The following information provides more detail on the legal frameworks and governance settings for MSP in the EU. Further specific information on MSP in the Celtic Seas can be found in the Overview Assessment.

EU Legal Framework for MSP

Along with the MSP Directive, the most important drivers for co-ordinated management of the marine environment are:

Integrated Maritime Policy
Marine Strategy Framework Directive (MSFD)
Birds Directive (2009/147/EC)
Habitats Directive (92/43/EC)
Renewable Energy Directive (2009/28/EC)
Strategic Environmental Assessment Directive (2001/42/EC)
Environmental Impact Assesment Directive (85/337/EEC)

International Legal Framework for MSP

At the international level, many law and policy instruments are relevant to MSP including the United Nations Law of the Sea Convention, the Convention on Biological Diversity and the Espoo Convention on Environmental Impact Assessment in a Transboundary Context.

The Law of the Sea Convention

The United Nations Convention on the Law of the Sea (LOSC) was opened for signature in 1982 in Montego Bay and entered into force in 1994 with 60 ratifications. Today, 168 States have ratified the Convention. The Convention makes no reference to maritime spatial planning, per se, but grants coastal States with necessary maritime duties, responsibilities and jurisdiction to engage in MSP. National planning processes are directly affected by the division of marine and coastal waters into specific maritime zones such as internal waters, territorial sea, archipelagic waters, exclusive economic zone (EEZ) and continental shelf, each with their own legal regime. The LOSC also establishes a comprehensive framework for the protection and preservation of the marine environment and management of biological resources. Three categories of provisions are relevant for maritime spatial planning: zoning provisions, environmental provisions and provisions related to fisheries.

Important zoning provisions of relevance for MSP

Internal waters and territorial sea

The LOSC sets out the rights and obligations of States in different maritime zones. In Article 8 internal waters are defined as waters on the landward side of the low water mark (baseline) of the territorial sea (e.g. bays, estuaries and ports). In Internal waters, coastal states enjoy full sovereignty to organise, regulate and manage maritime activities. This sovereignty is complete and includes all freedoms to undertake maritime spatial planning.

The territorial sea refers to marine waters adjacent to internal waters up to 12 nautical miles from the baseline i.e. the low-water mark (Article 5) or straight lines joining appropriate points of the coast where the coastline is indented or if there is a fringe of islands in the immediate vicinity of the cost (Article 7). Coastal states enjoy full sovereignty on the territorial sea (Art.2) and exclusive rights to enforce their laws and regulations governing the use of the natural resources of seabed, subsoil and water column. This entails exclusive planning rights to install and operate offshore installations, dumping zones, aquaculture farms and marine protected areas. Planning processes have to be consistent with the right of innocent passage guaranteed to all states under Article 17. The right of innocent passage is defined as the right to navigate through the territorial sea for the purpose of traversing the territorial sea without entering the internal waters […] or proceeding to or from the internal waters (Article 18). The passage is innocent as long as ships do not engage in one of the activities listed in Article 19. The LOSC prohibits the extinction or suspension of the passage (Article 24) but allows coastal States to regulate aspects of passage in certain circumstances listed in Article 21 including: the safety of navigation, the protection of navigational aids, offshore facilities, cables and pipelines, the prevention of infringements of fisheries laws and regulations and the protection, preservation of the marine environment. To achieve the foregoing coastal States may establish ships’ routeing systems (Article 22). The procedure to adopt or amend ships routeing systems is provided in Regulation V/10 of the Convention on the Safety of Life at Sea and the Resolution of the International Maritime Organization (IMO) A. 572(14) which sets out general conditions on Ships’ routeing systems. Ships routeing measures vary from positive measures (e.g. Traffic Separation Schemes, sea lanes, separation zones, roundabout and inshore traffic zones) to negative measures such as Area To Be Avoided (ATBA). Where passage is hampered in a particular area of the territorial sea, the coastal State is required to provide appropriate alternatives in their planning systems so as to arrange for the passage in other parts of the territorial sea through the designation or amendment of its ships routeing systems.

 Contiguous zone

The contiguous zone extends 24 nautical miles from the baselines from which the breadth of the territorial sea is measured (Article 33). The contiguous zone does not contribute per se to maritime spatial planning due to the nature of rights conferred upon coastal States in this area. In the contiguous zone, coastal States are entitled to prevent and punish infringements to their customs, fiscal, immigration and sanitary laws and regulations applicable in the territorial sea or committed within its territory.

