Marianna Cavallo Analysis of the Implementation of the European Marine Strategy Framework Directive in the North-East Atlantic R

Marianna Cavallo

Analysis of the implementation of the European Marine Strategy Framework Directive in the North-East Atlantic region

Supervised by Prof. Victor Quintino Prof. Michael Elliott Dr. Julia Touza

Year 2017

“International mention”

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Content

Content ...... VII Preface ...... IX Abstract ...... XI Resumen ...... XIII Acknowledgements ...... XXI Abbreviations ...... XXII

Chapter 1 Introduction ...... 1

1.1. The need for an ecosystem-based management of EU seas ...... 1 1.2. The Marine Strategy Framework Directive (MSFD) ...... 2 1.2.1. Requirements and phases ...... 2 1.2.2. MSFD coordination structures and social platforms ...... 6 1.3. The North-East Atlantic region ...... 8 1.4. Objectives ...... 10 1.4.1. First objective – What are the main differences among national strategies of the North-East Atlantic region? ...... 11 1.4.2. Second objective – What are the impediments hampering regional coordination? ...... 13 14.3. Third objective – What is the level of coherence at sub-regional level in the adopted programmes of measures? ...... 14

Chapter 2 The ability of regional coordination and policy integration to produce coherent marine management ...... 15

Summary ...... 15

Chapter 3 Benefits for and impediments to the integrated and coordinated management of European seas ...... 17

Abstract ...... 17 3.1. Introduction ...... 18 3.2. Methodology ...... 20 3.2.1. Survey of the Marine Strategy Coordination Group (MSCG) ...... 20 3.2.2. Statistical analysis ...... 22 3.3. Results ...... 23

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3.4. Discussion ...... 28 3.4.1. Effectiveness of MSFD coordination structures ...... 28 3.4.2. Spatial scale ...... 29 3.4.3. Priority actions to achieve the GEnS of European seas ...... 31 3.4.4. Future challenges ...... 32

Chapter 4 Challenges for the coordinated management of European Seas: comparing the programmes of measures for the Bay of Biscay and Iberian coast sub-region ...... 35

Abstract ...... 35 4.1. Introduction ...... 36 4.1.1. Requirements of the PoM ...... 37 4.2. Methodology ...... 38 4.3. Results ...... 39 4.3.1. Coherence in the information reported ...... 39 4.3.2. Coordination in the three PoM ...... 41 4.3.2.1. Biodiversity ...... 41 4.3.2.2. Non-indigenous species ...... 44 4.3.2.3. Commercial fish and shellfish ...... 45 4.3.2.4. Introduction of nutrients and contaminants ...... 45 4.3.2.5. Marine litter ...... 46 4.3.2.6. Other measures ...... 47 4.3.3 Economic analysis ...... 47 4.3.4. Integration with relevant legislation ...... 48 4.4. Discussion ...... 52 4.4.1. Differences in reporting ...... 52 4.4.2. Differences in scope and spatial application ...... 53 4.4.3. Differences in policy integration ...... 55 4.4.4. Gaps in the economic analysis ...... 56 4.5 Conclusions ...... 57

Chapter 5 ...... 59 Discussion, Recommendations for Further Work and Conclusions ...... 59 5.1. Comparability of the reporting requirements ...... 59 5.2. When is regional coherence and coordination essential in the implementation of the MSFD? ...... 61 5.3. Need to improve coherence in policy integration ...... 63 5.4. Assessing the effectiveness of the MSFD coordination structures and social platforms .... 65 5.5. Recommendations and suggestions for further work ...... 68 5.5.1 Recommendations for further research ...... 68 5.5.2 Suggestions for policy-makers ...... 69 5.6 Conclusions ...... 71

References ...... 73 Appendix ...... 87

VIII Preface

I developed this multidisciplinary PhD project on the basis of the experience gained working on the implementation of the European Water Framework Directive in the North-Western Medi- terranean Sea. The research focused on the analysis of the methodologies and indices developed to assess the Good Ecological Status of coastal waters of Italy and Spain and the need for intercalibration to achieve similar levels of ambition in water protection. For this project, I decided to focus on social, economic, governance and ecological aspects that could hamper a coherent implementation of the Marine Strategy Framework Directive among the countries of the North-East Atlantic region and to highlight the importance of the integration with the existing legislations.

Abstract

The marine environment hosts some of the most productive ecosystems. People have historically depended on the ecosystem services it provides, including food, coastal protection, climate regulation, tourism and way to transport people and goods. However, the growing human population has led to an increase of the demand of these services and, as a consequence, the structure and functioning of marine ecosystems have deteriorated. This has included the loss of biodiversity, contamination and global warming, all of which caused loss of economic opportunities. At the global level, the United Nations Convention on the Law of the Sea was the first step to protect marine ecosystems and to enhance a sustainable management of economic activities. At the Euro- pean level, several policies are in place to regulate sectoral maritime activities, but only recently the European Commission encompasses an integrated management with the adoption the Marine Strategy Framework Directive. The main goal of this directive is to ensure that Member States achieve or maintain Good Environmental Status of their marine waters by the year 2020 at the latest. The present multidisciplinary thesis focuses on the implementation of this directive in the ten countries of the North-East Atlantic region, taking into consideration ecological, socio-economic and governance aspects. It investigates the level of coordination among countries and the level of coherence in the integration of related European and international environmental legislation. The North-East Atlantic region was selected as area of study because of its great variety of biological, ecological and climatic conditions as well as the presence of the most important economic sectors. The methodology used to carry out this research is a comparative analysis of national reports, associated to an extensive literature review and a dedicated survey. The results of the comparative analysis present the main differences among the initial assessment, definitions of Good Environmental Status and targets established by the ten countries of the region, especially for biodiversity related descriptors. Low levels of coherence are also observed at sub-regional level in the programmes of management measures developed by the three countries of the Bay of Biscay and the Iberian Coast. In both cases, the differences regard the period of submission, type of information and the level of detail provided, type of pressure and the way obligations of existing legislation have been integrated, e.g. the list of regional threatened species and habitats as well as the list of contaminants. The survey has allowed the study to identify the reasons behind these differences among national strategies across the region and sub-regions. These indicate that re-

