Explanatory Memorandum to COM(2018)605 - EU position in UNECE working parties on customs & transport and a convention on border crossing procedures for passengers and luggage carried in international traffic by rail - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2018)605 - EU position in UNECE working parties on customs & transport and a convention on border crossing procedures for passengers ... |
|---|---|
| source | COM(2018)605  |
| date | 31-08-2018 |
1. Subject matter of the proposal
This proposal concerns the Decision establishing the position to be taken on the Union's behalf in the United Nations Economic Commission for Europe (UNECE) Working Party on customs questions affecting transport and, possibly, at the United Nations Economic Commission for Europe Inland Transport Committee in connection with the envisaged adoption of a new Convention on the facilitation of border crossing procedures for passengers, luggage and load-luggage carried in international traffic by rail.
2. Context of the proposal
2.1.The Convention on the facilitation of border crossing procedures for passengers, luggage and load-luggage carried in international traffic by rail
The proposed draft Convention on the facilitation of border crossing procedures for passengers, luggage and load-luggage carried in international traffic by rail (‘the proposed draft Convention) was initiated by the Organization for Cooperation between Railways (OSJD) to which 9 Union Member States (Bulgaria, Czech Republic, Slovakia, Poland, Lithuania, Latvia, Hungary, Estonia, Romania) are members and transmitted to the United Nations Economic Commission for Europe by the Government of the Russian Federation.
A Convention with a similar scope is already in force – the 1952 International Convention to facilitate the crossing of frontiers for passengers and baggage carried by rail, of which 8 Union Member States (Austria, Belgium, France, Italy, Luxembourg, Netherlands, Portugal, and Sweden 1 ) are Contracting Parties. Due to various legal and procedural difficulties, it was not feasible to amend this Convention in order to modernise it. Moreover, member countries of the Organization for Cooperation between Railways supported the idea of drafting a new convention in this field, rather than acceding to the outdated 1952 Convention.
The proposed draft Convention covers three major Union policy areas: railways, customs and the Union acquis on border management. It aims at expediting and simplifying border controls of passenger trains. The main new elements in the draft Convention are joint coordinated controls at borders, instead of two or more consecutive controls on either side of the border; controls on moving trains, where the schedules and stops of the trains so permit and agreeing details of the cooperation by means of bilateral agreements or multilateral arrangements. This proposal relates to the Union policy area of border management. The aspect of two other Union policy areas, railways and customs, will be covered by a separate proposal.
2.2.The UNECE Working Party on customs questions affecting transport
The Working Party on customs questions affecting transport is acting within the framework of the policies of the United Nations Economic Commission for Europe and subject to the general supervision of the Inland Transport Committee. The role of the Working Party is to initiate and pursue actions aimed at the harmonisation and simplification of regulations, rules and documentation for border crossing procedures for the various modes of inland transport.
The Union is represented in the Working Party of which all Member States of the Union are members with the right to vote.
2.3.The envisaged act of the Working Party on customs questions affecting transport
The Working Party on customs questions affecting transport will meet in 2018 on the following dates: 12-14 June and 16-19 October. In one of its meetings, the Working Party is to take a decision on the endorsement of the proposed Convention and on its transmission to the Inland Transport Committee for formal approval which meets once a year in February.
The envisaged act will become binding on the parties in accordance with Article 22 of the draft Convention, which provides: ‘1. This Convention shall enter into force three months after the date on which five States have deposited their instruments of ratification, acceptance, approval or accession. 2. For each State that ratifies, accepts, approves or accedes to this Convention after deposit of the fifth instrument of ratification, acceptance, approval or accession, the Convention shall enter into force three months after the date of deposit by such State of its instrument of ratification, acceptance, approval or accession’.
3. Position to be taken on the Union's behalf
3.1.Position of the Union
The Union shares the objectives of the draft Convention and supports the concept of facilitation of passenger rail transport, but it has not identified any added value or benefits of the draft Convention for the Union or its Member States. The new draft Convention would not make already existing bilateral or multilateral agreements redundant and perhaps not even facilitate new bilateral or multilateral agreements as the draft Convention does not contain a model for such agreements. Many provisions of the draft Convention have a non-binding nature and cannot be implemented without separate arrangements between the parties concerned. So far, the only function that the draft Convention could have would be to serve as a reference for concluding future multilateral and bilateral agreements.
