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The objectives of this contribution are to describe and assess the legal obstacles for ocean energy development in Europe. On the one hand, we analyze the impact of the law of the sea, pay special attention to maritime safety issues. On the other, we deal with the EU environmental legislation on nature and biodiversity, together with the cross-cutting strategic tools. And finally, we focus on the obstacles due to the protection of the marine environment.
Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, OJ L 140, 5 June 2009.
Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Renewable energy progress report. COM (2015) 293 final, 15 June 2015.
There are at present 128.8 GW of installed wind power capacity, of which 120.6 GW are at onshore wind farms, and 8 GW, at offshore wind farms (European Wind Energy Association (2015). Wind in power: 2014 European statistics. http://www.ewea.org/fileadmin/files/library/publications/statistics/EWEA-Annual-Statistics-2014.pdf. Accessed 19 Nov 2015).
There are just 84 offshore wind farms scattered over 11 European countries (European Wind Energy Association (2016). The European offshore wind industry -key trends and statistics 2015. http://www.ewea.org/fileadmin/files/library/publications/statistics/EWEA-European-Offshore-Statistics-2015.pdf. Accessed 15 Feb 2016).
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Blue Energy. Action needed to deliver on the potential of ocean energy in European seas and oceans by 2020 and beyond, COM (2014) 8 final, 20 January 2014, p. 4.
The Commission has identified four forms of ocean energy: “Wave energy depends on wave height, speed, length, and the density of the water. Tidal stream energy is generated from the flow of water in narrow channels whereas tidal range technologies (or ‘tidal barrages’) exploit the difference in surface height in a dammed estuary or bay. Ocean energy can also be generated from temperature differences between surface and sub-surface water while salinity gradient power relies on the difference in salinity between salt and fresh water” (European Commission, supra note 5, at 2).
See Cottier ( 2015), p. 133.
See Andreone ( 2015), p. 163.
Act 15/1978, of 20 february 1978, on Economic Exclusive Zone (BOE núm. 46, 23 February 1978), first final provision.
Royal Decree 1315/1997, of 1 August 1997, establishing a Fisheries Protection Zone in the Mediterranean Sea (BOE núm. 204, 26 August 1997), article 2.
See Papanicolopulu ( 2007), pp. 381–398.
See Scott ( 2006), pp. 89–118.
See Andreone and Cataldi ( 2014), pp. 226–230.
Article 21. Spain, for example, issued a prohibition in advance against marine energy farms in areas where there are maritime traffic separation schemes and zones adjacent thereto, via Royal Decree 1028/2007 of 20 July concerning the procedure for processing applications for authorization for electricity generation facilities in the territorial sea (BOE núm. 183, 1 August 2007, second additional provision).
Article 22.3. In that regard, Spain recently updated its legislation on navigation, establishing that the use of the maritime traffic systems “shall be mandatory for all ships once they have obtained the international approval and publication that may be necessary as appropriate. In any event, use of the maritime traffic systems may only be mandatory when located in internal waters or in the territorial sea and, in the event of approval by the International Maritime Organisation, within the exclusive economic zone” (Act 14/2014, dated 24 July, on maritime navigation, BOE núm. 180, 25 July 2014, article 30).
Resolution MSC. 46 (65), adopted on 16 May 1995, annex 2.
See Birnie ( 1997), p. 34.
Article 60. 4–5.
Adopted on 19 October 1989.
See Long ( 2013), p. 37.
Council Directive (EU) 2014/89 establishing a framework for maritime spatial planning  OJ L 257/135, 28 August 2014.
See Zervaki ( 2015), p. 106.
COM (2013) 133, article 7.1.
Council Directive (EC) 2008/56 establishing a framework of Community action in the field of marine environmental policy (Marine Strategy Framework Directive)  OJ L164/19, 25 June 2008, article 3. 1. a.
Directive No 2001/42/EC of the EP and the Council on the assessment of the effects of certain plans and programmes on the Environment,  OJ L 197/30, 21 July 2001, article 3 (2) (a). See Vazquez Gomez ( 2012), pp. 146–159.
