Date of adoption: 17 June 2008
Entry into force: 15 July 2008 (OJ L 164/19 25.6.2008)
Deadline for transposition by Member States: 15 July 2010
What are the aims and requirements of the Directive?
The Marine Strategy Directive (MSD) is the first piece of EU legislation designed to tackle the marine environment in a direct and comprehensive way. A number of existing EU laws (such as the directive on bathing water) affect the marine environment, but in a disconnected sectoral manner, and a number of international agreements cover European seas, but often lack sufficient detail and enforcement provisions.
The Directive establishes a framework within which Member States are to take measures to achieve or maintain good environmental status in the marine environment by the year 2020 at the latest. Marine strategies must be developed and implemented in order to (a) protect, preserve and prevent the deterioration of the marine environment and where practicable restore marine ecosystems, and (b) prevent and reduce inputs into the marine environment, with a view to phasing out pollution.
Definitions and scope of the Directive
The Directive covers 'all marine waters' (Art 2(1)), including the seabed and subsoil, as measured from the coastal baseline (usually the mean low-water mark) to the extent of Member State jurisdiction (usually the 200 nautical mile Exclusive Economic Zone). The seabed and subsoil of coastal waters (insofar as they are not covered by the Water Framework Directive - Directive 2000/60/EC) also come within its provisions (Recital 12).
"[G]ood environmental status" under the MSD is defined (Article 3(5)) as:
'the environmental status of marine waters where these provide ecologically diverse and dynamic oceans and seas which are clean, healthy and productive within their intrinsic conditions, and the use of the marine environment is at a level that is sustainable, thus safeguarding the potential for uses and activities by current and future generations [...]'
The reference to human use is significant, as the definition allows for a greater level of human activity than is permitted by that of 'good ecological status' under the Water Framework Directive (see section on the Water Framework Directive.
Pollution is defined broadly (Article 3(8)) as:
'the direct or indirect introduction into the marine environment, as a result of human activity, of substances or energy, including human-induced marine underwater noise, which results or is likely to result in deleterious effects such as harm to living resources and marine ecosystems [...]'
The MSD applies an 'ecosystem approach' to marine management, on the basis of four key marine regions (the Baltic Sea, the North-East Atlantic Ocean, the Mediterranean Sea and the Black Sea) or by reference to smaller areas, provided such sub-divisions are compatible with a set of marine sub-regions designated under Article 4(2).
Member State obligations under the Directive
Member States must prepare marine strategies for each marine region or sub-region within their jurisdiction. The key components of this strategy are:
an initial assessment of the current environmental status of the waters and the impact of human activities thereon (by 2012);
a determination of the criteria for good environmental status and a series of targets and indicators for each marine region;
an ongoing monitoring programme (by 2014); and
a programme of measures designed to achieve good environmental status (in place by 2015 and in operation by 2016).
The MSD leaves much discretion to the Member States on the actual measures and criteria they set for each marine region, provided they fulfil the procedural requirements of the Directive and follow the guidelines given in the annexes. One stipulation, in Article 13(4), is that programmes of measures must contain 'spatial protection measures' which would enhance marine protection under EU and international habitats and species conservation law.
Key legal issues concerning CCS
The Directive makes no direct reference to CCS activities; however, it applies specifically to the sea-bed and subsoil, so is relevant for major CO2 transport and storage projects at sea (such as those planned in the UK North Sea).
Marine CCS activities potentially fall within the definition of pollution under Article 3(8); this will depend on whether they are deemed to result or be likely to result in deleterious effects.
Under the Directive, Member States must take account of the indicative list of pressures and impacts in Table 2 of Annex III in their assessments, setting of criteria, targets and monitoring programmes. Relevant categories under Table 2 for marine CCS activities are 'physical loss' (which includes man-made structures), 'physical damage'(which includes underwater exploration), 'other physical disturbance' (which includes underwater noise) and 'systematic and/or intentional release of substances' (defined as the '[i]ntroduction of other substances, whether solid, liquid or gas, in marine waters, resulting from their systematic and/or intentional release into the marine environment, as permitted in accordance with other Community legislation and/or international conventions').
However, while consideration will have to be given to carbon dioxide transport and storage at sea, nothing in the MSD necessarily prohibits (or hinders) CCS activities in marine waters.
Ongoing monitoring programmes, which should include 'pH, pCO2 profiles or equivalent information used to measure marine acidification' (Annex III, Table 1), and reporting requirements should support provisions in the EU directive on geological storage of CO2. A driving-up of practice standards in this regard will facilitate marine CCS. An OSPAR Convention document (OSPAR 06/3/l -E(L)) from June 2006 noted that the MSD imposes a 'very much more demanding schedule of [monitoring] work' than currently mandated under OSPAR.
The MSD gives a significant role to cooperation in setting standards and implementing measures among Member States, and also with international and regional marine conventions (such as OSPAR). This is important because (a) it makes it less likely that certain Member States will be able to block CCS developments by imposing higher standards for areas of a relevant transboundary marine region within their jurisdiction and (b) OSPAR and the Protocol to the London Dumping Convention have both been recently amended to enable CO2 storage beneath the seabed. Article 13(5) provides that:
'[w]here Member States consider that the management of a human activity at Community or international level is likely to have a significant impact on the marine environment, [...] they shall, individually or jointly, 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 this Directive, so as to enable the integrity, structure and functioning of ecosystems to be maintained or, where appropriate, restored.'
This provision seems to support addressing activities such as CCS separately, either through Community or international bodies.