Proposal for a Regulation of the European Parliament and of the Council establishing a European Railway Agency
Date: 2002-01-23
Institutions: European Commission
Subjects: European Union Agency for Railways, domestic market, financial legislation, professional qualifications, rail transport, railway industry, rules of procedure, technical standard, trans-European network, transport safety

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Official Journal of the European Communities

C 126 E/323

Proposal for a Regulation of the European Parliament and of the Council establishing a European
Railway Agency

(2002/C 126 E/08)

(Text with EEA relevance)

COM(2002) 23 final — 2002/0024(COD)

(Submitted by the Commission on 24 January 2002)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF
THE EUROPEAN UNION,

charges for the use of railway infrastructure and safety
certification establishes a new framework with the aim
frontiers.
of creating a European railway area without

Having regard to the Treaty establishing the European
Community, and in particular Article 71(1) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social
Committee,

Having regard to the opinion of the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty,

Whereas:

(1) The progressive establishment of a European railway area
without frontiers requires Community action in the field
of the technical regulations applicable to railways with
regard to both the technical aspects and the safety
aspects, the two being inextricably linked.

as

railways,

(2) Directive 91/440/EEC on the development of

amended
the European Parliament and of

the
by Directive
Community's
2001/12/EC of
the
Council (1), provides for opening up rights of access to
the infrastructure to any licensed Community railway
undertakings which wish to operate international goods
services.

(5) The technical and operational differences between the
railway systems of the Member States have compartmen-
talised the national rail markets and prevented dynamic
development of this sector on a European scale. Council
Directive 96/48/EC of 23 July 1996 on the interoper-
ability of the trans-European high-speed rail system (4)
and Directive 2001/16/EC on the interoperability of the
defined
trans-European
essential requirements and established a mechanism for
defining mandatory technical specifications for interoper-
ability.

conventional

system (5)

rail

(6) Simultaneous pursuit of the goals of safety and interoper-
ability requires substantial technical work which must be
led by a specialised body. That is why it is necessary to
create, within the existing institutional
framework and
with respect for the balance of power in the Community,
a European Agency responsible for railway safety and
interoperability. Creation of such an Agency provides a
means of considering the safety and interoperability
targets for the European rail network jointly and with a
high level of expertise and in this way contributing to
revitalising the railways and to the general objectives of
the common transport policy.

(7) Directive . . . of

the European Parliament and of

the
Council of . . . [on railway safety] provides for the devel-
opment of common safety indicators, common safety
targets and common safety methods. Development of
these tools requires independent technical expertise.

(3) Council Directive 95/18/EC on the licensing of railway
undertakings (2), as amended by Directive 2001/13/EC of
the European Parliament and of the Council (3), stipulates
that all railway undertakings must hold a licence and that
a licence issued in a Member State shall be valid
throughout the territory of the Community.

(4) Directive 2001/14/EC of the European Parliament and of
the Council of 26 February 2001 on the allocation
railway infrastructure capacity and the levying of
of

(8) In order to facilitate the procedures for issuing safety
certificates to railway undertakings, and with a view to
mutual recognition of these certificates in the long term, it
to implement a progressive approach to
is essential
mutual
thereof as
possible.

recognition of as many elements

the European Parliament and of
the
(9) Directive . . . of
Council of
. . . [on railway safety] provides for exam-
ination of national safety measures from the point of
view of interoperability. To this end, an opinion based
on independent and neutral expertise is essential.

(1) OJ L 75, 15.3.2001, p. 1.
(2) OJ L 143, 27.6.1995, p. 70.
(3) OJ L 75, 15.3.2001, p. 26.

(4) OJ L 235, 17.9.1996, p. 6.
(5) OJ L 110, 20.4.2001, p. 1.

