Explanatory Memorandum to COM(2005)505 - Framework for Community Action in the field of Marine Environmental Policy (Marine Strategy Directive) [SEC(2005) 1290]

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dossier COM(2005)505 - Framework for Community Action in the field of Marine Environmental Policy (Marine Strategy Directive) [SEC(2005) 1290].
source COM(2005)505 EN
date 24-10-2005


1. Context of the proposal

- Grounds for and objectives of the proposal

The marine environment is faced with a number of threats including loss or degradation of biodiversity and changes in its structure, loss of habitats, contamination by dangerous substances and nutrients and impacts of climate change.

The EU's 6th Environment Action Programme (6th EAP) requests the development of a Thematic Strategy for the protection and conservation of the European marine environment (hereinafter the Strategy) with the overall aim to 'promote sustainable use of the seas and conserve marine ecosystems'.

As a first step in the development of the Strategy, the Commission in 2002 produced the Communication entitled 'Towards a strategy to protect and conserve the marine environment'. The Environment Council Conclusions of 4 March 2003 welcomed the Commission Communication, endorsed the approach and the outline of its objectives and requested an ambitious Strategy by 2005. The Commission Legislative Work Programme 2005 commits to the adoption of the Strategy by 2005.

- General context

While measures to control and reduce pressures and impacts on the marine environment do exist, they have been developed in a sector by sector approach resulting in a patchwork of policies, legislation, programmes and actions plans at national, regional, EU and international level, which contribute to the protection of the marine environment. At the EU level, while there are a number of policies affecting the marine environment, and while a reflection has begun on a future all-encompassing Maritime Policy for the Union, there is no overall, integrated policy for the protection of the marine environment.

The general picture that emerges from this policy framework is a mixed one. On the positive side, some progress has been made in certain areas, e.g. in reducing nutrient inputs or pollution from hazardous substances in particular heavy metals. However, overall, the state of the marine environment has been deteriorating significantly over recent decades. As a result, Europe's oceans and seas are under threat, in some cases to the extent that their structure and function is being jeopardised.

The current policy framework is not delivering a high level of protection of the marine environment. A strong, integrated, EU policy on marine protection is therefore required.

- Existing provisions in the area of the proposal

A wide variety of EU measures contribute to the protection of the marine environment. However, as the policy framework in place is sectoral and as its geographic scope varies, there is no integrated policy focused on the protection of the marine environment.

- Consistency with other policies and objectives of the Union

The high level of protection of the marine environment which the proposed Directive will provide is essential to realise the full economic and social potential of oceans and seas, thus making a strong contribution to the Lisbon agenda and to the EU Sustainable Development Strategy.

The proposal will also make an important contribution to the work on a future EU Maritime Policy, announced in the Strategic Objectives of the Commission for 2005-2009, aimed at developing a thriving maritime economy and the full potential of sea-based activity in an environmentally sustainable manner.

One of the central issues to be tackled within this policy will be the question of the overall governance framework through which the users and uses of oceans and seas can be regulated. This will be addressed in the Green Paper on Maritime Policy foreseen for 2006. The governance arrangements foreseen in the Marine Strategy constitute a first step. Options for further development of a broader governance framework to be elaborated under the Maritime Policy should also take account of the highly diverse legal and political specificities in each of the European regional seas, ranging from the Baltic Sea with seven EU Member States and the Russian Federation to the Mediterranean where Exclusive Economic Zones (EEZs) have not been declared and the EU has to work jointly with a number of third countries.
2. Consultation of interested parties and impact assessment

- Consultation of interested parties
Consultation methods, main sectors targeted and general profile of respondents

The Strategy has been prepared with the help of an extensive consultation process from 2002 to 2004 including all EU Member States and candidate countries, key European third countries sharing ocean and seas with the Union, 16 international commissions and conventions, 21 key industry and civil society organisations as well as scientists and academics.

The process was kicked off at a stakeholder conference held in Koge, Denmark, on 4-6 December 2002. Further to the Koge conference four ad hoc working groups involving all key stakeholder constituencies were set up to deal with key aspects of the development of the Strategy.
Summary of responses and how they have been taken into account

All working groups delivered contributions to a closing stakeholder conference held in Rotterdam, Netherlands, on 11-12 November 2004, from which a wide consensus emerged on the approach proposed in the Strategy. The need for strong EU action was underscored by a large majority of stakeholders.

