Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on certain aspects of railway safety and connectivity with regard to the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the Union
Date: 2019-02-12
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: United Kingdom, rail transport, safety standard, technical standard, trans-European network, transport infrastructure, transport safety, withdrawal from the EU

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   EUROPEAN COMMISSION  Strasbourg, 12.2.2019 COM(2019) 88 final 2019/0040 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on certain aspects of railway safety and connectivity with regard to the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the Union  (Text with EEA relevance)  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The  United  Kingdom  submitted  on  29  March  2017  the  notification  of  its  intention  to 
withdraw from the Union pursuant to Article 50 of the Treaty on European Union. This means 
that, if the Withdrawal Agreement1 is not ratified, the Union’s primary and secondary law will 
cease  to  apply  to  the  United  Kingdom  from  30  March  2019  (‘the  withdrawal  date’).  The 
United Kingdom will then become a third country. 

The  withdrawal  of  the  United  Kingdom  from  the  Union  without  an  agreement  affects  the 
validity  of  safety  authorisations  issued  under  Article  11  of  Directive  2004/49/EC  to 
infrastructure  managers  for  the  management  and  operation  of  cross-border  infrastructure 
linking the Union and the United Kingdom..  

In the Commission Communication on ‘Preparing for the withdrawal of the United Kingdom 
from the European Union on 30 March 2019: a Contingency Action Plan’2 the Commission 
set  the principles underlying the contingency measures including that they  shall  not  remedy 
the lack of preparedness measures by stakeholders, or delays in their implementation. In that 
Communication,  the  Commission  listed  the  actions  it  considered  necessary  while  recalling 
that additional actions may be necessary at a later stage. 

The  European  Council  (Article  50)  reiterated  its  call,  on  13  December  2018,  for  work  on 
preparedness  at  all  levels  for  the  consequences  of  the  United  Kingdom's  withdrawal  to  be 
intensified, taking into account all possible outcomes.  

The  Commission  discussed  with  the  Member  States  the  possible  consequences  of  the 
withdrawal  in  the  context  of  seminars  organised  by  the  Council  of  the  European  Union  in 
2018.  Moreover,  the  impacts  of  the  withdrawal  as  well  as  preparedness  measures  were 
extensively  discussed during a series of visits to all Member States. 

In the area of rail transport, in most cases the effect of the withdrawal of the United Kingdom 
from  the  European  Union  on  certificates,  authorisations  and  licences  can  be  remedied  by 
stakeholders through various measures, in particular by their establishment in a Member State 
and through obtaining the appropriate authorisations, certificates and licences there.  

However,  the  negotiation  and  signature  of  agreements  between  the  EU  Member  States 
concerned  and  the  UK  would  be  necessary  to  address  issues  relating  directly  to  rail  cross-
border  operations,  ensure  their  continuity  after  the  withdrawal  date,  and  thereby  mitigate 
disruptions in the Union. The conclusion of such bilateral agreements would only be possible 
after the UK becomes a third country.  

In particular the situation regarding the binational safety authority, set up under the Treaty of 
Canterbury relating to the Channel Tunnel would have to be adapted taking into account the 
new status of the United Kingdom as third country.  

1 
2 

https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement_0.pdf. 
COM(2018)880 final, 13.11.2018. 

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Therefore  it  is  appropriate  that  the  Commission  proposes  measures  ensuring  continued 
validity of authorisations for certain parts of the rail infrastructure in line with the relevant EU 
law.  

Such extended validity should be limited in time to what is strictly necessary in order to give 
the United Kingdom and the Members States concerned the time necessary for concluding the 
necessary agreements.  

This concerns only the safety authorisations issued under Article 11 of Directive 2004/49/EC 
to  infrastructure  managers  for  the  management  and  operation  of  cross-border  infrastructure 
linking the Union and the United Kingdom. 

