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 amendments to the Decision on delineation and the Recommendation on the management of the North Atlantic Current and Evlanov Sea basin Marine Protected Area (NACES MPA)
Date: 2023-05-10
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, 10.5.2023  COM(2023) 236 final 2023/0139 (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 amendments to the Decision on delineation and the Recommendation on the management of the North Atlantic Current and Evlanov Sea basin 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  amending  Decision  2021/01  on  the  establishment  of  the 
North  Atlantic  Current  and  Evlanov  Sea  basin  Marine  Protected  Area  (NACES  MPA)  to 
extend its conservation scope and a Recommendation amending Recommendation 2021/01 on 
the management of the NACES MPA under 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  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  1  October  2021  during  the  ministerial  segment  of  its  24th  annual  meeting,  the  OSPAR 
Commission  adopted  the  OSPAR  Decision  2021/01  on  the  establishment  of  the  North 
the 
Atlantic  Current  and  Evlanov  Sea  basin  Marine  Protected  Area  (MPA)  and 
Recommendation 2021/01 on its management. At the same time, it was also decided that the 
conservation  scope  of  the  MPA  would  need  to  be  reviewed  in  the  future,  with  a  view  to 
expanding  it.  On  the  basis  of  the  review  process  launched  in  OSPAR  in  2022,  it  is  now 
proposed to expand the conservation scope of the MPA in order to enhance its protection by 
including  additional  species  and  habitats  as  well  as  the  seabed,  ocean  floor  and  subsoil 
thereof. 

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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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A  Decision  amending  Decision  2021/01  (the  ‘envisaged  Decision’)  and  a  Recommendation 
amending Recommendation 2021/01 (the ‘envisaged Recommendation’) are being finalised in 
OSPAR (together referred to as the ‘envisaged acts’). 

The  only  substantial  amendment  in  the  envisaged  acts,  is  the  expansion  of  the  MPA 
conservation scope and objectives beyond the protection of seabirds and the ecosystems of the 
waters  superjacent  to  the  seabed  (already  covered  by  the  existing  OSPAR  Decision  and 
Recommendation). This expansion aims to maintain and, where appropriate, restore not only 
seabird  populations,  but,  more  broadly,  also  marine  biodiversity  and  the  integrity  of  the 
various ecosystems as well as their functions and processes within the MPA. 

The Decision extends the conservation scope of the existing NACES MPA and indicates the 
geographical  coordinates  (latitude/longitude)  of  its  boundaries.  The  Recommendation 
amending Recommendation 2021/01 on the Management of the NACES MPA aims to guide 
OSPAR Contracting Parties in the adoption of measures to maintain and, where appropriate, 
restore  seabird  populations,  marine  biodiversity  and  the  integrity  of  the  various  ecosystems 
and  their  functions  and  processes  within  the  MPA,  in  line  with  the  general  and  specific 
conservation objectives set out in the Annex of this Recommendation. 

The  supporting  scientific  analyses  are  presented  in  a  comprehensive  document  published  in 
the  OSPAR  website2.  The  NACES  MPA  is  the  largest  MPA  in  the  OSPAR  network  and 
covers nearly 600,000km2 (an area the size of France). It is 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  to  protect  of  marine  biodiversity  and  ecosystems,  including  in  maritime  areas 
beyond national jurisdiction, has been recognised repeatedly. The Council Conclusions on the 
EU  biodiversity  strategy  for  2030  adopted  in  October  2020  welcome  the  objective  of 
protecting  a  minimum  of  30%  of  the  EU’s  seas,  one  third  of  which  under  strict  protection. 
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,  the  Conclusions  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, the Conclusions confirmed 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.  
In  December  2022,  the  15th  Conference  of  the  Parties  to  the  Convention  on  Biological 
Diversity  (CBD)  adopted  the  Kunming  Montreal  Global  Biodiversity  Framework  including 
target  3  to  “ensure  and  enable  that  by  2030  at  least  30%  of  terrestrial,  inland  water,  and  of 
coastal  and  marine  areas,  especially  areas  of  particular  importance  for  biodiversity  and 
ecosystem  functions  and  services,  are  effectively  conserved  and  managed 
through 
ecologically representative, well-connected and equitably governed systems of protected areas 
and other effective area-based conservation measures…” The EU and  all  its Member States 
are Parties to the CBD. 

