Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2020/2222 of the European Parliament and of the Council with regard to the cross-border infrastructure linking the Union and the United Kingdom through the Channel Fixed Link
Date: 2021-07-13
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: English Channel, France, United Kingdom, cross-border transport, cross-channel connection, rail network, rail safety, transport regulations, withdrawal from the EU

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   EUROPEAN COMMISSION  Brussels, 13.7.2021  COM(2021) 402 final 2021/0228 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2020/2222 of the European Parliament and of the Council with regard to the cross-border infrastructure linking the Union and the United Kingdom through the Channel Fixed Link (Text with EEA relevance)  
 
EXPLANATORY MEMORANDUM 

1. 

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CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

In order to ensure the connectivity between the Union and the United Kingdom after the end 
of  the  transition  period  referred  to  in  Article  126  of  the  Withdrawal  Agreement,  the  Union 
legislator considered it essential that rail undertakings  established and licensed in the United 
Kingdom could continue to operate through the Channel Fixed Link1.  

To this end, and in order to enable the Member State concerned to take the necessary steps to 
ensure  connectivity  in  accordance  with  Union  law,  Regulation  (EU)  2020/2222  of  the 
European  Parliament  and  of  the  Council2  extended  until  30  September  2021  the  period  of 
validity  of  the  licences  issued  by  the  United  Kingdom  under  Directive  2012/34/EU3  to  rail 
operators  established in  its territory,  as well as that  of the safety certificates issued to  those 
undertakings under Directive 2004/49/EC4 by the Intergovernmental Commission established 
pursuant  to  Article  10  of  the  Treaty  between  the  United  Kingdom  of  Great  Britain  and 
Northern  Ireland  and  the  French  Republic  concerning  the  construction  and  operation  by 
private concessionaires of a channel fixed link, signed at Canterbury on 12 February 1986 (the 
‘Treaty of Canterbury’). 

Regulation (EU) 2020/2222 also extended the period of validity of the safety authorisation of 
the  Channel  Fixed  Link  infrastructure  manager  issued  by  the  said  Intergovernmental 
Commission until 28 February 2021.  

On  10  November  2020,  France  notified  the  Commission  of  its  intention  to  enter  into 
negotiations on a cross-border agreement with the United Kingdom pursuant to Article 14(3) 
of Directive 2012/34/EU with the objective to allow rail undertakings established and licensed 
in the United Kingdom to use the cross-border infrastructure linking the Union and the United 
Kingdom  through  the  Channel  Fixed  Link  until  the  border-crossing  station  and  terminal  of 
Calais-Fréthun  (France),  without  obtaining  a  licence  under  Directive  2012/34/EU  from  a 
Union  licensing  authority.  Following  the  conclusion  of  the  negotiation  of  this  cross-border 
agreement, the draft text was notified to the Commission on 1 June 2021. 

On 15 June 2021, France notified the Commission of its intention to enter into negotiations on 
a  cross-border  agreement  with  the  United  Kingdom  pursuant  to  Article  10(9)  of  Directive 
(EU)  2016/7985  with  the  objective  to  allow  the  said  rail  undertakings  to  use  the  said 
infrastructure  until  the  said  border-crossing  station  and  terminal,  without  obtaining  a  Union 
single safety certificate in accordance with that Directive. The negotiation of this cross-border 
agreement is expected to be completed in the course of August 2021.  

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The  railway  undertakings  operating  through  the  Channel  Fixed  Link  are  Eurostar  International  Limited 
(EIL), DB Cargo UK and GB Railfreight. 
Regulation  (EU)  2020/2222  of  the  European  Parliament  and  of  the  Council  of  23  December  2020  on 
certain aspects of railway safety and connectivity with regard to the cross-border infrastructure linking the 
Union and the United Kingdom through the Channel Fixed Link (OJ L 437, 28.12.2020, p. 43) 
Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a 
single European railway area (OJ L 343, 14.12.2012, p. 32) 
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 
levying of charges for the use of railway infrastructure and safety certification (OJ L 164, 30.4.2004, p. 
44, no longer in force) 
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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Additional time is needed to complete the formal procedures required under the law of both 
Parties  for  the  provisional  application  or  entry  into  force  of  these  agreements.  These 
procedures are expected to extend for six months after the expiry, on 30 September 2021, of 
the contingency measures currently in force. 

The  two  cross-border  agreements  are  appropriate  instruments  to  achieve  the  objectives  of 
Regulation  (EU)  2020/2222,  namely  to  ensure  the  continuity  of  the  operations  of  the  rail 
operators concerned. However, unless their period of validity is  extended so as to  allow for 
these  agreements  to  enter  into  force  or  be  provisionally  applied,  the  licences  and  safety 
certificates of the above mentioned rail operators will cease to be valid on 30 September 2021 
and  operations  will  come  to  a  halt,  causing  significant  disruption  in  the  transport  of 
passengers and freight across the Channel Fixed Link. 

It is therefore in the Union’s interest to extend the period of validity of those certificates and 
licences until 31 March 2022. 

