EU marine protected areas and the Article 11 procedure Heather Hamilton Presentation to NSAC Spatial Planning WG 4 July 2016

Background Member State duty to implement environmental conservation measures, including the designation and management of Marine Protected Areas (MPAs), under the Habitats Directive, the Birds Directive and the Marine Strategy Framework Directive. These obligations existed prior to the reform of the CFP. Process for doing so was unclear, particularly in offshore areas where other Member States had a fishing interest The 2013 CFP reform changed this...

Article 11(1) CFP basic regulation “ Member States are empowered to adopt conservation measures not affecting fishing vessels of other Member States that are applicable to waters under their sovereignty or jurisdiction and that are necessary for the purpose of complying with their obligations under Article 13(4) of Directive 2008/56/EC, Article 4 of Directive 2009/147/EC or Article 6 of Directive 92/43/EEC, provided that those measures are compatible with the objectives set out in Article 2 of this Regulation, meet the objectives of the relevant Union legislation that they intend to implement, and are at least as stringent as measures under Union law.” Birds Directive – 2009 – protects all European wild birds and the habitats of listed species, chiefly through designation of Special Protection Areas (SPAs) Habitats Directive – 1992 in response to Bern Convention – protects listed habitats and species and provides for designation of Special Areas of Conservation (SACs) Together, the Habitats and Birds Directives set out to establish a ‘coherent European ecological network’ of protected areas across the EU, called the Natura 2000 network. The aim of the Natura 2000 network is to protect the most seriously threatened habitats and species across Europe by enabling the natural habitat types and habitats of relevant protected species to be maintained and restored at favourable conservation status. **Natura 2000 network applies to both terrestrial as well as marine biodiversity. The EU Marine Strategy Framework Directive also requires a programme of measures that ‘shall include spatial protection measures, contributing to coherent and representative networks of marine protected areas’ by 2016 at the latest. The sites in the network will work together to provide more benefits than an individual area could on its own. MPAs established under international, European and national legislation will all contribute to an ecologically coherent network of MPAs.

What is Article 11? Sets out a process for decision-making on fisheries management measures in offshore sites designated under the Habitats and Birds Directives and the Marine Strategy Framework Directive Measures must meet objectives of HD/BD/MSFD (as relevant) and CFP, and abide by TFEU: Consistency between EU policy (Art 7) Integration principle (Art 11) Precautionary principle (Art 191(2)) Focus on regionalisation: decisions are still taken at Member State level rather than by the EU institutions but in a more formalised way Legal analysis of Art 11 took up 26 pages – this is a very brief overview with details to be found in summary briefing that is available on the NWWAC meeting page, and ClientEarth’s website. The previous CFP was unclear on the process to be followed when a MS needed to restrict fishing in a marine area for the purpose of implementing EU environmental laws in their sovereign waters, although the obligation itself was clear. The new CFP has tried to address this by detailing specific processes in Art 11. Because they are for the purpose of complying with environmental laws, measures implemented under Art 11 are clearly for environmental/conservation purposes and not fisheries management or conservation. Among other things, this means that DG-Environment should be responsible for managing the processes under Art 11, not DG-MARE (e.g. in relation to the development of delegated acts or emergency measures) Measures must meet the objectives of the relevant legislation and be at least as stringent as measures under Union law (e.g. in relation to applying precautionary and integration principles required by the Treaty on the Functioning of the European Union)

Relevant EU legislation Birds Directive (SPAs) Habitats Directive (SACs) Annex 1  habitats Annex 2  species Marine Strategy Framework Directive (MSFD) coherent and representative networks of MPAs by 2016 at the latest “Natura 2000 network” Aim  Favourable Conservation Status Birds Directive – 2009 – protects all European wild birds and the habitats of listed species, chiefly through designation of Special Protection Areas (SPAs) Habitats Directive – 1992 in response to Bern Convention – protects listed habitats and species and provides for designation of Special Areas of Conservation (SACs) Together, the Habitats and Birds Directives set out to establish a ‘coherent European ecological network’ of protected areas across the EU, called the Natura 2000 network. The aim of the Natura 2000 network is to protect the most seriously threatened habitats and species across Europe by enabling the natural habitat types and habitats of relevant protected species to be maintained and restored at favourable conservation status. **Natura 2000 network applies to both terrestrial as well as marine biodiversity. The EU Marine Strategy Framework Directive also requires a programme of measures that ‘shall include spatial protection measures, contributing to coherent and representative networks of marine protected areas’ by 2016 at the latest. The sites in the network will work together to provide more benefits than an individual area could on its own. MPAs established under international, European and national legislation will all contribute to an ecologically coherent network of MPAs.

The regionalised process in Article 11 Where a Member State considers that it needs to adopt measures in order to comply with the Habitats Directive it must provide the Commission and the other Member States having a direct management interest with relevant information on the measures required. The Member State initiating this process and the other Member States with a direct management interest may submit a joint recommendation within six months from the provision of sufficient information*

Article 11 process continued The Commission is to adopt the measures, taking into account any scientific advice, within three months from receipt of a complete request*. If the Member States do not agree on a joint recommendation or if it is deemed incompatible with the requirements the Commission may submit a proposal itself. * Definition?

