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 (OSPAR Convention) on a Decision amending OSPAR Decision 98/3 on the Disposal of Disused Offshore Installations
Date: 2024-04-08
Institutions: Directorate-General for Environment, European Commission
Subjects: Atlantic Ocean, concrete, dumping of waste, hazardous waste, hydrocarbon, international convention, marine ecosystem, marine environment, maritime area, protected area

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   EUROPEAN COMMISSION  Brussels, 8.4.2024  COM(2024) 153 final 2024/0084 (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 (OSPAR Convention) on a Decision amending OSPAR Decision 98/3 on the Disposal of Disused Offshore Installations  
 
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  OSPAR  Decision  98/3  on  the  Disposal  of 
Disused  Offshore  Installations  within  the  Convention  for  the  protection  of  the  marine 
environment of the North-East Atlantic. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The OSPAR Convention 

The Convention for the protection of the marine environment of the North-East Atlantic (‘the 
Agreement’) aims to protect the North-East Atlantic maritime area against the adverse effects 
of  human  activities  to  safeguard  human  health,  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 Agreement was opened for signature at the Ministerial Meeting of the Oslo 
and Paris Commissions 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.  

2.3. 

The envisaged act of the OSPAR Commission 

On  24  June  2024,  during  its  27th  session/meeting,  the  OSPAR  Commission  is  to  adopt  a 
Decision  amending  OSPAR  Decision  98/3  regarding  the  Disposal  of  Disused  Offshore 
Installations (‘the envisaged act’). 

It is proposed to amend the definition of “concrete installation” in OSPAR Decision 98/3 on 
the  Disposal  of  Disused  Offshore  Installations  to  clarify  that  any  cell  content  within  the 
substructure is not part of the installation. Cells in such installations (called “concrete gravity-
based structures (CGBS)”) are used for storage of hydrocarbons and the residual materials in 
these  cells,  of  largely  unknown  composition,  are  mainly  liquid,  with  high  amounts  of  oil. 
Such  cell  contents  are  hazardous  waste  which,  if  left  at  sea  after  decommissioning  of  the 
installation, carries high risks for the environment, ecosystems and potentially human health.  

OSPAR Decision 98/3 requires in principle full removal of end-of-life installations but allows 
derogations.  

1 

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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CGBS cell contents are not part of an offshore installation and therefore should not be subject 
to  a  derogation  under  Decision  98/3;  in  order  to  provide  clarity  on  this  issue,  the  OSPAR 
Jurist Linguists recommended amending the definition of “concrete installation” in paragraph 
1  of  OSPAR  Decision  98/3  to:  “concrete  installation  means  a  disused  offshore  installation 
constructed wholly or mainly of concrete; any cell content within the substructure is not part 
of  the  installation  and  is  covered  under  the  provisions  of  Annex  III  of  the  OSPAR 
Convention”. The addition of the part in italics, by excluding explicitly the cell contents from 
the  definition  of  “concrete  installation”,  removes  any  possibility  for  allowing,  through  a 
derogation to the full removal obligation established under Decision 98/3, to leave such cell 
contents at sea after decommissioning. 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

In  the  wake  of  the  Brent  Spar  incident  in  the  mid-nineties  (whereby,  in  the  face  of  public 
outcry, Shell had to change its decision to dump in the sea a disused oil extraction installation) 
the 1998 OSPAR Ministerial Meeting in Sintra (Portugal) adopted OSPAR Decision 98/3 on 
the  Disposal  of  Disused  Offshore  Installations;  this  Decision  prohibits  dumping,  and  the 
leaving  wholly  or  partly  in  place,  of  disused  offshore  installations  within  the  OSPAR 
Maritime Area. 

Only  for  certain  categories,  and  subject  to  an  assessment  in  accordance  with  Annex  2  of 
Decision 98/3, the competent authority of the relevant OSPAR Contracting Party may issue a 
derogation permit to leave installations or parts of installations in place. Categories of disused 
offshore  installations  where  derogations  may  be  considered  include,  for  example,  steel 
installations  weighing  more  than  ten  thousand  tonnes  in  air  or  concrete  gravity-based 
structures (CGBS). 

During  2019-2020,  a  consultation  process  under  OSPAR  Decision  98/3  on  the  United 
Kingdom’s intention to issue a derogation permit for leaving in-situ the footings of the Brent 
Alpha  Steel  Jacket  and  Brent  Bravo,  Brent  Charlie  and  Brent  Delta  gravity-based  concrete 
installations  structures  was  undertaken;  such  permit  would  include  the  cell  contents  of  the 
gravity-based concrete installations structures.  

The  Commission  representing  the  EU,  together  with  other  OSPAR  Contracting  Parties,  has 
objected to the UK’s intention because such contents are hazardous waste which should not 
be left at sea; moreover, a proper monitoring programme of the marine environment around 
the  parts  of  the  disused  installation  left  at  sea  should  be  in  place;  furthermore,  to  prevent 
leaving  any  parts  at  sea  after  decommissioning,  in  line  with  the  spirit  of  Decision  98/3, 
development  of  technological  solutions  for  full  removal  should  be  accelerated;  granting 
derogation permits without adequate justification does not stimulate such development. 

