Explanatory Memorandum to COM(2021)178 - EU position at the 13th meeting of the Committee of Technical Experts of the Intergovernmental Organisation for International Carriage by Rail (OTIF) for the adoption of modifications to UTP locomotives and passenger rolling stock, UTP rolling stock - freight wagons, UTP concerning accessibility of the rail system for persons with disabilities and persons with reduced mobility, the adoption of the UTP applicable to train composition and route compatibility checks and the UTP applicable to the subsystem infrastructure, the upgrade of the references to the Technical Documents of TAF TSI listed in Appendix I of UTP TAF, and for the revision of ATMF with regard to Entities in Charge of Maintenance (ECM)

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dossier COM(2021)178 - EU position at the 13th meeting of the Committee of Technical Experts of the Intergovernmental Organisation for ...
source COM(2021)178 EN
date 15-04-2021


1. Subject matter of the proposal

The 13th session of the Committee of Technical Experts (CTE) of the Intergovernmental Organisation for International Carriage by Rail (OTIF) will take place in Bern on 22 June 2021. The agenda of the meeting includes:

–A proposal for modification of the UTP concerning locomotives and passenger rolling stock;

–A proposal for modification of the UTP concerning rolling stock – freight wagons;

–A proposal for modification of the UTP concerning accessibility of the rail system for persons with disabilities and persons with reduced mobility;

–A proposal for adoption of the UTP applicable to train composition and route compatibility checks;

–A proposal for adoption of the UTP applicable to the subsystem infrastructure;

–A proposal for revision of ATMF with regard to Entities in Charge of Maintenance (ECM);

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

The position to be taken on the Union's behalf on the abovementioned decisions to be adopted by CTE 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 States are Contracting Parties (only Cyprus and Malta are not).

The European Union acceded to the COTIF by means of Council Decision 2013/103/EU of 16 June 2011 1 . Annex III to that Decision established the internal arrangement for the Council, the Member States and the Commission in proceedings under OTIF. According to point 3.1 of this Annex III, where an agenda item deals with matters of exclusive Union competence, the Commission will vote for the Union.

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 in two parts: the Convention itself, which governs the running of OTIF, and the eight Appendices that establish uniform railway law:

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

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

–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 Uniform Technical Prescriptions (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.

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 15(2) of ATMF, the CTE is competent to propose amendments to ATMF with regard to Entities in Charge of Maintenance (ECMs).

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.

2.4.The envisaged acts to be adopted by the CTE during the session on 22 June 2021

2.4.1.Modification of the UTP concerning locomotives and passenger rolling stock, the UTP concerning rolling stock freight wagons and the UTP concerning accessibility of the rail system for persons with disabilities and persons with reduced mobility

The OTIF Uniform Technical Prescriptions (UTPs) are a set of technical specifications deriving from the principles, objectives and procedures of COTIF for the construction and operation of railway material, with the overriding objective of achieving maximum interoperability. The UTPs in OTIF have the same purpose as the EU technical specifications for interoperability (TSIs).

In order to ensure the equivalence of vehicles authorised in accordance with European Union law and vehicles admitted to international operation in accordance with Article 3a of ATMF, it is necessary that the European Union TSIs and COTIF UTPs remain aligned.

The modifications proposed for adoption by CTE will ensure continued full equivalence as defined by ATMF between the European Union and COTIF provisions.

·UTP concerning locomotives and passenger rolling stock (LOC&PAS)

This UTP is a specification by which a particular subsystem is addressed in order to meet the essential requirements and ensure the interoperability of the technical systems and components necessary in international rail traffic. The current UTP LOC&PAS was developed on the basis of the European Union Commission Regulation (EU) No 1302/2014 (LOC&PAS TSI) 2 .

