Central Commissions for Navigation on the Rhine (CCNR) The Central Commission for Navigation on the Rhine (CCNR)[1] is usually known as the first international organisation ever created. Its creation was decided at the Vienna Congress in 1815[2] and its first constitutive treaty, the Convention of Mainz, was signed on March 31, 1831. This convention was replaced on October 17, 1868 by the Revised Convention for the Rhine Navigation, also known as the Act of Mannheim, which was itself amended by the Convention of Strasbourg of November 20, 1963 and several subsequent additional protocols. The CCNR, which is located in Strasbourg, France, has five member States (Belgium, France, Germany, the Netherlands and Switzerland) and a Secretariat of nineteen staff members. The CCNR has a hybrid structure, drawing both from an international diplomatic conference and a regular international organisation. It thus has two organs: the plenary session, a biannual meeting of Member States' representatives, where decisions are taken by unanimity of votes, and a permanent Secretariat in charge of the administrative tasks. The decisions taken by the plenary session are prepared in various working groups and committees, composed of national experts of member and observer States. Professional organisations also participate as observers in the work of the organisation. The CCNR's mission essentially boils down to guaranteeing the principle of freedom of navigation on the Rhine, as posited by the Vienna Congress[3] and further regulated in the constitutive treaty of the CCNR. For this purpose, it is endowed with rule-making powers on matters dealing with security of navigation. As such, it has enacted, among others, rules of navigation on the Rhine, technical prescriptions for the construction of vessels, and qualification requirements for the crew. The CCNR is further charged with securing the fair and impartial application of its regulations, and provides for judicial and non-judicial venues to settle disputes arising between individuals and Member States, out of the application or interpretation of its rules.[4] The CCNR also has the mission to promote navigation on the Rhine, which represents 80% of the European transport on inland waterways. In the legal field, the CCNR strives to pinpoint the legal impediments in accessing the European market of inland navigation and to suggest ways to simplify and further harmonise the legal framework. Recent developments: Mutual recognition of certificates According to the Revised Convention, navigation on the Rhine is open to vessels which comply with the regulations of the CCNR.[5] Compliance with the Rhine regime is normally attested by Rhine certificates delivered by Member States' authorities in accordance with the CCNR's regulations. It is nowadays generally conceded that most inland navigation regulations ought not be specific to a river basin anymore. Efforts have therefore been made by the various European institutions dealing with inland navigation, to harmonise their regulations and create a Europe-wide regime. In this endeavour, the CCNR has adopted an additional protocol to its constitutive treaty.[6] This additional Protocol enables the CCNR to recognise that certificates delivered by authorities of non-Member States, on the basis of regulations other than the CCNR's, can validly attest to compliance with the Rhine regime. This recognition process mainly concerns boat certificates, certificates for the transportation of dangerous goods and boatmaster's licences. Boat certificates Boat certificates attest the compliance with the technical prescriptions pertaining to the construction and equipment of vessels. According to its constitutive treaty, the CCNR has exclusive competence to enact technical prescriptions of vessels navigating on the Rhine.[7] The EU has a similar competence on Community waterways (other than the Rhine) and adopted a directive harmonising the technical prescriptions of vessels navigating on those waterways.[8] This directive divided the Community waterways into four different zones, for which a different level of technical requirements applies. The Rhine certificate was further recognised in this directive as valid on all Community waterways, since it attests the highest level of requirements.[9] Efforts have thereafter been made to allow recognition on the Rhine of Community certificates. In this endeavour, the European Commission and the CCNR have worked collaboratively, through a joint working group (so-called "JWG"), in order to amend the EC requirements and ensure their conformity with the CCNR requirements. This common work resulted in the adoption, on December 12, 2006, of a new EU Directive[10] replacing the previous one, which is to be transposed by Member States into national law by December 30, 2008.[11] As of this date, the Community certificate will attest compliance with the technical requirements contained in Annex II of the new Directive.[12] The CCNR, being satisfied that these requirements are materially equivalent to the CCNR's Regulation, is about to recognize the Community certificates on the Rhine as of January 1, 2009.