Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the 15th meeting of the Committee of Technical Experts of the Intergovernmental Organisation for International Carriage by Rail (OTIF) as regards the modifications to the uniform technical prescriptions concerning the qualifications and independence of assessing entities and concerning a common safety method on risk evaluation and assessment, the modification of the rules of procedure of the Committee of Technical Experts, and the upgrade of the references to the Technical Documents of TAF TSI listed in Appendix I of UTP TAF
Date: 2023-03-31
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: carriage of goods, international convention, international organisation, rail safety, rail transport, revision of an agreement, rules of procedure, safety standard, technical rule, technical standard

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   EUROPEAN COMMISSION  Brussels, 31.3.2023  COM(2023) 179 final 2023/0091 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the 15th meeting of the Committee of Technical Experts of the Intergovernmental Organisation for International Carriage by Rail (OTIF) as regards the modifications to the uniform technical prescriptions concerning the qualifications and independence of assessing entities and concerning a common safety method on risk evaluation and assessment, the modification of the rules of procedure of the Committee of Technical Experts, and the upgrade of the references to the Technical Documents of TAF TSI listed in Appendix I of UTP TAF  
 
EXPLANATORY MEMORANDUM 

SUBJECT MATTER OF THE PROPOSAL 

1. 
The  15th  session  of  the  Committee  of  Technical  Experts  (CTE)  of  the  Intergovernmental 
Organisation for International Carriage by Rail (OTIF) will take place in Bern on 13 and 14 
June 2023. The agenda of the meeting includes: 

– 

– 

– 

– 

A proposal for revision of the Uniform Technical Prescriptions (UTP) concerning the 
qualifications and independence of assessing entities;  

A  proposal  for  modification  of  the  UTP  concerning  a  Common  Safety  Method  on 
risk evaluation and assessment; 

A proposal for modification of the rules of procedure of the Committee of Technical 
Experts; 

A proposal to update the references to the Technical Documents of TAF TSI listed in 
Appendix I of UTP TAF. 

OTIF develops  uniform  legal  regimes for international  rail transport in  three major areas of 
activity: technical interoperability, dangerous goods and railway contract law.  

The  above-mentioned  decisions  to  be  adopted  by  CTE  are  acts  having  legal  effects  and  the 
position to be taken on the Union's behalf has to be established by a Council Decision on the 
basis of Article 218(9) TFEU. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Convention concerning International Carriage by Rail (COTIF) 

The Convention concerning International Carriage by Rail of 9 May 1980, as amended by the 
Vilnius  Protocol  of  3  June  1999  (‘COTIF’),  is  an  international  agreement  where  both  the 
Union and 25 Member States1 are Contracting Parties.  

On 16 June 2011, the Council adopted a Council Decision 2013/103/EU on the signing and 
conclusion of the Agreement between the European Union and the 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  (“EU-COTIF  Accession 
Agreement”). 

The Agreement entered into force on 1st July 2011. 

According to Article 2(1) of the COTIF, OTIF aims at promoting, improving and facilitating, 
in  all  respects,  international  traffic  by  rail,  in  particular  by  establishing  systems  of  uniform 
law in various fields of law relating to international traffic by rail. The COTIF also governs 
the  running  of  the  Organisation,  its  objectives,  attributions,  relations  with  the  Contracting 
States and its activities in general.  

COTIF therefore deals  with  rail legislation on a number of different  legal  and technical  rail 
matters that are divided  into two parts:  the Convention itself, which  governs the running of 
OTIF, and the eight Appendices that establish uniform railway law: 

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– 

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Appendix A – Contract of International Carriage of Passengers by Rail (CIV) 

Appendix B – Contract of International Carriage of Goods by Rail (CIM) 

Only Cyprus and Malta are not Contracting Parties. 

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– 

– 

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Appendix C – International Carriage of Dangerous Goods by Rail (RID) 

Appendix D – Contract of use of vehicles in international rail traffic (CUV) 

Appendix E – Contract of use of infrastructure in international rail traffic (CUI) 

Appendix F – 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 UR) 

Appendix  G  –  Uniform  Rules  concerning  the  Technical  Admission  of  Railway 
Material used in International Traffic (ATMF UR) 

Appendix H – Uniform Rules concerning the safe operation of trains in international 
traffic (EST UR) 

Based on Appendix F and G to COTIF, there are 12 UTPs for technical interoperability. The 
UTPs in the framework of COTIF have the same purpose as the EU technical specifications 
for  interoperability  (TSIs)  for  admission  to  international  traffic,  as  defined  in  Chapter  II  of 
Directive (EU) 2016/797. 