 Exclusive Economic Zone

The exclusive economic zone (EEZ) extends up to 200 nautical miles from the baselines from which the territorial sea is measured (Article 57). Unlike other maritime jurisdictional zones, an EEZ must be officially claimed by a coastal State: it is not presumed. In the EEZ, coastal states do not enjoy sovereignty but they have sovereign rights for the purpose of exploring and exploiting, conserving and managing natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil. Sovereign rights also concern activities relating to the economic exploration and exploitation of the zone such as the production of energy from the water, currents and winds (Article 56(1)). Coastal States also have a duty to take conservation and management measures to ensure that the maintenance of harvested species and associated or dependent species in the EEZ are not endangered by over-exploitation (Article 61(2), (4)).

Although sovereign rights do not constitute sovereignty they refer to all rights necessary for the exploration and exploitation of the natural resources’ including the exclusive rights to install and operate offshore structures and installations (Article 60(1), (2), (4), (5)) and the exercise of jurisdiction with regard to structures and installations that are necessary to explore and exploit natural resources, management and conservation of living resources, marine research and the protection and preservation of the marine environment. The competences of coastal States to undertake MSP in the EEZ is limited to these specific issues. Although the LOSC does not refer to ships routeing systems in the EEZ, similar procedures can be applied beyond 12 nautical miles under the IMO Resolution A. 572 (14) for the purpose of: 1) ensuring the safety of offshore installations and navigation around them, 2) preserving marine environment, 3) conserving and managing fisheries resources.

Coastal State rights in the EEZ must be consistent with the rights to lay submarine cable and the freedom of navigation enjoyed by other States (Article 58). Article 60(7) prohibits the installation of offshore structures and safety zones where interference may be caused to the use of recognised sea lanes essential to international navigation. Recognised sea-lanes essential to international navigation’ refers to IMO- adopted ships routeing systems and to ships routeing systems unilaterally adopted by coastal States in compliance with criteria and guidelines adopted by the IMO Resolution A. 572 (14) on General provisions on Ships’ routeing.

In areas of high traffic density but where no ships’ routeing systems have been established, coastal States have the obligation to exercise planning rights with due regard to the rights and duties of other States (Art. 56(2)). The rights and duties of other States in the EEZ are determined with reference to Article 87 and include the freedoms of navigation, overflight and the laying of submarine cables and pipelines and other internationally lawful uses related to these freedoms.

 Continental Shelf

The continental shelf encompasses the seabed and subsoil of the EEZ. The continental shelf extends throughout the natural prolongation of the land territory to the outer edge of the continental margin or, to a distance of 200 nautical miles from the baseline of the territorial sea where the outer edge of the continental margin does not extend to that distance (Article 76(1)). On the continental shelf, coastal States enjoy sovereign rights to explore and exploit mineral and non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species (Article 77(4)). The LOSC grants coastal States similar exclusive rights to construct and operate installations that are necessary for the exploration and exploitation of the natural resources of the continental shelf. Planning rights on the continental shelf are limited to the economic exploration, exploitation of the non-living resources and sedentary species of the continental shelf. The EEZ and continental shelf are two distinct legal entities. No installations related to the exploration/exploitation of the natural resources of the EEZ can be valuably established on the continental shelf, where no EEZ is established. In specific instances countries can claim extended continental shelf areas up to a maximum of 350 nautical miles e.g. Ireland.

The High Seas

The High Seas encompass all part of the seas that are not included in the EEZ, territorial sea, archipelagic waters and internal waters of a State (Article 86). No State can validly claim sovereignty on the High Seas. The High Seas are legally considered as res nullius (space that belongs to no one) and as such, cannot be subject to any national statutory maritime spatial plan. States’ jurisdiction in the High Seas is limited to their nationals and vessels flying their flags.

Fisheries provisions

The LOSC sets the international framework for the conservation and utilisation of living resources. In the territorial sea, coastal States can establish fisheries zones as part of their sovereignty over the living resources of the water column, seabed and subsoil. In the EEZ, coastal States have exclusive rights and jurisdiction for the purpose of conserving and managing living resources (Article 61, 62). Coastal States may determine the allowable quota of living resources to be caught by their nationals and have a duty to adopt conservation and management measures to ensure that living resources are not endangered by over-exploitation. In adopting and implementing conservation measures, coastal States should adopt a multi-species approach to take into account the impacts of such measures on species associated with or dependent upon harvested populations (Article 61(4)). Fisheries in the EEZ by third States depend on the access to the surplus of the allowable catch granted by coastal States to fishing vessels flying flags of third states. When the allowable catch exceeds coastal States’ capacity to harvest the living resources, coastal States are obliged to give other States access to any surplus. This must be taken into account in MSP. Fishing vessels from third states have to comply with coastal States’ conservation measures, legislation and regulations enforced through planning. These may include the designation of fisheries zones, seasonal areas and limited or prohibited areas. Coastal States can enforce their legislation by means of boarding, inspection, arrest and judicial proceedings on their nationals and fishing vessels flying foreign flags (Article 73).

