operate smoothly and efficiently, one of the members should be appointed as the Chairperson of the Board of Appeal. It is essential that the Chairperson ensures the quality and consistency of the decisions of the Board of Appeal.

(6) The Board of Appeal should also be assisted in the exercise of its duties by a Registrar and Rapporteur. Their appointment, roles and tasks should be clearly determined. A rapporteur should be designated for each proceeding and the services of the Registrar should be shared by all Boards of Appeal.

(7) The possibility to have specific administrative guidance issued by the Board of Appeal should be envisaged to complement these rules of procedure with practical arrangements.

(8) The measures provided for in this Regulation are in accordance with the opinion of the Committee referred to in Article 81(1) of Regulation (EU) 2016/796,

HAS ADOPTED THIS REGULATION:

CHAPTER I

ESTABLISHMENT AND ORGANISATION

Article 1

Establishment

1. The rules laid down in this Regulation for the Board of Appeal shall apply to each Board of Appeal established by decision of the Management Board of the Agency. All such Boards are collectively referred to hereafter as ‘the Board of Appeal’.

2. To ensure delivery of findings within the prescribed deadlines, quality and consistency of jurisprudence, one Board of Appeal established in accordance with Article 55 of Regulation (EU) 2016/796 shall be permanent.

Article 2

Members

1. The Chairperson, other members and alternates that constitute a Board of Appeal are hereafter referred to as its ‘members’ if not otherwise indicated.

2. The term of office of all members shall start and end on the dates fixed in the appointment decision. The date fixed may be considered in relation to a function or ending of proceedings. In accordance with Article 56(1) of Regulation (EU) 2016/796 the term of office of a member of a Board of Appeal shall not exceed 4 years and can be renewed once.

3. Technical, legal and procedural expertise and/or experience shall be ensured in each Board of Appeal established.

Article 3

Replacement

1. Any member of a Board of Appeal who is or risks becoming unavailable to execute their function shall inform the Chairperson thereof, without undue delay.

2. In cases where the Chairperson is unavailable, the Board of Appeal shall decide which of its remaining members shall act as Chairperson.

3. The Chairperson shall appoint one of the alternates as member.

4. Appointments for replacement referred to in paragraph 2 and 3 shall last as long as the replaced member or Chairperson remains prevented from acting and at least until the end of any open appeal or arbitration proceeding.

5. Should unavailability become permanent or last longer than 12 months the Agency's Management Board shall appoint a new member or Chairperson as well as alternate, as appropriate.

Article 4

Role of the Chairperson

1. The Chairperson of a Board of Appeal shall preside over the appeal and arbitration proceedings.

2. The Chairperson shall ensure the quality and consistency of decisions by a Board of Appeal.

3. The Chairperson shall designate a rapporteur from among the members of the Board of Appeal for each proceeding.

4. The Chairperson together with the Registrar shall ensure the proper implementation of the rules of procedure laid down by this Regulation.

5. In case the Agency's Management Board has appointed more than one Board of Appeal, their Chairpersons shall collectively establish a methodology for the distribution of proceedings and inform the Registrar thereof.

Article 5

Role of the Rapporteur

1. The rapporteur shall carry out a preliminary examination of the appeal and present the results of that examination to the other members of the Board of Appeal.

2. The rapporteur shall prepare a draft of the findings of the Board of Appeal.

Article 6

Seat of the Board of Appeal

The seat of the Board of Appeal shall be at the seat of the Agency.

Article 7

The Registrar

1. The Board of Appeal shall be assisted in the exercise of its duties by one Registrar.

2. The Registrar shall:

(a) register all proceedings with a number and inform the Board of Appeal and all parties thereof;

(b) be responsible for the receipt, transmission and safe storage of all documents relevant to appeal and arbitration proceedings, for communicating with the parties, and for any other administrative tasks relating to the proceedings;

(c) inform the parties of the member composition that will hear the case, and of any changes to that composition without undue delay;

(d) inform the parties to the appeal about their right to object in accordance with Article 57(3) of Regulation (EU) 2016/796 to a member participating in the appeal procedure;

(e) ensure that an announcement of the appeal is published on the Agency's website, indicating at least the date of registration, the names and contacts of the parties, the language of proceedings and the contested decision;

(f) check that all time-limits and other formal conditions for filing appeals are respected and notify the Board of Appeal thereof;

(g) keep the minutes of the hearings, the examination of witnesses or experts and the deliberations of the Board of Appeal;

(h) keep an archive of all decisions on appeal and arbitration proceedings issued by the Board of Appeal;

(i) include the requests and the findings of the Board of Appeal in the information and communications system referred to in Article 12 of Regulation (EU) 2016/796 (‘one-stop-shop’).

