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: 2018-08-31
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: UN regional commission, border control, carriage of passengers, frontier, international convention, international transport, personal effects, simplification of formalities, traveller

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   EUROPEAN COMMISSION  Brussels, 31.8.2018  COM(2018) 605 final 2018/0315 (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  the  Union  policy  area  of  border  management.  The 
aspect of two other Union policy areas, railways and customs, 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 the EU acquis on border management, the draft Convention in its 
present form does not bring any new or useful tools and thus has no added value for the EU 
and its Member States. Furthermore, it contains several provisions which are problematic for 
the EU acquis and which would need to be amended should the Union or its Member States 
wish to accede to the draft Convention at a future point in time. For example, Article 6 of the 
draft  Convention  should  clarify  that  border  controls  cannot  be  waived  by  multilateral  or 
bilateral agreements between States: as the Schengen Borders Code applies upon crossing of 
the  EU  external  borders,  international  agreements  may  only  regulate  how  the  controls  are 
carried out without touching the substance of such controls.   

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.  

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. 

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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 
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 
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. 

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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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  border  checks  and 
includes  checks  on  passengers  and  their  documents.  It  should  therefore  be  based  on  Article 
77, paragraph 2, b),  TFEU, which relates to  “the checks to  which persons crossing external 
borders are subject". 

Therefore,  the  substantive  legal  basis  of  the  proposed  decision  comprises  the  following 
provisions: Article 77, paragraph 2b, TFEU. 

4.3. 

Conclusion 

The legal  basis  of the proposed decision should be Article 77, paragraph 2b, in conjunction 
with Article 218(9) TFEU. 

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2018/0315 (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 
Article 77(2)(b) 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 by the 28 Member States of the Union that are members with the 
right  to  vote.  In  matters  of  exclusive  competence,  the  position  of  the  Union  is 
expressed by the Commission on behalf of the Union and its Member States.  

Depending  on  the  specific  circumstances  and  in  the  interest  of  unified  external 
representation  of  the  Union  and  its  Member  States,  the  Commission  can  conduct 
negotiations covering both Union competences and subject matters where the Member 
States have not conferred competences on the Union.  

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behaf  in  the 
UNECE Working Party on customs questions affecting transport and Inland Transport 
Committee as the proposed Convention concerns elements on visa formalities that fall 
within the competence of the Union. 

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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) 

In  accordance  with  Articles  1  and  2  of  Protocol  No  22  on  the  Position  of  Denmark 
annexed  to  the  Treaty  on  European  Union  and  to  the  TFEU,  Denmark  is  not  taking 
part in the adoption of this Decision and is not bound by it or subject to its application. 
Given  that  this  Decision  builds  upon  the  Schengen  acquis,  Denmark  shall,  in 
accordance with Article 4 of that Protocol, decide within a period of six months after 
the Council has  decided on this Decision whether it will implement it in its national 
law. 

(13)  As  regards  Iceland  and  Norway,  this  Decision  constitutes  a  development  of  the 
provisions of the Schengen acquis within the meaning of the Agreement concluded by 
the Council of the European Union and the Republic of Iceland and the Kingdom of 
Norway  concerning  the  latter’s  association  with  the  implementation,  application  and 
development of the Schengen acquis3 which fall within the area referred to in Article 
1, point A, of Council Decision 1999/437/EC4. 

(14)  As regards Switzerland, this Decision constitutes a development of the provisions of 
the  Schengen  acquis  within  the  meaning  of  the  Agreement  between  the  European 
Union,  the  European  Community  and  the  Swiss  Confederation  on  the  Swiss 
Confederation’s association with the implementation, application and development of 
the  Schengen  acquis5  which  fall  within  the  area  referred  to  in  Article  1,  point  A,  of 

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OJ L 176, 10.7.1999, p. 36. 
Council  Decision  1999/437/EC  of  17  May  1999  on  certain  arrangements  for  the  application  of  the 
Agreement  concluded  by  the  Council  of  the  European  Union  and  the  Republic  of  Iceland  and  the 
Kingdom  of  Norway  concerning  the  association  of  those  two  States  with  the  implementation, 
application and development of the Schengen acquis (OJ L 176, 10.7.1999, p. 31). 
OJ L 53, 27.2.2008, p. 52. 