The  provisions  proposed  are  intended  to  ensure  the  continuity  limited  to  cross-border 
operations  and  services  in  compliance  with  applicable  Union  legal  requirements.  An 
interruption  in  these  activities  would  cause  significant  social  and  economic  problems.  In 
ensuring organisations' compliance with EU law, the proposal will also ensure the protection 
of consumers and citizens.  

The  measures  in  this  proposal  are  conditional  on  safety  standards  identical  with  the  EU 
requirements being applied to the infrastructure  on the UK territory, which are used for the 
purposes of ensuring cross-border rail connectivity.  

Major disruption can however only be avoided if the rail operators and the national authorities 
take  all  required  measures  speedily  to  ensure  that  market  access  licences,  train  drivers 
licences,  as  well  as  all  other  certificates  and  authorisations  required  to  operate  on  Union 
territory are issued in good time before  30 March 2019. 

• 

Consistency with existing policy provisions in the policy area 

This  proposal  is  intended  as  a  lex  specialis  that  would  address  some  of  the  consequences 
ensuing  from  the  fact  that  the  Directive  2004/49/EC  will  no  longer  apply  to  the  United 
Kingdom.The proposed terms are strictly limited to what is necessary in this respect, so as to 
avoid  disruptions  of  cross-border  operations.  They  are  also  intended  to  apply  only  for  a 
limited period of time. The general provisions of those acts will otherwise continue to apply. 
This proposal is thus fully consistent with the existing legislation.   

• 

Consistency with other Union policies 

The proposal concerns railway safety and connectivity, complementing Directive 2004/49/EC  
to  deal  specifically  with  the  situation  of  the  United  Kingdom  withdrawing  from  the  Union 
without a withdrawal agreement. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  legal  basis  is  Article  91(1)  of  the  Treaty  on  the  Functioning  of  the  European  Union 
(TFEU). 

• 

Subsidiarity (for non-exclusive competence)  

As  the  proposal  complements  existing  Union  law,  with  provisions  facilitating  their  orderly 
application following the withdrawal of the United Kingdom from the Union, its objective can 
only be achieved through an act at the level of the Union. 

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• 

Proportionality 

The proposed Regulation is considered proportionate as it is capable of avoiding disruptions 
through providing for a limited and necessary legal change, which covers the need to ensure 
continuity of the cross-border rail services with the United Kingdom.  It does not go beyond 
what  it  necessary  to  achieve  this  objective  and  it  refrains  from  any  broader  changes  or  any 
permanent measures. 

• 

Choice of the instrument 

This  proposal  contains  a  limited  set  of  provisions  to  address  a  very  specific  and  one-off 
situation.  Therefore,  it  is  not  appropirate  to  modify  Directive  2004/49/EC  and  Directive 
2016/798  by  which  it  is  replaced  with  effect  from  16  June  2019.  Relevant  provisions 
concerning the affected authorisations are covered by Directive 2004/49/EC. Taking this into 
consideration  a  regulation  of  the  European  Parliament  and  Council  appears  to  be  the  only 
adequate form of legal act. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Not  applicable  due  to  the  exceptional  and  one-off  nature  of  the  event  necessitating  this 
proposal. 

• 

Stakeholder consultations 

The  specific  circumstances  surrounding  the  negotiations  for  the  withdrawal  of  the  United 
Kingdom from the Union and the continuously evolving situation posed major limitations on 
the possibility to consult publicly on the proposal. However, the challenges arising from the 
United Kingdom's withdrawal from the EU and possible solutions have been raised by various 
rail stakeholders and a Member State’s representatives. 

• 

Collection and use of expertise 

This  information  has  been  subject  to  in-house  legal  and  technical  analysis  to  ensure  the 
proposed  measure  achieves  its  intended  purpose,  but  is  at  the  same  time  limited  to  what  is 
strictly necessary. 

• 

Impact assessment 

An impact assessment is not needed, due to the exceptional nature of the situation and limited 
needs of the period during which the change of status of the United Kingdom is implemented. 
There are no materially different policy options available except for the one proposed. 