Article 8

Appointment and responsibilities of the Registrar

1. The Registrar shall be appointed from among the Agency staff by the Board of Appeal on a proposal by the Agency. In case of more than one Board of Appeal by consensus.

2. The Registrar may not participate in any tasks or proceedings of the Agency relating to decisions which may be the subject of appeals under Article 60 of Regulation (EU) 2016/796.

3. The Registrar shall exercise its duties under the supervision and instructions of the Chairperson of the Board of Appeal.

4. The Registrar may be assisted by staff to which this Article shall also apply.

CHAPTER II

APPEAL

Article 9

Filing and notification of an Appeal

1. An appeal shall be filed with the Board of Appeal through the Registrar in the electronic format provided for appeals within 2 months of the dates referred to in Article 59(2) of Regulation (EU) 2016/796.

2. The Appeal shall contain, as applicable:

(a) the name and address of the appellant;

(b) where the appellant has appointed a representative, the name and address of the representative of the appellant;

(c) an address for receiving mail in electronic format;

(d) where the appellant is a legal person, it shall provide the Registrar with the instrument or instruments constituting and regulating that legal person or a recent extract from the register of companies, firms or associations or any other proof of its existence in law;

(e) the reference to the decision which is being contested and the remedy sought by the appellant;

(f) the arguments relied on;

(g) where appropriate, the nature of any evidence in support and a statement explaining the facts for which the evidence is offered in support;

(h) where appropriate, an application for confidential treatment of documents or parts thereof;

(i) where the appellant is not the person to which the contested decision has been addressed, the reasons for being directly or indirectly concerned by the decision and evidence as to the date her/he first got knowledge of the decision.

3. If the appeal does not contain the information listed in paragraph 2, the Registrar shall prescribe a period of not more than 10 working days within which the appellant has to deliver. The Registrar shall fix such period only once. During that period, time shall not run for the purposes of calculating the time-limit set out in Articles 58 and 62 of Regulation (EU) 2016/796.

4. The Registrar shall notify the appeal to the Board of Appeal, the Agency and any other identifiable party involved within 1 working day from filling of the appeal.

Article 10

Confidentiality

1. Any application for confidential treatment shall identify the words, particulars, figures or passages for which confidentiality is claimed and state the specific reasons. Failure to provide such information may result in the application being rejected by the Board of Appeal.

2. The Chairperson shall decide whether information indicated in an application pursuant to Article 9(2)(h) is to be regarded as confidential and shall ensure that any information which is regarded as confidential is not published.

Article 11

Inadmissibility of the appeal

The Board of Appeal may rule an appeal inadmissible on the basis of one or more of the following grounds:

(a) the appeal fails to meet the formal requirements set out in Article 9;

(b) the appellant has exceeded the time-limit for lodging an appeal;

(c) the appeal is not brought against a decision subject to appeal;

(d) the appellant is neither an addressee of the decision challenged by the appeal nor able to demonstrate a direct and individual concern.

Article 12

Conflict of interest

1. After an appeal has been filed with the Board of Appeal, each member that identifies a potential conflict of interest shall make a reasoned declaration in accordance with Article 57(2) of Regulation (EU) 2016/796, and submit it to the Chairperson.

2. Parties to the appeal shall be informed of each declaration without undue delay.

3. An objection by a party to the appeal shall be admissible if it is made within 10 working days from the date on which the party raising the objection obtained knowledge of the facts giving rise to the objection.

4. The member concerned shall be notified of the objection and shall be invited to respond to the Chairperson within 5 working days of receipt of the notification.

5. The Board of Appeal shall without undue delay decide on the exclusion of the member concerned in accordance with Article 57(2) of Regulation (EU) 2016/796 from the proceedings. The member concerned shall abstain from that decision.

6. The exclusion of the member concerned is temporary and shall apply to the appeal or arbitration proceedings with regard to which the objection was raised. Replacement of the excluded member or Chairperson shall be ensured in accordance with Article 3.

Article 13

Interlocutory revision procedure

1. In accordance with Article 60 of Regulation (EU) 2016/796 any appeal against a decision taken by the Agency pursuant to Articles 14, 20, 21 and 22 of Regulation (EU) 2016/796 or a failure of the Agency to act within the applicable time limits shall be subject to interlocutory revision before being put to the Board of Appeal for examination.

