title: 2009/940/EC: Council Decision of 30 November 2009 on the signing by the European Community of 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

text:
               16.12.2009

               EN

               Official Journal of the European Union

               L 331/1

         COUNCIL DECISION
   of 30 November 2009
   on the signing by the European Community of 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
   (2009/940/EC)
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 61(c) in conjunction with the first subparagraph of Article 300(2) thereof,
   Having regard to the proposal from the Commission,
   Whereas:

               (1)

               The Community is working towards the establishment of a common judicial area based on the principle of mutual recognition of judicial decisions.

               (2)

               The Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock (hereinafter referred to as the ‘Rail Protocol’), adopted in Luxembourg on 23 February 2007, makes a useful contribution to regulation at the international level in its area. It is therefore desirable that the provisions of this instrument which concern matters falling within the exclusive competence of the Community should be applied as soon as possible.

               (3)

               The Commission negotiated the Rail Protocol on behalf of the Community, for the parts falling within the exclusive competence of the Community.

               (4)

               Article XXII(1) of the Rail Protocol provides that Regional Economic Integration Organisations which have competence over certain matters governed by that Protocol may sign it.

               (5)

               The Rail Protocol remains open for signature until its entry into force.

               (6)

               Some of the matters governed by Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1), Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (2), Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (3), Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008 on the interoperability of the rail system within the Community (Recast) (4) and Regulation (EC) No 881/2004 of the European Parliament and of the Council of 29 April 2004 establishing a European Railway Agency (Agency Regulation) (5) are also dealt with in the Rail Protocol.

               (7)

               The Community 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.

               (8)

               The Community should therefore sign the Rail Protocol.

               (9)

               Article XXII(2) of the Rail Protocol provides that, at the time of signature, acceptance, approval or accession, a Regional Economic Integration Organisation shall make a declaration specifying the matters governed by that Protocol in respect of which competence has been transferred to that Organisation by its Member States. The Community should therefore make such a declaration at the time of signature of the Rail Protocol.

               (10)

               The United Kingdom and Ireland are taking part in the adoption and application of this Decision.

               (11)

               In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark does not take part in the adoption of this Decision and is not bound by it or subject to its application,

         HAS DECIDED AS FOLLOWS:
   Article 1
   The signing of the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock (the ‘Rail Protocol’), adopted in Luxembourg on 23 February 2007, is hereby approved on behalf of the European Community, subject to its conclusion.
   The text of the Rail Protocol is attached to this Decision.
   Article 2
   The President of the Council is hereby authorised to designate the person(s) empowered to sign the Rail Protocol on behalf of the Community, subject to the condition set out in Article 3.
   Article 3
   When signing the Rail Protocol, the Community shall make the declaration set out in the Annex, in accordance with Article XXII (2) thereof.

      Done at Brussels, 30 November 2009.

            For the Council

            The President

         B. ASK

      (1)  OJ L 12, 16.1.2001, p. 1.

      (2)  OJ L 160, 30.6.2000, p. 1.

      (3)  OJ L 177, 4.7.2008, p. 6.

      (4)  OJ L 191, 18.7.2008, p. 1.

      (5)  OJ L 220, 21.6.2004, p. 3.
   ANNEX

      Declaration to be made pursuant to Article XXII(2) concerning the competence of the European Community over matters governed by the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock (the ‘Rail Protocol’), adopted in Luxembourg on 23 February 2007, in respect of which the Member States have transferred their competence to the Community

                  1.

                  Article XXII of the Rail Protocol provides that Regional Economic Integration Organisations which are constituted by sovereign States and which have competence over certain matters governed by that Protocol may sign it on condition that they make the declaration referred to in Article XXII(2). The Community has decided to sign the Rail Protocol and is accordingly making that declaration.

                  2.

                  The current Members of the Community are the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand-Duchy of Luxembourg, the Republic of Hungary, Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.

                  3.

                  However, this declaration does not apply to the Kingdom of Denmark, in accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community.

                  4.

                  This declaration is not applicable in the case of the territories of the Member States in which the Treaty establishing the European Community does not apply and is without prejudice to such acts or positions as may be adopted under the Rail Protocol by the Member States concerned on behalf of and in the interests of those territories.

                  5.

                  The Member States of the European Community have transferred their competence to the Community as regards matters which affect Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1), Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (2), Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (3), Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008 on the interoperability of the rail system within the Community (Recast) (4) and Regulation (EC) No 881/2004 of the European Parliament and of the Council of 29 April 2004 establishing a European Railway Agency (Agency Regulation) (5).

                  6.

                  As far as the numbering system of vehicles is concerned, the Community has adopted by way of Decision 2006/920/EC (Commission Decision of 11 August 2006 concerning the technical specification of interoperability relating to the subsystem Traffic Operation and Management of the trans-European conventional rail system) a numbering system which is appropriate for the purpose of identification of railway rolling stock as referred to in Article V(2) of the Rail Protocol.
                  Furthermore, as far as data exchange between Member States of the Community and the International Registry is concerned, the Community has made considerable progress by way of Decision 2007/756/EC (Commission Decision of 9 November 2007 adopting a common specification of the national vehicle register provided for under Articles 14(4) and (5) of Directives 96/48/EC and 2001/16/EC). Under that Decision Member States of the Community are implementing National Vehicle Registers and duplication of data with the International Registry should be avoided.

                  7.

                  The exercise of competence which the Member States have transferred to the Community pursuant to the Treaty establishing the European Community is, by its nature, liable to continuous development. In the framework of that Treaty, the competent institutions may take decisions which determine the extent of the competence of the Community. The latter therefore reserves the right to amend this Declaration accordingly, without this constituting a prerequisite for the exercise of its competence with regard to matters governed by the Rail Protocol.

      (1)  OJ L 12, 16.1.2001, p. 1.

      (2)  OJ L 160, 30.6.2000, p. 1.

      (3)  OJ L 177, 4.7.2008, p. 6.

      (4)  OJ L 191, 18.7.2008, p. 1.

      (5)  OJ L 220, 21.6.2004, p. 3.
   LUXEMBOURG PROTOCOL TO THE CONVENTION ON INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT ON MATTERS SPECIFIC TO RAILWAY ROLLING STOCK

      Preamble

   CHAPTER I   SPHERE OF APPLICATION AND GENERAL PROVISIONS

                  Article I

            Defined terms

                  Article II

            Application of Convention as regards railway rolling stock

                  Article III

            Derogation

                  Article IV

            Representative capacities

                  Article V

            Identification of railway rolling stock in the agreement

                  Article VI

            Choice of law
         CHAPTER II   DEFAULT REMEDIES, PRIORITIES AND ASSIGNMENTS

                  Article VII

            Modification of default remedies provisions

                  Article VIII

            Modification of provisions regarding relief pending final determination

                  Article IX

            Remedies on insolvency

                  Article X

            Insolvency assistance

                  Article XI

            Debtor provisions
         CHAPTER III   REGISTRY PROVISIONS RELATING TO INTERNATIONAL INTERESTS IN RAILWAY ROLLING STOCK

                  Article XII

            The Supervisory Authority and the Registrar

                  Article XIII

            Designated entry points

                  Article XIV

            Identification of railway rolling stock for registration purposes

                  Article XV

            Additional modifications to Registry provisions

                  Article XVI

            International Registry fees

                  Article XVII

            Notices of sale
         CHAPTER IV   JURISDICTION

                  Article XVIII

            Waivers of sovereign immunity
         CHAPTER V   RELATIONSHIP WITH OTHER CONVENTIONS

                  Article XIX

            Relationship with the Unidroit Convention on International Financial Leasing

                  Article XX

            Relationship with the Convention concerning International Carriage by Rail (COTIF)
         CHAPTER VI   FINAL PROVISIONS

                  Article XXI

            Signature, ratification, acceptance, approval or accession

                  Article XXII

            Regional Economic Integration Organisations

                  Article XXIII

            Entry into force

                  Article XXIV

            Territorial units

                  Article XXV

            Public service railway rolling stock

                  Article XXVI

            Transitional provisions

                  Article XXVII

            Declarations relating to certain provisions

                  Article XXVIII

            Reservations and declarations

                  Article XXIX

            Declarations under the Convention

                  Article XXX

            Subsequent declarations

                  Article XXXI

            Withdrawal of declarations

                  Article XXXII

            Denunciations

                  Article XXXIII

            Review Conferences, amendments and related matters

                  Article XXXIV

            Depositary and its functions

      LUXEMBOURG PROTOCOL TO THE CONVENTION ON INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT ON MATTERS SPECIFIC TO RAILWAY ROLLING STOCK