In Spain, for example, identified some of the negative impacts of ocean energy installations in the Strategic Environmental Study of the Spanish Coast for the Installation of Marine Wind Farms, an assessment focusing on finding areas in the maritime public domain that qualify as marine installation sites. Zoning was done bearing in mind the potential perception that marine wind farms visible from the coast alter the landscape. Available at http://www.mityc.es/energia/electricidad/RegimenEspecial/eolicas_marinas/Documents/EEAL_parques_eolicos_marinos_Final.pdf. Accessed 8 Mar 2016.
In that regard, see OSPAR Guidance on Environmental Considerations for Offshore Wind Farm Development, ref. 2008-3, available at http://www.ospar.org. Accessed 7 Jul 2016.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions— Offshore Wind Energy: Action needed to deliver on the Energy Policy Objectives for 2020 and beyond, COM (2008) 768 final, 13 November 2008, para. 2.1.
Article 79 (2).
See Roeben ( 2013), p. 847.
See Ford-Ramsden, Davenport ( 2014), p. 148.
Article 58 (3).
See Ford-Ramsden, Davenport ( 2014), pp. 148–151.
Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, OJ L 26, 28 December 2012 (amended by directive 2014/52/EU, OJ L 124, 25 April 2014).
OJ L 175, 5 July 1985.
Case C-215/06, Commission v Ireland  ECR I-4911, para 94.
Council Directive 97/11/EC of 3 March 1997 amending on the assessment of the effects of certain public and private projects on the environment, OJ L 73, 14 March 1997.
Case C-215/06, para. 108.
Opinion dated 22 January 2009 of Advocate-General J. Kokott in Mellor (C-75/08), para. 48–55.
Preamble, para 20, articles 11–12.
See Soininen ( 2015), pp. 193–195.
Pull Mills on the River Uruguay (Argentina v. Uruguay), Judgement, 20 April 2010, ICJ Reports 2010, para. 204.
Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with commentaries, Report of the International Law Commission on the work of its fifty-third session, Yearbook of the International Law Commission (2001-II), Part. 2, UN Doc. A/56/10, commentary on article 7. However, «such an assessment should contain an evaluation of the possible transboundary harmful impact of the activity. In order for the States likely to be affected to evaluate the risk to which they might be exposed, they need to know what possible harmful effects that activity might have on them. » (p. 159).
Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, para.148.
OJ C 104, 24 April 1992.
Text available at http://www.unece.org/env/eia/about/amendment2.html. Accessed 10 Apr 2016.
Article 2 (5) in conjunction Annex III.
The North Seas Countries’ Offshore Grid Initiative, Memorandum of Understanding, 3 December 2010. http://www.benelux.int/files/8113/9625/9202/MoU_NSCOGI.pdf. Accessed 10 Apr 2016.
See Roeben ( 2013), p. 861.
Text available at http://www.ramsar.org/sites/default/files/documents/library/scan_certified_e.pdf. Accessed 8 Mar 2016.
Naturally, the Spanish authorities bore the Ramsar Convention strongly in mind when drawing up the procedure for the strategic assessment of the Spanish coast for the installation of marine wind farms. The Spanish authorities established a six-mile strip along the coastline around wetlands of international importance and catalogued it as a “no-go” zone, that is, a coastal zone not suitable for the installation of wind farms, because there the authorities have identified potential environmental effects incompatible with other marine environment uses that are considered to take priority ( Strategic Environmental Study of the Spanish Coast for the Installation of Marine Wind Farms, supra note 35).
OJ L 104, 3 April 1998.
OJ L 240, 19 September 1977.
OJ L 322, 14 December 1999.
OJ L 210, 19 July 1982.
Text available at http://www.accobams.org. Accessed 20 May 2016.
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 22 July 1992. The Strait of Gibraltar, which is included in the geographical scope of the agreement, is one of those protected areas. Spanish authorities are aware of this and thus classified the strait as a “wind no-go area” in the Strategic Environmental Study mentioned above. Not so other zones, such as the Mediterranean; although extremely important for cetaceans and other marine species, they are difficult to exclude in the strategic phase, since migration routes and critical areas were established on the basis of very extensive delimitations. Thus, the most advisable course there is to postpone environmental viability and authorization to the project impact assessment phase ( Strategic Environmental Study of the Spanish Coast for the Installation of Marine Wind Farms, supra note 35).
Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, OJ L 103, 25 April 1979.
