Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL empowering France to negotiate an agreement supplementing its existing bilateral Treaty with the United Kingdom concerning the construction and operation by private concessionaires of a Channel Fixed Link
Date: 2020-07-27
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: English Channel, France, United Kingdom, bilateral agreement, international negotiations, international transport, rail transport, revision of an agreement, transport infrastructure, transport safety

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   EUROPEAN COMMISSION  Brussels, 27.7.2020  COM(2020) 622 final 2020/0160 (COD)  Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL empowering France to negotiate an agreement supplementing its existing bilateral Treaty with the United Kingdom concerning the construction and operation by private concessionaires of a Channel Fixed Link  
 
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,1  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 Council2, 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 and, in 
view  of  Directive  (EU)  2016/797,  railway  interoperability.  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,  the 
Intergovernmental  Commission  will  cease  to  be  the  national  safety  authority  within  the 
meaning  of  Directive  (EU)  2016/798  for  the  Channel  Fixed  Link.  From  the  same  point  in 
time, Union law will no longer be applicable to the part of the Channel Fixed Link under the 
jurisdiction of the United Kingdom. In application of Directive (EC) 2016/798 and Article L 
2221/1  of  the  French  Code  des  Transports,  the  French  Etablissement  public  de  sécurité 
ferroviaire would become the national safety authority for the part of the Channel Fixed Link 
under French jurisdiction. 

In  order  to  ensure  the  safe  and  efficient  operation  of  the  Channel  Fixed  Link,  it  would  be 
preferable  to  have  a  single  safety  authority  responsible  which  would  apply  the  same  set  of 
rules over the whole infrastructure, including in its section under the jurisdiction of the United 
Kingdom.  The  Intergovernmental  Commission  should  remain  as  this  single  authority  and 
should  continue  applying  Union  rules  on  railway  safety  and  interoperability.  This  would 
notably  require  amending  Article  3(7)  of  Directive  (EU)  2016/798.  Such  an  amendment  is 
sought by the parallel Commission Proposal for a Regulation amending that Directive COM 
(2020) 623. 

By letter dated 16 July 2020, France informed the Commission that it would like to negotiate 
an agreement supplementing the Treaty of Canterbury. 

The aim of this proposal is to empower France to negotiate an international agreement with 
the United Kingdom to ensure the safe and efficient operation of the Channel Fixed Link by 
retaining a single safety authority responsible for the whole of this infrastructure, and to lay 
down  the  specific  requirements  that  the  proposed  agreement  must  comply  with,  such  as  the 

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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, 26.52016, p. 102). 

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obligation for the Intergovernmental Commission to apply Union rules on railway safety and 
interoperability. 

Such an agreement is liable to affect an area covered to  a large extent by Union law and in 
particular  Directive  (EU)  2016/7973,  Directive  (EU)  2016/798  and  Regulation  (EU) 
2016/7964.  Therefore,  such  an  agreement  would  fall  within  the  Union's  exclusive  external 
competence. In accordance with Article 2(1) TFEU, the Union may empower Member States 
to act in areas where it has exclusive competence. Given the interaction of such empowerment 
with  the  existing  rules  adopted  by  the  Union  legislator,  it  is  also  necessary  that  any  such 
empowerment be granted by the latter, in accordance with the legislative procedure referred to 
in Article 91 TFEU. 

• 

Consistency with existing policy provisions in the policy area 

The objective of the international agreement that France will seek to conclude with the UK on 
the  basis  of  the  proposed  empowerment  decision  is  to  maintain  the  Intergovernmental 
Commission as the single national safety authority for the Channel Fixed Link and to ensure 
that  it  continues  complying  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  2016/796  over  the  entire  Channel  Fixed  Link,  including  the  section  under  UK 
jurisdiction. 

This  objective  is  therefore  fully  consistent  with  existing  policy  provisions  in  the  area  of 
railway safety and interoperability. 

