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 a Decision on delineation and a Recommendation on the management of the North Atlantic Current and Evlanov Seamount Marine Protected Area (NACES MPA)
Date: 2021-06-30
Institutions: Directorate-General for Environment, European Commission
Subjects: Atlantic Ocean, international convention, marine ecosystem, marine environment, maritime area, protected area

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   EUROPEAN COMMISSION  Brussels, 30.6.2021  COM(2021) 352 final 2021/0173 (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 a Decision on delineation and a Recommendation on the management of the North Atlantic Current and Evlanov Seamount Marine Protected Area (NACES MPA)  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the decision establishing the position to be taken on the Union's behalf 
in the North-East Atlantic Marine Environment Protection Commission in connection with the 
envisaged adoption of a Decision on delineation and a Recommendation on the management 
of the North Atlantic Current and Evlanov Seamount Marine Protected Area (NACES MPA) 
within 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. 

The envisaged acts of the OSPAR Commission 

2.3. 
On  1st  October  2021  during  the  ministerial  segment  of  its  annual  meeting,  the  OSPAR 
Commission is to adopt a Decision on delineation and a Recommendation on the management 
of the NACES MPA (‘the envisaged acts’). 

The  envisaged  OSPAR  Decision  on  delineation  establishes  the  NACES  MPA  by  indicating 
the  geographical  coordinates  (latitude/longitude)  of  its  boundaries.  The  envisaged  OSPAR 
Recommendation  on  the  Management  of  the  NACES  MPA  aims  to  guide  OSPAR 
Contracting  Parties  in  the  adoption  of  measures  to  protect  and  conserve  seabirds  and  the 
ecosystems  including  their  biodiversity  and  processes  that  support  those  populations  in  line 
with  the  general  and  specific  conservation  objectives  set  out  in  the  Annex  of  this 
Recommendation. 

1 

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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The supporting scientific analyses, which have been completed to identify the importance of 
this area as a foraging site for seabirds, are presented in a comprehensive document published 
in  December  20202.  If  designated,  the  proposed  MPA  would  be  the  largest  MPA  in  the 
OSPAR network covering nearly 600,000km2 (an area the size of France), and would become 
the  eighth  collectively  designated  MPA  in  the  area  beyond  national  jurisdiction  within  the 
OSPAR maritime area. 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The need for protection of the marine biodiversity and ecosystems, including in the maritime 
areas beyond national jurisdiction, has been recognised repeatedly. The Council Conclusions 
on  the  Commission  Communication  "EU  biodiversity  strategy  for  2030  -  Bringing  nature 
back into our lives" adopted in October 2020, call for high ambition at the 15th Conference of 
the Parties to the Convention on Biological Diversity , welcome the objective of protecting a 
minimum  of  30%  of  the  EU’s  sea  area,    one  third  of  which  strictly  protected,  representing 
10% of EU sea. They also emphasize that this is an objective to be reached by Member States 
collectively  and  recognise  the  urgent  need  to  step  up  efforts  to  ensure  the  effective 
management of all protected areas, to define clear conservation objectives and measures, and 
to  monitor  and  strengthen  them  appropriately.  Moreover,  they  emphasize  the  importance  of 
seeking  synergies  and  co-benefits  with  biodiversity-related  Multilateral  Environmental 
Agreements,  such  as  OSPAR,  and  to  integrate  biodiversity  considerations  and  goals  into 
relevant international and regional processes. In this context, they confirm the EU support for 
the conclusion of an ambitious legally binding international agreement on marine biological 
diversity of areas beyond national jurisdiction (BBNJ) under the United Nations Convention 
on  the  Law  of  the  Seas  (UNCLOS)  in  2021.  Finally,  they  reiterate  EU  support  for  the 
designation of three vast Marine Protected Areas in the Southern Ocean in the framework of 
the Commission for the Conservation of Antarctic Marine Living Resources. 

In  view  of  the  OSPAR  Ministerial  next  October,  a  Union  position  is  necessary  because  the 
envisaged  OSPAR  Decision  on  delineation,  which  is  going  to  be  adopted  together  with  the 
Recommendation  on  the  management  of  the  MPA,  is  a  legally  binding  text.  Even  if  the 
Recommendation would not be legally binding, it is proposed that the Union position covers 
both ‘the envisaged acts’ due to the fact that they are closely related. Since they will facilitate 
the  implementation  of  EU  international  commitments  and  ambitions  and  improve  the 
protection  of  the  environment,  it  is  proposed  that  the  Union  supports  the  adoption  of  the 
Decision and the Recommendation. 

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.  

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https://www.ospar.org/documents?v=43885  

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4.1.2.  Application to the present case 

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

The  Decision  which  the  OSPAR  Commission  is  called  upon  to  adopt,  constitutes  an  act 
having  legal  effects,  because  all  OSPAR  Decisions  are  legally  binding  for  the  Contracting 
Parties, according to the OSPAR Convention (Article 13§2). Although Recommendations are 
not legally binding, in the present case, the OSPAR Recommendation on the Management of 
the NACES MPA is closely related to the OSPAR Decision on delineation and therefore, it is 
appropriate to cover them by the same position of the Union. 

The  envisaged  acts  do  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  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. 

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2021/0173 (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 a Decision on 
delineation and a Recommendation on the management of the North Atlantic Current 
and Evlanov Seamount Marine Protected Area (NACES MPA) 

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) 

(5) 

(6) 

(7) 

The  Convention  for  the  Protection  of  the  Marine  Environment  of  the  North-East 
Atlantic3 (‘the Convention’), to  which the Union  is  a Contracting Party, entered into 
force on 25 March 1998. 

Pursuant  to  Article  10(3)  of  the  Convention,  the  Commission  established  by  Article 
10(1)  of  the  Convention  (“the  OSPAR  Commission”)  may  adopt  Decisions  and 
Recommendations in accordance with Article 13 of the Convention. 
The  OSPAR  Commission,  during  its  24th  session/meeting  on  1st  October  2021,  is  to 
adopt  a  Decision  on  delineation  and  a  Recommendation  on  the  management  of  the 
North  Atlantic  Current  and  Evlanov  Seamount  Marine  Protected  Area  (‘NACES 
MPA’). 

The envisaged Decision of the OSPAR Commission establishes the NACES MPA by 
indicating its boundaries. 

The  envisaged  Recommendation  of  the  OSPAR  Commission  aims  to  guide 
Contracting  Parties  in  their  actions  and  in  the  adoption  of  measures  to  achieve  the 
conservation objectives set out in the Annex to the Recommendation. 

There  is  a  close  link  between  the  two  envisaged  OSPAR  Commission  acts  and, 
therefore, it is appropriate to cover them by the same position of the Union. 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
OSPAR Commission, as the Decision to be taken by the latter will be binding on the 
Union, 

HAS ADOPTED THIS DECISION: 

Article 1 
The  position  to  be  taken  on  the  Union's  behalf  in  the  24th  session/meeting  of  the  OSPAR 
Commission  shall  be  to  support  the  adoption  of  the  Decision  on  delineation  and  the  

3 

OJ L 104, 3.4.1998, p. 2 

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Recommendation  on  the  management  of  the  North  Atlantic  Current  and  Evlanov  Seamount 
Marine Protected Area (NACES MPA). 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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