Article 1 and 2.
Annex, 2344th Council meeting- fisheries -Luxembourg, 25 April 2001, doc. 8077/01, para 15.
Para. 115–117. As indicated in detail by the Opinion of Advocate General Kokott: «While the Habitats Directive admittedly contains no express rule concerning its territorial scope, it is consonant with its objectives to apply it beyond coastal waters. In accordance with Article 2(1), the directive is meant to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies. This objective supports the conclusion that the area within which the directive applies coincides with that of the Treaty. In accordance with the aforementioned case-law, the area within which the Treaty applies is not limited to the territorial waters. Also, the directive protects habitats such as reefs and species such as sea mammals which are frequently, in part even predominantly, to be found outside territorial waters» (Opinion dated 9 June 2005 of Advocate-General J. Kokott in Commission/United Kingdom (C-6/04) para 132).
European Commission (2013) Natura 2000 Barometer. http://ec.europa.eu/environment/nature/natura2000/barometer/index_en.htm. Accessed 22 Jun 2016.
See European Commission (2011), Wind energy developments and Nature 2000 (Guidance document).
See European Commission (2001). Assessment of plans and projects significantly affecting Natura 2000 sites. Methodological guidance on the provisions of Article 6(3) and (4) of the Habitats Directive 92/43/EEC. http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/natura_2000_assess_en.pdf. Accessed 22 Jun 2016.
Resolution 7.5, Wind Turbines and Migratory Species, adopted by the Conference of the Parties at its Seventh Meeting (Bonn, 18-24 September 2002), UNEP/CMS/Res. 7.5.
Article 6. 4. See also European Commission (2007), Guidance document on Article 6(4) of the ‘Habitats Directive’ 92/43/EEC clarification of the concepts of: alternative solutions, imperative reasons of overriding public interest, compensatory measures, overall coherence, opinion of the commission, available at http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/new_guidance_art6_4_en.pdf.
See Abad Castelos ( 2014), p. 227.
Decision VII/5 (2004), Seventh meeting of the Conference of the Parties (COP-7), 9–20 February 2004—Kuala Lumpur, Malaysia, doc. UNEP/CBD/COP/DEC/VII/5, 13 April 2004.
See Sands et al. ( 2012), p. 442.
See Scovazzi ( 2004), p. 5.
In this regards, as we know a new implementing agreement of UNCLOS is being negotiated on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction which addresses marine protected areas as one of its elements (UN General Assembly adopted, on 19 June 2015, Resolution 69/292).
See Scovazzi ( 2014), p. 427.
See Roeben ( 2013), p. 850.
Article 196 (1).
International Renewable Energy Agency (IRENA), Statute, 26 January 2009, available at http://www.irena.org. Accessed 23 Jun 2016.
Abad Castelos M (2014) Marine renewable energies: opportunities, law, and management. Ocean Dev Int Law 45:221–237 CrossRef
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Andreone G, Cataldi, G (2014) Sui Generis Zones. In Attard D, Fitzmaurice M, Martínez Gutiérrez N (eds) The IMLI manual on international maritime law: Volume I: the law of the sea. Oxford University Press, Oxford, pp 217–238
Birnie P (1997) The status of environmental ‘Soft Law’: trends and examples with special focus on IMO norms. In: Ringbom H (ed) Competing norms in the law of marine environmental protection: focus on ship safety and pollution prevention. Kluwer, London, pp 31–57
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Scott KN (2006) Tilting at offshore windmills: regulating wind farm development within the renewable energy zone. J Environ Law 18:89–118 CrossRef
Scovazzi T (2004) Marine protected areas on the high seas: some legal and policy considerations. Int J Mar Coast Law 19(1):1–17 CrossRef
Scovazzi T (2014) Marine protected areas in the Mediterranean. In: Juste J, Bou V (eds) Derecho del mar y sostenibilidad ambiental en el Mediterráneo. Tirant lo Blanch, Valencia, pp 425–441
Soininen N (2015) Marine spatial planning in the European Union. In: Hassan D, Kuokkanen T, Soininen N (eds) Transboundary marine spatial planning and international law. Routledge, New York, pp 189–120
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- The Environmental Legal Framework for the Development of Blue Energy in Europe
Enrique J. Martínez Pérez