   THE STATES PARTIES TO THIS PROTOCOL
   CONSIDERING it necessary to implement the Convention on International Interests in Mobile Equipment (the ‘Convention’) as it relates to railway rolling stock, in the light of the purposes set out in the preamble to the Convention,
   MINDFUL of the need to adapt the Convention to meet the particular requirements of railway rolling stock and their finance,
   HAVE AGREED upon the following provisions relating to railway rolling stock:
   CHAPTER I

      SPHERE OF APPLICATION AND GENERAL PROVISIONS

   Article I
   Defined terms
   1.   In this Protocol, except where the context otherwise requires, terms used in it have the meanings set out in the Convention.
   2.   In this Protocol the following terms are employed with the meanings set out below:

               (a)

               ‘guarantee contract’ means a contract entered into by a person as guarantor;

               (b)

               ‘guarantor’ means a person who, for the purpose of assuring performance of any obligations in favour of a creditor secured by a security agreement or under an agreement, gives or issues a suretyship or demand guarantee or a standby letter of credit or any other form of credit insurance;

               (c)

               ‘insolvency-related event’ means:

                           (i)

                           the commencement of the insolvency proceedings; or

                           (ii)

                           the declared intention to suspend or actual suspension of payments by the debtor where the creditor’s right to institute insolvency proceedings against the debtor or to exercise remedies under the Convention is prevented or suspended by law or State action;

               (d)

               ‘primary insolvency jurisdiction’ means the Contracting State in which the centre of the debtor’s main interests is situated, which for this purpose shall be deemed to be the place of the debtor’s statutory seat or, if there is none, the place where the debtor is incorporated or formed, unless proved otherwise;

               (e)

               ‘railway rolling stock’ means vehicles movable on a fixed railway track or directly on, above or below a guideway, together with traction systems, engines, brakes, axles, bogies, pantographs, accessories and other components, equipment and parts, in each case installed on or incorporated in the vehicles, and together with all data, manuals and records relating thereto.

         Article II
   Application of Convention as regards railway rolling stock
   1.   The Convention shall apply in relation to railway rolling stock as provided by the terms of this Protocol.
   2.   The Convention and this Protocol shall be known as the Convention on International Interests in Mobile Equipment as applied to railway rolling stock.
   Article III
   Derogation
   The parties may, by agreement in writing, exclude the application of Article IX and, in their relations with each other, derogate from or vary the effect of any of the provisions of this Protocol except Article VII(3) and (4).
   Article IV
   Representative capacities
   A person may, in relation to railway rolling stock, enter into an agreement, effect a registration as defined by Article 16(3) of the Convention and assert rights and interests under the Convention, in an agency, trust or representative capacity.
   Article V
   Identification of railway rolling stock in the agreement
   1.   For the purposes of Article 7(c) of the Convention and Article XVIII(2) of this Protocol, a description of railway rolling stock is sufficient to identify the railway rolling stock if it contains:

               (a)

               a description of the railway rolling stock by item;

               (b)

               a description of the railway rolling stock by type;

               (c)

               a statement that the agreement covers all present and future railway rolling stock; or

               (d)

               a statement that the agreement covers all present and future railway rolling stock except for specified items or types.

         2.   For the purposes of Article 7 of the Convention, an interest in future railway rolling stock identified in accordance with the preceding paragraph shall be constituted as an international interest as soon as the chargor, conditional seller or lessor acquires the power to dispose of the railway rolling stock, without the need for any new act of transfer.
   Article VI
   Choice of law
   1.   This Article applies only where a Contracting State has made a declaration pursuant to Article XXVII.
   2.   The parties to an agreement or a related guarantee contract or subordination agreement may agree on the law which is to govern their contractual rights and obligations, wholly or in part.
   3.   Unless otherwise agreed, the reference in the preceding paragraph to the law chosen by the parties is to the domestic rules of law of the designated State or, where that State comprises several territorial units, to the domestic law of the designated territorial unit.
   CHAPTER II

      DEFAULT REMEDIES, PRIORITIES AND ASSIGNMENTS

   Article VII
   Modification of default remedies provisions
   1.   In addition to the remedies specified in Chapter III of the Convention, the creditor may, to the extent that the debtor has at any time so agreed and in the circumstances specified in that Chapter, procure the export and physical transfer of railway rolling stock from the territory in which it is situated.
   2.   The creditor shall not exercise the remedies specified in the preceding paragraph without the prior consent in writing of the holder of any registered interest ranking in priority to that of the creditor.
   3.   Article 8(3) of the Convention shall not apply to railway rolling stock. Any remedy given by the Convention in relation to railway rolling stock shall be exercised in a commercially reasonable manner. A remedy shall be deemed to be exercised in a commercially reasonable manner where it is exercised in conformity with a provision of the agreement except where such a provision is manifestly unreasonable.
   4.   A chargee giving fourteen or more calendar days’ prior written notice of a proposed sale or lease to interested persons as provided by Article 8(4) of the Convention shall be deemed to satisfy the requirement of giving the ‘reasonable prior notice’ specified therein. The foregoing shall not prevent a chargee and a chargor or a guarantor from agreeing to a longer period of prior notice.
   5.   Subject to any applicable safety laws and regulations, a Contracting State shall ensure that the relevant administrative authorities expeditiously cooperate with and assist the creditor to the extent necessary for the exercise of the remedies specified in paragraph 1.
   6.   A chargee proposing to procure the export of railway rolling stock under paragraph 1 otherwise than pursuant to a court order shall give reasonable prior notice in writing of the proposed export to:

               (a)

               interested persons specified in Article 1(m)(i) and (ii) of the Convention; and

               (b)

               interested persons specified in Article 1(m)(iii) of the Convention who have given notice of their rights to the chargee within a reasonable time prior to the export.

         Article VIII
   Modification of provisions regarding relief pending final determination
   1.   This Article applies only in a Contracting State which has made a declaration pursuant to Article XXVII and to the extent stated in such declaration.
   2.   For the purposes of Article 13(1) of the Convention, ‘speedy’ in the context of obtaining relief means within such number of calendar days from the date of filing of the application for relief as is specified in a declaration made by the Contracting State in which the application is made.
   3.   Article 13(1) of the Convention applies with the following being added immediately after subparagraph (d):

               ‘(e)

               if at any time the debtor and the creditor specifically agree, sale of the object and application of proceeds therefrom’,

         and Article 43(2) applies with the insertion after the words ‘Article 13(1)(d)’ of the words ‘and (e)’.
   4.   Ownership or any other interest of the debtor passing on a sale under the preceding paragraph is free from any other interest over which the creditor’s international interest has priority under the provisions of Article 29 of the Convention.
   5.   The creditor and the debtor or any other interested person may agree in writing to exclude the application of Article 13(2) of the Convention.
   6.   With regard to the remedies in Article VII(1):

               (a)

               they shall be made available by the administrative authorities in a Contracting State no later than seven calendar days after the creditor notifies such authorities that the relief specified in Article VII(1) is granted or, in the case of relief granted by a foreign court, recognised by a court of that Contracting State, and that the creditor is entitled to procure those remedies in accordance with the Convention; and

               (b)

               the applicable authorities shall expeditiously cooperate with and assist the creditor in the exercise of such remedies in conformity with the applicable safety laws and regulations.

         7.   Paragraphs 2 and 6 shall not affect any applicable safety laws and regulations.
   Article IX
   Remedies on insolvency
   1.   This Article applies only where a Contracting State that is the primary insolvency jurisdiction has made a declaration pursuant to Article XXVII.
   2.   References in this Article to the ‘insolvency administrator’ shall be to that person in its official, not in its personal, capacity.
   3.   Upon the occurrence of an insolvency-related event, the insolvency administrator or the debtor, as applicable, shall, subject to paragraph 7, give possession of the railway rolling stock to the creditor no later than the earlier of:

               (a)

               the end of the waiting period; and

               (b)

               the date on which the creditor would be entitled to possession of the railway rolling stock if this Article did not apply.

