The Marine Strategy Framework Directive (MSFD)

The EU and its Member States are all parties to the United Nations Convention on the Law of the Sea (UNCLOS),5⁷ which provides a legal framework for most ^[1]

human activities at sea or that directly affect the sea. UNCLOS also defines the marine jurisdictional zones which determine what competences States have in relation to different parts of the sea and different activities. The EU’s Sixth Environment Action Programme from 2002 identified promoting sustainable use of the seas and conservation of marine ecosystems as a priority area for action and called for the elaboration of a thematic strategy for the protection and conservation of the marine environment.5⁸ This led to the Commission presenting, in 2007, An Integrated Maritime Policy for the European Union.5⁹ The strategy, which holds the seas to be ‘Europe’s lifeblood’, is based on the recognition that all matters relating to Europe’s oceans and seas are interlinked, and that sea-related policies must be developed in a joined-up way. Among the specific projects endorsed by the strategy are the development of a European strategy for marine research; national integrated maritime policies, to be developed by Member States; a European network for maritime surveillance; and a roadmap towards maritime spatial planning by Member States. The environmental pillar of the Integrated Maritime Policy is the Marine Strategy Framework Directive adopted in 2008, that is, one year after the strategy.

Consistent with the idea of an integrated maritime policy, Directive 2008/56/EC establishing a framework for community action in the field of marine environmental policy (MSFD) aims to ensure the integration of environmental concerns into policies, agreements, and legislative measures which have an impact on the marine envir- onment^{[2] [3] [4]} (Art 1). It is based on a previous Treaty article corresponding to the current Article 192(1) TFEU and thus belongs to the environmental policy of the Union.

The MSFD describes the marine environment as a precious heritage that must be protected, preserved, and, where practicable, restored with the ultimate aim of maintaining biodiversity and providing diverse and dynamic oceans and seas which are clean, healthy, and productive. However, the pressure on natural marine resources and the demand for marine ecological services are often too high and the EU needs to reduce its impact on marine waters. The framework provided by the MSFD should enable the required action to be coordinated, consistent, and properly integrated with action under other EU legislation and international agreements.^{[5] [6]}

The Directive should support the position taken by the EU in the context of the Convention on Biological Diversity. It should also contribute to the fulfilment of the obligations and commitments of the EU and its Member States under several international agreements relating to the protection of the marine environment from pollution, among them the Helsinki Convention, the OSPAR Convention, and the Barcelona Convention.62

Like the WFD, the MSFD has the attainment of good status in the water bodies concerned as its main focus. Within the framework established by the MSFD, the Member States are obliged, subject to some exceptions, to take the necessary measures to achieve or maintain good environmental status (GES) in the marine environment by the year 2020 at the latest. This is to be done through the development and implementation of marine strategies by each Member State. These strategies shall protect and preserve the marine environment, prevent its deterioration, or, where practicable, restore marine ecosystems in areas where they have been adversely affected. They shall furthermore prevent and reduce inputs in the marine environment, with a view to phasing out certain pollution so as to ensure that there are no significant impacts on or risks to marine biodiversity, marine ecosystems, human health, or legitimate uses of the sea. (Art 1.)

An important feature is that the marine strategies are to apply an ecosystem- based approach to the management of human activities.^{[7] [8] [9] [10]} They shall ensure that the collective pressure of such activities is kept within levels compatible with the achievement of GES and that the capacity of marine ecosystems to respond to human-i nduced changes is not compromised, while enabling the sustainable use of marine goods and services by present and future generations. Adaptive management on the basis of the ecosystem approach shall be applied with the aim of attaining GES. (Arts 1 and 3.)

The MSFD has an extensive scope. It applies to all so-called marine waters in the European territories of the Member States. That includes waters, the seabed, and subsoil on the seaward side of the baseline6⁴ extending to the outmost reach of the area where a Member State has and/or exercises jurisdictional rights in accordance with UNCLOS. That area includes the territorial sea and the continental shelf, as well as the exclusive economic zone (EEZ) and the contiguous zone to the extent that the latter zones have been claimed by the Member State concerned.65 Also, ‘coastal waters’ as defined by the WFD (Directive 2000/60/EC), their seabed, and their subsoil fall under the MSFD, but only with respect to particular aspects of the environmental status of the marine environment that are not already addressed through the WFD or other EU legislation.66 Effects on the quality of the marine environment of third States are also to be taken account of. (Arts 2 and 3.)

The MSFD is based on the recognition that the diverse conditions, problems, and needs of the various marine regions or subregions that make up the marine environment in the EU require different and specific solutions. That diversity should be taken into account at all stages of the preparation of marine strategies, but especially during the preparation, planning, and execution of measures to achieve GES at the level of marine regions or subregions. To that end the Member States must take due account of the fact that marine waters covered by their sovereignty or jurisdiction form an integral part of one or more of four major marine regions: the Baltic Sea; the North-east Atlantic Ocean; the Mediterranean Sea; and the Black Sea. Of these, the North-east Atlantic and the Mediterranean are further divided into subregions, the specificities of which the Member States concerned may take into account when implementing the Directive. (Art 4.)

• [1] [1998] OJ L 3 30/32 . 56 [2007] OJ L 288/27. 57 United Nations Convention on the Law of the Sea (UNCLOS) (10 December 1982, MontegoBay) 1833 UNTS 3.
• [2] Decision No 1600/2002/EC of the European Parliament and of the Council laying down theSixth Community Environment Action Programme [2002] OJ L 242/1.
• [3] Communication from the Commission—An Integrated Maritime Policy for the EuropeanUnion (10 October 2007) COM(2007) 575 final.
• [4] Directive 2008/56/EC of the European Parliament and of the Council establishing a framework for community action in the field of marine environmental policy (Marine Strategy FrameworkDirective) [2008] OJ L 164/19.
• [5] Preambular paras 2, 3, and 9.
• [6] Preambular paras 18 and 19. On these conventions see notes 9—11.
• [7] The MSFD does not provide a definition of ‘ecosystem-based approach’. For a discussion of thisconcept, see V De Lucia ‘Competing Narratives and Complex Genealogies: The Ecosystem Approachin International Environmental Law’ (2015) 27 Journal of Environmental Law 91—117.
• [8] The ‘baseline’ is the low-water line along the coast as marked on large-scale charts officially recognised by the coastal state (normal baseline). Where the coastline is deeply indented and cut into, orif there is a fringe of islands along the coast in its immediate vicinity, so-called straight baselines maybe drawn by joining appropriate points on the coast or on certain elevations. On the drawing of suchbaselines see further UNCLOS (n 57), Art 7.
• [9] Regarding these zones see eg Y Tanaka The International Law of the Sea (Cambridge UniversityPress, 2012).
• [10] According to Art 2 of the WFD, ‘coastal water’ means surface water on the landward side of a line,every point of which is at a distance of one nautical mile on the seaward side from the nearest point ofthe baseline from which the breadth of territorial waters is measured, extending where appropriate upto the outer limit of so-called transitional waters.