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 (Text with EEA relevance)
Date: 2009-08-31
Institutions: European Commission
Subjects: accession to an agreement, common transport policy, international convention, international transport, rail network, rail transport

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 31.8.2009 
COM(2009) 441 final 

2009/0121 (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 
(Text with EEA relevance) 

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1. 

2. 

3. 

4. 

5. 

6. 

7. 

EXPLANATORY MEMORANDUM 

With this Communication the Commission submits to the Council a revised 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. 

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. 

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.  The  Council  Decision  included 
negotiating directives and instructions for the Community’s accession to the COTIF.  

Although a proposal for a Council Decision to accept the conditions of an agreement 
between  the  Community  and  the  Intergovernmental  Organisation  for  International 
Carriage  by  Rail  (OTIF)  was  made  in  20031,  the  accession  of  the  Community  to 
COTIF could not take place until the Vilnius Protocol had come into force and which 
was  dependent  on  a  number  of  ratifications  being  made  by  OTIF  Member  States. 
COTIF, as amended by the Vilnius Protocol, came into force in July 2006.  

The  Commission  proposal  of  2003  for  the  European  Community's  accession  to 
COTIF  was  transmitted  to  the  Council  and  European  Parliament  on  17  November 
2003.  On  10  March  2004,  it  received  a  favourable  opinion  of  the  European 
Parliament, who approved it without amendment after first reading. However, it was 
felt  that  Community  should  seek  clarifications  and  assurances  from  OTIF  on  one 
particular  question.  There  was  a  growing  realisation  that  Article  3(2)  of  COTIF 
which purported to ensure compliance between the respective Community and OTIF 
legal regimes, in fact did not do this adequately. A legal review of the COTIF and its 
Appendices  confirmed  that  a  number  of  divergences  existed  between  Community 
acquis and COTIF, relating both to the rules on jurisdiction in the COTIF (articles 12 
and 28) and to the rules in some of the Appendices (E, F and G). 

Member  States  were  well  aware  of  this  conflict  and  following  a  formal  suggestion 
from  the  Commission,  made  declarations  against  the  above-mentioned  COTIF 
Appendices under article 42 of COTIF. Through these declarations, the provisions in 
these Appendices became inapplicable in the countries concerned. This removed the 
possibility  of  any  conflict  with  Community  legislation  on  the  matters  covered  by 
these Appendices, but also had the automatic effect of making rules which were not 
in conflict inapplicable as well. 

In order to protect the European Community legal regime, the Community proposed 
that a suitable provision (a so-called disconnection clause) should be added into the 
agreement to avoid any legal incompatibilities between COTIF and the existing and 
developing Community acquis. 

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COM (2003) 696 of 17 November 2003 

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8. 

The Commission Inter-service Group  on  External Competencies  of the Community 
examined the general issues regarding the Community's accession on 19 April 2007. 
It concluded the most appropriate way forward was that : 

–  The  Commission  should  agree  with  OTIF  on  the  inclusion  of  a  standard 
disconnection  clause  in  the  Agreement  on  the  Accession  of  the  Community  to 
COTIF. 

–  Member States should maintain their declarations against COTIF Appendices (E, 
F & G). Member States that have ratified the 1999 Vilnius Protocol but have not 
yet made a declaration against these Appendices should be obliged to do so. 

–  Upon  accession  of  the  Community  to  COTIF,  the  Community  should  declare 

against COTIF Appendices (E, F & G). 

–  The  withdrawal  of  the  above  mentioned  declarations  (of  the  Member  States  and 
the  Community)  should  take  place  when  legal  inconsistencies  between  the  two 
legal systems are removed. 

This  approach  was  discussed  at  the  Council  during  2007  which  allowed  the 
reopening of the negotiations with OTIF, in particular on the question of an adequate 
disconnection clause. At the same time, the work on resolving the issue of the legal 
incompatibilities between the EC and OTIF legal regimes was undertaken. This work 
was concluded in 2008. 

