Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the 14th General Assembly of the Intergovernmental Organisation for International Carriage by Rail (OTIF) as regards the election of the Secretary General of OTIF for the period from 8 April 2019 to 31 December 2021
Date: 2019-02-01
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: international civil service, international convention, international transport, rail transport

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   EUROPEAN COMMISSION  Brussels, 1.2.2019  COM(2019) 56 final 2019/0028 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the 14th General Assembly of the Intergovernmental Organisation for International Carriage by Rail (OTIF) as regards the election of the Secretary General of OTIF for the period from 8 April 2019 to 31 December 2021  
 
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the decision establishing the position to be taken on the Union's behalf 
at  the  14th  session  of  the  General  Assembly  of  the  Intergovernmental  Organisation 
Convention for International Carriage by Rail (OTIF), due to take place on 27 February 2019, 
as regards the election of the Secretary General of OTIF for the period from 8 April 2019 to 
31 December 2021. The meeting documents are available (with credentials) on the website of 
OTIF at the following link: http://extranet.otif.org/en/?page_id=1083 

2. 

CONTEXT OF THE PROPOSAL 

The Convention concerning International Carriage by Rail (COTIF) 

2.1. 
The  COTIF  Convention1  governs  the  running  of  the  OTIF,  its  objectives,  attributions, 
relations with the OTIF Member States, and its activities in general. 

It comprises the Convention itself and seven Appendices that establish uniform railway law, 
i.e.  technical  and  functional  requirements,  and  model  contracts:  Contract  of  International 
Carriage  of  Passengers  by  Rail;  Contract  of  International  Carriage  of  Goods  by  Rail; 
International  Carriage  of  Dangerous  Goods  by  Rail;  Contract  of  use  of  vehicles  in 
international  rail  traffic;  Contract  of  use  of  infrastructure  in  international  rail  traffic; 
Validation  of  Technical  Standards  and  the  Adoption  of  Uniform  Technical  Prescriptions 
applicable  to  Railway  Material  intended  to  be  used  in  International  Traffic;  Technical 
Admission of Railway Material used in International Traffic. 

There are 50 countries party to the COTIF Convention, including 26 Member States, i.e. all 
except Cyprus and Malta. The Union is also a contracting party since 2011. 

2.2. 

The  agreement  between  the  Union  and  the  Intergovernmental  Organisation 
Convention for International Carriage by Rail (OTIF) 

On  16  June  2011,  the  Council  adopted  Council  Decision  2013/103/EU  on  the  signing  and 
conclusion  of  the  Agreement  between  the  European  Union  and  the  Intergovernmental 
Organisation  Convention  for  International  Carriage  by  Rail  (OTIF)  on  the  Accession  of  the 
European Union to  the  Convention concerning  International  Carriage by Rail (COTIF) of 9 
May 1980, as amended by the Vilnius Protocol of 3 June 1999 (OJ L 51, 23.2.2013, p. 1). The 
Agreement  entered  into  force  on  1  July  2011.  The  Council  Decision  specifies  that  the 
Commission shall represent the Union at OTIF meetings. It also contains a Declaration by the 
Union concerning the exercise of competence and provides for internal arrangements for the 
Council, the Member States and the Commission in proceedings under OTIF. 

2.3. 

The General Assembly of OTIF 

The  General  Assembly  is  OTIF’s  supreme  decision-making  body.It  takes  decisions  on 
proposals  to  amend  the  Convention.  Depending  on  the  case,  two  thirds  or  half  of  the  OTIF 
Member States must approve the adopted amendments. 

By  virtue  of  Article  14  §  2  (c)  of  the  COTIF  Convention,  the  General  Assembly  has  the 
competence  to  elect  the  Secretary  General,  for  a  period  of  three  years,  renewable  twice  at 
most  (COTIF  Article  21  §  2).  The  Rules  of  Procedure  of  the  General  Assembly 
(Article 21 § 2)  specify  that  “In  principle,  decisions  of  the  Assembly  shall  be  taken  by  a 

1 

Convention  concerning  International  Carriage  by  rail  (COTIF)  of  9  May  1980,  as  amended  by  the 
Vilnius Protocol in force from 1.7.2006. 

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majority of the total number of votes duly represented in the meeting room at the time of the 
vote.” 