The aim of this proposal to modify the UTP LOC&PAS is to incorporate the new elements brought about by the revision of the APTU Uniform Rules of 1 March 2019 and to keep it aligned with the European Union LOC&PAS TSI as amended by the EU on 16 May 2019 by Commission Implementing Regulation (EU) 2019/776 3 and on 9 March 2020 by Commission Implementing Regulation (EU) 2020/387 4 .

In order to ensure the continued mutual recognition of vehicles authorised in accordance with European Union law and vehicles admitted to international operation in accordance with Article 3a of ATMF, the European Union TSIs and COTIF UTPs must remain aligned.

In addition, following Brexit, the specific cases for the Great Britain network of the United Kingdom of Great Britain and Northern Ireland should be listed in the UTP as consequence of their elimination in the TSI.

Conclusion: the European Union can vote in favour of the UTP rolling stock locomotives and passenger amendment as proposed by OTIF.

·UTP concerning rolling stock – freight wagons (UTP WAG)

The UTP freight wagons lays down requirements with regard to the vehicles designed to carry lorries. They are currently equivalent to the WAG TSI modified by European Union Commission Implementing Regulation (EU) No 2019/776 of 16 May 2019.

The aim of this proposal to modify the UTP WAG is to incorporate the new elements brought about by the revision of the APTU Uniform Rules of 1 March 2019 and to keep it aligned with legal developments in the European Union.

The European Union published Commission Implementing Regulation (EU) 2020/387 of 9 March 2020, which newly amended the WAG TSI. As a result, the UTP WAG has to be modified again in order to ensure continued equivalence between UTP and TSI.

In addition, following Brexit, the specific cases for the Great Britain network of the United Kingdom of Great Britain and Northern Ireland should be listed in the UTP as consequence of their elimination in the TSI.

Conclusion: the European Union can vote in favour of the UTP Freight Wagons amendment as proposed by OTIF.

·UTP concerning persons with disabilities (UTP PRM)

The UTP PRM lays down harmonized requirements for accessibility for persons with disabilities and persons with reduced mobility applicable to vehicles used in international traffic. The current UTP PRM was developed on the basis of the European Union PRM TSI of 2014.

This EU TSI has been amended by Commission Implementing Regulation (EU) 2019/772 5 of 16 May 2019 as regards the inventory of assets with a view to identifying barriers to accessibility, providing users with information and monitoring and evaluating progress on accessibility.

In order to ensure the continued mutual recognition of vehicles authorised in accordance with European Union law and vehicles admitted to international operation in accordance with Article 3a of ATMF, the European Union TSIs and COTIF UTPs must remain aligned.

The proposed modifications will align the UTP PRM with the latest version of the TSI and will ensure continued full equivalence in the meaning of ATMF of the PRM rules for vehicles used in international traffic by rail.

In addition, following Brexit, the specific cases for the Great Britain network of the United Kingdom of Great Britain and Northern Ireland should be listed in the UTP as consequence of their elimination in the TSI.

Conclusion: the European Union can vote in favour of the UTP PRM amendment as proposed by OTIF.

Contents

1.

2.4.2.Adoption of the UTP applicable to train composition and route compatibility checks, and subsystem infrastructure


·UTP applicable to train composition and route compatibility checks (UTP TCRC)

This UTP lays down detailed provisions concerning the responsibilities of railway undertakings on composition of trains for use in international traffic and the responsibilities of infrastructure managers on checking compatibility between trains and the routes on which they are intended to be used.

The proposed UTP TCRC combines a select number of parameters from two different EU legal texts, namely the Technical Specifications for Interoperability concerning operation and traffic management (OPE TSI) and the specifications for the register of infrastructure (RINF).

The UTP WAG and the UTP LOC&PAS contain references to route compatibility checks, in which railway undertakings check all relevant parameters of vehicles or trains to ensure their compatibility with the route on which they will be used. The provisions of the proposed UTP TCRC are intended to replace both Appendix I to the UTP WAG and Appendix K to the UTP LOC&PAS.

