CELEX: 52018PC0351
Language: en
Date: 2018-05-29
Title: Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Regional Steering Committee set up under the Treaty establishing the Transport Community

EUROPEAN COMMISSION
            Brussels, 29.5.2018
            COM(2018) 351 final
            2018/0182(NLE)
            Proposal for a
            COUNCIL DECISION
            on the position to be taken on behalf of the European Union in the Regional Steering Committee set up under the Treaty establishing the Transport Community
            
               
         
         
            
               EXPLANATORY MEMORANDUM
            
            
               1.SUBJECT MATTER OF THE PROPOSAL
            
            
               This proposal concerns the decision establishing the position to be taken on behalf of the European Union in the Regional Steering Committee set up under the Treaty establishing the Transport Community (‘the TCT’) as regards the envisaged decision on the adoption by the Regional Steering Committee of its Rules of Procedure.
            
            
               2.CONTEXT OF THE PROPOSAL
            
            
               2.1The Treaty establishing the Transport Community
            
            
               Following signature, the TCT applies provisionally in accordance with Article 41(3) thereof. For the Union, provisional application is provided by the Council Decision on the signing, on behalf of the European Union, and provisional application of the Treaty establishing the Transport Community
                  1
               .
            
            
               The European Union is a party to the TCT.  
            
            
               2.2The Regional Steering Committee
            
            
               
                  The Regional Steering Committee is established by Article 24 of the TCT to be responsible for the administration of the TCT and to ensure its proper implmentation. For this purpose, it shall make recommendations and take decisions in the cases provided for in the TCT. Notably, the Regional Steering Committee:
               
            
            
               (a)prepares the work of the Ministerial Council,
            
            
               (b)decides on the establishment of technical committees,
            
            
               (c)makes recommendations and takes decisions in accordance with the TCT,
            
            
               (d)as regards newly adopted EU acts, takes appropriate action, notably through the revision of Annex I to the TCT,
            
            
               (e)appoints the Director of the Permanent Seretariat after consulting the Ministerial Council,
            
            
               (f)may appoint one or more Deputy Directors of the Permanent Secretariat,
            
            
               (g)lays down rules of the Permanent Secretariat,
            
            
               (h)may review, by way of a decision, the level of budget contributions,
            
            
               (i)adopts the annual budget of the TCT,
            
            
               (j)adopts a decision specifying the procedure for the implementation of the budget, for presenting and auditing accounts and for inspection,
            
         
         
            
               (k)takes decisions on disputes brought by the Contracting Parties,
            
            
               (l)adopts general principles in the area of access to documents, in respect of documents held by bodies established by, or under, the TCT,
            
            
               (m)adopts annual reports to the attention of the Ministerial Council on the implementation of the Comprehensive Network;
            
            
               (n)in respect of certain Union acts, establishes time limits and ways for the transposition by the South East European Parties.
            
            
               
                  The Regional Steering Committee consists of one representative and one alternate representative of each Contracting Party. Participation as observer shall be open to all EU Member States. The Regional Steering Committee acts by unanimity.
               
            
            
               2.3The envisaged act of the Regional Steering Committee
            
            
               
                  The draft decision concerns the adoption of the Rules of Procedure of the Regional Steering Committee in accordance with Article 24(5) of the TCT. The draft Rules of Procedure cover subjects such as participation at the meetings of the Regional Steering Committee, the Presidency of the Regional Steering Committee, the preparation of meetings of the Regional Steering Committee and the procedural rules applicable to such meetings, procedures in respect of the actions to be taken by the Regional Steering Committee, disclosure of information, as well as a number of final provisions. According to their proposed terms, the Rules of Procedure enter into force on the day of their adoption. The decision on the adoption of the Rules of Procedure of the Regional Steering Committee will be essential for the timely implementation of the TCT.
               
               
                  The envisaged decision will become legally binding on the parties under Article 24(5) of the TCT.
               
            
            
               3.POSITION TO BE TAKEN ON THE UNION'S BEHALF
            
            
               It is essential for the Regional Steering Committee to adopt its Rules of Procedure in acocordannce with Article 24(5) of the TCT in order to ensure the appropriate execution and implementation of its tasks pursuant to the TCT. As the Union is a party to the TCT, a Union position is needed.
            