 Environmental provisions

Measures to prevent control and reduce pollution

Planning competencies are implicitly recognised in the LOSC for the purpose of environmental protection. Under Part XII, all States are bound by a general obligation to preserve and protect the marine environment pursuant to their environmental policies (Article 192). This includes the obligation to take measures to protect and preserve rare or fragile ecosystems as well as the habitats of depleted, threatened or endangered species and other forms of marine life (Article 194(5)). The LOSC entitles coastal States to take […] all measures that are necessary to prevent, reduce and control pollution of the marine environment from any sources using […] the best practical means at their disposal […] either individually or jointly. Sources of pollution include that from dumping, vessels, land-based sources, sea-bed activities and emanating from offshore installations and devices (Article 194(3)). Though not explicitly defined in the Convention, “best practical means” may include designation of marine protected areas as well as the adoption or amendment of dedicated ships’ routeing systems as part of a comprehensive MSP. Conservation measures may also entail the designation of ‘special areas’ where mandatory measures apply to prevent pollution from vessels when the international rules and standards regulating pollution from vessels are inadequate (Article 211(6)). Here, coastal States must refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and duties in conformity with the Convention (Article 194(4)).

 The Ecosystem Approach under the Law of the Sea Convention

Under the MSP Directive, MSP should incorporate an ecosystem-based approach. The Law of the Sea also implicitly (Fabra and Gascón, 2008) endorses an ecosystem-based management model by recognising that ocean spaces are closely interconnected and need to be considered as a whole (Article 192). Explicit mention of ‘ecosystems’ is made under this part through the obligation to take measures to protect and preserve rare or fragile ecosystems as well as the habitats of depleted, threatened or endangered species and other forms of marine life (Article 192(5)). Additionally, the Convention also requires Parties to use best available scientific evidence and apply a multi-species approach when adopting conservation and management measures to ensure the maintenance of the living resources of the EEZ. Reference to the ecosystem approach can be derived from Article 123 which promotes a regional seas approach among States bordering enclosed or semi-enclosed seas to coordinate their a) laws and regulations aimed at managing and conserving living resources; and b) the implementation of their rights and duties with respect to the protection, preservation of the marine environment. Subsequent developments under the 1995 Fish Stocks Agreement incorporate the ecosystem approach to the conservation and management of straddling fish stocks and highly migratory fish stocks in waters under coastal State jurisdiction and in the high seas.

 

The Espoo Convention on Environmental Impact Assessment in a Transboundary context

The Espoo Convention was adopted under the auspices of the United Nations Economic Commission for Europe at Espoo (Finland) on 25 February 1991 and entered into force on 10 September 1997. The Espoo Convention stipulates that Parties must ensure that an Environmental Impact Assessment is undertaken prior to a decision to authorise or undertake a proposed activity that is likely to cause a significant adverse transboundary impact. It also requires Parties to notify (Article 3) and consult (Article 5) each other on all major projects under consideration that are likely to have significant adverse environmental impacts across borders.

The Kiev Protocol on Strategic Environmental Assessment extends the obligation of environmental assessment to official plans and programmes developed at strategic level by public authorities. The Espoo Convention and the Kiev (SEA) Protocol are transposed into the European Union legal framework by the Strategic Environmental Assessment Directive (2001/42/EC) since the ratification by the EU of the Kiev Protocol. In accordance with the Espoo Convention and the Kiev (SEA) Protocol, maritime spatial plans shall be subject, before their adoption, to notification and consultation with neighbouring states.

 

Convention on Biological Diversity

The Convention on Biological Diversity (CBD) was adopted in Rio de Janeiro in June 1992 and entered into force in 1993. The Convention has three high-level goals that may be instructive in defining high-level goals for MSP: (1) the conservation of biological diversity; (2) the sustainable use of its components; and (3) the fair and equitable sharing of benefits arising from the use of genetic resources. The CBD is a critical driver of MSP as it is the first international instrument that mandates an ecosystem approach to the conservation and sustainable use of marine biodiversity. Within the CBD, the ecosystem-based approach is defined as ‘a strategy for the integrated management of land, waters and living resources that promotes conservation and sustainable use in an equitable way’ (Decision V/ 6 on Ecosystem Approach).