         4.   For the purposes of this Article, the ‘waiting period’ shall be the period specified in a declaration of the Contracting State which is the primary insolvency jurisdiction.
   5.   Unless and until the creditor is given the opportunity to take possession under paragraph 3:

               (a)

               the insolvency administrator or the debtor, as applicable, shall preserve the railway rolling stock and maintain it and its value in accordance with the agreement; and

               (b)

               the creditor shall be entitled to apply for any other forms of interim relief available under the applicable law.

         6.   Subparagraph (a) of the preceding paragraph shall not preclude the use of the railway rolling stock under arrangements designed to preserve the railway rolling stock and maintain it and its value.
   7.   The insolvency administrator or the debtor, as applicable, may retain possession of the railway rolling stock where, by the time specified in paragraph 3, it has cured all defaults other than a default constituted by the opening of insolvency proceedings and has agreed to perform all future obligations under the agreement and related transaction documents. A second waiting period shall not apply in respect of a default in the performance of such future obligations.
   8.   With regard to the remedies in Article VII(1):

               (a)

               they shall be made available by the administrative authorities in a Contracting State no later than seven calendar days after the date on which the creditor notifies such authorities that it is entitled to procure those remedies in accordance with the Convention; and

               (b)

               the applicable authorities shall expeditiously cooperate with and assist the creditor in the exercise of such remedies in conformity with the applicable safety laws and regulations.

         9.   No exercise of remedies permitted by the Convention or this Protocol may be prevented or delayed after the date specified in paragraph 3.
   10.   No obligations of the debtor under the agreement may be modified without the consent of the creditor.
   11.   Nothing in the preceding paragraph shall be construed to affect the authority, if any, of the insolvency administrator under the applicable law to terminate the agreement.
   12.   No rights or interests, except for non-consensual rights or interests of a category covered by a declaration pursuant to Article 39(1) of the Convention, shall have priority in insolvency proceedings over registered interests.
   13.   The Convention as modified by Articles VII and XXV of this Protocol shall apply to the exercise of any remedies under this Article.
   3.   Upon the occurrence of an insolvency-related event, the insolvency administrator or the debtor, as applicable, upon the request of the creditor, shall give notice to the creditor within the time specified in a declaration of a Contracting State pursuant to Article XXVII whether it will:

               (a)

               cure all defaults other than a default constituted by the opening of insolvency proceedings and agree to perform all future obligations, under the agreement and related transaction documents; or

               (b)

               give the creditor the opportunity to take possession of the railway rolling stock, in accordance with the applicable law.

         4.   The applicable law referred to in subparagraph (b) of the preceding paragraph may permit the court to require the taking of any additional step or the provision of any additional guarantee.
   5.   The creditor shall provide evidence of its claims and proof that its international interest has been registered.
   6.   If the insolvency administrator or the debtor, as applicable, does not give notice in conformity with paragraph 3, or when the insolvency administrator or the debtor has declared that it will give the creditor the opportunity to take possession of the railway rolling stock but fails to do so, the court may permit the creditor to take possession of the railway rolling stock upon such terms as the court may order and may require the taking of any additional step or the provision of any additional guarantee.
   7.   The railway rolling stock shall not be sold pending a decision by a court regarding the claim and the international interest.
   3.   Upon the occurrence of an insolvency-related event, the insolvency administrator or the debtor, as applicable, shall within the cure period:

               (a)

               cure all defaults other than a default constituted by the opening of insolvency proceedings and agree to perform all future obligations, under the agreement and related transaction documents; or

               (b)

               give the creditor the opportunity to take possession of the railway rolling stock in accordance with the applicable law.

         4.   Before the end of the cure period, the insolvency administrator or the debtor, as applicable, may apply to the court for an order suspending its obligation under subparagraph (b) of the preceding paragraph for a period commencing from the end of the cure period and ending no later than the expiration of the agreement or any renewal thereof, and on such terms as the court considers just (the ‘suspension period’). Any such order shall require that all sums accruing to the creditor during the suspension period be paid from the insolvency estate or by the debtor as they become due and that the insolvency administrator or the debtor, as applicable, perform all other obligations arising during the suspension period.
   5.   If an application is made to the court under the preceding paragraph, the creditor shall not take possession of the railway rolling stock pending an order of the court. If the application is not granted within such number of calendar days from the date of filing of the application for relief as is specified in a declaration made by the Contracting State in which the application is made, the application will be deemed withdrawn unless the creditor and the insolvency administrator or the debtor, as applicable, otherwise agree.
   6.   Unless and until the creditor is given the opportunity to take possession under paragraph 3:

               (a)

               the insolvency administrator or the debtor, as applicable, shall preserve the railway rolling stock and maintain it and its value in accordance with the agreement; and

               (b)

               the creditor shall be entitled to apply for any other forms of interim relief available under the applicable law.

         7.   Subparagraph (a) of the preceding paragraph shall not preclude the use of the railway rolling stock under arrangements designed to preserve and maintain it and its value.
   8.   Where during the cure period or any suspension period the insolvency administrator or the debtor, as applicable, cures all defaults other than a default constituted by the opening of insolvency proceedings and agrees to perform all future obligations under the agreement and related transaction documents, the insolvency administrator or debtor may retain possession of the railway rolling stock and any order made by the court under paragraph 4 shall cease to have effect. A second cure period shall not apply in respect of a default in the performance of such future obligations.
   9.   With regard to the remedies in Article VII(1):

               (a)

               they shall be made available by the administrative authorities in a Contracting State no later than seven calendar days after the date on which the creditor notifies such authorities that it is entitled to procure those remedies in accordance with the Convention; and

               (b)

               the applicable authorities shall expeditiously cooperate with and assist the creditor in the exercise of such remedies in conformity with the applicable safety laws and regulations.

         10.   Subject to paragraphs 4, 5 and 8, no exercise of remedies permitted by the Convention may be prevented or delayed after the cure period.
   11.   Subject to paragraphs 4, 5 and 8, no obligations of the debtor under the agreement and related transactions may be modified in insolvency proceedings without the consent of the creditor.
   12.   Nothing in the preceding paragraph shall be construed to affect the authority, if any, of the insolvency administrator under the applicable law to terminate the agreement.
   13.   No rights or interests, except for non-consensual rights or interests of a category covered by a declaration pursuant to Article 39(1) of the Convention, shall have priority in insolvency proceedings over registered interests.
   14.   The Convention as modified by Articles VII and XXV of this Protocol shall apply to the exercise of any remedies under this Article.
   15.   For the purposes of this Article, the ‘cure period’ shall be the period, commencing with the date of the insolvency-related event, specified in a declaration of the Contracting State which is the primary insolvency jurisdiction.
   Article X
   Insolvency assistance
   1.   This Article applies only in a Contracting State which has made a declaration pursuant to Article XXVII(1).
   2.   The courts of a Contracting State in which railway rolling stock is situated shall, in accordance with the law of the Contracting State, cooperate to the maximum extent possible with foreign courts and foreign insolvency administrators in carrying out the provisions of Article IX.
   Article XI
   Debtor provisions
   1.   In the absence of a default within the meaning of Article 11 of the Convention, the debtor shall be entitled to the quiet possession and use of the railway rolling stock in accordance with the agreement as against:

               (a)

               its creditor and the holder of any interest from which the debtor takes free pursuant to Article 29(4)(b) of the Convention unless and to the extent that the debtor has otherwise agreed; and

               (b)

               the holder of any interest to which the debtor’s right or interest is subject pursuant to Article 29(4)(a) of the Convention, but only to the extent, if any, that such holder has agreed.

         2.   Nothing in the Convention or this Protocol affects the liability of a creditor for any breach of the agreement under the applicable law in so far as that agreement relates to railway rolling stock.
   CHAPTER III

      REGISTRY PROVISIONS RELATING TO INTERNATIONAL INTERESTS IN RAILWAY ROLLING STOCK

   Article XII
   The Supervisory Authority and the Registrar
   1.   The Supervisory Authority shall be a body established by representatives, one representative to be appointed:

               (a)

               by each State Party;

               (b)

               by each of a maximum of three other States to be designated by the International Institute for the Unification of Private Law (Unidroit); and

               (c)

               by each of a maximum of three other States to be designated by the Intergovernmental Organisation for International Carriage by Rail (OTIF).

