Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive (EU) 2016/798, as regards the application of railway safety and interoperability rules within the Channel Fixed Link
Date: 2020-07-27
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: English Channel, France, United Kingdom, international transport, intra-EU transport, rail transport, transport safety, withdrawal from the EU

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   EUROPEAN COMMISSION  Brussels, 27.7.2020  COM(2020) 623 final 2020/0161 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive (EU) 2016/798, as regards the application of railway safety and interoperability rules within the Channel Fixed Link  
 
EXPLANATORY MEMORANDUM 

1. 

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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  Community1,  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,2 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  Link3.  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)  2016/7974  and  Regulation  (EU)  2016/7965  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 

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OJ L 29, 31.1.2020, p. 7. 
Directive  (EU)  2016/798  of  the  European  Parliament  and  of  the  Council  of  11  May  2016  on  railway 
safety, OJ L 138, 26.5.2016, p. 102. 
COM (2020) 622. 
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. 
Regulation  (EU)  2016/796  of  the  European  Parliament  and  of  the  Council  of  11  May  2016  on  the 
European Union Agency for Railways and repealing Regulation (EC) N°881/2004, OJ L138, 26.5.2016, 
p. 1. 

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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. 

• 

Consistency with existing policy provisions in the policy area 

This  proposal  is  an  amendment  with  a  very  limited  scope  of  Directive  (EU)  2016/798  that 
would  address  some  of  the  consequences  ensuing  from  the  fact  that  that  Directive  will  no 
longer  apply  to  the  United  Kingdom.  The  proposed  terms  are  strictly  limited  to  what  is 
necessary in this respect, to ensure safe and efficient cross-border operations, and complement 
existing provisions. This proposal is thus fully consistent with the existing legislation.  

• 

Consistency with other Union policies 

The proposal concerns railway safety and interoperability, amending Directive (EU) 2016/798 
to deal specifically with  the situation of the Channel Fixed Link after the withdrawal of the 
United Kingdom from the Union. 

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  seeks  an  amendment  of  Directive  (EU)  2016/798  that  is  necessary  for  the 
purposes described above, its objective can only be achieved through an act at the level of the 
Union.  

• 

Proportionality 

The proposed Regulation is considered proportionate as it is capable of ensuring the safe and 
efficient operation of the Channel Fixed Link and avoiding disruptions through providing for 

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a limited and necessary legal change. It does not go beyond what it necessary to achieve this 
objective.  

• 

Choice of the instrument 

This proposal contains a limited set of provisions to address a very specific situation and none 
of  them  requires  transposition  in  national  legislation.  Taking  this  into  consideration  a 
regulation  of the European Parliament  and Council appears to  be  an 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, as the proposal is an amendment of existing legislation and it is very limited 
in scope. 

• 

Stakeholder consultations 

The  very  limited  scope  of  the  amendment  of  Directive  (EU)  2016/798  does  not  require 
consulting publicly on the proposal.  

• 

Collection and use of expertise 

This proposal 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, given that there are no materially different policy options 
available except for the one proposed. 

• 

Regulatory fitness and simplification 

Not applicable 

• 

Fundamental rights 

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

4. 

BUDGETARY IMPLICATIONS 

Not applicable 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Not applicable.  

• 

Explanatory documents (for directives) 

Not applicable 

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• 

Detailed explanation of the specific provisions of the proposal 

The Proposal consists of two elements: 

(1) 

(2) 

Through the insertion of a new indent in Article 3(7) of Directive (EU) 2016/798, a 
body entrusted by a Member State and a third country with tasks regarding railway 
safety  on  the  basis  of  an  international  agreement  concluded  or  authorised  by  the 
Union could be considered as a national safety authority under Union law. 

