WORKSHOP BEWAG and UIP Brussels 28 th April 2014 GCU : Practical Guide GCU Wagon environment until 1 st July st July 2006 : Coming into force of the new COTIF Wagon environment as of 1 st July 2006 Pyramid of legal standards Relationship between UR CUV and GCU Specificity of UR CUV : A few examples Why the GCU ? What is in the GCU ? 1

WORKSHOP BEWAG and UIP Brussels 28 th April 2014 Interpreting and applying the GCU « Comments on the 2014 GCU » Chapter VI : Liability in the event of damage caused by a wagon Chapter VII : Liability for staff and other persons Article 30 : Accountancy and payment The evolution of the GCU The work of the members, the national associations and the UIP Presentation of the GCU Website 2

Wagon environment until 1 st July 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 3

AUR CIV Uniform Rules concerning the Contract of International Carriage of Passengers by Rail BUR CIM Uniform Rules concerning the Contract of International Carriage of Goods by Rail CRID 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 EUR CUI Uniform Rules concerning the Contract of Use of Infrastructure in International Rail Traffic FUR APTU Uniform 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 GUR ATMF Uniform Rules concerning the Technical Admission of Railway Material used in International Traffic 1 st July 2006 : Coming into force of the new COTIF Convention relating to international rail transports 4 Keepers and RUs are concerned by appendix D: RU CUV.

Wagon environment as of 1 st 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 5

Pyramid of legal standards Constitutionality block : National constitutions Conventionality block : International treaties and conventions, including the COTIF Legality block : national laws and ordinances Contracts block : international conventions under private law, including the GCU 6

7 Relationship between UR CUV and GCU UR CUV art. 1 : Scope of application GCU Chap. I : Object, scope of application UR CUV art.4: Liability in the event of loss or of damage to a vehicle GCU 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 vehicle GCU Chap. VI: Liability in the event of damage caused by a wagon UR CUV art.9: Liability for staff and other persons GCU Chap. VII: Liability for staff and other persons

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 8

Why the GCU ? On 1 st 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

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 10

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 11

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. 12

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 negotiable As a consequence, Article 28 of the GCU must be strictly applied by the members 13

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 14

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) CIT GLW(Convention UIP/UIC/ERFA) GCU Joint CommitteeMembers UIPUIC-ERFA (NAs) (RUs) 15 GCU

The evolution of the GCU Presentation of the GCU Website 16