Latest version available in :  

2 
01_naces_rev_nomination_proforma_20221201_version_for_consultation.pdf (ospar.org) 

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In  view  of  the  OSPAR  Commission  meeting  of  26-30  June  2023,  a  Union  position  is 
necessary  because  the  envisaged  Decision  is  a  legally  binding  text.  Even  if  the  envisaged 
Recommendation would not be legally binding, it is proposed that the Union position covers 
both  envisaged  acts  due  to  the  fact  that  they  are  closely  related  and  are  envisaged  to  be 
adopted  together.  Since  these  envisaged  acts  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  envisaged  Decision and the  envisaged 
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 that 
“the Council, on a proposal from the Commission or the High Representative of the Union for 
Foreign Affairs and Security Policy, shall adopt a decision […] 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 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 it is therefore 
appropriate to cover them by the same decision establishing the 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 acts relate to protection of the environment. 

Therefore, the substantive legal basis of the proposed decision is Article 192(1) TFEU. 

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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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2023/0139 (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 amendments to the 
Decision on delineation and the Recommendation on the management of the North 
Atlantic Current and Evlanov Sea basin 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) 

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 the ministerial segment of its 24th annual meeting on 
1 October 2021, adopted OSPAR Decision 2021/01 on the establishment of the North 
Atlantic Current and Evlanov Sea basin Marine Protected Area and Recommendation 
2021/01  on  its  management4.  At  the  same  time,  it  was  also  decided  that  the 
conservation scope of the MPA would need to be reviewed, with a view to expanding 
it. 

This  review was carried out  and led to  the OSPAR Commission envisaged Decision 
amending  OSPAR  Decision  2021/01  on  the  establishment  and  the    envisaged 
Recommendation amending OSPAR Recommendation 2021/01 on the management of 
the  North  Atlantic  Current  and  Evlanov  Sea  basin  Marine  Protected  Area  (‘NACES 
MPA’).  The  OSPAR  Commission  is  to  adopt  this  envisaged  Decision  and  this 
envisaged Recommendation during its 26th regular session/meeting on 26 June 2023. 

The envisaged Decision of the OSPAR Commission extends the conservation scope of 
coordinates 
the  existing  NACES  MPA  and 
(latitude/longitude) of its boundaries. 

the  geographical 

indicates 

OJ L 104, 3.4.1998, p. 2. 

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4 
The Union position was contained in Council Decision (EU) 2021/1796 of 28 September 2021 on the 
position to be taken on behalf of the European Union within the Commission established by the Convention for 
the Protection of the Marine Environment of the North-East Atlantic as regards a decision on the establishment 
of  the  North  Atlantic  Current  and  Evlanov  Seamount  Marine  Protected  Area  (NACES  MPA)  and  a 
recommendation on the management of the NACES MPA (OJ L 361, 12.10.2021, p.46). 

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(6) 

(7) 

(8) 

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

There  is  a  close  link  between  the  two  envisaged  OSPAR  Commission  acts  and,  it  is 
therefore 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 OSPAR Commission will be 
binding on the Union, 

HAS ADOPTED THIS DECISION: 

Article 1 
The  position  to  be  taken  on  the  Union's  behalf  in  the  26th  session/meeting  of  the  OSPAR 
Commission shall be to support the adoption of a Decision amending Decision 2021/01 on the 
establishment  of  the  North  Atlantic  Current  and  Evlanov  Sea  basin  Marine  Protected  Area 
extending its conservation scope, and to support the adoption of a Recommendation amending 
OSPAR  Recommendation  2021/01  on  the  management  of  the  North  Atlantic  Current  and 
Evlanov Sea basin Marine Protected Area extending its conservation objectives. 

Article 2 

Refinement  of  the  position  referred  to  in  Article  1  may  be  agreed  to,  in  the  light  of 
developments at the 26th meeting of the OSPAR Commission, by the representatives of the 
Union, in consultation with Member States during on-the-spot coordination meetings, without 
a further decision of the Council. 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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