From the point of view of the EU acquis on border management, the draft Convention in its present form does not bring any new or useful tools and thus has no added value for the EU and its Member States. Furthermore, it contains several provisions which are problematic for the EU acquis and which would need to be amended should the Union or its Member States wish to accede to the draft Convention at a future point in time. For example, Article 6 of the draft Convention should clarify that border controls cannot be waived by multilateral or bilateral agreements between States: as the Schengen Borders Code applies upon crossing of the EU external borders, international agreements may only regulate how the controls are carried out without touching the substance of such controls.
From a Union institutional point of view, the draft Convention covers matters falling within fields of exclusive and shared Union competence. Member States cannot individually accede to parts of the draft Convention falling within a field of exclusive Union competence. A provision concerning the participation of the Union as a regional economic integration organisation should have been inserted in the draft Convention in line with the general policy on institutional policy– to allow the Union to accede to the Convention.
Even if the Union seems not to have reasons to accede to the proposed Convention, in accordance with its general policy on institutional aspects, any new international Convention should contain a clause allowing participation of regional economic integration organisations.
The United Nations Economic Commission for Europe Inland Transport Committee at its 81st session in February 2019 or at a subsequent session, subject to the endorsement of the draft Convention by the Working Party on customs questions affecting transport, may proceed to a vote on the adoption of the Convention and request the secretariat to transmit it to the Secretary-General of the United Nations in his capacity as depository. It is therefore important to establish a Union position to be able to react in such potential scenario. In matters of exclusive competence, the Commission will vote for the Union.
Contents
A large range of public and private sector experts has been consulted during the preparation of the proposed Convention.
Consultations were carried out with the Member States within the Customs Legislation Committee (Geneva coordination), one of which was held jointly with experts from the Single European Railway Area Committee, Justice and Home Affairs counsellors, transport attachés and representatives from the Commission Directorates-General responsible for Mobility and Transport and for Migration and Home affairs (23.1.2017). Consultations were also carried out with the Customs Expert Group.
Further consultations took place during sessions of the Working Party on Customs Questions Affecting Transport and Working Party on Rail Transport of the United Nations Economic Commission for Europe.
Discussions in the relevant fora of the United Nations Economic Commission for Europe, followed either by the Commission Directorate-General responsible for Taxation and Customs Union or the Directorate-General responsible for Mobility and Transport, have been preceded by coordination activities between the above-mentioned Directorate Generals and the Directorate-General responsible for Migration and Home affairs as the draft Convention touches upon policy areas falling under the respective remits of the three Directorate-Generals.
Internal coordination as well as the joint discussions with Member States in the framework of the Customs Legislation Committee and Customs Expert clearly showed that there is no interest, neither for Union Member States nor the Union itself, to accede to the draft Convention as it does not bring any benefits or added value in all fields concerned, i.e. in the Union policy areas covered by this proposal and also the Union institutional point of view.
4. Legal basis
4.1.Procedural legal basis
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.’
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 Union legislature’ 2 .
The act which the Working Party on customs questions affecting transport and the United Nations Economic Commission for Europe Inland Transport Committee are called upon to adopt constitutes an act having legal effects. The envisaged act will be binding under international law in accordance with Article 22 of the draft Convention.
The envisaged act does not supplement or amend the institutional framework of the Agreement.
Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU.
4.2.Substantive legal basis
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.
The envisaged act pursues objectives and has components in the area of border checks and includes checks on passengers and their documents. It should therefore be based on Article 77, paragraph 2, b), TFEU, which relates to “the checks to which persons crossing external borders are subject".
Therefore, the substantive legal basis of the proposed decision comprises the following provisions: Article 77, paragraph 2b, TFEU.
4.3.Conclusion
The legal basis of the proposed decision should be Article 77, paragraph 2b, in conjunction with Article 218(9) TFEU.