XI MARIANNA CAVALLO gional coordination structures are, in general, well-developed but there is an apparent lack of political will to coordinate actions at the regional level. Member States representatives ask for more flexibility to implement the directive but putting their national interest before the benefits of a coherent approach within the regions. Differences in budget, economic sector predominance, lack of staff and the Marine Strategy Framework Directive short time-scale demonstrate to be major factors that can hamper cooperation. To move toward a more coherent implementation of the Ma- rine Strategy Framework Directive in the region in the next cycle, it is suggested to make a better use of the many coordination and social platforms that are aimed at supporting all the interested parties (including Member States, the European Commission and its Directorate-Generals, the Re- gional Seas Conventions, Stakeholders, NGOs and scientific community) to fill gaps in knowledge, identify best practices, exchange views and concerns, build trust between and among governments and stakeholders.

XII Resumen

Introducción

Los ecosistemas marinos son de los más productivos del mundo y generan muchos beneficios para las sociedades. Los recursos vivos marinos son fuente de alimento, protegen la línea de costa de las inundaciones y temporales, y absorben la mayor parte de CO2 emitidas por las actividades humanas. Otros beneficios están relacionados con la extracción de minerales y gas, y la generación de energía por olas, vientos y corrientes. El incremento de la población y la creciente demanda de esto recursos, han causado una explotación no sostenible, limitando la capacidad de los ecosistemas marinos de regenerarse y absorber estos impactos. Los resultados de estas presiones acumu- ladas son la pérdida de biodiversidad y un aumento de contaminación desde la orilla hasta la parte más profunda de los océanos. A estos se suman el efecto de la absorción del CO2 y el aumento de la temperatura. Al fin de limitar estos impactos, en 1982 se adoptó, a nivel mundial, la Convención de las Naciones Unidas sobre el Derecho del Mar, que establece un orden jurídico para los mares que facilite la comunicación internacional y promueva los usos pacíficos de los mares y océanos, y la utilización equitativa y eficiente de sus recursos. En el mismo periodo, a nivel europeo, se han adoptado una serie de políticas para regular los sectores económicos relacionados con la explota- ción del medio marino. Sin embargo, sólo recientemente este enfoque ha pasado de ser unisectorial a multisectorial, con la adopción de la Política Marítima Integrada, que incluye la Directiva Marco sobre la Estrategia Marina que establece un marco de acción comunitario para la protección y la conservación del medio ambiente marino con un enfoque ecosistémico.

Directiva Marco sobre la Estrategia Marina

La Directiva tiene como objetivo principal lograr o mantener un buen estado medioambiental de las aguas marinas europeas, a más tardar en el año 2020. Este objetivo se tiene que alcanzar de forma coordinada entre países, por lo tanto, cada Estado miembro debe elaborar para sus aguas marinas una estrategia marina que se refiera específicamente a sus aguas pero que refleje a su vez la perspectiva global de la región o subregión marina en que se inscriba.

XIII MARIANNA CAVALLO

Cada estrategia marina nacional se compone de una primera fase, con fecha límite de imple- mentación finales de julio de 2012, que empieza con: - una evaluación inicial del estado medioambiental actual que incluye i) un análisis de los rasgos y características esenciales del estado medioambiental actual de esas aguas; ii) un análisis de los principales impactos y presiones de las actividades humanas, y iii) un aná- lisis económico y social de la utilización de estas aguas y del coste que supone el deterioro del medio marino. - la definición del buen estado medioambiental de los once descriptores cualitativos: D1- Biodiversidad, D2-Especies alóctonas e invasoras, D3-Especies explotadas comercial- mente, D4-Redes tróficas, D5-Eutrofización, D6-Integridad de los fondos marinos, D7- Alteraciones permanentes de las condiciones hidrográficas, D8-Contaminantes y sus efectos, D9-Contaminantes en los productos de la pesca, D10-Basuras marinas, D11-Introduc- ción de energía. - la definición de objetivos medioambientales e indicadores asociados para orientar el pro- ceso hacia la consecución del buen estado medioambiental. A esta primera fase sigue la elaboración de programas de seguimiento para evaluar perma- nentemente el estado medioambiental (antes de Julio 2014). El último paso es la aplicación de los programas de medidas necesarias para lograr o mantener un buen estado ambiental (antes de Julio 2016). Estas fases deberán ser actualizadas cada seis años a partir de la evaluación inicial en el segundo ciclo. Los Estados miembros que compartan una región o subregión harán todo lo posible para garantizar la coherencia con la legislación internacional y comunitaria existente en cada una de estas fases. De hecho, la Directiva requiere la instauración de un marco legislativo transparente y coherente con las otras políticas y fomentar la integración de los objetivos medioambientales de otras políticas, tales como la Directiva Hábitat y Aves cuyos objetivos respaldan la posición adop- tada por la Comunidad en el contexto del Convenio sobre la diversidad biológica. Otros acuerdos internacionales sobre la prevención de contaminación y otras que promueven la explotación sostenible de los recursos pesqueros, como la Política Pesquera Común y el Consejo Internacional para la Exploración del Mar también contribuyen al cumplimiento de las obligaciones de esta Di- rectiva. Además, al fin de desarrollar estrategias marinas coordinadas, los Estados miembros utiliza- rán las estructuras y plataformas existentes, incluso los Convenios Marinos Regionales, como el

