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WORKSHOP BEWAG and UIPBrussels 28th April 2014

GCU : Practical Guide GCU

Wagon environment until 1st July 20061st July 2006 : Coming into force of the new COTIFWagon environment as of 1st July 2006Pyramid of legal standardsRelationship between UR CUV and GCUSpecificity of UR CUV : A few examplesWhy the GCU ?What is in the GCU ?

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WORKSHOP BEWAG and UIPBrussels 28th April 2014

Interpreting and applying the GCU

« Comments on the 2014 GCU »Chapter VI : Liability in the event of damage caused by a wagonChapter VII : Liability for staff and other personsArticle 30 : Accountancy and payment

The evolution of the GCU

The work of the members, the national associations and the UIPPresentation of the GCU Website

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Wagon environment until 1st July 2006

2 types of wagon status For RU wagons : RIV (O) For P wagons :RIP (appendix to CIM of COTIF 1980)UIC leaflet 433 (O) A clear framework for handling the wagons by RUs and keepers, irrespective of where and under which RU’s custody they were kept

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A UR CIV Uniform Rules concerning the Contract of International Carriage of Passengers by Rail

B UR CIM Uniform Rules concerning the Contract of International Carriage of Goods by Rail

C RID Regulation concerning the International Carriage of Dangerous Goods by Rail

D UR CUV

Uniform Rules concerning Contracts of Use of Vehicles in International Rail Traffic

E UR CUIUniform Rules concerning the Contract of Use of Infrastructure in International Rail Traffic

F UR APTUUniform Rules concerning the Validation of Technical Standards and the Adoption of Uniform Technical Prescriptions applicable to Railway Material intended to be used in International Traffic

G UR ATMF Uniform Rules concerning the Technical Admission of Railway Material used in International Traffic

1st July 2006 : Coming into force of the new COTIF

Convention relating to international rail transports

Keepers and RUs are concerned by appendix D: RU CUV.

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Wagon environment as of 1st July 2006 End of the double « wagon » status, establishment of the single « wagon » status

RIV for « RU » wagons and UIC leaflet 433 (O) for « P » wagons lapsed

The concept « wagon owner » disappears and is replaced by « wagon keeper »

The UR CUV are basically soft law, the obligatory provisions of the UR CUV are the exception

Contractual freedom between partners becomes the rule,

Rail freight professionals therefore have to build new contractual relationships and develop new working methods

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Pyramid of legal standards

Constitutionality block : National constitutions

Conventionality block : International treaties and conventions, including the COTIF Legality block : national laws and ordinancesContracts block : international conventions under private law, including the GCU

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Relationship between UR CUV and GCU

UR CUV art. 1 : Scope of applicationGCU Chap. I : Object, scope of application

UR CUV art.4: Liability in the event of loss or of damage to a vehicleGCU Chap. V: Liability in the event of loss or of damage to a wagon

UR CUV art.7: Liability in the event of damage caused by a vehicleGCU Chap. VI: Liability in the event of damage caused by a wagon

UR CUV art.9: Liability for staff and other personsGCU Chap. VII: Liability for staff and other persons

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Specificity of UR CUV : A few examples UR CUV art.4 : Liability in case of loss or damage§ 1 : The rail transport undertaking to which the vehicle has been provided….. Shall be liable…. unless it proves that the loss or damage was not caused by fault on its part§ 5 : The contracting parties may agree provisions derogating …. UR CUV art.7 : Liability for damage caused by a vehicle§ 1 : The person who, pursuant to a contract referred to in Article 1 (contract of use), has provided the vehicle…. shall be liable for the damage caused by the vehicle when he is at fault ;§ 2 : The contracting parties may agree provisions derogating .… As a result, apart from very few exceptions, like §1 of Art. 9, the contracting parties of the contract of use may waive the provisions of the UR CUV.

UR CUV are basically soft law

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Why the GCU ?

