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 amend Annexes I, II and IV to the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources and Activities (the ‘LBS Protocol’)
Date: 2021-10-26
Institutions: Directorate-General for Environment, European Commission
Subjects: Mediterranean Sea, dumping of waste, environmental cooperation, environmental protection, international convention, pollution control measures, pollution from land-based sources, protocol to an agreement, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 26.10.2021  COM(2021) 667 final 2021/0347 (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 amend Annexes I, II and IV to the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources and Activities (the ‘LBS Protocol’)  
 
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  22nd  Meeting  of  the  Contracting  Parties  to  the  Convention  for  the  Protection  of  the 
Mediterranean  Sea  against  Pollution  (the  ‘Barcelona  Convention’)  and  its  Protocols  in 
connection with the envisaged adoption of  a decision amending Annexes I,  II and IV to the 
Protocol  for  the  Protection  of  the  Mediterranean  Sea  against  Pollution  from  Land-Based 
Sources and Activities (the ‘LBS Protocol’). 

2. 

2.1. 

CONTEXT OF THE PROPOSAL 

The Protocol for the Protection of the Mediterranean Sea against Pollution from 
Land-Based Sources and Activities 

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

The LBS Protocol is one of the seven Protocols of the Barcelona Convention. It aims to take 
all appropriate measures to prevent, abate and eliminate to the fullest extent possible pollution 
of the Mediterranean Sea from land-based sources and activities, by reducing and phasing out 
substances that are toxic and persistent listed in the Protocol. The LBS Protocol entered into 
force in 1983. 
The European Union is a party to the LBS Protocol (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. 

According  to  Article  16  of  the  LBS  Protocol,  the  provisions  of  the  Barcelona  Convention 
relating to any Protocol shall apply with respect to this Protocol. 

According  to  Article  25  of  the  Barcelona  Convention,  the  European  Union  (‘EU’)  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 EU shall 
not exercise its right to vote when its Member States exercise theirs and conversely.  

According to Article 22(3) of the Barcelona Convention, amendments to any protocol shall be 
adopted by a three-fourths majority vote of the Contracting Parties to such protocol. 

2.3. 

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

During  its  22nd  meeting  on  7-10  December  2021,  the  Contracting  Parties  to  the  Barcelona 
Convention and its Protocols  are to  adopt  a Decision amending Annexes  I,  II  and  IV to  the 
LBS Protocol concerning the protection of the Mediterranean Sea against pollution from land-
based sources and activities  (‘the envisaged act’). 

1 

OJ L 322, 14.12.1999, p. 18–31. 

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The  purpose  of  the  envisaged  act  is  to  take  into  account  regulatory,  scientific  and  technical 
developments  related  to  land-based  sources  and  activities  that  have  been  achieved  at  both 
global and regional levels, including relevant developments under the Mediterranean Action 
Plan Barcelona Convention system, with a particular focus on those developments related to 
the implementation of the ecosystem approach for achieving good environmental status of the 
Mediterranean Sea. 

The  amendments  to  the  annexes  to  the  LBS  Protocol  will  be  binding  on  the  Union  in 
accordance with Article 29 of the Barcelona Convention. 

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 amendments to Annexes I, II and IV to the LBS Protocol aim at taking into account the 
regulatory, scientific and technical developments related to land-based sources and activities 
that  have  been  achieved  at  both  global  and  regional  level.  In  particular,  the  proposed 
amendments  concern  the  updating  of  the  sectors  which  are  subject  to  elaboration  of  action 
plans  and  measures  under  Annex  I  of  the  Protocol;  the  updating  of  the  categories  of 
substances  in  Annex  I  of  the  Protocol;  the  strengthening  of  a  number  of  new  elements,  e.g. 
noise  and  artificial  light,  all  of  which  are  to  be  considered  during  the  authorisation  process 
under  Annex  II  of  the  Protocol.  Amendments  to  Annex  IV  concern  the  application  of 
sustainable  consumption  and  production  tools,  particularly  circular  economy  approaches  in 
production processes. 

In view of the 22nd meeting of the Contracting Parties to the Barcelona Convention and its 
Protocols, a Union position is necessary on the envisaged act since it will amend the Annexes 
to the LBS Protocol, which will be binding on the Union in accordance with Article 29 of the 
Barcelona  Convention.  Given  that  the  amendments  to  the  annexes  will update  requirements 
regarding the protection of the Mediterranean Sea, modify Union international commitments 
and  ambitions  and  improve  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. 

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, i.e. the Barcelona Convention. 

The  envisaged  act  will  amend  the  annexes  to  one  of  the  protocols  to  the  Barcelona 
Convention,  i.e.  the  LBS  Protocol.  Therefore,  its  adoption  constitutes  an  act  having  legal 
effects.  

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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. 

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, i.e. 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 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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2021/0347 (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 amend Annexes I, II and 
IV to the Protocol for the Protection of the Mediterranean Sea against Pollution from 
Land-Based Sources and Activities (the ‘LBS Protocol’) 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

The  Protocol  of  the  Convention  for  the  Protection  of  the  Mediterranean  Sea  against 
Pollution  (the  ‘Barcelona  Convention’)  for  the  Protection  of  the  Mediterranean  Sea 
against  Pollution  from  Land-Based  Sources  and  Activities  (the  ‘LBS  Protocol’)  was 
concluded by the Union by Council Decision 1999/801/EC2 and entered into force on 
11 May 2008.  

Pursuant  to  Article  18  of  the  Barcelona  Convention,  the  Meeting  of  the  Contracting 
Parties to  the  Barcelona  Convention and its Protocols  may adopt  amendments to  the 
protocols of the Convention. 
During  their  22nd  meeting  on  7-10  December  2021,  the  Contracting  Parties  to  the 
Barcelona Convention and its Protocols are to adopt a Decision amending Annexes I, 
II and IV to the Protocol for the Protection of the Mediterranean Sea against Pollution 
from  Land-Based  Sources  and  Activities  (the  ‘LBS  Protocol’)  to  take  into  account 
regulatory,  scientific  and  technical  developments  related  to  land-based  sources  and 
activities that have been achieved at both global and regional levels 

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, 
because  the  Decision  will  adopt  amendments  to  Annexes  I,  II  and  IV  to  the  LBS 
Protocol that will be binding on the Union. 

Since  the  envisaged  amendments  to  Annexes  I,  II  and  IV  will  update  requirements 
regarding  the  protection  of  the  Mediterranean  Sea,  affect  the  Union  international 
commitments  and  ambitions  and  improve  the  protection  of  the  environment,  it  is 
proposed that the Union support the adoption of the Decision. 

2 

OJ L 322, 14.12.1999, p. 18–31. 

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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 
amending  Annexes  I,  II  and  IV  to  the  Protocol  for  the  Protection  of  the  Mediterranean  Sea 
against Pollution from Land-Based Sources and Activities (the ‘LBS Protocol’). 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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