• 

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 Union law is no longer applicable to the United Kingdom and that 
unless otherwise provided, the certificates and authorisations issued by the Intergovernmental 
Commission  will  cease  to  be  valid  under  Union  law  as  of  30  September  2021.  The  same 
applies to the operating licenses issued by the licensing authority of the United Kingdom. The 
proposed  extension  is  strictly  limited  to  what  is  necessary  in  this  respect,  so  as  to  avoid 
disruptions  of  cross-border  operations  and  is  intended  to  apply  only  for  a  limited  period  of 
time. The general provisions  of Directive (EU) 2016/798, which repealed Directive 2004/49 
/EC, as well as Directive 2012/34/EU, 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  (EU) 
2016/798,  which  repealed  Directive  2004/49/EC  as  well  as  Directive  2012/34/EU.  The 
intention  is  to  ensure  continuity  of  the  cross-border  rail  services  with  the  United  Kingdom 
beyond 30 September 2021. 

2. 

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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. 

• 

Proportionality 

Regulation (EU) 2020/2222 lays down measures to safeguard the continuity of the EU cross-
border rail services with the United Kingdom.  

The  proposed  extension  of  the  duration  of  those  measures,  without  otherwise  altering  their 
scope  or  content,  does  not  go  beyond  what  is  strictly  necessary  to  allow  the  cross-border 
agreements negotiated by the Member State concerned to enter into force, thus ensuring the 

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achievement  of  the  above-mentioned  objective.  The  measure  is  therefore  considered 
proportionate. 

• 

Choice of the instrument 

This being an amending instrument, it must take the form of the instrument it amends, namely 
Regulation (EU) 2020/2222. Therefore, 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 

This  is  not  applicable  as  the  proposed  measures  merely  ensure  the  achievement  of  the 
objectives  of  Regulation  (EU)  2020/2222  namely  to  mitigate  the  consequences  of  an 
exceptional, temporary and one-off event. 

• 

Stakeholder consultations 

The potential challenges to be caused by the end of the application period of Regulation (EU) 
2020/2222 as set in Article 8 thereof call for an extension of the measures, which have been 
requested by France involving in the process the concerned railway undertakings. 

The urgency for Union action calls for immediate  regulatory intervention in order to ensure 
continuity  of  operations  in  the  Channel  Fixed  Link,  which  poses  major  limitations  on  the 
possibility to consult publicly on the proposal.   

• 

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, and is limited to what is strictly necessary. 

• 

Impact assessment 

An impact  assessment is not  required, due to the exceptional  nature of the situation and the 
short-term nature of the proposed measure. No materially and legally different policy options 
are available other than 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. 

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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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• 

Explanatory documents (for directives) 

Not applicable. 

• 

Detailed explanation of the specific provisions of the proposal 

Regulation (EU) 2020/2222 applies to: 

(a) 

(b) 

(c) 

safety authorisations issued by the Intergovernmental Commission under Article 11 
of Directive 2004/49/EC to the infrastructure manager of the Channel Fixed Link; 

safety certificates issued by the  Intergovernmental Commission under Article 10 of 
Directive  2004/49/EC  to  railway  undertakings  established  in  the  United  Kingdom 
and using the Channel Fixed Link. 

licences  issued  under  Chapter  III  of  Directive  2012/34/EU  to  railway  undertakings 
established in the United Kingdom and using the cross-border infrastructure linking 
the Union and the United Kingdom through the Channel tunnel. 

In accordance with Article 3(1) of Regulation (EU) 2020/2222, safety authorisations remained 
valid  for two months from  the date of application of the Regulation  (thus until  28 February 
2021). 

The  proposed  Regulation  aims  at  extending  contingency  measures  regarding  the  validity  of 
safety certificates and licences. The proposed extension period is 31 March 2022. 

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2021/0228 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EU) 2020/2222 of the European Parliament and of the Council 
with regard to the cross-border infrastructure linking the Union and the United 
Kingdom through the Channel Fixed Link 

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

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

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In order to ensure the connectivity between the Union and the United Kingdom after  
the  end  of  the  transition  period  referred  to  in  Article  126  of  the  Agreement  on  the 
withdrawal  of  the  United  Kingdom  from  the  European  Union  and  the  European 
Atomic  Energy  Community8,  and  the  continuity  of  the  operations  of  the  rail 
undertakings  established  and  licensed  in  the  United  Kingdom  which  operate  in  the 
Channel  Fixed  Link,  Regulation  (EU)  2020/2222  of  the  European  Parliament  and  of 
the Council9 extended until 30 September 2021 the period of validity of the licences 
issued  by  the  United  Kingdom  under  Directive  2012/34/EU  of  the  European 
Parliament and of the Council10 to rail operators established in its territory, as well as 
that of the safety certificates issued to those undertakings under Directive 2004/49/EC 
of  the  European  Parliament  and  of  the  Council11  by  the  Intergovernmental 

