Explanatory Memorandum to COM(2024)380 - - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2024)380 - . |
|---|---|
| source | COM(2024)380 |
| date | 19-08-2024 |
1. Subject matter of the proposal
This proposal concerns the decision establishing the position to be taken on the Union's behalf at the 16th session of the General Assembly of the Intergovernmental Organisation for International Carriage by Rail (OTIF), in connection with the envisaged adoption of OTIF’s long-term strategy, the election of a Secretary General for the period from 1 January 2025 to 31 December 2027, the revised versions of the ‘Rules of Procedure of the General Assembly’ and of the ‘Regulation on the election and conditions of service of the Secretary General’, and other decisions concerning: China’s application to become an Associate Member of OTIF, the ‘Guidelines on the application of procedures for the modification of COTIF’, the basic regulatory principles in preparing modifications when modifying COTIF, the ‘Recommendation on the use of electronic signatures in official communications between OTIF and its members’, the ‘Decision on the symbols, name and abbreviation’ of OTIF and the ‘Decision on copyright and open access’. The meeting documents for the session are available (with credentials) on the website of OTIF at the following link: https://extranet.otif.org/en/?page_id=246.
2. Context of the proposal
2.1. The Convention concerning International Carriage by Rail (COTIF)
The COTIF governs the functioning of OTIF, its objectives, attributions, relations with its members and its activities in general. There are 52 countries party to the COTIF, including 25 EU Member States (all except Cyprus and Malta). Since 1 July 2011, the European Union is also a contracting party to the COTIF. The COTIF consists of the main Convention and seven Appendices that form an integral part of the Convention and establish uniform railway law, i.e. technical functional requirements and model contracts for the carriage of passengers and goods (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: Validation of Technical Standards and the Adoption of Uniform Technical Prescriptions applicable to Railway Material intended to be used in International Traffic – APTU; and Appendix G: Technical Admission of Railway Material used in International Traffic – ATMF).
2.2. The Agreement between the European Union and the Intergovernmental Organisation for International Carriage by Rail (OTIF)
On 16 June 2011, the Council adopted Council Decision 2013/103/EU on the signing and conclusion of the Agreement between the European Union and the Intergovernmental Organisation for International Carriage by Rail (OTIF) on the Accession of the European Union to the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, as amended by the Vilnius Protocol of 3 June 19991. The Agreement entered into force on 1 July 2011. Council Decision 2013/103/EU contains a declaration by the Union concerning the exercise of competence (Annex I) and internal arrangements for the Council, the Member States and the Commission in proceedings under OTIF (Annex III).
2.3. The General Assembly of OTIF
The General Assembly is OTIF’s supreme decision-making body. It holds an ordinary session every three years. The last ordinary session of the General Assembly took place in September 2021. It can also hold extraordinary sessions.
By virtue of Article 14 § 2 of COTIF, the General Assembly, amongst others: establishes its rules of procedure; elects the Secretary General; decides, if necessary, on the temporary establishment of other committees for specific tasks; and takes decisions about proposals aiming to modify COTIF.
Depending on the case, the General Assembly takes its decisions by the majority or two-thirds of the OTIF Member States represented at the time of the vote (Article 14 § 6 of COTIF and Article 21 of the Rules of Procedure of the General Assembly2).
The Union and/or its Member States participate in those decisions in accordance with their respective competences and with the provisions of COTIF, of the Rules of Procedure of the General Assembly and of the Agreement on the Accession of the Union to COTIF3.
2.4. The envisaged acts of the General Assembly of OTIF that are relevant under Article 218(9)TFEU
During its 16th session, the General Assembly is expected to adopt certain legal acts and administrative decisions, which would have an impact on the activities of OTIF.
