1 Introduction
2 Interaction with the Marine Strategy Framework Directive and the Natura 2000 Network: Interpretation of Art. 11 of Regulation No. 1380/2013
On the one hand, by 2020, at least, 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well connected systems of protected areas. This goal was launched by the Contracting Parties to the Convention on Biological Diversity (CBD) in 2004.12On the other hand, the achievement or maintenance of a good environmental status in the marine environment by the year 2020 at the latest, as laid down in Art. 1 of the MSFD.
2.1 The Geographical Scope
2.2 The Substantive Scope: The MPAs. The Complementary Effect of the MSFD with Regard to the Habitats Directive
First, does not address the gaps concerning deep sea and open sea species. Measures adopted in the framework of conservation of fisheries resources mitigate only part of the problem.20Second, does not identify which deep sea and open sea habitats should be classified as ‘priority natural habitat’ (e.g., Art. 4, Habitats Directive).Third, there is no clear timetable for the implementation of Habitats Directive in the marine environment.Fourth, neither the Guidelines nor the Interpretation Manual have binding force. Thus, it depends on the willingness of the Member States to comply with the extension operated by the revision of the Interpretation Manual in 2007.
2.3 The Prescriptive Competence of the Coastal Member State. Grounds and Solutions for an Interpretation of Art. 11 Consistent with the Shared Nature of the Environmental Competence
First, according to Art. 5(1) of Regulation No. 1380/2013, “Union fishing vessels shall have equal access to waters and resources in all Union waters”. This principle of equal access to waters and resources derogates the exclusivity for the fishing vessels flying the flag of the coastal State, set forth by Art. 19,33 Arts. 56 and 62,34 and Art. 7735 of UNCLOS.Second, paragraphs 2, 3 and 4 of Art. 5 establish two main derogations (12 nautical miles; outermost regions: 100 nautical miles)36 to the equal access to EU waters and resources, notwithstanding, the ordinary situation is the access to the EU waters – including frequently the 12 nautical mile and the 100 nautical mile zones – of fishing vessels flying the flag of diverse Member States.Third, the range of the regulatory powers of the coastal Member State depends on the flag of the fishing vessel. Actually, the decision-making process and the intensity of the control made by the European Commission differ depending whether the fishing vessels fly the flag of the coastal Member State or the flag of other Member States. It should be highlighted that both the decision-making process and the type of control made by the European Commission differ also from one provision to another. In this study the comparison will be focused on Arts. 11, 19 and 20.Fourth, in the context of fisheries, a wide or restrictive interpretation of the prescriptive competence of the European Union concerning the pure protection of the marine environment will affect, in the same extent, the international competence of the coastal Member State (Art. 3(2) TFEU).
2.3.1 The Prescriptive Competence of the Coastal Member State: Fishing Vessels Flying Its Flag
First, the measures must be compatible with the objectives set out in Art. 2 of Regulation No. 1380/2013. Article 2 sets forth a large list of objectives. With respect to the objectives of socio-economic nature, our understanding is that its assessment must take into consideration the regime set out in Art. 6(3)(4) and Art. 7 of Habitats Directive (assessment of the implications for the site37 and exceptions) and in Art. 14 of MSFD (exceptions). These commands prescribe strict criteria for an inversion of the hierarchy between environmental objectives and socio-economic objectives. Inclusively, when doing the analysis of the articulation between Art. 6 of Habitats Directive and Art. 14 of MSFD, the European Commission itself concluded in the sense of the prevalence of the most favourable solution to the protection of the environmental objectives, as follows: “the MSFD exceptions cannot take precedence over Article 6 of the Habitats Directive as the Treaty requires that stricter provisions take precedence when more than one applies to the same issue”.38Second, the measures must meet the objectives of the relevant Union legislation that they intend to implement.Third, the measures must be at least as stringent as measures prescribed by European Union law. In other words, the coastal Member State must respect this minimum standard of protection (“measures under Union law”), nonetheless, he can go further in the intensity of protection based on Art. 193 TFEU. Under this article the coastal Member State can maintain or introduce “more stringent protective measures”, provided that such measures are compatible with the Treaties and notified to the European Commission.