Most of the legal developments that are relevant to MSP within the framework of the CDB have been adopted in the form of Decisions by the Conference of the Parties and as such, are considered as soft law instruments. The Malawi Principles, underpinning the application of the ecosystem approach (available online at: https://www.cbd.int/ecosystem/principles.shtml), are relevant to guide development of ecosystem-based maritime plans. Many of these principles refer to the need to develop long-term and decentralised resource management, to take into account all forms of knowledge about ecosystems, to involve all relevant actors and to conserve ecosystems’ structures and functioning to maintain ecosystem services.

number of decisions have been adopted within the CDB to encourage the designation of marine and coastal protected areas where special measures are implemented to reduce human pressures (Decision VII/ 5, (a), (b)). Protected areas must include a global network of comprehensive, representative and effectively managed national, regional and transboundary protected areas (Decision VII/ 28). Decision X/29 invites Parties to increase efforts to ‘apply marine spatial planning tools, as appropriate, in accordance with Parties’ national planning and strategies’. Under Decision X/29, MSP is described as a critical tool for long-term conservation, management and sustainable use of marine resources and coastal habitats and to effectively manage Marine Protected Areas (Decision X/29, §75 and78).

The Conference of the Parties adopted a first Decision on MSP (Decision XII/18 (c)) in 2014 with the aim of including inter alia: the development of a web-based information-sharing system linking information sources on MSP, compiling information on experiences and use of MSP practices, and the organisation of expert workshops to provide practical guidance and toolkits on MSP. An expert workshop was held in Montreal in September 2014 to review existing guidance on MSP, identify gaps in existing guidance and develop a proposal for a MSP toolkit and series of practical guidance to facilitate development and implementation of MSP (available online at: https://www.cbd.int/decisions/cop/?m=cop-12). In the COP Decision XII/1, MSP is identified as a key scientific and technical need to implement the Strategic Plan for Biodiversity 2011-2020.

Regional legal framework under the OSPAR Convention

The Convention for the Protection of the Marine Environment of the North East Atlantic (OSPAR) was opened for signature in Paris on 22, September 1992. It entered into force on 25 March 1998 replacing the Oslo and Paris Conventions. The OSPAR Convention primarily aims at promoting international cooperation on the prevention, protection and elimination of marine pollution in the North East Atlantic area. In line with the Convention on Biological Diversity, the OSPAR Commission aims to promote the implementation of the ecosystem-based approach in the North-East Atlantic by establishing a full set of management measures and programmes.

The OSPAR Commission has been pro-active in the adoption of Recommendations to encourage the designation of a network of marine protected areas. Recommendation 2003/3, as amended by the Recommendation 2010/2, recommends the establishment of an ecologically coherent network of well-managed marine protected areas by 2010. Likewise, recent amendments to Recommendation 2003/3 oblige contracting parties to consider whether any marine sites designated under the Birds and Habitats Directives should be added to the OSPAR network of MPAs (Recommendation 2003/3, § 3.3a).

The need for MSP in the North East Atlantic was first addressed at the fifth Ministerial North Sea Conference (Bergen Declaration, 2002). In the Bergen Declaration, Ministers agreed that regional cooperation for MSP in the North Sea was required to address conflicts between the marine environment and cumulative pressures of human activities (Ministerial Declaration, section XI, para. 76). The Ministerial Declaration also invited the OSPAR Commission to ‘investigate the possibilities for further international cooperation in planning and managing marine activities through spatial planning of the North Sea countries taking into account cumulative and transboundary effects’ (Ministerial Declaration, section XI, para. 77(ii)). Although the OSPAR Commission has been pro-active in encouraging transboundary cooperation between contracting parties, until now, the contribution of OSPAR to MSP has been limited to organising a number of workshops (SPINS I, SPINS II, MASMA), the objective of which was to collect scientific data and information on national MSP and spatial control systems in North Sea countries (Maes and Cliquet, 2015). A key finding of the SPINS workshops was that ‘it was premature to develop guidance on good practice. More time was needed to accumulate and assess experiences with the new techniques and procedures that were being developed’. Following the SPINS workshops, three workshops on Marine Spatial Management (MASMA) took forward tasks on information collection and exchange. In 2007, this work culminated in the adoption, by the OSPAR Biodiversity Committee, of the ‘Terms and Reference for an Intersessional Correspondence Group on Marine Spatial Planning’ (ICG) tasked with compiling information on national MSP systems.

The OSPAR Commission has been actively contributing to the implementation of the Marine Strategy Framework Directive (2008/56/EC) through its Quality Status Reports assessing the environmental quality of North East Atlantic, including an overview of human activities and trends in pressures and impacts. Although, focused primarily on the implementation of the MSFD, it can inform the initial assessments required under MSFD as well as provide an information basis for MSP in North East Atlantic countries.

