Corrigendum to Regulation (EC) No 881/2004 of the European Parliament and of the Council of 29 April 2004 establishing a European railway agency (Agency Regulation) (OJ L 164, 30.4.2004)
Date: 2004-06-21
Institutions: Council of the European Union, European Parliament
Subjects: EU office or agency, approximation of laws, enlargement of the Union, rail transport, trans-European network, transport network

21.6.2004

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CORRIGENDA

Corrigendum to Regulation (EC) No 881/2004 of the European Parliament and of the Council of 29 April 2004
establishing a European railway agency (Agency Regulation)

(Official Journal of the European Union L 164 of 30 April 2004)

Regulation (EC) No 881/2004 should read as follows:

REGULATION (EC) No 881/2004 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 29 April 2004
establishing a European railway agency

(Agency Regulation)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

progressively opening up rights of access to the infrastruc-
ture to any licensed Community railway undertakings
which wish to operate goods services.

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

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Economic and
Social Committee (2),

Having regard to the opinion of the Committee of the Regions (3),

Acting in accordance with the procedure laid down in Article 251
of the Treaty (4), in the light of the joint text approved by the Con-
ciliation Committee on 23 March 2004,

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.

(2)

Council Directive 91/440/EEC of 29 July 1991 on the
development of the Community’s railways (5) provides for

(1) OJ C 126 E, 28.5.2002, p. 323.
(2) OJ C 61, 14.3.2003, p. 131.
(3) OJ C 66, 19.3.2003, p. 5.
(4) Opinion of the European Parliament of 14.1.2003 (OJ C 38 E,
12.2.2004, p. 135), Council Common Position of 26 June 2003 (OJ
C 270 E, 11.11.2003, p. 48) and Position of the European Parliament
of 23 October 2003 (not yet published in the Official Journal). Legis-
lative Resolution of the European Parliament of 22 April 2004 and
Decision of the Council of 26 April 2004.

(5) OJ L 237, 24.8.1991, p. 25, Directive as amended by Directive
2001/12/EC of the European Parliament and of the Council (OJ L 75,
15.3.2001, p. 1).

(3)

(4)

(5)

Council Directive 95/18/EC of 19 June 1995 on the licens-
ing of railway undertakings (6) provides that all railway
undertakings must hold a licence and that a licence issued
in a Member State shall be valid throughout
the
Community.

Directive 2001/14/EC of the European Parliament and of
the Council of 26 February 2001 on the allocation of rail-
way infrastructure capacity and the levying of charges for
the use of railway infrastructure and safety certification (7)
establishes a new framework with the aim of creating a
European railway area without frontiers.

The technical and operational differences between the rail-
way systems of the Member States have compartmental-
ised 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 interoperabil-
ity of the Trans-European high-speed rail system (8) and
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 (9) define
essential requirements and establish a mechanism for
defining mandatory
for
interoperability.

specifications

technical

(6) OJ L 143, 27.6.1995, p. 70, Directive as amended by Directive
2001/13/EC of the European Parliament and of the Council (OJ L 75,
15.3.2001, p. 26).

(7) OJ L 75, 15.3.2001, p. 29, Directive as amended by Commission Deci-

sion 2002/844/EC (OJ L 289, 26.10.2002, p. 30).

(8) OJ L 235, 17.9.1996, p. 6. Directive as amended by Regulation (EC)
No 1882/2003 of the European Parliament and of the Council
(OJ L 284, 31.10.2003, p. 1).

(9) OJ L 110, 20.4.2001, p. 1.

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(6)

(7)

(8)

(9)

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 cre-
ate, 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 (hereinafter referred to as the Agency). The
creation of such an agency will provide a means of con-
sidering the safety and interoperability goals for the Euro-
pean 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.

In order to promote the establishment of a European rail-
way area without borders and to help revitalise the railway
sector while reinforcing its essential advantages in terms of
safety, the Agency should contribute to the development
of a genuine European railway culture and form an essen-
tial tool of dialogue, consultation and exchange between all
the actors in the railway sector, having due regard for their
individual competences.

Directive 2004/49/EC of the European Parliament and of
the Council of 30 April 2004 on safety on the Communi-
ty’s railways (Railway Safety Directive) (1) provides for the
development of common safety indicators, common safety
targets and common safety methods. Development of
these tools requires independent technical expertise.

In order to facilitate the procedures for issuing safety cer-
tificates to railway undertakings, it is essential to develop a
harmonised format for safety certificates and a harmonised
format for applications for safety certificates.

