Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL empowering the French Republic to negotiate, sign and conclude an international agreement on the safety and interoperability requirements within the Channel Fixed Link
Date: 2023-06-20
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: English Channel, France, United Kingdom, bilateral agreement, international negotiations, international transport, rail transport, ratification of an agreement, signature of an agreement, transport infrastructure, transport safety

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   EUROPEAN COMMISSION  Brussels, 20.6.2023  COM(2023) 328 final 2023/0192 (COD)  Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL empowering the French Republic to negotiate, sign and conclude an international agreement on the safety and interoperability requirements within the Channel Fixed Link  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The  Channel  Fixed  Link  is  a  unique  railway  link  involving  a  single,  complex  engineering 
structure situated partly in the territory of the French Republic and partly in a third country, 
namely the United Kingdom.  

It  requires  coherent  rail  safety  and  interoperability  requirements  across  the  whole  Channel 
Fixed  Link,  as  well  as  cooperation  between  the  French  and  the  British  national  safety 
authorities.  

To ensure the safe and efficient operation of the Channel Fixed Link, the French Republic has 
requested,  on  23  March  2023,  an  empowerment  to  negotiate  and  conclude  with  the  United 
Kingdom  of  Great  Britain  and  Northern  Ireland  (‘United  Kingdom’)  an  international 
agreement on the safety and interoperability requirements within the Channel Fixed Link.  

This  agreement  would  also  partly  transpose  the  Fourth  Railway  Package  technical  pillar 
(Directives  (EU)  2016/797  and  (EU)  2016/798  of  the  European  Parliament  and  of  the 
Council1) for the part of the Channel Fixed Link under the French Republic’s jurisdiction. 

It is therefore appropriate to authorise the French Republic to negotiate, sign and conclude an 
international  agreement  with  the  United  Kingdom  on  the  safety  and  interoperability 
requirements in the Channel Fixed Link. 

The  agreement  should  ensure  that  the  part  of  the  Channel  Fixed  Link  under  the  French 
Republic’s  jurisdiction  are  governed  by  Union  law,  with  the  Court  of  Justice  exclusively 
competent  to  interpret  them.  Hence  nothing  in  this  agreement  will  put  into  question  the 
principle  of  primacy  of  Union  law.  The  principle  of  direct  effect,  where  applicable,  should 
also be respected. The independence of the European Union Agency for railways and of the 
French national safety authority should be ensured. 

The agreement should also contain a specific mechanism to allow for its amendment in case 
of  future  changes  of  the  Union  law,  in  particular  of  Directives  (EU)  2016/797  and  (EU) 
2016/798. It should also contain an empowerment for the Commission allowing it to authorise 
the  French  Republic  to  amend  the  agreement  to  adapt  it  in  case  of  amendments  to  such 
Directives.  As  regards  the  part  of  the  Channel  Fixed  Link  under  the  United  Kingdom’s 
jurisdiction,  the  agreement  should  ensure  coherence  of  the  safety  and  interoperability 
requirements, thereby contributing to safety and interoperability in the Channel Fixed Link. 

The  French  Republic  had  already  requested  a  Union  empowerment  in  2020  to  negotiate  an 
agreement  with  the  United  Kingdom  that  would  have  ensured  the  unified  and  dynamic 
application  of  Union  law,  and  in  particular  Regulation  (EU)  2016/796  and  Directives  (EU) 
2016/797  and  (EU)  2016/798,  over  the  entire  Channel  Fixed  Link  (including  the  part  under 
United  Kingdom’s 
the 
Intergovernmental Commission assisted by its Safety Authority put in place by the Treaty of 

jurisdiction)  supervised  by  a  binational  authority,  namely 

1  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 

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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Canterbury. The French Republic was empowered to do so by Decision (EU) 2020/15312. The 
negotiations  under  the  conditions  laid  down  in  that  decision  have  so  far  not  led  to  an 
agreement  satisfactory for both  Parties. Therefore, an alternative empowerment  is  proposed. 
Since  an  agreement  concluded  on  the  basis  of  Decision  (EU)  2020/1531  would  provide  a 
more  unified  and  thus  efficient  way  of  ensuring  safety  and  interoperability  over  the  entire 
Channel  Fixed  Link,  this  option  should  not  be  ruled  out  and  the  proposed  Decision  should 
thus be without prejudice to Decision (EU) 2020/1531. 

• 

Consistency with existing policy provisions in the policy area 

The  above-mentioned  objectives  are  fully  consistent  with  existing  policy  in  the  area  of 
railway safety and interoperability, as well as with Decision (EU) 2020/1531 for the reasons 
stated above. 