[13] Technical requirements are meant to be regularly updated in order to keep pace with technical progress. Mechanisms of continuing cooperation between the EC and the CCNR are therefore needed to ensure that the Rhine regulation and the EU directive will be updated at the same pace and along the same line. The JWG, composed of national experts of the CCNR and of EU Member States, is the organ designed for this cooperation. It is entrusted with the preparation of the amendments to the technical requirements. Its proposals are then submitted to the CCNR committee in charge of these questions, which decides which of them are to be presented to the plenary session. In parallel, they are submitted to the European Commission, which is empowered to amend the annexes to the directive after a simple consultation of the European Parliament.[14] In exercising its implementing power, the European Commission is assisted by the inland navigation committee, composed of representatives of Member States,[15] which reviews the proposals of the JWG. The CCNR and the European Commission orally agreed to adopt the suggested amendments at the same point in time, in order to ensure the equivalence of both instruments over time. The JWG is not institutionalised, however, and uncertainties remain on its future functioning and significance. The European Commission tends to consider it as a working group of the European Commission, the CCNR being one participant thereof. It further defends the position that CCNR Member States which are also EU Member States are legally obliged, by the directive, to recognise the Community certificates, including on the Rhine. The CCNR, on the other hand, sees the JWG as an organ common to both institutions and claims that clear rules of procedures should be agreed upon in a memorandum of understanding, in order to guarantee genuine common work and continuing conformity of the two sets of rules. Moreover, it deems itself entitled to withhold recognition of Community certificates on the Rhine, should the material equivalence to the Rhine regulation not be maintained in the future. **** The two institutions have endeavoured to achieve a higher level of harmonisation within Europe, while respecting the role and identity of each organisation. The European Union takes advantage of the CCNR's expertise in the field, while the CCNR sees the geographical scope of its rules being extended by virtue of their adoption at the European Union level. Yet, the actual implementation of this system may not be as respectful of both institutions as was originally presented. The risk exists that the CCNR sees its exclusive competence in the field being slowly absorbed by the European Commission. The latter, on the other hand, may not be well equipped to take over the technical work involved without the support of the CCNR. In the end, the working method put in place is viewed as not fully satisfactory, and consideration is currently being given to improve the framework for cooperation in the field. Certificates for the transportation of dangerous goods Rules of safety for the transportation of dangerous goods on the Rhine (the so-called "ADNR") were adopted by the CCNR in 1972 and have been regularly updated since then. Among other requirements, this 600-page regulation stipulates that a craft transporting dangerous goods must have a "certificate of approval" delivered by a competent authority listed in the regulation, and that one of the crew members on board must have a "certificate as expert", which may be obtained after passing a qualifying examination attesting special knowledge of the regulation. The ADNR is drafted upon the model of the "European Agreement concerning the international Carriage of Dangerous Goods by Road" (so-called "ADR"), adopted in 1957 under the aegis of the UNECE.[16] In addition, a non binding resolution was adopted within the UNECE, whose content was materially identical to the ADNR.[17] In the mid 90s, States felt the need for a Europe-wide harmonisation in this field. The UNECE, which comprises 56 European Member States, was viewed as the better venue to achieve this goal. Following a proposal by the CCNR,[18] and with the active participation thereof, the UNECE transformed its non-binding resolution into an international agreement akin to the ADR. The "European Agreement concerning International Carriage of Dangerous Goods by Inland Waterway" (so-called "ADN") was signed on May 26, 2000 in Geneva and entered into force on February 29, 2008.[19] It consists of an Agreement and an "Annexed regulation", the content of which is identical to the ADNR, and which will enter into force on March 1, 2009. The ADN, unlike the ADNR, only applies to international transport of dangerous goods. Shortly after the entry into force of the ADN, the European Union adopted a framework directive on the inland transport of dangerous goods, covering road, rail and inland navigation transportation.[20] This directive contains three annexes, one for each mode of transportation, which simply refer respectively to the ADR, the RID and the Annexed regulation of the ADN.[21] According to this directive, the EU member States with internationally meaningful waterways[22] must transpose the Annexed regulation of the ADN into national law by June 30, 2011.