EUROPEAN COMMISSION Brussels, 21.8.2015 COM(2015) 389 final 2015/0180(NLE) Proposal for a COUNCIL DECISION establishing the position to be adopted by the Union at the 12th General Assembly of OTIF as regards certain amendments to the Convention concerning International Carriage by Rail (COTIF) and to its Appendices



EXPLANATORY MEMORANDUM 1.CONTEXT OF THE PROPOSAL •Reasons for and objectives of the proposal The proposed Council Decision has the objective to establish the position of the European Union at the 12th General Assembly of the Intergovernmental Organisation for International Carriage by Rail (OTIF) due to take place from 29 to 30 September 2015 as regards certain amendments to the Convention concerning International Carriage by Rail (COTIF) as well as to its Appendices D (Uniform Rules concerning Contracts of Use of Vehicles in International Rail Traffic – CUV), 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 General Assembly. •Consistency with existing policy provisions in the policy area The proposed amendments to COTIF and to its Appendices related to Union law aim explicitly at clarifying the scope of the Appendices F and G as well as the roles of the keeper and of the entity in charge of maintenance in line with EU law, in particular the Railway Safety Directive. •Consistency with other Union policies The proposed amendments to COTIF and to its Appendices have no direct link to other Union policies. 2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY •Legal basis The amendments to COTIF and to its Appendices to be discussed by the General Assembly of OTIF relate to common rules applicable to international transport to or from the territory of the Union or passing across the territory of the Union. The proposed Council Decision is aimed at establishing the position to be adopted on the Union's behalf in a body set up by an agreement, when the body is called upon to adopt acts having legal effects. Thus, the legal basis of the proposed Council Decision is Article 91 TFEU in conjunction with Article 218(9) TFEU. •Subsidiarity (for non-exclusive competence) The European Commission only proposes an EU position for amendments which have a direct link to Union law, in particular on railway safety and interoperability and for editorial amendments which update the denomination of the European Union in line with the Lisbon Treaty. •Proportionality The substantial amendments to COTIF and to its Appendices clarify the scope of the Appendices F and G as well as the roles of the keeper and of the entity in charge of maintenance in line with EU law, in particular the Railway Safety Directive. The proposed Union position is fully in line with the Union position represented at the 25th session of the Revision Committee of OTIF by Council Decision of 24 June 2014 establishing the position to be adopted on behalf of the European Union at that session (2014/699/EU). •Choice of the instrument According to Article 218(9) TFEU, the Council shall adopt a decision on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy to establish the position to be represented by the Union in a body set up by an agreement, when the body is called upon to adopt acts having legal effects. 3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS •Ex-post evaluations/fitness checks of existing legislation

Amendment proposals to COTIF and its Appendices have been discussed and voted upon by the OTIF Revision Committee at its 25th session of 25 to 26 June 2014 or, as for the partial revision of Appendix B (Uniform Rules concerning the Contract of International Carriage of Goods by Rail – CIM), in written procedure. The Consolidated Explanatory Report has been adopted by the Revision Committee in written procedure. 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. Similar discussions in dedicated working groups within OTIF with the participation of the European Commission and several Member States on Appendices B (CIM) and E (Uniform Rules concerning the Contract of Use of Infrastructure in International Rail Traffic – CUI) have not led to formal amendment proposals to be adopted by the 12th General Assembly. Besides, the European Commission arranged for a working group for EU Member States and representatives of the railway sector which discussed amendment proposals raised by EU Member States that had not been discussed at the 25th session of the Revision Committee of OTIF. •Stakeholder consultations Representatives of the railway sector such as the Community of European Railway and Infrastructure Companies (CER), the European Rail Infrastructure Managers (EIM), the International Rail Transport Committee (CIT), the International Union of Railways (UIC), the European Rail Freight Association (ERFA), the International Union of Wagon Keepers (UIP) have actively participated in the discussions of the relevant meetings referred to above. •Collection and use of expertise Not applicable. •Impact assessment The proposed amendments to COTIF and to its Appendices concerning Union law are based on existing Union legislation, this having been an explicit aim of OTIF. The position to be adopted by the Union is fully in line with the position adopted by the Council for the 25th session of the Revision Committee of OTIF (Council Decision 2014/699/EU). Thus, no impact assessment was needed for this proposal. •Regulatory fitness and simplification Not relevant. •Fundamental rights The proposal has no consequences on fundamental rights. 4.BUDGETARY IMPLICATIONS The proposal has no budgetary implications. 5.OTHER ELEMENTS •Implementation plans and monitoring, evaluation and reporting arrangements The amendments adopted will enter into force in accordance with the relevant provisions of COTIF. No monitoring, evaluation and reporting arrangements are necessary on behalf of the European Union. •Explanatory documents (for directives) Not relevant. •Detailed explanation of the specific provisions of the proposal The Union acceded to COTIF in July 2011 by virtue of Council Decision 2013/103/EU. COTIF is a mixed agreement where both the Union and all Member States 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, 1 EU Member State has 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 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 44 active Member States (membership of 2 non-EU Member States has been suspended until international rail traffic is restored and 2 non-EU Member States have lost their voting rights in accordance with the provisions of COTIF).

