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 and the Coastal Region of the Mediterranean (the ‘Barcelona Convention’) on the adoption of a Decision to designate the Mediterranean Sea, as a whole, as an emission control area for sulphur oxides (‘MED SOx ECA’) pursuant to Annex VI of the International Convention for the Prevention of Pollution from Ships (the ‘MARPOL Convention’)
Date: 2021-10-26
Institutions: Directorate-General for Environment, European Commission
Subjects: International Maritime Organisation, Mediterranean Sea, anhydride, atmospheric pollutant, environmental cooperation, environmental protection, international convention, pollution control measures, pollution from ships, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 26.10.2021  COM(2021) 669 final 2021/0349 (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 and the Coastal Region of the Mediterranean (the ‘Barcelona Convention’) on the adoption of a Decision to designate the Mediterranean Sea, as a whole, as an emission control area for sulphur oxides (‘MED SOx ECA’) pursuant to Annex VI of the International Convention for the Prevention of Pollution from Ships (the ‘MARPOL Convention’)  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the position to be taken on the Union's behalf at the 22nd Meeting of 
the Contracting Parties to the Convention for the Protection of the Mediterranean Sea against 
Pollution (the ‘Barcelona Convention’) and its Protocols on a decision to submit, in 2022, to 
the  seventy-eighth  (78th)  session  of  the  International  Maritime  Organization  (‘IMO’)’s 
Marine  Environment  Protection  Committee  (‘MEPC  78’)  a  proposal  for  designating  the 
Mediterranean  Sea,  as  a  whole,  as  an  emission  control  area  for  sulphur  oxides  (‘Med  SOx 
ECA’) as  well as the  date of entering into force of the related obligations. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Convention for the Protection of the Mediterranean Sea against Pollution 

The  Barcelona  Convention  and  its  seven  Protocols  adopted  as  part  of  the  Mediterranean 
Action Plan constitute the main legally binding regional multilateral environmental agreement 
for the Mediterranean Sea. 

The  Barcelona  Convention  aims  to  prevent,  abate,  combat  and  eliminate  pollution  in  the 
Mediterranean  Sea  area  and  to  enhance  the  protection  of  human  health  and  of  the  marine 
environment in that area to contribute to its sustainable development.  
The European Union is a party to the Barcelona Convention (amended)1.  

2.2. 

The  Meeting  of  the  Contracting  Parties  to  the  Barcelona  Convention  and  its 
Protocols   

The Meeting of the Contracting Parties to the Barcelona Convention and its Protocols brings 
together  ministers  and  senior  officials  representing  all  Contracting  Parties  to  the  Barcelona 
Convention and its Protocols. The Contracting parties will meet in Antalya, Turkey between 7 
and 10 December 2021. 

According to Article 25 of the Barcelona Convention, the European Union shall exercise its 
right  to  vote  with  a  number  of  votes  equal  to  the  number  of  its  Member  States,  which  are 
Contracting  Parties  to  this  Convention  and  to  one  or  more  protocols.  The  Union  shall  not 
exercise its right to vote when its Member States exercise theirs and conversely.  

According to Rule 43 of the Rules of Procedure to the Meeting of the Contracting Parties to 
the Barcelona Convention and its Protocols, unless otherwise provided by the Convention, the 
protocols  or  the  financial  terms  of  reference,  substantive  decisions,  recommendations  and 
resolutions  shall  be  made  by  a  two-thirds  majority  of  the  Contracting  Parties  present  and 
voting.  

2.3. 

The  envisaged  act  of  the  22nd  Meeting  of  the  Contracting  Parties  to  the 
Barcelona Convention and its Protocols 

According  to  Article  6  to  the  Barcelona  Convention,  the  Contracting  Parties  shall  take  all 
measures  in  conformity  with  international  law  to  prevent,  abate,  combat  and,  to  the  fullest 
possible extent, eliminate pollution of the Mediterranean Sea area caused by discharges from 
ships and to ensure the effective implementation in that area of the rules on controlling this 
type of pollution which are generally recognised at the international level.  

1 

OJ L 322, 14.12.1999, p. 32–43. 

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According to Article 18(1)(vii) of the Barcelona Convention, the Meeting of the Contracting 
parties to that Convention may consider and undertake any action that may be required for the 
achievements of the purposes of the Convention and the Protocols. 

The  establishment  of  an  emission  control  area  for  sulphur  oxides  would  fulfil  the  above-
mentioned  objectives  by  introducing  special  requirements  to  reduce  ship  air  pollutants 
emissions in the Mediterranean.  

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The need to protect marine biodiversity and ecosystems in the Mediterranean Sea, including 
in the maritime areas beyond national jurisdiction, has been repeatedly recognised. 

