Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the 13th session of the Committee of Technical Experts of the Intergovernmental Organisation for International Carriage by Rail (OTIF) for the adoption of modifications to UTP rolling stock noise, UTP freight wagons, UTP vehicle marking, and for the adoption of full revision of the rules for the certification and auditing of entities in charge of maintenance (ECM) and the specifications concerning vehicle registers

EXPLANATORY MEMORANDUM

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 16 - 17 June 2020. The agenda of the meeting includes:

• A proposal for modification of the UTP concerning rolling stock noise;

• A proposal for modification of the UTP concerning freight wagons;

• A proposal for modification of the UTP concerning vehicle marking;

• A proposal for full revision of the rules for the certification and auditing of entities in charge of maintenance (ECM Regulation); and

• A proposal for full revision of the specifications concerning vehicle registers.

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.

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 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 Parties 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 (including a new appendix H to be adopted during the upcoming 13th General Assembly of OTIF) 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 – Contracts 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 than 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.

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 13(1), (4) and (5) of Appendix G (ATMF), the CTE is also competent to take decisions on the set up or modification, merging or withdrawal of the National Vehicle Registers ((NVR). Finally, in accordance with Article 15 (2) of ATMF, the CTE is competent to adopt and amend rules for the certification and auditing of Entities in Charge of Maintenance (ECMs).

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.

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. In this way, the UTPs in OTIF have the same purpose than 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 rolling stock noise

The UTP rolling stock noise lays down basic and additional requirements with regard to the noise emissions for rolling stock. They are currently equivalent to the Noise TSI specified in Commission Regulation (EU) No 1304/2014 ² . The aim of the proposed amendments to the UTP is to provide the Parties with the possibility of limiting the use of old wagons, which are not compliant with modern pass-by noise requirements on defined railway lines where noise is an issue.

On 16 May 2019, the Commission has adopted a modification ³ of Commission Regulation (EU) No 1304/2014 extending the scope of its NOISE TSI and introducing the “quieter route approach” for infrastructure, to apply as of 2024 throughout the EU. The future UTP Noise does not include the definition of quiet route and the identification of quiet route is let at the discretion of contracting States outside the EU. However, this deviation from the EU TSI is not deemed detrimental to the EU provided that the start date for implementing quiet routes is aligned with the EU, because it does not impact traffic from or to EU. 

The purpose of the CTE decision to modify the UTP rolling stock noise is to maintain its equivalence as defined by ATMF with the Noise TSI included in Commission Regulation (EU) No 1304/2014 as modified in 2019.

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

• UTP freight wagons

The UTP freight wagons lays down requirements with regard to the vehicles designed to carry lorries. They are currently equivalent to the Wagon TSI specified in Commission Regulation (EU) No 321/2013 ⁴ .

On 16 May 2019, the Commission adopted a modification ⁵ of Commission Regulation (EU) No 321/2013. 

The purpose of the CTE decision to modify the UTP freight wagons is to maintain its equivalence with Commission Regulation (EU) No 321/2013 as recently modified.

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

• UTP Vehicle Marking

The UTP marking lays down requirements with regard to the marking of wagons. This UTP does not have an equivalent single European Union TSI.

Sections 1 to 6 of this UTP are currently equivalent to Appendix P of OPE TSI (Annex I of Decision 2007/756/EC as last amended by Decision 2012/757/EU ⁶ ), Sections 7 to 18 are equivalent to Appendix 6 of EU NVR Specification (Commission Decision 2007/756/EC ⁷ ).

The Commission has adopted a new OPE TSI on 16 May 2019, the Commission Regulation (EU) No 2019/773 ⁸  and a new European Vehicle register on 25 October 2018, the Commission Decision (EU) 2018/1614 ⁹ .

The purpose of the decision to modify the UTP marking is to maintain its equivalence with:

• Sections 1 to 6 to Appendix H of Commission Implementing Regulation (EU) 2019/773 (OPE TSI), as recently modified,

• Sections 7 to 18 to Appendix 6 of Commission Implementing Decision (EU) 2018/1614 (EVR).

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

The system of certification of entity in charge of maintenance sets out requirements and assessment criteria applicable for the certification of ECMs for freight wagons. It is currently equivalent to Commission Regulation (EU) No 445/2011 ¹⁰ .