In accordance with Article 34 of Title VI of COTIF, modifications of the Convention itself, decided upon by the General Assembly, shall enter into force for all contracting parties twelve months after their approval by two thirds of the Member States with the exception of those having made a declaration before the entry into force in terms that they do not approve such modifications. Modifications of the Appendices to the Convention, decided upon by the General Assembly, shall enter into force for all Member States twelve months after their approval by half of the Member States which have not made a declaration on the non-application of the relevant Appendices in their entirety, with the exception of those having made a declaration before the entry into force in terms that they do not approve such modifications. The General Assembly may specify, at the time of adoption of a modification, that it is such that any Member State which will have made a declaration of its non-approval and which will not have approved the modification within the period of eighteen months running from its entry into force will cease, on the expiration of this period, to be a Member State of OTIF. When decisions of the General Assembly concern Appendices to the Convention, the application of the Appendix in question shall be suspended, in its entirety, from the entry into force of the decisions, for traffic with and between the Member States which have made a declaration of non-approval of its modifications. As from the date when the modifications of the Convention or of its Appendices enter into force, they will become binding on the Union and its Member States, forming an integral part of the Union acquis. According to Article 38 of Title VII of COTIF, the European Union as a regional organisation having acceded to COTIF may exercise the rights enjoyed by its members by virtue of the Convention to the extent that they cover matters for which it is competent. 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 at the 12th General Assembly. Some envisaged amendments, in particular those to Articles 12 and 20 of COTIF as well as the amendments to Appendices D, F and G are linked to Union law on railway safety and interoperability; they are considered to be appropriate for safe and reliable international rail transport, taking into account technological progress, and can therefore be supported. Editorial amendments such as the one to Article 3 of COTIF update the denomination of the European Union in line with the Lisbon Treaty (similar amendments have been adopted at the 25th session of the Revision Committee for provisions lying in the competence of that body). For other amendments (in particular the ones regarding administrative arrangements and financing of OTIF), no EU position is proposed. 2015/0180 (NLE) Proposal for a COUNCIL DECISION establishing the position to be adopted by the Union at the 12th General Assembly of OTIF 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)All Member States, with the exception of Cyprus and Malta are contracting parties to and apply the COTIF Convention. (3)The General Assembly set up in accordance with Article 13§1(a) of the COTIF Convention, at its 12th session due to take place from 29 to 30 September 2015, is expected to decide upon certain amendments to the COTIF Convention as well as to its Appendices D (Uniform Rules concerning Contracts of Use of Vehicles in International Rail Traffic – CUV), 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 position of the Union on the items retained for this purpose is to be adopted under Article 218(9) TFEU since the decisions on these amendments to be taken by the General Assembly are acts having legal effects and their subject matter falls under Union competence. (5)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. (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.