Contents
- The General Assembly is expected to decide, among others, on:
- The qualification criteria set out in Annex 3 to that call for applications reads as follows:
- - Mr Jochen CONRAD (application submitted by Germany)
- - Mr Hinne Jaan Ype GROOT (application submitted by Netherlands)
- - Mr Aleksandr KUZMENKO (application submitted by Lithuania)
- The considerations conducting the choice to be made by Member States should be developed against this background:
- Overall, the following list of selection criteria is proposed:
- Under agenda item 13, the General Assembly will in particular be asked to take the following decisions, as listed in the report under the proposal for decision (SG 24028-AG16/13):
- The General Assembly will be asked to decide on:
- adopting OTIF’s long-term strategy (under agenda item 7);
- electing a Secretary General for the period from 1 January 2025 to 31 December 2027 (under agenda item 9);
- extending the mandate of the ad hoc Committee on Legal Affairs and International Cooperation (hereafter ‘the ad hoc Committee’) for a six-year period until 1 October 2030, and instructing the ad hoc Committee to report to the next ordinary session of the General Assembly on its activities in 2025-2027 (under agenda item 13);
- adopting the ‘Decision on permanent representatives’ and approving the related ‘Explanatory Notes’ (under agenda item 13);
- endorsing the ‘Guidelines on the application of procedures for the modification of COTIF’, recommending that they are followed in the preparation of modifications to COTIF within the competence of the General Assembly, and instructing the ad hoc Committee to monitor and assess the application of the guidelines and to revise them as necessary (under agenda item 13);
- approving the basic regulatory principles to guide the ad hoc Committee and the Revision Committee in preparing modifications to modify COTIF and corresponding notes in the Explanatory Report to COTIF, with the aim of introducing an obligation for Member States to respect [not to undermine] the physical and functional integrity of the rail infrastructure of other Member States, as well as substantive and procedural provisions on sanctions to ensure compliance with the obligations under COTIF that are essential to achieve OTIF’s aim (under agenda item 13);
- endorsing the ‘Recommendation on the use of electronic signatures in official communications between OTIF and its members’ (under agenda item 13);
- adopting the ‘Decision on the symbols, name and abbreviation of the Intergovernmental Organisation for International Carriage by Rail’ and the ‘Decision on copyright and open access’, and approving the related ‘Explanatory Notes’ (under agenda item 13);
- amending the ‘Rules of Procedure of the General Assembly’ and the related ‘Explanatory Notes, and adopting/approving the revised versions thereof (under agenda item 14);
- amending the ‘Regulation on the election and conditions of service of the Secretary General’ and the related ‘Explanatory Notes’, and adopting/approving their revised versions thereof (under agenda item 15).
The General Assembly will also be informed about the state of COTIF and OTIF membership (under agenda item 5). It is anticipated that the General Assembly will be asked, under that agenda item, to decide on China’s application to become an Associate Member of OTIF.
3. Position to be taken on the Union's behalf
Agenda item 5 – Status of the Convention and OTIF membership
The document available to date for the 16th General Assembly meeting under that agenda item (SG-24032-AG 16/5) includes the following proposal for decision: “The General Assembly…. welcomes… the accession of China as an Associate Member of OTIF”. On 26 April 2024, in accordance with Article 39 of COTIF, the Secretary General of OTIF notified the OTIF members of China’s application for accession as an Associate Member4. In accordance with Articles 39 § 1 and 37 § 3 of COTIF, unless five members lodge objections, the accession is deemed to be accepted and takes effect three months after OTIF members have been notified by the depositary of the absence of five or more objections. An Associate Member is not a Contracting Party to COTIF, but entitled to participate in the work of the organs of OTIF in an advisory capacity.
However, that meeting document does not refer to the latest developments concerning China’s application and will probably be amended before the 16th session of the General Assembly. Indeed, as specified in the OTIF Depository Note of 31 July 20245, the Commission lodged an objection by the deadline of 26 July 2024 on behalf of the Union, with a number of votes equal to those of Member States which are also members of OTIF, in line with Article 37 §§ 2 to 5 of COTIF. In particular, the Commission asked to receive more information through the OTIF Secretariat on the motivation and objectives for China’s request for an associate membership of OTIF. OTIF’s Secretary General further informed that China’s application for accession will therefore be submitted to the General Assembly for decision, according to Article 37 § 4 of COTIF. He also announced that he will request that China’s application be considered at the forthcoming 16th session of the General Assembly and that he will issue a circular letter shortly.
In this context, it is necessary to anticipate the decisions that may be submitted to that General Assembly, despite the fact that precise proposals for decision are not known yet.