[23] The latter will then apply to all transport operations (national and international) on internationally significant Community waterways, including in States which have not ratified the ADN. In other words, three instruments with the same content currently coexist in Europe. Mechanisms of cooperation among the various institutions involved have been established to maintain identical content of these instruments over time while avoiding duplication of work. The CCNR Member States prompted the adoption of the ADN with the intent that it would eventually replace the ADNR. This process is ongoing. The CCNR will recognise the ADN certificates (certificates as expert and certificates of approval) as valid on the Rhine as of January 1, 2009.[24] The CCNR further plans to adopt a resolution whereby it would abrogate the ADNR and declare that the Annexed regulation of the ADN is mandatory on the Rhine, including for national transport. As a result, the ADN certificates will be automatically valid on the Rhine and no ADNR certificates will be delivered any longer. Besides, the CCNR will recognise the certificates delivered on the basis of the directive as valid on the Rhine. This resolution should take effect on January 1, 2011. The CCNR used to amend the ADNR through a working group composed of national experts. A committee for dangerous goods would then decide which of the amendments proposed by the working group would be presented at the plenary session. The CCNR will now exercise its competence through the organs created by the ADN, namely the Safety Committee (composed of national experts of States) in charge of making proposals for amendments, and the Administrative Committee (composed of representatives of the Contracting Parties), which decides upon the amendments proposed by the Safety Committee. These organs are specific to the Agreement and remain distinct from any standing organ of existing organisations.[25] Meanwhile, the Agreement specifically foresees that these organs would be operated with the help of the various organisations competent in the field. Pursuant to the Agreement, "the Secretary-General of the United Nations and the Secretary-General of the Central Commission for the Navigation on the Rhine shall provide the Administrative Committee with secretariat services".[26] Likewise, the Safety Committee "shall function within the framework of the activities of the bodies of the Economic Commission for Europe, of the Central Commission for the Navigation of the Rhine and of the Danube Commission".[27] In practice, meetings are jointly organised by the UNECE and CCNR Secretariats. **** The harmonization in this field was achieved at the pan-European level through the conclusion of an international convention. This leads to a redefinition of the role of the various institutions involved, raising several legal issues. As it now stands, three out of five Member States of the CCNR have ratified the ADN. Switzerland and Belgium, not being party thereof, have no right to vote on the proposed amendments at the Administrative Committee,[28] and they are not entitled to issue ADN certificates. Granted, Belgium will soon issue ADN certificates on the mere basis of the EU directive. However, according to the general principles of treaty law, as recalled in the terms of the ADN, only States parties would be entitled to issue ADN certificates. As a result, the certificates issued by EU Member States which are not parties to the ADN won't be recognised by the other States parties to the ADN, as long as those States are not themselves bound by the EU directive. Furthermore, EU Member States who are not parties to the ADN will not be able to take part in the vote at the Administrative Committee and participate in the amendments of the rules. The European directive, noting the necessity to "adapt rapidly the Annexes to the Directives to the scientific and technical progress (.), in particular to take account of new provisions incorporated into the ADR, RID and ADN", entrusts the European Commission itself with the power to amend the annexes, after obtaining the advisory opinion of a committee composed of Member States representatives (so-called "regulatory procedure with scrutiny").[29] EU Member States which are not party to the ADN would then have the opportunity to participate in the decision through this committee. In practice, however, conformity between the Annexed regulation and the EU directive will only be maintained if the European Commission uses its implementing powers to merely incorporate the amendments decided at the Administrative Committee, i.e. if it delegates the exercise of its implementing powers to another institution. Divergence between the Annexed regulation and the directive would indeed entail the risk that the EU Member States who are also contracting parties of the ADN will be unable to comply with one of their international obligations without contravening the other. In this context, the role of the committee within the regulatory procedure with scrutiny should be limited to securing that the European Commission amends the annex along the lines decided at the Administrative Committee. Unlike the previously described situation on boat certificates, the European Union does not seem to be concerned by the fact that the actual work will be conducted by non EU working groups, where not all EU member States can participate and non EU member States do