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transparency

(10) In the field of safety, it is important to ensure the greatest
possible
flow of
and
information. An analysis of performances, based on
common indicators and linking all players in the sector,
does not yet exist and such a tool should be introduced.
In the case of the statistical aspects, close collaboration
with Eurostat is necessary.

effective

an

(11) The national railway safety organisations, regulators and
other national authorities must be able to request an
independent
require
they
information concerning several Member States.

opinion when

technical

(12) Rolling stock maintenance is an important part of the
safety system. There is no genuine European market for
the maintenance of rail equipment due to the lack of a
system for certification of maintenance workshops. This
situation adds to the costs for the sector and results in
journeys without loads. A European certification system
for maintenance workshops should therefore gradually be
developed.

for

specifications

(13) Directive 2001/16/EC stipulates that a first group of
interoperability must be
technical
drawn up not later than 20 April 2004. The Commission
has given a mandate to carry out
this work to the
European Association for Railway Interoperability (AEIF),
which brings
railway
equipment and the infrastructure managers and operators.
Steps must be taken to preserve the experience built up
by professionals from the industry in the context of the
AEIF. The continuity of the work and the development of
the TSIs over
technical
framework.

the manufacturers of

a permanent

together

require

time

(14) The interoperability of the trans-European network must
be enhanced and the new investment projects chosen for
support by the Community must be in line with
the
in Decision
interoperability
No 1692/96/EC of the European Parliament and of the
Council of 23 July 1996 on Community guidelines for the
development of the trans-European transport network (1).

objective

set

of

(15) The vocational qualifications required for train drivers are
a major factor in both safety and interoperability in
Europe. They are also a precondition for
the free
movement of workers
in the railway industry. This
question must be tackled with respect for the existing
social dialogue. The Agency must
framework for
provide the technical support necessary in order to take
account of this aspect at European level.

(16) Registration is first and foremost an act of recognition of
the capability of rolling stock to operate under specified

conditions. The registration of equipment must be trans-
parent and non-discriminatory and falls within the
competence of the public authorities. The Agency must
provide technical support in order to establish a system
for registration of rolling stock.

(17) In order to ensure the greatest possible transparency and
equal access for all parties to relevant information, the
documents envisaged for
the interoperability process
must be accessible to the public. The same applies to
licences and safety certificates. The Agency must provide
an efficient means of exchanging this information.

(18) Promotion of innovation in the field of railway safety and
interoperability, particularly use of new technologies, is an
important task which the Agency must encourage.

(19) In order to perform its tasks properly, the Agency must
have legal personality and an autonomous budget funded
mainly through a contribution by the Community.
In
order to ensure the Agency's independence in its daily
management and in the opinions and recommendations
which it issues, the Executive Director should have full
responsibility and the Agency's personnel should be inde-
pendent.

the executive's

(20) The membership of the Agency's administrative board
must reflect the balance between the two branches of
the Community's executive and safeguard the principle
of
responsibility before the European
Parliament. Based on the principles proposed in the
White Paper on European governance (2), the Commission
and the Member States must therefore be equally repre-
sented on an administrative board with the powers
necessary to draw up the budget, verify its implemen-
tation, adopt appropriate financial rules, set up trans-
parent working procedures for the Agency's decisions
and appoint
to
the Executive Director.
guarantee the transparency of the administrative board's
decisions, representatives of the sectors concerned must
participate in the deliberations, but without the right to
vote, which is reserved for the representatives of public
authorities who must answer to the democratic control
be
authorities. These
their
designated by the Commission on the basis of
merit and experience in the railway industry and not as
representatives of any particular trade associations.

independent members must

In order

(21) The Agency's work must be

transparent

and its
management must be subject to all the existing provisions
concerning sound management and combating fraud. The
effective control of
the European Parliament must be
ensured and, to this end, the European Parliament must
have the possibility of a hearing with the Executive
Director of the Agency.

(1) OJ L 228, 9.9.1996, p. 1. Decision amended by Decision

No 1346/2001/EC (OJ L 185, 6.7.2001, p. 1).

(2) COM(2001) 428 final.

