The European Commission will present two new legislative proposals to MEPs on the European Parliament Committee on Transport (TRAN,) on Wednesday 2 September, to allow the safety authority responsible for the rail link between France and the UK to retain its prerogatives.
In essence, once the post-Brexit transition period is completed on 1 January 2021, the EU regulations currently in force will only apply to the French part of the Eurotunnel. A scenario that could complicate the operation of the infrastructure and lead to loopholes.
The Commission would therefore prefer to see the continuation of the intergovernmental commission responsible for all matters relating to the construction and operation of the tunnel, which was set up in 1986 by the Treaty of Canterbury.
This intergovernmental commission is considered to be a “national safety authority” as defined by the European Railway Safety Directive (2016/798).
Although it states that a ‘national safety authority’ must be established by two Member States, the directive in question does not provide, on the other hand, that it may be established by a Member State and a non-Member-State - a status which is now that of the United Kingdom.
Allowing a non-Member State to be involved
Among the two texts to be presented to the TRAN Committee on Wednesday is a proposal for a regulation - which the Commission says must be adopted as a matter of urgency - to amend Directive 2016/798.
The aim is to ensure that the concept of “national safety authority” can also apply to a body entrusted by a Member State and a non-Member State with tasks relating to railway safety and interoperability.
The proposal for a Regulation also suggests adding a paragraph to the Directive establishing the jurisdiction of the Court of Justice of the European Union to rule in the event of a dispute between the Member State and the non-Member State.
The Commission proposes as well to include in this paragraph the obligation for the Member State concerned to take “all measures at its disposal” to ensure that the safety authority complies with the applicable provisions of EU law.
Thus, if necessary, “for reasons of railway safety”, the French safety authority could exercise exclusive jurisdiction over its share of the infrastructure, for example in the event that the intergovernmental commission did not comply with a ruling of the Court of Justice of the European Union concerning it.
Empowering France to negotiate
For a non-Member State to be involved, however, the Commission proposal requires that “the Union has concluded an agreement to this effect with the non-Member State concerned or a Member State has concluded such an agreement in accordance with an authorisation granted by the Union to this effect”.
The second text to be presented by the Commission to MEPs therefore proposes the adoption of a decision of the European Parliament and the EU Council which would empower France to negotiate and conclude an international agreement allowing the continuation of the intergovernmental commission as the sole safety authority for the Eurotunnel.
The Commission's proposal also lays down a number of conditions. For example, that the agreement negotiated by France does not enter into force until after the end of the transitional period or that France undertakes to invite the Commission to participate as an observer in the negotiations.
Finally, the text provides that France, at the end of the negotiations, will submit the resulting draft agreement to the Commission so that the latter may, or may not, give its approval to the conclusion and signature of the text.
Consult the proposal for a regulation: https://bit.ly/32HU599 - the proposal for a decision: https://bit.ly/3gMKhzL (Original version in French by Agathe Cherki)