• 

Consistency with other Union policies 

An international agreement on the safety and interoperability requirements within the Channel 
Fixed Link will not result in inconsistencies 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 international agreement on the safety and interoperability requirements within the Channel 
Fixed  Link  ensuring  uniform  application  of  rail  safety  and  interoperability  requirements 
across the whole Channel Fixed Link. 

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 coherent safety and interoperability requirements across the 
entire Channel Fixed Link, including the part under the United Kingdom’s jurisdiction. 

Therefore, it is appropriate to include the rail safety and interoperability  elements into in an 
agreement between the French Republic and the United Kingdom, hence the need to empower 
the French Republic to that effect. 

The  proposed  Decision  of  the  European  Parliament  and  of  the  Council  addressed  to  the 
French  Republic  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. 

2  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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3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Not applicable. 

• 

Stakeholder consultations 

No  formal  consultation  was  performed.  This  proposal  is  based  on  a  request  made  by  the 
French  Republic  and  the  empowerment  proposed  would  be  addressed  to  this  Member  State 
only. 

• 

Impact assessment 

The  proposal  is  based  on  a  request  made  by  the  French  Republic  and  the  empowerment 
proposed  would  be  addressed  to  this  Member  State  only.  It  also  concerns  a  very  specific 
matter,  limited  in  scope,  namely  the  coherence  of  safety  and  interoperability  requirements 
across the entire Channel Fixed Link. 

• 

Regulatory fitness and simplification 

The proposal is not linked to REFIT. 

• 

Fundamental rights 

The proposal has no consequences for the protection of fundamental rights. 

4. 

BUDGETARY IMPLICATIONS 

This proposal has no impact on the Union budget.  

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2023/0192 (COD) 

Proposal for a 

DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

empowering the French Republic to negotiate, sign and conclude an international 
agreement on the safety and interoperability requirements 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 2(1) and 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 Committee3,  
Having regard to the opinion of the Committee of the Regions4,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

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4 
5 
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The Treaty between the French Republic 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  (“the Treaty of 
Canterbury”)  established  an  Intergovernmental  Commission  to  supervise  all  matters 
concerning the construction and operation of the Channel Fixed Link.  

Since  the  end  of  the  transition  period  provided  for  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  Community5,  the  infrastructure 
manager of the Channel Fixed Link and the rail undertakings operating in the Channel 
Fixed Link are subject to two separate legal frameworks as regards railway safety and 
interoperability.  

By  letter  of  16  July  2020,  the  French  Republic  requested  an  empowerment  by  the 
Union to negotiate and conclude an international agreement with the United Kingdom 
on  the  safety  and  interoperability  requirements  within  the  Channel  Fixed  Link.  In 
accordance  with  such  request,  Decision  (EU)  2020/1531  of  the  European  Parliament 
and  of  the  Council6  empowered  the  French  Republic  to  negotiate  an  agreement  to 
ensure  the  unified  and  dynamic  application  of  Union  law,  in  particular  Regulation 

OJ C , , p. . 
OJ C , , p. . 
OJ L 29, 31.1. 2020, p.7. 
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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(EU)  2016/796  of  the  European  Parliament  and  of  the  Council7  and  Directives  (EU) 
2016/797 and (EU) 2016/798 of the European Parliament and of the Council8, over the 
entire Channel  Fixed Link. Also, Decision (EU) 2020/1531 laid down the conditions 
under  which  the  Intergovernmental  Commission  could  continue  fulfilling  the  role  of 
national safety authority responsible for the part of the Channel Fixed Link under the 
jurisdiction of the French Republic.  

Because the negotiations under the conditions  laid down in  that decision have so  far 
not  led to  an agreement  satisfactory for both  Parties, by letter of 23 March 2023  the 
French  Republic  manifested  its  intention  to  negotiate  and  conclude  a  different 
agreement.       

An international agreement with a third country on railway safety and interoperability 
in cross-border situations is liable to affect an area covered to a large extent by Union 
law,  and  in  particular  by  Directives  (EU)  2016/7989  and  (EU)  2016/797  and 
Regulation  (EU)  2016/796  of  the  European  Parliament  and  the  Council.  Therefore, 
any such agreement falls within the Union's exclusive external competence. Member 
States may negotiate and conclude such agreement only if empowered to do so by the 
Union  in  accordance  with  Article  2(1)  of  the  Treaty  on  the  Functioning  of  the 
European  Union  (TFEU).  Since  the  agreement  concerns  areas  covered  by  existing 
Union law in the area of transport, it is necessary that such empowerment be granted 
by  the  Union  legislator,  in  accordance  with  the  legislative  procedure  referred  to  in 
Article 91 TFEU. 