The negotiation sessions between the Commission and OTIF of May and June 2009 
resulted in the joint draft agreement attached hereto in annex. The current situation is 
that  COTIF  is  in  force  and  the  European  Community  may  now  accede  to  it.  The 
compatibility  issues  between  European  Community  law  and  COTIF  have  been 
resolved in principle with the necessary changes to COTIF having been submitted to 
and  adopted  by  the  appropriate  OTIF  Committee  23,  24  and  25  June  2009.  These 
changes  will  take  effect  12  months  after  OTIF  gives  notice  of  them  to  its  Member 
States. 

Therefore  the  attached  agreement  was  made  having  considered  all  of  these  issues, 
represents fulfilment of the obligations given in the Council's mandate and provides a 
way  forward  for  the  European  Community  to  pursue  its  objective  of  extending  the 
Community  rail  area  and  provide  more  opportunities  for  the  development  of  the 
railway market.  

9. 

10. 

11. 

12. 

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

–  withdraws the 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) which was adopted in 2003 (COM(2003) 
696 final of 17 November 2003); 

–  proposes that the Council adopts the attached Decision; 

–  addresses this Communication to the Council. 

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2009/0121 (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 
(Text with EEA relevance) 

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,2 

Having regard to the Opinion of the European Parliament,3 

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, hereinafter referred to as "COTIF". 

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. 

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 resolution of a number of conflicts between the provisions of certain Appendices 
of  COTIF  and  Community  law  still  pending,  the  European  Community  should,  in 
connection with its accession to COTIF, make a declaration according to Article 42 of 
COTIF regarding the non-application of Appendices E, F and G of COTIF. 

2 
3 

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

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HAS ADOPTED THIS DECISION:  

Article 1 

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,  subject  to  the 
following conditions:  

–  upon accession a declaration shall be made by the Community concerning the exercise of 

its competence,  

–  upon  accession  a  declaration  shall  be  made  by  the  Community  concerning  the  non-

application of Appendices E, F and G of COTIF. 

2. The text of the Agreement and the declarations referred to in paragraph 1 are attached as 
Annexes 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. 

Done at Brussels,  

For the Council 
The President 

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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 establishing the European Community 
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 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 in both technical and legal respects; 

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 States party to the Agreement on the European Economic Area;  

Whereas  a  disconnection  clause  is  necessary  for  those  parts  of  the  Convention  which  fall 
within  the  competence  of  the  European  Community,  in  order  to  indicate  that  European 
Community Member States cannot invoke and apply the rights and obligations deriving from 
the Convention directly among themselves; 

Whereas  the  Convention  applies  fully  between  the  European  Community  and  its  Member 
States on the one hand, and the other Parties to the Convention, on the other; 

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, 

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HAVE AGREED AS FOLLOWS: 

Article 1 

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 2 

Contracting Parties to the Convention which are Members of the European Community will, 
in  their  mutual  relations,  apply  Community  rules  in  so  far  as  there  are  Community  rules 
governing  the  particular  subject  concerned  and  applicable  to  the  specific  case,  without 
prejudice  to  the  object  and  purpose  of  the  Convention  and  without  prejudice  to  its  full 
application with other Contracting Parties to the Convention. 

Article 3 

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 shall not contribute to the budget of OTIF and shall not take part in 
decisions concerning that budget. 

Article 4 

Article 5 

1. 

2. 

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. 
The European Community may not be a member of the Administrative Committee. It 
may  be  invited  to  participate  in  meetings  of  this  Committee  when  the  Committee 
wishes  to  consult  it  on  matters  of  common  interest  that  have  been  placed  on  the 
agenda. 

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

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Article 6 

1. 

2. 

3. 

4. 

For decisions in matters where the European Community has exclusive competence, 
the European Community will exercise the voting rights of its Member States under 
the Convention.  

For decisions in matters where the European Community shares competence with its 
Member States, either the European Community or its Member States shall vote.  

Subject to Article 26 paragraph 7 of the Convention, the European Community shall 
have a number of votes equal to that of its Members who are also Member States of 
OTIF. When the European Community votes, its Member States 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  to  3  above.  This 
obligation  shall  also  apply  when  decisions  are  taken  by  correspondence.  This 
information is to be provided early enough to the OTIF Secretary-General in order to 
allow  its  circulation  together  with  meeting  documents  or  a  decision  to  be  taken  by 
correspondence. 

