Countdown to Brexit: 34 days - European Commission proposes temporary “no-deal” measure to allow Channel Tunnel to operate

Fears of major disruptions to cross-border rail operations and shuttle services after the UK's withdrawal led the European Commission, this week, to propose a “short-term legislative measure”.  It will work closely with the European Parliament and the European Council with the aim of bringing it into force by 30 March 2019.

The move is a response to the “increasing risk that the United Kingdom may leave the European Union on 30 March this year without a deal - a ‘no-deal’ scenario”.  The proposal aims to mitigate the “significant impact that such a scenario would have on rail transport” – and, in particular, the Channel Tunnel.

The proposal - for a “strictly limited period” of three months will “ensure the validity of safety authorisations for certain parts of rail infrastructure to allow long-term solutions in line with EU law to be put in place.”  It is conditional on the United Kingdom “maintaining safety standards identical to EU requirements.”

The Commission’s press release emphasises that it is: “essential that the concerned undertakings and national authorities continue to take all necessary measures to comply with EU rules on train driver licences, market access, and safety certificates and authorisations required to operate in the EU.”

Background

This proposal stems from the calls by the European Council in December 2018 to “intensify ‘no-deal’ preparedness work at all levels”. To date, 19 ‘legislative measures’ have been proposed - and 88 ‘preparedness notices’ have been published.

The European Commission is at pains to note that contingency measures will not – and cannot – mitigate the overall impact of a "no-deal" scenario - nor do they in any way compensate for the lack of preparedness or replicate the full benefits of EU membership or the favourable terms of any transition period, as provided for in the Withdrawal Agreement.

The specific proposal is temporary in nature, limited in scope and will be adopted unilaterally by the EU.

Next steps

A proposal is titled: “Regulation of the European Parliament and of the European Council - on certain aspects of railway safety and connectivity with regard to the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the Union” has been drafted

Summary of key points from the proposal

  • EU Treaties cease to apply to the United Kingdom from the date of entry into force of a Withdrawal Agreement – or 30 March 2019 unless the European Council, in agreement with the United Kingdom, unanimously decides to extend that period.

  • In the area of rail transport, the impact of the withdrawal of the United Kingdom from the Union on certificates and authorisations can be remedied by operators concerned, through various measures such as operators establishing themselves in a Member State - and obtaining appropriate licences and certificates there.

  • The application of the Union safety rules to the Channel tunnel is currently conferred upon a binational safety authority, set up under the Treaty of Canterbury.  The system established by this Treaty would have to be adapted taking into account the status of the United Kingdom as ‘third country’.

  • The measures in this proposal are conditional on safety standards and procedures identical with the Union requirements being applied to the infrastructure which is used for the purposes of ensuring cross- border rail connectivity with the United Kingdom.

  • In order to allow concerned parties to enter into the necessary agreements and to take any other measures required to avoid disruptions, taking into account the status of the United Kingdom as a third country, it is necessary to extend the validity of certain authorisations.

  • The duration of such extension of the validity of authorisations should be limited in time to what is strictly necessary in order to enable the Members States concerned to take those necessary steps, in accordance with the applicable provisions of Union law.

  • To avoid major disruption of the cross-border rail services with the United Kingdom, it will also be essential that the rail operators and the national authorities take the required measures speedily to ensure that market access licences, train drivers licences, as well as certificates, licences and authorisations required to operate on Union territory are issued in good time before the 29 March 2019.

  • In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission as regards the withdrawal of the benefit conferred on holders of the authorisations, where it is not ensured that safety standards identical with the Union requirements are applied to any relevant infrastructure.  Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council.  The examination procedure should be used for the adoption of those measures, given their potential impact on railway safety. Given the inherent urgency of the matter, the Commission should adopt immediately applicable implementing acts.

  • Given the urgency entailed by the circumstances of the United Kingdom's departure from the Union, an exception to the eight-week period referred to in Article 4 of Protocol No 1 on the role of national Parliaments in the Union, annexed to the Treaty on European Union, to the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community, should apply.

  • The provisions of this Regulation should enter into force as a matter of urgency and apply as from the day following that on which the Treaties cease to apply to and in the United Kingdom unless a withdrawal agreement concluded with the United Kingdom has entered into force by that date,

  • This Regulation shall cease to apply three months after it has become applicable.

  • This Regulation shall be binding in its entirety and directly applicable in all Member States.

Issued on behalf of the European Parliament and the European Council,

Strasbourg – February 2019

John ShuttleworthComment