         2.   In the designation of the States referred to in subparagraphs (b) and (c) of the preceding paragraph regard shall be had to the need to ensure broad geographical representation.
   3.   The term of appointment of the representatives appointed pursuant to subparagraphs (b) and (c) of paragraph 1 shall be that specified by the designating Organisations. The terms of those representatives serving on the date when this Protocol enters into force for the tenth State Party shall expire no later than two years after that date.
   4.   The representatives referred to in paragraph 1 shall adopt the initial rules of procedure for the Supervisory Authority. Adoption shall require agreement of:

               (a)

               a majority of all the representatives; and

               (b)

               a majority of the representatives appointed pursuant to subparagraph (a) of paragraph 1.

         5.   The Supervisory Authority may establish a commission of experts consisting of:

               (a)

               persons nominated by Signatory and Contracting States and having the necessary qualifications and experience; and

               (b)

               other experts as necessary

         and entrust the commission with the task of assisting the Supervisory Authority in the discharge of its functions.
   6.   A secretariat (the Secretariat) shall assist the Supervisory Authority in the discharge of its functions, as directed by the Supervisory Authority. The Secretariat shall be OTIF.
   7.   In the event that the Secretariat becomes unable or unwilling to discharge its functions, the Supervisory Authority shall designate another Secretariat.
   8.   The Secretariat shall, on being satisfied that the International Registry is fully operational, forthwith deposit a certificate to that effect with the Depositary.
   9.   The Secretariat shall have legal personality where not already possessing such personality, and shall enjoy, in relation to its functions under the Convention and this Protocol, the same exemptions and immunities as are provided to the Supervisory Authority under Article 27(3) of the Convention and to the International Registry under Article 27(4) of the Convention.
   10.   A measure taken by the Supervisory Authority that affects only the interests of a State Party or a group of States Parties shall be taken if such State Party or the majority of the group of States Parties also approve of the measure. A measure that could adversely affect the interests of a State Party or a group of States Parties shall have effect in such State Party or group of States Parties if such State Party or the majority of the group of States Parties also approve of the measure.
   11.   The first Registrar shall be appointed for a period of not less than five or more than ten years. Thereafter, the Registrar shall be appointed or re-appointed for successive periods each not exceeding ten years.
   Article XIII
   Designated entry points
   1.   A Contracting State may at any time designate, by declaration, an entity or entities as the entry point or entry points through which there shall or may be transmitted to the International Registry information required for registration other than registration of a notice of a national interest or of a right or interest under Article 40 of the Convention in either case arising under the laws of another State. The various entry points shall be operated at least during working hours in their respective territories.
   2.   A designation made under the preceding paragraph may permit, but not compel, use of a designated entry point or entry points for information required for registrations in respect of notices of sale.
   Article XIV
   Identification of railway rolling stock for registration purposes
   1.   For the purposes of Article 18(1)(a) of the Convention, the regulations shall prescribe a system for the allocation of identification numbers by the Registrar which enable the unique identification of items of railway rolling stock. The identification number shall be:

               (a)

               affixed to the item of railway rolling stock;

               (b)

               associated in the International Registry with the manufacturer’s name and the manufacturer’s identification number for the item so affixed; or

               (c)

               associated in the International Registry with a national or regional identification number so affixed.

         2.   For the purposes of the preceding paragraph, a Contracting State may, by declaration, state the system of national or regional identification numbers that shall be used with respect to items of railway rolling stock subject to an international interest that is created or provided for, or is intended to be created or provided for, by an agreement entered into by a debtor situated in that Contracting State at the time of the conclusion of that agreement. Such a national or regional identification system shall, subject to agreement between the Supervisory Authority and the Contracting State making the declaration, ensure the unique identification of each item of railway rolling stock to which the system applies.
   3.   A declaration by a Contracting State according to the preceding paragraph shall include detailed information on the operation of the national or regional identification system.
   4.   A registration in respect of an item of railway rolling stock for which a declaration pursuant to paragraph 2 has been made shall, in order for the registration to be valid, specify all the national or regional identification numbers to which the item has been subject since the entry into force of this Protocol under Article XXIII(1) and the time during which each number has applied to the item.
   Article XV
   Additional modifications to Registry provisions
   1.   For the purposes of Article 19(6) of the Convention, the search criteria at the International Registry shall be established by the regulations.
   2.   For the purposes of Article 25(2) of the Convention, and in the circumstances there described, the holder of a registered prospective international interest or a registered prospective assignment of an international interest shall take such steps as are within its power to procure the discharge of the registration no later than ten calendar days after the receipt of the demand described in such paragraph.
   3.   Where a subordination has been registered and the obligations of the debtor to the beneficiary of the subordination have been discharged, the beneficiary shall procure the discharge of the registration no later than ten calendar days after written demand by the subordinated party delivered to or received at the beneficiary’s address stated in the registration.
   4.   The centralised functions of the International Registry shall be operated and administered by the Registrar on a twenty-four hour basis.
   5.   The Registrar shall be liable under Article 28(1) of the Convention for loss caused up to an amount not exceeding the value of the railway rolling stock to which the loss relates. Notwithstanding the preceding sentence, the liability of the Registrar shall not exceed 5 million Special Drawing Rights in any calendar year, or such greater amount, computed in such manner, as the Supervisory Authority may from time to time determine by regulations.
   6.   The preceding paragraph shall not limit the Registrar’s liability for damages for loss caused by gross negligence or intentional misconduct of the Registrar and its officers and employees.
   7.   The amount of the insurance or financial guarantee referred to in Article 28(4) of the Convention shall be not less than the amount determined by the Supervisory Authority to be appropriate, having regard to the prospective liability of the Registrar.
   8.   Nothing in the Convention shall preclude the Registrar from procuring insurance or a financial guarantee covering events for which the Registrar is not liable under Article 28 of the Convention.
   Article XVI
   International Registry fees
   1.   The Supervisory Authority shall set and may from time to time amend the fees to be paid in connection with registrations, filings, searches and other services the International Registry may provide, in accordance with its regulations.
   2.   The fees referred to in the preceding paragraph shall be determined so as to recover, to the extent necessary, the reasonable costs of establishing, implementing and operating the International Registry, as well as the reasonable costs of the Secretariat associated with the performance of its functions. Nothing in this paragraph shall preclude the Registrar from operating for a reasonable profit.
   Article XVII
   Notices of sale
   The regulations shall authorise the registration in the International Registry of notices of sale of railway rolling stock. The provisions of this Chapter and of Chapter V of the Convention shall, in so far as relevant, apply to these registrations. However, any such registration and any search made or certificate issued in respect of a notice of sale shall be for the purposes of information only and shall not affect the rights of any person, or have any other effect, under the Convention or this Protocol.
   CHAPTER IV

      JURISDICTION

   Article XVIII
   Waivers of sovereign immunity
   1.   Subject to paragraph 2, a waiver of sovereign immunity from jurisdiction of the courts specified in Article 42 or Article 43 of the Convention or relating to enforcement of rights and interests relating to railway rolling stock under the Convention shall be binding and, if the other conditions to such jurisdiction or enforcement have been satisfied, shall be effective to confer jurisdiction and permit enforcement, as the case may be.
   2.   A waiver under the preceding paragraph must be in writing and contain a description of the railway rolling stock as specified in Article V(1) of this Protocol.
   CHAPTER V

      RELATIONSHIP WITH OTHER CONVENTIONS

   Article XIX
   Relationship with the Unidroit Convention on International Financial Leasing
   The Convention shall, to the extent of any inconsistency, prevail over the Unidroit Convention on International Financial Leasing, signed in Ottawa on 28 May 1988.
   Article XX
   Relationship with the Convention concerning International Carriage by Rail (COTIF)
   The Convention shall, to the extent of any inconsistency, prevail over the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980 in the version of the Protocol of Modification of 3 June 1999.
   CHAPTER VI