participate. Switzerland, as a non EU member State, will in any event have to ratify the ADN if it wants to keep its competence to deliver certificates that are recognised on the Rhine and elsewhere. The idea that all institutions involved keep their competence, yet exercise it through common organs, finds its limit here, as Member States practically cannot participate in the exercise of this competence unless they ratify the ADN. The present situation therefore appears to be transitional. In the end, the sole legal basis for the certificates will lie with the ADN and the work will be conducted by the organs it has created. Involvement of the other organisations will at most limit itself to secretarial tasks. The CCNR committee for dangerous goods will still periodically meet, in order to coordinate the proposals of the CCNR Member States at the ADN Administrative Committee and to ensure coherence between the Annexed regulation and the other CCNR regulations. Yet, the competence of the CCNR in the field is likely to slowly fade away. Boat master's certificates Since 1922, the CCNR requires that all boat masters hold a so-called "Rhine patent", attesting their proficiency to navigate on the Rhine, as set forth in the CCNR Patent regulation.[30] Requirements for the issuance of a boat master's certificate are twofold: - the general requirements pertain to the minimal age, the medical fitness, the experience of navigation and the professional knowledge tested by an examination; - the local knowledge requirements pertain to the special knowledge required to navigate on specific rivers or sections thereof. Local knowledge is required on a particularly difficult section of the Rhine, located on the German territory. Several States have applied for recognition on the Rhine of their national certificate. In reviewing these applications, the CCNR examines whether the general requirements laid down in the third State's legislation are equivalent to those of the Rhine regulation. If so, the national certificate is recognised, provided that it is supplemented by the Rhine certificate attesting to the driver's knowledge of the Rhine section where local knowledge is prescribed. The CCNR has recently recognised the Romanian certificate as valid on the Rhine. Likewise, most States with a strong inland navigation tradition are likely to see their certificate being recognised on the Rhine in the few years to come.[31] This process of mutual recognition is coupled with mechanisms of cooperation set forth in memoranda of understanding concluded between the CCNR and these States. These agreements set up mechanisms to share practice as well as administrative data and to guarantee equivalence over time of the various certificates. The latter aspect is particularly important, given the current need to reform the requirements. The educational path and professional qualifications in inland navigation must be made more attractive and better suited to future needs. This concern should translate in some modifications in the requirements to obtain a boat master's certificate, and these modifications should ideally be commonly discussed and agreed upon by all States for which inland navigation has economical significance. The cooperation agreements lay foundation for common meetings where future developments and possible scenarios will be discussed with all interested States and organisations. **** The requirements set forth for boat master's certificates partly depend on the characteristics of a river. The process of mutual recognition initiated by the CCNR allows to take due account of the common requirements while respecting those justified by the specific features of a river. The level of harmonisation reached with this method is well suited to the practical needs, for it covers all but only those States concerned with internationally meaningful inland navigation. The level of cooperation reached is also higher when the group of States concerned is smaller and share the same concerns. The quality of State cooperation is particularly critical at this point in time, when a reform of the current requirements is actively considered. Other European institutions, namely the European Union and the UNECE, have recently launched legislative initiatives towards the same purpose. It is hoped, however, that cooperation among the institutions involved will go beyond mere harmonisation of the existing requirements. Lack of personnel is the real problem faced by this economic sector and it is expected to dramatically worsen in the coming 30 years. An action limited to harmonisation of certificates would fall short of what is required. It is therefore hoped that institutional cooperation will take advantage of each institution's strengths and weaknesses and adopt a cluster of measures (dealing with education, working conditions, recruitment campaigns, etc...) which together may reverse the current trend and secure a brighter future to the sector. Cécile Tournaye Legal Adviser at the CCNR December 1, 2008 Footnotes: 1 See http://www.ccr-zkr.org 2 Final Act (General Treaty) of the Congress of Vienna, June 9th, 1815, 64 Parry 453, 454 (F), Annex 16 of March 24th, 1815. The inception of the CCNR could even be dated from the adoption of the "Convention de l'Octroi du Rhin" (convention on city toll), signed between France and the German Empire on August 15th 1804. This convention set up an international administration entrusted with collecting and redistributing the city tolls along the Rhine. 