XIV RESUMEN

Convenio OSPAR para el Atlántico Nororiental, el Convenio HELCOM para el Mar Báltico, el Convenio UNEP MAP (o Convenio de Barcelona) para el Mar Mediterráneo y el Convenio de Bucarest para el Mar Negro. Otras plataformas y estructuras están disponibles para coordinar el trabajo entre distintas regiones. Por ejemplo, la Comisión Europea ha desarrollado la Estrategia Común de Implantación con el objetivo de garantizar una aplicación homogénea y lo más coordinada posible de la Directiva, de tal forma que los países miembros y la propia Comisión Europea la interpreten de la misma forma a través de un sistema de intercambio de información denominado CIRCA (Communication Information Resource Centre Administrator). La Estrategia Común de Implantación integra distintos grupos de trabajos según las funciones que les son encomendadas, en los que participan representantes de los Estados miembros y de la Comisión Europea, grupos de interés, y expertos/científicos. Por ejemplo, el Grupo de Coordinación de la Estrategia Marina tiene como función coordinar la labor de otros grupos técnicos (grupo sobre basura marina) y de evaluar los informes de otros grupos de trabajo (grupo sobre Buen Estado Medioambiental) y pre- parar los asuntos que deban presentarse a los Directores Marinos para su aprobación definitiva. Además, a nivel de subregión, hasta ahora se han organizado varias reuniones voluntarias bilaterales y trilaterales entre países vecinos. La coordinación a nivel nacional, entre distintos ministerios y partes interesadas, tiene lugar a través de encuentros periódicos y con la emisión de los informes de cada fase de las estrategias a consulta pública con el objetivo de recoger las aportaciones de las administraciones públicas afectadas, público interesado y sociedad en general.

Objectivos

Este proyecto multidisciplinar de doctorado tiene como objetivo general evaluar el nivel de coordinación regional y de integración con políticas medioambientales existentes que ha sido al- canzado durante la implementación de la Directiva Marco sobre la Estrategia Marina en la región del Atlántico Nororiental. A tal fin, se ha comparado la información proporcionada por cada Es- tado miembro en los informes nacionales, tomando en cuenta las evaluaciones hechas por la Co- misión Europea (incluso el Joint Research Centre y la Agencia Europea de Medio Ambiente) y por la OSPAR, junto con la más reciente revisión literaria. Se ha elegido la región del Atlántico Nororiental como área de estudio por su extensión, por su gran diversidad en elementos biológicos (de flora y fauna), por sus características ecológicas y

XV MARIANNA CAVALLO climáticas así como por la presencia de la mayoría de los sectores económicos marinos. Ésta re- gión, incluye cuatros subregiones que fueron determinadas en base a sus características biogeo- gráficas y climáticas: desde la subregión macaronesica que está caracterizada por climas húmedos (Azores) y cálidos (Canarias) hasta la parte boreal más fría que incluye Suecia y Finlandia. Las actividades económicas predominantes también varían a lo largo de la región. Por todas estas razones, dicha área pareció la más adecuada, ya que incluye todos los elementos que puedan determinar una diferente implementación de la Directiva entre países.

La tesis está estructurada en cinco capítulos. El primero introduce los principales requisitos y objetivos de la Directiva, junto con una descripción de las características de la región del Atlántico Nororiental y de las plataformas usadas por todas las partes interesadas para coordinarse e inter- cambiar sus visiones y preocupaciones. El segundo capítulo es un análisis comparativo entre las evaluaciones iniciales, las definiciones del Buen Estado Medioambiental y los objetivos establecidos por cada uno de los diez países de la región, para investigar el nivel de coherencia entre países y si una apropiada integración con datos, metodologías y objetivos de otras políticas puede llevar a una mayor coherencia. El tercer capítulo presenta los resultados de una encuesta sometida a los miembros del grupo responsable para la coordinación entre países para identificar los motivos que puedan determinar una no coherente implementación de esta directiva en las cuatros regiones marinas. El capítulo siguiente es un análisis exhaustivo de los programas de medidas desarrollados por los tres países de la subregión del Golfo de Vizcaya y Costas Ibéricas para ver si los países son capaces de coordinar sus acciones a una escala espacial menor. En el último capítulo se discuten los principales resultados y conclusiones donde se proponen soluciones para mejorar la coherencia en las fases futuras de la Estrategia Marina. Estos resultados también se pueden aplicar a otras regiones y a otras directivas europeas e internacionales sobre el medio ambiente.