(10) The Railway Safety Directive provides for examination of
national safety measures from the point of view of safety
and interoperability. To this end, an opinion based on
independent and neutral expertise is essential.

(11)

In the field of safety, it is important to ensure the greatest
possible transparency and an effective flow of 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. As regards statistics,
close collaboration with Eurostat is necessary.

(12)

The national railway safety organisations, regulators and
other national authorities should be able to request an
independent technical opinion when they require informa-
tion concerning several Member States.

(13) Directive 2001/16/EC provides that a first group of tech-
nical specifications for interoperability (TSIs) is to be 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 together the manufacturers of railway equipment
and the infrastructure managers and operators. Steps
should be taken to preserve the experience built up by pro-
fessionals from the industry in the context of the AEIF. The
continuity of the work and the development of the TSIs
over time requires a permanent technical framework.

(14) The interoperability of the Trans-European network should
be enhanced and the new investment projects chosen for
support by the Community should be in line with the
objective
Decision
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 (2).

interoperability

set

of

in

(15)

In order to ensure continuity, the working parties to be set
up by the Agency should rely as appropriate on the com-
supplemented by additional
position of
members.

the AEIF,

(16) Rolling stock maintenance is an important part of the
safety system. There is no genuine European market for the
maintenance of rail equipment owing to the lack of a sys-
tem for certification of maintenance workshops. This situ-
ation adds to the costs for the sector and results in jour-
neys without loads. A European certification system for
maintenance workshops should therefore gradually be
developed.

(17) The vocational competences 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 should be
tackled with respect to the existing framework for social
dialogue. The Agency should provide the technical support
necessary in order to take account of this aspect at Euro-
pean level.

(18) Registration is first and foremost an act of recognition of
the capability of rolling stock to operate under specified
conditions. The
transparent
and non-discriminatory and fall within the competence of
the public authorities. The Agency should provide techni-
cal support in order to establish a system for registration.

registration should be

(1) See page 16 of this Official Journal.

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

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

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(19)

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

(20)

Promotion of innovation in the field of railway safety and
interoperability is an important task which the Agency
should encourage. Any financial assistance provided within
the framework of the Agency’s activities in this respect
should not lead to any distortion in the relevant market.

(21)

In order to perform its tasks properly, the Agency should
have legal personality and an autonomous budget funded
mainly through a contribution by the Community. In order
to ensure independence in its daily management and in the
opinions and recommendations which it issues, the Agen-
cy’s Executive Director should have full responsibility and
the Agency’s staff should be independent.

(22)

(23)

In order to ensure effectively the accomplishment of the
functions of the Agency, the Member States and the Com-
mission should be represented on an Administrative Board
vested with the necessary powers to establish the budget,
verify its execution, adopt the appropriate financial rules,
establish transparent working procedures for decision-
making by the Agency, approve its work programme,
adopt its budget, define a policy for visits to the Member
States and appoint the Executive Director.

In order to guarantee the transparency of the Administra-
tive Board’s decisions, representatives of the sectors con-
cerned should attend its deliberations, but without the
right to vote, that right being reserved to the representa-
tives of public authorities who are answerable to the demo-
cratic control authorities. The representatives of the sector
should be appointed by the Commission on the basis of
their representativeness at European level for railway
undertakings, infrastructure managers, railway industry,
workers unions, passengers and freight customers.

(24)

The Agency’s work should be transparent. Effective con-
trol by the European Parliament should be ensured and, to
this end, the European Parliament should have the possi-
bility of hearing the Executive Director of the Agency. The
Agency should also apply the relevant Community legisla-
tion concerning public access to documents.

(25) Over the past years, as more decentralised agencies have
been created,
the budgetary authority has looked to
improve transparency and control over the management
of the Community funding allocated to them, in particular
concerning the budgetisation of the fees, financial control,
power of discharge, pension scheme contributions and the
internal budgetary procedure (code of conduct). In a simi-
lar way, Regulation (EC) No 1073/1999 of the European
Parliament and of the Council of 25 May 1999 concern-
ing investigations conducted by the European Anti-Fraud
Office (OLAF) (1) should apply without restriction to the
Agency, which should accede to the Interinstitutional
Agreement of 25 May 1999 between the European Parlia-
ment, the Council of the European Union and the Com-
mission of the European Communities concerning inter-
nal investigations by the European Anti-Fraud Office (2).

