Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the United Nations Economic Commission for Europe Working Party on customs questions affecting transport and in the Inland Transport Committee in connection with the envisaged adoption of a new Convention on the facilitation of border crossing procedures for passengers, luggage and load-luggage carried in international traffic by rail
Date: 2018-06-08
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: UN regional commission, frontier, international convention, international transport, personal effects, rail transport, simplification of formalities, traveller

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   EUROPEAN COMMISSION  Brussels, 8.6.2018  COM(2018) 444 final 2018/0234 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the United Nations Economic Commission for Europe Working Party on customs questions affecting transport and in the Inland Transport Committee in connection with the envisaged adoption of a new Convention on the facilitation of border crossing procedures for passengers, luggage and load-luggage carried in international traffic by rail  
 
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This  proposal  concerns  the  Decision  establishing  the  position  to  be  taken  on  the  Union's 
behalf in the United Nations Economic Commission for Europe (UNECE) Working Party on 
customs  questions  affecting  transport  and,  possibly,  at  the  United  Nations  Economic 
Commission  for  Europe  Inland  Transport  Committee  in  connection  with  the  envisaged 
adoption  of  a  new  Convention  on  the  facilitation  of  border  crossing  procedures  for 
passengers, luggage and load-luggage carried in international traffic by rail. 

2. 

2.1. 

CONTEXT OF THE PROPOSAL 

The  Convention  on  the  facilitation  of  border  crossing  procedures  for 
passengers, luggage and load-luggage carried in international traffic by rail 

The  proposed  draft  Convention  on  the  facilitation  of  border  crossing  procedures  for 
passengers,  luggage  and  load-luggage  carried  in  international  traffic  by  rail  (‘the  proposed 
draft  Convention)  was  initiated  by  the  Organization  for  Cooperation  between  Railways 
(OSJD)  to  which  9  Union  Member  States  (Bulgaria,  Czech  Republic,  Slovakia,  Poland, 
Lithuania,  Latvia,  Hungary,  Estonia,  Romania)  are  members  and  transmitted  to  the  United 
Nations Economic Commission for Europe by the Government of the Russian Federation. 

A Convention with a similar scope is already in force – the 1952 International Convention to 
facilitate  the  crossing  of  frontiers  for  passengers  and  baggage  carried  by  rail,  of  which  8 
Union Member States (Austria, Belgium, France, Italy, Luxembourg,  Netherlands, Portugal, 
and Sweden1) are Contracting Parties. Due to various legal and procedural difficulties, it was 
not feasible to amend this Convention in order to modernise it. Moreover, member countries 
of the Organization for Cooperation between Railways supported the idea of drafting a new 
convention in this field, rather than acceding to the outdated 1952 Convention.  

The proposed draft Convention covers three major Union policy areas: railways, customs and 
the  Union  acquis  on  border  management.  It  aims  at  expediting  and  simplifying  border 
controls  of  passenger  trains.  The  main  new  elements  in  the  draft  Convention  are  joint 
coordinated controls at borders, instead of two or more consecutive controls on either side of 
the border; controls on moving trains, where the schedules and stops of the trains so permit 
and  agreeing  details  of  the  cooperation  by  means  of  bilateral  agreements  or  multilateral 
arrangements.    This  proposal  relates  to  two  Union  policy  areas:  railways  and  customs.  The 
aspect of the Union acquis on border management will be covered by a separate proposal. 

2.2. 

The UNECE Working Party on customs questions affecting transport 

The Working Party on customs questions affecting transport is acting within the framework of 
the  policies  of  the  United  Nations  Economic  Commission  for  Europe  and  subject  to  the 
general supervision of the Inland Transport Committee. The role of the Working Party is to 
initiate and pursue actions aimed at the harmonisation and simplification of regulations, rules 
and documentation for border crossing procedures for the various modes of inland transport. 

The Union is represented in the Working Party of which all Member States of the Union are 
members with the right to vote. 

1 

Signed, but did not ratify 

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2.3. 

