EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

•Reasons for and objectives of the proposal

The Treaty between France and the United Kingdom of Great Britain and Northern Ireland concerning the construction and operation by private concessionaires of a Channel Fixed Link, signed at Canterbury on 12 February 1986 (hereafter “The Treaty of Canterbury”) established an Intergovernmental Commission to supervise all matters concerning the construction and operation of the Channel Fixed Link.

Until the end of the transition period put in place by the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, the Intergovernmental Commission is the national safety authority within the meaning of Article 3(7) of Directive (EU) 2016/798 of the European Parliament and the Council, which is competent for the Channel Fixed Link.

In accordance with Article 3(7) of Directive (EU) 2016/798, a national safety authority may be a body entrusted by several Member States with the tasks regarding railway safety. However, after the end of the aforementioned transition period, the Intergovernmental Commission will be a body established by a Member State and a third country. Directive (EU) 2016/798 does not foresee the possibility of a national safety authority as a body entrusted by a Member State and a third country. Therefore, unless otherwise provided, after the end of the transition period, Union law will no longer be applicable to the part of the Channel Fixed Link under the jurisdiction of the United Kingdom.

In order to ensure the safe and efficient operation of the Channel Fixed Link, it is necessary to have a single safety authority responsible for the whole of this infrastructure, which should remain the Intergovernmental Commission. This requires amending Directive (EU) 2016/798.

In a parallel and related initiative, the Commission also proposes the adoption of a decision of the European Parliament and Council empowering France to negotiate and conclude under certain conditions an international agreement that would maintain the Intergovernmental Commission as the single national safety authority for the Channel Fixed Link. Such an agreement would ensure that the Intergovernmental Commission complies with the provisions of Union law applicable to National Safety Authorities, and in particular Directive (EU) 2016/798, and Directive (EU) 2016/797 and Regulation (EU) 2016/796 in the Channel Fixed Link. This agreement would provide that, in cases of emergency, the French national safety authority might temporarily assume competence over the part of the Channel Fixed Link under French jurisdiction. It would also provide that, when a dispute before the arbitration tribunal set up by the Treaty of Canterbury raises a question of interpretation of Union law, that tribunal must refer that question to the Court of Justice of the European Union. Finally, under the proposed empowerment decision, the Commission would authorise France to conclude the agreement after checking that it fulfils the conditions laid down in the empowerment decision.

Taking account of this Commission Proposal for an empowerment decision addressed to France, the present Proposal aims at amending Article 3(7) of Directive (EU) 2016/798, which defines the notion of “national safety authority”, both for the purposes of railway safety under that Directive and railway interoperability under Directive (EU) 2016/797. The objective is to allow a body entrusted by a Member State and a third country with the tasks regarding railway safety and interoperability on the basis of an international agreement concluded or authorised by the EU to be considered as a national safety authority under Union law.

In addition, the present Proposal would provide that, where necessary for reasons of railway safety, the Member State concerned should make use without delay of the right afforded by the agreement with the third country concerned, whereby the national safety authority is entitled to assume sole competence over the part of the rail infrastructure situated in that Member State. The proposal would also provide that the European Court of Justice would have jurisdiction to give a ruling at the request of an arbitration tribunal set up by an international agreement such as the one that France should be empowered to negotiate and conclude with the United Kingdom.