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 the Annexes to the Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil (the ‘Offshore Protocol’)
Date: 2021-10-26
Institutions: Directorate-General for Environment, European Commission
Subjects: Mediterranean Sea, continental shelf, environmental cooperation, environmental protection, exploitation of the sea-bed, international convention, marine pollution, petroleum exploration, protocol to an agreement, underwater mineral resources

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   EUROPEAN COMMISSION  Brussels, 26.10.2021  COM(2021) 668 final 2021/0348 (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 the Annexes to the Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil (the ‘Offshore 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 
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  in 
connection with the envisaged adoption of a decision amending the Annexes to the Protocol 
for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and 
Exploitation of the Continental Shelf and the Seabed and its Subsoil (the ‘Offshore Protocol’). 

2. 

2.1. 

CONTEXT OF THE PROPOSAL 

The  Protocol  for  the  Protection  of  the  Mediterranean  Sea  against  Pollution 
Resulting  from  Exploration  and  Exploitation  of  the  Continental  Shelf  and  the 
Seabed and its Subsoil 

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 Offshore Protocol is one of the seven Protocols to the Barcelona Convention. It addresses 
all  aspects  of  offshore  oil  and  gas  activities  in  the  Mediterranean  and  includes  measures  to 
reduce  pollution  from  all  phases  of  offshore  activities  and  to  respond  to  offshore  pollution 
incidents, including aspects concerning liability and compensation. 
The European Union is a party to the Offshore Protocol1.  

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 31 of the Offshore 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 (‘the 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  Article  22  of  the  Barcelona  Convention,  amendments  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  Offshore  Protocol  which  addresses  all  aspects  of  offshore  oil  and  gas 
activities in the Mediterranean and includes measures to reduce pollution from  all phases of 
offshore activities and to respond to offshore pollution incidents (‘the envisaged act’). 

1 

OJ L 4, 9.1.2013, p. 13–14. 

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The proposed amendments aim at modifying Annexes I, II, III, IV and VII A to the Offshore 
Protocol, to align them with the significant regulatory, scientific and technical developments 
related  to  offshore  activities  that  have  been  achieved  at  both  regional  and  global  levels, 
including relevant developments under the Mediterranean Action Plan-Barcelona Convention 
system. 

The  amendments  to  the  Annexes  to  the  Offshore  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  the  Annexes  to  the  Offshore  Protocol  will  update  the  Annexes  to  the 
Offshore Protocol  to  reflect  the significant  regulatory, scientific and technical  developments 
related  to  offshore  activities  that  have  been  achieved  at  both  regional  and  global  levels, 
including relevant developments under the Mediterranean Action Plan-Barcelona Convention 
system,  with  particular  focus  on  those  developments  related  to  the  implementation  of  the 
ecosystem approach and sustainable consumption and production. 

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 Offshore Protocol. These amendments 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’s 
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, namely the Barcelona Convention. 

The  envisaged  act  will  amend  the  Annexes  to  one  of  the  protocols  to  the  Barcelona 
Convention,  namely  the  Offshore  Protocol,  and  therefore  its  adoption  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. 

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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 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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2021/0348 (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 the Annexes to the 
Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from 
Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil 
(the ‘Offshore Protocol’) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
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 Resulting from Exploration and Exploitation of the Continental Shelf 
and the Seabed and its Subsoil (the ‘Offshore Protocol’) was concluded by the Union 
by Council Decision 2013/5/EU2 and entered into force on 29 March 2013.  

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 the Annexes 
to the Protocol for the Protection of the Mediterranean Sea against Pollution Resulting 
from  Exploration  and  Exploitation  of  the  Continental  Shelf  and  the  Seabed  and  its 
Subsoil (the ‘Offshore Protocol’). 

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 the Annexes to the Offshore Protocol 
that will be binding on the Union. 

Since the envisaged amendments  of the Annexes 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 4, 9.1.2013, p. 13–14. 

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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  the  Annexes  to  the  Protocol  for  the  Protection  of  the  Mediterranean  Sea  against 
Pollution  Resulting  from  Exploration  and  Exploitation  of  the  Continental  Shelf  and  the 
Seabed and its Subsoil (the ‘Offshore Protocol’). 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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