            
               In this respect, it shall be recalled that the TCT is one element liable to strengthen regional cooperation within the Western Balkans, as further explained in the Commission's proposal for a Council decision on the signing of the TCT [COM(2017)324 final, sub "General Context"].  
            
            
               4.LEGAL BASIS
            
            
               4.1Procedural legal basis
            
            
               4.1.1 Principles
            
            
               
                  Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for Council 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 EU legislature’
                     2
                  .
               
            
            
               4.1.2 Application to the present case
            
            
               The Regional Steering Committee is a body set up by an agreement, namely the TCT.
            
            
               The act which the Regional Steering Committee is called upon to adopt constitutes an act having legal effects. The Regional Steering Committee is empowered to adopt its rules of procedure in accordance with Article 24(5) of the TCT. By their nature, and as a matter of international law governing the Regional Steering Committee, those rules contain elements that are legally binding upon the members of the Regional Steering Committee and therefore also upon the representative of the Union. Consequently, they must be considered as having legal effects. 
            
            
               The envisaged act does not supplement or amend the institutional framework of the TCT.
            
         
         
            
               Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU.
            
            
               4.2Substantive 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 is necessary for the proper functioning of the TCT. In turn, the TCT pursues objectives and has components in the areas of road, rail and inland waterways transport, which are modes covered by Article 91 TFEU as well as in the area of sea transport, a mode covered by Article 100(2) TFEU. Because of its horizontal nature, the envisaged act pertains to all these elements. All these elements are inseparably linked without one being incidental to the other.
            
            
               
                  Therefore, the substantive legal basis of the proposed decision comprises the following provisions: Articles 91 and 100(2) TFEU.
               
               
                  4.3
                        Conclusion
               
               
                  The legal basis of the proposed decision should be Articles 91 and 100(2) TFEU, in conjunction with Article 218(9) TFEU.
               
            
            
               
            
               2018/0182 (NLE)
            
            
               Proposal for a
            
            
               COUNCIL DECISION
            
            
               on the position to be taken on behalf of the European Union in the Regional Steering Committee set up under the Treaty establishing the Transport Community
            
            
               THE COUNCIL OF THE EUROPEAN UNION,
            
            
               Having regard to the Treaty on the Functioning of the European Union, and in particular Article 91 and Article 100(2), in conjunction with Article 218(9) thereof,
            
            
               Having regard to the proposal from the European Commission,
            
            
               Whereas:
            
            
               (1)The Treaty establishing the Transport Community ('the TCT') was signed by the Union in accordance with Council Decision (EU) 2017/1937
                  3
               .
            
         
         
            
               (2)In accordance with Article 41(3) of the TCT, the TCT applies provisionally between the Union, Albania, Bosnia and Herzegovina and Kosovo
                  4
               * since 9 October 2017, and between these parties and Serbia since 29 November 2017.
            
            
               (3)Pursuant to Article 24(5) of the TCT, the Regional Steering Committee is to adopt its rules of procedure.
            
            
               (4)It is appropriate to establish the position to be taken on the Union's behalf in the Regional Steering Committee, as the decision on the rules of procedure of the Regional Steering Committee will be binding on the Union,
            
            
               HAS ADOPTED THIS DECISION: 
            
            
               Article 1
            
            
               The position to be taken on the Union's behalf within the Regional Steering Committee shall be based on the draft Decision of the Regional Steering Committee attached to this Decision.
            
            
            
               Minor changes to the draft Decision may be agreed to by the representatives of the Union within the Regional Steering Committee without further decision of the Council.
            
            
               Article 2
            
            
               This Decision is addressed to the Commission.
            
            
               Done at Brussels,
            
            
               
                     For the Council
               
               
                     The President
               
            
         
         
            
                  
                     (1)
                  
                        OJ L 278, 27.10.2017, p. 1.
               
               
                  
                     (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. 
               
               
                  
                     (3)
                  
                        Council Decision (EU) 2017/1937 of 11 July 2017 on the signing, on behalf of the European Union, and provisional application of the Treaty establishing the Transport Community (OJ L 278, 27.10.2017, p. 1).
               