• 

Fundamental rights 

The proposal has no impact on the application or protection of fundamental rights.  

4. 

BUDGETARY IMPLICATIONS 

Not applicable.  

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5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Not applicable due to the short-term nature of the proposed measure.   

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2019/0040 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on certain aspects of railway safety and connectivity with regard to the withdrawal of 
the United Kingdom of Great Britain and Northern Ireland from the Union  

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 91(1) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee3,  
Having regard to the opinion of the Committee of Regions4 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

 On 29 March 2017, the United Kingdom submitted the notification of its intention to 
withdraw from the Union pursuant to Article 50 of the Treaty on European Union. The 
Treaties will cease to apply to the United Kingdom from the date of entry into force of 
a withdrawal agreement or failing that, two years after that notification, that is to say 
from  30  March  2019,  unless  the  European  Council,  in  agreement  with  the  United 
Kingdom, unanimously decides to extend that period. 

 In the area of rail transport, the impact of the withdrawal of the United Kingdom from 
the Union on certificates and authorisations can be remedied by operators concerned, 
through  various  measures  such  as  operators  establishing  themselves  in  a  Member 
State. and obtaining appropriate licences and certificates there.   

The application of the Union safety rules to the Channel tunnel is currently conferred 
upon a binational safety authority, set up under the Treaty of Canterbury. The system 
established by this Treaty would have to be adapted taking into account the  status of 
the United Kingdom as third country.  

 The  measures  in  this  proposal  are  conditional  on  safety  standards  and  procedures 
identical with the Union requirements being applied to the infrastructure which is used 
for the purposes of ensuring  cross- border rail connectivity with the United Kingdom.  

In order to allow concerned parties to enter into the necessary agreements and to take 
any other measures required to avoid disruptions, taking into account the status of the 

3 
4 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 

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(6) 

(7) 

(8) 

(9) 

United  Kingdom  as  a  third  country,  it  is  necessary    to  extend  the  validity  of  certain 
authorisations. 

The  duration  of  such  extension  of  the  validity  of  authorisations  should  be  limited  in 
time to what is strictly necessary in order to enable the Members States concerned to 
take those necessary steps, in accordance with the applicable provisions of Union law.  

To avoid major disruption of the cross- border rail services with the United Kingdom, 
it  will  also  be  essential  that  the  rail  operators  and  the  national  authorities  take  the 
required  measures  speedily  to  ensure  that  market  access  licences,  train  drivers 
licences,  as  well  as  certificates,  licences  and  authorisations  required  to  operate  on 
Union territory are  issued  in good time before the 29 March 2019. 

In  order  to  ensure  uniform  conditions  for  the  implementation  of  this  Regulation, 
implementing  powers  should  be  conferred  on  the  Commission  as  regards  the 
withdrawal of of the benefit conferred on holders of the authorisations, where it is not 
ensured that safety standards identical with the Union requirements are applied to any 
relevant  infrastructure.      Those  powers  should  be  exercised  in  accordance  with 
Regulation  (EU)  No  182/2011  of  the  European  Parliament  and  of  the  Council.5  The 
examination procedure should be used for the adoption of those measures, given their 
potential  impact  on  railway  safety.  Given  the  inherent  urgency  of  the  matter,  the 
Commission should adopt immediately applicable implementing acts. 

Given  the  urgency  entailed  by  the  circumstances  of  the  United  Kingdom's  departure 
from  the  Union,  an  exception  to  the  eight-week  period  referred  to  in  Article  4  of 
Protocol No 1 on the role of national Parliaments in the Union, annexed to the Treaty 
on European Union, to the Treaty on the Functioning of the European Union and the 
Treaty establishing the European Atomic Energy Community, should apply. 

(10)  The provisions of this  Regulation should enter into force as a matter of urgency and 
apply as from the day following that on which the Treaties cease to apply to and in the 
United Kingdom unless a withdrawal agreement concluded with the United Kingdom 
has entered into force by that date,  

HAVE ADOPTED THIS REGULATION: 

Article 1 

Subject matter and scope 

1. 