(26)

Since the objectives of the action proposed, namely to
establish a specialised body to formulate common solu-
tions on matters concerning railway safety and interoper-
ability, cannot be sufficiently achieved by the Member
States by reason of the joint nature of the work to be done,
and can therefore be better achieved at Community level,
the Community may adopt measures in accordance with
the principle of subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of proportionality
as set out in that Article, this Regulation does not go
beyond what
is necessary in order to achieve those
objectives,

HAVE ADOPTED THIS REGULATION:

CHAPTER 1

PRINCIPLES

Article 1

Establishment and objectives of the Agency

This Regulation establishes a European railway agency, hereinaf-
ter referred to as the Agency.

The objective of the Agency shall be to contribute, on technical
matters, to the implementation of the Community legislation
aimed at improving the competitive position of the railway sec-
tor by 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 rail-
way area without frontiers and guaranteeing a high level of safety.

(1) OJ L 136, 31.5.1999, p. 1.
(2) OJ L 136, 31.5.1999, p. 15.

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

The working parties shall be chaired by a representative of

5.
the Agency.

The Agency shall have sole responsibility in the context of the
functions and powers assigned to it.

Article 4

Consultation of the social partners

Article 2

Type of acts of the Agency

The Agency may:

(a) address recommendations to the Commission concerning the

application of Articles 6, 7, 12, 14, 16, 17 and 18;

(b)

issue opinions to the Commission pursuant to Articles 8, 13
and 15, and to the authorities concerned in the Member
States pursuant to Article 10.

Whenever the work provided for in Articles 6, 7, 12, 16 and 17
has a direct impact on the social environment or working condi-
tions of workers in the industry, the Agency shall consult the
social partners within the framework of the sectoral dialogue
committee set up pursuant to Decision 98/500/EC (1).

These consultations shall be held before the Agency submits its
recommendations to the Commission. The Agency shall take due
account of these consultations, and shall, at all times, be available
to expound on its recommendations. The opinions expressed by
the sectoral 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 96/48/EC.

Article 3

Composition of the working parties

Article 5

1.
For drawing up the recommendations provided for in
Articles 6, 7, 12, 14, 16, 17 and 18, the Agency shall establish a
limited number of working parties. These working parties shall
take as a basis, on the one hand, the expertise built up by profes-
sionals from the railway sector, in particular the experience gained
by the European Association for Railway Interoperability (AEIF),
and, on the other hand, the expertise of the competent national
authorities. The Agency shall ensure that its working parties are
competent and representative and that they include adequate rep-
resentation of those sectors of the industry and of those users
which will be affected by measures which might be proposed by
the Commission on the basis of the recommendations addressed
to it by the Agency. The work of the working parties shall be
transparent.

Whenever the work provided for in Articles 6, 12, 16 and 17 has
a direct impact on the working conditions, health and safety of
workers in the industry, representatives from the workers’ organi-
sations shall participate in the relevant working parties.

2.
The Agency shall forward the adopted work programme to
the representative bodies from the railway sector acting on a
European level. The list of these bodies shall be drawn up by the
Committee referred to in Article 21 of Directive 96/48/EC. Each
body and/or group of bodies shall forward to the Agency a list of
the most qualified experts mandated to represent them in each
working party.

Consultation of rail freight customers and passengers

Whenever the work provided for in Articles 6 and 12 has a direct
impact on rail freight customers and passengers, the Agency shall
consult the organisations representing them. The list of organisa-
tions to be consulted shall be drawn up by the committee referred
to in Article 21 of Directive 96/48/EC.

These consultations shall be held before the Agency submits its
proposals to the Commission. The Agency shall take due account
of these consultations, and shall, at all times, be available to
expound on its proposals. The opinions expressed by the organi-
sations concerned shall be forwarded by the Agency to the Com-
mission and by the Commission to the committee referred to in
Article 21 of Directive 96/48/EC.

CHAPTER 2

SAFETY

Article 6

Technical support

3.
The national safety authorities defined in Article 16 of the
Railway Safety Directive shall appoint their representatives for the
working parties in which they wish to participate.

1.
The Agency shall recommend to the Commission the com-
mon safety methods (CSMs) and the common safety targets (CSTs)
provided for in Articles 6 and 7 of the Railway Safety Directive.

The Agency may, if necessary, add to the working parties
in the field

4.
independent experts recognised as competent
concerned.