EU environmental law & Art 11 of the CFP iMS identify necessary conservation measures MS likely to consult stakeholders No iMS adopts measures Is it likely to affect other MS w/ a DMI? Yes/maybe If the conservation measure is urgent (at any point) iMS can adopt measures domestically iMS gives “relevant info” to the Commission and MS w/ DMI Begin co-legislative procedure If other MS affected - MS decide to pursue JR MS do not pursue JR The previous CFP was unclear on the process to be followed when a MS needed to restrict fishing in an MPA for the purpose of implementing EU environmental laws in their sovereign waters, although the obligation itself was clear. The new CFP has tried to address this by detailing a specific process in Art 11 - here’s a quick overview of the processes (detailed information will be available in a handout). When the conservation measure(s) proposed don’t effect other MS with a direct management interest (a MS having a DMI is defined in CFP Art 3(22) as ‘a MS which has an interest consisting of either fishing opportunities or a fishery taking place in the EEZ of the MS concerned, or, in the Med, a traditional fishery on the high sea’): The initiating MS can adopt the measures necessary to comply with the MPA provisions in the HD, BD, and MSFD, as long as they are compatible with Art 2 of the CFP, meet the objectives of the relevant Union legislation they are intended to implement, and are at least as stringent as measures under Union law. If other MS having a direct management interest in the fishery may be affected by the measures: The iMS provide the Commission and MS having a DMI with “relevant information on the measures required, including their rationale, scientific evidence in support and details on their practical implementation and enforcement”. This could also include other information as well. the iMS and MS w/ DMI may decide to pursue the development of a joint recommendation on the measure(s). They then have six months to submit this to the Commission. if they do not pursue a JR, the Commission will pass the measures (after the 6 month window) by means of a delegated act (if there are no objections from Council or Parliament) if they agree on a JR within 6 months of the provision of ‘sufficient information’ by the iMS, this will be submitted to the Commission. If it is determined that this meets the objectives and requirements, the Comm will pass the measures by means of a delegated act (if there are no objections from Council or Parliament) if they do not agree on a JR within 6 months of the provision of ‘sufficient information’ by the iMS, or if the submitted JR is deemed incompatible with the relevant objectives and/or requirements, the Commission may submit a proposal in accordance with the OLP, i.e. co-decision  undesirable for many reasons. In cases of urgency (i.e. When the achievement of the objectives of the Directives and the MS’s intentions are in jeopardy) and only the iMS will be affected – that MS is required to take action (same as before) In cases of urgency when other MS will be affected: The Commission can adopt measures in the absence of a JR These shall apply for max. 12 months, extendable for another 12 months if the conditions continue to exist Note: Commission is to facilitate cooperation between iMS and MS w/ DMI, and implementation/enforcement of measures that apply to more than just the iMS. Because they are for the purpose of complying with environmental laws, measures implemented under Art 11 are clearly for environmental/conservation purposes and not fisheries management. Among other things, this means that DG-Environment should be responsible for managing the process under Art 11, not DG-MARE. Likewise, within Member States’ national administrations, it should be the environmental authorities that lead the process, not the fisheries authorities. Commission passes necessary measure(s) through delegated act or Comm Decision (initially for 12 months, can be extended for 12 more months) Commission passes delegated act JR not submitted within 6 months, or incompatible with objectives JR agreed and submitted within 6 months and is compatible with objectives

Article 11 process so far Member States that have initiated discussions under the Article 11 procedure include UK, Belgium, Netherlands, Germany, Denmark To date one delegated act adopted by the Commission Different Member States taking different approaches to the use of Article 11 and to consultation on proposed measures More lengthy timescales than envisaged

Article 11 consultation process Article 18 CFP requires the Member States with direct management interests to cooperate to formulate joint recommendations Advisory Councils must be consulted Consultation requirements not clearly defined - consultation might be both in writing and in person

Consultation issues Form of consultation not set out in the legislation Approach taken by different Member States not uniform Generally ‘informal consultation’ followed by ‘formal consultation’ (at which point all MSs may be largely in agreement) Delays = delays to protection Lack of clarity as to when stakeholders e.g. Advisory Councils to be consulted

NSAC Consultation experience Differing Member State approaches: Are preliminary meetings being seen by some MSs as consultation? Are the MSs expecting written or verbal responses? NSAC aims to produce consensus advice – difficulties with: Limited timescales, particularly with extra step of Executive Committee approval Divergent views? More clarity needed from the consulting Member State(s)

Thank you. Questions? Heather Hamilton +44 (0)203 030 5984 hhamilton@clientearth.org Briefings available at www.clientearth.org/biodiversity/publications Follow us on Twitter @ClientEarth and @CeOceans