Explanatory Memorandum to COM(2025)173 - Conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction

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dossier COM(2025)173 - Conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.
source COM(2025)173 EN
date 24-04-2025


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

Tackling biological diversity loss and the degradation of marine ecosystems has been internationally recognised as a top priority. The conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (‘BBNJ’) is also a key priority for the European Union (EU). In line with the objectives under the European Green Deal and the Joint Communication on the EU’s international ocean governance agenda, the EU was an active participant in negotiating the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (‘the BBNJ Agreement’ or ‘the Agreement’). Negotiations were concluded in June 2023.

The BBNJ Agreement is open for signature by States and regional economic integration organizations from 20 September 2023 until 20 September 2025. The EU and all its Member States have signed it. The EU adopted Council Decision (EU) 2024/1830 to conclude the Agreement in June 2024 1 , but the EU has not yet deposited its instrument of approval at the time of adoption of this proposal. Pursuant to Article 68 i of the Agreement, it will enter into force 120 days after the date on which the sixtieth instrument of ratification, approval, acceptance or accession is deposited. This proposal for a directive of the European Parliament and the Council will meet the EU’s legal obligation to effectively implement the BBNJ Agreement.

The BBNJ Agreement is an implementing agreement to the United Nations Convention on the Law of the Sea 2 (‘UNCLOS’), which is the legal framework governing all activities in the oceans and seas, and of which the EU and all its Member States are parties. The BBNJ Agreement will bring UNCLOS up to speed with developments and challenges related to marine biodiversity since the Convention was adopted in 1982. It will also support work to achieve the 2030 UN Agenda for Sustainable Development goals, in particular Goal 14 (life below water).

The Union and its Member States are also parties to the Convention on Biological Diversity 3 . This states that biodiversity is to be valued, conserved, restored and wisely used, maintaining ecosystem services, sustaining a healthy planet and delivering benefits essential for all people. The BBNJ Agreement will help reach the goals and targets set under the Kunming-Montreal Global Biodiversity Framework, adopted at the fifteenth meeting of the Conference of the Parties to the Convention on Biological Diversity on 7-19 December 2022. In particular, it will support action to meet the target of effective conservation and management of at least 30% of the world’s lands, inland waters, coastal areas and oceans by 2030, and the target to increase benefit sharing from genetic resources and digital sequence information. The EU has adopted its own biodiversity strategy for 2030, which pursues several objectives including the aim to restore the good environmental status of marine ecosystems.

Furthermore, the BBNJ Agreement will support implementation of the United Nations Framework Convention on Climate Change (UNFCCC) 4 and the Paris Agreement 5 .

The BBNJ Agreement applies to areas beyond national jurisdiction as defined under Article 1 i of that Agreement. The general objective is to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, both at present and in the long term, by effectively implementing the relevant provisions of UNCLOS and by engaging in international cooperation and coordination.

To this end, the BBNJ Agreement:

1) allows parties to agree on area-based management tools, including MPAs, in areas beyond national jurisdiction;

2) for the first time, provides for a comprehensive environmental impact assessment process for new and unregulated activities in the high seas by all parties to ensure transparency, accountability and broad public participation;

3) sets provisions for the fair and equitable sharing of benefits arising from activities with respect to marine genetic resources (and digital sequence information) of areas beyond national jurisdiction, including a mechanism for sharing monetary and non-monetary benefits; and

4) sets the conditions to support developing countries in their participation in and implementation of the Agreement by a strong capacity-building and marine technology transfer component, funded from a variety of public and private sources and by an equitable mechanism for sharing the potential benefits of marine genetic resources collected in the high seas.

The aim of this legislative proposal is to implement the provisions of the BBNJ Agreement concerning environmental protection and marine genetic resources.

The Council has adopted Council Decision (EU) 2024/1830 concluding the BBNJ Agreement on behalf of the Union, but the Union has – at the time of adoption of this proposal – not yet deposited its instrument of approval of the BBNJ Agreement. Pursuant to Article 68 i, the Agreement will enter into force 120 days after the date on which the sixtieth instrument of ratification is deposited. Hence, the provisions of the BBNJ Agreement that need further implementation into EU law must be in place when the Agreement enters into force. This proposal therefore aims to implement the BBNJ Agreement in the EU in a uniform manner transposing into EU law the obligations arising from the Agreement in the areas related to environmental protection and marine genetic resources.