5 

6 

This  Regulation  lays  down  specific  provisions,  in  view  of  the  withdrawal  of  the 
United Kingdom of Great Britain and Northern Ireland (‘the United Kingdom’)  from 
the  European  Union,  for  certain  safety  authorisations  issued  under  Directive 
2004/49/EC of the European Parliament and of the Council6.   

Regulation  (EU)  No  182/2011  of  the  European  Parliament  and  of  the  Council  of  16  February  2011 
laying down the rules and general principles concerning mechanisms for control by Member States of 
the Commission’s exercise of implementing powers, OJ L 55, 28.2.2011, p. 13. 
Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the 
Community's  railways  and  amending  Council  Directive  95/18/EC  on  the  licensing  of  railway 
undertakings  and  Directive  2001/14/EC  on  the  allocation  of  railway  infrastructure  capacity  and  the 

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2. 

This  Regulation  shall  apply  to  the  safety  authorisations  issued  under  Article  11  of 
Directive 2004/49/EC to infrastructure managers for the management and operation 
of cross-border infrastructure linking the Union and the United Kingdom, which are 
valid on the day preceding the date of application of this Regulation. 

Article 2 

Definitions 

For the purposes of this Regulation, the relevant definitions of Directive 2004/49/EC and the 
implementing acts adopted by virtue of this Directive shall apply. The relevant  definitions of 
Directive (EU) 2016/798 of the European Parliament and of the Council7 and any delegated 
and implementing acts  adopted thereunder shall apply from  the date that Directive becomes 
applicable to the authorisations refered to in Article 1(2).  

Article 3 

Validity of safety authorisations 

The authorisations referred to in Article 1(2) shall remain valid for 3 months from the date of 
application of this Regulation.  

Article 4 

1. 

2. 

3. 

4. 

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Rules and obligations regarding authorisations 

Authorisations  governed  by  Article  1(2)  of  this  Regulation  are  subject  to  the  rules 
applicable  to  them  in  accordance  with  Directive  2004/49/EC,  and  Directive  
2016/798/EU  from  the  date  it  becomes  applicable  to  these  authorisations,  and  the 
implementing and delegated acts adopted by virtue of these Directives.  

The holders of the authorisations referred to in Article 1(2), and, as appropriate, the 
authority issuing them when different  from  the National  Safety Authority  in  whose 
territory the infrastructure is situated in the Union shall cooperate with and deliver all 
relevant information and documents to that National Safety Authorty.    

Where information or documents have not been delivered within the time limits set 
in  requests  made  by  the  National  Safety  Authority  referred  to  in  paragraph  2,  the 
Commission  may,  upon  notification  of  the  National  Safety  Authority,  by  way  of 
implementing  acts  adopted  in  accordance  with  Article  7(2),  withdraw  the  benefit 
conferred on the holder pursuant to Article 3.  

Holders of  authorisations referred to  in  Article 1(2) of this  Regulation  shall inform 
without delay the Commission and the European Union Agency for Railways of any 
actions  by  other  competent  safety  authorities,  which  may  conflict  with  their 
obligations  under 
this  Regulation,  Directive  2004/49/EC,  and  Directive 
2016/798/EU.  

levying of charges  for the  use of railway infrastructure and safety  certification, OJ  L 164, 30.4.2004, 
p.44. 
Directive  (EU)  2016/798  of  the  European  Parliament  and  of  the  Council  of  11  May  2016  on  railway 
safety (recast), OJ L 138 26.5.2016, p. 102. 

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5. 

1. 

2. 

3. 

4. 

1. 

2. 

Before withdrawing the benefits pursuant to Article 3, the Commission shall in due 
time  inform  the  National  Safety  Authority  referred  to  in  paragraph  2,  the  authority 
having  issued  the  authorisations  referred  to  in  Article  1(2),  the  holders  of  such 
authorisations as well as the National Safety Authority of the United Kingdom, of its 
intention  to  proceed  to  such  withdrawal  and  provide  them  the  opportunity  to  make 
their views known. 