 

EU Legislation on maritime spatial planning

Directive 2014/85/EU establishing a framework for maritime spatial planning (Maritime Spatial Planning Directive) provides a legal basis for national and transboundary maritime spatial planning initiatives, with EU Member States required to set up maritime spatial plans by 31st March 2021, at the latest. The Maritime Spatial Plans developed must be reviewed at least every ten years. The Directive provides a set of common minimum requirements. The obligations set for Member States are mainly procedural and affect plan-making processes rather than the substantive content of maritime spatial plans. Article 1 states that MSP is aimed at “promoting the sustainable growth of maritime economies, the sustainable development of marine areas and the sustainable use of marine resources”.

Scope of application

The Directive applies to “marine waters” of Member States but not coastal waters if they come within a Member State’s town and country, or land-based, planning system provided this is stated in the Plans developed. “Marine waters” have the same definition as that used in the MSFD (2008/56/EC) and include the seabed and subsoil from the baseline (low water mark or straight baseline) to the outermost limit where a Member State exercises jurisdiction, usually 200 nautical miles.

“Coastal waters”, where applicable, have the same definition as used in the WFD, namely, “surface water on the landward side of a line, every point of which is at a distance of one nautical mile on the seaward side from the nearest point of the baseline from which the breadth of territorial waters is measured, extending where appropriate up to the outer limit of transitional waters”.

Requirements and Objectives of MSP

Member States are required under Article 4 of the MSP Directive to establish and implement MSP and in so doing, to take account of land-sea interactions and the particularities of their marine regions as well as the impacts of existing and future activities and uses on the environment. The Directive allows Member States to build on existing policies, regulations or other mechanisms so long as they conform with the requirements of the Directive.

The objectives of MSP are contained in Article 5, which says that Member States should consider the economic, social and environmental aspects necessary to support sustainable development and growth in maritime sectors, apply an ecosystem-based approach, and promote the coexistence of activities and uses. Member States preserve the ability to decide how different objectives are reflected and weighted in the maritime spatial plans developed.

Minimum requirements for MSP are contained in Article 6 and reiterate the need to take into account land-sea interactions and environmental, economic, social and safety aspects. Member States are asked to promote coherence between MSP, the resulting plan(s) and other processes, such as Integrated Coastal Management or equivalent “formal or informal practices”. Article 6 continues by providing that Member States should ensure the involvement of stakeholders, organise the use of the best available data, ensure trans-boundary cooperation between Member States and promote cooperation with third countries.

Setting up MSP

When creating a Maritime Spatial Plan, under Article 8(1), Member States are to identify the spatial and temporal distribution of relevant existing and future activities and uses in their marine waters. The Directive lists aquaculture areas; fishing areas; installations/infrastructures for non-renewable and renewable energy resources, minerals and aggregates; maritime transport routes and traffic; military training areas; species and habitat conservation sites and protected areas; raw material extraction areas; scientific research; submarine cable and pipeline routes; tourism; and underwater cultural heritage as possible activities and uses that may be included.

Public participation in MSP

Article 9 of the MSP Directive covers public participation and provides that all interested parties, stakeholders, authorities and the public are informed and consulted “at an early stage” in plan development and in accordance with existing EU legislation on this matter. Stakeholders and authorities must also have access to the plans once they are finalised (Article 9(2)). How you can get involved in MSP in your country depends on how MSP is being implemented in your area: see the list at the bottom for further information and links.

Data for MSP

Article 10 relates to data use and sharing which covers environmental, social and economic data as well as physical data about marine waters and how to share information necessary for MSP. Member States are requested to make use of existing instruments and tools to do this such as those operating under the Integrated Maritime Policy and/or the INSPIRE Directive (Infrastructure for Spatial Information in the European Community, 2007/2/EC). Could refer to data portals here or specific websites

Cooperation between States

Coherent and coordinated planning across marine regions, that takes account of transnational issues, is the subject of Article 11. This promotes the use of existing structures for regional institutional cooperation such as those formed as part of the Regional Sea Conventions, networks of competent authorities across different Member States or any other method that fulfils this purpose, perhaps those used in the context of sea-basin strategies, developed under the Integrated Maritime Policy. Article 12 extends this cooperation effort to third countries and their work on MSP.

Implementation

Articles 13 and 14 cover the implementation phases of the Directive. Each Member State must designate a competent authority, or authorities, for implementation of the Directive and communicate this to the European Commission by 18 September 2016. Copies of any maritime spatial plans developed must also be sent to the Commission. The European Commission has a duty to report to the European Parliament and the Council on the progress made in implementation of the Directive one-year after the deadline for creation of maritime spatial plans and every four years thereafter.

 

Member State Transposing Mechanism Competent Authority
Belgium Royal Decree of 20 March 2014.

Marine Environment Act, 20 July 2012.

Royal Decree of 13 November 2012.