      FINAL PROVISIONS

   Article XXI
   Signature, ratification, acceptance, approval or accession
   1.   This Protocol shall be open for signature in Luxembourg on 23 February 2007 by States participating in the diplomatic Conference to adopt a Rail Protocol to the Convention on International Interests in Mobile Equipment held at Luxembourg from 12 to 23 February 2007. After 23 February 2007 this Protocol shall be open to all States for signature at the Headquarters of Unidroit in Rome until it enters into force in accordance with Article XXIII.
   2.   This Protocol shall be subject to ratification, acceptance or approval by States which have signed it.
   3.   Any State which does not sign this Protocol may accede to it at any time.
   4.   Ratification, acceptance, approval or accession is effected by the deposit of a formal instrument to that effect with the Depositary.
   5.   A State may not become a Party to this Protocol unless it is or becomes also a Party to the Convention.
   Article XXII
   Regional Economic Integration Organisations
   1.   A Regional Economic Integration Organisation which is constituted by sovereign States and has competence over certain matters governed by this Protocol may similarly sign, accept, approve or accede to this Protocol. The Regional Economic Integration Organisation shall in that case have the rights and obligations of a Contracting State, to the extent that that Organisation has competence over matters governed by this Protocol. Where the number of Contracting States is relevant in this Protocol, the Regional Economic Integration Organisation shall not count as a Contracting State in addition to its Member States which are Contracting States.
   2.   The Regional Economic Integration Organisation shall, at the time of signature, acceptance, approval or accession, make a declaration to the Depositary specifying the matters governed by this Protocol in respect of which competence has been transferred to that Organisation by its Member States. The Regional Economic Integration Organisation shall promptly notify the Depositary of any changes to the distribution of competence, including new transfers of competence, specified in the declaration under this paragraph.
   3.   Any reference to a ‘Contracting State’ or ‘Contracting States’ or ‘State Party’ or ‘States Parties’ in this Protocol applies equally to a Regional Economic Integration Organisation where the context so requires.
   Article XXIII
   Entry into force
   1.   This Protocol enters into force between the States which have deposited instruments referred to in subparagraph (a) on the later of:

               (a)

               the first day of the month following the expiration of three months after the date of the deposit of the fourth instrument of ratification, acceptance, approval or accession, and

               (b)

               the date of the deposit by the Secretariat with the Depositary of a certificate confirming that the International Registry is fully operational.

         2.   For other States this Protocol enters into force on the first day of the month following the later of:

               (a)

               the expiration of three months after the date of the deposit of its instrument of ratification, acceptance, approval or accession; and

               (b)

               the date referred to in subparagraph (b) of the preceding paragraph.

         Article XXIV
   Territorial units
   1.   If a Contracting State has territorial units in which different systems of law are applicable in relation to the matters dealt with in this Protocol, it may, at the time of ratification, acceptance, approval or accession, declare that this Protocol is to extend to all its territorial units or only to one or more of them, and may modify its declaration by submitting another declaration at any time.
   2.   Any such declarations are to be notified to the Depositary and shall state expressly the territorial units to which this Protocol applies.
   3.   If a Contracting State has not made any declaration under paragraph 1, this Protocol shall apply to all territorial units of that State.
   4.   Where a Contracting State extends this Protocol to one or more of its territorial units, declarations permitted under this Protocol may be made in respect of each such territorial unit, and the declarations made in respect of one territorial unit may be different from those made in respect of another territorial unit.
   5.   If by virtue of a declaration under paragraph 1, this Protocol extends to one or more territorial units of a Contracting State:

               (a)

               the debtor is considered to be situated in a Contracting State only if it is incorporated or formed under a law in force in a territorial unit to which the Convention and this Protocol apply or if it has its registered office or statutory seat, centre of administration, place of business or habitual residence in a territorial unit to which the Convention and this Protocol apply;

               (b)

               any reference to the location of the railway rolling stock in a Contracting State refers to the location of the railway rolling stock in a territorial unit to which the Convention and this Protocol apply; and

               (c)

               any reference to the administrative authorities in that Contracting State shall be construed as referring to the administrative authorities having jurisdiction in a territorial unit to which the Convention and this Protocol apply.

         Article XXV
   Public service railway rolling stock
   1.   A Contracting State may, at any time, declare that it will continue to apply, to the extent specified in its declaration, rules of its law in force at that time which preclude, suspend or govern the exercise within its territory of any of the remedies specified in Chapter III of the Convention and Articles VII to IX of this Protocol in relation to railway rolling stock habitually used for the purpose of providing a service of public importance (public service railway rolling stock) as specified in that declaration notified to the Depositary.
   2.   Any person, including a governmental or other public authority, that, under rules of law of a Contracting State making a declaration under the preceding paragraph, exercises a power to take or procure possession, use or control of any public service railway rolling stock, shall preserve and maintain such railway rolling stock from the time of exercise of such power until possession, use or control is restored to the creditor.
   3.   During the period of time specified in the preceding paragraph, the person referred to in that paragraph shall also make or procure payment to the creditor of an amount equal to the greater of:

               (a)

               such amount as that person shall be required to pay under the rules of law of the Contracting State making the declaration; and

               (b)

               the market lease rental in respect of such railway rolling stock.

         The first such payment shall be made within ten calendar days of the date on which such power is exercised, and subsequent payments shall be made on the first day of each successive month thereafter. In the event that in any month the amount payable exceeds the amount due to the creditor from the debtor, the surplus shall be paid to any other creditors to the extent of their claims in the order of their priority and thereafter to the debtor.
   4.   A Contracting State whose rules of law do not provide for the obligations specified in paragraphs 2 and 3 may, to the extent specified in a separate declaration notified to the Depositary, declare that it will not apply those paragraphs with regard to railway rolling stock specified in that declaration. Nothing in this paragraph shall preclude a person from agreeing with the creditor to perform the obligations specified in paragraphs 2 or 3 or affect the enforceability of any agreement so concluded.
   5.   Any initial or subsequent declaration made under this Article by a Contracting State shall not adversely affect rights and interests of creditors arising under an agreement entered into prior to the date on which that declaration is received by the Depositary.
   6.   A Contracting State making a declaration under this Article shall take into consideration the protection of the interests of creditors and the effect of the declaration on the availability of credit.
   Article XXVI
   Transitional provisions
   In relation to railway rolling stock Article 60 of the Convention shall be modified as follows:

               (a)

               in paragraph 2(a), after ‘situated’ insert ‘at the time the right or interest is created or arises’;

               (b)

               replace paragraph 3 with the following:
               ‘3.   A Contracting State may in its declaration under paragraph 1 specify a date, not earlier than three years and not later than ten years after the date on which the declaration becomes effective, when Articles 29, 35 and 36 of this Convention as modified or supplemented by the Protocol will become applicable, to the extent and in the manner specified in the declaration, to pre-existing rights or interests arising under an agreement made at a time when the debtor was situated in that State. Any priority of the right or interest under the law of that State, so far as applicable, shall continue if the right or interest is registered in the International Registry before the expiration of the period specified in the declaration, whether or not any other right or interest has previously been registered.’

