Legal provisions of COM(2013)922 - Shift2Rail Joint Undertaking

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dossier COM(2013)922 - Shift2Rail Joint Undertaking.
document COM(2013)922 EN
date June 16, 2014

Contents

Article 1 - Establishment

1. In order to coordinate and manage Union research and innovation investments in the European rail sector, a joint undertaking within the meaning of Article 187 TFEU (‘S2R Joint Undertaking’) shall be established until 31 December 2024. In order to take into account the duration of Horizon 2020, calls for proposals by the S2R Joint Undertaking shall be launched by 31 December 2020 at the latest. In duly justified cases, calls for proposals may be launched until 31 December 2021.

2. The S2R Joint Undertaking shall constitute a body entrusted with the implementation of a public-private partnership referred to in Article 209 of Regulation (EU, Euratom) No 966/2012. The S2R Joint Undertaking shall be represented by its Executive Director.

3. The S2R Joint Undertaking shall have legal personality. In every Member State, it shall enjoy the most extensive legal capacity accorded to legal persons under the law of that State. It may acquire or dispose of movable and immovable property and may be a party to legal proceedings.

4. The seat of the S2R Joint Undertaking shall be located in Brussels, Belgium.

5. The Statutes of the S2R Joint Undertaking (‘the Statutes’) are set out in Annex I.

Article 2 - Objectives

1. The S2R Joint Undertaking shall have the following general objectives:

(a)to contribute to the implementation of Regulation (EU) No 1291/2013 and in particular part of the Smart, Green and Integrated Transport Challenge under the Societal Challenges pillar of Decision No 2013/743/EU;

(b)to contribute to the achievement of the Single European Railway Area, to a faster and less costly transition to a more attractive, user-friendly (including for persons with reduced mobility), competitive, efficient and sustainable European rail system, and to the development of a strong and globally competitive European rail industry. That will be achieved through a comprehensive and coordinated approach addressing the research and innovation needs of the rail system and its users facilitating amongst others a modal shift from road and air to rail. That approach shall cover rolling stock, infrastructure and traffic management for the market segments of freight and of long-distance, regional, local and urban passenger traffic, as well as intermodal links between rail and other modes, providing users with an integrated end-to-end solution for their rail travel and transport needs, from transaction support to en-route assistance;

(c)to establish and develop — and ensure the effective and efficient implementation of — a strategic Master Plan (the ‘S2R Master Plan’), as referred to in Article 1(4) of the Statutes;

(d)to play a major role in rail-related research and innovation, ensuring coordination among projects and providing all stakeholders with relevant and available information on projects funded across Europe. It shall also manage all rail-focused research and innovation actions co-funded by the Union;

(e)to actively promote the participation and close involvement of all relevant stakeholders from the full rail value chain and from outside the traditional rail industry, in particular: manufacturers of railway equipment (both rolling stock and train control systems) and their supply chain, infrastructure managers, railway undertakings (both passenger and freight), metro, tram and light rail operators, rail vehicle leasing companies, notified and designated conformity assessment bodies, professional staff associations (including labour representatives), user associations (both passenger and freight), as well as the relevant scientific institutions or the relevant scientific community. In particular, the involvement of small and medium sized enterprises (SMEs), as defined in Commission Recommendation 2003/361/EC (8), shall be ensured;

(f)to develop demonstration projects in interested Member States including those that do not currently have a railway system established within their territory.

2. The S2R Joint Undertaking shall, more specifically, seek to develop, integrate, demonstrate, and validate innovative technologies and solutions that uphold the strictest safety standards and the value of which can be measured against, inter alia, the following key performance indicators:

(a)a 50 % reduction of the life-cycle cost of the railway transport system, through a reduction of the costs of developing, maintaining, operating and renewing infrastructure and rolling stock, as well as through increased energy efficiency;

(b)a 100 % increase in the capacity of the railway transport system, to meet increased demand for passenger and freight railway services;

(c)a 50 % increase in the reliability and punctuality of rail services (measured as a 50 % decrease in unreliability and late arrivals);

(d)the removal of remaining technical obstacles holding back the rail sector in terms of interoperability and efficiency, in particular by endeavouring to close points which remain open in Technical Specifications for Interoperability (TSIs) due to lack of technological solutions and by ensuring that all relevant systems and solutions developed by the S2R Joint Undertaking are fully interoperable;

(e)the reduction of negative externalities linked to railway transport, in particular noise, vibrations, emissions and other environmental impacts.