It  holds  an  ordinary  session  every  three  years  and  can  hold  extraordinary  sessions.  The  last 
General Assembly took place in September 20182. 

The  Union  and/or  its  Member  States  participate  in  accordance  with  the  provisions  of  the 
COTIF Convention, of the Rules of Procedure of the General Assembly and of the Agreement 
on the Accession of the Union to the COTIF Convention. 

2.4. 

The envisaged acts of the General Assembly of OTIF at its 14th session 

2.4.1.  Contextual background 

The Secretary General’s term of office ended on 31 December 2018. He had been elected for 
three years by the 12th General Assembly of OTIF in September 2015. 

The  Secretary  General  for  the  period  from  1  January  2019  to  31  December  2021  had  to  be 
elected by the 13th General Assembly in September 2018. However, the only candidate for the 
post withdrew his application to take up other duties with effect from 1 January 2019, and the 
election could not take place as foreseen during this session. 
The  13th  General  Assembly  therefore  instructed  the  Secretary  General  to  convene  an 
extraordinary  General  Assembly  (14th  session)  on  27  February  2019  with  a  single  agenda 
item: election of the next Secretary General. The 13th General Assembly adopted the call for 
applications for the post of Secretary General, which was published on 5 October 2018 with a 
deadline of 5 January 2019 for the receipt of applications in due and proper form. 

The next Secretary General will take up his post on 8 April 2019. 
The 13th General Assembly also nominated Mr Bas Leermakers (presently the head of OTIF's 
technical department) as Secretary General ad interim with effect from 1 January 2019 until 
the date on which the new elected Secretary General takes up his/her post. 

2.4.2.  Profile of qualifications for the holder of the post of Secretary General of OTIF 

The profile of qualifications set out in the annex to the call for applications reads as follows: 

Applicants must meet the following requirements: 

1. Nationality of an OTIF Member State, but not necessarily the nationality of the proposing 
Member State. 

2.  An  individual with  many  years  professional  experience  in  different  areas  of  activity  and 
who has demonstrated ability in a position of major responsibility. 

3. Knowledge of all three working languages of OTIF (English, French, German), with the 
ability to draft easily and fluently in one of the working languages. Applicants should be able 
to  express  themselves  sufficiently  well  in  the  other  two  languages  so  that  they  can  lead 
negotiations and draft comprehensibly. 

4.  Holder  of  a  degree  in  a  discipline  relevant  to  the  work  of  OTIF,  preferably  in  law  and 
political science; knowledge of international public law, rail transport law, the carriage of 
dangerous goods, rail transport in general and transport logistics would be an advantage. 

2 

Council  Decision  (EU)  2018/1296  of  18  September  2018  establishing  the  position  to  be  adopted  on 
behalf of the European Union at the 13th General Assembly of the Intergovernmental Organisation for 
International  Carriage  by  Rail  (OTIF)  as  regards  certain  amendments  to  the  Convention  concerning 
International Carriage by Rail (COTIF) and to the Appendices thereto (OJ L 243, 27.9.2018, p. 11. 

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5.  Proven  ability  to  head  an  administration  such  as  that  of  the  OTIF  Secretariat,  using 
modern information technology, several years’ experience in personnel management on the 
basis  of  general  principles  and  specific  rules  of  personnel  law  and  the  ability  to  head  the 
Organisation’s financial affairs. 

6.  Knowledge  of  how  international  organisations  function,  diplomatic  negotiations  and 
professional experience in the international transport sector. 

7. Ability to represent OTIF effectively in the [OTIF] Member States, at international level –
particularly at conferences – and in public. Ability to speak at international conferences. 

8.  Comprehensive  understanding  of  economic  correlations  and  processes  (including  in  the 
international context) and a proven interest in the transport sector and railways. Experience 
in legislative activities is necessary. 

9.  At  least  ten  years  professional  experience,  preferably  in  a  State  administration,  an 
international  organisation,  an  international  association,  an  undertaking  working  in  the 
international  transport  sector  or  from  a  teaching  and  research  background.  Applicants 
should have at least ten years experience in the international field, during which they must 
be  able  to  demonstrate  that  they  have  undertaken  activities  with  major  decision-making 
responsibilities. 

