Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Convention for the Protection of the Marine Environment of the North-East Atlantic on the integration of Macaronesia in the OSPAR maritime area
Date: 2020-05-07
Institutions: Directorate-General for Environment, European Commission
Subjects: Atlantic Ocean, Canary Islands, Madeira, Portugal, Spain, environmental protection, international convention, marine ecosystem, maritime area

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   EUROPEAN COMMISSION  Brussels, 7.5.2020  COM(2020) 182 final 2020/0072 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Convention for the Protection of the Marine Environment of the North-East Atlantic on the integration of Macaronesia in the OSPAR maritime area  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the position to be taken on the Union's behalf in connection with the 
envisaged  adoption  of  an  amendment  to  the  Convention  for  the  protection  of  the  marine 
environment of the North-East Atlantic (the ‘OSPAR Convention’). 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The OSPAR Convention 

The  OSPAR  Convention  aims  to  protect  the  North-East  Atlantic  maritime  area  against  the 
adverse effects of human activities in order to safeguard human health and to conserve marine 
ecosystems and, when practicable, restore marine areas, which have been adversely affected. 
It  has  16  Contracting  Parties:  Belgium,  Denmark,  the  EU1,  Finland,  France,  Germany, 
Iceland,  Ireland,  the  Netherlands,  Norway,  Portugal,  Spain,  Sweden,  United  Kingdom, 
Luxembourg  and  Switzerland.  The  Convention  was  open  for  signature  at  the  Ministerial 
Meeting of the Oslo and Paris Commissions in Paris on 22 September 1992 and entered into 
force on 25 March 1998. 

2.2. 

The OSPAR Commission 

The OSPAR Commission (established according to Article 10 of the Convention) is made up 
of representatives of each of the Contracting Parties; it meets at  regular intervals and at any 
time,  due  to  special  circumstances.  Its  duties  include  supervising  the  implementation  of  the 
Convention  and  reviewing  the  condition  of  the  maritime  area,  the  effectiveness  of  the 
measures being adopted, the priorities and the need for any additional or different measures. 

According  to  Article  20  of  the  Convention,  each  Contracting  Party  has  one  vote  in  the 
Commission.  The  EU  is  entitled  to  a  number  of  votes  equal  to  the  number  of  its  Member 
States, which are Contracting Parties to the Convention. The EU shall not exercise its right to 
vote when its Member States exercise theirs and conversely.  

According to Article 15(3) of the Convention, the Commission shall adopt amendments of the 
Convention by unanimous vote of the Contracting Parties. 

2.3. 

The envisaged act of the OSPAR Commission 

During the ministerial segment of an annual meeting the OSPAR Commission is to adopt an 
amendment  of  Article  1(a)  of  the  Convention  adjusting  the  limits  of  the  OSPAR  maritime 
area to include waters under Portuguese and Spanish jurisdiction and international waters in 
between (‘the envisaged act’). 

The purpose of the envisaged act is to add the waters surrounding Macaronesia (Madeira and 
Canaries Islands) to OSPAR’s maritime area, so as to ensure a greater coherence of OSPAR 
with the EU Marine Strategy Framework Directive2 and therefore to improve coordination for 
the protection and conservation of the rich biodiversity and vulnerable ecosystems present in 
the Macaronesia area. 

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Council Decision 98/249/EC of 7 October 1997 on the conclusion of the Convention for the protection 
of the marine environment of the north-east Atlantic (OJ L 104, 3.4.1998, p. 1) 
Directive  2008/56/EC  of  the  European  Parliament  and  of  the  Council  of  17  June  2008  establishing  a 
framework  for  community  action  in  the  field  of  marine  environmental  policy  (Marine  Strategy 
Framework Directive) (OJ L 164, 25.6.2008, p. 19).  

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The amendment  to  the  Convention will enter into  force for those Contracting Parties which 
have  ratified,  accepted  or  approved  it  on  the  thirtieth  day  after  receipt  by  the  Depositary 
Government  of  notifications  by  at  least  seven  Contracting  Parties,  in  accordance  with  the 
provisions of Article 15 of the OSPAR Convention. Thereafter the amendment shall enter into 
force  for  any  other  Contracting  Party  on  the  thirtieth  day  after  the  deposit  of  respective 
ratification, acceptance or approval. 