Health, Food chain safety and Environment (federal public service)
Bulgaria Maritime Space, Inland Waterways and Ports of the Republic of Bulgaria Bill [proposed]. Ministry of Regional Development and Public Works
Croatia Physical Planning Act 2013, as amended. Ministry of Construction and Physical Planning
Cyprus No information submitted to EC as yet. Ministry of Transport, Communications and Works – Department of Merchant Shipping
Denmark Lov nr. 615 af 8. juni 2016 om maritim fysisk planlægning [Law on Maritime Spatial Planning] adopted 19/5/16. Danish Maritime Authority, Ministry of Business and Growth
Estonia Planeerimisseadus [The Planning Act]. Estonian Ministry of the Finance
Finland Laki maankäyttö- ja rakennuslain muuttamisesta [Law amending the Land Use and Building Act] (482/2016) 17/06/2016.

Laki Suomen talousvyöhykkeestä annetun lain 3 §:n muuttamisesta [Law amending § 3 of the Act on the Finnish economic zone] (483/2016) 17/06/2016.

Valtioneuvoston asetus merialuesuunnittelusta [Government Regulation on Maritime Spatial Planning] (816/2016) 15/09/2016.

Finnish Ministry of the Environment
France LOI n° 2016-1087 du 8 août 2016 pour la reconquête de la biodiversité, de la nature et des paysages (article 123) [Law on the re-conquest of biodiversity, nature and landscapes]. Decentralised structure
Germany National ordinance on the National Development Programme (LEP-LVO M-V) Number 11, 08/06/2016.

Landesentwicklungsprogramm MV [Land Development Programme] Number 11, 08/06/2016.

Also earlier legislation on MSP.

Federal Maritime and Hydrographic Agency (BSH) and Federal Ministry of Transport and Digital Infrastructure (BMVI) as well as coastal Lander
Greece No information submitted to EC as yet. Ministry of the Environment and Energy
Ireland EU (Framework for Maritime Spatial Planning) Regulations 2016 (S.I. No. 352 of 2016). Department of Housing, Planning, Community & Local Government plus the Marine Institute as technical and scientific advisors.
Italy Attuazione della direttiva 2014/89/UE che istituisce un quadro per la pianificazione dello spazio marittimo [implementation of Directive 2014/89/EU on MSP]. Cross-departmental remit / undecided
Latvia Teritorijas attīstības plānošanas likums [Territorial Development Planning Law] 2011.

Cabinet of Ministers Regulations No. 740 on Sea-plan development, implementation and monitoring procedures 30 October 2012.

Ministry of Environmental Protection and Regional Development
Lithuania Government of the Republic of Lithuania in 2016. 8 June. Resolution No. 556 to implement the IMP.

Lithuanian Minister of the Environment, 26 May 2016, Order No. D1-387 Rules for Integrated Territorial Planning Documents.

Resolution No. 1097 on public information, consultation and participation in decision-making on spatial planning regulations, as amended.

Ministry of the Environment
Malta Marine Spatial Planning Regulations, 2016 – Development Planning Act (Cap. 552 of the Laws of Malta) 18/10/2016. Malta Environment and Planning Authority (MEPA)
Netherlands Decree of February 19, 2016 amending the Water Decree in connection with the implementation of the Framework for Maritime Spatial Planning. Ministry of Infrastructure and the Environment
Poland The law of 5 August 2015 amending the Act on maritime areas of the Polish Republic and the Maritime Administration and other laws.

Regulation of the Minister of Transport, Construction and Maritime Economy and the Minister of Regional Development of August 5, 2013 on zoning plans for Polish marine areas.

Ministry of Maritime Economy and Inland Navigation
Portugal Decree Law No. 38/2015 Ministry of Agriculture and the Sea Development, Law No. 17/2014, of April 10, which Establishes the Bases of the Policy of Management and Management of the National Maritime Space.

Decree Law No. 139/2015 Ministry of Agriculture and the Sea: first amendment to Decree-Law no. 38/2015, of March 12, which develops Law no. 17/2014, of April 10, establishing the Bases of Ordinance Policy and Management of the National Maritime Space, and transposes Directive 2014/89/EU on MSP.

Directorate General of Natural Resources, Safety and Maritime Services (DGRM), Ministry of the Sea.
Romania Government Ordinance no. 18/2016 on MSP. Ministry of Regional Development and Public Administration
Slovenia Spatial Planning Act 2007.

Law Amending the Law on Spatial Planning, 27/07/12 and earlier legislation.

Slovenian Ministry of the Environment and Spatial Planning
Spain No information submitted to EC as yet. Ministry of Agriculture, Food and Environment
Sweden Act (2014: 861) amending the Environmental Code (1998: 808).

Marine Planning Ordinance (2015: 400).

Regulation (2015: 401) amending Regulation (1998: 896) on the management of land and water areas.