Article 7 

The  scope  of  the  competence  of  the  Community  shall  be  indicated  in  general  terms  in  a 
written  declaration  made  by  the  European  Community  at  the  time  of  the  conclusion  of  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 8 

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

the 

Article 9 

This  Agreement  shall  enter  into  force  on  the  first  day  of  the  first  month  following  the 
signature  of  the  agreement  by  the  Contracting  Parties.  Article  34  paragraph  2  of  the 
Convention shall not apply in this case.  

This Agreement shall remain in force for an indefinite period. 

Article 10 

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If  all  OTIF  Member  States  which  are  Members  of  the  European  Community  denounce  the 
Convention,  the  notification  of  that  denunciation,  as  well  as  of  the  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. 

Article 11 

Contracting Parties to the Convention other than Member States of the European Community 
which  apply  relevant  European  Community  legislation  as  a  result  of  their  international 
agreements with the European Community may, with the acknowledgement of the Depositary 
of the Convention, enter individual declarations with regard to the preservation of their rights 
and  obligations  under  their  agreements  with  the  European  Community,  COTIF  and  related 
regulations. 

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

DONE at ..., this ... day of ... (month) ... (year), in English, in two originals, one to be kept by 
OTIF and the other by the European Community. The translation and the distribution of the 
final Agreement are matters for the respective institutions of the Contracting Parties. 

the 

Intergovernmental 
For 
Organisation for International 
Carriage by Rail (OTIF)  

For the European Community

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ANNEX 2 

DECLARATION BY THE EUROPEAN COMMUNITY CONCERNING THE 
EXERCISE OF COMPETENCE 

In  the  rail  sector,  the  European  Community  shares  the  competence  with  the  Member  States 
pursuant to Articles 70, 71, 80(1) and 156 of the EC Treaty.  

Title V of the EC Treaty establishes the European Community's common transport policy, and 
Title  XV  provides  for  the  European  Community's  contribution  to  the  establishment  of  and 
development of trans-European networks in the areas of transport. 

More  specifically,  Article  71  of  Title  V  of  the  EC  Treaty  provides  that  the  European 
Community may adopt: 

–  common  rules  applicable  to  international  transport  to  or  from  the  territory  of  a  Member 

State or passing across the territory of one or more Member States; 

–  the  conditions  under  which  non-resident  carriers  may  operate  transport  services  within  a 

Member State; 

–  measures to improve transport safety; 

–  any other appropriate provisions 

With regard to Trans-European Networks, Article 155 of Title XV of the EC Treaty provides, 
more specifically, that the European Community: 

–  shall establish a series of guidelines covering the objectives, priorities and broad lines of 
measures  envisaged  in  the  sphere  of  trans-European  networks;  these  guidelines  shall 
identify projects of common interest; 

–  shall  implement  any  measures  that  may  prove  necessary  to  ensure  the  interoperability  of 

the networks, in particular in the field of technical standardisation; 

–  may  support  projects  of  common  interest  supported  by  Member  States,  which  are 
identified  the  framework  of  the  guidelines  referred  to  in  the  first  indent,  particularly 
through feasibility studies, loan guarantees or interest-rate subsidies; the Community may 
also  contribute,  through  the  Cohesion  Fund,  to  the  financing  of  specific  projects  in 
Member States in the area of transport infrastructure. 

On  the  basis  of  these  two  provisions  the  European  Community  has  adopted  a  substantial 
number of legal instruments applicable to rail transport.  

Under  European  Community  law,  the  European  Community  has  acquired  exclusive 
competence  in  matters  of  rail  transport  where  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", or legal instruments adopted pursuant to it affect 
these existing Community rules.  

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For  subject  matters  governed  by  the  Convention  in  relation  to  which  the  European 
Community has exclusive competence, Member States of the European Community have no 
competence.  

Where  Community  rules  exist  but  are  not  affected  by  the  Convention  or  legal  instruments 
adopted pursuant to it, the European Community shares the competence on matters in relation 
to the Convention with Member States. 