The accession of China to OTIF, even only as an Associate Member, will influence the policy and substantive work of OTIF, an organisation to which the Union is a Contracting Party. China’s participation in OTIF’s activities, although in an advisory capacity, will extend to the whole scope of those activities, including areas for which the Union is exclusively competent. Should the 16th General Assembly take a decision on China’s accession as Associated Member, such a decision will be binding under international law, in particular in the context of OTIF legislation. China will have the right to participate in the work of the organisation, to receive documents and will be obliged to pay 0,25% of the budget. Moreover, such an associate membership would be capable of altering the legal relationship between the Union and China in the context of OTIF. Therefore, a decision of OTIF’s General Assembly admitting China as Associate member would constitute an ‘act having legal effects’ for the purposes of Article 218(9) TFEU.
Given that, to date, China has not yet provided the additional information requested by the Commission as part of the above-mentioned objection, the Union’s position should be to defer any vote on China’s accession as Associate Member of OTIF to a subsequent session of the General Assembly of OTIF.
Should such a deferral not be possible, and should a vote thus take place already at the 16th session of the General Assembly, the Union’s position should be to vote against China’s accession to OTIF as an Associate Member, in particular given the absence of the above-mentioned additional information.
Agenda item 7 – OTIF long-term strategy
Reference is made to the position of the Union on this issue adopted for the 15th OTIF General Assembly in September 20216, and subsequently for the 3rd, 4th, 5th and 6th sessions of the ad hoc Committee7.
On 29 January 2024, the OTIF Secretary General consulted the members of OTIF’s organs on a revised (expanded) draft version of the long-term strategy for OTIF. On 29 February 2024, the European Commission services sent their comments to OTIF, after due coordination with the Member States. These comments built on the above-mentioned Union position at the 5th session, and were reiterated on behalf of the Union at the 6th session of the ad hoc Committee (Vienna, 16-18 April 2024), which decided by consensus to revise the draft long-term strategy accordingly, namely to:
- Add a new measure under strategic objective (1), as follows: ‘Dissuade OTIF members from opting for limited application of COTIF and its Appendices’;
- Change the first measure under strategic objective (2), as follows: ‘Intensify ongoing efforts and negotiations in relation to accession’;
- Move the third measure, ‘Use OTIF’s new role as Secretariat of the Supervisory Authority of the Luxembourg Protocol to highlight OTIF’s core competences’, from strategic objective (2) to strategic objective i;
- Amend the fifth measure under strategic objective (2), as follows: ‘Negotiations with interested states and associate members concerning full membership’;
- Amend the second measure under strategic objective i, as follows: ‘Cooperate and improve the distribution of tasks and roles with OSJD’;
- Amend the third measure under strategic objective (5), as follows: ‘Cooperation with OSJD’.
The revised long-term strategy, which was submitted by the Secretary General to the 16th General Assembly (SG-24024-AG 16/7), encompasses the above changes and thus adequately addresses the earlier comments made by the Union.
As explained in the draft long-term strategy submitted to the General Assembly for adoption, OTIF’s long-term strategy will be valid until 2040 and will be reviewed and assessed every six years. OTIF’s two-year Work Programme should contain specific measures and actions to achieve the strategic objectives defined in the long-term strategy. The other work programmes of OTIF’s individual organs should also be coordinated and linked to the long-term strategy. OTIF’s members are invited to support the implementation of OTIF’s long-term strategy by finding synergies with their respective rail strategies.
In light of the above, it is considered that the adoption of OTIF’s long-term strategy will influence the policy and substantive work of OTIF, and the decision-making within OTIF. It therefore constitutes an ‘act having legal effects’ for the purposes of Article 218(9) TFEU.
The Union position on this item should be that the Union should support the long-term strategy for OTIF as submitted to the 16th General Assembly for adoption.
Agenda item 9 – Election of a Secretary General for the period from 1 January 2025 to 31 December 2027
Contextual background
The term of office of the current Secretary General, who was elected at the 14th extraordinary session of the General Assembly in February 2019 and re-elected at the 15th ordinary session of the General Assembly in September 2021, expires on 31 December 2024. In accordance with Article 14 § 2, point c) of COTIF, the Secretary General for the period from 1 January 2025 to 31 December 2027 will be elected by the 16th General Assembly. At its 15th session, the General Assembly adopted the ‘Regulation on the election and conditions of service of the Secretary General’ which, among other things, specifies the procedure that applies to the submission of applications and the procedure leading up to the election of the Secretary General.