• Consistency with existing policy provisions in the policy area

The objectives of this proposal are consistent with the following policy and legislative provisions:

The Commission ensured that the outcome of the negotiations on the text of the BBNJ Agreement is fully consistent with EU rules and policies in the area of EU environmental policy. In particular, it ensures that the BBNJ Agreement does not undermine and is coherent with the framework for environmental assessments at EU level and with the multilateral environmental agreements to which the EU and its Member States are parties. These include the Convention on Environmental Impact Assessment in a Transboundary Context (the Espoo Convention) 6 and the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) 7 . The provisions on environmental impact assessments in the BBNJ Agreement aim to achieve a coherent environmental impact assessment framework for activities in areas beyond national jurisdiction. These provisions establish a system of global collaboration on environmental impact assessments with corresponding legal instruments, frameworks and bodies, and aim to ensure that they are equivalent, in line with Article 29 i of the BBNJ Agreement. They are coherent with EU law in this area and are coherent with and complement other international commitments undertaken by the EU, such as those relating to the environment, fisheries and shipping. Therefore, the proposed Directive implementing the BBNJ agreement in EU law will not add any additional burden.

The rules and obligations concerning benefit sharing from marine genetic resources and digital sequence information derived from marine genetic resources set by the BBNJ Agreement apply to genetic resources collected in areas beyond national jurisdiction. They do not overlap with the benefit sharing obligations and rules deriving from the Nagoya Protocol on the fair and equitable sharing of benefits from the use of genetic resources and the Convention on Biological Diversity, as these two instruments apply to genetic resources within national jurisdiction. This implies that there will be no duplication of obligations between the EU measures needed to implement the benefit sharing provisions of the BBNJ Agreement and Regulation (EU) No 511/2014 on measures of compliance for users of genetic resources in the EU (which implements the Nagoya Protocol).

The benefit sharing provisions of the BBNJ Agreement are coherent with EU law on this subject. They are coherent with and complement other international commitments undertaken by the EU in this field (such as those under the Convention on Biological Diversity). However, the BBNJ Agreement provides for retroactive application of benefit sharing obligations. The EU lodged an exception under Article 70 in conjunction with Article 10 i of the Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction [2024/1833] 8 on the retroactive effects as set out in the second sentence of Article 10 i. This means that the provisions of the Agreement will apply for the EU only to activities with respect to marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction collected and generated after this Agreement enters into force in the EU. This will ensure coherence with the approach under the Nagoya Protocol and the EU ABS Regulation, which apply when they enter into force.

The BBNJ Agreement is in line with EU rules and policies in the area of the common fisheries policy (CFP). It does not undermine the work undertaken in Regional Fisheries Management Organisations (RFMOs) and other relevant international framework and bodies. Likewise, this proposal is consistent with the CFP and with the EU’s commitments under the RFMOs.

• Consistency with other Union policies

The Commission ensured that the outcome of the negotiations on the text of the BBNJ Agreement is fully consistent with EU rules and policies in related areas, such as maritime transport policy, maritime security, energy policy, internal market policy, common commercial policy, research and technological development policy, climate policy and others. In addition, the provisions of the BBNJ Agreement are consistent with related bilateral and multilateral agreements to which the EU is a party.

Since the BBNJ Agreement is an implementing agreement under UNCLOS and this Convention is already part of EU law, the BBNJ Agreement also is coherent with the rights and obligations enshrined in UNCLOS and reflected in EU law. This proposal is therefore also consistent with UNCLOS.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The legal basis for this initiative is Article 192 i TFEU. This was also the legal basis underpinning the adoption of Council Decision (EU) 2024/1830 on the conclusion of the BBNJ Agreement on behalf of the EU.

In accordance with Article 191 in conjunction with 192 i TFEU, the EU is required to contribute to the pursuit of the following objectives: preserving, protecting and improving the quality of the environment; protecting human health; prudent and rational utilisation of natural resources; and promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

Considering the substantive provisions of the BBNJ Agreement, including its objectives, the environmental legal basis is the right basis for the implementation of the relevant provisions of the BBNJ Agreement.

• Subsidiarity (for non-exclusive competence)

The BBNJ Agreement provides for an obligation to screen and assess the impacts of planned activities in the areas beyond national jurisdiction. In addition, it provides for a framework to govern the activities with respect to marine genetic resources and arrangements for information sharing and benefit sharing of marine genetic resources utilisation.

