Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Convention on the Protection of the Marine Environment of the Baltic Sea Area (‘Helsinki Convention’) on the Adoption of a Recommendation for Amending Annex III Part II of that Convention
Date: 2021-09-03
Institutions: Directorate-General for Environment, European Commission
Subjects: Baltic Sea, environmental protection, international convention, international cooperation, marine environment, marine pollution, pollution control measures, revision of an agreement, waste disposal

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   EUROPEAN COMMISSION  Brussels, 3.9.2021  COM(2021) 534 final 2021/0285 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Convention on the Protection of the Marine Environment of the Baltic Sea Area (‘Helsinki Convention’) on the Adoption of a Recommendation for Amending Annex III Part II of that Convention  
 
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  Baltic  Marine  Environment  Protection  Commission  in  connection  with  the  envisaged 
adoption of a Recommendation for amending Annex III Part II of the Helsinki Convention 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Helsinki Convention 

The  Convention  on  the  Protection  of  the  Marine  Environment  of  the  Baltic  Sea  Area  (‘the 
Convention’)  aims  to  protect  the  marine  environment  of  the  Baltic  Sea  from  all  sources  of 
pollution,  from  industrialisation  and  other  human  activities.  It  entered  into  force  on  3  May 
1980. The Convention was amended in 1992. 
The European Union is a party to the Convention1. 

2.2. 

The Baltic Marine Environment Protection Commission (HELCOM) 

The  Baltic  Marine  Environment  Protection  Commission  -  also  known  as  the  Helsinki 
Commission  (HELCOM)  –  is  made  up  of  representatives  of  each  of  the  10  Contracting 
Parties2  to  the  Convention.  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  23  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  19(5)  of  the  Convention,  the  Commission  shall  take  its  decisions  by 
unanimous vote of the Contracting Parties, unless otherwise provided. 

2.3. 

The envisaged act of the Baltic Marine Environment Protection Commission 

On  20  October  2021,  during  the  2021  HELCOM  Ministerial  Meeting,  the  Baltic  Marine 
Environment Protection Commission is to adopt a Recommendation for amending Annex III 
Part II of the Helsinki Convention (‘the envisaged act’). 

The purpose of the amendment is to modernise the requirements of Annex III Part II of the 
Convention,  by  including  recent  developments  in  scientific  knowledge  on  good  agricultural 
practices and a new glossary of terms, taking into account the existing EU legislation, and to 
add  a  new  paragraph  on  nutrient  recycling  based  on  the  outcomes  of  Brussels  2018 
Ministerial Meeting of the Commission held under EU chairmanship.  

The adoption of the envisaged act  opens the tacit acceptance procedure of Article 32 of the 
Convention  in  order  to  amend  Annex  III  Part  II  of  that  Convention.  The amendment  of  the 
Annex III Part II of the Convention will be binding on the Union.  

1 
2 

OJ L 73, 16.3.1994, p. 19 –19. 
Denmark,  Estonia,  the  European  Union,  Finland,  Germany,  Latvia,  Lithuania,  Poland,  Russian 
Federation and Sweden. 

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3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The need for protection of marine biodiversity and ecosystems in the Baltic Sea, including in 
the maritime areas beyond national jurisdiction, has been repeatedly recognised. 

The amendment of Annex III, Part II, of the Helsinki Convention on “Prevention of Pollution 
from  Agriculture”  aims  at  modernising  the  Convention’s  requirements.  In  particular,  item  3 
on  manure  storage  and  item  6  on  application  of  organic  manures  were  adapted  to  include 
recent developments in scientific knowledge on good agricultural practices. Moreover, a new 
paragraph on nutrient recycling is introduced to reflect the commitments made in this regard 
at  the  HELCOM  2018  Declaration  under  EU  Chairmanship,  as  well  as  a  new  glossary  of 
terms, taking into account the existing EU legislation.  

In view of the HELCOM Ministerial Meeting in October 2021, a Union position is necessary 
because the envisaged Recommendation opens the tacit acceptance procedure of Article 32 of 
the Convention on the Protection of the Marine Environment of the Baltic Sea Area in order 
to amend Annex III Part II of that Convention. The amendment of the Annex III Part II of the 
Convention will be binding on the Union. Since the amendment of the Annex will modernise 
requirements  regarding 
international 
commitments  and  ambitions  and  improve  the  protection  of  the  environment,  it  is  proposed 
that the Union supports the adoption of the Recommendation. 

the  protection  of  the  Baltic  Sea,  modify  EU 

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  Baltic  Marine  Environment  Protection  Commission  is  a  body  set  up  by  an  agreement, 
namely the Convention on the Protection of the Marine Environment of the Baltic Sea Area. 

The act which the Baltic Marine Environment Protection Commission is called upon to adopt 
constitutes an act having legal effects. The envisaged act has legal effects because it opens the 
tacit  acceptance  procedure  of  Article  32  of  the  Convention  in  order  to  amend  its  Annex  III 
Part II. 

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

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

3 

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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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  the  protection  of  the 
environment. 

Therefore, the substantive legal basis of the proposed decision is 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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2021/0285 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the Convention on the 
Protection of the Marine Environment of the Baltic Sea Area (‘Helsinki Convention’) on 
the Adoption of a Recommendation for Amending Annex III Part II of that Convention 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

The Convention on the Protection of the Marine Environment of the Baltic Sea Area 
as  revised  in  1992  (‘the  Agreement’)  was  concluded  by  the  Union  by  Council 
Decision 94/157/EC4.  

Pursuant  to  Article  32  of  the  Agreement,  the  Baltic  Marine  Environment  Protection 
Commission may adopt amendments to annexes of the Agreement. 

The Baltic Marine  Environment Protection Commission,  during the 2021 Ministerial 
meeting on 20 October 2021, is to adopt a Recommendation for amending Annex III 
Part II of the Agreement. 

It is appropriate to establish the position to be taken on the Union's behalf in the Baltic 
Marine  Environment  Protection  Commission,  as  amendments  to  the  Annexes 
recommended by the Commission  are  adopted  by  the  tacit  acceptance  procedure  
provided  for  in Article 32 of the Agreement. The amendment of the Annex III Part II 
of the Agreement will be binding on the Union. 

Since the envisaged amendment of the Annex III Part II will modernise requirements 
regarding the protection of the Baltic Sea, modify EU international commitments and 
ambitions and improve the protection of the environment, it is proposed that the Union 
supports the adoption of the Recommendation. 

HAS ADOPTED THIS DECISION: 

Article 1 

The position to be taken on the Union's behalf in the 2021 Ministerial meeting of the Baltic 
Marine  Environment  Protection  Commission  shall  be  to  support  the  adoption  of  the 
Recommendation for amending Annex III Part II of the Helsinki Convention. 

4 

OJ L 73, 16.3.1994, p. 19–19. 

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This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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