2. Upon filling of the appeal, the Agency shall have 1 month to take one of the following actions:

(a) rectify the decision or failure to act;

(b) confirm the contested decision and provide reasons;

(c) assert that the interlocutory revision does not apply in accordance with Article 60(1) second sentence of Regulation (EU) 2016/796, and give reasons;

(d) provide reasons for which it considers the appeal inadmissible.

3. In all cases mentioned above the Agency shall inform the Registrar of its action and provide all necessary supporting documents, as appropriate.

4. In the case referred to in point (a) of paragraph 2, the Agency shall issue its decision and the Registrar shall close the appeal procedure and inform all the parties to the proceedings thereof.

5. In the cases referred to in points (b), (c) and (d) of paragraph 2, the Registrar shall notify the appellant and refer the proceedings to the Board of Appeal for examination.

6. Within 10 working days of the day of notification of the referral, the appellant may withdraw its appeal.

7. The date of the referral for examination to the Board of Appeal shall be considered the date of filing relevant for the purposes of calculating the time-limit set out in Articles 58 and 62 of Regulation (EU) 2016/796.

8. In case of referral the Agency may decide to suspend the application of the decision under appeal.

Article 14

Statement of Defence

1. The Agency shall submit a statement of defence within 1 month following the date of notification of the appeal.

2. In cases where the interlocutory revision in Article 13 is applicable, a statement of defence may be submitted for points 2(c) and (d). The reasons provided in point (b) shall act as a statement of defence.

3. The statement of defence shall contain reasons and provide all supporting documents.

4. Where the Agency fails to submit a statement of defence the proceedings shall continue without it.

Article 15

Intervention

1. The Board of Appeal may grant any person demonstrating a legitimate interest in the result of the proceedings, the right to intervene in the proceedings before it.

2. An application to intervene shall be submitted within 10 working days following the publication of the announcement of the appeal on the website of the Agency.

3. The application to intervene shall be notified to the parties to give them the opportunity to make any observations they consider necessary before the Board of Appeal delivers its decision on the intervention.

4. The intervention shall support or oppose in whole or in part the remedy sought by one of the parties. The intervention shall not confer the same procedural rights as those already conferred on the parties.

Article 16

Content of the application to intervene

1. The application to intervene shall contain:

(a) the name and address of the intervener;

(b) the name and the address of the representative of the intervener, if applicable;

(c) an address for service, if different from that under points (a) and (b);

(d) reference to the proceedings for which the application is submitted;

(e) a statement in support of or opposing, in whole or in part, the remedy sought by one of the parties;

(f) the pleas and the arguments of fact and law relied on;

(g) the relevant supporting evidence, where appropriate.

2. After the intervention has been submitted, the Chairperson shall prescribe a time-limit of a maximum of 10 working days within which the parties may reply to the intervention.

Article 17

Request for Suspension

1. The Board of Appeal may grant a suspension of the contested decision where appellants have demonstrated that there is urgent need to grant a suspension for the preservation of their rights and interests due to a risk of serious and irreparable damage to those rights and interests.

2. The Chairperson may invite the opposing party to submit written observations on the request.

Article 18

Stay of Proceedings

1. The Board of Appeal may order a stay of proceedings by agreement of all parties involved in the appeal for a maximum period of 10 working days.

2. The order shall state the duration of stay and the reasons for it.

3. While proceedings are stayed all procedural time-limits shall be suspended.

CHAPTER III

ARBITRATION

Article 19

Request for Arbitration

1. A request for arbitration in accordance with Article 61 of Regulation (EU) 2016/796 may be filed by the national safety authority or authorities concerned.

2. It shall be filed with the Registrar which shall notify the Agency and the Board of Appeal thereof within 1 working day.

Article 20

Request for ERTMS Arbitration

1. The Agency shall notify the Registrar of a coordination process in accordance with Article 30(2) of Regulation (EU) 2016/796, and of the parties and deadlines involved.

2. In the absence of a mutually acceptable solution after 1 month of coordination the Registrar shall refer the proceedings to the Board of Appeal for arbitration, and inform the parties involved thereof.