3 Final Act, supra note 1, arts 108-117. This principle was posited for the Rhine, the Neckar, the Main, the Mosel, the Meuse and the Scheldt. 4 Parties to a dispute may appeal before the Chamber of Appeals, an international jurisdiction located in Strasbourg and which is competent on both civil and penal matters. Individuals may also file a complaint before the Legal Committee if they contest the application or interpretation made by a Member State of a CCNR's rule. The Legal Committee, after hearing the Member State concerned, responds to the plaintiff and thereby provides a uniform interpretation of the impugned rule. 5 Revised Convention for Rhine Navigation, Oct. 17, 1868, Art. 1. 6 Additional Protocol No. 7, adopted on November 27, 2002 and entered in force on December 1, 2004. 7 Revised Convention, supra note 5, Art. 22. 8 Council Directive 82/714/EEC 1982 O.J. (L 301) laying down technical requirements for inland navigation boats. 9 Id. Article. 3. 10 Council Directive 2006/87/EC 2006 O.J. (L 389) available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:389:0001:0260:EN:PDF 11 Id. Art. 23 para. 1. 12 Like Directive 82/714/EEC, Directive 2006/87/EC categorizes the Community waterways in four zones and Member States may be authorised by the European Commission to supplement or reduce the requirements set forth in Annex II for certain waterways falling within a specified zone. The additional or reduced requirements must appear on either the Community certificate or in a supplementary Community certificate. 13 Convention relative to the navigation of the Rhine (CCNR) Res. 2008-II-12 (Nov. 27, 2008). 14 Council Directive, supra note 10, Art. 19 para. 2, referring to Council Decision 1999/468/EC of June 28, 1999, art. 3 and 7 (so-called "advisory procedure"). 15 Council Directive 91/672/EEC, art. 7 para. 1, 1996 O.J. (L 373), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31991L0672:EN:HTML and Council Directive 2006/87/Ec, supra note 11, art. 19(1). 16 The ADR was adopted on September 30, 1957 and amended by an Additional Protocol on October 28, 1993. 17 European Provisions concerning the International Carriage of Dangerous Goods by Inland Waterways, Res. 223, Inland Transport Committee of the Economic Commission for Europe (Feb. 6, 1976) 18 See CCNR Res. 1995-II-3 (November 9, 1995). This proposal was initiated by Germany. 19 As of October 2008, 10 States were parties (Austria, Bulgaria, Czech Republic, France, Germany, Hungary, Luxembourg, Moldova, Netherlands, the Russian Federation). 20 Council Directive 2008/68/EC, 2008 O.J. (L 260) of the European Parliament and of the Council of September 24, 2008 on the Inland Transport of Dangerous Goods, entered into force on 20 October 2008. 21 Respectively for the transportation of dangerous goods on the road, in inland navigation and by rail. The RID was adopted by the OTIF (an international organisation counting 42 member States) and appears in Appendix C to the Convention on international rail transportation (co-called "COTIF"). 22 Under paragraph 9 of the Preamble of the Directive, Member States are bound to implement Annex III if the inland waterways in their territory are linked, by inland waterway, to the waterways of other Member States. 23 Council Directive 2008/68/EC, Art. 7(2), 2008 O.J. (L 260) 17 available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:260:0013:0059:EN:PDF 24 Reglament Pour Le Transport de Matieres Dangerous Sur Le Rhin (ADNR), 2007 [Regulations for the transportation of dangerous goods on the Rhine (ADNR), 2007, Art. 8.1.8.1: "certificates of approval delivered by an ADN Contracting Party . . . are recognized as equivalent to the ADNR certificates of approval"; art. 8.2.1.2.: "an expert holding a certificate delivered by the competent authority . . . of a [CCNR Member State] or of an ADN Contracting Party shall be on board crafts transporting dangerous goods]. 25 This solution differs from the option chosen for the ADR for instance, where the committee in charge of submitting proposals for amending the annexes is a UNECE working group (the working group for the transportation of dangerous goods of the inland transport committee, also called WP 15). 26 European Agreement Concerning the International Carriage of Dangerous Goods by Inland Waterways Art. 17(3), May 26, 2000, ECE/TRANS/150 (ADN), available at http://www.unece.org/trans/main/dgdb/adnconf/adnfdoc/e-accord.pdf 27 Id., Art. 18. 28 Under the ADN Agreement, they can nevertheless participate in the Safety Committee and they may be authorised to attend the meetings at the Administrative Committee as observers (European Agreement, supra note 26, art. 17). 29 Council Decision 1999/468/EC, Art. 5.1, 1999 O.J. (L 184/23). 30 The CCNR adopted the first convention requiring a Rhine boat master's certificate to navigate on the Rhine in 1922. The implementing regulation of this convention, the "Rhine patent regulation", has been regularly updated since then. 31 The States most concerned are the Danubian States, the Czech Republich and Poland. |
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