In both these fields, a harmonised EU approach is central to creating a level playing field between stakeholders operating from the EU. The aim of the proposed directive is to set out a framework for a uniform implementation of the BBNJ Agreement in the EU and to avoid forum shopping in the EU, leading to faster permitting and administrative simplification. It is crucial to ensure that provisions on environmental assessments concerning planned activities in areas beyond national jurisdiction are coherent across the EU. It is also critical to ensure that EU researchers, notably those working in teams across the EU on marine genetic resources of areas beyond national jurisdiction are not faced with unnecessary legal burden potentially arising from uneven implementation of international obligations under the BBNJ Agreement in the EU. It is important to ensure consistency between implementation of the Nagoya Protocol to the Convention on Biological Diversity and the provisions of the BBNJ Agreement related to marine genetic resources, as well as ensure a level playing field in the Single Market.

An EU approach to implementation will also be important to ensure coherence between obligations governing environmental impact assessments for activities carried out in EU waters under Directive 2011/92/EU 9 (‘the EIA Directive’) and other relevant EU law that contains provisions related to environment assessments for planned activities, and under the BBNJ Agreement. Moreover, the initiative will ensure the BBNJ Agreement is coherent with EU environmental law. Activities in areas beyond national jurisdiction may also affect the management of marine biological resources and may have an impact on the common fisheries policy. In such cases, EU competences under Articles 3(d) and 4(d) of the TFEU will be respected. Finally, activities in areas beyond national jurisdiction could have cross-border effects in EU waters (for example due to pollution or maritime traffic disruption).

Since the objectives of the proposal, namely to provide common provisions concerning marine genetic resources of areas beyond national jurisdiction, conducting environmental impact assessments for activities in the areas beyond national jurisdictions and certain measures concerning area-based management tools, including marine protected areas, cannot be sufficiently achieved by the Member States but due to the cross-border nature of the activities and benefits rising from common EU rules are better achieved at EU level, the EU may adopt measures, in accordance with the principle of subsidiarity in Article 5 TEU. Following the principle of proportionality as set out in that provision, this Directive does not go beyond what is necessary to achieve those objectives.

• Proportionality

The proposal transposes the EU’s obligations under the BBNJ Agreement into EU legislation. Most of the obligations are straightforward and do not require the legislator to make any policy choice on how to implement the obligations. This means the measures are proportional.

• Choice of the instrument

A directive will aim to set out framework for a uniform implementation of the BBNJ Agreement in the EU and therefore to avoid forum shopping in the EU. This will lead to faster permitting and administrative simplification while ensuring a level playing field.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

Not applicable.

• Stakeholder consultations

The Commission worked closely with Member States during the negotiations on the BBNJ Agreement. Regular consultations on the BBNJ negotiations also took place with stakeholders, in particular civil society organisations and other organisations represented in the UN.

• Collection and use of expertise

Not applicable.

• Impact assessment

The proposed legislation will be limited to the strict transposition of the EU’s international obligations under the BBNJ Agreement concerning environmental impact assessments, marine genetic resources and certain aspects of the marine protected areas obligations. There is no choice to be made between alternative policy options (‘room for manoeuvre’), which Tool 7 of the Better Regulation toolbox indicates as the rationale for an impact assessment. The impacts themselves are not considered to be significant, as they will largely relate to greater consistency of application. For this reason, the Commission does not propose to conduct an impact assessment nor to carry out an online public consultation.

Similarly, the Commission will not publish a call for evidence as there is no intention to deviate from the BBNJ Agreement and so there is no added benefit to consulting stakeholders and soliciting their views. Stakeholders were involved earlier in the process, since the Preparatory Committee began its work in 2016.

• Regulatory fitness and simplification

Not applicable.

• Fundamental rights

This Directive is in line with Article 47 of the Charter of Fundamental Rights and implements the Aarhus Convention with regard to access to justice. It should be possible for members of the public concerned, including non-governmental organisations promoting environmental protection and meeting any requirements under national law, to have access to review of decisions taken by the Member States under this Directive.

4. BUDGETARY IMPLICATIONS

This proposal is limited to the strict transposition of obligations under the BBNJ Agreement concerning environmental impact assessments, marine genetic resources and certain elements of the area-based management tools and marine protected areas obligations that mirror existing obligations for the Member States under either EU or other international legislation. In particular, Member States already have an established framework governing environmental impact assessments deriving from their obligations under the EIA Directive, the Espoo Convention and the Aarhus Convention.

Therefore, the administrative impact and costs are estimated to be negligeable to moderate, as most of the necessary structures and rules are in place. Member States will face costs limited to the cost of adopting legal, policy or administrative measures to ensure compliance with the obligations to notify information on marine genetic resources to the BBNJ Clearing-House Mechanism and to request users to deposit samples and digital sequence information in publicly available databases and repositories. Member States may face other administrative costs if they choose to set up IT tools specifically designed to transfer information to the Clearing-House Mechanism. Alternatively, it may be possible for all stakeholders to use the central UN clearing house system directly, or, if needed, re-use an existing IT platform in the EU could be further explored for this scope. If this would be possible, costs could potentially be minimized. Finally, in terms of human resources, Member States have established national competent authorities for ABS that may also cover the tasks needed to enforce the measures related to marine genetic resources. These costs are not expected to be additional to the costs already stemming from being a party to the BBNJ Agreement.

