Proposal for a Council Decision on the conclusion by the European Community of the Agreement on the Accession of the European Community to the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999
Date: 2003-11-17
Institutions: European Commission
Subjects: accession to an agreement, common transport policy, international convention, international transport, rail transport

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 17.11.2003
COM(2003) 696 final

2003/0269 (CNS)

Proposal for a

COUNCIL DECISION

on the conclusion by the European Community of the Agreement on the Accession of the
European Community to the Convention concerning International Carriage by Rail
(COTIF) of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999

(presented by the Commission)

1.

2.

3.

4.

5.

EXPLANATORY MEMORANDUM

With this communication the Commission is submitting to the Council a proposal for
a Decision authorising the Community to conclude an Agreement defining the terms
of its accession to the Convention concerning International Carriage by Rail (COTIF)
of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999.

On 28 March 2003, the Council authorised the Commission to enter into negotiations
with  the  Contracting  Parties  to  COTIF  in  order  to  reach  agreement  on  the
Community’s  accession  to  that  Convention  under  an  Agreement  by  virtue  of
Article 38  of  the  revised  COTIF.  The  Council  Decision  included  negotiating
directives and instructions for the Community’s accession to the COTIF.

The special committee established by the Council Decision met on 17 June 2003 to
examine  the  negotiating  position  presented  by  the  Commission.  Consultation  with
the  special  committee  produced  observations  and  made  it  possible  to  forward  a
preliminary  negotiating  position 
the  Intergovernmental  Organisation  for
International Carriage by Rail (OTIF).

to 

On  27 June  2003  a  single  negotiating  session  held  at  OTIF  headquarters  in  Bern
produced a joint draft Agreement text.

The Community’s accession is permitted under Article 38 of the COTIF as amended
by  the  Vilnius  Protocol,  which  makes  provision  for  the  accession  of  regional
economic  integration  organisations.  The  Vilnius  Protocol  therefore  needs  to  have
entered  into  force  following  ratification  by  at  least  two  thirds  of  the  signatories.
Consequently,  it  is  important  that  Member  States  continue  and  complete  the
ratification procedure in order that the Community may accede.

In  the  light  of  these  considerations  and  in  accordance  with  the  established  procedures,  the
Commission:

–  recommends that Member States complete the procedures to ratify the Vilnius Protocol in

order that the Community may accede to COTIF;

–  proposes that the Council adopt the attached Decision.

2

2003/0269 (CNS)

Proposal for a

COUNCIL DECISION

on the conclusion by the European Community of the Agreement on the Accession of the
European Community to the Convention concerning International Carriage by Rail
(COTIF) of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999

THE COUNCIL OF THE EUROPEAN UNION,

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular
Articles 71 and 300(2) and (3) thereof,

Having regard to the proposal from the Commission,1

Having regard to the Opinion of the European Parliament,2

Whereas:

(1)

(2)

(3)

(4)

(5)

The development of rail interoperability, both within the Community and between the
Community  and  neighbouring  countries,  is  a  key  component  of  the  transport  policy,
targeted  in  particular  at  establishing  a  better  balance  between  the  various  modes  of
transport.

The  European  Community  has  exclusive  competence  or  shared  competence  with  its
Member  States  in  the  areas  covered  by  the  Convention  concerning  International
Carriage  by  Rail  (COTIF)  of  9 May  1980,  as  amended  by  the  Vilnius  Protocol  of
3 June 1999.

The  European  Community’s  accession  to  COTIF  for  the  purpose  of  exercising  its
competence  is  permitted  by  virtue  of  Article 38  of  the  COTIF  as  amended  by  the
Vilnius Protocol and will be able to take effect once the latter has entered into  force
following the period of ratification.

On  behalf  of  the  Community,  the  Commission  has  negotiated  an  Agreement  on  the
Accession  of  the  European  Community  to  COTIF  with  the  Contracting  Parties  to
COTIF.

The Accession Agreement needs to be concluded in order to be applied immediately
after the Vilnius Protocol enters into force.

1

2

OJ C [...], [...], p. [...].
OJ C [...], [...], p. [...].

3

                                                
HAS DECIDED AS FOLLOWS:

Article 1

The Agreement on the Accession of the European Community to the Convention concerning
International Carriage by Rail (COTIF) of 9 May 1980, as amended by the Vilnius Protocol of
3 June 1999, is hereby approved on behalf of the Community. The text of the Agreement and
the related declarations by the Community are attached to this Decision.