42 out of the 47 States that are Party to the COTIF, including the already mentioned 25 EU 
Member States, apply Appendix F and G. 

2.2. 

The OTIF Committee of Technical Experts (CTE) 

The  CTE  is  set  up  by  Article  13  (1)  (f)  of  the  COTIF.  It  is  made  up  of  the  OTIF  Member 
States that apply Appendices F and G (APTU, ATMF) to COTIF.  

The  CTE  has  competence  in  matters  of  interoperability  and  technical  harmonisation  in  the 
railway  field  and  technical  approval  procedures.  It  develops  the  APTU  and  ATMF 
Appendices  and  its  Uniform  Rules,  which  apply  to  railway  material  intended  for  use  in 
international traffic, which concern in particular: 

– 

– 

– 

– 

– 

– 

the  adoption  of  technical  prescriptions  for  vehicles  and  infrastructure  and  the 
validation of standards; 

procedures concerning the assessment of conformity of vehicles; 

provisions concerning the maintenance of vehicles; 

responsibilities for train composition and the safe use of vehicles; 

provisions concerning risk evaluation and assessment; 

specifications for registers. 

The  CTE  currently  has  a  standing  working  group  (WG  TECH)  which  is  responsible  for 
preparing the former’s decisions. 

Pursuant to Article 20(1) (b) of the COTIF, and in accordance with Article 6 of Appendix F 
(APTU), the CTE is competent to adopt or to amend the UTPs. In accordance with Article 16 
(10) of COTIF, the CTE is competent to propose a revision of its rules of procedure. 

2.3. 

The adoption of acts by the CTE 

According to Article 6 of APTU, the CTE shall decide whether to adopt a UTP or a provision 
amending it in accordance with the procedure laid down in Articles 16, 20 and 33 § 6 of the 
Convention. The usual adoption process for UTPs may take about one and a half years.  

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2.4. 

The envisaged acts  to be adopted  by the  CTE  during the session on  13 and 14 
June 2023 

2.4.1.  Revision  of  the  UTP  concerning  the  qualifications  and  independence  of  assessing 

entities (UTP GEN-E) 

UTP GEN-E describes the qualifications and independence of assessing entities. The current 
version  entered  into  force  on  1  December  2011.  It  was  based  on  Annex  VIII  to  Directive 
2008/57/EC of the European Parliament and of the Council on the interoperability of the rail 
system within the Community2. 

The full revision of  UTP GEN-E proposed by the CTE is justified by several  developments 
since their entry into force. 

Firstly,  Directive  2008/57/EC  of  the  European  Parliament  and  of  the  Council  has  been 
replaced  by  Directive  (EU)  2016/797  of  the  European  Parliament  and  of  the  Council3.  The 
more  recent  Directive  has  more  detailed  provisions  concerning  the  qualification  and 
independence of assessing entities than the previous Directive. 

The proposed full revision of UTP GEN-E aims to: 

– 

– 

– 

Structure the provisions more clearly; 

Clarify its scope, in particular in relation to EU law; 

Align the provisions with the latest provisions applicable in the EU. 

Conclusion:  the  European  Union  can  vote  in  favour  of  the  revision  of  UTP  GEN-E  as 
proposed by OTIF.  

2.4.2.  Modification of the UTP concerning a common safety method on risk evaluation and 

assessment (UTP GEN-G) 

The UTP GEN-G establishes a harmonised procedure to manage risks relating to significant 
changes to the rail system or, if the UTP so require, structural subsystems. The UTP GEN-G 
also  governs requirements  applicable to  the independent  common safety  method assessment 
bodies.  They  are  currently  equivalent  to  Commission  Implementing  Regulation  (EU) 
No 402/2013 as amended by Commission Implementing Regulation (EU) No 2015/11364. 

The proposed revision widens the scope of UTP GEN-G, so that it will cover risk evaluation 
and assessments relating to the safety management system (SMS) in the scope of the EST UR.  