The transposition of the Directive and its implementation by Member States will be monitored by two Commission departments – DG Environment and DG for Maritime Affairs and Fisheries.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

After the co-legislators adopt this Directive, the Commission will make the following arrangements during the transposition period to facilitate the transposition process:

it will organise meetings with Member State experts in charge of transposing the different chapters of the Directive to discuss how to transpose them and to resolve any doubts, either in the context of Commission national expert groups or in another suitable and focused format;

it will be available for bilateral meetings and calls with Member States to discuss any specific questions on transposing the Directive.

After the transposition deadline, the Commission will carry out a comprehensive assessment of whether Member States have completely and correctly transposed the Directive.

• Explanatory documents (for directives)

Following the ruling of the Court of Justice of the European Union in Commission vs Belgium (case C-543/17), Member States must submit notifications of national transposition measures together with sufficiently clear and precise information indicating which provisions of national law transpose which provisions of a directive. This information must be provided for each obligation, not only for each article.

Provided that the Member States comply with this obligation, in principle they would not need to send any further explanatory documents on transposition to the Commission.

• Detailed explanation of the specific provisions of the proposal

The proposal contains common rules for Member States on implementing Part II of the BBNJ Agreement on marine genetic resources (MGRs), Part III on area-based management tools, including marine protected areas (MPAs) and Part IV on environmental impact assessments (EIAs).

Under the MGRs chapter, the obligations for the EU Member States relate to the notifications to be made to the Clearing-House Mechanism, the obligation to deposit samples and data in publicly available repositories and databases and to share monetary and non-monetary benefits. The Directive requires Member States to designate a national competent authority to overview compliance with the notification and the deposit obligations. The Directive also clarifies the scope of application for the EU and its Member States, which excludes retractive application to MGRs and digital sequence information collected and/or generated before the entry into force of the Agreement.

Under the area-based management tools chapter, the obligations for the Member States relate to sharing information and cooperating with the Commission and other Member States on proposals for area-based management tools. The obligations are detailed in the Code of Conduct of 14 March 2024 laying down arrangements regarding the exercise of rights and obligations of the European Union and Member States under the BBNJ Agreement.

Under the EIA chapter, the obligations for the Member States relate to planned activities under their jurisdiction or control that take place in areas beyond national jurisdiction. For planned activities under Member States’ jurisdiction or control that takes place in areas within national jurisdiction and that are likely to have significant effects on the marine environment in areas beyond national jurisdiction, the only obligation is to make relevant information available through the BBNJ Clearing-House Mechanism during the process carried out under the EIA Directive and other relevant EU law that contains provisions related to environment assessments for planned activities.

Contents

1.

Detailed explanation of the specific provisions of the proposal


Chapter 1 General provisions

Article 1: Subject matter

This provision sets out the purpose of the Directive, which is to implement the obligations under the BBNJ Agreement, in particular its general objective to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term.

2.

Article 2: Definitions


This provision contains definitions of the terms used in the Directive.

3.

Article 3: Scope


This provision outlines the cases to which this Directive applies and which activities are excluded.

4.

Chapter 2: Marine genetic resources and digital sequence information of areas beyond national jurisdiction


Article 4: General provisions

This article outlines the activities to which the provisions of Chapter 2 apply, and which activities are excluded.

5.

Article 5: Activities with respect to marine genetic resources of areas beyond national jurisdiction


This provision sets out the approach for the collection in situ of marine genetic resources of areas beyond national jurisdiction, safeguarding the rights and interests of other States and ensuring cooperation and coordination.

6.

Article 6: Notification on activities with respect to marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction


This provision refers to the need to systematically notify to the BBNJ Clearing-House Mechanism information on the collection in situ of marine genetic resources of areas beyond national jurisdiction, and information on where to find the results of the utilisation. It requires Member States to take the legislative, administrative or policy measures needed to ensure this information is notified to the BBNJ Clearing-House Mechanism.

7.

Article 7 Deposition of marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction


This provision aims to meet the need for Member States to make explicit the request to natural or legal persons under their jurisdiction utilising marine genetic resources to deposit samples and digital sequence information on marine genetic resources of areas beyond national jurisdiction, together with their BBNJ standardised batch identifiers, in publicly accessible repositories and databases, maintained either nationally or internationally. They must deposit these samples and information no later than three years from the start of such utilisation or as soon as they are available, taking into account current international practice.