A list of the relevant Community instruments at the time of this agreement 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.  Community  competence  is  subject  to  continuous 
development. In the framework of the Treaty, the competent institutions may take decisions 
which  determine  the  extent  of  the  competence  of  the  European  Community.  The  European 
Community  therefore  reserves  the  right  to  amend  this  declaration  accordingly,  without  this 
constituting  a  prerequisite  for  the  exercise  of  its  competence  in  matters  covered  by  the 
Convention. 

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APPENDIX TO ANNEX 2 

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: 

ECONOMIC / MARKET ACCESS LEGISLATION 

–  Regulation  No  11,  concerning  the  abolition  of  discrimination  in  transport  rates  and 
conditions,  in  implementation  of  Article  79  (3)  of  the  Treaty  establishing  the  European 
Economic Community. (OJ L 532, 16.8.1960, p1121) 

–  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); 

–  Council Directive 95/18/EC of 19 June 1995 on the licensing of railway undertakings (OJ 

L 143, 27.6.1995, p. 70); 

–  Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 

on the development of the Community's railways (OJ L 75, 15.3.2001, p. 1); 

–  Directive 2001/13/EC of the European Parliament and of the Council of 26 February 2001 

on the licensing of railway undertakings (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); 

–  Directive  2004/51/EC  of  the  European  Parliament  and  of  the  Council  of  29  April  2004 
amending Council Directive 91/440/EEC on the development of the Community's railways 
(OJ L 164, 30.4.2004, p. 164-172 and OJ L 220, 21.6.2004, p. 58-60); 

–  Regulation  (EC)  No  1371/2007  of  the  European  Parliament  and  of  the  Council  of  23 

October 2007 on rail passengers’ rights and obligations (OJ L 315, 3.12.2007, p. 14); 

–  Directive 2007/58/EC of the European Parliament and of the Council of 23 October 2007 
amending Council Directive 91/440/EEC on the development of the Community’s railways 
and  Directive  2001/14/EC  on  the  allocation  of  railway  infrastructure  capacity  and  the 
levying of charges for the use of railway infrastructure (OJ L 315, 3.12.2007, p. 44); 

–  INTEROPERABILITY AND SAFETY LEGISLATION 

–  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); 

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–  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); 

–  Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on 
safety  on  the  Community's  railways  and  amending  Council  Directive  95/18/EC  on  the 
licensing  of  railway  undertakings  and  Directive  2001/14/EC  on  the  allocation  of  railway 
infrastructure capacity and the levying of charges for the use of railway infrastructure and 
safety certification (OJ L 164, 30.4.2004, p. 44-113 and OJ L 220, 21.6.2004, p. 16 -39);  

–  Directive  2004/50/EC  of  the  European  Parliament  and  of  the  Council  of  29  April  2004 
amending Council Directive 96/48/EC on the interoperability of the trans-European high-
speed rail system and Directive 2001/16/EC of the European Parliament and of the Council 
on  the  interoperability  of  the  trans-European  conventional  rail  system  (OJ  L  164, 
30.4.2004, p. 114-163 and OJ L 220, 21.6.2004, p. 40 - 57.); 

–  Regulation (EC) No 881/2004 of the European Parliament and of the Council of 29 April 
2004  establishing  a  European  Railway  Agency  (OJ  L  164,  30.4.2004,  p.  1-43  and  OJ  L 
220, 21.6.2006, p.3-14); 

–  Directive 2007/59/EC of the European Parliament and of the Council of 23 October 2007 
on the certification of train drivers operating locomotives and trains on the railway system 
in the Community (OJ L 315, 3.12.2007, p. 51);  

–  Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008 on 
the  interoperability  of  the  rail  system  within  the  Community  (Recast)  (OJ  L  191, 
18.07.2008, p. 1); 

–  Directive  2008/68/EC  of  the  European  Parliament  and  of  the  Council  of  24  September 

2008 on the inland transport of Dangerous Goods (OJ L 260, 30.9.2008, p. 13); 

–  Directive  2008/110/EC  of  the  European  Parliament  and  of  the  Council  of  16  December 
2008  amending  Directive  2004/49/EC  on  safety  on  the  Community's  railways  (Railway 
Safety Directive) (OJ L 345, 23.12.2008, p. 62); 

–  Regulation  (EC)  No  1335/2008  of  the  European  Parliament  and  of  the  Council  of  16 
December 2008 amending Regulation (EC) No 881/2004 establishing a European Railway 
Agency (Agency Regulation) (OJ L 354, 31.12.2008, p. 51). 