Article 3 - Union financial contribution

1. The maximum Union financial contribution to the Shift2Rail initiative shall be EUR 450 000 000, including EFTA contributions, paid from the appropriations in the general budget of the Union allocated to the Specific Programme, implementing Horizon 2020, established by Decision No 2013/743/EU, in accordance with the relevant provisions of Article 58(1)(c)(iv) and Articles 60 and 61 of Regulation (EU, Euratom) No 966/2012 for bodies referred to in Article 209 of that Regulation. The maximum Union financial contribution shall include:

(a)a maximum contribution to the S2R Joint Undertaking, to cover administrative costs and operational costs, of EUR 398 000 000. The maximum Union contribution to cover administrative costs shall be EUR 13 500 000;

(b)a maximum additional amount of EUR 52 000 000, earmarked under the Horizon 2020 Transport Work Programme 2014-2015. The management of this additional contribution may be taken over by the S2R Joint Undertaking once it achieves the operational capacity to implement its own budget.

2. Additional funds complementing the contribution referred to in paragraph 1 may be allocated from other Union instruments to support actions for the deployment of innovative solutions of the S2R Joint Undertaking.

3. The arrangements for the Union financial contribution shall be set out in a delegation agreement and annual transfer of funds agreements, which shall be concluded between the Commission, on behalf of the Union, and the S2R Joint Undertaking.

4. The delegation agreement referred to in paragraph 3 shall address the elements set out in Article 58(3) and Articles 60 and 61 of Regulation (EU, Euratom) No 966/2012 and in Article 40 of Delegated Regulation (EU) No 1268/2012 as well as, inter alia, the following:

(a)the requirements for the S2R Joint Undertaking's contribution regarding the relevant performance indicators referred to in Annex II to Decision No 2013/743/EU;

(b)the requirements for the S2R Joint Undertaking's contribution in view of the monitoring referred to in Annex III to Decision No 2013/743/EU;

(c)the specific performance indicators related to the functioning of the S2R Joint Undertaking;

(d)the arrangements regarding the provision of data necessary to ensure that the Commission is able to draft its research and innovation policy and to meet its dissemination and reporting obligations, including on the single portal for participants as well as through other Horizon 2020 electronic means of dissemination managed by the Commission;

(e)provisions for the publication of calls for proposals of the S2R Joint Undertaking also on the single portal for participants as well as through other Horizon 2020 electronic means of dissemination managed by the Commission;

(f)the use of and changes to human resources, in particular recruitment by function group, grade and category, the reclassification exercise and any changes to the number of staff members.

Article 4 - Contributions of members other than the Union

1. Each member of the S2R Joint Undertaking other than the Union shall make or arrange for its affiliated entities to make its respective contribution. The total contribution from all members other than the Union shall be of at least EUR 470 000 000 over the period laid down in Article 1.

2. The contribution referred to in paragraph 1 shall consist of the following:

(a)contributions to the S2R Joint Undertaking of at least EUR 350 000 000, as laid down in Article 16(2) and Article 16(3)(b) of the Statutes, including at least EUR 200 000 000 from the founding members other than the Union and their affiliated entities, and at least EUR 150 000 000 from associated members and their affiliated entities;

(b)in-kind contributions of at least EUR 120 000 000, of which at least EUR 70 000 000 from the founding members other than the Union and their affiliated entities, and at least EUR 50 000 000 from associated members and their affiliated entities, consisting of the costs incurred by them in implementing additional activities outside the work plan of the S2R Joint Undertaking, which are complementary to this work plan and contribute to the objectives of the S2R Master Plan. Other Union funding programmes may support those costs in compliance with the applicable rules and procedures. In such cases, Union financing shall not substitute for the in-kind contributions from the members other than the Union or their affiliated entities.