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specialised body to formulate

(22) Since the objectives of the action proposed, namely to
establish a
common
solutions on matters concerning railway safety and inter-
operability, cannot be sufficiently achieved by the Member
States and, by reason of the joint nature of the work to be
done, can therefore be better achieved by the Community,
the Community may take action, in accordance with the
subsidiarity principle enshrined in Article 5 of the Treaty.
In accordance with the proportionality principle enshrined
in the same article, this regulation does not go beyond
what is necessary to achieve these objectives,

HAVE ADOPTED THIS REGULATION:

CHAPTER 1

PRINCIPLES

Article 1

Establishment and objectives of the Agency

This Regulation establishes a European Railway Agency,

1.
hereinafter referred to as ‘the Agency’.

The objective of the Agency shall be to contribute, on
2.
technical matters, to implementation of the Community legis-
lation aiming at enhancing the level of
interoperability of
railway systems and at developing a common approach to
safety on the European railway system, in order to contribute
to creating a European railway area without frontiers and guar-
anteeing a high level of safety.

3.
In pursuing these objectives, the Agency shall take full
account of the process of enlargement of the European Union
and of the specific constraints relating to rail links with third
countries.

Article 2

Type of acts of the Agency

The Agency may adopt:

(a) recommendations addressed to the Commission concerning
the application of Articles 6, 7, 12, 14, 16, 17 and 18;

(b) opinions issued to the Commission or to the authorities
concerned in the Member States pursuant to Articles 8, 10,
13 and 15.

Article 3

Participation of professionals from the sector

1.
For drawing up the recommendations provided for in
Articles 6, 7, 12, 14, 16, 17 and 18, the Agency shall take
as a basis the expertise built up by professionals from the
sectors,
in particular the experience gained by the European
Association for Railway Interoperability (AEIF).

To this end,

the annual work
following adoption of
2.
programme, the Agency shall agree on the composition of
the working parties with the professional organisations from
the sector, which shall put forward proposals to the Agency for
these working
that purpose. The Agency shall ensure that
parties are representative and work transparently.

The working parties shall be chaired by a representative

3.
of the Agency.

Article 4

Consultation of the social partners

Whenever the work provided for in Articles 6, 12 and 17 has a
direct impact on the social environment or working conditions
of workers in the industry the Agency shall consult the social
partners within the
social dialogue
framework of
committee.

the

These consultations shall be held before the Agency submits its
recommendations to the Commission. The opinions expressed
by the social dialogue committee shall be forwarded by the
Agency to the Commission and by the Commission to the
committee referred to in Article 21 of Directive 2001/16/EC.

Article 5

Consultation of users

Whenever the work provided for in Articles 6 and 12 has a
direct
the
impact on customers the Agency shall consult
organisations representing rail
freight users and customers.
The list of organisations to be consulted shall be drawn up
by the committee referred to in Article 21 of Directive
2001/16/EC.

These consultations shall be held before the Agency submits its
proposals to the Commission. The opinions expressed by the
organisations concerned shall be forwarded by the Agency to
the Commission and by the Commission to the committee
referred to in Article 21 of Directive 2001/16/EC.

CHAPTER 2

SAFETY

Article 6

Technical support

1.
The Agency shall recommend to the Commission the
common safety targets and the common safety methods
provided for in Article 5 of Directive . . . [on railway safety].

The Agency shall recommend, at

2.
the
Commission or of the committee referred to in Article 21 of
Directive . . . [on railway safety] or on its own initiative, other
measures in the field of safety.

the request of

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the

targets

the transition period preceding adoption of
(CSTs), of

the
For
3.
common safety
common safety
methods (CSMs) and of the technical specifications for inter-
operability (TSIs), as well as for matters concerning equipment
and infrastructure not covered by the TSIs, the Agency may
make any appropriate recommendation to the Commission.
The Agency shall ensure consistency between these recommen-
dations and the TSIs already existing or being drawn up.

4.
in
The Agency shall present a cost-benefit analysis
support of the recommendations which it submits pursuant
to this Article.