Considering  the  uniqueness  of  the  Channel  Fixed  Link  as  a  railway  link  involving  a 
single,  complex  engineering  structure  situated  partly  in  the  territory  of  the  French 
Republic  and  partly  in  a  third  country,  it  is  appropriate  to  authorise  the  French 
Republic  to  negotiate,  sign  and  conclude  an  international  agreement  with  the  United 
Kingdom to ensure the application of coherent rules on safety and interoperability in 
the  Channel  Fixed  Link,  as  well  as  to  ensure  the  cooperation  between  the  French 
national  safety  authority,  namely  the  Etablissement  Public  de  Sécurité  Ferroviaire 
(‘EPSF’)  and  the  United  Kingdom’s  national  safety  authority,  namely  the  Office  of 
Rail and Road (‘ORR’).  

The  part  of  the  Channel  Fixed  Link  under  the  jurisdiction  of  the  French  Republic 
should  remain  subject  to  Union  law.  The  principles  of  primacy  and,  where  relevant, 
direct  effect  of  Union  law  and  the  respective  competences  of  Union  institutions  and 
bodies should be safeguarded.    

Disputes  between  the  French  Republic  and  the  United  Kingdom  concerning  the 
application  of  the  Agreement  should  not  be  submitted  to  the  arbitral  tribunal  set  up 
under Article 19 of the Treaty of Canterbury or to any other means of legally binding 
dispute settlement.  

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  L  138, 
26.5.2016, p. 1). 
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). 
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). 
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 

(4) 

(5) 

(6) 

(7) 

(8) 

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(9) 

(10) 

(11) 

In  accordance  with  Article  3  of  the  Regulation  (EU)  2016/796,  the  European  Union 
Agency for Railways should continue having the sole responsibility for the functions 
and  powers  assigned  to  it  and,  in  accordance  with  Article  16  of  Directive  (EU) 
2016/798,  the  EPSF  should  continue  to  be  independent  in  its  decision  making. 
Consequently, the role, in respect of the matters addressed in the proposed agreement, 
of the Intergovernmental Commission and the Safety Authority established under the 
Treaty of Canterbury should be limited to coordinating the activities of the EPSF and 
the  ORR.  The  regulatory  acts  of  the  Intergovernmental  Commission  and  the  Safety 
Authority  or  their  effects  should  not  affect  the  decision-making  autonomy  of  the 
EPSF, in conformity with Union law. 

In order to ensure that Union law is correctly implemented at all times  in the part of 
the Channel Fixed Link under the jurisdiction of the French Republic, and in order to 
ensure that the Commission can oversee its application under the control of the Court 
of  Justice,  including  in  circumstances  of  urgency,  the  French  Republic  should  retain 
the right to unilaterally suspend or terminate the agreement.  

In  order  to  account  for  possible  future  changes  of  Union  law,  in  particular  of 
Directives (EU) 2016/797 and (EU) 2016/798, the agreement should also provide for 
rules  for  its  amendment.  The  Commission  should  be  empowered  to  authorise  the 
French Republic to amend the agreement in accordance with the amending procedure 
laid down therein, in order to adapt it to changes in Union law.  

(12)  With  a  view  to  future  possible  developments,  this  empowerment  should  be  without 
prejudice to the empowerment granted by the Union in Decision (EU) 2020/1531, 

HAVE ADOPTED THIS DECISION: 

Article 1 

The  French  Republic  is  empowered  to  negotiate,  sign  and  conclude  an  international 
agreement  with  the  United  Kingdom  on  the  safety  and  interoperability  requirements  in  the 
Channel  Fixed  Link,  as  well  as  cooperation  between  the  EPSF  and  the  ORR  (‘the 
agreement’).  

The empowerment is subject to the conditions set out in Articles 2 and 3 of this Decision. 

1. 

In  respect  of  the  part  of  the  Channel  Fixed  Link  under  the  French  Republic 
jurisdiction, the agreement shall comply with the following conditions: 

Article 2 

(a)  The  agreement  shall  be  compatible  with  Union  law  in  all  respects.  The 
principles of primacy and, where applicable, direct effect of Union law shall be 
ensured.  

(b)  Disputes between the French Republic and the United Kingdom concerning the 
application of the Agreement shall not be submitted to the arbitral tribunal set 
up  under  Article  19  of  the  Treaty  of  Canterbury  or  to  any  other  means  of 
legally binding dispute settlement. 