Resultados

Primer resultado – Determinar las diferencias entre estrategias marinas nacionales

El primer objetivo de este proyecto, presentado en el capítulo 2, era destacar las diferencias entre las estrategias marinas nacionales de los diez países del Atlántico Nororiental, junto con una descripción de las principales plataformas disponibles para la coordinación regional y una revisión de la legislación internacional, comunitaria y regional, cuyo trabajo debería integrarse con el de la

XVI RESUMEN

Directiva. Además, se ha hecho un análisis de los problemas a los que se enfrentaron los países, respecto a la coordinación internacional, durante la implementación de otras políticas similares (por ejemplo, con la Política Pesquera Común y la Directiva Marco del Agua), y de cómo estos problemas han sido superados. La metodología empleada fue un análisis comparativo de los informes nacionales de cada país y de los informes de la Comisión Europea acerca de la primera fase de la Directiva. Concretamente, este análisis se ha concentrado en las evaluaciones iniciales, las definiciones de Buen Estado Me- dioambiental, y los objetivos establecidos en la región para cada uno de los once descriptores para determinar si una adecuada integración con los datos, metodologías y objetivos de la legislación pertinente puede llevar a una mayor coherencia. Los resultados han identificado las diferencias entre definiciones de Buen Estado Medioam- biental y objetivos tanto a nivel de región como de subregión. Los niveles más bajos de coherencia fueron identificados para los descriptores de biodiversidad (D1, D4, D6) donde, a pesar de las indicaciones proporcionadas en las líneas guías de la Comisión Europea y de la OSPAR, los países enfocaron sus estrategias sobre diferentes especies, hábitat y ecosistemas marinos. La conclusión principal que se ha sacado de este análisis es que el nivel de coherencia entre países durante la primera fase fue más alto cuando los datos, metodologías, objetivos, y listados de especies y contaminantes establecidos en la legislación existente han sido adecuadamente inte- grados. Mi sugerencia para alcanzar un mayor grado de coherencia entre estrategias nacionales en las futuras fases, es una mejor utilización de las plataformas existentes, como la OSPAR y el Grupo de Coordinación de la Estrategia Marina, que así permitan fomentar el dialogo sobre la identifica- ción de aspectos ecológicos, sociales y económicos en común entre países e integrar los objetivos de otras políticas.

Segundo resultado – Identificación de los obstáculos para una coordinación regional

Teniendo en cuenta las diferencias identificadas en la primera fase de la directiva y discutidas en el segundo capítulo, el objetivo siguiente ha sido investigar, a través de una encuesta, los motivos por los cuales los países no fueron capaces de coordinarse y de implementar de forma coherente la directiva. Esta encuesta recoge la opinión de los participantes en el Grupo de Coordinación de la Estrategia Marina, considerado el grupo de expertos mejor cualificados al cual dirigir cues- tiones relacionadas con la coordinación internacional. Para este estudio, el área se extiende a las

XVII MARIANNA CAVALLO cuatros regiones marinas europeas, con el fin de averiguar si las razones que se vislumbran detrás de los distintos niveles de coherencia variaban entre las regiones, como resultado, por ejemplo, de la mejor efectividad de las estructuras de coordinación regional o de las características ecológicas más homogéneas en regiones más pequeñas, cual el Mar Negro. A los participantes se les pidió identificar las fases y los descriptores donde es necesaria una mayor flexibilidad para cubrir las especificidades locales y nacionales, y otras donde un enfoque regional es más apropiado para gestionar asuntos transfronterizos y que, por lo tanto, tienen consecuencias en toda la región (por ejemplo, poblaciones marinas en peligro de extinción y establecer cuotas de pesca equitativas y responsables). Además, se les pidió establecer un ranking de acciones prioritarias necesarias para alcanzar el Buen Estado Medioambiental. Esta encuesta fue particularmente útil para conocer las distintas opiniones de los representantes de los Estados miembros (y si éstas varían según la región donde sus países están ubicados), de la Comisión Europea y de los Convenios Marinos Regionales, así como la opinión de stakeholders y ONGs. Los resultados han demostrado que las mayores dificultades fueron encontradas por parte de los países europeos que comparten la región marina con otros países no europeos. Por ejemplo, la región del Mar Negro y del Mar Mediterráneo incluyen mayoritariamente países que no pertenecen a la Unión Europea y que, por tanto, no tienen la obligación de cumplir los objetivos de la Direc- tiva. Otro aspecto importante surgido de este encuesta es el hecho de que las diferencias económi- cas entre países han fijado preferencias distintas de cada uno de ellos a la hora de cumplir la Di- rectiva, siguiendo mayoritariamente las necesidades nacionales en lugar de las regionales. Un resultado positivo es el hecho de que casi todos los participantes de la encuesta (incluso los Estados miembros, la Comisión europea y los grupos interesados) hayan reconocido la importancia significativa de un enfoque regional en la implementación de sus estrategias marinas y de la importancia de integrar de manera coherente otras políticas marinas asociadas. La conclusión general de este capítulo es que los países necesitan más tiempo para cumplir los objetivos de esta ambiciosa directiva y que un mejor uso de las plataformas establecidas a diferentes niveles representa la mejor manera de mejorar de coordinar las estrategias nacionales, a través de acuerdos voluntarios y a través de una continua adaptación de los acuerdos en función de los nuevos avances científicos y de las necesidades socioeconómicas.

