PURPOSE: to approve, on behalf of the EU, the
Luxembourg Protocol to the Convention on International Interests in
Mobile Equipment on Matters specific to Railway Rolling Stock,
adopted in Luxembourg on 23 February 2007.
PROPOSED ACT: Council Decision.
ROLE OF THE EUROPEAN PARLIAMENT: Council may adopt the
act only if Parliament has given its consent to the act.
BACKGROUND: the European Union is working towards the
establishment of a common judicial area based on the principle of
mutual recognition of judicial decisions. The Protocol to
the Convention on International Interests in Mobile Equipment (the
"Cape Town Convention") on matters specific to railway rolling
stock, adopted in Luxembourg on 23 February 2007, makes a useful
contribution to the regulation at international level.
It is therefore
desirable that the provisions of this instrument which
concern matters falling within the exclusive competence of
the European Union should be applied as soon as possible.
That is the object of this proposal.
IMPACT ASSESSMENT: the Commission proposes the
approval of the Rail Protocol, after the EU signature in 2009, was
preceded by consultations with the Rail Working Group, a
crossindustry association dedicated to the implementation of the
Rail Protocol, whose Members are, inter alia, Bombardier
Transportation, Deutsche Bahn, English Welsh and Scottish Railways,
European Investment Bank, Intergovernmental Organisation for
International Carriage by Rail (OTIF), UIC-International Union of
Railways, Union of European Railway Industries. During the
consultations, it was particularly highlighted the close link
between the conclusion of the Rail Protocol and the adoption of the
Fourth Railway Package on 30 January 2013.
LEGAL BASIS: Article 81(2), in conjunction with
Article 218(6)(a) of the Treaty on the Functioning of the European
Union (TFEU).
CONTENT: with this proposal for a Decision, it is
proposed that the European Union approves the Protocol to the
Convention on International Interests in Mobile Equipment on
Matters Specific to Railway Rolling Stock adopted in Luxembourg on
23 February 2007.
Objective of the Cape Town Convention and its
Protocol:
- The EU approved the accession to the Cape Town
Convention and the Aircraft Protocol by Council Decision of 6 April
2009 and deposited the instrument of accession on 28 April 2009.
The Convention lays down uniform rules for the constitution and
effects of an international interest (security agreement, title
reservation agreement or leasing agreement) in certain categories
of mobile equipment designated in the Protocols relating to the
following categories: aircraft, railway rolling stock and space
assets.
The instrument consists of the basic Convention laying
down legal rules applicable to all categories of mobile equipment
mobiles and a number of specific Protocols containing special rules
relating to particular types of equipment.
Given that these protocols may amend the Convention
where the specific features of the relevant sector so require. It
is accordingly the Protocol and not the Convention that prevails as
regards each category of mobile equipment. The Member States
obligations under the Convention vary with the Protocol to which
they accede.
- More specifically, the Protocol is intended to
facilitate the financing of high-value railway rolling stock by
creating a particularly strong international guarantee for
creditors (sellers on credit and institutions supplying credit
for such sales) which gives them "absolute" priority over these
assets in an international register.
The Rail Protocol fixes certain rules concerning the
priority and enforceability of registered international interests
for certain types of creditors financing rolling stock - i.e. the
chargor, conditional seller or lessor. Furthermore the Protocol
provides to creditors specific default remedies (Article VII) and
three alternatives for remedies on insolvency of the debtor
(Article IX).
The Rail Protocol creates an international system
of unique and unchangeable registration of international
interests. The Protocol is complementary to, and supportive of,
the European Vehicle Identification Numbering system (adopted under
the Railway Interoperability Directive). It guarantees that the
parties can register and search against their interests from
wherever they are within the EU, using internet thereby making the
register accessible 24 hours/day.
Such an instrument is likely to be of great benefit to
the European rail industry, banks and Governments by encouraging capital investment in the rail sector
and boosting the creation of a genuine lease market.
EU competences: the
Commission negotiated the Rail Protocol on behalf of the European
Community, for the parts falling within the exclusive
competence of the European Community.
Article XXII(1) of the Rail Protocol provides that
Regional Economic Integration Organisations, which have competence
over certain matters governed by the Rail Protocol, may sign,
accept, approve or accede to the said Protocol.
The Rail Protocol also covers certain questions
governed by several European Regulations or Directives in force in
regard to recognition and enforcement of judgments in civil and
commercial matters, insolvency procedures and in the rail
field.
The European Union has exclusive competence over
some of the matters governed by the Rail Protocol, while the
Member States have competence over other matters governed by this
instrument.
It is thus appropriate that the European Union
approves the Rail Protocol.
Declarations of the Contracting States:
Article XXII(2) of the Rail Protocol requires
that, at the time of signature, acceptance, approval or accession,
the Regional Economic Integration Organisation make a general
declaration indicating the matters covered by the Rail Protocol
which fall in respect of which competences have been transferred to
that Organisation by its Member States.
The declaration on Community competence was made at
the time of the signature of the instrument. A new declaration
should be made at the time of the approval, to take into account
changes in legislation.
As regards declarations regarding issues relating to
insolvency, the Commission considers that, where the primary
insolvency jurisdiction is in an EU Member State, it is Regulation No 1346/2000 of 29
May 2000 on insolvency proceedings that should, in any case, be
applicable instead of the Rail Protocol.
It is therefore proposed that the European Union
should not make the declaration on insolvency assistance. The
Member States keep their competence concerning the rules of
substantive law as regards insolvency.
Lastly, an article in the Protocol authorises, under
certain conditions; Contracting States to make declarations on
public service exemptions.
BUDGETARY IMPLICATION: the proposal has no
implications for the European Unions budget.