The proposed Directive fully integrates the results of consultations held since 2002. In particular, the need for a dual EU/regional approach, the setting-up of Marine Regions as management units for the implementation of the Strategy and the need for co-operation between Member States in devising Marine Strategies notably through the use of existing instruments deriving from international agreements, are at the centre of the proposed Directive.

An open consultation was conducted over the internet from 14/03/2005 to 09/05/2005. The Commission received 133 response(s). The results are available on europa.eu.int/comm/environment/water/pdf

- Collection and use of expertise
Scientific/expertise domains concerned

The preparatory work focused notably on (a) the application of the ecosystem-based approach to management of human activities impacting the marine environment; (b) monitoring and assessment issues; and (c) the particular challenge of hazardous substances.

In addition, the Commission has also paid very close attention over the past three years to reports, studies and policy statements from national and regional organisations, countries, research institutes and U.N. bodies in relation to the protection of the marine environment.
Methodology used

Substantive work on all aspects relevant to the development of an EU Marine Strategy was produced as part of the consultation process. Two important deliverables from this process include the production of (a) a guidance document on the application of the ecosystem-based approach to the marine environment; and of a (b) study on the identification of European Marine Regions on the basis of hydrological, oceanographic and bio-geographic features to guide implementation of the Strategy.
Main organisations/experts consulted

The International Council for the Exploration of the Seas (ICES) was a privileged partner in the consultation process which carried out the work on the two above-mentioned documents. A number of additional experts and scientific organisations were also involved in the preparatory process.
Summary of advice received and used

The existence of potentially serious risks with irreversible consequences has been mentioned. There is a broad consensus on the existence of such risks.
Broad consensus was reached on the magnitude of threats facing the marine environment, generating potentially irreversible or nonlinear changes to marine ecosystems, with wide ranging economic and social consequences. The principal threats to the marine environment that were identified include effects of climate change; impacts of commercial fishing; oil spills and discharges; introduction of non-native species; eutrophication and the related growth of harmful algal blooms; litter pollution; contamination by dangerous substances and microbiological pollution; radionuclide discharges; and noise pollution.

Climate Change and fisheries were highlighted as two of the most important pressures on the marine environment.

In short, what emerges from this process is an unambiguous message that Europe's seas and oceans are at high risk and efforts to protect them need to be urgently set up to safeguard their long term productivity and thus marine-related economic and social activities.
Means used to make the expert advice publicly available

All relevant analysis carried out during the preparatory phase of the proposed Directive will be made available. The ICES guidance document on the application and implementation of the ecosystem-based approach has already been published by ICES and will be made available from the Commission's website. The ICES study on EU Marine Regions has been made available to all stakeholders through the CIRCA system.

- Impact assessment

Two main options were considered. The first option consisted of a strictly voluntary approach based on a Commission Communication setting out non-binding recommendations as to how to effectively protect Europe's marine environment through developing Regional Marine Strategies at the level of Marine Regions to be defined at EU level.

The second option examined was the combination of a flexible legal instrument and of a Communication. The legal instrument would take the form of a Marine Strategy Directive, ambitious in its scope but not overly prescriptive in its tools. No specific management measures would be set down at EU level as the Directive would have to be made operational and implemented at the regional level.

In addition to these two options, a no-action scenario was considered as a reference scenario against which to appraise the costs anticipated from the measures proposed under the two options.
The Commission carried out an impact assessment, which is accessible on the website of the Commission.
3. Legal elements of the proposal

- Summary of the proposed action

The end objective of the proposed Directive is to achieve good environmental status of the marine environment by 2021. The proposed Directive will only define common objectives and principles at EU level. The proposed Directive will establish European Marine Regions as management units for implementation. For their marine waters within each Marine Region, Member States will be required to develop Marine Strategies on the basis of the completion of a number of steps. In developing Marine Strategies, Member States will be invited to co-operate actively among themselves and also with relevant third countries. Finally, in order to take into account the particular contexts of certain Marine Regions, the Directive foresees special situations and areas where it would be impossible for a Member State to achieve the level of ambition of the environmental targets set in the framework of the Directive. .