10.  Lengthy  experience  of  international  negotiations;  candidates  must  also  be  able  to  deal 
with  a  very  high  workload  and  be  willing  to  undertake  numerous  and  demanding  official 
journeys. 

forward-looking, 
The  Secretary  General  should  also  be  a  dynamic 
approachable  and  decisive,  with  a  track  record  of  working  with  other  cultures.  Applicants 
must also have the ability to develop political, legal, institutional and financial concepts. 

team-player, 

The  General  Assembly  itself  will  have  to  assess  whether  and  to  what  extent  the  applicants 
meet  the  requirements  of  the  call  for  applications.  On  21/01/2019,  the  OTIF  Secretariat 
communicated the official list of the candidates with their applications dossiers, which were 
received during the application period. 

The election of the Secretary General of OTIF is a decision of the General Assembly by way 
of a voting procedure, which is described in the section 2.3 above. It shall become effective as 
from the date on which the new elected Secretary General takes up his/her post, normally on 8 
April 2019. The decision of the General Assembly produces legal effects on the parties to the 
COTIF Convention, as further explicated in section 4 below. 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

3.1. 

List of candidates as officially communicated by the OTIF Secretariat 

Following the communication of the OTIF Secretariat of 21/01/2019, the list of the candidates 
for  the  post  of  Secretary  General  of  OTIF  for  the  period  from  8  April  2019  to 
31 December 2021 is officially established as follows (presentation by alphabetical order): 

 
 
 
 
 

Mr CRINIER Raphaël (application submitted by France); 
Mr D’ALFONSO Salvatore (application submitted by Italy); 
Mr EBNER Stefan (application submitted by Austria); 
Mr GROOT Hinne (application submitted by the Netherlands); 
Mr KÜPPER Wolfgang (application submitted by Germany). 

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It is noted that all five applications were submitted by Member States of the European Union. 

3.2. 

Proposal for the position to be taken on behalf of the Union 

3.2.1.  The tasks of OTIF’s Secretary General and the Union interest in the election 

3.2.1.1.  The tasks of OTIF’s Secretary General 

The  tasks  of  OTIF’s  Secretary  General  go  beyond  those  related  to  the  management, 
application and functioning of the COTIF Convention. Specifically, the Secretary General has 
the following functions: 

– 

– 

– 

– 

Article 21 § 4 of the COTIF Convention provides that “The Secretary General may, 
on his own initiative, present proposals aiming to modify the Convention.”; 

The  Secretary  General  represents  OTIF  externally,  draws  up  the  work  programme, 
drafts  budget  and  management  reports  and  manages  the  financial  affairs  of  the 
Organisation (Article 21 §3 point b), h), and i) of the COTIF Convention); 

These tasks confer a certain margin of manoeuvre upon the Secretary General; 

Importantly also, the Secretary General plays a discrete and independent role in the 
settlement of disputes among contracting parties. He “endeavour[s], at the request of 
one  of  the  parties  concerned,  by  using  his  good  offices,  to  settle  disputes  between 
them arising from the interpretation or application of the Convention” (Article 21 §3 
point j) of the COTIF Convention); 

The  Secretary  General  also  “give[s],  at  the  request  of  all  parties  concerned,  an 
opinion on disputes arising from the interpretation or application of the Convention” 
(Article 21§ 3 point k) of the COTIF Convention). 

Hence,  the  election  of  one  rather  than  another  person  may  have  important  consequences  on 
the manner the tasks are discharged, beyond purely technical issues. 

This  is  also  reflected  in  the  profile  of  qualifications.  Among  other  things,  the  candidate  is 
supposed to demonstrate a “lengthy experience of international negotiations” and the “ability 
to develop political, legal, institutional and financial concepts”. 

3.2.1.2.  The Union interest in the election 

The Union has a substantial interest in the election of OTIF’s Secretary General. 

OTIF’s activities are covered by Union competence and, for many, by the Union’s exclusive 
external competence. 

Thus,  Annex  I  of  Council  decision  2013/103/EU  includes  an  Appendix  listing  the  Union 
instruments existing at the time and relating to subjects dealt with by the COTIF Convention; 
the list includes more than 20 Union Regulations and Directives in respect of the Union rail 
legislation on economic/market access, safety, interoperability, and public service obligations. 