Article 21

Procedure for Arbitration

1. The Board of Appeal shall have 1 month to decide whether to uphold the Agency's position.

2. Any appropriate provision in Chapter II applies mutatis mutandis.

Article 22

Decision of the Board of Appeal

The decision of the Board of Appeal shall contain at least the following elements:

(a) the names of the parties and of their representatives, if applicable;

(b) a summary of the disputed facts and issues;

(c) the respective positions and arguments of the parties;

(d) an analysis of the findings;

(e) operative part containing the decision;

CHAPTER IV

COMMON PROCEDURAL REQUIREMENTS

SECTION 1

Language

Article 23

Language of the proceedings

1. If the appellant is the addressee of the decision under appeal, the appeal shall be filed in the language of the procedure leading to the decision under appeal.

2. If the appellant is not the addressee of the decision under appeal, the appeal may be filed in any of the official languages of the Union.

3. The request for arbitration may be filed in any of the official languages of the Union. The arbitration proceedings shall be carried out in the language of the National Safety Authority involved.

4. The language referred to in paragraph 1, 2 and 3 shall be the language of the appeal or arbitration proceedings. It shall be used in the written and oral proceedings and in all communications with the parties.

5. All technical and supporting documents annexed to the appeal, arbitration request or the defence shall be submitted in the language of the proceedings.

6. The findings of the Board of Appeal shall be made in the language of the proceedings.

7. The interveners shall use the language of the proceedings.

8. For the purposes of efficiency and cost reduction the Board of Appeal may derogate from the above mentioned paragraphs for written and oral proceedings or parts thereof, including individual documents and/or oral interventions, provided that all the parties agree to reach an alternative agreement. Upon request the Board of Appeal shall take record of such an agreement and any conditions on which it might be based.

Article 24

Translation

1. All expenses relating to the translation of annexed technical and other supporting documents into the language of proceedings shall be borne by the party submitting the document.

2. Translation and interpretation requested by the Board of Appeal shall be kept to the minimum and the costs borne by the Agency.

3. In case of translation the party concerned shall provide a certified translation.

SECTION 2

The Procedure

Article 25

Procedural measures

1. Procedural measures may be ordered by the Chairperson at any time during the procedure, with or without request by the parties.

2. Measures referred to in paragraph 1 may include, in particular:

(a) interviewing parties, witnesses or experts and any other person holding information decisive for the proceedings;

(b) requesting written and oral submissions on decisive aspects of the proceedings;

(c) requesting submission of documentation;

(d) commissioning of an expert's report;

(e) inspections and audits decisive for the proceedings.

Article 26

Extension of time limits in exceptional circumstances

In exceptional circumstances where the party concerned proves the existence of abnormal and unforeseeable circumstances which were outside their control and the consequences of which could not have been avoided in spite of the exercise of all due care, the Board of Appeal may adapt any time limit prescribed pursuant to this Regulation, while ensuring equally balanced rights of all parties to the proceedings.

Article 27

Documents submitted to launch the proceedings or for further evidence

1. For the purpose of calculating time-limits, a document shall only be considered to have been submitted when it is received by the Registrar, who must acknowledge receipt of the document.

2. Documents shall indicate the appeal or arbitration proceeding number which was allocated by the Registrar when the appeal or arbitration was first submitted.

3. The maximum number of pages for procedural documents shall be as follows:

(a) 20 pages for the appeal and the defence; and

(b) 10 pages for each intervention.

The page limits do not apply to the annexes in the procedural documents.

4. Authorisation to exceed the maximum lengths referred to in paragraph 3 shall be granted by the Registrar in agreement with the Chairperson and only in proceedings involving particularly complex factual issues.

Article 28

Deliberations

The deliberations of the Board of Appeal shall be confidential and subject to Article 4(3) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council (2).

Deliberations may be held in any appropriate format and are not limited to physical meetings.

Article 29

Witnesses, experts and hearings

1. The Board of Appeal may hear witnesses at the request of one of the parties on decisive facts having an impact on the outcome of the proceedings. A request by a party to hear a witness shall state on which decisive facts the witness shall be heard and the relevant grounds for calling the witness.

2. The Board of Appeal may hear experts to clarify specific aspects of the proceedings, or appoint an expert to deliver a report.

3. When appointing experts to deliver a report the Board of Appeal shall define their tasks and set a time-limit within which the report shall be submitted.

4. Before giving evidence, the expert shall declare any direct or indirect personal interest which they may have in the outcome of the proceedings, in particular if they have previously acted as a representative of one of the parties or have participated in the procedure leading to the decision under appeal or in related arbitration proceedings.

5. If one of the parties objects an expert for reasons of a potential conflict of interest the matter shall be decided upon by the Board of Appeal by applying Article 12 mutatis mutandis.

