Exceptions
As with the WFD, a number ofexceptions apply which may justify non-achievement of the environmental targets or GES in every aspect through measures taken by the
Member State concerned. Such justifying factors are: (a) action or inaction for which the Member State concerned is not responsible; (b) natural causes; (c) force majeure; (d) modifications or alterations to the physical characteristics of marine waters brought about by actions taken for reasons of overriding public interest which outweigh the negative impact on the environment, including any transboundary impact; and (e) natural conditions which do not allow timely improvement in the status of the marine waters concerned. Any such instances must be clearly identified in the programme of measures and the Member State shall substantiate its view to the Commission. (Art 14.)
Even if an exception applies, the Member State concerned must take appropriate ad hoc measures aiming to continue pursuing the environmental targets, to prevent further deterioration in the status of the marine waters affected by natural causes, force majeure, or modifications or alterations (ie points b—d above) and to mitigate the adverse impact at the level of the marine (sub)region concerned or in the marine waters of other Member States. The ad hoc measures shall be integrated as far as practicable into the programmes of measures. Modifications or alterations may not permanently preclude or compromise the achievement of GES at the level of the marine (sub)region concerned or in the marine waters of other Member States. (Art 14.)
A further important exception is that Member States are not required to take any specific steps, except for those associated with the initial assessment, where there is no significant risk to the marine environment, or where the costs would be disproportionate taking account of the risks to the marine environment.
It is not hard to see how the rather open-ended exceptions, not least the one relating to disproportionate costs, could be used in a way that may significantly erode the effect of the Directive.[1] At least, not taking any steps is only permissible if it does not result in further deterioration of the status of the marine waters affected. A Member State making use of an exception must also provide the Commission with the necessary justification to substantiate its decision and must avoid permanent compromise of the achievement of GES. (Art 14.)
Just like the WFD, the MSFD operates based on six-year cycles. While the Member States are generally obliged to ensure that their marine strategies are kept up to date, they must review the initial assessment, the determination of GES, the environmental targets, the monitoring programmes, and the programmes of measures every six years after their initial establishment. (Art 17.)
In line with its ambition to promote coordination and coherence, the MSFD contains a number of provisions requiring Member States to initiate processes at EU or international level when needed to achieve the Directive’s objectives. This is particularly pertinent considering that much effort has been put into developing a number of regional marine agreements, such as the Helsinki, OSPAR, and Mediterranean
Conventions, through which the Member States concerned work to develop and coordinate marine environment policy not only among themselves but also with non- EU States that are coastal states or located within the catchment area of the seas surrounding the EU. There is thus a strong case, both in terms of administrative efficiency and environmental efficacy, for building on and strengthening the existing structures rather than duplicating them. But there are also considerable challenges associated with using non-EU legal structures as instruments for furthering environmental standards and mechanisms set by the Union.[2] [3] The inevitable transboundary nature of marine environmental problems and the existence of multiple EU policies affecting the marine environment also necessitates internal coordination within the Union.
To start with, any Member State that identifies any issue which has an impact on the environmental status of its marine waters but which cannot be tackled by measures taken at national level, or which is linked to another EU policy or to an international agreement, shall inform the Commission and provide a justification to substantiate its view. The Commission is then required to respond within six months. In cases where action by EU institutions is needed, Member States shall make appropriate recommendations to the Commission and the Council. The Commission is then obliged not only to respond but also, with some exceptions and as appropriate, to reflect the recommendations when presenting related proposals to the EP and to the Council. (Art 15.)
Furthermore, Member States that consider the management of a human activity at EU or international level to be likely to have a significant impact on the marine environment, particularly marine protected areas, shall address the competent authority or international organisation concerned with a view to the consideration and possible adoption of measures that may be necessary in order to achieve the objectives of the Directive (Arts 6 and 13).
There is also a general obligation on the Member States to use existing regional institutional cooperation structures to achieve coordination across a marine (sub) region where practical and appropriate. For the purpose of establishing and implementing the marine strategies they shall make every effort, using relevant international forums, including mechanisms and structures of regional sea conventions/2 to coordinate their actions with third countries having jurisdiction over waters in the same marine region or subregion. In that context they shall, as far as possible, build upon relevant existing programmes and activities. Where appropriate, coordination and cooperation should also involve all Member States in the catchment area of a marine region or subregion. (Art 6.)
The MSFD contains provisions on public consultation and information, including an obligation to ensure that all interested parties are given early and effective opportunities to participate in the implementation of the Directive, and to make available to the public for comment summaries of listed elements of the marine strategies (Art 19).
The MSFD is a quintessential framework directive, which emphasises procedural obligations, including coordination of existing standards and structures. This, together with the emphasis on cost efficiency and the weighing up of environmental and economic benefits, is likely to make it challenging to assess compliance and determine to what extent the MSFD contributes to improvement of the marine environment.
- [1] On this concern, see R Long ‘The Marine Strategy Framework Directive: A New EuropeanApproach to the Regulation of the Marine Environment, Marine Natural Resources and MarineEcological Services’ (2011) 29 Journal of Energy & Natural Resources Law 1—44, 36—7.
- [2] B Bohman and D Langlet ‘Float or Sinker for Europe’s Seas?—The Role of Law in MarineGovernance’ in K Kern and M Gilek (eds) Governing Europe’s Marine Environment: Europeanization ofRegional Seas or Regionalization of EU Policies? (Ashgate, 2015) 53—73.
- [3] 72 ‘Regional sea conventions’ refers to the international conventions or international agreementstogether with their governing bodies established for the purpose of protecting the marine environmentof the marine regions identified in the MSFD. Art 3.