The costs referred to in point (b) of the first subparagraph shall not be eligible for financial support by the S2R Joint Undertaking. The corresponding activities shall be set out in the membership agreement referred to in Article 3(2) of the Statutes, indicating the estimated value of those contributions.

3. The members of the S2R Joint Undertaking other than the Union shall report by 31 January each year to the Governing Board of the S2R Joint Undertaking on the value of the contributions referred to in paragraph 2 made in each of the previous financial years. The States Representatives Group shall also be informed in a timely manner.

4. For the purpose of valuing the in kind contributions referred to in point (b) of paragraph 2 of this Article and Article 16(3)(b) of the Statutes, the costs shall be determined according to the usual cost accounting practices of the entities concerned, to the applicable accounting standards of the country where each entity is established, and to the applicable International Accounting Standards/International Financial Reporting Standards. The costs shall be certified by an independent external auditor appointed by the entity concerned. The valuation of the contributions may be verified by the S2R Joint Undertaking should there be any uncertainty arising from the certification. For the purposes of this Regulation, the costs incurred in additional activities shall not be audited by the S2R Joint Undertaking or by any Union body.

5. Any member of the S2R Joint Undertaking other than the Union that fails to meet its commitments concerning the contributions referred to in paragraph 2 of this Article within six months of the time-limit set out in its membership agreement as defined in Article 3(2) of the Statutes shall be disqualified from voting in the Governing Board until such time as its obligations have been met. If the obligations have still not been met upon expiry of an additional six-month period, its membership shall be revoked.

6. Further to paragraph 5 of this Article, the Commission may terminate, proportionally reduce or suspend the Union financial contribution to the S2R Joint Undertaking or trigger the winding up procedure referred to in Article 24(2) of the Statutes if those members or their affiliated entities do not contribute, contribute only partially or contribute late with regard to the contributions referred to in paragraph 2 of this Article. The Commission decision shall not hinder the reimbursement of eligible costs already incurred by the members by the time the decision is notified to the S2R Joint Undertaking.

Article 5 - Financial Rules

Without prejudice to Article 12 of this Regulation, the S2R Joint Undertaking shall adopt its specific Financial rules in accordance with Article 209 of Regulation (EU, Euratom) No 966/2012 and Commission Delegated Regulation (EU) No 110/2014 (9).

Article 6 - Staff

1. The Staff Regulations of Officials and the Conditions of Employment of other Servants of the European Union as laid down by Council Regulation (EEC, Euratom, ECSC) No 259/68 (10) and the rules adopted by agreement between the institutions of the Union for the purpose of giving effect to those Staff Regulations and Conditions of Employment of Other Servants shall apply to the staff employed by the S2R Joint Undertaking.

2. The Governing Board shall exercise, with respect to the staff of the S2R Joint Undertaking, the powers conferred by the Staff Regulations on the Appointing Authority and by the Conditions of Employment of Other Servants on the Authority Empowered to Conclude Contracts of Employment (‘the appointing authority powers’).

The Governing Board shall adopt, in accordance with Article 110 of the Staff Regulations, a decision based on Article 2(1) of the Staff Regulations and on Article 6 of the Conditions of Employment of Other Servants delegating the relevant appointing authority powers to the Executive Director and defining the conditions under which this delegation of powers can be suspended. The Executive Director is authorised to sub-delegate those powers.

Where exceptional circumstances so require, the Governing Board may, by way of a decision, temporarily suspend the delegation of the appointing authority powers to the Executive Director and those sub-delegated by the latter and exercise them itself or delegate them to one of its members or to a staff member of the S2R Joint Undertaking other than the Executive Director.

3. The Governing Board shall adopt the appropriate implementing rules of the Staff Regulations and the Conditions of Employment of Other Servants in accordance with Article 110 of the Staff Regulations.

4. The staff resources shall be determined in the staff establishment plan of the S2R Joint Undertaking indicating the number of temporary posts by function group and by grade and the number of contract staff expressed in full-time equivalents, in line with its annual budget.