Swedish Agency for Marine and Water Management (SwAM).
United Kingdom[1] No information submitted to EC as yet.

Marine and Coastal Access Act 2009 and related devolved legislation.

DEFRA and devolved administrations.

 

Other relevant EU Law

The Lisbon Treaty and maritime spatial planning

The Lisbon Treaty is comprised of the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The LisbonTreaty provides the primary legal framework for EU actions in the field of MSP. The legislative actions of the European Union are subject to the principle of conferral. Under this principle, the EU acts only within the limits of the competences that EU countries have conferred upon it in the Treaties. Policy areas falling under the competence of the EU and its institutions are listed in Article 3 (exclusive competencies) and Article 4 (shared competencies) of the Lisbon Treaty. Competencies that are shared between the EU and the Member States include inter alia

  1. a) fisheries management (excluding conservation of marine biological resources which are an exclusive competence of the EU (Article 43)),
  2. b) the environment (Article 192),
  3. c) transport (Article 100),
  4. d) energy (Article 194)
  5. e) trans-European network (Article 170) and
  6. f) territorial cohesion (Article 175).

Those are also sectoral domains of interest for maritime management. MSP is therefore not a direct competence conferred upon the EU by the Lisbon Treaty. In negotiating the text of the MSP Directive, the EU was careful not to adopt a legally binding instrument that imposed substantial obligations in areas where the EU did not have full competence but rather opted to leave the substantive implementation measures to the discretion of Member States. The MSP Directive does not create a new policy in itself but rather aims at supporting existing EU maritime-related policies by imposing obligations of a procedural nature only.

Marine Strategy Framework Directive

The Marine Strategy Framework Directive (MSFD, Directive 2008/56/EC) places a legal requirement on Member States to restore degraded ecosystems and to achieve/maintain Good Environmental Status (GES) across the four European regional seas: the North East Atlantic including the North Sea; the Mediterranean Sea; the Baltic Sea; and the Black Sea by 2020. Implementing an ecosystem-based approach is central to the MSFD’s priority objectives to achieve and maintain GES of marine ecosystems while enabling sustainable use of ecosystems goods and services. The MSFD requires Member States to manage human activities, applying an ecosystem-based approach, to ensure that collective pressures from human activities are compatible with GES (Article 2).

 

Member States shall, for each marine region or sub-region, develop and implement a programme of measures aimed at implementing the good environmental status (Article 13(1)). In this respect, the MSFD contains 11 descriptors to assist Member States in progressing to good environmental status. The MSFD does not explicitly refer to MSP but requires that national programmes of measures include spatial measures (Article 13(4)) contributing to a coherent network of protected areas covering the diversity of ecosystems, such as Special Areas of Conservation pursuant to the Habitats Directive, Special Protection Areas pursuant to the Birds Directive. Moreover, programmes of measures may incorporate management measures “that influences where and when an activity is allowed to occur” can also contribute to GES (Annex VI (3)).

Water Framework Directive

The Water Framework Directive (WFD) (2000/60/EC) aims to establish an overall framework for the protection of inland surface waters, transitional waters, coastal waters and groundwaters (Article 1). The WFD is relevant to MSP insofar as it is the first Directive that mandates an ecosystem-based approach through the legal requirement to develop management strategies that focus on the hydrological unit and not administrative boundaries. A more direct effect of the WFD in relation to MSP is the duty of Member States to identify individual river basins, to assign them to individual river districts and where appropriate, to include coastal waters. For each individual river district, Member States are required to adopt River Basin Management Plans to ensure the ecological protection of surface waters, groundwaters and protected areas (Article 4). However, although management plans may encompass areas of coastal waters, the contribution of the WFD to MSP is limited insofar as the Directive covers coastal waters only up to 1 nautical mile (Article 2 (7)).

Strategic Environment Impact Assessment Directive

The Strategic Environmental Assessment (SEA) Directive (2001/42/EC) influences the plan-making process by requiring a systematic environmental assessment of plans and programmes likely to have significant environmental effects (Article 3) and transboundary consultation on these impacts (Article 7). The SEA Directive transposes into EU law the provisions of the Espoo Convention since the ratification by the EU of the Kiev (SEA) Protocol. Under the SEA Directive, plans and programmes subject to SEA are those which are prepared/adopted by a public authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government and required by legal, regulatory and, administrative provisions. The SEA Directive specifically refers to plans and programmes for fisheries, energy, industry, transport and tourism (Article 2 (2)) as well as plans and programmes which require assessment pursuant to the Habitats Directive (Article 2(2) b)).