5.
The Agency shall organise and facilitate cooperation
between the national safety authorities and the inspection
bodies defined by Directive . . . [on railway safety].

responsible for the inspections provided for by Directive . . .
[on railway safety]
the
common indicators listed in Annex 1 to Directive . . . of the
European Parliament and of the Council of . . . [on railway
safety] and to collect all the data available on railway safety.

in order to define the content of

2.
On the basis of the safety indicators, national reports on
safety and accidents and its own information, every two years
the Agency shall submit a report on safety performance, which
shall be made public. The first such report shall be published
during the Agency's third year in operation.

The Agency shall draw on the data collected by Eurostat
3.
and shall cooperate with Eurostat to avoid any duplication of
work and to ensure methodological consistency between the
railway safety indicators and the indicators used in other
modes of transport.

Article 7

Safety certificates

Article 10

Technical opinions

safety

concerning

the Agency

the harmonisation of

With a view to application of Article 14 of the Directive on
railway
safety
and recommend a
certificates,
harmonised format for safety certificates,
including an elec-
tronic version, and a harmonised format for applications for
safety certificates, including the list of the essential details to be
provided.

shall draft

Article 8

National safety measures

At the request of the Commission, the Agency shall carry
1.
out a technical examination of
safety
measures submitted to the Commission in accordance with
Article 8 of Directive . . . [on railway safety].

the new national

2.
The Agency shall examine the compatibility of the above-
mentioned measures with the common safety targets (CSTs)
and common safety methods (CSMs) defined by Directive . . .
[on railway safety] and with the technical specifications for
interoperability (TSIs) in force.

3.
If, after having taken account of the reasons given by the
Member State, the Agency considers that any of these measures
is incompatible with the rules mentioned in paragraph 2,
it
shall submit an opinion to the Commission within two months
of transmission of the rules to the Agency by the Commission.

Article 9

Monitoring of safety performance

1.
The Agency shall establish a network with the national
authorities responsible for safety and the national authorities

1.
The national regulatory bodies referred to in Article 30 of
Directive 2001/14/EC may request a technical opinion from
the Agency concerning the safety-related aspects of matters
drawn to their attention.

2.
The committees provided for in Article 35 of Directive
2001/14/EC and Article 11a of Directive 91/440/EEC, as last
amended, may request a technical opinion from the Agency
concerning safety-related aspects within their respective areas
of competence.

3.
The Agency shall give its opinion within two months.
This opinion shall be made public by the Agency in a
version from which all data concerning any trade or industrial
secret have been expurgated.

Article 11

Public register of documents

The Agency shall be responsible for keeping a public list

1.
of the following documents:

(a) the licences issued in accordance with Directive 95/18/EC;

(b) the safety certificates issued in accordance with Directive

. . . [on railway safety];

(c)

inspection reports

the
forwarded to the Agency in
accordance with Article 23 of Directive . . . [on railway
safety];

(d) the national provisions notified to the Commission in
accordance with Article 8 of Directive . . . [on railway
safety].

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responsible for

The national authorities

issuing the
2.
documents referred to in paragraph 1 shall notify the Agency
within one month of each individual decision to issue, refuse
or withdraw them. The Agency may ask to inspect the files
these
justifying the issue, refusal or withdrawal of one of
documents. In this case, the authorities concerned shall send
the file to the Agency within fifteen working days.

The Agency may add to this public database any
3.
document or link relevant to the objectives of this Regulation.

CHAPTER 3

INTEROPERABILITY

Article 12

Technical support provided by the Agency

shall

contribute

The Agency
and
implementation of rail interoperability in accordance with the
principles and definitions laid down in Directives 96/48/EC and
2001/16/EC. To this end, the Agency shall:

to the development

(a) carry out, on a mandate from the Commission, the work
on drafting the TSIs and forward the draft TSIs to the
Commission;

(b) ensure that the TSIs are adapted to technical progress and
market trends and to the social requirements and propose
to the Commission the amendments to the TSIs which it
considers necessary;

(c) ensure

coordination between

and
updating of the TSIs on the one hand and the development
of the European standards which prove necessary for inter-
operability on the other and maintain the relevant contacts
with the European standardisation bodies;

development

the

(d) organise and facilitate the cooperation of notified bodies.

