France asks for talks with UK to keep Channel Tunnel running

It has emerged that there are potential problems over what safety and other regulations will continue to apply to the tunnel after the UK has fully left the EU and its single market and customs union, and what body will have the final authority to rule in disputes.

France and the European Commmission want EU law and the European Court of Justice (ECJ) to continue to govern the tunnel's running so that there is no confusion, and commentators say there could be chaos if the issues are not resolved.

However the UK may be reluctant to agree.

Legal experts say it could affect matters as diverse as what qualifications are acceptable for train drivers in the French and British halves of the tunnel and what standards are applied for signalling, radio systems, ventilation etc.

France has now formally asked the European Commission if it may negotiate with the UK a new agreement supplementing the Treaty of Canterbury that it signed with the UK (then a member of the European Community) in 1986, fixing rules governing the tunnel.

EU Commission asked Parliament and Council to decide

The commission has now put forward proposals on this to the European Parliament and the European Council, asking them to make a decision giving the go-ahead to France.

Its proposal document says there are several issues to be resolved.

Firstly, the Canterbury treaty established an intergovernmental commission, with appointees from both the UK and France, which acts as a safety authority for the tunnel.

Normally, it says, such railway safety authorities are set up only between member states of the EU, therefore it is proposed that the existing body continue in this role.

However this will require a change to an EU directive to allow it, otherwise the body would become defunct from January 1, 2021 and national safety authorities in the UK and France would have authority over each tunnel half.

If nothing is agreed, then from the same date EU regulations would also no longer apply to the part of the tunnel that is under the jurisdiction of the UK.

The European Commission says that to ensure “safe and efficient” operation of the tunnel continues, it is best to continue to have a single safety authority applying the same rules over the whole tunnel.

It proposes that this should therefore be the intergovernmental commission, which should continue to apply EU railway rules on safety and operational matters.

Getlink (formerly Groupe Eurotunnel), the Paris-based company which runs the tunnel, has been consulted and has agreed with this.

Resolution of disputes

Another issue to be confirmed is how future disputes between France and the UK over the tunnel would be resolved.

At present the Canterbury treaty says disputes between France and the UK related to the tunnel should be settled by an ‘arbitral tribunal’ made up of eminent lawyers appointed by France and the UK, who in turn appoint another from a non-EU state.

The commission proposes this should continue but says that where disputes relate to interpretation of EU law, the tribunal should refer the issues to the ECJ and be bound by its decisions.

So far this year in negotiations for the UK and EU’s future relationship, the UK has been reluctant to accept being bound by EU laws or decisions of the ECJ – a potential sticking point for these Channel Tunnel talks which would need to be held before the end of the year.

According to one EU law expert, Steve Peers of the University of Essex, it would be "very odd" for the EU if the tunnel was not governed by EU law, but it would be equally "odd" for the UK if British courts played no role.

Even so there is a precedent, as the UK already agreed in the Brexit Withdrawal Agreement that the ECJ would play a role in future regarding respect for rules on expatriates’ rights, or regarding the Northern Ireland and Irish border.

The UK government has stated that it supports measures to continue Channel Tunnel services, but will protect its national interests and make sure any arrangements respect its status as a sovereign nation.

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