Until the amendment to the OSPAR Convention enters into force, Portugal and Spain, as well 
as any other Contracting Party, may provisionally apply it, following the relevant provisions 
of the Vienna Convention on the law of the treaties of 23 May 1969, in particular article 25 on 
“Provisional application". 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The Macaronesia sub-region is part of the North-East Atlantic region according to Article 4 of 
the Marine Strategy Framework Directive (MSFD) and is the largest marine sub-region of the 
European seas. It holds a rich diversity of habitats and species, including some, which are also 
in  the  OSPAR  list  of  “Threatened  and/or  Declining  Species  &  Habitats”.  Currently,  the 
OSPAR  maritime  area  only  partly  covers  the  waters  of  the  Macaronesia  sub-region  as 
delimited and agreed at the EU level. 

Portugal  and  Spain,  the  only  EU  and  OSPAR  countries  which  have  territorial  waters  in 
Macaronesia,  produced  a  joint  proposal  for  amending  the  OSPAR  Convention  to  align  the 
OSPAR maritime area with the MSFD delimitations. Such alignment will facilitate the MSFD 
implementation  for  the  two  countries  through  enhanced  collaboration  at  OSPAR  level  and 
will strengthen, through the mobilisation of OSPAR, the protection of the vulnerable species 
and habitats of this region and of its unique marine and coastal biodiversity. 

A  Union  position  is  necessary  because  a  legally  binding  text,  the  OSPAR  Convention  to 
which  the  EU  is  a  Party,  will  need  to  be  amended  to  achieve  this  alignment.  Since  it  will 
facilitate  implementation  of  EU  legislation  and  improve  protection  of  the  environment,  it  is 
proposed that the Union position is to support this amendment to Article 1(a) of the OSPAR 
Convention. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’3. 

4.1.2.  Application to the present case 

The OSPAR Commission is a body set up by an agreement, namely the OSPAR Convention 

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Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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The  act,  which  the  OSPAR  Commission  is  called  upon  to  adopt,  constitutes  an  act  having 
legal effects. The envisaged act has legal effects because it amends an existing act with legal 
effects, namely the OSPAR Convention. 

The envisaged act does not supplement or amend the institutional framework of the OSPAR 
Convention. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union's behalf.  If the  envisaged act  pursues two  aims or has two components  and if one of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The main objective and content of the envisaged act relate to protection of the environment 

Therefore, the substantive legal basis of the proposed decision is Article 192(1) TFEU. 

4.3. 

Conclusion 

The legal basis of the proposed decision should be Article 192(1), in conjunction with Article 
218(9) TFEU. 

5. 

PUBLICATION OF THE ENVISAGED ACT 

As  the  act  of  the  OSPAR  Commission  will  amend  the  OSPAR  Convention,  to  which  the 
Union is a Party, it is appropriate to publish it in the Official Journal of the European Union 
after its adoption. 

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2020/0072 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the Convention for the 
Protection of the Marine Environment of the North-East Atlantic on the integration of 
Macaronesia in the OSPAR maritime area 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 192(1) in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The OSPAR  Convention (‘the Agreement’) was  concluded by the  Union by Council 
Decision 98/249/EC of 7 October 19974 and entered into force on 25 March 1998. 

Pursuant  to  Article  15  of  the  Agreement,  the  OSPAR  Commission  may  adopt 
amendments of the Convention by unanimous vote of the Contracting Parties. 

The  OSPAR  Commission  is  to  adopt  an  amendment  to  Article  1(a)  of  the  OSPAR 
Convention on the integration of Macaronesia in the OSPAR maritime area. 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
OSPAR Commission, as the amendment of the OSPAR Convention will be binding on 
the Union, 

HAS ADOPTED THIS DECISION: 

The  position  to  be  taken  on  the  Union's  behalf  in  the  meeting  of  the  OSPAR  Commission 
shall  be  to  support  the  amendments  to  Article  1(a)  of  the  OSPAR  Convention  on  the 
integration of Macaronesia in the OSPAR maritime area.  

Article 1 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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Council Decision 98/249/EC of 7 October 1997 on the conclusion of the Convention for the protection 
of the marine environment of the north-east Atlantic (OJ L 104, 3.4.1998, p. 1) 

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