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CIT – UIC WORKSHOP
CIT – UIC WORKSHOP: “COTIF/CUV UR and GCU: Learning from practice to further developments” - Summary of the workshop
The workshop on 10 September 2024 was an opportunity to bring together the main stakeholders in wagon law and to set out the main challenges in this field for the coming years. The event was co-organised by the International Rail Transport Committee (CIT) and the International Union of Railways (UIC) and attended by the Intergovernmental Organisation for International Carriage by Rail (OTIF), the European Railway Agency (ERA), the International Union of Wagon Keepers (UIP) and members of the UIC Wagon Users Study Group, as well as interested CIT and UIC members.
The one-day conference began with an assessment of the current situation and the main lines of thinking for the future direction of the General Contract for the Use of Wagons (GCU). The assessment is clear: the use of wagons requires better competitiveness through harmonization and a common understanding of the regulations by all parties involved, and through simplification of these regulations and fewer court proceedings. The strengths of the GCU are the concept of legal custody of the wagon by the railway undertaking and the effective management of damage through the three main steps of withdrawal, repair and compensation [PW1] which, together with the application of GCU Appendix 10, are coherent, effective and well applied and accepted in the operational management of wagons. The weaknesses of the GCU appear to be points on which the sector will have to concentrate and improve in the short to medium term: the scope of the GCU, which is different from that of COTIF Appendix D/CUV UR; the fact that it is a multilateral contract under private law and that it coexists with layers of regulations under international law, secondary law of the European Union and national laws (also the complexity resulting from different interpretations by NSAs (national safety authorities)); the lack of coercive measures in the event of non-application of the GCU; and representativeness in terms of governance for amendments to the text of the GCU, as well as the procedure for these amendments, all seem to be elements that need to be improved. On the legal aspects, the GCU is a multilateral contract based on the international convention COTIF 1999 and its Appendix D/CUV Uniform Rules, which is non-mandatory law. There are also significant gaps in terms of the liability rules between the CUV UR and the GCU (Article 7 CUV UR / Article 27 GCU; Article 9§2 (formerly, now Article 9§3) of 2014 and Article 28 of the GCU, for example), or also in terms of consistency within EU law (definitions & wording; GCU Article 7.2 - technical admission of vehicles). These heterogeneous developments are due to the constant evolution of the GCU since July 2006, whereas the CUV UR date from 1999 but have changed very little since then, with the latest revision dating from 2014 and currently only ratified by 17 OTIF Member States (2 OTIF Member States are in the process of ratification; 22 OTIF Member States are required for the CUV UR version 2014 to enter into force). On this point, the CUV UR revision process is quite clear: the OTIF Revision Committee has very few rights in terms of amending the CUV UR. It is first and foremost the OTIF General Assembly that has control over the process for amending the text of the CUV UR. OTIF's representatives also informed attendees that the next General Assembly on 25-26 September 2024 in Bern would be used to approve OTIF's work programme for the period 2025-2027, and it was planned to launch a general consultation on whether or not it was necessary to amend the CIV UR, CIM UR, CUV UR and CUI UR and another open consultation on the issue of liability for damage caused by vehicles and the relevant rules within CUV UR.
Through the dedicated ad hoc group, the sector has been working for some time on the role of the Entity in Charge of Maintenance in the operational and legal environment of wagon law. Indeed, with the current situation the RU is responsible for restoring the wagon’s fitness to run and the challenge is to incorporate the role of the ECM, with the Keeper increasingly involved in the process. It may be for instance that the Keeper/ECM 3 prepares a common list of maintenance workshops in accordance with the ECM guidelines and the RU then selects a workshop from this list with a framework contract with ECM 4 (Workshop). The recommended action plan is to give the GCU greater legal certainty and adapt the GCU rules to determine a clear process to restore vehicles’ fitness to run.
Legal and railway experts are working out a first draft of the amendment proposals, considering the feedback of the working group, legal experts, ERA, and NSAs. The proposals will be discussed between the associations (ERFA, UIC and UIP) and finalized by the first quarter of 2025. Practical examples of the role of the ECM were explained by a participant who has the role of both RU and ECM and what this implies on a day-to-day basis in terms of operational management, and the obligations and rights that each role entails for a railway company. ERA explained Clarification Note ERA1208-011 V 1.0 dated 20 November 2023 with some statements: it is expected that the RU is able to demonstrate the implementation of GCU Article 12 within its Safety Management System (SMS) in accordance with the requirements set out in points 3.1.1.1 and 5.1.3 (c) of Annex I to Regulation (EU) 2018/762 and the required competence by application of its competence framework pursuant to point 4 of Annex I to Regulation (EU) 2018/762. ERA is at the sector’s disposal to continue to respond to any misunderstandings and assist the sector in the correct application of European regulations in accordance with Annex 1 2018/762 on the RU SMS side and Annex 2 of the ECM Regulation 2019/779 on the ECM management side. On this point, the developments in GCU Appendix 9 are directed to define two separate safety “schematics”: the first relates to safe train operation under the responsibility of the RU, while the second is related to the safe vehicle condition under the responsibility of the ECM. For the moment, the GCU does not properly reflect these two schematics, and GCU Appendix 9 includes many operational aspects on the technical condition of the wagon and its transfer between RUs. The relevance of linking GCU Appendix 9 - Annex 1 on the catalogue of irregularities, which sets out the follow-up measures to be taken after wagon damage, with GCU Appendix 10 and its repairs modules, is a clear idea for a further important evolution of the General Contract of Use. Operational practice and the necessary textual and organisational improvements (GCU expert hotline; sharing experiences; clear definitions of repair costs and what this includes; handbook on the application of the GCU, etc.) and legal practice with the GCU are connected, and this link reminds us of the interdependence of the two areas in the sense that many cases and disputes even lead to court actions. These legal actions relate in particular to cases of damage to wheelsets (cavities, shelling or flaking, flats on the wheel tread) or derailments. Some cases may also involve the attempt to identify liability of the previous RUs in the transport chain, leading us to conclude that many players are parties to several contractual relationships: the transport contract itself, the wagon hire contract, the maintenance contracts between the keeper and the maintenance workshop, the insurance contracts, the relationship with infrastructure manager(s), all under the relevant international and national regulations, which feed into the jurisprudence of the courts and the decisions of the judges. The Gotthard case is, both in fact and in the theory of international law of COTIF and Swiss law, a concrete demonstration which makes it possible to relate all these layers of regulations and the complexity of the legal interactions during a wagon accident. The Final Report of the Joint Network Secretariat dated 11 July 2024 is attached to this summary of the workshop. Moreover, Motion 24.3823 for the revision of the liability rules for the wagon keeper to a strict liability was filed on 27 August 2024 and states that the Swiss government should work within OTIF to “implement a fairer distribution of risks between wagon keepers and railway undertakings, by proposing an adaptation of the current law on contracts for the use of vehicles in international rail traffic (CUV) and the contract for the international carriage of goods by rail (CIM)”. The debate on changes to the existing rules from liability of proven fault to strict liability for the keeper will continue to stimulate sectoral and intra-governmental exchanges.
Many lessons are to be drawn from this event on the development of wagon law and its practical application to operational issues, with some assessments: what direction should the international law/COTIF CUV UR take in the framework of further development of the GCU, and how to make this GCU more flexible, harmonised and simpler for the railway sector? This is the key challenge for 2025 and in the coming years.