Consequently, Appendix I to the UTP WAG in the version adopted by the Committee of Technical Experts on 30 September 2020, with a date of entry into force of 1 April 2021, and Appendix K to the UTP LOC&PAS of 1 January 2015 should be repealed upon entry into force of the UTP TCRC.

Conclusion: the European Union can vote in favour of the UTP TCRC adoption as proposed by OTIF.

·UTP applicable to the subsystem infrastructure (UTP INF)

This UTP sets out the railway infrastructure parameters that are relevant in terms of compatibility with vehicles and specific methods to check these parameters.

The Committee of Technical Experts analysed the legal basis in detail and formulated guiding principles and aims for the development of the UTP INF.

The UPT INF was drafted following the view of WG TECH, and is based on the INF TSI as last amended by Commission Implementing Regulation (EU) 2019/776 of 16 May 2019.

Conclusion: the European Union can vote in favour of the UTP INF adoption as proposed by OTIF.

2.4.3.Revision of ATMF with regard to Entities in Charge of Maintenance (ECM).

In order to ensure continued equivalence as defined by ATMF Article 3a § 5 between European Union rules and COTIF rules, the COTIF rules should be modified.

The main objective of the new text is to extend the scope of certification beyond its previous one, which was limited to the certification of ECMs for freight wagons, to all types of vehicles.

As a consequence, and irrespective of the question of whether certification is mandatory for a particular ECM, every ECM, including those not certified by external certification bodies, must comply with the general requirements and criteria ensuring minimum levels of maintenance, as set out in Annex II of the UTP proposal.

The ATMF Uniform Rules (Appendix G to COTIF and further referred to as ATMF) set out general rules concerning entities in charge of maintenance (ECMs).

In summary, there are two reasons for modifying the current texts:

–The scope of certification of ECMs in the new Annex A to ATMF extends beyond freight wagons. This should be reflected, particularly in Article 15 of ATMF, which currently mandates the certification of ECMs for freight wagons only.

–ATMF makes reference in Article 3a to EU legislation that is no longer in force (Directive 2004/49/EC 6 has been repealed and replaced by Directive (EU) 2016/798 7 ).

Conclusion: the European Union can vote in favour of the full revision of the Entities in Charge of Maintenance (ECM) specifications as proposed by OTIF.

2.

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


The UTP TAF makes reference to the TSI TAF technical documents 8 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 modification of these references formally constitutes 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.

2.5.Union competence and voting rights

Pursuant to Article 6 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 COTIF approved by Council Decision of 16 June 2011:

"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 locomotives and passenger rolling stock and the UTP rolling stock – freight wagons with Commission Implementing Regulation (EU) 2020/387 9 ,

·align the UTP concerning accessibility of the rail system for persons with disabilities and persons with reduced mobility with Commission Implementing Regulation (EU) 2019/772 10 ,

·adopt a new UTP applicable to train composition and route compatibility checks in line with Commission Implementing Regulation (EU) 2019/773 11 ,

·adopt a new UTP applicable to the subsystem infrastructure in line with Commission Regulation (EU) No 1299/2014 12 as amended by Commission Implementing Regulation (EU) 2019/776 13 ,

·propose to the revision committee of OTIF a revision of ATMF with regard to Entities in Charge of Maintenance (ECM) to align with Directive (EU) 2016/798 14 ,

·align the references to the Technical Documents of TAF TSI listed in Appendix I of UTP TAF 15 .

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

3.

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.’

Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a party to the agreement 16 .

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’ 17 .

4.

4.1.2.Application to the present case


The acts which the CTE is called upon to adopt constitute acts having legal effects. The envisaged acts have legal effects because they modify the OTIF legal framework by aligning the COTIF UTPs with the EU TSIs, ECM regulation and Vehicle Register specifications with the respective EU implementing regulations and are binding upon the Union.

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

4.2.Substantive legal basis

5.

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. 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.

6.

4.2.2.Application to the present case


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