Considerations on COM(2025)173 - Conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2025)173 - Conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. |
|---|---|
| document | COM(2025)173  |
| date | April 24, 2025 |
(2) 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 12 (‘the BBNJ Agreement’ or ‘the Agreement’) aims to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term, through effective implementation of the relevant provisions of the United Nations Convention on the Law of the Sea, to which the Union and its Member States are parties, and further international cooperation and coordination.
(3) This Directive should implement into EU law the obligations arising from the BBNJ Agreement in the area of the protection of the environment, acknowledging that its further implementation would also depend on international cooperation and coordination, in particular as provided under that Agreement.
(4) The EU signed the BBNJ Agreement on 20 September 2023. On 17 June 2024, the Council adopted Council Decision (EU) 2024/1830 13 on the conclusion of the BBNJ Agreement on behalf of the Union. The Union has not yet deposited its instrument of approval of the BBNJ Agreement. Pursuant to Article 68(1) of the BBNJ Agreement, it will enter into force 120 days after the date on which the sixtieth instrument of ratification, approval, acceptance or accession is deposited.
(5) The Union is committed to stepping up efforts to tackle climate change and to delivering on the implementation of the Paris Agreement adopted under the United Nations Framework Convention on Climate Change (‘the Paris Agreement’), guided by its principles and on the basis of the best available scientific knowledge, in the context of the long-term temperature goal of the Paris Agreement.
(6) The Convention on Biological Diversity was approved on behalf of the Union in accordance with Council Decision 93/626/EEC 14 . The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity was approved on behalf of the EU in accordance with Council Decision 2014/283/EU 15 and Regulation (EU) No 511/2014 of the European Parliament and of the Council. The Convention sets out the framework for measures to comply with the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization in the Union.
(7) As parties to the Convention on Biological Diversity, the Union and its Member States are committed to achieving the goals and targets of 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, and the long-time strategic vision that, by 2050, 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 EU biodiversity strategy for 2030, in the communication of the Commission of 20 May 2020 entitled ‘EU Biodiversity Strategy for 2023 Bringing nature back into our lives’, sets out multiple objectives, including the aim to restore the good environmental status of marine ecosystems.
(8) Directive (EU) 2019/1024 16 of the European Parliament and of the Council encourages public sector bodies and public undertakings to produce and make available research data in accordance with the principle of “open by design and by default’’ and the FAIR principles, This Directive is also imposing the sharing of certain research data for its re-usability.
(9) Pursuant to the BBNJ Agreement, activities with respect to marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction are in the interests of all States and for the benefit of all humanity, particularly for the benefit of advancing the scientific knowledge of humanity and promoting the conservation and sustainable use of marine biological diversity, taking into consideration the interests and needs of developing States.
(10) It is necessary, in line with Article 9 of the BBNJ Agreement, to foster fair and equitable sharing of benefits arising from activities with respect to marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.
(11) The EU deposited Exception 2024/1833 under Article 70 in conjunction with Article 10(1) of the BBNJ Agreement regarding the retroactive effects set out in the second sentence of that Article. This means the provisions of the Agreement will apply for the Union 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 the BBNJ Agreement enters into force for the Union.
(12) When accessing traditional knowledge associated with marine genetic resources collected in areas beyond national jurisdiction that is held by indigenous peoples and local communities, such access should be done with free, prior and informed consent or approval and involvement of these indigenous peoples and local communities as set out in Article 13 of the BBNJ Agreement. In such cases, any applicable national legislation enabling the indigenous peoples and local communities that hold the traditional knowledge to issue free, prior and informed consent should apply.
(13) To reduce the administrative burden and costs of implementation, Member States may, where available, use a digital platform provided by the Commission to meet the purpose of this Directive.
(14) The BBNJ Agreement allows the establishment of area-based management tools, including marine protected, areas in areas beyond national jurisdiction. Measures adopted by the Conference of the Parties under the BBNJ Agreement should be implemented and, if necessary, transposed into EU legislation. Pending transposition, Member States should not undermine the effectiveness of the measures adopted. It is necessary to lay down the procedures needed to ensure coordination among the Member States and the Commission prior to the submission of any proposal to establish area-based management tools or a proposal for an emergency measure to the BBNJ Secretariat.
(15) Under this Directive, for any proposal to establish area-based management tools or any proposal for an emergency measure under Articles 19 and 24(3) of the BBNJ Agreement, the Commission should carry out a preliminary legal assessment. This assessment should include an assessment of the need for the Union to make such a proposal to the BBNJ Secretariat.
(16) The BBNJ Agreement lays down provisions concerning environmental impact assessment in areas beyond national jurisdiction to reflect developments at international level. It is necessary to provide for minimum provisions on how these obligations are implemented in the Union, in the light of the obligations raising from the BBNJ Agreement, thus ensuring a level-playing field between the Member States and avoiding conflicting requirements. The effects of planned activities taking place in areas beyond national jurisdiction on the marine environment should be assessed in order to take account of concerns to protect human health, to enhance the quality of life by creating a better environment, to maintain the diversity of species and to maintain the reproductive capacity of the ecosystem as a basic resource for life.