Under Article 8 of the MSP Directive, activities and uses that may be included in MSP include inter alia: aquaculture areas, fisheries areas, installations and infrastructures for the exploration, exploitation and extraction of oil, gas and other energy resources, maritime transport and tourism. Maritime spatial plans are thereby likely to cover sectors and activities that fall within the scope of the SEA Directive. Recital 23 of the MSP Directive states that where maritime spatial plans are likely to have significant effects on the environment, they will be subject to the SEA Directive and where such plans include Natura 2000 sites, the SEA can be combined with the Article 6 Appropriate Assessment provisions of the Habitats Directive 92/43/EEC, to avoid duplication. The SEA Directive requires that transboundary consultations are carried out whenever the plan or programme that is to be developed within national boundaries is likely to have significant cross-border effects on the environment of neighbouring Member States.

Common Fisheries Policy

Conservation of marine biological resources under the Common Fisheries Policy is an exclusive competence of the EU regulated by Regulation No. 1380/2013. Under the CFP, all fishing vessels flying the flag of an EU Member State have equal access to all EU marine waters and their living resources (Article 5(1), Regulation 1380/2013). This situation needs to be taken into account in the development and implementation of MSP. To achieve the objectives of conservation of marine biological resources, the EU is entitled to establish conservation measures governing fishing activities and access to waters. Conservation measures may include spatial restrictions such as limitations or prohibitions on the use of certain fishing gear and fishing activities in certain areas to protect aggregations of endangered species and vulnerable marine resources (Regulation No. 1380/2013, Article 7 (2)(c)(d)). The EU may also adopt, in multiannual plans, a network of protected areas that are considered as biologically sensitive or sensitive due to the presence of spawning grounds or heavy concentrations of fish below minimum conservation reference level (Regulation 1380/2013, Article 8(1)-(3)). In such areas fishing activities may be restricted or prohibited using conservation measures provided for under Article 7.

Member States are not allowed to legislate on an exclusive competence conferred upon the EU (TFUE, Article 2(1)), but are however responsible for the implementation of EU’s fisheries conservation measures. EU Regulations on fisheries conservation must be taken into account in national MSP. There are also a substantial number of options under Regulation No. 1380/2013 enabling Member States to legislate on conservation of fisheries resources. For example, Member States may take non-discriminatory conservation and management measures within 12 nautical miles when the Union has not adopted measures addressing conservation and management specifically for that area (Article 20). Beyond 12 nautical miles, Member States are further entitled to adopt conservation measures that are applicable only to vessels flying their flags (Article 19(1)(a)).

Member States have additional competences in the field of fisheries conservation through other environmental Directives. A healthy population of commercial fish species, food webs that ensure long-term abundance and reproduction as well as the maintenance of biodiversity, are just three of the descriptors used in assessing GES under the MSFD. Many fish species are also listed in Annexes I and II of the Habitats Directive. Member States are required to adopt conservation measures to avoid deterioration of natural habitats, habitats of species and disturbance of species in these areas (Habitats Directive, Article 6). Regulation No. 1380/2013 acknowledges that the Habitats Directive requires the adoption of measures falling under the scope of the CFP and as such, authorise Member States to adopt conservation measures that are necessary to comply with their obligations under that Directive (Regulation No. 1380/2013, Recital 25). The Regulation (1380/2013) however specifies that conservation measures within 12 nautical miles can be unilaterally adopted by Member States provided that the EU has not adopted measures addressing conservation and management specifically for that area. Where conservation and management measures adopted under the framework of Natura 2000 Directives affect fishing activities of other Member States, such measures may only be adopted after consulting with the Commission (Regulation No. 1380/2013, Article 20(2)). Beyond 200 nautical miles, measures adopted by Member States only apply to vessels flying the flag of that Member State or person established on their territory (Article 19(1)).

The Birds and Habitats Directives

The Birds Directive (2009/147/EC) requires Member States to designate Special Protection Areas (SPAs) for 194 Birds species and other migratory species listed to ensure their survival and reproduction (Article 4, Birds Directive). Likewise, similar spatial areas, Special Areas of Conservation (SACs), have to be adopted under the Habitats Directive (92/43/EC) for habitats and species listed in the Directive. The provisions of the Birds and Habitats Directives apply to all maritime areas over which a Member State has jurisdiction and thus, to the limit of the Exclusive Economic Zone. SPAs and SACs are therefore enforceable in the territorial seas and EEZs of Member States. SACs and SPAs together form the Natura 2000 network of protected areas which currently covers ~6 % of European seas with further efforts being made to ensure at least 10% of Europe’s seas are protected through a coherent MPA network by 2020 (European Commission, 2015). In 2014, 6.65% of Celtic Seas water were incorporated into the OSPAR Network of MPAs (OSPAR Commission, 2015).

 

 

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