Article 2

The President of the Council is hereby authorised to designate the person empowered to sign
the Agreement in order to express the Community’s consent to be bound thereby, to make the
related declarations and to deposit the instrument of approval on the Community’s behalf.

The  deposit  of  the  instrument  of  approval  is  conditional  upon  the  entry  into  force  of  the
Vilnius Protocol of 3 June 1999 amending the COTIF.

Done at Brussels, [...]

For the Council
The President
[...]

4

ANNEX 1

AGREEMENT

ON THE ACCESSION OF THE EUROPEAN COMMUNITY TO THE
CONVENTION CONCERNING INTERNATIONAL CARRIAGE BY RAIL (COTIF)
OF 9 MAY 1980, AS AMENDED BY THE VILNIUS PROTOCOL OF 3 JUNE 1999

THE  INTERGOVERNMENTAL  ORGANISATION  FOR  INTERNATIONAL  CARRIAGE
BY RAIL

AND

THE EUROPEAN COMMUNITY,

Having  regard  to  the  Convention  concerning  International  Carriage  by  Rail  (COTIF)  of
9 May  1980,  as  amended  by  the  Vilnius  Protocol  of  3 June  1999,  hereinafter  referred  to  as
"the Convention", and in particular Article 38 of the said Convention,

Having  regard  to  the  responsibilities  which  the  Treaty  of  25 March  1957  establishing  the
European Community, as revised by the Treaty of Nice of 26 February 2001, confers on the
European Community in certain areas covered by the Convention,

Whereas  the  Convention  establishes  an  Intergovernmental  Organisation  for  International
Carriage by Rail (OTIF), the headquarters of which are at Bern;

Whereas,  by  virtue  of  Article 3  of  the  Convention,  the  obligations  arising  out  of  the
Convention  with  regard  to  international  cooperation  do  not  take  precedence,  for  Member
States  which  are  also  Members  of  the  European  Communities  or  States  party  to  the
Agreement  on  the  European  Economic  Area,  over  their  obligations  as  Members  of  the
European Communities or as States party to the Agreement on the European Economic Area;

Whereas the purpose of the European Community’s accession to the Convention is to assist
OTIF  in  pursuing  its  objective  of  promoting,  improving  and  facilitating  international  rail
transport from both the technical and legal angles;

Whereas  the  European  Community’s  accession  to  the  Convention  requires  the  rules  for
applying the provisions of the Convention to the European Community and its Member States
to be clearly established;

Whereas  the  conditions  of  the  European  Community’s  accession  to  the  Convention  must
allow the Community to exercise within the Convention the competences conferred on it by
its Member States,

HAVE AGREED AS FOLLOWS:

The European Community hereby accedes to the Convention under the terms and conditions
laid down in this Agreement, in accordance with Article 38 of the Convention.

Article 1

5

Article 2

Subject  to  the  provisions  of  this  Agreement,  provisions  in  the  Convention  shall  be  so
interpreted  as  also  to  include  the  European  Community,  within  the  framework  of  its
competence,  and  the  various  terms  used  to  designate  the  Contracting  Parties  to  the
Convention and their representatives are to be understood accordingly.

The European Community will not contribute to the budget of OTIF and will not take part in
decisions concerning that budget.

Article 3

1.

2.

1.

2.

3.

Article 4

Without prejudice to the exercise of  its  voting  rights  under  Article 6,  the  European
Community shall be entitled to be represented and involved in the work of all OTIF
bodies  in  which  any  of  its  Member  States  is  entitled  to  be  represented  as  a
Contracting  Party,  and  where  matters  falling  within  its  competence  may  be  dealt
with. In all OTIF bodies in which it may participate, the European Community will
present its positions, within the framework of its competence, in accordance with its
institutional rules.

The  European  Community  shall  be  represented  by  the  European  Commission.  The
European  Commission  may  mandate  one  or  more  of  the  Member  States  of  the
Community to represent it.

Article 5

For decisions in matters where the European Community has exclusive competence,
the European Community shall exercise the voting rights of its Member States under
the Convention. Subject to Article 26(7) of the Convention, it shall have a number of
votes equal to that of its members who are  also member States of  OTIF.  When  the
Community votes, its Member States shall not vote.

For decisions in matters where the European Community shares competence with its
Member  States,  either  the  European  Community  or  its  Member  States  shall  vote.
When the European Community votes, it shall have a number of votes equal to that
of its Members who are also member States of OTIF, and the latter shall not vote.

The  European  Community  shall,  on  a  case-by-case  basis,  inform  the  other
Contracting Parties to the Convention of the cases where, with regard to the various
items on the agendas of the  General  Assembly and the other deliberating bodies, it
will  exercise  the  voting  rights  provided  for  in  paragraphs  1  and  2  above.  This
obligation shall also apply when decisions are taken by correspondence.