The Commission has adopted a new Commission Regulation (EU) 2019/779 of 16 May 2019 ¹¹ , which repeals and replaces Commission Regulation (EU) No 445/2011, and which will extend the ECM certification to include all types of vehicles from 16 June 2020.

The purpose of the CTE decision to modify the ATMF Annex A “Rules for the certification and auditing of entities in charge of maintenance” is to maintain its equivalence as defined by ATMF 3a (5) with Commission Regulation (EU) 2019/779 of 16 May 2019.

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. It has to be noted that the equivalence is only guaranteed for freight wagons.

Compared with the existing COTIF rules, the text proposed by CTE do not significantly change the responsibilities or requirements ECMs have to meet in terms of certification. 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 wagon, to all types of vehicles.

In summary:

• ECM certification remain mandatory for any ECM for freight wagons, and

• ECM certification is extended to include certification of ECMs for all other types of vehicles. As a general rule, ECM certification would therefore be mandatory, with the following exception:

  • Railway undertakings who maintain vehicles, other than freight wagons, that are only operated by themselves are exempt from mandatory ECM certification. In such cases the Competent Authority of the State concerned must ascertain that the general requirements and criteria set out in Annex II of the proposal are complied with.

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, set out in Annex II of the proposal.

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, provided that the modifications as defined in the Annex to this document are included in the COTIF text.

The current NVR specifications applicable under OTIF rules are equivalent to those provided for in Commission Decision 2007/756/EC.

In the framework of the fourth railway package, the Commission adopted the Commission Implementing Decision (EU) 2018/1614 that provides for updated specifications of EU national vehicle registers and specifications of the European Vehicle Register (EVR), which will replace EU national vehicle registers from 2021, and repeals Commission Decision 2007/756/EC.

The CTE decision to modify the NVR specifications is triggered by the adoption of Commission implementing Decision (EU) 2018/1614.

By 2021, the EU Member States will join forces and manage vehicle authorisation and information through a common register, the future EVR that would replace the former 25 EU Member States NVRs. In the context of OTIF, EVR would thus become the NVR for the EU region. EVR may be made available for vehicles from other countries in particular those countries under the EU neighbourhood policy that have committed to implement EU law by way of bilateral agreements with the EU (e.g. NO, CH, Western Balkans, etc.). Other members of OTIF may request to register vehicles, subject to admission for international traffic, into EVR.

Conclusion: the European Union can vote in favour of the full revision of National Vehicle Register (NVR) specifications as proposed by OTIF, provided that the modifications as defined in the Annex to this document are included in the OTIF text.

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.

Union rules will be clearly affected by the adoption of the modifications since the objective of the measure is to align the UTP Noise, UTP Wagons, UTP Marking, ECM regulation and NVR specifications with respectively, Commission Implementing Regulation (EU) No (EU) 2019/776, Commission Implementing Regulation (EU) 2019/774, Commission Implementing Regulation (EU) 2019/773, Commission Implementing Regulation (EU) 2019/779 and Commission Implementing Decision (EU) 2018/1614 as recently modified.

Since the Union has exclusive competence on the matters covered by the five-abovementioned CTE decisions, the Union, represented by the Commission, shall exercise the voting rights with respect to the adoption of these five decisions.

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

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 ¹² .

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’ ¹³ .

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 National 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.

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.

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.

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

on the position to be taken on behalf of the European Union at the 13th session of the Committee of Technical Experts of the Intergovernmental Organisation for International Carriage by Rail (OTIF) for the adoption of modifications to UTP rolling stock noise, UTP freight wagons, UTP vehicle marking, and for the adoption of full revision of the rules for the certification and auditing of entities in charge of maintenance (ECM) and the specifications concerning vehicle registers

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. 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/EU ¹⁴ .

2. All Member States, with the exception of Cyprus and Malta, are parties to the COTIF.

3. Pursuant to Article 13(1) (f) of the COTIF, the Committee of Technical Experts ('CTE') of the Intergovernmental Organisation for International Carriage by Rail (OTIF) was set up.

4. 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, inter alia, Uniform Technical Prescriptions (UTP) concerning rolling stock noise (UTP Noise), freight wagons (UTP Wagons) and vehicle marking (UTP Marking). In accordance with Article 13(1), (4) and (5) of Appendix G (ATMF), the CTE is also competent to take decisions on the set up or modification, merging or withdrawal of the National Vehicle Registers (NVR). Finally, in accordance with Article 15 (2) of ATMF, the CTE is competent to adopt and amend rules for the certification and auditing of Entities in Charge of Maintenance (ECMs).