• 

Consistency with other Union policies 

An  agreement  supplementing  the  Treaty  of  Canterbury  to  ensure  the  safe  and  efficient 
operation of the Channel Fixed Link by retaining a single safety authority responsible for the 
whole of this infrastructure would not be inconsistent with any other Union policy. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The legal basis for this proposal is Articles 2(1) and 91 TFEU. 

• 

Subsidiarity (for non-exclusive competence)  

The proposal falls under the exclusive competence of the Union. 

• 

Proportionality 

The objective of the proposal is to authorise, pursuant to Article 2(1) TFEU, the negotiation of 
an agreement supplementing the Treaty of Canterbury with the aim of ensuring the  safe and 
efficient  operation  of  the  Channel  Fixed  Link  by  retaining  a  single  safety  authority 
responsible for the whole of this infrastructure. Subject to amending Article 3(7) of Directive 
(EU) 2016/798, the Intergovernmental Commission, established by the Treaty of Canterbury 
should remain the single safety authority and should continue applying Union rules on railway 

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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). 
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)  No881/2004,  (OJ  L138, 
26.5.2016, p. 1).  

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safety. Consequently, the proposed Decision of the European Parliament  and of the Council 
does not go beyond what is necessary to achieve this objective. 

• 

Choice of the instrument 

The objective sought is to ensure that the Intergovernmental Commission applies Union law 
over  the  entire  Channel  Fixed  Link,  including  the  part  under  the  jurisdiction  of  the  United 
Kingdom. The Intergovernmental Commission is a binational body set up by France and the 
United Kingdom. Its functioning is regulated by the Treaty of Canterbury concluded between 
France and the United Kingdom. Therefore, it is appropriate to include the above mentioned 
elements into in an agreement between the France and the United Kingdom, hence the need to 
empower France to that effect. 

The  proposed  Decision  of  the  European  Parliament  and  of  the  Council  addressed  to  France 
and  empowering  it  under  Article  2(1)  and  91  TFEU  to  negotiate  and  conclude  such  an 
agreement with the United Kingdom therefore represents an adequate instrument. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Stakeholder consultations 

This proposal is based on a request made by France and the empowerment proposed would be 
addressed  to  this  Member  State  only.  Given  the  time  constraints,  stakeholders  such  as  the 
concessionaire of the Channel Fixed Link have been informally consulted and confirmed that 
the  Intergovernmental  Commission  should  be  maintained  as  the  single  safety  authority, 
applying Union law over the entire Channel Fixed Link. 

4. 

BUDGETARY IMPLICATIONS 

This proposal has no impact on the Union budget. 

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2020/0160 (COD) 

Proposal for a 

DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

empowering France to negotiate an agreement supplementing its existing bilateral 
Treaty with the United Kingdom concerning the construction and operation by private 
concessionaires of a 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 Committee5, 
Having regard to the opinion of the Committee of the Regions6, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 
The  Treaty  between  France  and  the  United  Kingdom  of  Great  Britain  and  Northern 
Ireland  concerning  the  construction  and  operation  by  private  concessionnaires  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 
construction and operation of the Channel Fixed Link. 

Until the end of the transition period put in place by the Agreement on the withdrawal 
(2) 
of the United Kingdom of Great Britain and Northern Ireland from the European Union and 
the European Atomic Energy Community7, the Intergovernmental Commission is considered 
as  a  body  entrusted  by  several  Member  States  with  the  tasks  regarding  railway  safety  in 
respect  of  the  Channel  Fixed  Link.  For  those  purposes,  it  therefore  constitutes  the  national 
safety  authority  within  the  meaning  of  Article  3(7)  of  Directive  (EU)  2016/798  of  the 
European Parliament and the Council8. In that capacity, it applies the provisions of Union law 
relevant to railway safety and interoperability. 

(3) 
After  the  end  of  the  transition  period  referred  to  in  recital  (2)  the  Intergovernmental 
Commission  will  constitute  a  body  established  by  a  Member  State  and  a  third  country. 
Furthermore, and unless otherwise provided for in an international agreement committing the 
United Kingdom, Union law would no longer be applicable to the part of the Channel Fixed 
Link under the jurisdiction of the United Kingdom. 