XVIII RESUMEN

Tercer resultado – Evaluación de la coherencia a nivel de subregión en los programas de medidas

Esta evaluación ha sido posible mediante un análisis muy detallado de los informes nacionales sobre los programas de medidas de los países de la subregión del Golfo de Vizcaya y de la Costa Ibérica, que fue la subregión que mostró los niveles más bajos de coherencia durante la primera fase de la Directiva, como se detalla en el capítulo 2. Comparando los programas de medidas de los tres países incluidos en esta subregión, Francia, Portugal y España, se han identificado las principales diferencias en la información proporcionada, en las presiones antrópicas consideradas, la aplicación espacial de cada medida (local, regional o internacional), los análisis económicos y su integración con otras políticas. Los resultados confirmaron las dificultades de coordinar acciones para proteger y mejorar el estado de la biodiversidad marina incluso a nivel subregional, tal como he mostrado en los dos capítulos anteriores. También en este caso, la Comisión Europea y la OSPAR para mejorar la coherencia entre países, marcaron unas líneas guía con la lista de las principales políticas existentes, cuyas medidas habían sido previamente implementadas y que se tenían que integrar para evitar contraste entre objetivos medioambientales, desperdicio de recursos económicos, y conseguir re- ducir la incertidumbre entre los mayores sectores económicos, como pesquerías y navegación, cuyas actividades se desarrollan a lo largo de las cuatros regiones europeas. España y Francia presentaron programas más similares en términos de información proporcionada, de acuerdo con los requisitos de la Comisión y de OSPAR, mientras que el programa de Portugal presenta fallos en reportar los elementos obligatorios útiles para comparar los programas y determinar los efectos de estos, positivos o negativos, en las aguas de la subregión o de la región. Los tres países admi- tieron las dificultades en realizar el análisis económico de estas medidas que fue esencialmente cualitativo y que no toma en consideración los beneficios derivados por los servicios ecosistémico y del no uso de los recursos marinos.

Conclusión

La fecha límite para alcanzar el Buen Estado Medioambiental del 2020 está más cerca. Esta tesis concluye que la implementación de la Directiva Marco sobre la Estrategia Marina, de manera coordinada y coherente a lo largo de cada región marina se presenta como un gran desafío, y que los objetivos de esta directiva multisectorial son muy ambiciosos.

XIX MARIANNA CAVALLO

La coordinación regional y una adecuada integración con la legislación existente han demostrado ser esenciales para asegurar un enfoque ecosistémico en la gestión del medio ambiente marino y su preservación para las generaciones futuras. A través de un análisis detallado de las fases principales de la Directiva, se ha demostrado que los países no fueron capaces, o no tuvieron la voluntad, de hallar el justo equilibrio entre las exigencias nacionales y las necesidades globales de la región a la que pertenecen, y esto ha llevado a diferencias en el periodo de publicación de los informes, en el uso de las recomendaciones de las Comisión Europea y de la OSPAR, los objetivos ambientales y criterios e indicadores asociados, las definiciones de Buen Estado y sus medidas. Estas diferencias pueden ser el resultado de los impedimentos derivados por las diferentes características ecológicas, socioeconómicas, políticas y gubernamentales de cada país. Tal vez no fue posible y no será posible en el futuro, implementar esta directiva en una deter- minada escala espacial (regiones), más bien, será necesario establecer distintas escalas espaciales según la fase y según el descriptor. De hecho, en todos los capítulos emerge la necesidad de adoptar un enfoque regional, especialmente para proteger la biodiversidad marina de esas especies que tienen una distribución que desborda los límites nacionales o para gestionar esas actividades eco- nómicas cuyos efectos pueden afectar al medio ambiente de otros países (ejemplo, contaminación de grandes navíos y el impacto de pesquerías) y que, por lo tanto, requiere un esfuerzo coordinado y común para que sea efectivo. La recomendación final para superar estos problemas es un uso más exhaustivo de las distintas plataformas sociales que ya han demostrado ser útiles durante la implementación de otras directivas y acuerdos internacionales. De todos modos, hay que reconocer, que alcanzar un acuerdo co- mún de manera voluntaria requiere largos periodos de discusión y negociación, que el estricto programa de la Directiva no ha permitido hasta ahora.

XX Acknowledgements

This thesis was partially funded by the University of Vigo and by the Campus do Mar visiting scholarships. This research was also partly supported from the DEVOTES (DEVelopment Of innovative Tools for understanding marine biodiversity and assessing good Environmental Status) project funded by the European Union Seventh Programme for research, technological development and demonstration, ‘The Ocean of Tomorrow’ Theme (grant agreement no. 308392), www.devotes- project.eu. Thanks are also due to CESAM (UID/AMB/50017/2013), to FCT/MEC through national funds, and the co-funding by the FEDER, within the PT2020 Partnership Agreement and Compete 2020. I would like to express my sincere gratitude to my three supervisors for the time they dedicated to this thesis and for the support they gave me during my stays in their departments. I thank the European Maritime Safety Agency, and in particular, the Marine Environment Sector for the support provided during the traineeship and for introducing me to the European and international legislation that regulates the shipping sector. Special thanks go to the University of Aveiro (CESAM), the University of Hull (IECS) and the University of York for hosting me and providing me with the best conditions to carry out my research.

XXI Abbreviations

BD Birds Directive CBA Cost-Benefit Analysis CEA Cost-Effectiveness Analysis CFP Common Fisheries Policy CIS Common Implementation Strategy EC European Commission EU European Union FAO Food and Agriculture Organization of the United Nations GEnS Good Environmental Status GEcS Good Ecological Status HD Habitats Directive HELCOM Helsinki Commission (Baltic Marine Environment Protection Commission) ICES International Council for the Exploration of the Sea IMO International Maritime Organisation IUCN International Union for Conservation of Nature MPA Marine Protected Area MSCG Marine Strategy Coordination Group MSFD Marine Strategy Framework Directive MSP Marine Spatial Planning NGO Non-Governmental Organization OSPAR Oslo-Paris Convention PoM Programme of Measures RSC Regional Seas Conventions UN CBD United Nation Convention on Biological Diversity UNEP United Nation Environmental Programme WG DIKE Data, Information and Knowledge Exchange on the marine environment WG ESA Management, measures, economic and social analysis of human activities affecting the marine environment WG GES Assessment and Monitoring of the marine environment