Article 13

Inspection and control of notified bodies

Without prejudice to the responsibility of Member States for
the notified bodies which they designate, the Agency may, at
the request of the Commission or on its own initiative, inspect
the quality of the work of notified bodies. It shall submit an
opinion to the Commission where appropriate.

Article 14

Monitoring the level of interoperability

The Agency shall recommend, at

1.
the
Commission, procedures for implementing interoperability by

the request of

facilitating coordination between operators and between infra-
structure managers, in particular to organise systems migration.

The Agency shall monitor progress with the interoper-
2.
ability of the railway systems. Every two years it shall present
and publish a report on progress with interoperability. The first
such report shall be published during the Agency's second year
in operation.

Article 15

Interoperability of the trans-European network

At the request of the Commission, the Agency shall examine,
from the point of view of interoperability, any infrastructure
project
requested. The
for which Community support
Agency shall give an opinion within one month.

is

Article 16

Certification of maintenance workshops

The Agency shall develop a European system for certification
of maintenance workshops for rolling stock and shall make
recommendations with a view to implementation of such a
system.

Article 17

Vocational qualifications

The Agency shall set out

the essential qualifications
1.
to drive trains as well as the training
required in order
systems. It shall distinguish between the general qualifications
required for each major type of rolling stock and the qualifi-
cations specific to each line and each piece of equipment.

2.
For the general qualifications, the Agency shall compile,
by major type of equipment, the minimum qualifications and
training required for drivers in order to ensure safe operation.

3.
The Agency shall make recommendations with a view to
putting in place a system for accreditation of training institutes
and of the diplomas which they issue.

The Agency shall promote and support exchanges of
from
between railway

companies

4.
drivers
different Member States.

trainers

and

Article 18

Registration of rolling stock

The Agency shall draw up and recommend to the Commission
a standard format
for the registration of rolling stock in
accordance with Article 14 of Directive 96/48/EC and Article
14 of Directive 2001/16/EC.

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Article 19

Register of documents on interoperability

1.
The Agency shall keep a public list of the following
documents provided for by Directives 2001/16/EC and
96/48/EC:

national laws. In particular, the Agency shall have powers to
acquire or to transfer movable and immovable property and to
be a party to legal proceedings.

The Agency shall be

4.
Director.

represented by its Executive

(a) the declarations of verification of subsystems;

(b) the declarations of conformity of constituents;

Article 23

Privileges and immunities

(c) the authorisations for putting into service,

including the

corresponding registration numbers;

The Protocol on the Privileges and Immunities of the European
Communities shall apply to the Agency and its staff.

(d) the registers of infrastructure and rolling stock.

2.
The bodies concerned shall submit these documents to
the Agency, which shall determine the practical procedures for
submitting them.

3.
The Agency shall set up an electronic database for these
documents. This database shall be accessible to the public
through a website.

CHAPTER 4

STUDIES AND PROMOTION OF INNOVATION

Article 20

Studies

Article 24

Staff

1.
The Agency's staff shall be subject to the rules and regu-
lations applicable to the officials and other servants of the
board,
European Communities.
in
The
the necessary
agreement with the Commission, shall adopt
implementing procedures.

administrative

2. Without prejudice to Article 26, the powers conferred on
the appointing authority and on the contracting authority by
the Staff Regulations of Officials of the European Communities,
as well as by the Conditions of Employment of Other Servants
of
the European Communities, shall be exercised by the
Agency in respect of its own staff.

Where required for implementation of the tasks set by this
Regulation, the Agency shall order studies, financed from its
own budget.