The scope of the competence transferred to the Community shall be indicated in general terms
in a written  declaration  made  by  the  European  Community  at  the  time  of  the  conclusion  of

Article 6

6

this  Agreement.  This  declaration  may  be  modified  as  appropriate  by  notification  from  the
European Community to OTIF. It shall not replace or in any way limit the matters that may be
covered by the notifications of Community competence to be made prior to OTIF decision-
making by means of formal voting or otherwise.

Article 7

The  European  Community  shall  be  represented  on  the  RID  Expert  Committee  by  the
European  Commission,  which,  for  reasons  of  technical  expertise,  will  generally  mandate
European  Community  Member  States  to  represent  it.  However,  the  European  Commission
may at any time exercise the right provided for in Article 33(5) of COTIF, whereby one third
of the Member States represented on the Committee may request that a proposal presented to
the Committee be submitted to the General Assembly for decision.

Article 8

Title V of the Convention shall apply to any dispute arising between the Contracting Parties
to  this  Agreement  in  respect  of  the  interpretation,  application  or  implementation  of  this
Agreement, including its existence, validity and termination.

This  Agreement  shall  enter  into  force  when  the  OTIF  General  Assembly  approves  its
conclusion by the Community and OTIF.

Article 9

Each accession to the Convention after its entry into force shall also constitute consent to be
bound by this Agreement.

Article 10

This Agreement shall remain in force for an indefinite period.

Article 11

If  all  OTIF  Member  States  which  are  Members  of  the  European  Community  denounce  the
Convention, notification of that denunciation, as  well  as of denunciation of this Agreement,
shall be considered to have been given by the European Community at the same time as the
last  Member  State  of  the  European  Community  to  denounce  the  Convention  notifies  its
denunciation under Article 41 of the Convention.

IN  WITNESS  WHEREOF  the  undersigned  Plenipotentiaries,  having  presented  their  Full
Powers, found to be in good and due form, have signed this Agreement.

7

DONE at ..., this ... day of ... (month) ... (year), in the French language, in two originals, one
to  be  kept  by  OTIF  and  the  other  by  the  European  Community.  OTIF  shall  notify  this
Agreement to its members in its official languages. In the event of any inconsistency, the text
in the French language shall prevail.

For the Intergovernmental
Organisation for International
Carriage by Rail (OTIF)

For the European Community

8

Annex to the Agreement

Declaration by the European Community concerning the exercise of competence

In  the  rail  sector,  the  Community  exercises  a  general  shared  competence  with  its  Member
States pursuant to Articles 70, 71, 80(1) and 156 of the EC Treaty.

The  Community  has  exclusive  competence  only  to  the  extent  that  provisions  of  the
Convention  or  legal  instruments  adopted  pursuant  to  it  affect  existing  Community  rules.
Where  Community  rules  exist  but  are  not  affected,  notably  in  the  case  of  Community
provisions  which  only  set  minimum  standards,  the  Community  Member  States  have
competence without prejudice to that of the Community to act in that area. In any other cases,
the Member States have competence.

A  list  of  relevant  Community  instruments  is  contained  in  the  Appendix.  The  scope  of  the
Community competence arising out of these texts has to be assessed in relation to the specific
provisions  of  each  text,  especially  the  extent  to  which  these  provisions  establish  common
rules.

In  particular,  the  Technical  Specifications  for  Interoperability  adopted  by  the  Community
constitute common and binding rules within the Community. This means that the preparation
of  the  Uniform  Rules  provided  for  in  Article 6  of  COTIF  falls  within  the  exclusive
competence  of  the  Community,  insofar  as  the  subjects  they  deal  with  are  covered  by  an
existing Technical Specification for Interoperability.

9

Appendix to the Declaration

COMMUNITY INSTRUMENTS RELATING TO SUBJECTS DEALT WITH BY THE
CONVENTION

To  date,  the  Community  has  exercised  its  competence  inter  alia  through  the  following
Community instruments:

–  Council  Directive  91/440/EEC  of  29 July  1991  on  the  development  of  the  Community's
railways  (OJ  L 237,  24.8.1991,  p.  25)  as  amended  by  Directive  2001/12/EC  of  the
European Parliament and of the Council of 26 February 2001 (OJ L 75, 15.3.2001, p. 1);