2.3.2 The Prescriptive Competence of the Coastal Member State: Fishing Vessels Flying the Flag of Other Member States or Third States
First, the coastal Member State – called “the initiating Member State” – must request the adoption of the relevant measures by initiating a procedure near the European Commission. The initiating Member State shall provide the European Commission and the other Member States having a direct management interest with relevant information on the measures required, including their rationale, scientific evidence in support and details on their practical implementation and enforcement (Art. 11(3)).Second, the initiating Member State and the other Member States having a direct management interest may submit a joint recommendation, as referred to in Art. 18(1)(2), within six months from the provision of sufficient information. The Commission shall adopt the measures, by means of delegated acts (Art. 46)39, taking into account any available scientific advice, within three months from receipt of a complete request (Art. 11(2)(3)).When comparing the wording of Art. 11(3) and the wording of Art. 18(3), we came into the conclusion that the European Commission must adopt – not a mere empowerment or option – the required conservation measures, provided that the requirements set out by Art. 11(1) are met. This conclusion is supported by the purpose of Art. 11(1) and also by the fact that the Birds and Habitats Directives and the MSFD rely completely on the original 40 regulatory powers of the coastal Member State for the adoption of the required conservation measures.41 This reasoning also explains the exclusive power of initiative of the coastal Member State in the context of Art. 11.42
It is not clear, however, whether the European Commission, in cooperation with the Member States43, can influence the shape of the measures, taking into account the available scientific advice, with the aim of avoiding the rejection of the measure. A positive answer seems to be more in line with the spirit of the legislator (mens legislatoris).
It should be highlighted that occasionally the conservation measures to be adopted might affect fishing vessels flying the flag of third States. This might occur namely in the fishing grounds overlying the continental shelves of Member States beyond 200 nautical miles. This situation is expressly addressed in Art. 13(5) and Art. 15 of MSFD, as well as in Art. 18(4)44 of Regulation No. 1380/2013. In this event, only the European Union can propose the restriction or prohibition of a fishing activity to the relevant regional fisheries management organisation or, when direct negotiation is adequate, to third States. The intermediation of the European Union is the consequence of its exclusive competence at the international level for adopting decisions concerning, strictly, the conservation of fishing resources (Art. 3(2) TFEU).45 This exclusive competence of the European Union in the fisheries domain must not threaten the internal competence of Member States when acting in the context of shared competences, such as the Birds and Habitats Directives or the MSFD and, likewise, must not endanger the international competence of Members States when acting in the context of shared competences, such as the protection of marine environment (e.g., OSPAR Convention, Barcelona Convention, CCAMLR46).47 Both competences-exclusive and shared-must be articulated, giving high relevance to the principle of sincere cooperation,48 and a clear border must be established between the mere conservation of fishing resources (competence of the European Union) and the protection of marine environment (competence of the Member States and of the European Union, the latter exclusively in the area of pre-emption by common rules).49 In order to keep the balance established by the Member States when ratifying the TEU and TFEU, the abusive appropriation of competence by the European Union must be refrained, taking into account the supreme principle of conferral of competences (Art. 5(1)(2) and Art. 48(2),50 TEU). In other words, the system laid down by the Members States in the TEU and TFEU requires that the scope of the exclusive competences, both at internal and external levels, must be subject to a restrictive interpretation.Third, if the joint recommendation is deemed not to be compatible with the requirements referred to in Art. 11(1), the European Commission may submit a proposal in accordance with the Treaty, that is, Art. 43(1)(2) and Art. 