5Brexit: The future operation of the Channel Tunnel16
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These EU documents are legally and politically important because:
Action
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Background
5.1The ‘Channel Tunnel Fixed Link’ is the UK’s only surface transport connection to mainland Europe. The term ‘Fixed Linked’ is used to describe the British and French terminals—at Folkestone and Coquelles respectively—and the tunnel itself (comprising two running tunnels and a service tunnel).17 Legally, the tunnels comprise a British section and a French section with an international frontier.
5.2The Fixed Link is unique as a consequence of its status as joint UK/France infrastructure and this necessitates special operational and management arrangements. The Tunnel is governed by the Anglo-French ‘Intergovernmental Commission’ (IGC) which was established by the Treaty of Canterbury (signed by the UK and France in 1986). Although the IGC is formally charged with ensuring the safe operation of the Fixed Link, in practice, the Channel Tunnel Safety Authority (CTSA) is responsible for the day-to-day safe running of the Tunnel. This includes making safety proposals to the IGC, drawing up, monitoring and enforcing safety regulations, and investigating and reporting on any safety incidents.
5.3Notwithstanding the international law-based origins and management of the Fixed Link, a number of important EU laws govern the operation of, and provision of services through, the Tunnel.18 These laws include rules on railway safety, interoperability, and the issuance of vehicle and infrastructure certificates and authorisations.
5.4In terms of the commercial operation of the Tunnel, Getlink is responsible for its management and runs its own Eurotunnel Shuttle vehicle service. It also earns revenue from other services running on the Tunnel (i.e. DB Schenker freight services and Eurostar passenger trains).19
Proposed EU legislation
5.5In light of the UK’s withdrawal from the EU and the forthcoming end of the transition period (as established by the UK/EU Withdrawal Agreement), the Commission has published two legislative proposals intended to: (1) clarify the status of the IGC under EU law; and (2) ensure the safe and efficient operation of the Fixed Link. Taken together (and with the Government’s response), these documents raise questions of significant legal and political importance. Practically, they concern the future operation of the Fixed Linked—i.e. whether trains will continue to run between the UK and France after 31 December 2020—and, more generally, the future role of EU law in the UK, the oversight of the Court of Justice of the European Union (CJEU) in this regard, and the authority of EU agencies in the UK.
Proposed Council Decision (document (a) (41434))
5.6The proposed Council Decision would authorise France to negotiate and ratify an agreement with the UK to ensure the safe and efficient operation of the Channel Tunnel Fixed Link at the end of the transition period (the point at which the majority of EU law ceases to apply in the UK).20
5.7Although not directly addressed in the Commission’s Explanatory Memorandum, without an agreement on the future safety framework applicable to the Fixed Link, there is a danger of legal and practical uncertainty; with a lack of clarity over whether EU standards and mandated procedures and practices should continue to apply—as they do on the UK side of the Tunnel whilst the UK applies EU law—or an alternative system devised. As joint UK-French infrastructure, a clear resolution is necessary; otherwise significant disruption is a real possibility.
5.8The UK and France share responsibility for safety on the Fixed Link through the IGC. The EU’s Explanatory Memorandum on the proposed Council Decision explains that, until the end of the transition period, the IGC is a ‘national safety authority’ for the purposes of EU law; charged with overseeing matters relating to railway safety and interoperability on the Fixed Link. The EU’s stated position is that it would be preferable, at the end of the transition period, to continue to have a single safety authority applying the same rules across the entirety of the Fixed Link.
5.9After the end of the transition period, the IGC will be a body entrusted by a Member State (France) and a third country (the UK) with tasks relating to railway safety. However, EU law does not foresee the possibility that a national safety authority be entrusted by a Member State and a third country. Therefore, unless steps are taken, at the end of the transition period, the IGC will cease to be the EU-approved national safety authority for the Fixed Link, and EU law will no longer be applicable to the parts of the Fixed Link within the UK’s jurisdiction.
