Keeper liability with the obligation of the Entity in Charge of Maintenance
With the concept of the Entity in Charge of Maintenance, a new player has entered the environment of those involved in the life of a wagon, one which contributes greatly to transport safety. To what extent do the keeper and his ECM interact?
The role of the keeper and his obligation to maintain wagons in good technical condition
The definition of the keeper in Directive 2008/110/EC Article 3, amending the Safety Directive 2004/49/EC, is based on the definition of the keeper contained in Article 2 CUV and reads as follows: “‘Keeper’ means the person or entity that, being the owner of a vehicle or having the right to use it, exploits the vehicle as a means of transport and is registered as such in the National Vehicle Register (NVR) provided for in Article 33 of 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”. In line with the General Contract of Use for Wagons (GCU) Article 7.1, the keeper shall ensure that his wagons are technically admitted in accordance with the national and international laws and regulations in force at the time of admission, and that they remain technically admitted throughout the period of their use. The keeper retains his economic and operational rights over his wagons whilst they are being used by the railway undertakings. Provided that the keeper observes the duties incumbent upon him by virtue of this article, user railway undertakings must accept the wagons within the scope of their commercial service and must handle them “with due diligence”.
In addition to that of the keeper, the role of the Entity in Charge of Maintenance is important too, all the more since Regulation (EU) 2019/779. Indeed, the obligation for each keeper to maintain wagons in good technical condition is of paramount importance for the safety of rail transport. The concept of Entity in Charge of Maintenance (ECM) was introduced by European secondary legislation, i.e. Regulation (EU) 2019/779 laying down detailed provisions concerning a certification scheme for ECMs of vehicles, and has been incorporated into GCU Article 7.2 as follows: “(…) For the purposes of this contract and vis-à-vis the other signatories, the keeper is considered to be, and have the responsibilities of, the ECM for his wagons”. This article is worded such that the keeper shall ensure that his wagons are maintained in accordance with the regulations in force, appoint a certified ECM, and ensure that the latter performs all of its assigned tasks.
The role of the ECM
According to the regulation, the ECM shall set up a maintenance system so that any vehicle for whose maintenance it is responsible is in a safe operating condition. The maintenance of a vehicle is divided into four functions:
(a) the management function, which is to supervise and coordinate the other three maintenance functions and ensure that the vehicle is in a condition to ensure safety in the rail system;
(b) the maintenance development function, which is to take responsibility for the management of maintenance documentation, including configuration management, based on design and operational data as well as performance and feedback;
(c) the fleet maintenance management function, which is to manage the removal of vehicles for maintenance and their return to operation after maintenance;
(d) the maintenance execution function, which is to perform the required technical maintenance on a vehicle or vehicle parts, including the preparation of documents to be released.
To obtain its certificate, the ECM must demonstrate that it meets the requirements of Annex II of Regulation (EU) 2019/779 laying down detailed provisions concerning a certification system for vehicle maintenance entities.
The role of the ECM as the keeper’s auxiliary
Discussions are currently ongoing on the coherence of GCU Article 7 with Regulation (EU) 2019/779, and the GCU is set to be adapted in the near future in order to achieve full consistency with the terminology of the regulations in force. CIT is involved in the discussions through the UIC Wagon Users Study Group.
Furthermore, before being placed in service and used on the network every vehicle is assigned by its owner to an entity responsible for its maintenance. This addition of the ECM as the technical contact point for the maintained and overhauled vehicles vis-à-vis the keeper, who is himself responsible for the maintenance of the wagons vis-à-vis the user railway undertaking, therefore has direct repercussions on Article 9 § 2 CUV “Liability for servants and other persons”. Since the ECM is a third party that interacts with the vehicles on behalf of the keeper, this introduces a wider keeper liability regime.
Concerning liability in the event of damage caused by a wagon, GCU Article 27 provides that the keeper and previous user shall be liable for damage caused by the wagon when they can be shown to be at fault. In this case, the keeper shall be presumed to be at fault if he has not correctly fulfilled his duties as these arise from GCU Article 7, i.e. the obligation of the wagon keeper to ensure the technical admission and maintenance of his wagons. Where the user RU is partly responsible for the damage, the compensation shall be borne by each party in proportion to its respective share of responsibility.
 See GCU text from 1 January 2022 under https://gcubureau.org/wp-content/uploads/Contract/2022/20220101_GCU_EN_FULL.pdf
 Commission Implementing Regulation (EU) 2019/779 of 16 May 2019, laying down detailed provisions on a system of certification of entities in charge of maintenance of vehicles pursuant to Directive (EU) 2016/798 of the European Parliament and of the Council and repealing Commission Regulation (EU) No 445/2011, under https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019R0779&from=FR
 Directive (EU) 2016/798 of the European Parliament and of the Council of 11 May 2016 on railway safety (recast), Article 14 § 2.
 Directive (EU) 2016/798 of the European Parliament and of the Council of 11 May 2016 on railway safety (recast), Article 14 § 3.
 Commission Implementing Regulation (EU) 2019/779 of 16 May 2019, Article 9 §2, and Article 10.
 See GCU text from 1 January 2022 under https://gcubureau.org/wp-content/uploads/Contract/2022/20220101_GCU_EN_FULL.pdf Article 7.
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