The consultation process was reflected, inter alia, in the new OSPAR Strategy, adopted by the 
2021  OSPAR  Ministerial  Meeting  in  Cascais  (Portugal),  which  has  an  objective  to  “review 
and, if appropriate, amend the categories of disused offshore installations where derogations 
may  be  considered  under  OSPAR  Decision  98/3  on  the  Disposal  of  Disused  Offshore 
Installations,  aiming  to  reduce  the  scope  of  possible  derogations.  The  review  will  be  based, 
inter  alia,  on  the  advancement  of  decommissioning  technologies  and  on  the  best  available 
the 
scientific  knowledge.”  The  Strategy  also  contains  an  objective  of  promoting 
decommissioning technologies; the development of a harmonised methodology for assessing 
decommissioning options is also underway in OSPAR. 

In  this  context,  the  aim  of  the  proposed  amendment  is  to  provide  a  solid  legal  basis  for 
preventing to leave in situ contaminated cell contents after decommissioning. This is in line 
not  only  with  the  abovementioned  objections  to  derogations  for  cell  contents  by  the 

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Commission and other OSPAR Contracting Parties , but also with related EU policies such as  
the  Zero  Pollution  Action  Plan,  aiming  to  reduce  pollution  in  water  to  levels  no  longer 
considered harmful to health and natural ecosystems by 2050, the Marine Strategy Framework 
Directive,  which  requires  achievement  of  Good  Environmental  Status  in  EU  marine  waters, 
the Waste Framework Directive, which prohibits dumping of waste  and the Offshore Safety 
Directive,  which  considers  also  environmental  aspects  of  decommissioning.  None  of  these 
policies  can  be  properly  implemented  if  sources  of  a  potentially  severe  and  lasting 
transboundary  pollution,  such  as  contaminated  cell  contents  of  disused  oil  installations,  are 
present in the Northeast Atlantic. 

In  view  of  the  OSPAR  Commission  meeting  from  24-28  June  2024,  a  Union  position  is 
necessary because the envisaged Decision, which is going to be adopted is a legally binding 
text. Since the Decision will facilitate the implementation of EU policies and legislation and 
prevent  damage  to  the  marine  environment,  it  is  proposed  that  the  Union  supports  the 
adoption of the Decision by voting in favour thereof. 

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 OSPAR Commission is a body set up by an agreement, namely the  Convention for the 
protection of the marine environment of the North-East Atlantic. 

The act which the OSPAR Commission is called upon to adopt constitutes an act having legal 
effects. The envisaged act has legal effects because all OSPAR Decisions are legally binding 
for the Contracting Parties, according to paragraph 2 of Article 13 of the OSPAR Convention, 
according  to  which:“A  decision  shall  be  binding  on  the  expiry  of  a  period  of  two  hundred 
days after its adoption for those Contracting Parties that voted for it and have not within that 
period notified the Executive Secretary in writing that they are unable to accept the decision, 
provided that at the expiry of that period three-quarters of the Contracting Parties have either 
voted for the decision and not withdrawn their acceptance or notified the Executive Secretary 
in writing that they are able to accept the decision. Such a decision shall become binding on 
any  other  Contracting  Party  which  has  notified the  Executive  Secretary  in  writing  that  it  is 
able to accept the decision from the moment of that notification or after the expiry of a period 
of two hundred days after the adoption of the decision, whichever is later”. 

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

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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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  act  relate  to  relate  to  protection  of  the 
environment. 

Therefore, the substantive legal basis of the proposed decision is Article 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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2024/0084 (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 (OSPAR Convention) 
on a Decision amending OSPAR Decision 98/3 on the Disposal of Disused Offshore 
Installations 

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) 

(6) 

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  in 
accordance with Article 13 of the Convention. 
The OSPAR Commission, during its 27th regular session/meeting on 24th June 2024, is 
to  adopt  a  Decision  amending  OSPAR  Decision  98/3  on  the  Disposal  of  Disused 
Offshore Installations. 

The envisaged Decision amends the definition of “concrete installation” to clarify that 
any cell content within the substructure is not part of the installation. 

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 latter will be binding on the 
Union. 

The  Union  position  should  be  to  vote  in  favour  of  the  Decision  amending  OSPAR 
Decision  98/3  because  it  will  facilitate  the  implementation  of  EU  policies  and 
legislation and prevent damage to the marine environment. 

HAS ADOPTED THIS DECISION: 

Article 1 
The  position  to  be  taken  on  the  Union's  behalf  in  the  27th  session/meeting  of  the  OSPAR 
Commission  shall  be  to  vote  in  support  of  the  adoption  of  the  Decision  amending  OSPAR 
Decision 98/3 on the Disposal of Disused Offshore Installations as concerns the definition of 
“concrete installation”. 

3 

OJ L 104, 3.4.1998, p. 2. 

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Article 2 

Refinement  of  the  position  referred  to  in  Article  1  may  be  agreed  to,  in  the  light  of 
developments at the 27th 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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