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Decision  1999/437/EC  read  in  conjunction  with  Article  3  of  Council  Decision 
2008/146/EC6. 

(15)  As regards Liechtenstein, this Decision constitutes a development of the provisions of 
the Schengen acquis within the meaning of the Protocol between the European Union, 
the  Principality  of 
the  European  Community, 
Liechtenstein  on  the  accession  of  the  Principality  of  Liechtenstein  to  the  Agreement 
between the European Union, the European Community and the Swiss Confederation 
on  the  Swiss  Confederation’s  association  with  the  implementation,  application  and 
development of the Schengen acquis7 which fall within the area referred to in Article 
1,  point  A,  of  Decision  1999/437/EC  read  in  conjunction  with  Article  3  of  Council 
Decision 2011/350/EU8. 

the  Swiss  Confederation  and 

(16)  This  Decision  constitutes  a  development  of  provisions  of  the  Schengen  acquis  in 
which  the  United  Kingdom  does  not  take  part,  in  accordance  with  Council  Decision 
2000/365/EC9; the United Kingdom is therefore not taking part in the adoption of this 
Decision and is not bound by it or subject to its application. 

(17)  This Decision constitutes a development of  the provisions of the Schengen acquis in 
which Ireland does not take part, in accordance with Council Decision 2002/192/EC10; 
Ireland is therefore not taking part in the adoption of this Decision and is not bound by 
it or subject to its application. 

(18)  As  regards,  Cyprus,  Bulgaria,  Romania  and  Croatia,  the  provisions  of  this  Decision 
constitute  provisions  building  upon,  or  otherwise  relating  to,  the  Schengen  acquis, 
within respectively the meaning of Article 3(2) of the 2003 Act of Accession11, Article 
4(2) of the 2005 Act of Accession12 and Article 4(2) of the 2011 Act of Accession13, 

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Council  Decision  2008/146/EC  of  28  January  2008  on  the  conclusion,  on  behalf  of  the  European 
Community, of the Agreement between the European Union, the European Community and the Swiss 
Confederation  on  the  Swiss  Confederation’s  association  with  the  implementation,  application  and 
development of the Schengen acquis (OJ L 53, 27.2.2008, p. 1). 
OJ L 160, 18.6.2011, p. 21. 
Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union, 
of the Protocol between the European Union, the European Community, the Swiss Confederation and 
the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement 
between  the  European  Union,  the  European  Community  and  the  Swiss  Confederation  on  the  Swiss 
Confederation’s  association  with  the  implementation,  application  and  development  of  the  Schengen 
acquis,  relating  to  the  abolition  of  checks  at  internal  borders  and  movement  of  persons  (OJ  L  160, 
18.6.2011, p. 19). 
Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great 
Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131, 
1.6.2000, p. 43). 
Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some 
of the provisions of the Schengen acquis (OJ L 64, 7.3.2002, p. 20). 
Act  concerning  the  conditions  of  accession  of  the  Czech  Republic,  the  Republic  of  Estonia,  the 
Republic of  Cyprus,  the  Republic of  Latvia,  the  Republic  of  Lithuania, the  Republic of  Hungary,  the 
Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the 
adjustments to the treaties on which the European Union is founded (OJ L 236, 23.9.2003, p 33). 
Act  concerning  the  conditions  of  accession  of  the  Republic  of  Bulgaria  and  Romanian  and  the 
adjustments to the treaties on which the European Union is founded (OJ L 157, 21.6.2005, p 203). 
Act concerning the conditions of accession of the Republic of Croatia and the adjustments to the Treaty 
of  the  European  Union,  the  Treaty  on  the  Functioning  of  the  European  Union,  and  the  Treaty 
establishing the European Atomic Energy Community (OJ L 112, 24.4.2012, p 21). 

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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 Member States of the Union shall vote against.  

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

Article 2 

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

Article 3 

Done at Brussels, 

For the Council 
The President 

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