XXII

Chapter 1 Introduction

1.1. The need for an ecosystem-based management of EU seas

Oceans are among the most productive ecosystems and provide many valuable services to society (UNEP, 2011). These services are essential for societal well-being and economic growth and include coastal protection from flooding and erosion, food and trade, recreation and tourism, and other cultural and spiritual benefits (Cardinale et al., 2012; Maes et al., 2013; Atkins et al., 2013, IOC-UNESCO and UNEP, 2016). The oceans also regulate the global climate and it has been estimated that they have already absorbed about 30% of the carbon dioxide that human activities have released into the atmosphere (IPCC, 2013). In Europe, 41% of the population lives on the coastal areas (Eurostat, 2011). This is expected to increase as a result of the great opportunities offered by the Blue Growth, defined as a long- term strategy to support sustainable growth of maritime activities, that is playing a central role in the European economic recovery (EC, 2012a; EC, Annex 2014). Economic development of coastal areas brings, together with benefits for the society, changes in the structure and functioning of marine ecosystems (Elliott et al., 2017). These changes include over-exploitation of natural resources, biodiversity loss, diffuse contamination and global warming. For example, benthic invertebrates are under pressure due to intensive fishing as heavy-beam trawling. Unsustainable fishing has increased the by-catch and discards of vulnerable species that take a long time to recover (namely sharks, rays, seabirds, and other large animals) (EEA, 2015). The introduction of contaminants and nutrients from land via river and atmospheric deposition, also has a severe impact on coastal and open ocean ecosystems worldwide. Moreover, marine litter, as an emergent form of pollution from both land-based and sea-based activities, has a widespread impact that ranges from the shores to the deepest parts of the seas. Other marine pressures in form of energy inputs, such as underwater noise and electromagnetic fields, have only recently emerged and their impact is poorly understood (Van der Graaf et al., 2012). Overall, European seas are threatened by multiple pressures and little is known about the cumulative effects of these pressures on marine ecosystems (EEA, 2015). Therefore, it has become crucial to assess the conditions of these ecosystems and manage them with a holistic and integrated approach (Elliott, 2014). The European Union has recently adopted an ecosystem-based management of maritime activities with the Integrated Maritime Policy (EC, 2007); this aims to increase coherence between

1 MARIANNA CAVALLO marine sectors by adopting the Maritime Spatial Planning; and to promote a sustainable use of marine resources through the Marine Strategy Framework Directive (EC, 2008; Borja et al., 2017). The main aim of the study is to analyse the level of regional coordination and coherence in policy integration achieved by the countries of the North-East Atlantic region during the implementation of the main phases of the EU Marine Strategy Framework Directive. The chapter is structured as followed: Section 1.2 introduces the main requirements of the directive and the main coordination structures, which are essential to understand the issues discussed throughout the thesis. Section 1.3 presents a description of the characteristics of the marine region selected for the study and finally, in Section 1.4 are described the three objectives.

1.2. The Marine Strategy Framework Directive (MSFD)

1.2.1. Requirements and phases The MSFD establishes a framework within which Member States shall take the necessary measures to achieve or maintain good environmental status (GEnS)1 of the marine environment by the year 2020 at the latest (MSFD, Paragraph 29). National marine strategies developed to meet this objective “shall apply an ecosystem-based approach to the management of human activities, ensuring that the collective pressure of such activities is kept within levels compatible with the achievement of GEnS and that the capacity of marine ecosystems to respond to human-induced changes is not compromised, while enabling the sustainable use of marine goods and services by present and future generations”. This Framework fosters the integration with existing policies and the coordination among countries to improve coherence and consistency among national marine strategies. These requirements, if met, will ensure that activities performed by a country do not cause damage beyond its marine waters, and will avoid that damage or hazards are transferred from one area to another (UNCLOS, Article 194)2. Regional coordination. The directive states that Member States have to develop national marine strategies that are specific for their waters but that also reflect the overall perspective of the marine region or sub-region concerned (MSFD, Paragraph 11). Regional coordination is important

1 There is potential confusion between terms in using GES for Good Ecological Status in the Water Framework Directive and Good Environmental Status in the MSFD – Borja et al. (2010) and Mee et al. (2008) suggest a change of acronym respectively to GEcS and GEnS. Although this has not been widely adopted, the terms are used here for clarity. 2 http://www.un.org/depts/los/convention_agreements/texts/unclos/part12.htm

2 CHAPTER 1 during the implementation of all the phases of the directive and can be achieved using existing cooperation structures, such as the four Regional Sea Conventions (MSFD, Paragraphs 10, 13), namely the Oslo-Paris Convention (OSPAR) for the North-East Atlantic Ocean, the Helsinki Con- vention (HELCOM) for the Baltic Sea, the Barcelona Convention (UNEP MAP) for the Mediter- ranean Sea and the Bucharest Convention (BSC) for the Black Sea (Figure 1) Policy integration. The policies that should be integrated in national strategies are mainly related with the protection of biodiversity, namely the EU Habitats Directive and Birds Directives which already contribute to the achievement of the objectives established by the Convention of Biological Diversity (MSFD, Paragraphs 6, 18). The directive contributes also to fulfil the obligations of international agreements relating to the prevention of pollution (MSFD, Paragraph 19) and the Water Framework Directive (WFD) (MSFD, Paragraph 12), the Common Fisheries Policy (CFP) and the International Council for the Exploration of the Sea (ICES) (MSFD Paragraphs 9, 39) to ensure complementarity among objectives and avoid overlaps.