3. Without prejudice to Article 26(1), the Agency's staff
shall consist of temporary employees recruited by the Agency
for a maximum of five years. The temporary staff shall consist
of:

Article 21

Promotion of innovation

— staff recruited from among professionals from the sector on
the basis of their qualifications and experience in the field
of railway safety and interoperability;

The Commission may entrust the Agency with the task of
promoting innovations aimed at improving railway interoper-
ability and safety, particularly the use of new information tech-
nologies and tracking and tracing systems.

CHAPTER 5

INTERNAL STRUCTURE AND OPERATION

Article 22

Legal status, location

The Agency shall be a body of the Community. It shall

1.
have legal personality.

2.
The location of
competent authorities, at
adoption of
Commission.

the Agency shall be decided by the
the
the latest six months after
from the

this Regulation, on a proposal

3.
In each Member State, the Agency shall enjoy the most
extensive legal capacity accorded to legal persons under their

— officials assigned or seconded by the Commission to carry

out management duties;

— other servants, as defined in the Conditions of Employment
of Other Servants of the European Communities, to carry
out implementing or secretarial tasks.

4.
The experts who participate in the working parties
organised by the Agency shall not belong to the Agency's
staff. Their travel and subsistence expenses shall be met by
the Agency, based on rules and scales adopted by the adminis-
trative board.

Article 25

Functions and powers of the Executive Director

1.
The Agency shall be managed by its Executive Director,
who shall be responsible for the day-to-day management of the
Agency and shall act completely independently. The Executive
Director shall neither request nor accept any instruction from
any government or from any other body or company.

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2.

The Executive Director shall:

2.

The administrative board shall:

(a) prepare the work programme and, after agreement by the

(a) appoint the Executive Director in accordance with Article

Commission, submit it to the administrative board;

26;

(b) make the necessary arrangements for implementation of
the work programme and comply with all requests for
assistance from the Commission;

(b) before 31 March each year, adopt the general report of the
to the

Agency for
Commission, the Council and the European Parliament;

the previous year and submit

it

(c) take the necessary steps,

in particular the adoption of
internal administrative instructions and the publication of
orders,
the Agency in
accordance with this Regulation;

the operation of

to ensure

(c) before 30 October each year, adopt the Agency's work
to the

programme for
Commission, the Council and the European Parliament;

the next year and submit

it

(d) establish an effective monitoring system in order

to
compare the Agency's results with its operational objectives
and, on this basis, prepare each year a draft general report
and submit it to the administrative board;

(e) establish a regular assessment system corresponding to

recognised professional standards;

(f) exercise the powers laid down in Article 23(2) in respect of

the staff;

(g) draw up estimates of the revenue and expenditure of the
Agency pursuant to Article 38 and implement the budget
pursuant to Article 39.

3.
The Executive Director may be assisted by one or more
heads of unit. The Executive Director may not delegate the
powers conferred on him.

Article 26

Appointments within the Agency

The Executive Director of the Agency shall be appointed
1.
by the administrative board on a proposal by the Commission.
The administrative board, acting on a proposal by the
Commission, shall have the power to dismiss the Executive
Director. The term of office of the Executive Director shall
be five years. This term of office may be extended once for
a maximum of a further two years.

2.
The Executive Director of the Agency shall appoint the
other members of the Agency's staff in accordance with the
principles laid down in Article 23 of this Regulation.

Article 27

Hearing of the Executive Director before the European
Parliament

Each year the Executive Director shall submit to the European
Parliament the general report on the Agency's activities. The
European Parliament may also ask at any time for a hearing
with the Executive Director on any subject related to the
Agency's activities.

Article 28

(d) adopt the Agency's final budget before the beginning of the
financial year and adjust it, if necessary, to the Community
contribution and the Agency's other revenue;

(e) exercise its functions in relation to the Agency's budget,

pursuant to the provisions of Chapter 6;

(f) exercise disciplinary authority over the Executive Director
and ensure that the Agency operates with the necessary
transparency and neutrality.

Article 29

Composition of the administrative board

1.

The administrative board shall be made up of:

— six representatives of the Council;

— six representatives of the Commission; and

— three independent members, with no vote, appointed by
the Commission for their recognised expertise in the sector.