5.10In terms of process, the Commission argues that a Council Decision is needed to enable France to enter into negotiations with UK as the area concerned—railways law and policy—is heavily regulated at EU-level and falls within the EU’s exclusive external competence.21
5.11As per the terms of the proposed Council Decision, any agreement that France reaches with the UK must: (1) ensure that the IGC applies all relevant EU rail safety laws on the Fixed Link (including on the UK side); (2) in the event of a dispute being submitted for arbitration (in accordance with Article 19 of the Treaty of Canterbury), if the dispute raises a question relating to the interpretation of EU law, the arbitral tribunal should not decide on the matter itself but request a ruling from the CJEU and all rulings will be binding on the arbitral panel; and (3) in circumstances of emergency or failure of the IGC to comply with a decision of the arbitral tribunal (and by extension a ruling of the CJEU), France will retain the right to act unilaterally to regain control of the French section of the Fixed Link.22
5.12It is important to note that, once adopted, the proposed Council Decision will prevent France from negotiating and concluding any agreement with the UK that substantively deviates from these conditions. If, as an example, France wished to agree to less stringent provisions on the continued application of EU law on the UK side of the Fixed Link, a new Council Decision would be required. The time constraints involved in negotiating a new Council Decision and the public nature of this and adoption make major concessions on these issues difficult to envisage.
5.13The EU legal acts listed in the proposal are: Directive (EU) 2016/798; Directive (EU) 2016/797; and Regulation (EU) 2016/796.23 The proposal cites these acts as “…relevant to the tasks of National Safety Authorities [i.e. the IGC]...” and specifies compliance with their terms “as amended or replaced, as well as of the acts adopted on their basis”. This implies a dynamic form of alignment with all future EU law in this area including EU tertiary legislation (i.e. delegated and implementing acts).24
5.14Taken together, these acts constitute the ‘Technical Pillar’ of the ‘Fourth Railway Package’. The Technical Pillar was introduced with the aim of boosting the competitiveness of the EU railway sector by reducing costs and administrative burden.
5.15The Technical Pillar allows the European Union Agency for Railways (ERA) to issue vehicle authorisations and safety certificates across the EU (reducing the need for multiple authorisations and certificates issued by individual national authorities). Under the Technical Pillar, the ERA was also given sole authority for issuing authorisations and certificates for inter-Member State operations (i.e. on services running between Member States). This includes the Channel Tunnel, however, the ERA will not assume responsibility for issuing safety certificates and vehicle authorisations—from the IGC—until 31 December 2020. Authorisations relate to the conditions that must be met for locomotives to be placed on the market—by manufacturers—and, for certificates, those that must be complied with by railway undertakings to operate services.
5.16The Technical Pillar also defines EU ‘Technical Specifications for Interoperability’ (TSIs). These standards specify the technical and operational thresholds that must be met by rail subsystems or parts of subsystems in the EU (‘subsystems’ include, but are not limited to, infrastructure, trackside control-command and signalling, and rolling stock). Equipment that is TSI-complaint is automatically authorised to run on infrastructure that applies the relevant TSIs. Examples of TSIs include those specifying line layout, track parameters and track resistance to traffic loads, however, TSIs also cover issues such as identifying barriers to accessibility for people with disabilities or reduced mobility.25
5.17The 2010 European Scrutiny Committee reported on the Technical Pillar of the Fourth Railway Package—as 9 linked documents—on 27 February 2013.26 The Committee considered the package to be politically important and recommended it for debate on the floor of the House. The debate was moved by then Minister of State at the Department for Transport, Simon Burns MP, on 25 April 2013.27 During the debate, Mr Burns explained that the cross-border role envisaged for the ERA would ultimately prevent the IGC from issuing authorisations and certificates. No further comment was made on the potential implications of the package for the Fixed Link.
5.18In correspondence to the 2015 European Scrutiny Committee, the then Parliamentary Under Secretary of State at the Department for Transport, Clare Perry MP, indicated that the Government intended to vote in favour of the adoption of the Technical Pillar.28
5.19It appears that these conditions—on the applicability of EU law to the Fixed Link, the role of the CJEU, and France’s ability to act unilaterally to ensure enforcement—would have to be included in the text of any supplementary agreement or protocol to the Treaty of Canterbury (that France would be authorised to negotiate, in accordance with the proposed Council Decision). It is not clear, however, whether the role of the IGC would require modification. The IGC is currently charged with responsibility for safety-related issues but this function does not directly extend to oversight of the application of specific EU laws (as is envisaged by the Commission).