(c)  The French Republic shall retain the right to unilaterally suspend or denounce 
the  agreement,  with  a  view  to  ensuring  the  full,  correct  and  expeditious 
application  of  Union  law  in  the  part  of  the  Channel  Fixed  Link  under  its 
jurisdiction.  

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(d)  The  agreement  shall  provide  for  a  mechanism  for  its  amendment,  in  order  to 

adapt it to changes in Union law.  

(e)  The  independence  and  the  respective  powers  granted  by  Union  law  to  the 
European  Union  Agency  for  Railways  and  the  EPSF,  as  national  safety 
authority within the meaning of Directive (EU) 2016/798, shall be ensured. In 
particular,  

– 

– 

– 

Acts  of  the  ORR  shall  only  be  recognised  for  the  purposes  of  the 
agreement  in  matters  where  an  earlier  agreement  has  been  concluded 
under Article 14(5) of Directive 2012/34/EU10.  

Equivalence of the acts of the ORR shall only be recognised where this is 
provided for by the Convention concerning International Carriage by Rail 
(COTIF). 

In  respect  of  the  matters  falling  within  the  scope  of  the  agreement,  the 
tasks  and  powers  of  the  Intergovernmental  Commission  and  the  Safety 
Authority  established  by  the  Treaty  of  Canterbury  shall  not  affect  the 
decision-making autonomy of the EPSF, in conformity with Union law. 

Article 3 

The French Republic shall keep the Commission regularly informed of the negotiations with 
the  United  Kingdom  of  the  agreement  and,  where  appropriate,  invite  the  Commission  to 
participate as an observer. 

Upon  completion  of  the  negotiations,  the  French  Republic  shall  submit  the  resulting  draft 
agreement  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 adopt a 
decision  as  to  whether  the  requirements  set  out  in  Article  2  are  fulfilled.  Where  the 
Commission  decides that they  are  fulfilled,  the  French Republic may sign  and conclude the 
corresponding agreement.  

The French Republic shall provide a copy of the signed agreement 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 beginning of its provisional application. 

Article 4 

Throughout the duration of the agreement, the French Republic shall ensure the full, correct 
and  expeditious  application  of  Union  law  in  the  part  of  the  Channel  Fixed  Link  under  its 
jurisdiction.  The  French  Republic  shall  take  appropriate  measures  in  that  respect  including, 
where necessary, the suspension or the denunciation of the agreement.  

Article 5 

1. 

10 

Subject  to  paragraphs 2  and 3 of this article,  the French Republic is  empowered  to 
amend the agreement, in accordance with the procedure to be laid down therein, in 
order to adapt it to future changes in Union law, and in particular to amendments of 
Regulation  (EU)  2016/796  and  Directives  (EU)  2016/797  and  (EU)  2016/798, 

Directive  2012/34/EU  of  the  European  Parliament  and  of  the  Council  of  21  November  2012 
establishing a single European railway area (recast), OJ L 343, 14.12.2012, p. 32. 

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2. 

3. 

provided that amendments of that agreement are necessary to ensure the full, correct 
and expeditious application of Union law in the part of the Channel Fixed Link under 
its jurisdiction.   

The  French  Republic  shall  keep  the  Commission  regularly  informed  of  any 
negotiations with the United Kingdom concerning amendments to the agreement and, 
where appropriate, invite the Commission to participate as an observer.  The French 
Republic  shall  submit  the  envisaged  amendments  to  the  Commission  together  with 
an  explanatory  note.  The  Commission  shall  inform  the  Council  and  the  European 
Parliament thereof. The French Republic shall provide any additional information on 
the envisaged amendments that is requested by the Commission. 

Within  [three]  months  from  the  notification  of  the  envisaged  amendment  and  the 
accompanying  explanatory  note,  the  Commission  shall  adopt  a  decision  as  to 
whether the requirements set out in paragraph 1 and in Article 2 are fulfilled. Where 
the  Commission  decides  that  they  are  fulfilled,  the  French  Republic  may  proceed 
with  the  amendment  of  the  agreement.  A  copy  of  the  amended  agreement  shall  be 
provided  to  the  Commission  within  one  month  of  the  entry  into  force  of  the 
amendment,  or,  where  the  amendment  is  to  be  applied  provisionally,  within  one 
month of the beginning of its provisional application. 

This Decision is without prejudice to Decision (EU) 2020/1531.  

Article 6 

This Decision is addressed to the French Republic. 

Done at Brussels, 

Article 7 

For the European Parliament 
The President 

For the Council 
The President 

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