The  proposal  does  not  alter  the  risk  evaluation  and  acceptance  provisions  for  applications 
within the scope of the APTU and ATMF UR. These applications are primarily related to the 
assessment of new products, such as rolling stock, the maintenance of vehicles or changes to 
the design, construction, or maintenance of products, provided these applications fall within 
the scope of the APTU and ATMF UR. 

The  amendments  will  add  applications  within  the  scope  of  the  EST  UR. These  applications 
mainly  relate  to  operational  and  organisational  changes,  including  changes  to  the  SMS, 
provided they fall within the scope of the EST UR.  

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3 

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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  (Text  with  EEA  relevance)  (OJ  L  191, 
18.07.2008, p. 1) 
Directive  (EU)  2016/797  of  the  European  Parliament  and  of  the  Council  of  11  May  2016  on  the 
interoperability of the rail system within the European Union (OJ L 138, 26.5.2016, p. 44) 
Commission  Implementing  Regulation  (EU)  2015/1136  of  13  July  2015  amending  Implementing 
Regulation (EU) No 402/2013 on the common safety method for risk evaluation and assessment  (OJ L 
185, 14.07.2015, p.6) 

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Conclusion:  the  European  Union  can  vote  in  favour  of  the  modification  of  UTP  GEN-G  as 
proposed by OTIF.  

2.4.3.  Modification of the rules of procedure of the Committee of Technical Experts (CTE) 

Article 16 § 10 of COTIF requires the CTE to establish its rules of procedure. The latter aim 
to  ensure  that  the  discussions  take  place  in  an  orderly  manner  and  that  the  rights  and 
obligations of all participants are clear. 

The proposed modification of the rules of procedure aims to:  

– 

– 

– 

– 

take  into  account  the  practices  established  since  the  COVID-19  pandemic,  and  in 
particular the fact that hybrid meetings have become the norm; 

take into account a recommendation adopted by OTIF’s ad hoc Committee on Legal 
Affairs and International Cooperation on 5 April 2022 concerning the involvement of 
stakeholders in OTIF’s work; 

reflect  the  new  practice  of  the  CTE  to  issue  a  list  of  decisions  shortly  after  its 
meeting; 
reflect the decision taken by the CTE at its 14th session following which contracting 
States and regional organisations should designate focal points. 

Conclusion:  the  European  Union  can  vote  in  favour  of  the  modification  of  the  rules  of 
procedure of the CTE as proposed by OTIF. 

2.4.4.  Upgrade references to the Technical Documents of TAF TSI listed in Appendix I of 

the UTP Telematics applications for freight services (UTP TAF) 

The  UTP  TAF,  in  force  since  1.12.2017,  lays  down  requirements  about  the  communication 
process between railway undertakings and infrastructure managers, databases intended to be 
used  to  track  trains  and  wagon  movements  and  information  to  be  delivered  to  freight 
customers.  It  is  equivalent  to  Commission  Regulation  (EU)  No  1305/2014  of  11  December 
2014  on  the  technical  specification  for  interoperability  relating  to  the  telematics  application 
for  freight  subsystem  of  the  rail  system  in  the  European  Union5  (TAF  TSI).  The  regulation 
has been amended on 26 March 2021 by the regulation (EU) 2021/5416. 
The UTP TAF makes reference to the TSI TAF technical documents7 that are published and 
regularly  updated  on  the  website  of  the  EU  Agency  for  Railways  (ERA).  Such  a  reference 
was included in  the UTP so that the IT provisions are enshrined in  COTIF but  managed by 
ERA.  As  a  modification  of  these  references  formally  constitutes  a  modification  of  the  UTP 
TAF, it must be subject to a decision by the Committee of Technical Experts in accordance 
with Article 20 § 1 b) COTIF and Articles 6 and 8a APTU. 

As a consequence, modifications of the technical documents referred to in Appendix I of the 
UTP TAF are necessary in order to correct errors, take feedback into account, keep up with 
technical progress and maintain equivalence with the specifications applied in the EU. 

Conclusion: the European Union can vote in favour of the proposal to update the references to 
the Technical Documents of TAF TSI made by OTIF. 

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6 
7 

Official Journal of the EU: OJ L 356, 12.12.2014, p. 438 
Official Journal of the EU: OJ L 108, 29.3.2021, p. 19 
Commission  Implementing  Regulation  (EU)  2019/778  of  16  May  2019  amending  Regulation  (EU) 
No 1305/2014 as regards Change Control Management (OJ L 139I , 27.5.2019, p. 356) 

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2.5. 