Proposed Regulation (document (b) (41435))
5.20The proposed Regulation complements the proposed Council Decision and would ensure that the negotiating conditions discussed above, if agreed by both sides, are compatible with EU law.
5.21The proposed amendments would serve two main purposes: (1) to allow the IGC to be recognised as a national safety authority for the purposes of EU law (this is not currently possible for joint bodies established between a Member State and third country); and (2) allow Member States to designate a safety authority competent for a single piece of rail infrastructure situated partly in the territory of a Member State and partly in the territory of a third county.
5.22In light of the proposed Council Decision, the arbitral role envisaged for the CJEU and the ability for France to regain control for the French section of the Tunnel are also provided for. These points are expressed in general terms in order to ensure their relevance in EU law beyond the present situation.
5.23Finally, the proposal specifies that in proceedings before the CJEU, third countries may participate in “the same way as a Member State”.
The Government’s position
5.24The Minister responsible for the proposals, Rachel Maclean MP, wrote to the Committee by way of Explanatory Memorandum (EM) on 11 August 2020. The Minister’s EM is thorough and provides detailed background information on the proposals.
5.25The Minister is clear that the proposals are not consistent with the Government’s objectives for the UK “as an independent and sovereign nation outside the EU”. The Minister further states that the Government has been clear with the Commission and France that:
…any jurisdiction for the CJEU in UK territory from the end of the transition period is not compatible with the UK’s red lines and does not reflect its status as a third country.
5.26The Minister makes an almost identical statement regarding the suggestion of dynamic alignment with EU laws and, furthermore, raises serious concerns over the lack of clarity from the EU on the recognition of the IGC as a national safety authority beyond 2020 and the future role of the ERA.29
5.27At the same time, the Minister is keen to stress the importance of the Fixed Link to the UK and that its continued smooth operation—on the basis of a unified safety regime—is its number one priority. The Government’s commitment to the IGC is made clear, however, the Minister is less forthcoming with alternative proposals for the operation of the Channel Tunnel at the end of the Transition Period. Indeed, the Minister mentions ‘split regulation’ models, mutual recognition and cooperation but the details of these ideas are not fleshed-out in any meaningful way. The same is also true of the EU’s proposals for CJEU oversight of parts of any agreement; a UK alternative is not offered.
5.28In terms of process, the Minister is not especially clear on the view of industry on the proposals, stating only that the maintenance of the IGC’s role and the unified safety regime is preferred. Furthermore, unlike the stipulation in the proposed Council Decision that France keep the Commission informed on the progress of negotiations with the UK, the Government does not make any similar commitment to the Committee or, indeed, the House.
General comments
5.29The most significant implications of the EU’s proposal for the Fixed Link and the UK are centred the around the issues of dynamic alignment with EU law, and the role of the EU Agency for Railways.
Dynamic alignment with EU law
5.30As a condition for the authorisation of any agreement between the UK and France, the proposed Council Decision provides that the IGC must ensure the application to the Channel Tunnel of the:
…provisions of Union law relevant to the role of National Safety Authorities within the meaning of Article 3(7) of Directive (EU) 2016/798, and in particular of that Directive, Directive (EU) 2016/797 and Regulation (EU) 2016/796, as amended or repealed, as well as of the acts adopted on their basis.30
5.31As briefly mentioned above, this stipulation would appear to oblige the UK to align with all current and future EU law in this area including EU tertiary legislation (i.e. delegated and implementing acts). This is a result of the IGC governing the UK and French sides of the Fixed Link and the EU’s position that this is undertaken in line with the listed EU legal acts “as amended or repealed, as well as of the acts adopted on their basis”.
5.32In terms of the practical consequence of this arrangement, as outlined above, the legal acts listed in the proposed Council Decision comprise the Technical Pillar of the Fourth Railway Package and relate to compliance with specific EU technical standards.