–  Council Directive 95/18/EC of 19 June 1995 on the licensing of railway undertakings (OJ
L 143, 27.6.1995, p. 70) as amended by Directive 2001/13/EC of the European Parliament
and of the Council of 26 February 2001 (OJ L 75, 15.3.2001, p. 26);

–  Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001
on the allocation of railway infrastructure capacity and the levying of charges for the use of
railway infrastructure and safety certification (OJ L 75, 15.3.2001, p. 29);

–  Council Directive 96/48/EC of 23 July 1996 on the interoperability of the trans-European

high-speed rail system (OJ L 235, 17.9.1996, p. 6);

–  Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on
the interoperability  of the  trans-European conventional rail  system (OJ  L 110, 20.4.2001,
p. 1);

–  Council  Directive  96/49/EC  of  23 July  1996  on  the  approximation  of  the  laws  of  the
Member  States  with  regard  to  the  transport  of  dangerous  goods  by  rail  (OJ  L 235,
17.9.1996, p. 25) and its subsequent amendments.

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ARRANGEMENT BETWEEN THE COUNCIL AND THE COMMISSION
REGARDING PREPARATIONS FOR OTIF MEETINGS, AND
REPRESENTATIONS AND VOTING AT MEETINGS

1.

1.1.

1.2.

1.3.

1.4.

1.5.

COORDINATION PROCEDURE

Coordination  meetings  to  prepare  for  OTIF  meetings  will  be  held  by  one  of  the
existing committees created by the rail directives, namely:

–  the  committee  on  interoperability  (Article 21  of  Directive  96/48/EC  and

Article 21 of Directive 2001/16/EC);

–  the committee on the development of the Community's railways (Article 11(2) of

Directive 91/440/EEC and Article 35 of Directive 2001/14/EC);

–  the  committee  on  the  transport  of  dangerous  goods  (Article 9  of  Directive

96/49/EC).

As  far  as  possible,  the  Commission  will  coordinate  the  proceedings  of  the
aforementioned committees with the timetables of OTIF proceedings.

The committee agendas will group all relevant matters in an “OTIF” item to ensure
that the subjects each committee handles are properly coordinated.

If necessary, coordination meetings may also be held at the meeting venue.

The  Commission  will  notify  the  relevant  committee  of  the  items  on  each  OTIF
meeting agenda requiring representations to be made and will indicate whether those
representations will be made on behalf of the Community or the Community and its
Member States.

If a vote is to be held on items on the agenda, the Commission will give its opinion
as to whether the Community or the individual Member States should vote.

Coordination meetings held by the committees mentioned in section 1.1 will decide
on the exercise of responsibilities and on arrangements in respect of representations
and  voting  in  relation  to  each  item  on  the  agenda.  The  committees  will  issue  their
opinions in accordance with their own rules of procedure.

If the Commission and the Member States fail to agree on the matters referred to in
Section 1.4, the Member States and the Commission will refrain from adopting any
position or casting any vote such as would damage the coordinated representation of
the Community. If agreement is not reached within a reasonable period of time, the
matter will be referred to the Permanent Representatives’ Committee.

1.6.

The  decisions  referred  to  in  Section 1.5  do  not  affect  the  respective  competence  of
the Community and its Member States.

11

2.

2.1.

2.2.

2.3.

REPRESENTATIONS AND VOTING AT OTIF MEETINGS

If an item on the agenda concerns issues which fall within the exclusive competence
of the Community, the Commission will speak and vote on behalf of the Community.
The  Commission  may  mandate  one  or  more  Member  States  to  represent  it.  The
Commission may also mandate the Executive Director of the European Rail Agency
to represent it.

If an item on the agenda concerns issues which fall within their national competence,
the Member States will speak and vote for themselves.

If  an  item  on  the  agenda  concerns  issues  which  fall  within  both  national  and
Community  competence,  attempts  will  be  made  to  reach  a  common  position  by
consensus. If a common position can be found:

–  if it is chiefly a matter which does not fall within the exclusive competence of the
Community,  the  Member  State  holding  the  Presidency  will  set  out  the  common
position.  The  Member  States  and  the  Commission  may  speak  to  support  and/or
expand  upon  the  Presidency’s  contribution.  The  Member  States  will  vote  in
accordance with the common position;

–  if  it  is  chiefly  a  matter  which  does  fall  within  the  exclusive  competence  of  the
Community,  the  Commission  will  set  out  the  common  position.  The  Member
States may speak to support and/or expand upon the Commission’s contribution.
The Commission will vote in accordance with the common position.

If  a  common  position  cannot  be  found,  the  Member  States  will  speak  and  abstain.
The Commission is entitled to take part in the discussion.

12