Under a new paragraph 4 inserted in Article 16 of Directive (EU) 2016/798, specific 
rules  would  be  established  for  the  application  of  Union  railway  safety  and 
interoperability  rules  when  the  safety  authority  for  a  single  piece  of  engineering 
structure  is  established  by  a  Member  State  and  a  third  country  pursuant  to  an 
international  agreement  concluded  or  authorised  by  the  Union.  In  particular,  this 
provision  provides  for  the  duty  of  the  Member  State  concerned  to  take  all  the 
necessary measures to ensure that Union law is applied at all times. It also provides 
that the European Court of Justice is competent for rendering preliminary rulings on 
issues  of  interpretation  of  Union  law  when  they  are  raised  in  disputes  between  the 
Member  State  and  the  third  country  concerned  in  the  areas  of  railway  safety  and 
interoperability. 

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2020/0161 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Directive (EU) 2016/798, as regards the application of railway safety and 
interoperability rules within the Channel Fixed Link 

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 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 Committee6, 
Having regard to the opinion of the Committee of the Regions7, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

Article  16  of  Directive  (EU)  2016/798  of  the  European  Parliament  and  Council8 
(1) 
requires Member States to establish national safety authorities to be entrusted with the tasks 
specified  in  relation  to  railway  safety.  In  accordance  with  Article  3(7)  of  Directive  (EU) 
2016/798, a national safety authority may be not only an authority established unilaterally by 
the  Member  State  concerned  but,  alternatively,  a  body  entrusted  by  several  Member  States 
with those tasks in order to ensure a unified safety regime.  

The  Treaty  between  France  and  the  United  Kingdom  of  Great  Britain  and  Northern 
(2) 
Ireland  concerning  the  construction  and  operation  by  private  concessionaires  of  a  Channel 
Fixed  Link,  signed  at  Canterbury  on  12  February  1986  (“the  Treaty  of  Canterbury”) 
established  an  Intergovernmental  Commission  to  supervise  all  matters  concerning  the 
concerning the construction and operation of the Channel Fixed Link.  

(3) 
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  Community9  (“the  transition  period”),  the  Intergovernmental 
Commission  is  the national  safety  authority within  the meaning of Article 3(7)  of Directive 
(EU) 2016/798 responsible for the Channel Fixed Link.  

After  the  end  of  the  transition  period,  the  Intergovernmental  Commission  will  be  a 
(4) 
body established by a Member State and a third country. Unless otherwise provided, it would 
no longer be a national safety authority under Union law and Union law would no longer be 

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OJ C , , p. . 
OJ C , , p. . 
Directive  (EU)  2016/798 of  the  European  Parliament  and  of  the  Council  of  11  May  2016  on  railway 
safety, OJ L 138, (OJ L 138, 26.5.2016, p. 102). 
OJ L 29, 31.1.2020, p. 7.  

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applicable  to  the  part  of  the  Channel  Fixed  Link  under  the  jurisdiction  of  the  United 
Kingdom. 

(5) 
To  ensure  the  safe  and  efficient  operation  of  the  Channel  Fixed  Link,  it  would  be 
beneficial  to  retain  the  Intergovernmental  Commission  as  the  single  safety  authority 
responsible for the whole of this infrastructure.  

(6) 
To  that  end,  Decision  XXX/XX  authorises  France,  under  certain  conditions,  to 
negotiate,  sign  and  conclude  an  agreement  whereby  the  Intergovernmental  Commission 
established through the Treaty of Canterbury is maintained as the safety authority competent 
for the application of Union law within the Channel Fixed Link. 

It  is  necessary  to  adapt  Directive  (EU)  2016/798  to  take  account  of  that  particular 

(7) 
situation. 

(8) 
To this effect, specific rules should be established regarding competent authorities, as 
well as regarding the duties of the Member State concerned to take all the necessary measures 
to ensure that Union law is applied at all times by the common competent authority or, failing 
this, by its own competent authority. Dispute settlement between the Member State concerned 
and the third country in the areas of railway safety may raise issues of interpretation of Union 
law. Consequently, the Court of Justice of the European Union should be made competent for 
rendering preliminary rulings on such issues, 

(9)  This  Regulation  should  be  adopted  as  a  matter  of  urgency,  so  as  to  ensure  that  the 
necessary provisions are in place at the end of the transition period. It is therefore appropriate 
to provide for an exception to the eight‐ week period referred to in Article 4 of Protocol No 1 
on the role of national Parliaments in the European Union, annexed to the Treaty on European 
Union, to the Treaty on the Functioning of the European Union and to the Treaty establishing 
the European Atomic Energy Community. 