The call for applications for the election of the Secretary General of OTIF was published on 2 October 2023.8
Qualification criteria for the post of Secretary General of OTIF
1. Nationality of an OTIF Member State; but not necessarily the nationality of the proposing Member State.
2. Many years’ professional experience in different areas of activity and demonstrated ability in a position of major responsibility;
3. Knowledge of English and at least one of OTIF’s other working languages (French or German). Knowledge at proficient user level is required for one language and knowledge at independent user level is required for the other language in accordance with the Common European Framework of Reference for Languages (CEFR) global scale;
4. A degree in a discipline relevant to the work of OTIF, preferably in law and political science; knowledge of international public law, rail transport law, the carriage of dangerous goods, rail transport in general and transport logistics would be an advantage;
5. Proven ability to head an administration such as that of the OTIF Secretariat, using modern information technology, several years’ experience in personnel management on the basis of general principles and specific rules of personnel law and the ability to head the Organisation’s financial affairs;
6. Knowledge of how international organisations function, diplomatic negotiations and professional experience in the international transport sector;
7. Ability to represent OTIF effectively in the Member States, at international level – particularly at conferences – and in public. Ability to speak at international conferences;
8. Comprehensive understanding of economic correlations and processes (including in the international context) and a proven interest in the transport sector and railways. Experience in legislative activities is necessary;
9. At least ten years professional experience, preferably in a State administration, an international organisation, an international association, an undertaking working in the international transport sector or from a teaching and research background. At least ten years’ experience in the international field, during which they must be able to demonstrate that they have undertaken activities with major decision-making responsibilities;
10. Lengthy experience of international negotiations; candidates must also be able to deal with a very high workload and be willing to undertake numerous and demanding official journeys;
11. Dynamic team player, forward-looking, approachable and decisive, with a track record of working with other cultures;
12. Ability to develop political, legal, institutional and financial concepts.
List of candidates as officially communicated by the OTIF Secretariat
On 10 April 2024, after formal examination of the applications, the OTIF Secretariat published the official list of the candidates, in alphabetical order of surnames, as follows9:
- Mr Urban RUSNÁK (application submitted by Slovakia).
It is noted that all four applications were submitted by Member States of the European Union.
All four candidates were invited to the candidates’ forum held on 20 June 2024, which was an informal meeting introduced by the above-mentioned ‘Regulation on the election and conditions of service of the Secretary General’, the aim being to present the candidates and put questions to them several weeks before the General Assembly.
The election of the Secretary General of OTIF is a decision of the General Assembly adopted by way of a voting procedure, in accordance with Article 14 § 6 of COTIF (majority of the OTIF Member States represented at the time of the vote). It will become effective as from the date on which the new elected Secretary General takes up their post, normally on 1 January 2025. The Secretary General is elected by the General Assembly for a period of 3 years, renewable twice at most, in accordance with Article 21 § 2 of COTIF. The decision of the General Assembly produces legal effects on the contracting parties to COTIF, as further explicate in the next point below.
The tasks of OTIF’s Secretary General
The tasks of OTIF’s Secretary General go beyond those related to the management, application and functioning of COTIF. Specifically, the Secretary General has the following functions:
- Article 21 § 4 of COTIF provides that ‘The Secretary General may, on his own initiative, present proposals aiming to modify the Convention’;
- The Secretary General represents OTIF externally, draws up the work programme, drafts budget and management reports and manages the financial affairs of the Organisation (Article 21 § 3, points b), h), and i) of COTIF). These tasks give the Secretary General a certain room for manoeuvre;
- Importantly, the Secretary General also plays a discrete and independent role in settling disputes among contracting parties. They “endeavour, at the request of one of the parties concerned, by using his good offices, to settle disputes between them arising from the interpretation or application of the Convention” (Article 21 § 3, point j) of COTIF);
- The Secretary General also “give[s], at the request of all parties concerned, an opinion on disputes arising from the interpretation or application of the Convention” (Article 21 § 3, point k) of COTIF).