PUBLIC SERVICE OBLIGATIONS  

–  Regulation  (EC)  No  1370/2007  of  the  European  Parliament  and  of  the  Council  of 
23 October 2007 on public passenger transport services by rail and by road and repealing 
Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ L 315, 3.12.2007, p. 1); 

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ANNEX 3 

DECLARATION BY THE EUROPEAN COMMUNITY 
IN ACCORDANCE WITH ARTICLE 42 OF COTIF 

Pending  the  resolution  of  certain  legal  inconsistencies  between  Community  legislation  and 
certain  rules  of  COTIF,  the  following  appendices  of  COTIF  will  not  be  applied  in  their 
entirety by the European Community:  

1. 

2. 

3. 

The Uniform Rules concerning the Contract of Use of infrastructure in International 
Rail Traffic (CUI – Appendix E to the Convention). 

The  Uniform  Rules  concerning  the  Validation  of  Technical  Standards  and  the 
Adoption  of  Uniform  Technical  Prescriptions  applicable  to  Railway  Material 
intended to be used in International Traffic (APTU – Appendix F to the Convention). 

The Uniform Rules concerning the Technical Admission of Railway Material used in 
International Traffic (ATMF – Appendix G to the Convention). 

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INTERNAL ARRANGEMENTS BETWEEN THE COUNCIL, THE MEMBER 
STATES AND THE COMMISSION FOR THE PARTICIPATION OF THE 
COMMUNITY AND ITS MEMBER STATES IN MEETINGS HELD UNDER 
CONVENTION CONCERNING INTERNATIONAL CARRIAGE BY RAIL 1999 

Bearing in mind the requirement of unity of the international representation of the European 
Community and its Member States in accordance with the EC Treaty and the case law of the 
European Court of Justice also at the stage of implementation of international obligations; 

The  Council,  the  Member  States  and  the  Commission  agree  on  the  following  internal 
arrangements :  

1. 

NATURE AND SCOPE 

1.1. 

This  document  sets  out  the  internal  arrangements  between  the  Council,  the 
Member States and the Commission in preparation for the meetings held under 
the Convention concerning international carriage by rail 1999, (hereinafter “the 
Convention”).These internal arrangements will apply to all meetings organised 
by  the  Intergovernmental  Organisation  for  International  Carriage  by  Rail 
(OTIF) in respect of the application of the Convention. 

2. 

DIVISION OF TASKS BASED ON COMPETENCE 

2.1. 

On rail transport matters falling within the competence of Member States, the 
Presidency will convene on its own initiative or at the request of the Commission 
or  a  Member  State  coordination  meetings  of  EU  Member  States’  delegations 
before,  during  and  after  each  meeting  referred  to  in  paragraph  1,  aiming  at 
these 
elaborating  coordinated  positions.  The  Presidency  will  express 
coordinated positions. 

2.2. 

The  Commission  will  express,  on  behalf  of  the  Community,  Community 
positions  on  matters  falling  within  Community  competence,  in  particular  in 
relation to: 

–  Article 71 of Title V of the EC Treaty  

–  Article 155 of Title XV of the EC Treaty  

–  Any other matters falling exclusively or primarily within Community competence 

under Title V or XV of the EC Treaty, 

–  And in particular the Community instruments relating to subject matters dealt with 
by the Convention and detailed in the Appendix to Annex 2 of the Agreement on 
accession of the European Community to the Convention.  

2.3. 

The  Presidency  and  the  Commission  will  agree  on  which  of  them  will  deliver 
any statement to be made on behalf of the Community and its Member States in 
cases  where  the  respective  competencies  are 
linked.  The 
Commission  will  present  the  common  position  when  the  preponderance  of  the 

inextricably 

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matter  concerned  lies  within  the  competence  of  the  Community,  and  the 
Presidency  will  present  the  common  position  when  the  preponderance  of  the 
matter concerned lies within the competence of the Member States. 