289(1) TFEU. According with these provisions, the conservation measures will be jointly adopted by the European Parliament and the Council. In our understanding, before the referred submission of the proposal under Art. 43, the Member States may amend the joint recommendation and restart the procedure before the European Commission.Fourth, if not all Member States succeed in agreeing on a joint recommendation to be submitted to the European Commission (absence of a joint recommendation), two things might happen: this institution may submit a proposal in accordance with the Treaty (Art. 11(3))51 or, in the case of urgency, the European Commission shall adopt temporary conservation measures (Art. 11(4)(5)). These measures shall be limited to those in the absence of which the achievement of the objectives associated with the establishment of the conservation measures, in accordance with the Birds, Habitats and MSFD Directives and the Member State's intentions, is in jeopardy. According with paragraph 4, hence, the conservation measures adopted by the European Commission must be consistent with the initiating Member State’s intentions. The use of paragraphs 4 and 5 will occur possibly when the debate between the initiating (coastal) Member State and the other Member States is extreme, based in conflicting objectives: urgent environmental protection, on the one hand, and socio-economic reasons, on the other hand.It is noteworthy to mention that Art. 11(4)(5), when compared with Art. 12, set out a more generous procedure and time limit. Under Art. 11(5), the urgency measures shall apply for a maximum period of 12 months, which may be extended for the same period provided the conditions that justified the measures continue to exist.The articulation between paragraphs 3 and 4 of Art. 11 raises some doubts. In our understanding, flexibility must be given to the European Commission. Instead of a mandatory choice between submitting a proposal under Art. 43 TFEU or adopting emergency measures, the European Commission may combine both options, taking into account that the ordinary legislative procedure may be long.Fifth, the Commission shall facilitate cooperation between the Member State concerned and the other Member States having a direct management interest in the fishery in the process of implementation and enforcement of the measures adopted under Art. 11(2)(3)(4).
First, in the 12 nautical mile zone, when the conservation measures to be adopted by the coastal Member State are liable to affect fishing vessels flying the flag of other Member States, the application of Art. 20(2)(3)(4)54 should prevail over Art. 11.Second, in a future revision of Regulation No. 1380/2013 (de iure condendo), the legal solution set out in Art. 20(2)(3)(4) should be extended to the exclusive economic zone and the continental shelf when the conservation measures applicable in the MPAs are liable to affect fishing vessels flying the flag of other Member States.
3 Beyond Art. 11: The Contribution of Other Provisions for the Protection of Marine Biodiversity
3.1 Scope of Art. 20: Conservation Measures Adopted by the Coastal Member State in the 12 Nautical Mile Zone
First, that the European Union has not adopted, namely under Art. 43 TFEU, measures addressing conservation specifically for that area or specifically addressing the problem identified by the coastal Member State concerned. This requirement must be clarified. In the context of the pure conservation of marine ecosystems and species – a domain of elusive borders, that is not always easy to establish, in relation to the conservation of fish stocks and associated ecosystems!57 – the European Union cannot arbitrarily replace the coastal Member State regarding its initiative and legislative competence, as enshrined in the Birds and Habitats Directives and MSFD. Actually, as mentioned before, also the European Union must comply with the principle of sincere cooperation (Art. 4(3), TEU). If the coastal Member State does not take adequate measures or initiatives the right option for the European Commission is making use of the action for infringement of, notably, these directives (Arts. 258 and 260 TFEU).Second, the conservation measures adopted by the coastal Member State must be compatible with the objectives set out in Art. 2.Third, the conservation measures must be at least as stringent as measures prescribed by European Union law. We recall here the reasoning developed in Art. 11 about this minimum standard of protection.