Figure 1 Illustrates the four marine regions and their sub-regions: the Baltic Sea, the Black Sea, the North-East Atlantic Ocean and the Mediterranean Sea. These two last regions are further divided into four sub-regions: (i) the Greater North Sea, ii) the Celtic Seas, (iii) the Bay of Biscay and the Iberian Coast, and the (iv) Macaronesian for the North-East Atlantic and the (i) the Western Mediterranean Sea, (ii) the Adriatic Sea, (iii) the Ionian Sea and the Central Medi- terranean Sea, (iv) the Aegean-Levantine Sea for the Mediterranean Sea. Adapted from EEA3

3 https://forum.eionet.europa.eu/nrc-marine-coastal-and-maritime/library/2015-consultations/spatial-analysis/2.2- definition-mpa-assessment-areas

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Implementation phases. The first phase, or preparatory phase, includes the initial assessment (Article 8), the GEnS definition (Article 9) and the establishment of environmental targets (Article 10), while the second phase involves the implementation of the monitoring programmes and of the programmes of measures (Figure 2).

Figure 2 Timeline of the first cycle of the implementation of the Marine Strategy Framework Directive. These phases have to be repeated every 6 years.

The initial assessment included i) an analysis of the essential features and characteristics of national waters, based on the indicative lists of elements set out in Table 1 of Annex III (see Ap- pendix), and covering the physical and chemical features, the habitat types, the biological and the hydro-morphological characteristics; ii) an analysis of the predominant pressures and impacts and iii) an economic and social analysis of the use of those waters and of the cost of degradation of the marine environment. To produce a comprehensive assessment, the analyses shall take into account other relevant assessments such as those carried out jointly in the context of Regional Sea Con- ventions (RSC) and the WFD (Article 8(2)). On the basis of such assessments, countries had to determine the GEnS for the eleven qualitative descriptors listed in Annex I (Figure 3) (see Appendix)

4 CHAPTER 1

Figure 3 The eleven qualitative descriptors for determining GEnS listed in Annex I of the directive.

Environmental targets have been established together with the associated indicators, listed in the COM Decision 2010/477/EU (EC, 2010) and repealed by the COM Decision 2017/848/EC (EC, 2017), to guide progress towards GEnS. According to Article 10(1), National targets should be coherent with those established by the other countries of the same region, to ensure that they are compatible and that relevant transboundary impacts and features are also taken into account. Coordinated monitoring programmes have been implemented for the ongoing assessment of the environmental status of national marine waters on the basis of the indicative lists of elements set out in Annex III of the directive (see Appendix). These programmes should be coherent across the regions and sub-regions and be compatible with those laid down by Community legislation, including the Habitats and Birds Directives and international agreements. The last phase of the directive involves the development and the implementation of the national programmes of measures to achieve or maintain the determined GEnS. Measures already in place have to be integrated, in particular those under the WFD, Habitats and Birds Directive and other legislation in the field of EU water policy or international agreements (Article 13(2)).

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The programme of measures should be drawn up taking into account the social and economic impact that they might have on national waters. Member States shall ensure that measures are cost- effective and technically feasible. Moreover, countries must consider the impact, positive or negative, of their measures on waters beyond their national borders (Article 13(8)). Recommendations for Community action. Cooperation at regional and sub-regional level is particularly important during the programme of measures to ensure that actions are coherent. Un- der Article 15, the MSFD allows Member States to make recommendations where community action is necessary to address those impacts in national marine waters which cannot be tackled by measures adopted at national level. Community financing. The implementation of this directive shall be supported by existing Community financial instruments (Article 22). Exceptions. Article 14 contains a number of exceptions that can prevent Member States to meet the MSFD requirements and that have to be clearly identified in the programmes of measures. For example, the GEnS cannot be achieved because of the action or inaction for which the Member State concerned is not responsible or for natural causes (Article 14(1)a-e)). Moreover, countries are not required to take specific actions where there is no significant risk for the marine environment, or where the costs would be disproportionate (Article 14(4)). The Commission shall assess whether the national programmes of measures meet the requirements of the MSFD and may ask the Member State concerned to provide additional information. Updating and reviewing. All the phases mentioned above have to be updated and adapted every six years in the light of scientific and technical progress (Article 17 and Article 24). Public consultation. Member States have to ensure that all interested parties are given early and effective opportunities to participate in the implementation process, involving existing structures, including RSC, Scientific Advisory Bodies and Regional Advisory Councils. The reports on the phases of the MSFD (targets, measures and GEnS) shall be published and be available for comments (Article 19).

1.2.2. MSFD coordination structures and social platforms

An understanding of the type and role of the main coordination structures and social platforms is the first step to identify any impediment that can prevent countries to implement the MSFD in a coherent way. Together with the four RSC, which are responsible to coordinate actions and views among countries of a given region, the EC established the Common Implementation Strategy (CIS)