3. 

ESTABLISHMENT OF POSITIONS AND COORDINATION PROCEDURE  

3.1. 

All positions of the Community and its Member States in OTIF meetings will be 
duly coordinated.  

In  matters  falling  under  their  competence  Member  States  will  aim  at  elaborating 
coordinated  positions.  Draft  Statements  on  positions  will  be  circulated  among 
Member States beforehand.  

Commission proposals for Community positions and for common positions between 
the  Community  and  its  Member  States  will  be  discussed  in  the  appropriate 
Committee created by the relevant Community rail directives, namely,  

–  the  Committee  on  the  transport  of  dangerous  goods  for  items  covered  by 
Appendix RID to the Convention; if these items affect rail interoperability, or the 
common safety approach developed under Directive 2004/49/EC, the Community 
position  to  be  taken  should  be  made  in  coordination  with  the  Committee  on  rail 
interoperability and safety. 

–  the  Committee  on  the  development  of  the  Community's  railways  for  items 
covered  by  Appendices  CIV,  CIM,  CUV,  CUI  to  the  Convention  and  for  other 
systems of uniform law elaborated by the OTIF ; 

–  the Committee on rail interoperability and safety for items covered by Appendices 

APTU and ATMF to the Convention; 

The  Commission  and  Member  States  will  use  their  best  endeavours  in  on  the  spot 
coordination meetings to establish an agreed position.  

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3.2. 

3.3. 

3.4. 

3.5. 

As far as work on the transport of dangerous goods is concerned, the European 
Community  shall  be  represented  on  the  RID  Expert  Committee  by  the 
European  Commission,  assisted  for  reasons  of  technical  expertise,  by  experts 
from the Member States and / or the European Rail Agency or as the case may 
be, shall mandate Member States to represent it.  

The Commission will notify the relevant committee of the items on each OTIF 
meeting agenda it deems requiring representations 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. 

The exercise of responsibilities and arrangements in respect of representations 
and  voting  in  relation  to  each  item  on  the  agenda  that  falls  under  exclusive 
Community  competence  will  be  decided  in  coordination  meetings  held  by  the 
committees detailed in paragraph 3.1. 

3.6. 

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

4. 

SPEAKING 

4.1. 

In  cases  where  the  Presidency  is  not  represented  in  meetings  referred  to  in 
paragraph 1, the position of the Community and its Member States reached in 
the  coordination  process  on  matters  covered  by  paragraph  2.1  and,  as 
appropriate, in paragraph 2.3, is presented by the delegate of the Member State 
represented which comes first in the list of rotation for the EU Presidency. 

5. 

VOTING 

5.1. 

The  Commission,  on  behalf  of  the  European  Community,  will  exercise  the 
Community’s  voting  rights  on  the  basis  of  Community  or  common  positions 
reached  in  the  coordination  process  on  matters  referred  to  in  paragraph  2.2, 
and, as appropriate, in paragraph 2.3. 

It  may  be  agreed  that  in  cases  where  the  Community  is  not  represented  by  the 
Commission, the Presidency will exercise voting rights of the Community on those 
matters, on the basis of common positions. 

5.2. 

The Member States will exercise their voting rights only on matters referred to 
in  paragraph  2.1,  and,  as  appropriate,  in  paragraph  2.3  on  the  basis  of 
coordinated or common positions reached in the coordination process. 

6. 

SPEAKING AND VOTING IN CASES OF DISAGREEMENT 

6.1.  Where  matters  being  discussed  in  any  of  the  three  committees  detailed  in 
paragraph  3.1  to  above  remain  outstanding,  those  matters  will  be  referred  to 
the  Permanent  Representatives’  Committee,  without  undue  delay.  In  cases 

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where the Commission and the Member States do not find an agreement on the 
matters,  the  Member  States  and  the  Commission  will  refrain  from  taking  any 
position or casting any vote in a way that could damage the Community acquis. 

6.2. 

The  decisions  referred  to  in  the  paragraph  6.1  do  not  affect  the  respective 
competence of the Community and its Member States. 

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