Article 5 

Safety standards 

The  National  Safety  Authority  referred  to  in  Article  4(2)  shall  monitor  the  railway 
safety standards applied to cross-border infrastructure referred to in Article 1(2). The 
National  Safety  Authority  shall  provide  the  Commission  and  the  European  Union 
Agency  for  Railways  with  regular  reports  on  this  matter  accompanied,  where 
appropriate,  with  a  recommendation  for  the  Commission  to  act  in  accordance  with 
paragraph 2  

Where the Commission  has justified doubts that the safety standards applied to  the 
operation of infrastructure falling within the scope of this Regulation  or the part of 
the  same  infrastructure  that  is  situated  in  the  United  Kingdom  are  in  line  with  the 
relevant  provisions  of  Union  law,  it  shall  without  undue  delay,  by  means  of 
implementing  acts  adopted  in  accordance  with  Article  7(2),  withdraw  the  benefit 
conferred on the holder pursuant to Article 3. 

For  the  purposes  of  paragraph  1,  the  National  Safety  Authority  may  request 
information from the relevant competent authorities, setting a reasonable time limit. 
Where these relevant competent authorities do not provide the information requested 
within  the  time  limit  set  by  the  National  Safety  Authority,  or  provide  incomplete 
information,  the  Commission  may,  upon  notification  of  the  Naitonal  Safety 
Authority,  by  way  of  implementing  acts  adopted  in  accordance  with  Article  7(2), 
withdraw the benefit conferred on the holder pursuant to Articles 3. 

Before withdrawing the benefits pursuant to Article 3, the Commission shall in due 
time  inform  the  National  Safety  Authority  referred  to  in  Article  4(2),  the  authority 
having  issued  the  authorisations  referred  to  in  Article  1(2),  the  holders  of  such 
authorisations as well as the National Safety Authority of the United Kingdom  of its 
intention  to  proceed  to  such  withdrawal  and  provide  them  the  opportunity  to  make 
their views known. 

Article 6 

Consultation and cooperation 

The competent authorities of the Member States shall consult and cooperate with the 
competent  authorities  of  the  United  Kingdom  as  necessary  in  order  to  ensure  the 
implementation of this Regulation.  

Member States shall, upon request, provide the Commission without undue delay any 
information  obtained  pursuant  to  paragraph  1  or  any  other  information  relevant  for 
the implementation of this Regulation. 

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Article 7 

Committee 

1. 

2.  

1. 

2. 

3. 

4. 

The  Commission  shall  be  assisted  by  the  committee  referred  to  in  Article  51  of 
Directive 2016/797/EU of the Parliament and the Council8. That committee shall be a 
committee within the meaning of Regulation (EU) 182/2011.   

Where reference is made to this paragraph, Article 8 of Regulation (EU) 182/2011, in 
conjunction with Article 5 thereof, shall apply. 

Article 8 

Entry into force and application 

This Regulation shall enter into force on the day following that of its publication in 
the Official Journal of the European Union. 

It shall apply from the day following that on which the Treaties cease to apply to and 
in the United Kingdom pursuant to Article 50(3) of the Treaty on European Union. 

This Regulation shall not apply if a withdrawal agreement concluded with the United 
Kingdom  in  accordance  with  Article  50(2)  of  the  Treaty  on  European  Union  has 
entered into force by the date referred to in paragraph 2. 

This Regulation shall cease to apply three months after is has become applicable in 
accordance with paragraph 2. 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Strasbourg, 

For the European Parliament 
The President 

For the Council 
The President 

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Directive  (EU)  2016/797  of  the  European  Parliament  and  of  the  Council  of  11  May  2016  on  the 
interoperability of the rail system within the European Union, OJ L 138, 26.5.2016, p. 44. 

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