OJ C , , p. . 
OJ C , , p. . 
Agreement  on  the  withdrawal  of  the  United  Kingdom  of  Great  Britain  and  Northern  Ireland  from  the 
European Union and the European Atomic Energy Community, OJ L 29, 31.1.2020, p. 7. 
Regulation  (EU)  2020/2222  of  the  European  Parliament  and  of  the  Council  of  23  December  2020  on 
certain aspects of railway safety and connectivity with regard to the cross-border infrastructure linking the 
Union and the United Kingdom through the Channel Fixed Link, OJ L 437, 28.12.2020, p. 43. 
Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a 
single European railway area, OJ L 343, 14.12.2012, p. 32 
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 
levying of charges for the use of railway infrastructure and safety certification,  OJ L 164, 30.4.2004, p. 
44, no longer in force 

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(2) 

(3) 

Commission  established  pursuant  to  Article  10  of  the  Treaty  between  the  United 
Kingdom  of  Great  Britain and Northern  Ireland and the French Republic  concerning 
the  construction  and  operation  by  private  concessionaires  of  a  channel  fixed  link, 
signed at Canterbury on 12 February 1986. 
Decision (EU) 2020/1531 of the European Parliament and of the Council12 empowers 
France and the United Kingdom to conclude an international agreement supplementing 
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 (‘the Treaty of Canterbury’) as regards the application of railway 
safety  rules  within  the  Channel  Fixed  Link.  However,  no  agreement  has  been 
concluded yet or is likely to be concluded soon. 

 In  those  circumstances,  France  has  negotiated  with  the  United  Kingdom  a  cross 
border  agreement  pursuant  to  Article  14  of  Directive  2012/34/EU  regarding  safety 
certificates. France also negotiated such an agreement regarding railway undertakings 
licences,  as  notified  to  the  Commission  on  10  November  2020  and  underlined  in 
recital (9) of Regulation (EU) 2020/2222.  The internal procedures required under the 
law  of  both  Parties  for  the  provisional  application  or  entry  into  force  of  those 
agreements  are expected to   take six months to be completed after the expiry, on 30 
September 2021, of the measures provided for in Regulation (EU) 2020/2222. 

(4)  Without prejudice of the assessment to be made and the decisions to be taken by the 
Commission  pursuant  to  Article  14(4)  and  (5)  of  Directive  2012/34/EC,  those  two  
cross-border  agreements  are  appropriate  instruments  to  ensure  the  connectivity 
between the Union and the United Kingdom. However, unless the period of validity of 
the licences and safety certificates referred to in recital (1) is extended so as to allow 
for those agreements to enter into force or be provisionally applied, operations of the 
rail  undertakings  concerned  in  the  Channel  Fixed  Link  will  come  to  a  halt  on  30 
September  2021,  causing  significant  disruption  in  the  transport  of  passengers  and 
freight between the Union and the United Kingdom. 

(5) 

(6) 

(7) 

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It  is  therefore  in  the  Union’s  interest  to  extend  the  period  of  validity  of  those 
certificates  and  licences  until  31  March  2022  by  amending  Regulation  (EU) 
2020/2222. 

In  view  of  the  urgency  entailed  by  the  expiry  of  the  measures  provided  for  in 
Regulation (EU) 2020/2222, it is 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  the  Treaty  establishing  the 
European Atomic Energy Community. 

Since the objective of this Regulation, namely to amend Regulation  (EU) 2020/2222 
and  to  lay  down  provisional  measures  on  certain  aspects  of  railway  safety  and 
connectivity  with  regard  to  the  end  of  the  transition  period,  cannot  be  sufficiently 
achieved  by  the  Member  States  but  can  rather,  by  reason  of  its  scale  and  effects,  be 
better achieved at Union level, the Union may adopt measures, in accordance with the 
principle  of  subsidiarity  as  set  out  in  Article  5  of  the  Treaty  on  European  Union.  In 

Decision (EU) 2020/1531 of the European Parliament and of the Council of 21 October 2020 empowering 
France  to  negotiate,  sign  and  conclude  an  international  agreement  supplementing  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, OJ  L 352, 22.10.2020, p. 4 

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accordance  with  the  principle  of  proportionality  as  set  out  in  that  Article,  this 
Regulation does not go beyond what is necessary in order to achieve that objective.  

(8) 

This Regulation should enter into force as a matter of urgency, 

HAVE ADOPTED THIS REGULATION: 

Regulation (EU) 2020/2222 is amended as follows: 

(1) 

Article 3 is amended as follows: 

Article 1 

(a) 

the first sentence of paragraph 2 is replaced by the following: 

‘The safety certificates referred to in point (b) of Article 1(2) shall remain valid 
for fifteen months from the date of application of this Regulation.’ 

(b) 

the first sentence of paragraph 3 is replaced by the following: 

‘Licences referred to in point (c) of Article 1(2) shall remain valid for fifteen 
months from the date of application of this Regulation.’ 

(2) 

In Article 8, paragraph 3 is replaced by the following: 

‘3. This Regulation shall cease to apply on 31 March 2022.’  

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

Article 2 

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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