5. The staff of the S2R Joint Undertaking shall consist of temporary staff and contract staff.

6. All costs related to the staff shall be borne by the S2R Joint Undertaking.

Article 7 - Seconded national experts and trainees

1. The S2R Joint Undertaking may make use of seconded national experts and trainees not employed by the S2R Joint Undertaking. The number of seconded national experts expressed in full-time equivalents shall be added to information on staff as referred to in Article 6(4) in line with the annual budget.

2. The Governing Board shall adopt a decision laying down rules on the secondment of national experts to the S2R Joint Undertaking and on the use of trainees.

Article 8 - Privileges and immunities

The Protocol No 7 on the Privileges and Immunities of the European Union, annexed to the Treaty on European Union and the TFEU shall apply to the S2R Joint Undertaking and its staff.

Article 9 - Liability of the S2R Joint Undertaking

1. The contractual liability of the S2R Joint Undertaking shall be governed by the relevant contractual provisions and by the law applicable to the agreement, decision or contract in question.

2. In the case of non-contractual liability, the S2R Joint Undertaking shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its staff in the performance of their duties.

3. Any payment by the S2R Joint Undertaking in respect of the liability referred to in paragraphs 1 and 2 and the costs and expenses incurred in connection therewith shall be considered to be expenditure of the S2R Joint Undertaking and shall be covered by its resources.

4. The S2R Joint Undertaking shall be solely responsible for meeting its obligations.

Article 10 - Jurisdiction of the Court of Justice of the European Union and applicable law

1. The Court of Justice of the European Union shall have jurisdiction:

(a)in any dispute between the members which relates to the subject matter of this Regulation;

(b)pursuant to any arbitration clause contained in agreements, decisions or contracts concluded by the S2R Joint Undertaking;

(c)in disputes related to compensation for damage caused by the staff of the S2R Joint Undertaking in the performance of their duties;

(d)in any dispute between the S2R Joint Undertaking and its staff within the limits and under the conditions laid down in the Staff Regulations.

2. For any matter not covered by this Regulation or by other acts of Union law, the law of the State where the seat of the S2R Joint Undertaking is located shall apply.

Article 11 - Evaluation

1. By 30 June 2017, the Commission shall carry out, with the assistance of independent experts, an interim evaluation of the S2R Joint Undertaking. The Commission shall prepare a report on that evaluation, which shall include conclusions of the evaluation and observations by the Commission. The Commission shall send that report to the European Parliament and to the Council by 31 December 2017. The results of the interim evaluation of the S2R Joint Undertaking shall be taken into account in the in-depth assessment and in the interim evaluation referred to in Article 32 of Regulation (EU) No 1291/2013.

2. On the basis of the conclusions of the interim evaluation referred to in paragraph 1 the Commission may act in accordance with Article 4(6) or take any other appropriate actions.

3. Within six months after the winding up of the S2R Joint Undertaking, but in any event no later than two years after the triggering of the winding up procedure referred to in Article 24 of the Statutes, the Commission shall conduct a final evaluation of the S2R Joint Undertaking. The results of that final evaluation shall be presented to the European Parliament and to the Council.

Article 12 - Discharge

By way of derogation from Article 60(7) and Article 209 of Regulation (EU, Euratom) No 966/2012, the discharge for the implementation of the budget of the S2R Joint Undertaking shall be given by the European Parliament, upon recommendation of the Council, in accordance with the procedure provided for in the financial rules of the S2R Joint Undertaking.

Article 13 - Ex-post audits

1. Ex-post audits of expenditure on indirect actions shall be carried out by the S2R Joint Undertaking in accordance with Article 29 of Regulation (EU) No 1291/2013 as part of the Horizon 2020 indirect actions.

2. The Commission may decide to carry out the audits referred to in paragraph 1. In such cases, it shall do so in accordance with the applicable rules, in particular Regulation (EU, Euratom) No 966/2012, Regulation (EU) No 1290/2013 and Regulation (EU) No 1291/2013.