(1) Commission Decision 98/500/EC of 20 May 1998 on the establish-
ment of Sectoral Dialogue Committees promoting the dialogue
between the social partners at European level (OJ L 225, 12.8.1998,
p. 27).

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The Agency shall recommend to the Commission, at the
2.
request of the Commission or of the committee referred to in
Article 21 of Directive 96/48/EC or on its own initiative, other
measures in the field of safety.

responsible for the investigations provided for by the Railway
Safety Directive in order to define the content of the common
safety indicators listed in Annex I to that Directive and to collect
relevant data on railway safety.

3.
For the transitional period preceding adoption of the CSTs,
of the CSMs and of the technical specifications for interoperabil-
ity (TSIs), as well as for matters concerning equipment and infra-
structure not covered by the TSIs, the Agency may submit any
appropriate recommendation to the Commission. The Agency
shall ensure consistency between these recommendations and the
TSIs already existing or being drawn up.

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

The Agency shall organise and facilitate cooperation
5.
between the national safety authorities and the investigating bod-
ies defined in Articles 16 and 21 of the Railway Safety Directive.

Article 7

Safety certificates

With a view to the application of Articles 10 and 15 of the Rail-
way Safety Directive concerning the harmonisation of safety cer-
tificates, the Agency shall draft and recommend a harmonised for-
mat for safety certificates, including an electronic version, and a
harmonised format for applications for safety certificates, includ-
ing a list of the essential details to be provided.

Article 8

National safety rules

1.
At the request of the Commission, the Agency shall carry
out a technical examination of the new national safety rules sub-
mitted to the Commission in accordance with Article 8 of the
Railway Safety Directive.

2.
The Agency shall examine the compatibility of the above-
mentioned rules with the CSMs defined by the Railway Safety
Directive and with the TSIs in force. The Agency shall also exam-
ine whether these rules enable the CSTs defined by the said Direc-
tive to be achieved.

3.
If, after taking account of the reasons given by the Member
State, the Agency considers that any of these rules either is incom-
patible with the TSIs or the CSMs or does not allow CSTs to be
reached, it shall submit an opinion to the Commission within two
months of transmission of the rules to the Agency by the
Commission.

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

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

Article 10

Technical opinions

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.

The committees provided for in Article 35 of Directive
2.
2001/14/EC and Article 11a of Directive 91/440/EEC 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 commercially confidential material has been removed.

Article 11

Public database of documents

The Agency shall be responsible for keeping a public data-

1.
base of the following documents:

(a)

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

(b)

the safety certificates issued in accordance with Article 10 of
the Railway Safety Directive;

Article 9

Monitoring of safety performance

(c)

the investigation reports sent to the Agency in accordance
with Article 24 of the Railway Safety Directive;

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

(d)

the national safety rules notified to the Commission in accor-
dance with Article 8 of the Railway Safety Directive.

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The national authorities responsible for issuing the docu-
2.
ments referred to in paragraph 1(a) and (b) shall notify the Agency
within one month of each individual decision to issue, renew,
amend or revoke them.

Article 14

Monitoring interoperability

The Agency may add to this public database any public

3.
document or link relevant to the objectives of this Regulation.

CHAPTER 3

INTEROPERABILITY

Article 12

1.
The Agency shall recommend, at the request of the Com-
mission, procedures for implementing interoperability of the rail-
way systems by facilitating coordination between railway under-
takings and between infrastructure managers, in particular to
organise systems migration.

2.
The Agency shall monitor progress with the interoperabil-
ity 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 of
activity.

Technical support provided by the Agency

Article 15

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

(a) organise and conduct, on a mandate from the Commission,
the work of the working parties referred to in Article 3 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 con-
siders necessary;

(c)

ensure coordination between the development and updating
of the TSIs on the one hand and the development of the
European standards which prove necessary for interoperabil-
ity on the other and maintain the relevant contacts with the
European standardisation bodies;

(d) assist the Commission in organising and facilitating the coop-
eration of notified bodies, as described in Article 20(5) of
Directives 96/48/EC and 2001/16/EC;

Interoperability of the trans-European network

At the request of the Commission, the Agency shall examine,
from the point of view of interoperability, any railway infrastruc-
ture project for which Community financial support is requested.
The Agency shall give an opinion on the conformity of the project
with the relevant TSIs within two months of the request. This
opinion shall take fully into account the derogations provided for
in Article 7 of Directive 96/48/EC and of Directive 2001/16/EC.