(17) The Union is party to the United Nations Economic Commission for Europe Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 and ratified on 17 February 2005. The Union is party to the United Nations Economic Commission for Europe Convention on environmental impact assessment in a transboundary context, signed in Espoo on 25 February 1991 and ratified on 24 June 1997. The obligations under these Conventions should remain applicable in the areas falling within the scope of this Directive. The Espoo Convention aims to enhance international co-operation in assessing environmental impact in particular in a transboundary context. The objectives of the Aarhus Convention include guaranteeing the rights of public participation in decision-making in environmental matters in order to contribute to the protection of the right to live in an environment which is adequate for personal health and well-being. Within the scope of this Directive, the rights of public participation in decision-making in environmental matters should be exercised following the same principles as those established under the Aarhus Convention.
(18) While the purpose of this Directive is to provide for a legal framework governing activities taking place in areas beyond national jurisdiction, any activities to be conducted in areas within national jurisdiction that are likely to have significant effects on the marine environment in areas beyond national jurisdiction should be subject to an assessment in accordance with Directive 2011/92/EU of the European Parliament and of the Council 17 , other relevant EU law that contains provisions related to environment assessments for planned activities 18 and national laws transposing EU legislation. In accordance with Article 28(2) of the BBNJ Agreement, in the EU such activities conducted in areas within national jurisdiction should be assessed under established EU rules. In those cases, Member States should ensure that they meet the obligations under the BBNJ Agreement.
(19) Since other applicable legal instruments or frameworks or global, regional, subregional or sectoral bodies provide a framework for assessing the impacts of planned activities under national jurisdiction or control that take place in areas beyond national jurisdiction, Member States should not be required to conduct a screening or an environmental impact assessment in accordance with this Directive under the conditions set out in Article 29(4) of the BBNJ Agreement. In such cases, the Member State concerned should ensure that the environmental impact assessment report is published through the BBNJ Clearing-House Mechanism.
(20) Any plans or programmes prepared or adopted by national, regional or local authorities of Member States which are likely to have significant effects on the marine environment in areas beyond national jurisdiction should be subject to an assessment in accordance with Directive 2001/42/EC of the European Parliament and of the Council 19 and national laws transposing that Directive.
(21) When determining the likelihood of significant effects of planned activities, Member States should take into account how notable or important effects can be. They should also take account of criteria set out in Directive 2011/92/EU in making this determination.
(22) In order to determine whether a planned activity may cause substantial pollution of or significant and harmful changes to the marine environment, the screening or the environmental impact assessment of such an activity should, in principle, be carried out at the earliest possible stage in the decision-making process with a view to identifying and assessing all the likely effects which the planned activity may have on the marine environment. This is particularly important to identify and assess unknown or poorly understood effects of the planned activities.
(23) Decisions authorising planned activities that take place in areas beyond national jurisdiction granted by the competent authority or authorities may take the form of a wide range of legal acts (such as development consents, decisions, permits and other forms of authorisation), depending on the national procedures applicable in the Member States. Irrespective of the form, title or the procedure for adopting such decisions under national law, Member States should ensure that planned activities taking place in areas beyond national jurisdiction that may cause substantial pollution of or significant and harmful changes to the marine environment are made subject to an assessment before being authorised.
(24) This Directive is in line with Article 47 of the Charter of Fundamental Rights and implements the obligation under the Aarhus Convention to guarantee access to justice in environmental matters. It should be possible for 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 Member States under this Directive.
(25) The effectiveness of this Directive requires that natural or legal persons, or their duly constituted organisations, should be able to cite it in legal proceedings and the national courts should be able to take this Directive into consideration as an element of EU law, for example when reviewing decisions of a national authority. In addition, according to settled case law of the Court of Justice, under the principle of sincere cooperation laid down in Article 4(3) of the Treaty on European Union (TEU), it is for the courts of the Member States to ensure judicial protection of a person’s rights under EU law. Article 19(1) TEU requires Member States to provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law. In addition, under the Aarhus Convention, members of the public should have access to justice to protect their right to live in an environment adequate to their personal health and well-being.
(26) This Directive respects the fundamental rights and observes the principles as recognised in particular by the Charter, including the freedom of expression and information, the freedom to conduct a business, the right to an effective remedy and to a fair trial, the principles of legality and proportionality. This Directive seeks to ensure full respect for those rights and principles and should be implemented accordingly.
(27) In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents 20 , Member States have undertaken to provide, in justified cases, notification of their transposition measures together with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislators consider the transmission of such documents to be justified, in particular following the judgment of the European Court of Justice in Case Commission vs Belgium 21 (case C-543/17).