In some specific areas (e.g. safety, interoperability of the railway systems), the scope of the 
uniform rules developed by OTIF is directly related to the provisions of the Union rail acquis, 
and necessitates precise harmonisation  in  order to avoid  conflict  or misalignment to  emerge 
between the two sets of requirements.  

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The  explanations  given  above3  show  that  the  Secretary  General  is  conferred  important 
margins of manoeuver in several areas, notably as regards the submission of proposals and the 
settlement of disputes. 

Therefore,  the  action  by  the  Secretary  General  is  liable  to  affect  the  operation  of  OTIF  in 
areas directly related to the development and application of the Union’s rail policy. Similarly, 
it is also liable affect the Union in its capacity as OTIF Member. 

Given the Union’s interest in the election of the Secretary General, the Union should adopt a 
position concerning that election. 

3.2.2.  On the applications 

On the basis of the documents communicated by the OTIF Secretariat, it appears that all five 
candidates  fulfil  the  requirements  set  out  in  profile  of  qualifications  annexed  to  the  call  for 
application.  

Moreover, all five candidates have been proposed by Member States and are EU nationals. 

The considerations conducting the choice to be made by Member States should be developed 
against this background: 

First of all, it should be clear that votes should only be cast for candidates that are citizens of 
the Union, have been proposed by a Member State and meet all requirements of the profile of 
qualifications. Even though the time limit for applications has lapsed, this first set of criteria 
should  guard  against  last  minute  surprises.  Secondly,  having  regard  to  the  specific  Union 
interest  in  the  exercise,  the  vote  should  go  to  the  candidate  who  best  meets  a  number  of 
criteria relevant to that interest. Some of those criteria are already established in the call for 
application.  Another  criterion  is  linked  to  a  requirement  of  the  call  for  applications,  but  is 
more specific, having regard to the Union interest in the election. 

Overall, the following list of criteria is suggested: 

Possible selection criteria 

Requirements of the call for application 

EU competences 

Criterion not explicitly mentioned in the annex to the call for 
applications: Knowledge of the European Union institutional 
framework and of the Union's rail acquis and policies (linked 
to requirement referred to in point 4 of the annex to the call 
for applications) 

Technical competences 

Criteria referred to in points 4, 5 and 6 of the annex to the 
call for applications 

General competences 

Criteria referred to in points 8 and 9 of the annex to the call 
for applications, in addition to the criteria referred to in the 
paragraph concluding the list of requirements in that annex: 

Dynamic team-player, forward-looking, approachable and 
decisive, with a track record of working with other cultures. 

Ability to develop political, legal, institutional and financial 
concepts. 

3 

Section 4.1. 

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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. 

4.1.2.  Application to the present case 

The  General  Assembly  of  OTIF  is  a  body  set  up  by  an  agreement,  namely  the  COTIF 
Convention. The election of the Secretary General of OTIF, which the General Assembly is 
called to decide upon, constitutes an act having legal effects. The legal effects arise because of 
the  tasks  conferred  upon  the  Secretary  General,  which  go  beyond  the  simple  management, 
application and functioning of the international agreement. Details are described in subsection 
3.2.2.1 above. As explained in that subsection, the election of one rather than another person 
may  have  important  consequences  on  the  manner  the  tasks  are  discharged,  beyond  purely 
technical  issues.  Thanks,  notably,  to  his  ability  to  present  proposals  aiming  to  modify  the 
Convention and to intervene in disputes between Members, the Secretary General is capable 
of providing political and legal orientation to the works of OTIF. 

For these reasons, it must be concluded that the election of the Secretary General of OTIF has 
legal effects. It 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 

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. 

The main objective and content of the envisaged act relate to 'rail transport'.  

Therefore, the substantive legal basis of the proposed decision is Article 91 TFEU. 

4.3. 

Conclusion 

The  legal  basis  of  the  proposed  decision  should  be  Article  91  TFEU,  in  conjunction  with 
Article 218(9) TFEU. 

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2019/0028 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union at the 14th General 
Assembly of the Intergovernmental Organisation for International Carriage by Rail 
(OTIF) as regards the election of the Secretary General of OTIF for the period from 
8 April 2019 to 31 December 2021 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 91, in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

4 

The Union has acceded to the Convention concerning International Carriage by Rail of 
9  May  1980,  as  amended  by  the  Vilnius  Protocol  of  3  June  1999  (the  ‘COTIF 
Convention’), by virtue of Council Decision 2013/103/EU4. 