The  envisaged  act  of  the  Working  Party  on  customs  questions  affecting 
transport  

The  Working  Party  on  customs  questions  affecting  transport  will  meet  in  2018  on  the 
following dates: 12-14 June and 16-19 October. In one of its meetings, the Working Party is 
to take a decision on the endorsement of the proposed Convention and on its transmission to 
the Inland Transport Committee for formal approval which meets once a year in February.  

The  envisaged  act  will  become  binding  on  the  parties  in  accordance  with  Article  22  of  the 
draft  Convention,  which  provides:  ‘1.  This  Convention  shall  enter  into  force  three  months 
after the date on which five States have deposited their instruments of ratification, acceptance, 
approval  or  accession.  2.  For  each  State  that  ratifies,  accepts,  approves  or  accedes  to  this 
Convention  after  deposit  of  the  fifth  instrument  of  ratification,  acceptance,  approval  or 
accession, the Convention shall enter into force three months after the date of deposit by such 
State of its instrument of ratification, acceptance, approval or accession’.  

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

3.1. 

Position of the Union  

The  Union  shares  the  objectives  of  the  draft  Convention  and  supports  the  concept  of 
facilitation of passenger rail transport, but it has not identified any added value or benefits of 
the draft Convention for the Union or its Member States. The new draft Convention would not 
make  already  existing  bilateral  or  multilateral  agreements  redundant  and  perhaps  not  even 
facilitate new bilateral or multilateral agreements as the draft Convention does not contain a 
model  for  such  agreements.  Many  provisions  of  the  draft  Convention  have  a  non-binding 
nature  and  cannot  be  implemented  without  separate  arrangements  between  the  parties 
concerned. So far, the only function that the draft Convention could have would be to serve as 
a reference for concluding future multilateral and bilateral agreements.  

From the point of view of Union railway policy, the draft Convention would not have actual 
effects in the Union, in particular within the Schengen area. Also, in the wider context it was 
assessed that the draft Convention would primarily aim at setting out references for bilateral 
agreements  but,  as  such,  would  not  aim  at  establishing  a  consistent  international  legal 
framework to facilitate passenger traffic. Therefore, the draft Convention, in its present form, 
is not expected to bring any benefit to the Union and its Member States.    

From the point of view of EU customs rules, the draft Convention in its present form does 
not bring any benefits or added value for the Union and its Member States. For example, the 
provisions of this draft Convention do not allow the customs authorities to carry out controls 
of passengers or of their luggage on moving trains, once a border is crossed, without having 
any  bilateral  agreements  with  neighbouring  countries.  From  the  customs  point  of  view,  the 
draft  Convention  does  not  harm  nor  bring  any  facilitation.  However,  adhering  to  a  new 
international Convention makes sense only if it has added value, which is not the case for the 
Union. 

From a Union institutional point of view, the draft Convention covers matters falling within 
fields of exclusive and shared Union competence. Member States cannot individually accede 
to  parts  of  the  draft  Convention  falling  within  a  field  of  exclusive  Union  competence.  A 
provision  concerning  the  participation  of  the  Union  as  a  regional  economic  integration 
organisation should have been inserted in the draft Convention in line with the general policy 
on institutional policy– to allow the Union to accede to the Convention.  

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Even  if  the  Union  seems  not  to  have  reasons  to  accede  to  the  proposed  Convention,  in 
accordance with its general policy on institutional aspects, any new international Convention 
should contain a clause allowing participation of regional economic integration organisations. 

The United Nations Economic Commission for Europe Inland Transport Committee at its 81st 
session in February 2019 or at a subsequent session, subject to the endorsement of the draft 
Convention by the Working Party on customs questions affecting transport, may proceed to a 
vote  on  the  adoption  of  the  Convention  and  request  the  secretariat  to  transmit  it  to  the 
Secretary-General of the United Nations in his capacity as depository. It is therefore important 
to  establish  a  Union  position  to  be  able  to  react  in  such  potential  scenario.  In  matters  of 
exclusive competence, the Commission will vote for the Union. 

A large range of public and private sector experts has been consulted during the preparation of 
the proposed Convention.  

