Conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction

The European Parliament adopted, by 454 votes to 172 and 19 abstentions, amendments to the proposal for a directive of the European Parliament and of the Council on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction.

The issue has been referred back to the committee responsible for interinstitutional negotiations.

Alignment with the text and spirit of the BBNJ agreement

The proposal aims to implement the provisions of the Agreement concluded under the United Nations Convention on the Law of the Sea (UNCLOS) on the Conservation and Sustainable Use of Marine Biological Diversity in Areas Beyond National Jurisdiction (the BBNJ Agreement). In implementing the directive, Member States should duly consider the principles and approaches set out in the BBNJ Agreement. The directive should be implemented in a manner that does not undermine relevant legal instruments and frameworks, or the competent global, regional, subregional, and sectoral bodies.

Subject matter

Parliament clarifies that the directive establishes rules applicable to: (i) marine genetic resources and digital sequencing information, (ii) environmental assessments of planned activities falling within the jurisdiction or control of Member States, iii) as well as the creation and implementation of area-based management tools and emergency measures, in areas beyond national jurisdiction.

Environmental assessments

For activities for which an environmental impact assessment has been carried out in accordance with the requirements of other relevant international legal instruments or frameworks, Union law or competent global, regional or sectoral bodies, the Member States concerned should ensure (i) that the conditions set out in Article 29(4) of the BBNJ Agreement are met, (ii) that the environmental impact assessment report is published through the Clearing House, and (iii) that the activity for which the environmental impact assessment was carried out is monitored.

Screening

The Member State with jurisdiction or control of the activity should conduct a screening to determine whether the activity may cause substantial pollution of or significant and harmful changes to the marine environment, taking into account the precautionary principle, where there is scientific uncertainty.

When an environmental impact assessment of a planned activity is required, the environmental impact assessment report must also include, where applicable, a description of all impacts associated with the planned activity, such as economic, social, cultural, and human health impacts, including effects on food security, employment, and regional economies, in accordance with the BBNJ Agreement. Member States must ensure that impact assessment reports are prepared by competent and independent experts and require these experts to disclose any conflicts of interest related to their role and responsibilities.

Decision-making

The decision to authorise a planned activity should include, inter alia, a conclusion by the competent authority on the significant pollution or substantial and harmful changes that the planned activity is likely to cause to the marine environment and the main reasons for the authorisation. Member States should make publicly available all the conditions set out in the authorization of the proposed activity, including those relating to mitigation and compensation measures and follow-up requirements.

Access to justice

In line with the objective of implementing the Aarhus Convention, Member States should ensure that members of the public concerned have access to a review procedure when they have a sufficient interest in bringing an action or when they main an impairment of a right. For this purpose, the interest of any non-governmental organisation working for environmental protection and meeting the requirements of national legislation will be deemed sufficient.

The review procedure should be fair, equitable, timely and not prohibitively expensive, and shall provide for adequate and effective redress mechanisms, including injunctive relief. Practical information should be made available to the public on access to administrative and judicial review procedures.

Establishment of area-based management tools

Member States must submit to the Commission any draft proposal falling under Article 19 of the BBNJ Agreement or any emergency measure before sending it to the Secretariat. Upon receipt, the Commission will inform all Member States and communicate the draft proposal to them without delay.

Within 30 days of the deadline for Member States to submit comments, the Commission will present a legal assessment indicating whether the draft proposal or emergency measure received should be submitted to the Secretariat by the Commission on behalf of the Union.

If the assessment is positive, the Commission will submit the proposal to the Secretariat, either alone or jointly with the Member States concerned. If the Commission concludes that a draft proposal or emergency measure should not be submitted on behalf of the Union, the Member State (or group of Member States) may submit the proposal on its own behalf. Alternatively, a Member State, or a group of Member States, may submit a proposal for an emergency measure directly to the Secretariat under the BBNJ Agreement.

Lastly, the Commission and the Member States will need to cooperate closely and consult each other regularly during the preparation, evaluation and submission of proposals or emergency measures.