Article 16

Certification of maintenance workshops

Within three years from the start of its activities, the Agency shall
develop a European system for certification of maintenance work-
shops for rolling stock and shall make recommendations with a
view to the implementation of the system.

These recommendations shall address in particular the following
items:

— structured management system,

— staff with the necessary competences,

— facilities and tools,

(e) advise and address recommendations to the Commission
relating to the working conditions of all staff executing
safety-critical tasks.

— technical documentation and maintenance prescriptions.

Article 13

Monitoring the work of notified bodies

Article 17

Vocational competences

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

The Agency shall draw up recommendations concerning
1.
the determination of common uniform criteria for the vocational
competences and the assessment of the staff involved in the
operation and maintenance of the railway system. In doing so it
shall give priority to drivers and trainers. The Agency shall con-
sult the representatives of the social partners in accordance with
the arrangements laid down in Article 4.

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The Agency shall draw up recommendations with a view to

2.
putting in place a system for accreditation of training centres.

Article 21

Promotion of innovation

3.
The Agency shall promote and support exchanges of driv-
ers and trainers between railway companies from different Mem-
ber States.

Article 18

Registration of rolling stock

The Agency shall draw up and recommend to the Commission a
standard format for the national vehicle register in accordance
with Article 14 of Directives 96/48/EC and 2001/16/EC.

Article 19

Register of documents on interoperability

The Agency shall keep a public list of the following docu-

1.
ments provided for by Directives 2001/16/EC and 96/48/EC:

(a)

the EC declarations of verification of subsystems;

The Commission may entrust the Agency, in accordance with the
Agency’s work programme and budget, with the task of promot-
ing innovations aimed at improving railway interoperability and
safety, particularly the use of new information technologies and
tracking and tracing systems.

CHAPTER 5

INTERNAL STRUCTURE AND OPERATION

Article 22

Legal status

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

1.
legal personality.

2.
In each of the Member States, the Agency shall enjoy the
most extensive legal capacity accorded to legal persons under
their laws. It may in particular, acquire or dispose of movable and
immovable property and may be a party to legal proceedings.

(b)

the EC declarations of conformity of constituents;

3.

The Agency shall be represented by its Executive Director.

(c)

the authorisations for putting into service, including the cor-
responding registration numbers;

Article 23

Privileges and immunities

(d)

the registers of infrastructure and rolling stock.

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

3. When transmitting the documents referred to in paragraph
1, the bodies concerned may indicate which documents are not
to be disclosed to the public for reasons of security.

4.
The Agency shall set up an electronic database for the docu-
ments, taking full account of paragraph 3. This database shall be
accessible to the public through a website.

CHAPTER 4

STUDIES AND PROMOTION OF INNOVATION

Article 20

Studies

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

Article 24

Staff

1.S
The Staff Regulations of officials of the European Commu-
nities, the Conditions of Employment of other servants of the
European Communities and the rules adopted jointly by the insti-
tutions of the European Communities for purposes of the appli-
cation of those Staff Regulations and Conditions of Employment
shall apply to the staff of the Agency.

2. Without prejudice to Article 26, the powers conferred on
the appointing authority and on the contracting authority by the
said Staff Regulations and Conditions of Employment shall be
exercised by the Agency in respect of its own staff.

3. Without prejudice to Article 26(1), the Agency’s staff shall
consist of:

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

— temporary employees recruited by the Agency for a maxi-
mum of five years from among professionals from the sector
on the basis of their qualifications and experience in the field
of railway safety and interoperability;

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— officials assigned or seconded by the Commission or Mem-

ber States for a maximum of five years;

Article 26

Composition of the Administrative Board

and

— 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 organ-
ised by the Agency shall not belong to the Agency’s staff. Their
travel and subsistence expenses, based on rules and scales adopted
by the Administrative Board, shall be met by the Agency.

Article 25

1.
The Administrative Board shall be composed of one repre-
sentative of each Member State and four representatives of the
Commission, as well as of six representatives, without the right to
vote, the latter representing at European level the following
groups:

— railway undertakings,

— infrastructure managers,

— railway industry,

— worker unions,

Creation and powers of the Administrative Board

— passengers,

1.

An Administrative Board is hereby set up.

— freight customers;

2.

The Administrative Board shall:

and appointed by the Commission from a shortlist of three names
submitted by their respective European organisations.

