Explanatory Memorandum to COM(2020)623 - Amendment of Directive (EU) 2016/798, as regards the application of railway safety and interoperability rules within the Channel Fixed Link - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2020)623 - Amendment of Directive (EU) 2016/798, as regards the application of railway safety and interoperability rules within the ... |
|---|---|
| source | COM(2020)623  |
| 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. 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, Union law will no longer be applicable to the part of the Channel Fixed Link under the jurisdiction of the United Kingdom.
In order to ensure the safe and efficient operation of the Channel Fixed Link, it is necessary to have a single safety authority responsible for the whole of this infrastructure, which should remain the Intergovernmental Commission. This requires amending Directive (EU) 2016/798.
In a parallel and related initiative, the Commission also proposes the adoption of a decision of the European Parliament and Council empowering France to negotiate and conclude under certain conditions an international agreement that would maintain the Intergovernmental Commission as the single national safety authority for the Channel Fixed Link 3 . Such an agreement would ensure that the Intergovernmental Commission complies with the provisions of Union law applicable to National Safety Authorities, and in particular Directive (EU) 2016/798, and Directive (EU) 2016/797 4 and Regulation (EU) 2016/796 5 in the Channel Fixed Link. This agreement would provide that, in cases of emergency, the French national safety authority might temporarily assume competence over the part of the Channel Fixed Link under French jurisdiction. It would also provide that, when a dispute before the arbitration tribunal set up by the Treaty of Canterbury raises a question of interpretation of Union law, that tribunal must refer that question to the Court of Justice of the European Union. Finally, under the proposed empowerment decision, the Commission would authorise France to conclude the agreement after checking that it fulfils the conditions laid down in the empowerment decision.
Taking account of this Commission Proposal for an empowerment decision addressed to France, the present Proposal aims at amending Article 3(7) of Directive (EU) 2016/798, which defines the notion of “national safety authority”, both for the purposes of railway safety under that Directive and railway interoperability under Directive (EU) 2016/797. The objective is to allow a body entrusted by a Member State and a third country with the tasks regarding railway safety and interoperability on the basis of an international agreement concluded or authorised by the EU to be considered as a national safety authority under Union law.
In addition, the present Proposal would provide that, where necessary for reasons of railway safety, the Member State concerned should make use without delay of the right afforded by the agreement with the third country concerned, whereby the national safety authority is entitled to assume sole competence over the part of the rail infrastructure situated in that Member State. The proposal would also provide that the European Court of Justice would have jurisdiction to give a ruling at the request of an arbitration tribunal set up by an international agreement such as the one that France should be empowered to negotiate and conclude with the United Kingdom.
• Consistency with existing policy provisions in the policy area
This proposal is an amendment with a very limited scope of Directive (EU) 2016/798 that would address some of the consequences ensuing from the fact that that Directive will no longer apply to the United Kingdom. The proposed terms are strictly limited to what is necessary in this respect, to ensure safe and efficient cross-border operations, and complement existing provisions. This proposal is thus fully consistent with the existing legislation.
• Consistency with other Union policies
The proposal concerns railway safety and interoperability, amending Directive (EU) 2016/798 to deal specifically with the situation of the Channel Fixed Link after the withdrawal of the United Kingdom from the Union.
2. 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 seeks an amendment of Directive (EU) 2016/798 that is necessary for the purposes described above, its objective can only be achieved through an act at the level of the Union.
• Proportionality
The proposed Regulation is considered proportionate as it is capable of ensuring the safe and efficient operation of the Channel Fixed Link and avoiding disruptions through providing for a limited and necessary legal change. It does not go beyond what it necessary to achieve this objective.
• Choice of the instrument
This proposal contains a limited set of provisions to address a very specific situation and none of them requires transposition in national legislation. Taking this into consideration a regulation of the European Parliament and Council appears to be an adequate form of legal act.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
Not applicable, as the proposal is an amendment of existing legislation and it is very limited in scope.
• Stakeholder consultations
The very limited scope of the amendment of Directive (EU) 2016/798 does not require consulting publicly on the proposal.
• Collection and use of expertise
This proposal has been subject to in-house legal and technical analysis to ensure the proposed measure achieves its intended purpose, but is at the same time limited to what is strictly necessary.
• Impact assessment
An impact assessment is not needed, given that there are no materially different policy options available except for 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. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
Not applicable.
• Explanatory documents (for directives)
Not applicable
• Detailed explanation of the specific provisions of the proposal
The Proposal consists of two elements:
Through the insertion of a new indent in Article 3(7) of Directive (EU) 2016/798, a body entrusted by a Member State and a third country with tasks regarding railway safety on the basis of an international agreement concluded or authorised by the Union could be considered as a national safety authority under Union law.
Under a new paragraph 4 inserted in Article 16 of Directive (EU) 2016/798, specific rules would be established for the application of Union railway safety and interoperability rules when the safety authority for a single piece of engineering structure is established by a Member State and a third country pursuant to an international agreement concluded or authorised by the Union. In particular, this provision provides for the duty of the Member State concerned to take all the necessary measures to ensure that Union law is applied at all times. It also provides that the European Court of Justice is competent for rendering preliminary rulings on issues of interpretation of Union law when they are raised in disputes between the Member State and the third country concerned in the areas of railway safety and interoperability.