On 1st July 2006, at international level, RUs and keepers only have at their disposal the UR CUV, that is a contractual framework with infinite possible variations

UR CUV are a crucial framework and legal basis for the profession but in no way a clear contractual framework facilitating management and running of wagons or affording wagon investors legibility and legal security. Furthermore, at national level, rules may vary from one State to another, even if those national rules were based on the UR CUV.

After having highlighted the need to get together to draft some clear rules, the economic players concerned needed to draw up a framework and some working methods. Thanks to the hard work invested by UIP and UIC/ERFA during these long negotiation sessions, the profession had a clear and operational contract at its disposal by 1 July 2006.

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What is in the GCU ?

Overall, the GCU: Has the UR CUV as contractual framework

Is in keeping with the European regulation Picks up some of the provisions of the UIC leaflet 433(O) Includes some of the RIV provisions Integrates in its appendices some the UIC technical leaflets Is complemented by the CIT wagon note Includes an appendix (8) allowing for further development of the GCU

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Interpreting and applying the GCU

The « Comments on the 2014 GCU » Help members to decipher and better use the GCU

Give clear explanations based on the fundamentals, the interpretation and the application of each article and appendix of the GCU

Where necessary, the GCU articles are completed by some provisions of the UR CUV and commented with excerpts from the OTIF bulletin related to the drafting of the UR CUV

The « Comments on the 2014 GCU » were drafted by AFWP and put at the disposal of the National Associations of the UIP

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Liability in the event of damage caused by a wagon:

GCU article 27.1 – (cf. UR CUV article 7) The keeper or a previous user subject to this contract shall be liable for damage caused by the wagon when they can be shown to be at fault… Comments by Dr Rainer Freise (Excerpt from OTIF bulletin 3/2000)

« The consequence of the restrictive wording of ‘for a reason ascribable to it’ is that proof has to be provided to show that a fault can be ascribed to the party entrusting the vehicle to another, it is not for the party entrusting the vehicle to prove that the fault does not lie with it. » « Where it cannot be proven that fault lies with the party having made the vehicle available, the user railway which, as a railway undertaking, is legally properly responsible for its rail operations, even where no fault is ascribable to it, remains liable. » Furthermore, hidden defect of the wagon has not been included in article 27 as an exemption from liability for the RU.

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Chapter VII : Liability for staff and other persons Articles 28 of the GCU and 9 § 1 of the UR CUV: principle of liability« The contracting parties shall be liable for their servants and other persons whose services they make use of for the performance of the contract, when these servants and other persons are acting within the scope of their functions. ». Who are the other persons whose services RUs make use of for the performance of the contract? : the IM and the RU(s) used for the execution of the contract of use. Which contract is it about ? : A contract of use (the GCU is not a contract of use) May the GCU members – contractual partners – contractually waive art. 9.1 of the UR CUV ? : No because

Article 9.1 of the UR CUV is not under soft law and thus is not negotiableAs a consequence, Article 28 of the GCU must be strictly applied by the

members

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Article 30 : Accountancy and interests  Article 30 : Accountancy and payment.« the EURO (ISO code: EUR) shall be used as the sole monetary unit for all accounts and payments».

Directive 2011/7/UE of 16 February 2011 « on combating late payment in commercial transactions » to be transposed latest 13 March 2013 in the Member States, provides explicitly for payment of interests on arrears and for compensation for recovery costs.

Art. 30 of the GCU must be in keeping with this European directive (Article 2 §§ 6 et 7). The rate of interests on arears is EURIBOR + 8 % minimum

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The evolution of the GCU The work of the members, the National Associations, the UIP and the Joint Committee

COTIF Member States(Mirror groups)

UR CUV (Appendix D COTIF)

CITGLW (Convention UIP/UIC/ERFA)

GCU Joint Committee Members

UIP UIC-ERFA

(NAs) (RUs)

GCU

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The evolution of the GCU

Presentation of the GCU Website

http://www.gcubureau.org/