(a) appoint the Executive Director pursuant to Article 31;

Board members shall be appointed on the basis of their degree of
relevant experience and expertise.

(b) adopt, by 30 April each year, the general report of the Agency
for the previous year and forward it to the Member States, the
European Parliament, the Council and the Commission;

Each Member State and the Commission shall appoint their

2.
members of the Administrative Board as well as an alternate.

(c) adopt, by 31 October each year, and taking the opinion of
the Commission into account, the work programme of the
Agency for the coming year and forward it to the Member
States, the European Parliament, the Council and the Com-
mission. This work programme shall be adopted without
prejudice to the annual Community budgetary procedure. If
the Commission expresses, within 15 days from the date of
adoption of the work programme, its disagreement with the
programme, the Administrative Board shall re-examine the
programme and adopt it, possibly amended, on a second
reading either with a two-thirds majority, including the Com-
mission representatives, or by unanimity of the representa-
tives of the Member States;

(d) exercise its functions in relation to the Agency’s budget, pur-

suant to Chapter 6;

(e)

establish procedures for decision-making by the Executive
Director;

(f) define a policy for the visits to be carried out pursuant to

Article 33;

(g) exercise disciplinary authority over the Executive Director

and the Heads of Unit referred to in Article 30(3);

(h) establish its rules of procedure.

The term of office shall be five years and may be renewed

3.
once.

4. When appropriate, the participation of representatives of
third countries and the conditions thereof shall be established in
the arrangements referred to in Article 36(2).

Article 27

Chairperson of the Administrative Board

The Administrative Board shall elect a Chairperson and a
1.
Deputy Chairperson from among its members. The Deputy Chair-
person shall replace the Chairperson in the event of the Chairper-
son being unable to attend to his/her duties.

2.
The term of office of the Chairperson and Deputy Chairper-
son shall be three years and may be renewed once. If, however,
their membership of the Administrative Board ends at any time
during their term of office as Chairperson or Deputy Chairperson,
then their term of office shall automatically expire on that date
also.

Article 28

Meetings

1. Meetings of the Administrative Board shall be convened by
its Chairperson. The Executive Director of the Agency shall par-
ticipate in the meetings.

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The Administrative Board shall meet at least twice a year. It
2.
shall also meet at the instance of the Chairperson, at the request
of the Commission, at the request of the majority of its members
or of one-third of the Member States’ representatives on the
Board.

Article 29

Voting

Unless stated otherwise, the Administrative Board shall take its
decisions by a two-thirds majority of its members entitled to vote.
Each member entitled to vote shall have one vote.

Article 30

Functions and powers of the Executive Director

Article 31

Appointments of the Agency staff

1.
The Executive Director shall be appointed by the Adminis-
trative Board on the grounds of merit and documented adminis-
trative and managerial skills, as well as competence and experi-
ence relevant to the railway sector. The Administrative Board shall
take its decision by a four-fifths majority of all members entitled
to vote. The Commission may propose a candidate or candidates.

Power to dismiss the Executive Director shall lie with the Admin-
istrative Board, according to the same procedure.

The Executive Director shall appoint the other members of

2.
the Agency’s staff in accordance with Article 24.

The term of office of the Executive Director shall be five

3.
years. This term of office is renewable once.

1.
The Agency shall be managed by its Executive Director, who
shall be completely independent in the performance of his/her
duties, without prejudice to the respective competences of the
Commission and the Administrative Board.

Article 32

Hearing of the Executive Director

2.

The Executive Director shall:

(a) prepare the work programme and, after consultation of the

Commission, submit it to the Administrative Board;

(b) make the necessary arrangements for implementation of the
work programme and, as far as possible, respond to requests
for assistance from the Commission in relation to the tasks
of the Agency in accordance with this Regulation;

(c)

take the necessary steps, in particular the adoption of inter-
nal administrative instructions and the publication of orders,
to ensure that the Agency operates in accordance with this
Regulation;

(d) establish an effective monitoring system in order to compare
the Agency’s results with its operational objectives and estab-
lish a regular assessment system corresponding to recognised
professional standards. On this basis the Executive Director
shall prepare each year a draft general report and submit it to
the Administrative Board;

(e)

exercise the powers laid down in Article 24(2) in respect of
the Agency staff;

(f) prepare a draft statement of estimates of the revenue and
expenditure of the Agency pursuant to Article 38 and imple-
ment the budget pursuant to Article 39.