3.1.1 Twelve Nautical Mile Zone: Fishing Vessels Flying the Flag of the Coastal Member State
3.1.2 Twelve Nautical Mile Zone: Fishing Vessels Flying the Flag of Other Member States
3.2 Scope of Art. 19: Conservation Measures Adopted by the Coastal Member State Applicable to Fishing Vessels Flying Its Flag or to Persons Established in Its Territory. Grounds for the Inclusion of Marine Ecosystems by Means of an Extended Interpretation
First, measures must apply solely to fishing vessels flying the flag of that Member State or, in the case of fishing activities which are not conducted by a fishing vessel, to persons established in that part of its territory to which the Treaty applies (Art. 355 TFEU).The second and third requirements are identical to those set out in Art. 20(1): compatibility of measures with the objectives set out in Art. 2 and those measures must be at least as stringent as measures under European Union law.
The Member State shall, for control purposes, inform the other Member States concerned of provisions adopted, and the Member States shall make publicly available appropriate information concerning the measures adopted.
First, the predominant link of nationality, that is, between the coastal Member State that adopt the conservation measures and the fishing vessels to which the measures apply. The link of nationality is fully respected by Arts. 11 and 20. Why Art. 19 would be different in the case of conservation of marine ecosystems?Second, the shared nature of the environmental competence and the powers and duties of the coastal Member State set out in the Birds and Habitats Directives and MSFD. The interpretation by which the wording of Art. 19 expresses the exclusivity of the European Union for adopting measures for the conservation of marine ecosystems would contravene the system of competences established by the TFEU and the directives referred above.Third, the global system of the Regulation No. 1380/2013. The use of Art. 13 (emergency measures) by the coastal Member State is subject to strict conditions (e.g., “[o]n the basis of evidence of a serious threat (…) to the marine ecosystem”) and is limited in time (“measures shall apply for a maximum period of three months”). Art. 13, hence, does not provide legal basis for a sufficient and enduring protection of ecosystems in the exclusive economic zone and continental shelf. In our point of view, Art. 13 combined with Arts. 11, 19 (extended interpretation) and 20, only shows real usefulness with regard to its possible application to fishing vessels flying the flag of other Member States, in particular for fishing activities carried out in the exclusive economic zone and continental shelf.66
Following the requests of Portugal and Spain, in 2005, the European Union adopted the Regulation No. 1568/2005, of 20 September,68 regarding the protection of deep-water coral reefs and other vulnerable deep-sea ecosystems from the effects of fishing in large areas of the Macaronesian region, that is, waters around the Azores and Madeira Archipelagos and Canary Islands (Fig. 1). This Regulation prohibits the use, by the European Union fleet, of any gillnet, entangling net or trammel net at depths greater than 200 meters and any bottom trawl or similar towed nets operating in contact with the bottom of the sea, including in areas of the exclusive economic zone and continental shelf beyond 200 nautical miles,69 notably, where hydrothermal vent fields are located.In 2014 Portugal extended the geographical scope to other parts of the exclusive economic zone and a larger area of the continental shelf beyond 200 nautical miles in order to protect diverse deep-sea ecosystems, such as seamounts and hydrothermal vent fields (Fig. 1). Therefore, according with Portaria No. 114/2014, in those larger areas, fishing vessels flying the flag of Portugal are prohibited from using several nets operating in contact with the bottom of the sea. The Portaria is clearly anchored in Art. 19 of Regulation No. 1380/2013.In 8 July 2015 Portugal requested to the European Commission the extension, to the rest of the European Union fleet, of the prohibition contained in the Portaria No. 114/2014. The request was based in Art. 15 of the MSFD. The European Commission acknowledged the legitimacy of the Portuguese request, but no measures have been taken so far.
4 Concluding Remarks: Balance and Tension Between Exclusive and Shared Competences
First, the conservation measures should be adopted by the coastal Member State, with obligations of prior coordination (Art. 6(4)), consultation, motivation and publicity;Second, the European Commission can play an important external control.
First, the tacit system of control set out by Art. 19 – based on Arts. 258 and 260 TFEU – should prevail over the regime established by Art. 20(4).Second, measures adopted by the coastal Member State under Art. 19 must eventually take into account the measures adopted by other coastal Member States under Art. 20(2).