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OJ C , , p. . 
OJ C , , p. . 
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). 

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(4) 
An international  agreement  with  a third country  regarding the application of railway 
safety and interoperability rules in cross-border situations is liable to affect an area covered to 
a  large  extent  by  Union  law,  and  in  particular  by  Directive  (EU)  2016/798,  Directive  (EU) 
2016/797 of the European Parliament and the Council 9 and Regulation (EU) 2016/796 of the 
European  Parliament  and  the  Council10.  Therefore,  any  such  agreement  falls  within  the 
Union's  exclusive  external  competence.  Member  States  may  negotiate  or  enter  into  such 
agreement only if empowered to do so by the Union in line with Article 2(1) of the Treaty on 
the  Functioning  of  the  European  Union  (TFEU).  Because  of  the  interaction  with  existing 
Union  legislation,  it  is  also  necessary  that  such  empowerment  be  granted  by  the  Union 
legislator, in accordance with the legislative procedure referred to in Article 91 TFEU. 

(5) 
By letter of16 July 2020, France requested an empowerment by the Union to negotiate 
and  conclude  an  international  agreement  supplementing  the  Treaty  of  Canterbury  with  the 
United Kingdom.  

(6) 
To  ensure  the  safe  and  efficient  operation  of  the  Channel  Fixed  Link,  it  would  be 
appropriate  to  retain  a  single  safety  authority,  the  Intergovernmental  Commission,  as 
responsible  for  the  whole  of  that  infrastructure.  Considering  the  special  position  of  the 
Channel  Fixed  Link  as  a  railway  link  involving  a  single,  complex  engineering  structure 
situated partly in the territory of France and of a third country respectively, it is appropriate to 
authorise France to enter into an international agreement with the United Kingdom regarding 
the application of the railway safety rules of the Union to the Channel Fixed Link in order to 
maintain a unified safety regime in the whole Tunnel, provided that certain requirements are 
fulfilled. 

The  Intergovernmental  Commission  could  fulfil  the  role  of  national  safety  authority 
(7) 
responsible  for  the  part  of  the  Channel  Fixed  Link  under  French  jurisdiction  subject  to 
amending Article 3(7) of Directive (EU) 2016/798, and provided that certain  conditions  are 
met. 

(8) 
The  Intergovernmental  Commission  should  apply  the  same  rules  over  the  entire 
Channel Fixed Link, irrespective of whether they apply to the parts under the jurisdiction of 
France or of the United Kingdom. Such rules should be the relevant provisions of Union law 
and  in  particular  Directive  (EU)  2016/798,  Directive  (EU)  2016/797,  and  Regulation  (EU) 
2016/796, as amended or replaced, as well as the acts adopted on their basis. 

(9) 
In  accordance  with  Article  19  of  the  Treaty  of  Canterbury,  disputes  between  France 
and  the  United  Kingdom  relating  to  the  interpretation  or  application  of  the  Treaty  of 
Canterbury are settled by an arbitral tribunal. Where such disputes raise questions relating to 
the interpretation  of Union law, in  order to ensure the correct  application of Union law, the 
arbitral tribunal should refer the question to the Court of Justice of the European Union and be 
bound by its decision. 

(10) 
It is also necessary to establish specific rules regarding the implementation of Union 
law on the part of the Channel Fixed Link under France’s jurisdiction, in order to ensure that 
Union  law  is  correctly  implemented  at  all  times  and  that  the  Commission  can  oversee  its 
application under the control of the Court of Justice, including in circumstances of urgency or 
in  case  of  failure  by  the  Intergovernmental  Commission  to  comply  with  a  decision  of  the 
arbitral  tribunal.  To  that  end,  France  should  retain  the  right  to  act  unilaterally,  where 

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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). 
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)  No  881/2004,  (OJ  L138, 
26.5.2016, p. 1). 