Union competence and voting rights  

to  Article  6  of 

the 
Pursuant 
Intergovernmental  Organisation  for  International  Carriage  by  Rail  on  the  Accession  of  the 
European Union to the COTIF approved by Council Decision of 16 June 2011: 

the  European  Union  and 

the  Agreement  between 

"1.  For  decisions  in  matters  where  the  Union  has  exclusive  competence,  the  Union  shall 
exercise the voting rights of its Member States under the Convention.  

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

3.  Subject  to  Article  26,  paragraph  7,  of  the  Convention,  the  Union  shall  have  a  number  of 
votes  equal  to  that  of  its  Member  States  who  are  also  Parties  to  the  Convention.  When  the 
Union votes, its Member States shall not vote." 

Under  Union  law,  the  Union  has  acquired  exclusive  competence  in  matters  of  rail  transport 
where the COTIF or legal instruments adopted pursuant to it may affect or alter the scope of 
these existing Union rules.  

The objective of the proposed decisions is to: 

– 

– 

– 

– 

align  the  UTP  concerning  the  qualifications  and  independence  of  assessing  entities 
with Directive (EU) 2016/797 of the European Parliament and of the Council8,  

align  the  UTP  concerning  a  common  safety  method  on  risk  evaluation  and 
assessment  with  Commission  Implementing  Regulation  (EU)  No 402/2013  of 
30 April 2013 on the common safety method for risk evaluation and assessment and 
repealing  Regulation  (EC)  No 352/2009  Text  with  EEA  relevance  in  relation  to 
Safety Management Systems,  

update the CTE rules of procedure, 

align the references to the Technical Documents of TAF TSI listed in Appendix I of 
UTP TAF9. 

Union rules will be clearly affected by the adoption of these decisions.  

The Union, represented by the Commission, shall exercise the voting rights with respect to the 
adoption of these decisions.  

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The Union should for all the above-mentioned reasons vote in favour.  

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.’ 

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9 

Directive  (EU)  2016/797  of  the  European  Parliament  and  of  the  Council  of  11  May  2016  on  the 
interoperability of the rail system within the European Union (OJ L 138, 26.5.2016, p. 44) 
Commission  Implementing  Regulation  (EU)  2019/778  of  16  May  2019  amending  Regulation  (EU) 
No 1305/2014 as regards Change Control Management (OJ L 139I , 27.5.2019, p. 356) 

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Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a 
party to the agreement10. 

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 EU legislature’11. 

4.1.2.  Application to the present case 

The CTE is a body set up by an agreement, namely the COTIF, in particular Article 13(1) (c) 
and (f).  
The acts which the CTE is called upon to adopt during its 15th session constitute acts having 
legal effects.  

The envisaged acts modify the OTIF legal framework. As the Union is a full contracting party 
to  COTIF,  the  envisaged  acts  will  be  binding  upon  the  Union  under  international  law  in 
accordance with the EU-COTIF Accession 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  adopted  on 
behalf of the Union. 

4.2.2.  Application to the present case 

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

The substantive legal basis of the proposed decision, therefore, 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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Judgment  of 
ECLI:EU:C:2014:2258, paragraph 64 
Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64 

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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2023/0091 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union at the 15th meeting of the 
Committee of Technical Experts of the Intergovernmental Organisation for 
International Carriage by Rail (OTIF) as regards the modifications to the uniform 
technical prescriptions concerning the qualifications and independence of assessing 
entities and concerning a common safety method on risk evaluation and assessment, the 
modification of the rules of procedure of the Committee of Technical Experts, and the 
upgrade of the references to the Technical Documents of TAF TSI listed in Appendix I 
of UTP TAF 

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) 

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The  Union  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'),  in 
accordance  with  Council  Decision  2013/103/EU12  and  the  Agreement  between  the 
European Union and the Intergovernmental Organisation for International Carriage by 
Rail (OTIF) on the Accession of the European Union to the COTIF Convention (the 
'Agreement').  

Pursuant  to  Article  13(1)  (f)  of  the  COTIF,  the  Committee  of  Technical  Experts 
('CTE') of the OTIF was set up.  