- Legal basis

Article 175 i of the EC Treaty is the appropriate legal basis.

- Subsidiarity principle

The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the Community.
The objectives of the proposal cannot be sufficiently achieved by the Member States for the following reason(s).
The marine environment does not accord with existing geo-political boundaries. It is by essence transboundary and therefore requires co-operation and common principles. In these conditions, applying a purely national approach to the marine environment is doomed to fail.
Member States bordering marine regions may well come to different conclusions concerning the approaches, diagnoses and programmes of measures to be set in place, irrespective of the unity of marine ecosystems. Member States may well take different and even contradictory routes and different lengths of time to take appropriate action, resulting in ineffective protection of the marine environment.

The result would be that the marine environment would not improve. The ocean's capacity to absorb new pressures on the marine environment such as climate change and increased maritime transport would thus be significantly reduced.
Community action will better achieve the objectives of the proposal for the following reason(s).
The proposal will establish a common EU framework to address shared challenges and will establish common principles and approaches to the protection of the marine environment across Europe.
While several EU Member States have developed national measures to protect the marine environment and have been actively co-operating in relevant international agreements, progress has been hampered by the fact that national measures do not influence the activities of other countries bordering a given marine area; and international co-operation notably in the framework of regional marine conventions has produced mixed results due to the lack of enforcement and control of these organisations.
The proposed legislative instrument is limited to what Member States cannot satisfactorily achieve - i.e. setting up an EU-wide framework through which Europe's marine environment can be more effectively protected. Detailed objectives and management measures required to achieve good environmental status in each EU Marine Region will not be defined at EU level.
The proposal therefore complies with the subsidiarity principle.

- Proportionality principle

The proposal complies with the proportionality principle for the following reason(s).
The proposed legislative instrument takes the form of a Marine Strategy Directive. Ample scope will be left for national decision and regional concertation. The establishment of environmental targets at regional level and the planning and execution of measures required to deliver these targets and thus good environmental status of the marine environment in the European waters under the sovereignty or jurisdiction of EU Member States within each Marine Region will lie with Member States.
The administrative burden of the proposed Directive has been estimated at approximately €90 million per annum for the EU as a whole in the first two years, €70 million after that. On the other hand, there will be significant efficiency gains in terms of avoiding duplication in monitoring and assessment.

There will be implementation costs resulting from programmes of measures agreed at regional level. It is foreseen that detailed impact assessments of the programmes of measures to be developed by Member States will be carried out to ensure that environmental targets are achieved at a minimum cost.

It appears from the Impact Assessment that while there may be important social and economic costs in the short-term, medium and long-term environment, social and economic benefits will outweigh these costs by a considerable amount.

- Choice of instruments
Proposed instruments: Marine Strategy Directive.
Other means would not be adequate for the following reason(s).

Developing a prescriptive legislative instrument (in the form of a Regulation or a more stringent Directive) would have been an option. However, a Regulation or a more stringent Directive would have resulted in neglecting the diversity of conditions and needs in the EU's marine environment by not allowing Member States to make a number of policy choices for implementation at regional level. Therefore, such an approach was not retained.

Another option would have been to adopt a Recommendation outlining the steps to be taken to implement the Marine Strategy at regional level. However, as Recommendations have no binding force, there would have been no guarantee that Member States would have committed themselves to rigorous implementation. This option was therefore rejected.

A third option would have been to adopt a Decision, binding in its entirety upon the limited number of Member States to whom it is addressed. However, as 20 out of 25 Member States are maritime countries and planned enlargements will increase this trend; and as effective protection of the marine environment also requires the involvement of land-locked countries in a regional sea's catchment area, targeting a limited number of specific addressees would not be appropriate. Finally, a Decision would not have provided any flexibility in terms of implementation as it is binding in its entirety.

4. Budgetary implication
The proposal has no implication for the Community budget.
5. Additional information

- Review/revision/sunset clause
The proposal includes a review clause.

- European Economic Area

The proposed act concerns an EEA matter and should therefore extend to the European Economic Area.