Explanatory Memorandum to COM(2020)622 - Empowering France to negotiate a supplementing its bilateral Treaty with the UK on the construction and operation by private concessionaires of a Channel Fixed Link - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2020)622 - Empowering France to negotiate a supplementing its bilateral Treaty with the UK on the construction and operation by private ... |
|---|---|
| source | COM(2020)622  |
| date | 27-07-2020 |
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 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 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 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) 2016/797 3 , Directive (EU) 2016/798 and Regulation (EU) 2016/796 4 . 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 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 OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• 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.