               
                  
                     (4)
                  *
                        This designation is without prejudice to positions on status, and is in line with UNSCR 1244/1999 and the ICJ Opinion on the Kosovo declaration of independence.
               
            
      
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               EUROPEAN COMMISSION
            Brussels,29.5.2018
            COM(2018) 351 final
            ANNEX
            to the
            Proposal for a Council Decision
            on the position to be taken on behalf of the European Union in the Regional Steering Committee set up under the Treaty establishing the Transport Community
            
               
         
         
            
               [This document is attached to the Council Decision]
                  DECISION No. 2018/1 OF THE REGIONAL STEERING COMMITTEE OF THE TRANSPORT COMMUNITY
            
            
               D/2018/1/SC-TC of … 2018: Rules of Procedure of the Regional Steering Committee
            
            
               THE REGIONAL STEERING COMMITTEE OF THE TRANSPORT COMMUNITY,
            
            
               Having regard to the Treaty establishing the Transport Community, and in particular Article 24(5) thereof,
            
            
               HAS DECIDED AS FOLLOWS:
            
            
               Sole Article
            
            
               The Rules of Procedure of the Regional Steering Committee, attached to this Decision, are hereby adopted. 
            
            
               Done in …, on … 2018.
            
            
               For the Regional Steering Committee
            
            
               ……………………………
            
            
               
            
               RULES OF PROCEDURE OF THE REGIONAL STEERING COMMITTEE OF THE TRANSPORT COMMUNITY
            
            
               I.
                     GENERAL
            
            
               1.
                     These Rules of Procedure establish the internal procedures for operation of the Regional Steering Committee as an institution under the Treaty establishing the Transport Community ('the Treaty') between the European Union and the South East European Parties (the Republic of Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, Kosovo
                  1
               , Montenegro and the Republic of Serbia).
            
            
               2.
                     In case of any contradiction between these Rules of Procedure and the Treaty, the provisions of the Treaty shall apply.
            
            
               II.
                     MEMBERS, OBSERVERS AND OTHER PARTICIPANTS
            
            
               1.
                     The members of the Steering Committee should, in principle, be senior officials in the respective ministries in charge of transport. 
            
            
               2.
                     The act of appointment of a member shall provide evidence that the member is mandated to express the position of the respective Contracting Party in a manner binding on that Party.
            
            
               3.
                     Without prejudice to the position of observers in accordance with the second sentence of Article 24(2) of the Treaty, the Presidency and the Vice-Presidency as referred to in paragraph 2 of Section III may, where appropriate, agree to invite representatives of other states, international organisations or other bodies, including representatives of the civil society, to attend, on an ad hoc basis, specific meetings of the Steering Committee or one or more parts thereof.
            
         
         
            
               4.
                     Where the Presidency and the Vice-Presidency agree to invite representatives of other states, international organisations or other bodies, the Presidency shall inform the Contracting Parties and the Permanent Secretariat of the Transport Community ('the Secretariat') at least three weeks before the meeting. The Contracting Parties and the Secretariat may submit their views to the Presidency within five working days from receiving this information.
            
            
               III.
                     PRESIDENCY
            
            
               1.
                     Each South East European Party shall hold the Presidency of the Steering Committee for one calendar year and shall follow in alphabetical order as provided in subparagraph (b) of Article 2(1) of the Treaty. The first South East European Party to hold the Presidency shall be the Republic of Albania.
            
            
               2.
                     The Presidency shall chair the Steering Committee meetings. It shall be assisted by one representative of the European Union who shall hold the Vice-Presidency.
            
            
               3.
                     Should the Presidency not be in a position to perform its duties for a particular meeting, that meeting shall be chaired by the representative of the European Union who holds the Vice-Presidency.
            
            
               IV.
                     PREPARATION OF MEETINGS
            
            
               1.
                     The meetings of the Steering Committee shall take place at the seat of the Secretariat. Nevertheless, the Presidency may decide on another place for a Steering Committee meeting after consultations with the Vice-Presidency and the Secretariat and considering the relevant financial, administrative and organisational aspects. Except in duly justified cases, that decision shall be made at least two months prior to the relevant meeting. 
            