5.33These standards—known as TSIs—are not, however, merely technical in nature, covering, for example, specifications for train signalling. The above mentioned TSI on accessibility for people with disabilities or reduced mobility was introduced as a way of giving effect to parts of the UN Convention on the Rights of Persons with Disabilities.31 The use of TSIs in this way is novel but points to the possibility of more normative issues being subject to this form of regulation in the future.
5.34Any agreement to dynamically align with EU law on the Fixed Link would, unless specified otherwise, require adherence with these more qualitative TSIs. It must be remembered that the development of EU law in this area was justified as necessary to boost the competitiveness of the EU rail industry. Although unlikely, it cannot be ruled-out that more level playing field(esque) requirements are the subject of specific TSIs in the future. Consideration must be also be given in this regard to the Government’s stated intention not to seek a formal relationship with the ERA and, thus, the limited ability that the UK will have to influence the development of such standards in the future.
5.35The scope of application of TSIs—and the listed legal acts—is an issue further complicated by the unique character of the Fixed Link as shared infrastructure. The responsibility of the IGC covers the Tunnel as marked by its boundaries at Folkestone and Coquelles, however, in terms of its operation, on the UK side, services do not start and end at Folkestone but run to/from London St Pancras International. This is without changes to locomotives and, to the Committee’s best knowledge, any difference in regulatory environment applicable to rail infrastructure.
5.36A consequence of this situation would appear, in the short to medium term and save specific domestic provision being made, de facto alignment with EU rules from Folkestone to St Pancras.32
Additional context relevant to the proposed Council Decision
5.37The Commission’s proposal is not its first foray into legislating for the future operation of the Fixed Link (in light of the UK’s withdrawal from the EU). Our predecessor Committee considered the Commission’s ‘no-deal’ Channel Tunnel proposal in March 2019 and noted its political importance.33 Since adopted as Regulation (EU) 2019/503,34 it provided a legal basis for the Commission to extend the validity of certain safety certificates covering the Tunnel for 3 months of no-deal Brexit.35
5.38Although not covering interoperability issues per se, the EU’s unilateral extension of certificate validity was conditional on the UK doing likewise and:
…maintaining safety standards and procedures… which are identical to Union requirements being applied to the infrastructure which is used for the purposes of ensuring cross-border rail connectivity with the United Kingdom…36
5.39It is interesting that the EU did not prescribe specific legal acts that should be complied with, like in the present case, and adopted a seemingly looser approach to ensuring equivalence.37
5.40Finally, it is important to briefly note the history of TSIs and their application to the Fixed Link. Rather than applying in isolation to the Tunnel, TSIs have applied alongside other safety rules developed by the Channel Tunnel Safety Authority.38 A notable example in this regard is the TSI covering safety in railway tunnels (which did not apply to the Fixed Link until relatively recently).39 Although giving effect to the majority of TSIs, examples of divergence do exist on the Fixed Link, however, these are primarily a consequence of its unique infrastructure rather than a result of a choice between which standard should apply i.e. CTSA-authored rules versus relevant EU TSIs.40
5.41The prevailing regulatory environment of the Tunnel is one that is conditioned by EU law and where divergence is the exception rather than the rule with thus being the case for some time.
The future role of the EU Agency for Railways
5.42The proposed Regulation would allow the IGC to be recognised as a national safety authority under EU law and to issue safety certificates and authorisations valid for the French side of the Tunnel. Importantly, the status of the IGC as an EU-recognised national safety authority—and its ability to issue safety certificates and authorisations for the entire Fixed Link—will end on 31 December 2020. This is in line with the role envisaged for the ERA in the Fourth Railway Package and will take effect unless a decision is made by the Commission empowering the IGC beyond 31 December 2020.41
5.43The main practical consequence of this change is that, save for Commission recognition of the IGC’s role, trains from France would be able to reach mid-way in the Tunnel in reliance on ERA documentation, bypassing the IGC in respect of the French half of the Fixed Link, but leaving the IGC with decision-making powers for the UK half of the Tunnel. This would effectively hollow-out the role of the IGC and mark a major change in the governance of the Fixed Link.42
5.44An alternative, as suggested by the Government, would be for the IGC to continue to be recognised as the sole safety authority for the purposes of EU law—after 31 December 2020—and for an agreement to be reached on the mutual recognition of French/ERA- and UK-issued safety documents covering the line beyond Folkestone and Coquelles respectively.