Pursuant  to  Article  20(1)  (b)  of  the  COTIF,  and  in  accordance  with  Article  6  of  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 COTIF, the CTE is competent to adopt 
or  to  amend,  inter  alia,  the  Uniform  Technical  Prescriptions  (UTP)  concerning  the 
qualifications  and  independence  of  assessing  entities  (UTP  GEN-E),  concerning  a 
common  safety  method  on  risk  evaluation  and  assessment  (UTP  GEN-G),  and 
concerning telematics applications for freight (UTP TAF). 

In  accordance  with  Article  16(10)  of  COTIF,  the  CTE  is  competent  to  propose  a 
revision of its rules of procedure.  
The CTE has included in the agenda of its 15th session that will take place on 13 and 
14 June 2023, a proposal for decisions to fully revise the UTP GEN-E concerning the 
qualifications  and  independence  of  assessing  entities,  to  amend  the  UTP  GEN-G 

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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concerning  a  Common  Safety  Method  on  risk  evaluation  and  assessment,  to  modify 
the  rules  of  procedure  of  the  Committee  of  Technical  Experts  and  to  upgrade  the 
references to the Technical Documents of TAF TSI listed in Appendix I of UTP TAF. 

(6) 

(7) 

It is appropriate to establish the position to be taken on the Union's behalf in the CTE, 
as the proposed decisions will be binding on the Union.  

The  objectives  of  those  decisions  are  to  align  the  UTP  GEN-E  concerning  the 
qualifications and independence of assessing entities with Directive (EU) 2016/797 of 
the European Parliament and of the Council13, to revise the UTP GEN-G concerning a 
Common  Safety  Method  on  risk  evaluation  and  assessment,  to  modify  the  rules  of 
procedure of the Committee of Technical Experts and to align the UTP TAF with EU 
rules, namely Commission Implementing Regulation (EU) 2021/541914. 

(8) 

The envisaged OTIF decisions are in line with the law and the strategic objectives of 
the  Union  by  contributing  to  the  alignment  of  OTIF  legislation  with  the  equivalent 
provisions of Union law, and should therefore be supported by the Union, 

HAS ADOPTED THIS DECISION: 

Article 1 
The  position  to  be  taken  on  the  Union's  behalf  during  the  15th  session  of  the  CTE  of  the 
Convention concerning International Carriage by Rail of 9 May 1980 on the modifications to 
the  UTP  GEN-E  concerning  the  qualifications  and  independence  of  assessing  entities  and 
UTP GEN-G concerning a Common Safety Method on risk evaluation and assessment, on the 
modification  of  the  rules  of  procedure  of  the  Committee  of  Technical  Experts,  and  on  the 
update of the references to the Technical Documents of TAF TSI listed in Appendix I of UTP 
TAF shall be the following:  

(1) 

(2) 

(3) 

(4) 

to  vote  in  favour  of  the  CTE  proposed  revision  of  UTP  GEN-E  concerning  the 
qualifications and independence of assessing entities, as found in the CTE Working 
Document TECH-23005 UTP GEN-E 

to  vote  in  favour  of  the  CTE  proposed  amendments  to  UTP  GEN-G  concerning  a 
Common  Safety  Method  on  risk  evaluation  and  assessment,  as  found  in  the  CTE 
Working Document TECH-23006 UTP GEN-G 

to vote in favour of the CTE proposed modification of the rules of procedure of the 
Committee  of  Technical  Experts,  as  found  in  the  CTE  Working  Document  TECH-
23002 CTE 

to  vote  in  favour  of  the  CTE  proposal  to  upgrade  the  references  to  the  Technical 
Documents  of  TAF  TSI  listed  in  Appendix  I  of  UTP  TAF,  as  found  in  the  CTE 
Working Document TECH-21009-CTE UTP TAF decision. 

Once adopted, the decisions of the Committee of Technical Experts shall be published in the 
Official Journal of the European Union, indicating the date of their entry into force. 

Article 2 

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Directive  (EU)  2016/797  of  the  European  Parliament  and  of  the  Council  of  11  May  2016  on  the 
interoperability of the rail system within the European Union (OJ L 138, 26.5.2016, p. 44) 
Commission  Implementing  Regulation  (EU)  2021/541  of  26  March  2021  amending  Regulation  (EU) 
No 1305/2014 as regard the simplification and improvement of data calculation and exchange and the 
update of the Change Control Management process (OJ L 108, 29.3.2021, p. 19) 

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This Decision is addressed to the Commission. 

Done at Brussels, 

For the Council 
The President 

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