The Council and the Commission shall designate their
2.
representatives, plus one alternate for each of
them, who
may represent them and be entitled to vote in their absence.
The term of office of the members of the administrative board
shall be five years. This term of office may be renewed once.

Article 30

Chair of the administrative board

1.
The administrative board shall elect a Chairperson and a
Deputy Chairperson from among its members. The Deputy
Chairperson shall ex-officio replace the Chairperson in the
event of the Chairperson being unable to attend to his/her
duties.

2.
The terms of office of the Chairperson and Deputy Chair-
person shall be three years and shall expire when their
membership of the administrative board ends. This term of
office may be renewed once.

Article 31

Meetings

Establishment and powers of the administrative board

1.

The Agency shall have an administrative board.

1. Meetings of the administrative board shall be convened
by its Chairperson. The Executive Director of the Agency shall
participate in the deliberations.

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The administrative board shall meet at least twice a year.
2.
It shall also meet at the instance of the Chairperson, at the
request of the Commission or at the request of the majority of
its members.

Article 32

Voting

The administrative board shall take its decisions by a two-thirds
majority of its members entitled to vote. Each member shall
have one vote, with the exception of the three independent
members and of the Executive Director, who shall not be
entitled to vote.

Article 33

Inspections in the Member States

the Agency may, at

In order to fulfil the tasks entrusted to it by Articles 8, 9,
1.
10, 13 and 15,
the
Commission, conduct inspections in the Member States. The
national authorities in the Member States shall facilitate the
work of
the inspections
proceed smoothly. The Agency officials shall be empowered:

the Agency's staff

the request of

to ensure that

(a) to examine files, data, reports and any other documents
relevant to implementation of the Community legislation
on railway interoperability and safety;

(b) to take copies of all or extracts from such files, data,

reports and other documents;

(c) to ask for oral explanations on the spot;

(d) to have access to any premises, site or means of transport.

2.
The Agency shall inform the Member State concerned of
the planned inspection, the names of the delegated officials and
the date on which the inspection is due to start. The Agency
officials delegated to carry out these inspections shall exercise
their powers on presentation of a decision from the Executive
Director of
the Agency specifying the subject-matter and
purpose of their mission.

3.
At the end of each inspection, and after having listened
to the entities inspected, the Agency shall draw up a report and
send it to the Commission and to the Member State concerned.

Article 34

Liability

The contractual liability of the Agency shall be governed

1.
by the law applicable to the contract in question.

2.
The Court of Justice of the European Communities shall
have jurisdiction to give judgment pursuant to any arbitration
clause contained in a contract concluded by the Agency.

3.
In the case of non-contractual liability, the Agency shall,
in accordance with the general principles common to the laws
of the Member States, make good any damage caused by its
departments or by its staff in the course of performance of
their duties.

The Court of Justice of the European Communities shall
4.
have jurisdiction in disputes relating to compensation for the
damage referred to in paragraph 3.

The personal liability of its staff towards the Agency shall
5.
be governed by the provisions laid down in the Staff Regu-
lations or Conditions of Employment applicable to them.

Article 35

Languages

1.
The in-house working languages of the Agency shall be
English, French and German. The Member States may address
the Agency in the Community language of their choice.

2.
The translation services required for the functioning of
the Agency shall be provided by the Translation Centre for the
Bodies of the Union.

Article 36

Participation by third countries

1.
The Agency shall be open to participation by European
countries which have concluded agreements with the European
Community whereby the countries concerned have adopted
and are applying the Community legislation in the field
covered by this Regulation.

2.
In accordance with the relevant provisions of the above-
mentioned agreements, arrangements shall be made which shall
specify the detailed rules for participation by these countries in
the work of the Agency, in particular the nature and extent of
such participation. These arrangements shall include, inter alia,
provisions on financial contributions and staff. They may
provide for representation, without vote, on the administrative
board.