Consultations  were  carried  out  with  the  Member  States  within  the  Customs  Legislation 
Committee (Geneva coordination), one of which was held jointly with experts from the Single 
European Railway Area Committee, Justice and Home Affairs counsellors, transport attachés 
and representatives  from the Commission Directorates-General responsible for Mobility and 
Transport  and for Migration and Home affairs  (23.1.2017). Consultations were also carried 
out with the Customs Expert Group. 

Further consultations took place during sessions of the Working Party on Customs Questions 
Affecting  Transport  and  Working  Party  on  Rail  Transport  of  the  United  Nations  Economic 
Commission for Europe. 

Discussions  in  the  relevant  fora  of  the  United  Nations  Economic  Commission  for  Europe, 
followed  either  by  the  Commission  Directorate-General  responsible  for  Taxation  and 
Customs Union or the Directorate-General responsible for Mobility and Transport, have been 
preceded  by  coordination  activities  between  the  above-mentioned  Directorate  Generals  and 
the Directorate-General responsible for Migration and Home affairs as the draft Convention 
touches  upon  policy  areas  falling  under  the  respective  remits  of  the  three  Directorate-
Generals. 

Internal coordination as well as the joint discussions with Member States in the framework of 
the  Customs  Legislation  Committee  and  Customs  Expert  clearly  showed  that  there  is  no 
interest,  neither  for  Union  Member  States  nor  the  Union  itself,  to  accede  to  the  draft 
Convention as it does not bring any benefits or added value in all fields concerned, i.e. in the 
two  Union  policy  areas  covered  by  this  proposal  and  also  the  Union  institutional  point  of 
view. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 

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not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the Union legislature’2. 

4.1.2.  Application to the present case 

The  act  which  the  Working  Party  on  customs  questions  affecting  transport  and  the  United 
Nations  Economic  Commission  for  Europe  Inland  Transport  Committee  are  called  upon  to 
adopt  constitutes  an  act  having  legal  effects.  The  envisaged  act  will  be  binding  under 
international law in accordance with Article 22 of the draft Convention. 

The  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the 
Agreement. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union's  behalf.  If  the envisaged act  pursues  two  aims  or  has  two  components  and  if  one  of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

With regard to an envisaged act that simultaneously pursues a number of objectives, or that 
has  several  components,  which  are  inseparably  linked  without  one  being  incidental  to  the 
other,  the  substantive  legal  basis  of  a  decision  under  Article  218(9)  TFEU  will  have  to 
include, exceptionally, the various corresponding legal bases. 

4.2.2.  Application to the present case 

The envisaged act pursues objectives and has components in the area of customs cooperation 
and  the  common  commercial  policy.  These  elements  of  the  envisaged  act  are  inseparably 
linked without one being incidental to the other. 

Therefore,  the  substantive  legal  basis  of  the  proposed  decision  comprises  the  following 
provisions: Articles 33 and 207, paragraph 3, first subparagraph TFEU. 

4.3. 

Conclusion 

The  legal  basis  of  the  proposed  decision  should  be  Articles  33  and  207,  paragraph  3,  first 
subparagraph, in conjunction with Article 218(9) TFEU. 

2 

Judgment  of  the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  Case  C-399/12, 
ECLI:EU:C:2014:2258, paragraphs 61to 64.  

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2018/0234 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the United Nations 
Economic Commission for Europe Working Party on customs questions affecting 
transport and in the Inland Transport Committee in connection with the envisaged 
adoption of a new Convention on the facilitation of border crossing procedures for 
passengers, luggage and load-luggage carried in international traffic by rail 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles  33  and  207,  paragraph  3,  first  subparagraph,  in  conjunction  with  Article  218(9) 
thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

A  new  United  Nations  Economic  Commission  for  Europe  (UNECE)  Convention  on 
the facilitation of border crossing procedures for passengers, luggage and load-luggage 
carried  in  international  traffic  by  rail  is  proposed  by  the  Russian  Federation  and 
supported by the Organisation for cooperation between railways (OSJD). 