Each year the Executive Director shall present to the European
Parliament a general report on the Agency’s activities. The Euro-
pean Parliament or the Council may also ask at any time for a
hearing of the Executive Director on any subject related to the
Agency’s activities.

Article 33

Visits to Member States

In order to perform the tasks entrusted to it by Articles 8,
1.
9, 10, 13 and 15, the Agency may carry out visits to the Member
States in accordance with the policy defined by the Administra-
tive Board. The national authorities of the Member States shall
facilitate the work of the Agency’s staff.

2.
The Agency shall inform the Member State concerned of the
planned visit, the names of the delegated Agency officials, and the
date on which the visit is to start. The Agency officials delegated
to carry out such visits shall do so on presentation of a decision
from the Executive Director specifying the purpose and the aims
of their visit.

At the end of each visit, the Agency shall draw up a report
3.
and send it to the Commission and to the Member State
concerned.

Article 34

Liability

The contractual liability of the Agency shall be governed by

1.
the law applicable to the contract in question.

3.
The Executive Director may be assisted by one or more
Heads of Unit. If the Executive Director is absent or unable to
attend to his/her duties, one of the Heads of Unit shall take his/her
place.

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.

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In the case of non-contractual liability, the Agency shall, in
3.
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.

Decisions taken by the Agency pursuant to Article 8 of Regula-
tion (EC) No 1049/2001 may form the subject of a complaint to
the Ombudsman or of an action before the Court of Justice of the
European Communities, under Articles 195 and 230 of the Treaty
respectively.

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

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

CHAPTER 6

FINANCIAL PROVISIONS

Article 38

Budget

Article 35

Languages

1.
Estimates of all the revenue and expenditure of the Agency
shall be prepared for each financial year, corresponding to the cal-
endar year, and shall be set out in the budget of the Agency. Rev-
enue and expenditure shall be in balance.

1.
The Administrative Board shall decide on the linguistic
arrangements for the Agency. At the request of a Member of the
Administrative Board, this decision shall be taken by unanimity.
The Member States may address the Agency in the Community
language of their choice.

2.

The revenue of the Agency shall consist of:

— a contribution from the Community,

2.
The translation services required for the functioning of the
Agency shall be provided by the Translation Centre for the Bod-
ies of the European Union.

— any contribution from third countries participating in the

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

Article 36

Participation by third countries

1.
The Agency shall be open to participation by European
countries which have concluded agreements with the Commu-
nity, whereby the countries concerned have adopted and are
applying 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 of the European Parliament and
of the Council of 30 May 2001 regarding public access to Euro-
pean Parliament, Council and Commission documents (1) 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 by 1 October
2004.

(1) OJ L 145, 31.5.2001, p. 43.

— charges for publications, training and any other services pro-

vided by the Agency.

The expenditure of the Agency shall include staff, adminis-

3.
trative, infrastructure and operational expenses.

Each year, the Administrative Board, on the basis of a draft
4.
drawn up by the Executive Director, shall produce a statement of
estimates of revenue and expenditure for the Agency for the fol-
lowing financial year. This statement of estimates, which shall
include a draft establishment plan, shall be forwarded by the
Administrative Board to the Commission by 31 March at the
latest.

5.
The statement of estimates shall be forwarded by the Com-
mission to the European Parliament and the Council (hereinafter
referred to as the budgetary authority) together with the prelimi-
nary draft general budget of the European Union

On the basis of the statement of estimates, the Commission
6.
shall enter in the preliminary draft general budget of the European
Union the estimates it considers necessary for the establishment
plan and the amount of the subsidy to be charged to the general
budget, which it shall place before the budgetary authority in
accordance with Article 272 of the Treaty.

7.
The budgetary authority shall authorise the appropriations
for the subsidy to the Agency. The budgetary authority shall adopt
the establishment plan for the Agency.

8.
The budget shall be adopted by the Administrative Board. It
shall become final following final adoption of the general budget
of the European Union. Where appropriate, it shall be adjusted
accordingly.

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The Administrative Board shall notify the budgetary author-
9.
ity as soon as possible of its intention to implement any project
which may have significant financial implications for the funding
of the budget, in particular any projects relating to property such
as the rental or purchase of buildings. It shall inform the Com-
mission thereof. Where a branch of the budgetary authority has
notified its intention to deliver an opinion on the project, it shall
forward its opinion to the Administrative Board within six weeks
after the date of notification of the project.

