(1)

The Treaty between the French Republic 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 (‘the Treaty of Canterbury’) established an Intergovernmental Commission to supervise all matters concerning the construction and operation of the Channel Fixed Link (‘the Intergovernmental Commission’).

(2)

Since the end of the transition period provided for 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 (3), the infrastructure manager of the Channel Fixed Link and the rail undertakings operating in the Channel Fixed Link have been subject to two separate legal frameworks as regards railway safety and interoperability.

(3)

By letter of 16 July 2020, the French Republic requested an empowerment by the Union to negotiate and conclude an international agreement with the United Kingdom on the safety and interoperability requirements within the Channel Fixed Link. In accordance with that request, Decision (EU) 2020/1531 of the European Parliament and of the Council (4) empowered the French Republic to negotiate an agreement to ensure the unified and dynamic application of Union law, in particular Regulation (EU) 2016/796 of the European Parliament and of the Council (5) and Directives (EU) 2016/797 (6) and (EU) 2016/798 (7) of the European Parliament and of the Council, over the entire Channel Fixed Link. Also, Decision (EU) 2020/1531 laid down the conditions under which the Intergovernmental Commission could continue fulfilling the role of national safety authority responsible for the part of the Channel Fixed Link under the jurisdiction of the French Republic.

(4)

It has become clear from the negotiations between the French Republic and the United Kingdom that an agreement under the conditions laid down in that decision will not lead to an agreement that is satisfactory for both Parties. Hence, by letter of 23 March 2023, the French Republic manifested its intention to negotiate and conclude a different agreement. An alternative empowerment is therefore being proposed.

(5)

An international agreement with a third country on railway safety and interoperability in cross-border situations is liable to affect an area covered to a large extent by Union law, and in particular by Regulation (EU) 2016/796 and Directives (EU) 2016/798 and (EU) 2016/797. Therefore, any such agreement falls within the Union’s exclusive external competence. Member States may negotiate, or conclude, such an agreement only if empowered to do so by the Union in accordance with Article 2(1) of the Treaty on the Functioning of the European Union (TFEU). Since such an agreement concerns areas covered by existing Union law in the area of transport, it is also necessary for such empowerment to be granted by the Union legislator, in accordance with the legislative procedure referred to in Article 91 TFEU.

(6)

Considering the special position of the Channel Fixed Link as a railway link involving a single, complex engineering structure situated partly in the territory of the French Republic and partly in a third country, it is appropriate to empower the French Republic to negotiate, sign and conclude an international agreement with the United Kingdom regarding the application of coherent rules on safety and interoperability in the Channel Fixed Link (‘the Agreement’), as well as to ensure the cooperation between the French national safety authority, namely the Établissement Public de Sécurité Ferroviaire (‘EPSF’) and the United Kingdom’s national safety authority, namely the Office of Rail and Road (‘ORR’).

(7)

The part of the Channel Fixed Link under the jurisdiction of the French Republic should remain subject to Union law. The principles of the primacy and, where applicable, direct effect of Union law and the respective competences of Union institutions and bodies should be safeguarded.

(8)

Disputes between the French Republic and the United Kingdom concerning the application of the Agreement should not be submitted to the arbitral tribunal set up under Article 19 of the Treaty of Canterbury or to any other means of legally binding dispute settlement.

(9)

In accordance with Article 3 of the Regulation (EU) 2016/796, the European Union Agency for Railways should continue to have the sole responsibility for the functions and powers assigned to it and, in accordance with Article 16 of Directive (EU) 2016/798, the EPSF should continue to be independent in its decision making. Consequently, in respect of the matters addressed in the Agreement, the role of the Intergovernmental Commission and the Safety Authority established under the Treaty of Canterbury should be limited to coordinating the activities of the EPSF and the ORR. The regulatory acts of the Intergovernmental Commission and the Safety Authority or their effects should not affect the decision-making autonomy of the EPSF, in conformity with Union law.

(10)

In order to ensure that Union law is correctly implemented at all times in the part of the Channel Fixed Link under the jurisdiction of the French Republic, and in order to ensure that the Commission can oversee its application under the control of the Court of Justice, including in circumstances of urgency, the French Republic should retain the right to unilaterally suspend or terminate the agreement.

(11)

In order to account for possible future changes of Union law, in particular of Regulation (EU) 2016/796 and Directives (EU) 2016/797 and (EU) 2016/798, the Agreement should also provide for rules for its amendment. The Commission should be empowered to authorise the French Republic to amend the Agreement in accordance with the amending procedure laid down in that Agreement, provided that such amendments are limited to adaptations to reflect changes in Union law.

(12)

In the interests of the Union, the French Republic should also be empowered to negotiate further amendments to the agreement concluded on the basis of the empowerment in this decision, reflecting the conditions laid down in Decision (EU) 2020/1531. The empowerment granted by the Union in Decision (EU) 2020/1531, should therefore remain valid insofar as the agreement concluded on the basis of this empowerment could be amended to reflect the conditions laid down in that decision,

(a)

The agreement shall be compatible with Union law in all respects. Compliance with the principles of the primacy and, where applicable, direct effect of Union law shall be ensured.

(b)

Disputes between the French Republic and the United Kingdom concerning the application of the Agreement shall not be submitted to the arbitral tribunal set up under Article 19 of the Treaty of Canterbury or to any other means of legally binding dispute settlement.

(c)

The French Republic shall retain the right to unilaterally suspend or terminate the agreement, with a view to ensuring the full, correct and expeditious application of Union law in the part of the Channel Fixed Link under its jurisdiction.

(d)

The agreement shall provide for a mechanism for its amendment, in order to adapt it to changes in Union law.

(e)

The independence and the respective powers granted by Union law to the European Union Agency for Railways and the EPSF, as national safety authority within the meaning of Directive (EU) 2016/798, shall be ensured, and in particular: