On the morning of Tuesday 24 November, there was gridlock on the UK’s M20 motorway heading into the Eurotunnel terminal in Folkestone, with five-mile tailbacks filled with heavy goods vehicles trying to reach the tunnel crossing. The cause of the delays, according to Highways England, was “new trial software for border checks” being tested by French authorities at both Folkestone and the Port of Dover, as officials on both sides of the UK/France border work to navigate a short-term future dominated by Brexit.
Folkestone’s Eurotunnel terminal could be set for more disruption in the coming weeks, with further testing continuing sporadically up to 31 December, the end of the Brexit transition period.
It’s not just the border checks that still need some work before the UK leaves the European Union in a few weeks’ time. Beyond the day-to-day concerns at the border points, precious little political progress has been made on how the UK and France will continue to jointly operate the Channel Tunnel, the only fixed link between the UK and mainland Europe, which carries 26% of trade across the border.
The red-line disagreements between Brexit negotiators on how exactly the tunnel will be managed by the UK, France and the EU has presented a period of profound uncertainty for Eurotunnel operator Getlink and Eurostar, the high-speed passenger rail service that is Getlink’s biggest customer.
What is at the heart of the ongoing stalemate over Eurotunnel, and how has it impacted industry stakeholders that are simultaneously weathering an ongoing pandemic? The key questions are answered below.
What are the key sticking points in the Eurotunnel talks?
As part of the wider Brexit negotiations, the UK and France will need to amend the 1986 Treaty of Canterbury, the legal document providing for the fixed link between the two countries and establishing the joint Intergovernmental Commission (IGC) as the national safety authority charged with the safe operation of the Channel tunnel. The amendments would allow the IGC to continue its role as the single safety authority for the link, even after the UK co-owner transitions to a ‘third country’ rather than a member state – an outcome that is the preferred option for both sides.
In September, the EU began the legislative process of empowering France to amend the treaty and provide some certainty around the governance of the tunnel after 1 January. But several of the EU’s stipulations regarding the IGC’s evolving role have proven to be sticking points in negotiations. The first is that the IGC will apply all relevant EU law throughout all tunnel sections, including on the UK’s side, and the UK would adopt some form of dynamic alignment to comply with future regulatory updates. The EU has also set a condition that safety-related disputes between the parties will be subject to binding rulings by the European Court of Justice (ECJ).
What is the UK government’s position?
According to a report published in September by the UK’s European Scrutiny Committee, the UK government has set out its position that dynamic alignment with EU law and any ECJ jurisdiction in the UK after the transition period is “not compatible with the UK’s red lines and does not reflect its status as a third country”, while raising “serious concerns over the lack of clarity from the EU on the recognition of the IGC as a national safety authority beyond 2020”.
But the committee report itself criticised the UK government for not making its own position clear on what would replace ECJ oversight, or how separate EU and UK law could operate on different sections of the tunnel. The committee noted that a response from the UK Department for Transport “mentions ‘split regulation’ models, mutual recognition and cooperation but the details of these ideas are not fleshed out in any meaningful way”.
With seemingly little compromise to be found between the parties’ red lines, the Eurotunnel has been left in limbo with time running out for an agreement.
What happens if a Eurotunnel agreement is not reached?
The stakes behind an agreement on these issues cut to the heart of the IGC’s ability to coherently manage safe rail services through the tunnel. If the UK and France don’t agree on the treaty amendments necessary to maintain a unified legal framework for the Eurotunnel, then from 1 January the IGC will cease to be the EU-approved national safety authority for the link, and EU law would stop applying in the sections of the tunnel within UK jurisdiction.
This would introduce immediate disruption to the tunnel’s basic operation, with the potential need for separate qualifications for drivers and technical staff on different sides of the tunnel, as well as making interoperability of standards and equipment almost impossible as the two systems begin to diverge in more areas. It would be, as one unnamed insider source told The Guardian in July, “like driving on the left- and right-hand side of the road at the same time”.
Some form of alignment under a single set of rules is essentially the only feasible way of continuing safe and well-regulated passenger and freight services via Eurotunnel, but without movement in the negotiations, there are no guarantees.
Is Eurotunnel prepared for no-deal border control?
On the ground level, Getlink has been working to digitise its border control systems to minimise disruption after the transition period ends, and has invested €47m over the last four years preparing for whatever form of Brexit comes.
This investment has covered the construction of a 240-space parking zone for UK-bound trucks, as well as two new ‘pit stops’ on the UK and French sides of the crossing, which will consolidate pre-boarding checks into more efficient zones where the company says up to 20 trucks can be processed simultaneously within a few minutes. Getlink also says it’s been staffing up and training new customs support personnel to help drivers with their paperwork.
At the end of October, Getlink announced the launch of the Eurotunnel Border Pass service for its freight customers, which promises a streamlined, digital process that stores all necessary crossing and customs information to be captured and verified at the pit stop zones. The information is then sent to the relevant UK and French authorities.
“One click and you pass,” Getlink CEO Yann Leriche told The Express in November. “Fluidity is guaranteed. Everything is managed electronically.”
Getlink’s confidence in its new systems and capacity-building could be sorely tested in a no-deal scenario – for a rail link that carries 5,000 trucks a day on the Le Shuttle Freight service, any hiccups in the process will have wide-ranging impacts, as the recent congestion in Folkestone showed.