Article 39

Implementation and control of the budget

The Executive Director shall implement the budget of the

1.
Agency.

2.
By 1 March at the latest following each financial year, the
Agency’s accounting officer shall communicate the provisional
accounts to the Commission’s accounting officer together with a
report on the budgetary and financial management for that finan-
cial year. The Commission’s accounting officer shall consolidate
the provisional accounts of the institutions and decentralised bod-
ies in accordance with Article 128 of the general Financial
Regulation.

3.
By 31 March at the latest, following each financial year, the
Commission’s accounting officer shall forward the Agency’s pro-
visional accounts to the Court of Auditors, together with a report
on the budgetary and financial management for that financial
year. The report on the budgetary and financial management for
the financial year shall also be forwarded to the European Parlia-
ment and the Council.

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

4.
On receipt of the Court of Auditors’ observations on the
Agency’s provisional accounts, under Article 129 of the general
Financial Regulation, the Executive Director shall draw up the
Agency’s final accounts under his own responsibility and submit
them to the Administrative Board for an opinion.

The Administrative Board shall deliver an opinion on the

5.
Agency’s final accounts.

6.
The Executive Director shall, by 1 July at the latest follow-
ing each financial year, forward the final accounts to the European
Parliament, the Council, the Commission and the Court of Audi-
tors, together with the Administrative Board’s opinion.

7.

The final accounts shall be published.

8.
The Executive Director shall send the Court of Auditors a
reply to its observations by 30 September at the latest. He shall
also send this reply to the Administrative Board.

The Executive Director shall submit to the European Parlia-
9.
ment, at the latter’s request, all information necessary for the
smooth application of the discharge procedure for the financial
year in question, in accordance with Article 146(3) of the general
Financial Regulation.

10.
The European Parliament, on a recommendation from the
Council acting by a qualified majority, shall, before 30 April of
year N + 2 give a discharge to the Executive Director in respect of
the implementation of the budget for year N.

Article 40

Financial Regulation

The financial rules applicable to the Agency shall be adopted by
the Administrative Board after the Commission has been con-
sulted. They may not depart from Regulation (EC, Euratom)
No 2343/2002 (1) unless such a departure is specifically required
for the Agency’s operation and the Commission has given its
prior consent.

Article 41

Combating fraud

1.
For the purposes of combating fraud, corruption and other
unlawful acts, Regulation (EC) No 1073/1999 shall apply in full.

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

The decisions concerning funding and the implementing
3.
agreements and instruments resulting from them shall explicitly
state that the Court of Auditors and OLAF may, if necessary, carry
out on-the-spot checks on the recipients of the Agency’s funding.

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.

(1) Commission Regulation (EC, Euratom) No 2343/2002 of 23 Decem-
ber 2002 on the framework Financial Regulation for the bodies
referred to in Article 185 of Council Regulation (EC, Euratom) No
1605/2002 on the Financial Regulation applicable to the general bud-
get of the European Communities (OJ L 357, 31.12.2002, p. 72).

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Article 43

Evaluation

Five years after the Agency takes up its duties, the Commission
shall carry out an evaluation of implementation of this Regula-
tion, the results obtained by the Agency and its working meth-
ods. This evaluation shall take account of the views of the repre-
sentatives of the railways sector, 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.

In that context, the Commission shall, if appropriate, present a
proposal for revision of the provisions of this Regulation in light
of developments in respect of regulatory agencies, in accordance
with the procedure laid down in Article 251 of the Treaty. The
European Parliament and Council shall examine this proposal and
in particular consider whether the composition of the Adminis-
trative Board needs to be revised, in accordance with the general
framework to be adopted for regulatory agencies.

Article 44

This Regulation shall enter into force on the day following that of
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, 29 April 2004.

For the European Parliament
The President
P. COX

For the Council
The President
M. McDOWELL

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COMMISSION STATEMENT

The Commission recalls its December 2002 communication on a framework for European regulatory agen-
cies and its proposal for a Regulation establishing the European Railway Agency. The Commission believes, in
accordance with European Parliament resolution of 13 January 2004 on the abovementioned communica-
tion, that a Board of limited size with members appointed by the Community’s executives would ensure a bet-
ter functioning of the Agency in an enlarged EU. In this respect, the Commission looks forward to receiving
the Council’s response to its communication on a framework for regulatory agencies. The Commission con-
firms its intention to present, when appropriate, a proposal on a framework for European agencies, which will
also cover the composition of the Management Board.