5. The CTE has included in the agenda of its 13th session that will take place on 16 and 17 June 2020, a proposal for decisions to amend the UTP rolling stock noise, the UTP freight wagons, the UTP vehicle marking, and for a full revision of the rules for the certification and auditing of entities in charge of maintenance (ECM) and for a full revision of the specifications concerning national vehicle registers (NVR).

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

7. The objective of those amendments is to align the UTP rolling stock noise, the UTP freight wagons, the UTP vehicle marking and the rules for certification and auditing of entities in charge of maintenance (ECM) with Commission Implementing Regulation (EU) 2019/774 ¹⁵ , Commission Implementing Regulation (EU) 2019/776 ¹⁶ , Commission Implementing Regulation (EU) 2019/773 ¹⁷ and Commission Implementing Regulation (EU) 2019/779 ¹⁸ respectively; the specifications concerning vehicle registers have been updated in light of Commission Implementing Decision (EU) 2018/1614 ¹⁹ .

8. The proposed amendments and modification 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 European Union's behalf during the 13th session of the Committee of Technical Experts of the Intergovernmental Organisation for International Carriage by Rail (OTIF) on the modifications to the UTP rolling stock noise, UTP freight wagons, UTP vehicle marking, of full revision of the rules for certification and auditing of entities in charge of maintenance (ECM Regulation) and to the specifications concerning vehicle registers shall be the following:

1. to vote in favour of the CTE proposed amendments to UTP freight wagons, as found in the CTE Working Document TECH-20005-CTE13-6.2-e-UTP WAG Annex and TECH-20005-CTE13-6.2-e-UTP WAG Proposal;

2. to vote in favour of the CTE proposed amendments to UTP vehicle marking, as found in the CTE Working Document TECH-20006-CTE13-6.3-e-UTP MARKING annex and TECH-20006-CTE13-6.3-e-UTP MARKING Proposal;

3. to vote in favour of the CTE proposed amendments to UTP rolling stock noise as found in the CTE Working Document TECH-20004-CTE13-6.1-e-UTP NOI Annex and TECH-20004-CTE13-6.1-e-UTP NOI Proposal;

4. to vote in favour of the full revision of the rules for certification and auditing of entities in charge of maintenance (ECM Regulation), provided that the text as found in the CTE Working Document TECH-20007-CTE13-6.4-e-ECM Annex and TECH-20007-CTE13-6.4-e-ECM Proposal is modified as stated in the Annex to this Decision;

5. to vote in favour of the full revision of the specifications concerning national vehicle registers (NVR), provided that the text as found in the CTE Working Document TECH-20008-CTE13-6.5-e-vehicle register Annex and TECH-20008-CTE13-6.5-e-vehicle register Proposal is modified as stated in the Annex to this Decision.

Article 2

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.

This Decision is addressed to the Commission.

Done at Brussels,

Amendments to be proposed by the EU for adoption by the Committee of Technical Experts of OTIF, as to rules for the certification and auditing of entities in charge of maintenance and specifications concerning vehicle registers

1. The text of the full revision of the National Vehicle Register (NVR) specifications as found in the CTE Working Document TECH-20008-CTE13-6.5-e-vehicle register Annex shall be modified as follows:

   • Add a new Article 13: “Article 13 Particular implementation rules

§1 Vehicles admitted in international traffic which enter the rail network of the European Union shall be registered in the EVR.”

2. The text of the full revision of the Entities in Charge of Maintenance (ECM) specifications as found in the CTE Working Document TECH-20007-CTE13-6.4-e-ECM Proposal shall be modified as follows:

   • Add at the end of paragraph 4 “The scope of ATMF Article 3a § 5 on the equivalence between EU and COTIF provisions is currently limited to freight wagons. In order to provide legal certainty for other categories of vehicles, the next revision of ATMF should consider the ECM certification for other categories of vehicles in Article 3a § 5.”

3. The text of the full revision of the Entities in Charge of Maintenance (ECM) specifications as found in the CTE Working Document TECH-20007-CTE13-6.4-e-ECM Annex shall be modified as follows:

   • Add at the end of Article 3 paragraph 5 “Contracting states may set out national or regional (the EU) process, equally robust as the ECM certification, to be applied instead of the ECM certification. Transparency of those national processes should be ensured to maintain trust between contracting states.”