Hence, the functions of the Secretary General go beyond mere administrative powers in the management of OTIF and extends to have influence on the policy and substantive work of that organisation. Thanks, notably, to his prerogative to present proposals aiming to modify COTIF and to intervene in disputes between OTIF members, the Secretary General is capable of providing political and legal orientation to the works of OTIF. The action by the Secretary General is liable to influence the way decisions are taken and affect the operation of OTIF in areas directly related to the development and application of the Union’s rail policy. Indeed, OTIF’s activities fall under Union competence and, at least to a large extent, under Union’s exclusive competence. Similarly, it is also liable to affect the Union in its capacity as OTIF Member.
Therefore, the election of one person rather than another as Secretary General constitutes an ‘act having legal effects’ for the purposes of Article 218(9) TFEU.
On the applications
On the basis of the documents communicated by the OTIF Secretariat, it appears that all four candidates fulfil the requirements set out in the qualification criteria annexed to the call for applications.
Moreover, all four candidates have been proposed by Member States and are EU nationals.
The considerations conducting the choice to be made by Member States should be developed against this background:
First of all, it should be clear that votes should only be cast for candidates that are citizens of the Union, have been proposed by a Member State and meet all the requirements in the qualification criteria. Even though the time limit for applications has passed, this first set of criteria should guard against last minute surprises. Secondly, having regard to the Union’s specific interest in the election, the vote should go to the candidate who best meets a number of criteria relevant to that interest. Some of those criteria are already set out in the call for applications, while another criterion is linked to a requirement in the call for applications, but is more specific, having regard to the Union interest in the election.
| Possible selection criteria | Requirements of the call for applications |
| EU competences | Criterion not explicitly mentioned in Annex 3 to the call for applications: Knowledge of the European Union institutional framework and of the Union's rail acquis and policies (linked to the requirement referred to in point 4 of Annex 3 to the call for applications10) |
| Technical competences | Criteria referred to in points 4, 5 and 6 of Annex 3 to the call for applications |
| General competences | Criteria referred to in points 8, 9, 11 and 12 of Annex 3 to the call for applications. |
The Union position on this agenda item should be to cast votes for the candidate who:
- is a citizen of the Union, has been proposed by a Member State, meets all requirements set out in Annex 3 to the call for applications, and
- best meets the following criteria: knowledge of the Union institutional framework and of the Union's rail acquis and policies; and the criteria referred to in points 4, 5, 6, 8, 9, 11 and 12 of Annex 3 to the call for applications.
Agenda item 13 – Report of the ad hoc Committee on Legal Affairs and International Cooperation
The General Assembly will be informed about the activities of the ad hoc Committee on Legal Affairs and International Cooperation during the period 2021-2024 (SG-24028-AG16/13).
At its 15th session in September 2021, the General Assembly decided to set up the ad hoc Committee in accordance with Article 13 § 2 of COTIF for a period of 3 years (September 2021 – September 2024). Since its creation, the ad hoc Committee has held six sessions. At its 6th and last session, the ad hoc Committee adopted a report on its activities during the period of its three-year mandate. The report not only presents the work of the ad hoc Committee, but also contains proposals for decision by the 16th General Assembly, including the adoption or approval of a number of legal instruments.
The OTIF Secretariat specified that, in addition to the documents submitted with the ad hoc Committee’s report, revised versions of the ‘Explanatory Notes on the Rules of Procedure of the General Assembly (Articles 4 to 7, 10 and 22)’ and the ‘Explanatory Notes on the regulation on the election and conditions of service of the Secretary General’ must also be prepared. These incorporate the ad hoc Committee’s proposals made in the ‘Recommendation on the use of electronic signatures in official communications between OTIF and its members’. Moreover, the Regulation on the election and conditions of service of the Secretary General and the General Assembly’s Rules of Procedure and their accompanying explanatory notes should also be adapted in accordance with the ‘Guidelines on the use of gender-neutral language’.
Under agenda item 13, the General Assembly will in particular be asked to take the following decisions, as listed in the report under the proposal for decision (SG 24028-AG16/13):
- Endorsing the ‘Guidelines on the application of procedures for the modification of COTIF’, as annexed to the report, recommending that they are followed in the preparation of modifications to COTIF within the competence of the General Assembly, and instructing the ad hoc Committee to monitor and assess the application of the guidelines and to revise them as necessary. While those Guidelines are not in themselves binding, they are capable of decisively influencing the procedures for the modification of COTIF. Therefore, they constitute an ‘act having legal effects’ for the purposes of Article 218(9) TFEU.