Article 37

Transparency

Regulation (EC) No 1049/2001 regarding public access to
European Parliament, Council and Commission documents
shall apply to the documents held by the Agency.

The administrative board shall adopt the practical measures for
implementation of Regulation (EC) No 1049/2001.

CHAPTER 6

FINANCIAL PROVISIONS

Article 38

Budget

1.

The revenue of the Agency shall consist of:

— a contribution from the Community;

— any contribution from third countries participating in the

work of the Agency, as provided for by Article 36;

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Official Journal of the European Communities

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— charges for publications, training and any other services

provided by the Agency.

The expenditure of the Agency shall include staff, admin-

2.
istrative, infrastructure and operational expenses.

The Executive Director shall draw up an estimate of the
3.
revenue and expenditure of
the Agency for the following
financial year and shall submit it to the administrative board
together with an establishment plan.

4.

Revenue and expenditure shall be in balance.

it

5.
The administrative board shall adopt, by 31 March at the
latest, the draft budget for the following financial year and
to the Commission, which, on this basis, shall
submit
enter the corresponding estimates in the preliminary draft
general budget of the European Communities, which it shall
submit to the Council in accordance with Article 272 of the
Treaty.

6.
The administrative board shall adopt, by 15 January at
the latest, the Agency's budget, adjusting it, where necessary, to
the Community contribution decided by the budgetary
authority.

Article 39

Implementation and control of the budget

The Executive Director shall implement the budget of the

1.
Agency.

2.
Control of commitment and payment of all expenditure
and control of the existence and receipt of all revenue of the
Agency shall be carried out by the Financial Controller of the
Commission.

3.
By 31 March of each year at the latest, the Executive
Director shall submit to the Commission, the administrative
board and the Court of Auditors the detailed accounts of all
revenue and expenditure from the previous financial year.

The Court of Auditors
in
accordance with Article 248 of the Treaty. It shall publish a
report on the Agency's activities every year.

shall examine these accounts

4.
The European Parliament, acting on a recommendation
from the administrative board, shall give a discharge to the
Executive Director of the Agency in respect of the implemen-
tation of the budget.

Article 40

Financial Regulation

Article 41

Combating fraud

For the purposes of combating fraud, corruption and
1.
the provisions of Regulation (EC)
acts,
other unlawful
No 1073/1999 (1) of
the
the European Parliament and of
Council of 25 May 1999 concerning investigations conducted
by the European Anti-Fraud Office (OLAF) shall apply in full.

shall

The Agency

2.
Interinstitutional
accede
Agreement of 25 May 1999 concerning internal investigations
by the European Anti-Fraud Office (OLAF) (1) and shall
immediately adopt the necessary provisions applicable to all
employees of the Agency.

to the

3.
The decisions concerning funding and the implementing
agreements and instruments resulting from them shall explicitly
stipulate that
if
necessary, carry out on-the-spot checks on the recipients of
the Agency's funding.

the Court of Auditors and OLAF may,

CHAPTER 7

GENERAL AND FINAL PROVISIONS

Article 42

Start of the Agency's activities

The Agency shall be operational within 24 months of the entry
into force of this Regulation.

Article 43

Evaluation

the Agency taking up its duties,

Within five years of
the
Commission shall carry out an evaluation of implementation
of this Regulation, the results obtained by the Agency and its
working methods. This evaluation shall take account of the
views of the representatives of the profession, of the social
partners and of customers' organisations. The findings of the
evaluation shall be made public. The Commission shall
propose, if necessary, an amendment to this Regulation.

The administrative board, after receiving the agreement of the
Commission and the endorsement of the Court of Auditors,
shall adopt the Agency's Financial Regulation, which shall, in
particular, specify the procedure to be used for drawing up and
implementing the Agency's budget, in accordance with Article
142 of
the Financial Regulation applicable to the general
budget of the European Union.

Article 44

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

This Regulation shall be binding in its entirety and directly
applicable in all Member States.

(1) OJ L 136, 31.5.1999.