The  General  Assembly  of  OTIF  was  set  up  in  accordance  with  point  (a)  of  Article 
13(1) of the COTIF Convention (‘General Assembly’). The Union participates in the 
General Assembly in accordance with the provisions of the COTIF Convention, of the 
Rules of Procedure of the General Assembly, and of the Agreement on the Accession 
of the Union to the COTIF Convention. 
At  its  14th  session  due  to  take  place  on  27  February  2019,  the  General  Assembly  is 
expected to decide upon the election of the Secretary General of OTIF for the period 
from 8 April 2019 to 31 December 2021. 

The  Union  has  a  substantial  interest  in  the  election  of  OTIF’s  Secretary  General. 
OTIF’s  activities  are  covered  by  Union  competence  and,  for  many,  by  the  Union’s 
exclusive external competence. The Secretary General is conferred important margins 
of  manoeuver  in  several  areas,  notably  as  regards  the  submission  of  proposals  of 
amendments to the COTIF Convention and the settlement of disputes. Therefore, the 
action  by  the  Secretary  General  is  liable  to  affect  the  operation  of  OTIF  in  areas 
directly  related  to  the  development  and  application  of  the  Union’s  rail  policy. 
Similarly, it is also liable to affect the Union in its capacity as OTIF Member. Given 
the Union’s interest in the election of the Secretary General, the Union should adopt a 
position concerning that election. 

All five applications for the post of Secretary General of OTIF for the period from 8 
April 2019 to 31 December 2021 were submitted by Member States, and all candidates 
are  nationals  of  Member  States.  It  was  assessed  that  all  five  candidates  meet  the 

Council  Decision  2013/103/EU  of  16  June  2011  on  the  signing  and  conclusion  of  the  Agreement 
between the European Union and the Intergovernmental Organisation for International Carriage by Rail 
on the Accession of the European Union to the Convention concerning International Carriage by Rail 
(COTIF) of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999 (OJ L 51, 23.2.2013, p. 1). 

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requirements  of  the  profile  of  qualifications  for  the  holder  of  the  post  of  Secretary 
General of OTIF. 
It is appropriate to establish the position to be taken on the Union's behalf at the 14th 
General Assembly of OTIF, as the envisaged decision concerns a matter of interest for 
the  Union,  which  falls  under  the  competence  of  the  Union  and  produces  legally 
binding effects upon it. 

Votes should be cast for a candidate, who is citizen of the Union, has been proposed 
by  a  Member  State,  meets  all  requirements  established  in  the  call  for  applications 
issued by OTIF, and best meets a set of criteria related to the specific Union interest in 
the election. 
The position of the Union at the 14th session of the General Assembly of OTIF should 
therefore be to vote according to all those criteria,  

(6) 

(7) 

(8) 

HAS ADOPTED THIS DECISION: 

Article 1 

(1) 

The  position  to  be  taken  on  the  Union's  behalf  at  the  14th  session  of  the  General 
Assembly of OTIF shall be to vote for the candidate who:  

(a) 

is  citizen  of  the  Union,  has  been  proposed  by  a  Member  State,  meets  all 
requirements set out in the annex to the call for applications for the election of 
the  Secretary  General  of  OTIF  for  the  period  from  8  April  2019  to 
31 December 2021 (document SG-18106 of 5 October 2018), and  

(b)  best meets the following criteria: 

– 

– 

– 

knowledge  of  the  European  Union  institutional  framework  and  of  the 
Union's rail acquis and policies; 

the criteria set out  in  points 4, 5 6, 8 and 9 of the annex to  the call for 
applications; 

the criteria figuring below the enumeration set out in the annex to the call 
of  applications,  of  the  person  being  a  dynamic  team-player,  forward-
looking, approachable and decisive, with a track record of working with 
other  cultures  and  having  the  ability  to  develop  political,  legal, 
institutional and financial concepts. 

(2) 

The Member States shall cast their vote in accordance with paragraph 1. 

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

Done at Brussels, 

Article 2 

For the Council 
The President 

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