         Article XXVII
   Declarations relating to certain provisions
   1.   A Contracting State may, at the time of ratification, acceptance, approval of, or accession to this Protocol, declare that it will apply either or both of Articles VI and X.
   2.   A Contracting State may, at the time of ratification, acceptance, approval of, or accession to this Protocol, declare that it will apply Article VIII, wholly or in part. If it so declares, it shall specify the time-period required by Article VIII(2).
   3.   A Contracting State may, at the time of ratification, acceptance, approval of, or accession to this Protocol, declare that it will apply the entirety of one of Alternatives A, B and C of Article IX and, if it so declares, it shall specify the type of insolvency proceeding, if any, to which it will apply such Alternative. A Contracting State making a declaration pursuant to this paragraph shall specify the time-period required by Article IX under paragraph 4 of Alternative A, paragraph 3 of Alternative B or paragraphs 5 and 15 of Alternative C, as applicable.
   4.   The courts of Contracting States shall apply Article IX in conformity with the declaration made by the Contracting State which is the primary insolvency jurisdiction.
   Article XXVIII
   Reservations and declarations
   1.   No reservations may be made to this Protocol but declarations authorised by Articles XIII, XIV, XXIV, XXV, XXVII, XXIX and XXX may be made in accordance with these provisions.
   2.   Any declaration or subsequent declaration or any withdrawal of a declaration made under this Protocol shall be notified in writing to the Depositary.
   Article XXIX
   Declarations under the Convention
   1.   Declarations made under the Convention, including those made under Articles 39, 40, 50, 53, 54, 55, 57, 58 and 60, shall be deemed to have also been made under this Protocol unless stated otherwise.
   2.   For the purposes of Article 50(1) of the Convention, an ‘internal transaction’ shall also mean, in relation to railway rolling stock, a transaction of a type listed in Article 2(2)(a) to (c) of the Convention where the relevant railway rolling stock is only capable, in its normal course of use, of being operated on a single railway system within the Contracting State concerned, because of track gauge or other elements of the design of such railway rolling stock.
   Article XXX
   Subsequent declarations
   1.   A State Party may make a subsequent declaration, other than a declaration made in accordance with Article XXIX under Article 60 of the Convention, at any time after the date on which this Protocol has entered into force for it, by notifying the Depositary to that effect.
   2.   Any such subsequent declaration shall take effect on the first day of the month following the expiration of six months after the date of receipt of the notification by the Depositary. Where a longer period for that declaration to take effect is specified in the notification, it shall take effect upon the expiration of such longer period after receipt of the notification by the Depositary.
   3.   Notwithstanding the previous paragraphs, this Protocol shall continue to apply, as if no such subsequent declarations had been made, in respect of all rights and interests arising prior to the effective date of any such subsequent declaration.
   Article XXXI
   Withdrawal of declarations
   1.   Any State Party having made a declaration under this Protocol, other than a declaration made in accordance with Article XXIX under Article 60 of the Convention, may withdraw it at any time by notifying the Depositary. Such withdrawal is to take effect on the first day of the month following the expiration of six months after the date of receipt of the notification by the Depositary.
   2.   Notwithstanding the preceding paragraph, this Protocol shall continue to apply, as if no such withdrawal had been made, in respect of all rights and interests arising prior to the effective date of any such withdrawal.
   Article XXXII
   Denunciations
   1.   Any State Party may denounce this Protocol by notification in writing to the Depositary.
   2.   Any such denunciation shall take effect on the first day of the month following the expiration of twelve months after the date of receipt of the notification by the Depositary.
   3.   Notwithstanding the previous paragraphs, this Protocol shall continue to apply, as if no such denunciation had been made, in respect of all rights and interests arising prior to the effective date of any such denunciation.
   Article XXXIII
   Review Conferences, amendments and related matters
   1.   The Depositary, in consultation with the Supervisory Authority, shall prepare reports yearly, or at such other time as the circumstances may require, for the States Parties as to the manner in which the international regime established in the Convention as amended by the Protocol has operated in practice. In preparing such reports, the Depositary shall take into account the reports of the Supervisory Authority concerning the functioning of the international registration system.
   2.   At the request of not less than twenty-five per cent of the States Parties, Review Conferences of the States Parties shall be convened from time to time by the Depositary, in consultation with the Supervisory Authority, to consider:

               (a)

               the practical operation of the Convention as amended by this Protocol and its effectiveness in facilitating the asset-based financing and leasing of the objects covered by its terms;

               (b)

               the judicial interpretation given to, and the application made of the terms of this Protocol and the regulations;

               (c)

               the functioning of the international registration system, the performance of the Registrar and its oversight by the Supervisory Authority, taking into account the reports of the Supervisory Authority; and

               (d)

               whether any modifications to this Protocol or the arrangements relating to the International Registry are desirable.

         3.   Any amendment to this Protocol shall be approved by at least a two-thirds majority of States Parties participating in the Conference referred to in the preceding paragraph and shall then enter into force in respect of States which have ratified, accepted or approved such amendment when it has been ratified, accepted or approved by four States in accordance with the provisions of Article XXIII relating to its entry into force.
   Article XXXIV
   Depositary and its functions
   1.   Instruments of ratification, acceptance, approval or accession shall be deposited with Unidroit, which is hereby designated the Depositary.
   2.   The Depositary shall:

               (a)

               inform all Contracting States of:

                           (i)

                           each new signature or deposit of an instrument of ratification, acceptance, approval or accession, together with the date thereof;

                           (ii)

                           the date of the deposit of the certificate referred to in Article XXIII(1)(b);

                           (iii)

                           the date of entry into force of this Protocol;

                           (iv)

                           each declaration made in accordance with this Protocol, together with the date thereof;

                           (v)

                           the withdrawal or amendment of any declaration, together with the date thereof; and

                           (vi)

                           the notification of any denunciation of this Protocol together with the date thereof and the date on which it takes effect;

               (b)

               transmit certified true copies of this Protocol to all Contracting States;

               (c)

               provide the Supervisory Authority and the Registrar with a copy of each instrument of ratification, acceptance, approval or accession, together with the date of deposit thereof, of each declaration or withdrawal or amendment of a declaration and of each notification of denunciation, together with the date of notification thereof, so that the information contained therein is easily and fully available; and

               (d)

               perform such other functions customary for depositaries.

      IN WITNESS WHEREOF the undersigned Plenipotentiaries, having been duly authorised, have signed this Protocol.
      DONE at Luxembourg, this twenty-third day of February, two thousand and seven, in a single original in the English, French and German languages, all texts being equally authentic, such authenticity to take effect upon verification by the Secretariat of the Conference under the authority of the President of the Conference within ninety days hereof as to the consistency of the texts with one another.


title: 2006/97/EC,Euratom: Council Decision of  14 February 2006  appointing a German member of the European Economic and Social Committee

text:
               16.2.2006

               EN

               Official Journal of the European Union

               L 46/31

      COUNCIL DECISION

   of 14 February 2006
   appointing a German member of the European Economic and Social Committee
   (2006/97/EC, Euratom)
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 259 thereof,
   Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 167 thereof,
   Having regard to the Council Decision 2002/758/EC, Euratom of 17 September 2002 appointing the members of the Economic and Social Committee for the period from 21 September 2002 to 20 September 2006 (1),
   Having regard to the nomination submitted by the German government,
   Having regard to the opinion of the European Commission,
   Whereas:
   A member’s seat on the European Economic and Social Committee has fallen vacant following the resignation of Mr Alfred GEISSLER, of which the Council was informed on 19 July 2005,
   HAS DECIDED AS FOLLOWS:
   Article 1
   Mr Wilfried WOLLER is hereby appointed a member of the European Economic and Social Committee in place of Mr Alfred GEISSLER for the remainder of his term of office, namely until 20 September 2006.
   Article 2
   This Decision shall be published in the Official Journal of the European Union.
   It shall take effect on the date of its adoption.

      Done at Brussels, 14 February 2006.

            For the Council

            The President

         K.-H. GRASSER

      (1)  OJ L 253, 21.9.2002, p. 9.


title: Political and Security Committee Decision (CFSP) 2016/939 of 8 June 2016 on the appointment of the EU Mission Commander for the European Union military mission to contribute to the training of the Malian Armed Forces (EUTM Mali) and repealing Decision (CFSP) 2015/2298 (EUTM Mali/1/2016)

text:
               14.6.2016

               EN

               Official Journal of the European Union

               L 155/25

         POLITICAL AND SECURITY COMMITTEE DECISION (CFSP) 2016/939
   of 8 June 2016
   on the appointment of the EU Mission Commander for the European Union military mission to contribute to the training of the Malian Armed Forces (EUTM Mali) and repealing Decision (CFSP) 2015/2298 (EUTM Mali/1/2016)
   THE POLITICAL AND SECURITY COMMITTEE,
   Having regard to the Treaty on European Union, and in particular Article 38 thereof,
   Having regard to Council Decision 2013/34/CFSP of 17 January 2013 on a European Union military mission to contribute to the training of Malian Armed Forces (EUTM Mali) (1), and in particular Article 5 thereof,
   Whereas:

               (1)

               Pursuant to Article 5(1) of Decision 2013/34/CFSP, the Council authorised the Political and Security Committee (PSC), in accordance with Article 38 of the Treaty on European Union, to take the relevant decisions concerning the political control and strategic direction of EUTM Mali, including the decisions to appoint the subsequent EU Mission Commanders.