- Approving the basic regulatory principles as laid out in the proposal for decision in the report of the ad hoc Committee and as reflecting the Union position in Council Decision (EU) 2023/2582, to guide the ad hoc Committee and the Revision Committee in preparing modifications to modify COTIF and corresponding notes in the Explanatory Report to COTIF, with the aim of introducing an obligation for Member States to respect [not to undermine] the physical and functional integrity of the rail infrastructure of other Member States, as well as substantive and procedural provisions on sanctions to ensure compliance with the obligations under COTIF that are essential to achieve OTIF’s aim. The subject matter concerns the organisation and functioning of the organisation, to with the Union is a Contracting Party, and may lead to the elaboration of proposals to amend COTIF; this topical issue concerns the whole scope of activities of OTIF, including areas for which the Union is exclusively competent. Therefore, the related proposals to modify COTIF will be binding under international law and will be capable of decisively influencing the content of EU legislation. Moreover, these basic regulatory principles are capable of decisively influencing the interpretation and application of COTIF. Therefore, they constitute an ‘act having legal effects’ for the purposes of Article 218(9) TFEU.
- Endorsing the ‘Recommendation on the use of electronic signatures in official communications between OTIF and its members’, as annexed to the report. As specified in the Union position in Council Decision (EU) 2023/2582, the development of electronic communications requires certain administrative updates to ensure the safe and reliable use of electronic signatures in official communications between OTIF and its members. It is important to support a recommendation in that regard, which takes into account the different level of experience of OTIF members and is in line with the rules laid down at Union level, in particular Regulation (EU) No 910/2014 of the European Parliament and of the Council.11 While this Recommendation is not in itself binding, it will have implications on the ‘Guidelines on treaty acts under COTIF’ as well as on the explanatory notes of ‘Rules of Procedure of the General Assembly’ of the ‘Regulation on the election and conditions of service of the Secretary General’ and of the ‘Decision on permanent representatives’, which will need to be amended accordingly. This Recommendation is thus capable of decisively influencing the procedures for the modification of COTIF. Therefore, it constitutes an ‘act having legal effects’ for the purposes of Article 218(9) TFEU.
- Adopting the ‘Decision on the symbols, name and abbreviation of the Intergovernmental Organisation for International Carriage by Rail’ and the ‘Decision on copyright and open access’ and approving for each decision the related ‘Explanatory Notes’. As specified in the Union position in Council Decision (EU) 2023/2582, a policy designed to facilitate the reuse of information and documents owned by OTIF should be designed in line with the rules set out in Directive (EU) 2019/1024 of the European Parliament and of the Council12 and Commission Decision 2011/833/EU13. The envisaged acts in this area are capable of decisively influencing the content of EU legislation, and therefore constitute ‘acts having legal effects’ for the purposes of Article 218(9) TFEU.
The proposals on which the 16th General Assembly is asked to decide have been discussed and agreed in the relevant sessions of the ad hoc Committee, as explained in detail in the ad hoc Committee’s report, and were amended, as appropriate, and approved by the ad hoc Committee in line with the Union positions that have been established on those occasions. These are set out below.:
- The Union position on the ‘Guidelines on the application of procedures for the modification of COTIF’ was established for the 3rd session of the ad hoc Committee14;
- The Union positions on: (i) the basic regulatory principles to guide the ad hoc Committee and the Revision Committee in preparing modifications to modify COTIF and corresponding notes in the Explanatory Report to COTIF, (ii) the ‘Recommendation on the use of electronic signatures in official communications between OTIF and its members’, (iii) the ‘Decision on the symbols, name and abbreviation of OTIF, and (iv) the ‘Decision on copyright and open access’ were established for the 6th session of the ad hoc Committee15, following the positions established for the 4th 16 and 5th sessions17 of the ad hoc Committee.
The Union position at the 16th General Assembly should therefore be to support the adoption of the above-mentioned proposals for decision.