6. If the Board of Appeal considers that there is a conflict of interest or a risk thereof, it may decide to hear an expert as witness instead.

7. The Board of Appeal may hold an oral hearing if it considers this to be necessary for confirming evidence on decisive facts having an impact on the outcome of the proceedings and subject to efficiency considerations.

Article 30

New arguments or evidence

1. The Board of Appeal shall decide until when new evidence or new pleas may be introduced.

2. Where appropriate, the Board of Appeal shall call on the parties to submit observations or additional information within a time-frame that it shall determine.

3. Where new evidence or new pleas are deemed admissible, the other parties shall be entitled to provide their observations.

SECTION 3

The decision

Article 31

Voting

Decisions shall be taken by majority vote of a Board of Appeal. The Chairperson shall have a casting vote in case of a tie.

Article 32

Findings of the Board of Appeal

1. The reasoned findings of the Board of Appeal shall be in writing. They shall contain at least the following elements:

(a) the names of the members of the Board of Appeal taking part in the relevant proceedings;

(b) the names of the parties and of their representatives, if applicable;

(c) a summary of the relevant facts;

(d) a statement of the form of order sought by the parties;

(e) a summary of the parties' arguments;

(f) the grounds of admissibility;

(g) the operative part of the findings and the reasons on which they are based;

(h) the date of their delivery.

2. The findings shall be signed by the members of the Board of Appeal that decided upon those findings and by the Registrar.

Article 33

Final decision of the Agency on Appeals

1. Where the Board of Appeal finds the grounds for appeal are founded, the Agency shall issue a final decision addressed to the parties concerned in compliance with the findings of the Board of Appeal within 1 month following the delivery of the findings of the Board of Appeal.

2. The decision shall contain at least the following elements:

(a) the names of the parties and of their representatives, if applicable;

(b) the findings of the Board of Appeal;

(c) the operative part of the decision and the reasons on which it is based.

3. In cases where the Board of Appeal has confirmed the decision of the Agency, the Agency shall issue an invoice for the appeal in accordance with the Commission Implementing Regulation (EU) 2018/764 (3).

4. A summary of the findings of the Board of Appeal shall be published on the Agency's website.

SECTION 4

Cost of proceedings

Article 34

Costs of the parties

1. The fee for an appeal shall be determined in accordance with Commission Implementing Regulation (EU) 2018/764.

2. Each party participating in arbitration proceedings shall bear its own costs.

Article 35

Costs of participation

1. Interveners shall bear their own costs.

2. When participating in oral hearings, successful appellants shall be entitled to reimbursement of their travel and accommodation expenses and to compensation for loss of earnings to the extent deemed equitable by the Board of Appeal.

3. When participating in oral hearings, witnesses shall be entitled to reimbursement of their travel and accommodation expenses and to compensation for loss of earnings to the extent deemed equitable by the Board of Appeal.

4. Experts shall be entitled to payment of fees for their services based on the rate for experts assisting the Agency as well as reimbursement of their travel and accommodation expenses.

5. The Agency's Management Board shall lay down detailed rules applicable to these reimbursements and payments.

CHAPTER V

FINAL PROVISIONS

Article 36

Remuneration fees for members of the Board of Appeal

1. The members of the Board of Appeal shall be entitled to payment of fees for the performance of their duties as members of the Board of Appeal based on the remuneration scheme in the Annex.

2. The members of the Board of Appeal shall be entitled to the reimbursement of expenses related to travel, accommodation and daily allowances incurred. The Agency's Management Board shall lay down detailed rules applicable to the calculation of these amounts.

Article 37

Duty of transparency

Interested parties shall have access to documents drawn up or received by the Board of Appeal under the relevant provisions of Regulation (EC) No 1049/2001 and according to the policy on public access to documents applicable within the Agency.

Article 38

Guidelines and other relevant information

1. The Board of Appeal shall adopt guidelines relevant for its proceedings by majority vote.

2. They shall be published on the website of the Agency together with all other information relevant for appellants.

Article 39

Entry into force

This Regulation shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 13 June 2018. For the Commission The President Jean-Claude JUNCKER

(1) Regulation (EU) 2016/796 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Railways and repealing Regulation (EC) No 881/2004, OJ L 138, 26.5.2016, p. 1.

(2) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43).

(3) Commission Implementing Regulation (EU) 2018/764 of 2 May 2018 on the fees and charges payable to the European Union Agency for Railways and their conditions of payment (OJ L 129, 25.5.2018, p. 68).