               (2)

               On 26 November 2015, the PSC adopted Decision (CFSP) 2015/2298 (2) appointing Brigadier General Werner ALBL as EU Mission Commander for EUTM Mali.

               (3)

               Belgium has recommended the appointment of Brigadier General Eric HARVENT as the new EU Mission Commander for EUTM Mali to succeed Brigadier General Werner ALBL as from 3 July 2016.

               (4)

               On 7 April 2016, the EU Military Committee supported the recommendation.

               (5)

               Decision (CFSP) 2015/2298 should therefore be repealed.

               (6)

               In accordance with Article 5 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark does not participate in the elaboration and the implementation of decisions and actions of the Union which have defence implications,

         HAS ADOPTED THIS DECISION:
   Article 1
   Brigadier General Eric HARVENT is hereby appointed EU Mission Commander for the European Union military mission to contribute to the training of the Malian Armed Forces (EUTM Mali) as from 3 July 2016.
   Article 2
   Decision (CFSP) 2015/2298 is hereby repealed.
   Article 3
   This Decision shall enter into force on 3 July 2016.

      Done at Brussels, 8 June 2016.

            For the Political and Security Committee

            The Chairperson

         W. STEVENS

      (1)  OJ L 14, 18.1.2013, p. 19.

      (2)  Political and Security Committee Decision (CFSP) 2015/2298 of 26 November 2015 on the appointment of the EU Mission Commander for the European Union military mission to contribute to the training of the Malian Armed Forces (EUTM Mali) and repealing Decision (CFSP) 2015/955 (EUTM Mali/3/2015) (OJ L 324, 10.12.2015, p. 13).


title: Decision of the European Parliament of 19 May 2010 on discharge in respect of the implementation of the European Union general budget for the financial year 2008, Section II — Council

text:
               25.9.2010

               EN

               Official Journal of the European Union

               L 252/22

         DECISION OF THE EUROPEAN PARLIAMENT
   of 19 May 2010
   on discharge in respect of the implementation of the European Union general budget for the financial year 2008, Section II — Council
   (2010/493/EU)
   THE EUROPEAN PARLIAMENT,
   having regard to the European Union general budget for the financial year 2008 (1),
   having regard to the final annual accounts of the European Communities for the financial year 2008 — Volume I (C7-0174/2009) (2),
   having regard to the Council's annual report to the discharge authority on internal audits carried out in 2008,
   having regard to the Annual Report of the Court of Auditors on the implementation of the budget concerning the financial year 2008, together with the institutions' replies (3),
   having regard to the statement of assurance as to the reliability of the accounts and the legality and regularity of the underlying transactions provided by the Court of Auditors pursuant to Article 248 of the EC Treaty (4),
   having regard to Article 272(10) and Articles 274, 275 and 276 of the EC Treaty and Article 314(10) and Articles 317, 318 and 319 of the Treaty on the Functioning of the European Union,
   having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (5), and in particular Articles 50, 86, 145, 146 and 147 thereof,
   having regard to Decision No 190/2003 of the Secretary-General of the Council/High-Representative for the Common Foreign and Security Policy concerning reimbursement of travel expenses of delegates of Council Members (6),
   having regard to the Interinstitutional Agreement between the European Parliament, the Council and the Commission, of 17 May 2006, on budgetary discipline and sound financial management (7),
   having regard to Rule 77 of, and Annex VI to, its Rules of Procedure,
   having regard to the report of the Committee on Budgetary Control (A7-0096/2010),

               1.

               Grants discharge to the Secretary-General of the Council in respect of the implementation of the Council's budget for the financial year 2008;

               2.

               Sets out its observations in the resolution that forms an integral part of its Decision on discharge in respect of the implementation of the European Union general budget for the financial year 2008, Section II — Council;

               3.

               Instructs its President to forward this Decision and the resolution that forms an integral part of it to the Council, the Commission, the Court of Justice of the European Union, the Court of Auditors, the European Ombudsman and the European Data Protection Supervisor, and to arrange for their publication in the Official Journal of the European Union (L series).

            The President

         Jerzy BUZEK

            The Secretary-General

         Klaus WELLE

      (1)  OJ L 71, 14.3.2008.

      (2)  OJ C 273, 13.11.2009, p. 1.

      (3)  OJ C 269, 10.11.2009, p. 1.

      (4)  OJ C 273, 13.11.2009, p. 122.

      (5)  OJ L 248, 16.9.2002, p. 1.

      (6)  Decision stemming from the Rules of Procedure of the Council of 22 July 2002 (OJ L 230, 28.8.2002, p. 7).

      (7)  OJ C 139, 14.6.2006, p. 1.
    ---documentbreak---

               25.9.2010

               EN

               Official Journal of the European Union

               L 252/24

         RESOLUTION OF THE EUROPEAN PARLIAMENT
   of 16 June 2010
   with observations forming an integral part of its Decision on discharge in respect of the implementation of the European Union general budget for the financial year 2008, Section II — Council
   THE EUROPEAN PARLIAMENT,
   having regard to the European Union general budget for the financial year 2008 (1),
   having regard to the final annual accounts of the European Communities for the financial year 2008 — Volume I (C7-0174/2009) (2),
   having regard to the Council’s annual report to the discharge authority on internal audits carried out in 2008,
   having regard to the Annual Report of the Court of Auditors on the implementation of the budget concerning the financial year 2008, together with the institutions’ replies (3),
   having regard to the statement of assurance as to the reliability of the accounts and the legality and regularity of the underlying transactions provided by the Court of Auditors pursuant to Article 248 of the EC Treaty (4),
   having regard to Article 272(10) and Articles 274, 275 and 276 of the EC Treaty and Article 314(10) and Articles 317, 318 and 319 of the Treaty on the Functioning of the European Union,
   having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (5), and in particular Articles 50, 86, 145, 146 and 147 thereof,
   having regard to Decision No 190/2003 of the Secretary-General of the Council/High-Representative for the Common Foreign and Security Policy concerning reimbursement of travel expenses of delegates of Council Members (6),
   having regard to the Interinstitutional Agreement between the European Parliament, the Council and the Commission, of 17 May 2006, on budgetary discipline and sound financial management (7) (IIA),
   having regard to its resolution of 25 November 2009 with observations forming an integral part of the Decision on discharge in respect of the implementation of the European Union general budget for the financial year 2007, Section II — Council (8),
   having regard to Rule 77 of, and Annex VI to, its Rules of Procedure,
   having regard to the report of the Committee on Budgetary Control (A7-0096/2010),

               A.

               whereas the Council, represented by the Spanish Presidency, has agreed to reassess the alleged gentlemen’s agreement dating back to 1970,

               B.

               whereas ‘citizens have the right to know how their taxes are being spent and how the power entrusted to political bodies is handled’ (9),

               C.

               whereas the conclusions of the European Council of Cologne of 3 and 4 June 1999 envisage giving operational capacities to the Council in the field of a strengthened common European security and defence policy (CESDP),

               D.

               whereas Council Decision 2004/197/CFSP (10) established a mechanism for administering the financing of the common costs of EU operations having military or defence implications, called ATHENA, and whereas that Decision, together with the Decision 2004/582/EC of the Representatives of the Governments of the Member States, meeting within the Council of 28 April 2004 concerning privileges and immunities granted to ATHENA (11), grants privileges and immunities to ATHENA and gives operational power to the Council,

               E.

               whereas Council Decision 2000/178/CFSP of 28 February 2000 on the rules applicable to national experts in the military field on secondment to the General Secretariat of the Council during the interim period (12) and Council Decision 2001/80/CFSP of 22 January 2001 on the establishment of the Military Staff of the European Union (13) specify that expenditure arising from the secondment of military experts is to be charged to the Council budget,

               1.

               Notes that in 2008 the Council had available commitment appropriations amounting to a total of EUR 743 million (2007: EUR 650 million), with a utilisation rate of 93,31 %, considerably higher than in 2007 (81,89 %), but still below the average of the other institutions (95,67 %);

               2.