The  Working  Party  on  customs  questions  affecting  transport  is  acting  within  the 
framework of the policies of the UNECE and subject to the general supervision of the 
Inland  Transport  Committee. The role of the Working Party is  to  initiate and pursue 
actions  aimed  at  the  harmonization  and  simplification  of  regulations,  rules  and 
documentation  for  border  crossing  procedures  for  the  various  modes  of  inland 
transport. 
The UNECE Working Party on customs questions affecting transport, during its 149th 
session on 12 to 14 June 2018, or in the subsequent session, is to take a decision on the 
endorsement  of  the  proposed  Convention  on  the  facilitation  of  border  crossing 
procedures for passengers, luggage and load-luggage carried in international traffic by 
rail and on its transmission to the Inland Transport Committee for formal approval. 

The  Union  is  represented  in  the  UNECE  Working  Party  on  customs  questions 
affecting transport of which currently the 28 Member States of the Union are members 
with  the  right  to  vote. In  matters  of  exclusive competence,  the  position  of  the  EU  is 
expressed by the Commission on behalf of the Union and its Member States. 

The  draft  Convention  appears  to  regulate  a  variety  of  aspects,  some  falling  within 
fields of exclusive competence of the Union , some within fields of shared competence 
between the Union and the Member States.  

As the proposed Convention concerns matters that fall under the exclusive competence 
of the Union, it is necessary for the Council to establish a Union position on the draft 
Convention. 

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(7) 

(8) 

(9) 

The  Convention  contains  general  provisions  on  how  to  organise  border  controls  of 
passenger trains. It can be seen as basis for any multilateral and bilateral agreements in 
the absence of which none of the elements covered by the Convention could work. 

For  the  Union's  Member  States,  such  bilateral  agreements  can  be  concluded  even 
without the proposed Convention. For Russia and some other countries represented in 
the  OSJD,  the  legal  framework  seems  to  necessitate  such  a  Convention  in  order  to 
make it easier to conclude multilateral and bilateral agreements.   

The  substance  of  the  proposed  Convention  appears  to  have  neither  beneficial  nor 
adverse effects for the Union's Member States. Therefore the Union shall not support 
the proposed Convention but has no reason to block its adoption.  

(10)  Even  if  it  does  not  appear  to  be  in  the  Union's  interest  to  accede  to  the  proposed 
Convention,  in  accordance  with  its  general  policy  on  institutional  aspects,  any  new 
international  Convention  should  contain  a  clause  allowing  for  the  participation  of 
regional economic integration organisations. The proposed draft Convention does not 
contain a clause which would allow the Union to accede to the Convention. 

(11)  Therefore,  the  Union  position  in  the  UNECE  Working  Party  on  customs  questions 
affecting  transport  should  be  neutral  if  a  clause  allowing  for  the  participation  of 
regional  economic  integration  organisations  is  inserted.  In  such  case,    the  Union 
should abstain. Otherwise the Union should vote against the adoption of the proposed 
Convention. 

(12) 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
UNECE  Working  Party  on  customs  questions  affecting  transport  and  in  the  Inland 
Transport Committee, 

HAS ADOPTED THIS DECISION: 

Article 1 

The position to be taken on the Union's behalf in the sessions of the UNECE Working Party 
on  customs  questions  affecting  transport  and  Inland  Transport  Committee  concerning  the 
proposed  new  UNECE  convention  on  the  facilitation  of  border  crossing  procedures  for 
passengers,  luggage  and  load-luggage  carried  in  international  traffic  by  rail  shall  be  the 
following: 

The Union's position on the draft Convention shall be to abstain if the clause allowing for the 
participation  of  regional  economic  integration  organisations  is  introduced.  If  such  clause  is 
not introduced, the Union shall vote against. 

The position referred to in Article 1 shall be expressed by the Commission on behalf of the 
Union and its Member States which are members of the UNECE Working Party on customs 
questions affecting transport and Inland Transport Committee. 

Article 2 

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This Decision is addressed to the Commission and to the Member States. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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