Agenda item 14 – Modification of the General Assembly’s Rules of Procedure and accompanying explanatory notes
The General Assembly is invited to consider revised versions of the ‘General Assembly’s Rules of Procedure’ and the ‘Explanatory Notes on the Rules of Procedure of the General Assembly (Articles 4 to 7, 10 and 22)’ adapted in accordance with the ‘Guidelines on the use of gender-neutral language’. The explanatory notes also incorporate the ad hoc Committee’s proposal in the ‘Recommendation on the use of electronic signatures in official communications between OTIF and its members’ (OTIF-24001-JUR 6). The proposals also include some purely editorial corrections.
The 16th General Assembly will be asked to decide on:
- amending the ‘Rules of Procedure of the General Assembly’ and adopting the revised version accordingly;
- amending the ‘Explanatory Notes on the Rules of Procedure of the General Assembly (Articles 4 to 7, 10 and 22)’ and approving the revised version accordingly.
The proposals on which the General Assembly is asked to decide are annexed to SG-24029-AG16/1418. These proposals have been discussed and agreed in the relevant sessions of the ad hoc Committee, as explained in detail in the ad hoc Committee’s report under agenda item 13 (SG 24028-AG16/13). These proposals were amended, as appropriate, and approved by the ad hoc Committee in line with the Union positions that have been established as regards the use of gender-neutral language and the use of electronic signatures in official communications between OTIF and its members, in particular for the 2nd, 4th and 5th and 6th sessions of the ad hoc Committee.
The General Assembly’s Rules of Procedure are legally binding acts under COTIF, with their explanatory notes being capable of decisively influencing their interpretation and application. Therefore, those Rules of Procedure constitute an ‘act having legal effects’ for the purposes of Article 218(9) TFEU.
The Union position should therefore be to support the adoption of the above-mentioned proposals for decision.
Agenda item 15 – Revision of rules on the election and conditions of service of the Secretary General
The 16th General Assembly is invited to consider revised versions of the ‘Regulation on the election and conditions of service of the Secretary General’ and the ‘Explanatory Notes on the regulation on the election and conditions of service of the Secretary General’, which were adapted in accordance with the ‘Guidelines on the use of gender-neutral language’. The explanatory notes also incorporate the ad hoc Committee’s proposal in the ‘Recommendation on the use of electronic signatures in official communications between OTIF and its members’ (OTIF-24001-JUR 6). The proposals also include some purely editorial corrections.
- amending the ‘Regulation on the election and conditions of service of the Secretary General’ and adopting the revised version accordingly;
- amending the ‘Explanatory Notes on the regulation on the election and conditions of service of the Secretary General’ and approving the revised version accordingly.
The proposals on which the General Assembly is asked to decide are annexed to SG-24032-AG16/1519. These proposals have been discussed and agreed in the relevant sessions of the ad hoc Committee, as explained in detail in the ad hoc Committee’s report under agenda item 13 (SG 24028-AG16/13). These proposals were amended, as appropriate, and approved by the ad hoc Committee in line with the Union positions that have been established as regards the use of gender-neutral language and the use of electronic signatures in official communications between OTIF and its members, in particular for the 2nd, 4th and 5th and 6th sessions of the ad hoc Committee.
The Regulation on the election and conditions of service of the Secretary General is a legally binding act under COTIF, with its explanatory notes being capable of decisively influencing its interpretation and application. Therefore, that Regulation constitutes an ‘act having legal effects’ for the purposes of Article 218(9) TFEU.
The Union position should therefore be to support the adoption of the above-mentioned proposals for decision.
4. Legal basis
4.1. Procedural legal basis
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.’
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’20.
4.1.2. Application to the present case
The General Assembly of OTIF is a body set up by an agreement, namely the Convention concerning International Carriage by Rail (COTIF). The above-mentioned decisions, which the 16th General Assembly of OTIF is called upon to decide upon constitute acts having legal effects, as further explicated under section 3 above for each of these decisions.
The envisaged acts do 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.
The main objective and content of the envisaged act relate to rail transport.
Therefore, the substantive legal basis of the proposed decision 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.
5. Publication of the envisaged acts
As the envisaged acts of the 16th General Assembly of OTIF will not amend COTIF or its Appendices, it is not necessary to publish them in the Official Journal of the European Union after their adoption.