            
               2.
                     Contribution by the Secretariat to the organisational costs of the meetings outside the seat of the Secretariat shall be subject to its internal budgetary rules.
            
            
               3.
                     The dates of the meetings shall be agreed by the Presidency, the Vice-Presidency and the Secretariat. In principle, the dates shall be agreed at least two months prior to the relevant meeting.
            
            
               4.
                     The draft agenda of the meeting shall be agreed by the Presidency and the Vice-Presidency. The draft agenda and any documents related to it shall be distributed to the members and the observers at least six weeks prior to the relevant meeting. The members may make comments and propose new items to be added. Material of interest to other states, international organisations or other bodies invited in accordance with paragraph 3 of Section II shall also be distributed to them.
            
            
               5.
                     The Secretariat shall be responsible for the preparation of the meetings. It shall inform the Presidency and the Vice-Presidency periodically and upon request about the preparation process and follow their requests and guidance in this regard.
            
            
               V.
                     MEETINGS OF THE STEERING COMMITTEE - PROCEDURAL RULES
            
            
               1.
                     The meetings of the Steering Committee shall not be public unless the Steering Committee decides otherwise.
            
            
               2.
                     Any member of the Steering Committee, observer or other participant of the meeting may be accompanied by officials who assist them. The names and functions of those officials shall be notified in advance to the Secretariat. As a principle, those officials shall not be more than three for any member, and not more than two for any observer in the meeting. However, the Presidency may further advise on the maximum number of representatives per delegation.
            
            
               3.
                     The Steering Committee shall be considered as meeting the required quorum only if four South East European Parties and the European Union are represented.
            
            
               4.
                     Abstention by a member shall not prevent the Steering Committee from taking action provided that there is quorum as required by paragraph 3 of this Section.
            
            
               5.
                     The agenda for the meeting shall be approved at its beginning. In urgent circumstances, new items may be included during the meeting subject to the agreement of the Presidency and the Vice-Presidency.
            
            
               6.
                     Observers may participate in the discussions and may make statements upon permission or when invited by the Presidency. 7.
                     Representatives of other states, international organisations or other bodies invited in accordance with paragraph 3 of Section II may participate in the discussions upon permission or when invited by the Presidency, but they shall not take part in the Steering Committee taking action of any kind.
            
            
               8.
                     The Conclusions of each meeting shall be drawn up with the assistance of the Secretariat. 
            
            
               9.
                     The Conclusions shall record all measures adopted at the meeting as well as the positions of the members and any statement by observers regarding actions proposed to be taken by the Steering Committee.
            
         
         
            
               10.
                     The Conclusions shall be signed by the Presidency and distributed to the members and the observers. In case it is not possible to prepare the draft Conclusions by the end of the relevant meeting, the Presidency shall ensure that they are prepared and distributed within seven calendar days after the meeting. Any member may request corrections within seven calendar days upon receipt of the draft Conclusions. The Presidency shall arrange that the final version is distributed within seven days upon the expiry of the deadline for comments.
            
            
               11.
                     The Conclusions of meetings may not in any way restrict the scope or effects of legal acts or the Treaty. No statements or conclusions which contradict binding legal provisions shall be made. The Conclusions of meetings shall not form part of legal acts, nor shall have any normative effect.
            
            
               VI.
                     FORMS OF ACTION AND PROCEDURE TO BE FOLLOWED BY THE STEERING COMMITTEE
            
            
               General
            
            
               1.
                     The Steering Committee acts by adopting, according to the case, recommendations and decisions (together referred to as 'Measures').
            
            
               The adoption of rules intended to ensure the functioning of the Steering Committee shall be considered as adoption of a decision.
            
            
               2.
                     Once a Measure is adopted or amended, it shall promptly be signed by the Presidency and then circulated by the Secretariat to all Contracting Parties. 
            
            
               3.
                     Measures shall enter into force on the day of their adoption, unless they provide otherwise.
            
            
               4.
                     Unless otherwise specified in these Rules of Procedure, , the adoption or amendment of Measures shall follow the same procedure.
            