It states that Member States must confirm to the competent authority that these deposits have been made. Sharing information in this way is indispensable to provide a level playing field for compliance checks and to ensure compliance with the EU’s international obligations under the BBNJ Agreement. This Article also considers that currently, marine research in areas beyond national jurisdiction is carried out by international research consortia. In these cases, if the person identified for sharing this information is based in a state located outside the EU, the consortia must identify a person in the research project established in or resident of a Member State to provide the confirmations of deposits to the competent authority.

8.

Chapter 3: Environmental assessments


Article 8: General provisions

This provision requires Member States to ensure that the potential impacts on the marine environment of planned activities under their jurisdiction or control taking place in areas beyond national jurisdiction are made subject to an assessment before they are authorised. This provision also aims to specify what Member States must cover in these assessments and how to coordinate assessments. This provision specifies the obligations for activities that take place in areas within national jurisdiction and that are likely to have significant effects on the marine environment in areas beyond national jurisdiction.

9.

Article 9: Screening


This Article outlines the provisions regarding the screening procedure, specifically when a Member State must conduct a screening for a planned activity. It sets out the level of detail required, the factors to be considered in the final decision, and what must be made available to the public and to the Clearing-House Mechanism established under the BBNJ Agreement.

10.

Article 10: Scoping and report


This provision details how the environmental impact assessment report must be prepared and what information to include. It requires Member States to ensure that environmental impact assessment reports are of a sufficient quality to meet the requirements of this Directive.

11.

Article 11: Consultations


This provision ensures that Member States give the opportunity to the public and any other parties to the BBNJ Agreement to participate in the authorisation procedures for planned activities. It requires Member States to make specific information available to the public through the BBNJ Clearing-House Mechanism and the BBNJ Secretariat and to make detailed arrangements for informing and consulting stakeholders, ensuring that their input is duly considered and addressed in the decision-making process.

12.

Article 12: Decision-making


This provision ensures that Member States only authorise activities that can be conducted in a manner consistent with the need to prevent significant adverse impacts on the marine environment, based on the results of consultations referred to in Article 10. It ensures that the decision is made available to the public and through the BBNJ Clearing-House Mechanism and the BBNJ Secretariat.

13.

Article 13: Monitoring


This article outlines the provisions governing the regular monitoring of the impacts of authorised activities in areas beyond national jurisdiction in order to determine whether these activities are likely to cause substantial pollution or have significant and harmful changes to the marine environment. It specifies the need for publication, also through the BBNJ Clearing-House Mechanism. It requires Member States to review their decisions in the event of significant harmful impacts or in response to concerns or recommendations from a party to the BBNJ Agreement or the BBNJ Scientific and Technical Body.

14.

Article 14: Access to justice


This provision ensures that stakeholders have the right to access a review procedure to challenge the substantive or procedural legality of decisions, acts or omissions under Chapter 3, in accordance with the Aarhus Convention.

15.

Article 15: Strategic environmental assessment of plans and programmes


This provision encourages Member States to conduct strategic environmental assessments for plans and programmes relating to planned activities under their jurisdiction or control to be conducted in areas beyond national jurisdiction in order to assess the potential effects of such plans or programmes on the marine environment.

16.

Chapter 4: Measures such as area-based management tools, including marine protected areas


Article 16: Proposal for the establishment of area-based management tools

This article outlines the requirements for Member States when making proposals to establish area-based management tools.

17.

Article 17: Content of proposals


This article outlines the content of Member State proposals for establishing area-based management tools, including marine protected areas. It specifies which stakeholders must be consulted and what key elements the proposals must include.

18.

Article 18: Implementation


This provision requires Member States to ensure that activities under their jurisdiction or control taking place in areas beyond national jurisdiction are conducted in line with the decisions adopted under Part III of the BBNJ Agreement. It also requires Member States to support the implementation of the decisions and recommendations made by the Conference of the Parties under Part III of the BBNJ Agreement.

19.

Article 19: Public participation


This provision states that Member States must give the public the opportunity to participate in the preparation of proposals to establish area-based management tools, including marine protected areas.

20.

Chapter 5: Final provisions


Article 20: Competent authorities

This provision requires Member States to identify the competent authorities for carrying out duties under this Directive.

21.

Articles 21 to 24


These articles contain further provisions on transposition by the Member States, on reporting by the Member States, on evaluation and reporting by the Commission and on entry into force of the Directive.