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necessary, to ensure the full and correct application of Union law on the part of the Channel 
Fixed Link under its jurisdiction. 

(11) 
In order to ensure effective legal protection in the fields covered by Union law, courts 
or  tribunals  to  which  Article  19(1)  TFEU  applies  should  be  exclusively  competent  for 
applications made by concessionnaires and users of the Channel Fixed Link against decisions 
of the Intergovernmental Commission. 

(12)  The elements described in recitals (8) to (11) should be reflected in the international 
agreements  between  France  and  the  United  Kingdom  regarding  the  Channel  Fixed  Link. 
Those international agreements should be compatible with Union law in all respects, 

HAVE ADOPTED THIS DECISION: 

Article 1 

France  is  empowered  to  negotiate,  sign  and  conclude  an  international  agreement  with  the 
United Kingdom  regarding the  application of railway  safety rules within the Channel  Fixed 
Link,  provided  that  that  agreement  enters  into  force  after  the  end  of  the  transition  period 
provided for in 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 and 
complies with the following: 

(1) 

(2) 

(3) 

(4) 

In order to maintain a unified safety regime on the whole Channel  Fixed  Link, the 
Intergovernmental Commission established by the Treaty of Canterbury shall ensure 
the application,  as  regards the Channel Fixed  Link, of the provisions of  Union law 
relevant  to  the  tasks  of  National  Safety  Authorities  within  the  meaning  of  Article 
3(7)  of  Directive  (EU)  2016/798,  and  in  particular  of  thatDirective,  Directive  (EU) 
2016/797 and Regulation (EU) 2016/796, as amended or replaced, as well as of the 
acts adopted on their basis.  

Where a dispute submitted to arbitration in accordance with Article 19 of the Treaty 
of Canterbury raises a question relating to the interpretation of a provision of Union 
law, the arbitral tribunal shall not have the power to decide on any such question. In 
such  case,  the  arbitral  tribunal  shall  request  the  Court  of  Justice  of  the  European 
Union  to  give  a  ruling  on  the  question.  The  ruling  of  the  Court  of  Justice  of  the 
European Union shall be binding on the arbitral tribunal.  

Where necessary, in  particular in  circumstances  of urgency or in case of failure by 
the Intergovernmental Commission to comply with a decision of the arbitral tribunal, 
France  shall  retain  the  right  to  act  unilaterally  with  a  view  to  ensuring  the  full, 
correct and expeditious application of Union law on the part of the Fixed Link under 
French jurisdiction.  

Courts  or  tribunals  to  which  Article  19(1)  TFEU  applies  shall  be  exclusively 
competent  to  decide  on  remedies  sought  by  concessionnaires  and  users  of  the 
Channel Fixed Link against decisions taken by the Intergovernmental Commission in 
its capacity referred to in paragraph 1. 

(5) 

The agreement must be compatible with Union law in all respects. 

Article 2 

France  shall  keep  the  Commission  regularly  informed  of  the  negotiations  with  the  United 
Kingdom supplementing the Treaty of Canterbury or concluding a new agreement, as referred 
to in Article 1 and, where appropriate, invite the Commission to participate as an observer. 

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Upon  completion  of  the  negotiations,  France  shall  submit  the  resulting  draft  text  to  the 
Commission. The Commission shall inform the Council and the European Parliament thereof.  

Within one month from the notification of the draft agreement, the Commission shall take a 
decision  as  to  whether  the  requirements  set  out  in  Article  1  are  fulfilled  or  not.  Where  the 
Commission decides that they are fulfilled, France may sign and conclude the corresponding 
agreement. A copy of the signed agreement shall be provided to the Commission within one 
month of its  entry into force, or, where the  agreement is  to  be applied provisionally, within 
one month of the start of its provisional application. 

This Decision is addressed to the French Republic. 

Done at Brussels, 

Article 3 

For the European Parliament 
The President 

For the Council 
The President 

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