The European Commission (EC) has issued a proposal for a regulation to the European Parliament and the Council regarding the cross-border railway infrastructure between the European Union and the United Kingdom and the applicability of train licences issued by the United Kingdom after 31 December 2020.
The transition period, after which European Union law will no longer apply to and in the United Kingdom, will come to an end on 31 December 2020.
The treaty between the UK and France governing the Channel Tunnel is the Treaty of Canterbury, signed in 1986. This treaty established an Intergovernmental Commission to supervise all issues around the construction and operation of the Channel Tunnel. Up until the end of the transition period, this Intergovernmental Commission is viewed by the EU as a ‘national safety authority’.
However, after the transition period comes to an end, EU law will no longer apply to the section of the Channel Tunnel under British jurisdiction. Furthermore, for the section of the Channel Tunnel under French jurisdiction the Intergovernmental Commission will no longer be seen as a national safety authority under EU law. Consequently, the safety authorisations for the Channel Tunnel’s infrastructure manager and the safety certificates for the railway undertakings operating through the tunnel that have been issued by the Intergovernmental Commission will no longer be valid.
On 21 October 2020 the European Parliament and the Council empowered France to negotiate, sign and conclude an agreement with the UK regarding the application of EU railway safety and interoperability rules in the tunnel in order to maintain a unified safety regime (Decision (EU) 2020/1531). The problem is that the likelihood of such an agreement entering into force by the end of the year is low. Therefore the Commission is proposing that the safety authorisation issued to the Channel Tunnel infrastructure manager by the Intergovernmental Commission should remain valid until the end of February 2021. The French authorities believe this is the time needed to give the French National Safety Authority enough time to issue its own safety authorisation for the section of the Channel Tunnel under its jurisdiction.
Should the two months not suffice, the Intergovernmental Commission could issue a single safety authorisation replacing the one issued by the French National Safety Authority. The conditions for this would still have to be established.
A second issue is that licences issued by the UK to railway undertakings established in its territory before the end of the transition period will not be valid in the EU after that date.
On 10 November 2020 France notified the Commission of its intention to negotiate a cross-border agreement with the UK. The purpose would be to allow rail undertakings established and holding a licence issued by the UK to use the cross-border rail infrastructure until the border-crossing station and terminal of Calais-Fréthun without obtaining a licence from an EU licensing authority.
The proposal here is for the validity of their licences issued by the UK and their safety certificates issued by the Intergovernmental Commission should be extended for nine months from the date of application of the proposed regulation. This is the time period requested by the French authorities.
This 9-month period would allow France and the UK to negotiate and conclude a cross-border agreement. Should these bilateral negotiations not be concluded in time, the railway undertakings in question will have to obtain an EU licence by the date the proposed regulation ceases to apply.
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