Action
5.45The Committee have written to the Minister responsible for the handling of the documents, Rachel Maclean MP, and requested further information on: the Government’s alternative proposals for the operation of the safety regime applicable to the Channel Tunnel Fixed Link at the end of the transitional period; and for the Government to keep the House updated on the progress of negotiations with France.
5.46We have drawn this chapter to the attention of the Transport Committee, the International Trade Committee, and the Committee on the Future Relationship with the European Union.
Letter from the Chair to the Under-Secretary of State (Racheal Maclean MP), Department for Transport
The Committee have asked me to thank you for your joint Explanatory Memorandum (EM) of 11 August 2020 on the two above listed documents.
The Committee believes that the proposed Council Decision—and linked Regulation—constitute documents of significant legal and political importance. We are grateful for the detailed information that you have provided on their content, and the clarity with which you have explained the Government’s assessment of their potential implications for UK transport law and policy.
An agreement with France on the Channel Tunnel Fixed Link—reached in accordance with the conditions stipulated in the proposed Council Decision—would be unprecedented. As you explain in your EM, dynamic alignment with EU laws, oversight of the application and interpretation of EU law in the UK by the Court of Justice of the European Union (CJEU), and the potential future role of the European Union Agency for Railways (ERA) on the Fixed Link, would not be consistent with the Government’s ‘red lines’ or reflect the status of the UK as a non-EU Member State. We note your rejection of any agreement with France covering the Channel Tunnel that would give effect to these obligations and linked responsibilities.
The Committee is, however, disappointed that your EM did not include details of the Government’s alternative proposals for the operation of the Channel Tunnel at the end of the Transition Period. The unique status of the Channel Tunnel as the UK’s only surface transport connection to mainland Europe and as joint UK/France infrastructure makes an agreement securing its continued safe operation critically important. Indeed, without an agreement on the prevailing safety regime applicable to the Tunnel, there is the real possibility of significant disruption to its operation.
With this mind, we request further information and your views on the following points:
- Whether it is possible for different rules on safety and interoperability to apply on the UK and French sides of the Fixed Link or, for safety, technical or other reasons, the same rules have to apply across the entirety of the Fixed Link;
- if the application of two sets of rules is possible (i.e. EU rules and those that would satisfy the Government’s ‘red lines’), whether the role of the Intergovernmental Commission (IGC) would have to be clarified to take account of this;
- if one set of identical rules has to apply on both sides of the Fixed Link, what a system that satisfies current EU laws, but does not require (dynamic) alignment on the UK-side of the Tunnel, would look like;
- Whether there is any difference in terms of the safety and interoperability requirements applicable to rail infrastructure on the Fixed Link versus High Speed 1; and
- Whether the UK will request that the (forthcoming) ability for the ERA to issue authorisations and certificates for rail services and vehicles applicable to the French side of the Fixed Link is disapplied so as to protect the role of the IGC.
The Committee notes that the proposed Council Decision would require France to keep the Commission updated on the progress of negotiations with the UK and we seek a similar commitment from you that the Government will do likewise and provide the House with regular progress reports.
Once again, the Committee appreciates your engagement on this issue but, given the clear legal and political importance of the proposals, we reserve the right to take further action should you not provide satisfactory responses to the above listed requests for further information.
We require a response to this letter within five working days.
16 Document (a) Proposal for a Decision of the European Parliament and of the Council empowering France to negotiate an agreement supplementing its existing bilateral Treaty with the United Kingdom concerning the construction and operation by private concessionaires of a Channel Fixed Link; Council and COM number; 9974/20 and COM(20) 622; Legal base; Article 91 TFEU, QMV; Dept: Transport; Devolved Administrations; consulted; ESC number; 41434. Document (b) Proposal for a Regulation of the European Parliament and of the Council amending Directive (EU) 2016/798, as regards the application of railway safety and interoperability rules within the Channel Fixed Link; Council and COM number; 9976/20 and COM(20) 623; Legal base; Article 91 TFEU, QMV; Dept; Transport; Devolved Administrations; consulted; ESC number: 41435.