(10) This Regulation should enter into force as a matter of urgency on the day following that 
of its publication in the Official Journal of the European Union. 

HAVE ADOPTED THIS REGULATION: 

Directive (EU) 2016/798 is amended as follows: 

Article 1 

(a) 

‘ 7. 

– 

– 

– 

In Article 3, point 7 is replaced by the following: 

‘national safety authority’ means  

the  national  body  entrusted  with  the  tasks  regarding  railway  safety  in  accordance 
with this Directive, 

any  body entrusted by several  Member States with those tasks in  order to  ensure  a 
unified safety regime,  

any body entrusted by a Member State and a third country with those tasks in order 
to  ensure  a  unified  safety  regime,  provided  that  the  Union  has  concluded  an 
agreement to this effect with the third country concerned or that a Member State has 
concluded such agreement in accordance with an authorisation granted by the Union 
to this effect.’ 

(b) In Article 16, the following paragraph is added: 

‘4. Where a single piece of engineering structure is partly situated in a third country and partly 
situated  in  a  Member  State,  that  Member  State  may  designate,  in  addition  to  the  national 

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safety  authority  otherwise  competent  for  its  territory,  and  in  accordance  with  the  Article  3, 
point  (7)  third  indent,  and  with  an  international  agreement  concluded  by  the  Union  or 
authorised by it, a safety authority competent specifically for that engineering structure and all 
other  elements  of  the  rail  infrastructure  linked  to  it  (‘the  specific  safety  authority’).  In 
accordance  with  that  agreement,  the  national  safety  authority  may  temporarily  assume  the 
competence for the part of the infrastructure situated in that Member State’s territory.  

In  the  context  of  any  international  agreement  as  referred  to  in  the  first  subparagraph,  the 
Member  State  concerned  shall  take  all  measures  at  its  disposal  under  such  agreement  to 
ensure that the specific safety authority complies with the applicable provisions of Union law. 
To this effect, and where necessary for reasons of railway safety, the Member State concerned 
shall  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 the Member State concerned.  

Where  a  dispute  submitted  to  arbitration  in  accordance  with  an  international  agreement 
referred to in the first subparagraph raises a question of interpretation of a provision of Union 
law, the Court of Justice of the European Union shall have jurisdiction to give a ruling on the 
question  at  the  request  of  the  arbitration  tribunal  set  up  to  resolve  disputes  under  that 
international agreement.  

The provisions of Union law governing procedures brought before the Court of Justice of the 
European  Union  in  accordance  with  Article  267  TFEU  shall  apply  mutatis  mutandis  to 
requests for a ruling of the Court of Justice of the European Union made pursuant to the third 
subparagraph. 

In the cases brought before the Court of Justice of the European Union in accordance with the 
third subparagraph: 

(a) 

(b) 

the third country that is a party to the international agreement referred to in the first 
subparagraph  may  participate  in  the  proceedings  before  the  Court  of  Justice  of  the 
European Union in the same way as a Member State; 

lawyers authorised to practise before the courts or tribunals of that third country shall 
be entitled to represent or assist any parties to such proceedings before the Court of 
Justice of the European Union. In such cases, those lawyers shall be treated in every 
respect as lawyers authorised to practise before courts of Member States representing 
or assisting a party before the Court of Justice of the European Union. 

Where the specific safety authority fails to comply with any ruling of the Court of Justice of 
the European Union delivered in  accordance with the third subparagraph, the Member State 
concerned shall without delay make use of the right afforded by the international agreement 
with the third country referred in the first subparagraph, whereby the national safety authority 
is  entitled  to  assume  sole  competence  over  the  part  of  the  rail  infrastructure  situated  in  the 
Member State concerned.’ 

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

Article 2 

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

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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