               In view of the problems encountered in the 2007 and 2008 discharge procedures, reaffirms its position taken in its decision of 25 April 2002 on discharge in respect of the financial year 2000 (14) that ‘[…] the European Parliament and the Council have not, in the past, scrutinised the implementation of their respective sections of the budget; considers that in view of the increasingly operational nature of expenditure, financed under the Council’s administrative budget, in the fields of foreign affairs, security and defence policy, and justice and home affairs, the scope of this arrangement should be clarified with a view to distinguishing traditional administrative expenditure from operations in these new policy areas’;

               3.

               Considers that in view of the increases in administrative expenditure and especially due to the possible presence of expenditure of an operational nature, the expenditure of the Council ought to be scrutinised in the same way as that of the other EU institutions as part of the discharge procedure provided for by Article 319 of the Treaty on the Functioning of the European Union;

               4.

               Considers that such scrutiny is based on the following written documents submitted by all institutions:

                           —

                           accounts of the preceding financial year relating to the implementation of the budget,

                           —

                           a financial statement of the assets and liabilities,

                           —

                           annual activity report on their budget and financial management,

                           —

                           annual report of the internal auditor,

                     as well as an oral presentation given in the meeting of the Committee responsible for the discharge procedure;

               5.

               Expects the future presence of all institutions, represented at appropriate level, during the plenary debate on discharge;

               6.

               Rejects the Council’s suggestion that the fact that Parliament and the Council have not, in the past, scrutinised the implementation of their respective sections of the budget was the result of a ‘gentlemen’s agreement’ (Resolution recorded in the minutes of the Council meeting of 22 April 1970); considers the gentlemen’s agreement not to be a binding document, and the interpretation attributed to it by the Council to be exceedingly wide;

               7.

               Believes that the preparation of the budget and the discharge of the budget are two separate procedures and that the gentlemen’s agreement between Parliament and the Council over the preparation of their respective sections of the budget must not absolve the Council of its responsibility to be fully accountable to the public for the funds placed at its disposal;

               8.

               Believes that the 2008 discharge takes place at a crucial time, when a formal agreement on the discharge process for the new European External Action Service (EEAS) must be set out clearly to ensure credibility through full transparency, and calls on Council to ensure that it submits to Parliament, before the end of the 2008 discharge procedure, concrete, detailed and all-encompassing plans for the staffing, organisational and control structures of the EEAS, including EU military staff, the Situation Centre, the GSC’s Crisis Management and Planning Directorate, the Civilian Planning and Conduct Capability, as well as all staff in the General Secretariat working on Foreign and Security Policy, showing in particular the increase and allocation of staff and the budgetary implications provided for and to immediately take part in the negotiations with the budgetary authority on the basis of the proposals submitted;

               9.

               Stresses that this year’s granting of discharge cannot be taken into account for granting of discharge in the years to come unless the Council makes considerable progress in the areas of concern referred to in paragraph 5 of Parliament’s resolution of 25 November 2009;

               10.

               Reiterates that Council should be present at the Parliament for the presentation of the Court of Auditors’ Annual Report and for the budget discharge debate each year;

               11.

               Calls on the Council together with the European Parliament, in their capacity as joint budgetary authorities, to establish, with a view to improving the exchange of information on their respective budgets, an annual procedure within the discharge procedure; under this procedure, the President of the Council, accompanied by the Secretary-General of the Council, would meet officially with the Committee on Budgetary Control or a delegation thereof made up of its chair, the coordinators and the rapporteur, with a view to providing all the information needed regarding the execution of the Council’s budget; suggests also that the chair of the competent committee should regularly and in an appropriate form provide that committee with information regarding those discussions;

               12.

               Encourages the Spanish Presidency to review the informal arrangement covering the Council budget discharge and calls for an undertaking for this to be included in the review of the Financial Regulations and to be in place for the start of the new financing period after 2013 and calls for discussions to be concluded before 15 October 2010;

               13.

               Reminds the Council of its position as expressed in paragraph 12 of its resolution of 24 April 2007 (15) on the discharge for the financial year 2005, as follows: ‘Calls for maximum transparency in the area of Common Foreign and Security Policy (CFSP); requests the Council, in accordance with point 42 of the Interinstitutional Agreement […], to make sure that no operating CFSP expenditure appears in the Council’s budget; reserves the right to take the necessary steps, where appropriate, if the agreement is infringed’;

               14.

               Acknowledges the fact that the Council has provided for various formats for consulting and keeping Parliament informed on the development of the CFSP; considers, however, that the annual report from the Council on the main aspects and basic choices of the CFSP, presented to Parliament in application of point 43 of the IIA, is restricted in its scope to a description of CFSP common positions, joint actions and implementing decisions and that more extensive information should be provided in future years for the discharge exercise;

               15.

               Reiterates its request to the Council to provide detailed information on the nature of expenses, within its Title 3 (Expenditure arising out of the institution’s performance of its specific missions), in order to enable Parliament to verify that all the expenditure is in conformity with the IIA and that none of the expenditure is of an operational nature;

               16.

               Is concerned by the lack of transparency of the cost incurred by the activities, in particular the missions carried out by the special representatives and asks for a detailed breakdown of the expenditure of the special representatives and their missions budget to be published on the internet;

               17.

               Asks the Court of Auditors why there is no mention of the unresolved problems, as pointed out in Parliament’s above-mentioned resolution of 25 November 2009, in its Annual Report on 2008 concerning the Council;

               18.

               Notes the comment made by the Court of Auditors in paragraph 11.10 of its 2008 Annual report on the lack of compliance with the provisions of Article 5(3) of the Financial Regulation as regards continued (2005–2008) over-budgeting of the Secured European System of Automatic Messaging (SESAME); takes note of the Council’s reply and its intention to improve the coordination on structures for the governance of major IT projects;

               19.

               Welcomes the audits carried out by the Council’s internal audit service in 2008 (eight financial audits and one mixed audit), as well as the considerable share of their recommendations which have been accepted; points out, however, that the note on this issue which was submitted to the discharge authority was of a rather general nature, and requests more detailed information on the implementation of audit recommendations;

               20.

               Welcomes the new integrated system for management and financial control (SAP), in operation since 1 January 2008, which has enabled budget savings and gains in efficiency to be made for the three institutions involved (the Council, the Court of Auditors and the Court of Justice);

               21.

               Welcomes the achievements on consolidation of the organisation after the EU enlargements of 2004 and 2007, notably centralisation of the translation units and the recruitment of officials from the new Member States; welcomes also the introduction of the flexible time system, which contributes to a better balance between work and private life; notes, however, the low occupancy rate of the posts in the establishment plan (on average 90 %; in 2007 — 86 %);

               22.

               Notes that the considerable increase in advance payments for the Residence Palace (EUR 70 million instead of EUR 15 million as envisaged, with an aim of subsequent reduction of the overall cost of the acquisition) was made possible by the global under-spending of the budget (85,7 % implementation rate), and calls for buildings policy to be detailed in future annual reports to allow proper scrutiny in the discharge process;

               23.

               Is of the opinion that the annual budget for the permanent President of the European Council should be separated from the Council’s budget and presented as a new budget section as from 2012;

               24.

               Welcomes the undertakings of the Spanish Presidency on clarification of the discharge procedure to show full accountability of the Council’s administrative budget to Parliament, and asks for a firm commitment of the successive presidencies to carry on with this work in the same spirit.

      (1)  OJ L 71, 14.3.2008.

      (2)  OJ C 273, 13.11.2009, p. 1.

      (3)  OJ C 269, 10.11.2009, p. 1.

      (4)  OJ C 273, 13.11.2009, p. 122.

      (5)  OJ L 248, 16.9.2002, p. 1.

      (6)  Decision stemming from the Rules of Procedure of the Council of 22 July 2002 (OJ L 230, 28.8.2002, p. 7).

      (7)  OJ C 139, 14.6.2006, p. 1.

      (8)  OJ L 19, 23.1.2010, p. 9.

      (9)  The European Transparency Initiative.

      (10)  OJ L 63, 28.2.2004, p. 68.

      (11)  OJ L 261, 6.8.2004, p. 125.

      (12)  OJ L 57, 2.3.2000, p. 1.

      (13)  OJ L 27, 30.1.2001, p. 7.

      (14)  OJ L 158, 17.6.2002, p. 66.

      (15)  OJ L 187, 15.7.2008, p. 21.