            
               5.
                     Any request for the adoption or amendment of a Measure from a member or the Secretariat shall be made in writing at least 30 calendar days before the meeting of the Steering Committee at which it shall be discussed.
            
            
               6.
                     The request shall be sent to the Presidency with copy to all members and the Secretariat. It shall be accompanied by relevant explanatory notes.
            
            
               7.
                     In duly justified cases, Measures may be adopted or amended without the forms and procedures set out in paragraphs 4 to 6 of this Section being respected.
            
            
               Adoption of Measures by correspondence
            
            
               8.
                     The Steering Committee may, in the intervals between its meetings, adopt or amend Measures by correspondence. The Presidency, upon the request by a member or the Secretariat for a Measure to be taken by correspondence, or upon its own initiative shall decide, in consultation and agreement with the Vice-Presidency, whether the matter warrants that a procedure by correspondence be followed.
            
            
               9.
                     Where the Presidency has decided that a procedure by correspondence be followed, it shall instruct the Secretariat to dispatch the request to the members together with such information as the Presidency, in consultation and agreement with the Vice-Presidency, considers necessary. The Presidency, in consultation and agreement with the Vice-Presidency, shall also specify whether and, if so, under which conditions, amendments to the request may be made by the members.
            
            
               10.
                     The Presidency, in consultation and agreement with the Vice-Presidency, shall determine the date and hour by which responses must be received, which shall in no case be earlier than 10 calendar days from the date of transmission of the information referred to in paragraph 9 of this Section. In exceptional circumstances, upon request or at its own discretion, the Presidency may, in consultation and agreement with the Vice-Presidency, extend the time limit for the receipt of responses. Any member who has not replied in writing, including through e-mail, within the given time limit shall be regarded as abstaining. 
            
            
               11.
                     The Steering Committee shall act by unanimity. Unanimity shall be considered achieved where at least four South East European Parties and the European Union have responded in favour of the Measure concerned and no Party has opposed it.
            
            
               VII.
                     DISCLOSURE OF INFORMATION
            
            
               1.
                     Unless otherwise decided, the finalised documents of the meetings (agenda, Conclusions, etc.) shall be made public on the website of the Secretariat. 
            
            
               2.
                     The right of access to documents held by the Steering Committee shall be laid down in accordance with Article 38(2) and (3) of the Treaty.
            
         
         
            
               VIII.
                     FINAL PROVISIONS
            
            
               1.
                     Observers and representatives of other states, international organisations or other bodies invited in accordance with paragraph 3 of Section II shall follow any requirements for confidentiality which apply to the members of the Steering Committee. Such requirements shall be reflected in the Conclusions of the relevant meeting.
            
            
               2.
                     Representatives of other states, international organisations or other bodies invited in accordance with paragraph 3 of Section II shall, prior to attending the relevant discussions, be requested to sign a confidentiality statement. Such confidentiality statement shall contain a commitment to respect the confidentiality rules referred to in paragraph 1 of this Section. They shall be excluded from those discussions in case they refuse to sign such statement.
            
            
               3.
                     All acts of the Steering Committee shall be signed by the Presidency.
            
            
               4.
                     Any amendments to these Rules of Procedure shall be adopted by a decision of the Steering Committee.
            
            
               5.
                     If application of these Rules of Procedure to a specific situation gives rise to a difficulty of interpretation, the Presidency, in consultation and agreement with the Vice-Presidency, shall provide advice to resolve the situation.
            
            
               6.
                     Following one year from the entry into force of these Rules of Procedure, based on the practical experience with their application, the Secretariat may propose amendments to these Rules of Procedure as it deems useful or necessary. Where a member of the Steering Committee wishes to propose such amendment, it shall consult first with the Secretariat.
            
            
               These Rules of Procedure shall enter into force on the day of their adoption by the Steering Committee. 
            
         
         
            
                  
                     (1)
                  
                        This designation is without prejudice to positions on status, and is in line with UNSCR 1244 (1999) and the ICJ Opinion on the Kosovo declaration of independence.