Article 14 - Protection of the financial interests of the members

1. The S2R Joint Undertaking shall grant Commission staff and other persons authorised by the S2R Joint Undertaking or the Commission, as well as the Court of Auditors, access to its sites and premises and to all the information, including information in electronic format, needed in order to conduct their audits.

2. The European Anti-fraud Office (OLAF) may carry out investigations, including on-the-spot checks and inspections, in accordance with the provisions and procedures laid down in Council Regulation (Euratom, EC) No 2185/96 (11) and in Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (12) with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union in connection with an agreement or decision or a contract funded under this Regulation.

3. Without prejudice to paragraphs 1 and 2, contracts, agreements and decisions, resulting from the implementation of this Regulation, shall contain provisions expressly empowering the Commission, the S2R Joint Undertaking, the Court of Auditors and OLAF to conduct such audits and investigations, according to their respective competences.

4. The S2R Joint Undertaking shall ensure that the financial interests of its members are adequately protected by carrying out or commissioning appropriate internal and external controls.

5. The S2R Joint Undertaking shall accede to the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-fraud Office (OLAF) (13). The S2R Joint Undertaking shall adopt the necessary measures needed to facilitate internal investigations conducted by OLAF.

Article 15 - Confidentiality

Without prejudice to Article 16, the S2R Joint Undertaking shall ensure the protection of sensitive information whose disclosure could damage the interests of its members or of participants in the activities of the S2R Joint Undertaking.

Article 16 - Transparency

1. Regulation (EC) No 1049/2001 of the European Parliament and of the Council (14) shall apply to documents held by the S2R Joint Undertaking.

2. The S2R Joint Undertaking shall adopt practical arrangements for implementing Regulation (EC) No 1049/2001.

3. Without prejudice to Article 10, decisions taken by the S2R Joint Undertaking pursuant to Article 8 of Regulation (EC) No 1049/2001 may form the subject of a complaint to the Ombudsman under the conditions laid down in Article 228 TFEU.

4. The Governing Board may adopt practical arrangements for implementing Regulation (EC) No 1367/2006 of the European Parliament and of the Council (15).

Article 17 - Rules for participation and dissemination

Regulation (EU) No 1290/2013 shall apply to the actions funded by the S2R Joint Undertaking. In accordance with that Regulation, the S2R Joint Undertaking shall be considered as a funding body and shall provide financial support to indirect actions as set out in Article 2 of the Statutes.

Article 18 - Support from the host State

An administrative agreement may be concluded between the S2R Joint Undertaking and the Member State in which its seat is located concerning privileges and immunities and other support to be provided by that Member State to the S2R Joint Undertaking.

Article 19 - Initial actions

1. The Commission shall be responsible for the establishment and initial operation of the S2R Joint Undertaking until it has the operational capacity to implement its own budget. The Commission shall carry out, in accordance with Union law, all necessary actions in collaboration with the other members and with the involvement of the competent bodies of the S2R Joint Undertaking.

2. For the purpose of paragraph 1,

(a)until the Executive Director takes up his duties following his/her appointment by the Governing Board in accordance with Article 9 of the Statutes, the Commission may designate an interim Executive Director and exercise the duties assigned to the Executive Director who may be assisted by a limited number of Commission officials;

(b)by derogation from Article 6(2) of this Regulation, the interim Executive Director shall exercise the appointing authority powers;

(c)the Commission may assign a limited number of its officials on an interim basis.

3. The interim Executive Director may authorise all payments covered by the appropriations provided in the annual budget of the S2R Joint Undertaking once approved by the Governing Board and may conclude agreements, decisions and contracts, including staff contracts following the adoption of the S2R Joint Undertaking's staff establishment plan.

4. The interim Executive Director shall determine, in common accord with the Executive Director of the S2R Joint Undertaking and subject to the approval of the Governing Board, the date on which the S2R Joint Undertaking will have the capacity to implement its own budget. From that date onwards, the Commission shall abstain from making commitments and executing payments for the activities of the S2R Joint Undertaking.

Article 20 - Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in the Member States.