17 The Channel Tunnel Fixed Link connects to the ‘High Speed 1’ (HS1) rail line at Folkestone and terminates at London St Pancras International railway station (this stretch of line is known as ‘the Channel Tunnel Rail Link’). Throughout this chapter the terms ‘Fixed Link’, ‘Channel Tunnel’ and ‘Tunnel’ are used interchangeably.
18 This is a consequence of the UK’s membership of the EU—and France’s ongoing membership—and the development of the EU rail acquis since the singing of the Treaty of Canterbury.
19 Getlink is responsible for the management and operation of the Tunnel until 2086 (as per a concession agreement made between the original concessionaires and the UK and France).
20 It is envisaged that this agreement would take the form of a protocol to the Treaty of Canterbury.
21 Meaning that only the EU and not an individual Member State can negotiate an international agreement.
22 Articles 1(4) and 1(5) of the proposed Council Decision, respectively, set-out further stipulations relating to the standing of concessionaires and users of the Fixed Link before courts or tribunals within the meaning of Article 19(1) TFEU and the broader compatibility of any agreement with EU law. Article 2 requires France to keep the Commission informed of the progress of negotiations with the UK and, where appropriate (presumably when considering issues of EU law), to invite the Commission to participate in negotiations as an observer.
23 Directive (EU) 2016/798 of the European Parliament and of the Council of 11 May 2016 on railway safety (Text with EEA relevance); 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 (Text with EEA relevance); and 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 (Text with EEA relevance).
24 This point is explored in further detail in the ‘General comments’ section of this chapter.
25 The introduction of new TSIs—and the amendment of existing standards—is often made by way of EU delegated act with scrutiny and time restricted compared to the processes in place under the Treaties for the adoption of EU secondary legislation.
26 See Thirty-third Report HC 86–xxxiii (2012–13), Chapters 1–4 (27 February 2013).
27 HC Deb 25 April 2013, vol 561, cols 1035–1058.
29 This last point is considered in detail in the next section (‘General comments’).
30 This quote has been amended as the text appears to include a typographic error and reads “and in particular of that Directive” [underlining added] rather than “and in particular of that Directive”.
31 Articles 3 (general principles) and 9 (accessibility) are especially important in this regard.
32 This would present itself as the simplest way of ensuring continued interoperability and safety and could be provided for through the retention and amendment of relevant EU law under the EU (Withdrawal) Act 2018.
34 Regulation (EU) 2019/503 of the European Parliament and of the Council of 25 March 2019 on certain aspects of railway safety and connectivity with regard to the withdrawal of the United Kingdom from the Union (Text with EEA relevance).
35 A ‘no-deal’ Brexit was defined by the Commission as a situation where the UK/EU Withdrawal Agreement was not ratified either by the UK or EU.
36 Preamble (5) to Regulation (EU) 2019/503.
37 The ability, in practice, for differences to be tolerated in standards between those that are ‘listed’ versus those that are deemed to be ‘identical’ is likely to be very small. It would perhaps only be the way in which they are promulgated—and given effect to between legal regimes—that would be capable of some variance. For example, an EU law being copied wholesale into UK law versus its main provisions being regulated for.
38 As mentioned in the introduction to this chapter.
39 This was after the IGC requested a technical opinion from the ERA regarding the compliance of Tunnel safety standards with the Safety in Rail Tunnels TSI and other EU measures (see ERA Opinion of 21 March 2011).
40 As an example, specific rules apply on the Fixed Link to train traction systems and compliance with the relevant TSI is not sufficient to guarantee operation on the Tunnel.
41 Whereby, as mentioned above, the ERA will be the sole issuing authority in the EU for certificates and authorisations covering cross-border/intra-EU journeys between Member States.
42 The envisaged role of the ERA and the status of the Fixed Link as an important cross-border constituent part of the trans-European transport network (TEN-T) means that this change has, however, been know of for some time.
Published: 22 September 2020