The  air  pollutant  emissions  from  ships  have  significant  adverse  effects  on  human  health,  as 
well as on the environment. One way to combat the challenge posed by ship emissions is to 
designate, in accordance with the Annex VI to International Convention for the Prevention of 
Pollution  from  Ships  (the  ‘MARPOL  Convention’),  the  Mediterranean  Sea  as  an  emission 
control  area  for  sulphur  oxides  (‘Med  SOx  ECA’),  where  special  requirements  will  be 
implemented to reduce ship emissions. 

A  Union  position  is  necessary  because  of  the  legally  binding  effects  of  the  envisaged 
proposal. Given that the proposal is in line with the Union’s ambition to reduce pollution and 
improve the protection of the environment, it is proposed that the Union support the adoption 
of the envisaged act. 

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’2. 

4.1.2.  Application to the present case 

The  Meeting  of  the  Contracting  Parties  to  the  Barcelona  Convention  and  its  Protocols  is  a 
body set up by an agreement, namely the Barcelona Convention. 

The  envisaged  act  will  submit  a  proposal  to  the  IMO’s  MEPC  78  in  2022  to  designate  the 
Mediterranean  Sea  as  an  emission  control  area  for  sulphur  oxides  (‘MED  SOx  ECA’).  Its 
adoption therefore constitutes an act having legal effects.  

The envisaged act does not supplement or amend the institutional framework of the Barcelona 
Convention and its protocols. 

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

2 

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 192(1) TFEU, in conjunction with Article 
218(9) TFEU. 

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2021/0349 (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 and the Coastal Region of the Mediterranean 
(the ‘Barcelona Convention’) on the adoption of a Decision to designate the 
Mediterranean Sea, as a whole, as an emission control area for sulphur oxides (‘MED 
SOx ECA’) pursuant to Annex VI of the International Convention for the Prevention of 
Pollution from Ships (the ‘MARPOL 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) 

The  amended  Convention  for  the  Protection  of  the  Mediterranean  Sea  against 
Pollution  (the  ‘Barcelona  Convention’)  was  concluded  by  the  Union  by  Council 
Decision 1999/802/EC3 and entered into force on 9 July 2004.  

Pursuant  to  Article  18(1)(vii)  of  the  Barcelona  Convention,  the  Meeting  of  the 
Contracting  parties  to  the  Barcelona  Convention  and  its  Protocols  may  consider  and 
undertake any action that may be required for the achievements of the purposes of the 
Convention and the Protocols. In accordance with Rule 43 of the Rules of Procedure 
to  that  Meeting  of  the  Contracting  Parties,  unless  otherwise  provided  by  the 
Convention,  the  protocols  or  the  financial  terms  of  reference,  substantive  decisions 
shall be made by a two-thirds majority of the Contracting Parties present and voting. 
During  their  22nd  meeting  on  7-10  December  2021,  the  Contracting  Parties  to  the 
Barcelona Convention and its Protocols are to adopt a Decision to submit a proposal in 
2022 to  the seventy-eighth  (78th) session of the  International  Maritime  Organization 
(‘IMO’)’s Marine Environment Protection Committee (‘MEPC 78’). This is a proposal 
to designate the Mediterranean Sea, as a whole, as an emission control area for sulphur 
oxides (‘Med SOx ECA’) and will specify the date of its entry into force. 

It  is  necessary  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
Meeting of the Contracting Parties to the Barcelona Convention and  its Protocols, as 
the envisaged Decision will submit a proposal to the IMO’s MEPC 78, on behalf of an 
organisation  to  which the Union is  a Party, to  designate the Mediterranean Sea, as  a 
whole,  as  an  emission  control  area  for  sulphur  oxides  (‘MED  SOx  ECA’),  and 
therefore its adoption constitutes an act having legal effects. 

(5) 

Since  the  purpose  of  the  envisaged  Decision  is  to  lead  to  the  update  of  the 
requirements  regarding  the  protection  of  the  Mediterranean  Sea,  in  line  with  the 

3 

OJ L 322, 14.12.1999, p. 32–43. 

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Union’s  ambition  to  reduce  pollution  in  the  marine  environment  and  protect  human 
health, it is proposed that the Union support the adoption of the Decision. 

HAS ADOPTED THIS DECISION: 

Article 1 
The position to be taken on the Union's behalf in the 22nd Meeting of the Contracting Parties 
to the Barcelona Convention and its Protocols shall be to support the adoption of the Decision 
to  submit  to  the  seventy-eighth  (78th)  session  of  the  International  Maritime  Organization 
(‘IMO’)’s  Marine  Environment  Protection  Committee  (‘MEPC  78’)  a  proposal  for 
designating the Mediterranean Sea, as a whole, as an emission control area for sulphur oxides 
(‘Med SOx ECA’) and its entering into force date. 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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