6 CHAPTER 1 to support a coherent and harmonious implementation among all the countries of the four marine regions (CIS, 2013). The CIS encompasses a considerable network of experts and expertise that has supported the implementation of the MSFD since its adoption and has contributed to build trust and understanding on its implementation. This has regular participation from EU Member States and the EC, RSC, the Accession and Neighbouring countries, other international organisations and stakeholders (including industry and NGOs). All these parties operate through three permanent working groups (WGs) and some ad-hoc and temporary groups (TG). The WG on Assessment and Monitoring of the marine environment (WG GES) aims to develop a common understanding of the assessment and monitoring requirements of the MSFD, to ensure a high level of coherence, comparability and consistency of the approaches within and between the marine regions. The WG on Data, Information and Knowledge Exchange on the marine environment (WG DIKE) focuses on the practical arrangements for reporting under the MSFD as well as for data sharing and/or making data available. In addition, the WG will explore the links to other relevant legislation where the MSFD can benefit from, in particular, the WFD and WISE (Water Infor- mation System in Europe), Marine Knowledge, EMODnet, Copernicus, INSPIRE and others (CIS, 2013). The WG on Economic and Social Analysis of human activities affecting the marine environment (WG ESA) supports a coordinated approach as regards the measures to be taken and the economic and social analysis, building on the experience acquired under the WFD. It also seeks to ensure a similar (high) level of ambition across the EU. This platform also supports the exchange of information on effectiveness of public participation processes and encourage best practices (CIS, 2013). The Marine Strategy Coordination Group (MSCG) is responsible for approving the guidelines provided by each WG and to report to national Marine Directors whose role is focused on more political and high level issues that could not be resolved in MSCG (CIS, 2013). The thesis analyses mainly the issues discussed by the MSCG because of its leading role as coordination structure and social platform.

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Figure 4 Coordination structures and platforms in support of a coordinated and coherent implementation of the MSFD Adapted from http://ec.europa.eu/environment/marine/eu-coast-and-marine-policy/implementation/index_en.htm

Representatives of the four European RSC are involved in the CIS as observers and they also provide a platform to facilitate compliance of their contracting parties with the MSFD obligations (CIS, 2013). Voluntary bilateral and trilateral meetings are organised to discuss specific issues between adjacent countries. For example, in 2011 the UK, the Netherlands, Belgium and Germany held a number of meetings to harmonise their approaches for the initial assessment (OSPAR, 2012a). Spain, Portugal and France held joint meetings to share information on methodologies and measures (OSPAR, 2012a; Trilateral Portugal-France-Spain Meeting, 2015). In 2013 a brainstorming meeting was organised by German and Sweden to improving coordination between the OSPAR, HELCOM and the EC on the MSFD implementation (Meeting 24/25 October 2013, Bonn).

1.3. The North-East Atlantic region

To identify the problems related to a coherent implementation of the directive among countries of the same region, the study focused on a specific region, the North-East Atlantic region (NEAR), because it is characterised by a great variety of ecological and climatic conditions as well as the presence of the most important socio-economic sectors that can determine differences among national strategies.

8 CHAPTER 1

The NEAR is the largest EU marine region, at 7 835 000 Km2, and has been divided into four sub-regions (Figure 1) according to their biogeographic characteristics. It includes ten EU Member States, namely Belgium, Denmark, France, Germany, Ireland, the Netherlands, Portugal, Spain, Sweden and the United Kingdom (EC, Annex 2014). The region presents a wide range of sea- scapes, with fjords, estuaries and rias, cliffs of varying heights and rock types, bays and estuaries, sandy beaches, subtidal sandbanks and reefs, dunes and archipelagos. In general, the coastal cities of the NEAR are highly populated and characterised by the presence of many economic activities such as fishing, offshore oil and gas exploration, the laying of pipelines, extraction of sand and gravel, dumping of dredged material, the laying of cable routes and energy cables and as transport routes4. Regional biodiversity is threatened directly and indirectly by the cumulative impact of these activities. For example, the intense fishing activity has led to the virtual extinction of elasmobranchs (e.g. rays, skates, sharks) in the Bay of Biscay, and most of the commercial fish stocks are outside ‘safe biological limit’ in the entire region (OSPAR, 2000a; EEA, 2002) including cod, hake, saithe, plaice, sole, sardine, anglerfish, and megrims. By- catch and discarding are also a concern for the marine biodiversity in this area. The average discard rate for bottom trawls is about 50% while gillnets have an average discard rate of 25% and long lines only 9% (EEA, 2008). Moreover, discarding introduces a large organic load to the fishing areas, giving favourable conditions for smaller opportunistic species and scavengers; while the catch of undersized fish and non-targeted species (e.g. sharks, dolphins and turtles) is a serious threat to such stocks. The introduction of non-indigenous species from aquaculture and biofouling represents another major concern; e.g. the pacific oyster (Crassostrea gigas) which has been imported from Japan, the Japanese seaweed (Sargassum muticum), common cord grass (Spartina anglica), the barnacle (Elminius modestus), slipper limpet (Crepidula fornicata), and the oyster parasite (Bona- mia ostrea) (EEA, 2008). The OSPAR Commission, established under the UN Convention on the Law of the Sea (UN- CLOS) is the competent regional organisation guiding international cooperation on the protection of the marine environment of the North-East Atlantic5.

4 http://www.protectplanetocean.org/explore/northeastatlantic 5 https://www.ospar.org/about/principles

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OSPAR coordination structures should be used to ensure that (i) monitoring methodologies are consistent across the region; (ii) environmental targets are mutually compatible; (iii) relevant transboundary impacts and transboundary features are taken into account (OSPAR, 2010a). EU Member States of this region agreed to use OSPAR Commission as the main platform through which they coordinate their work to implement the MSFD. The OSPAR ICG-MSFD is the Intersessional Correspondence Group that was constituted to support countries during the implementation of the MSFD. It includes several other ICG: ICG-COBAM (Intersessional Corre- spondence Group-Coordination of Biodiversity Assessment and Monitoring); ICG Eutrophication, ICG Marine Litter, ICG Environmental Assessment Criteria, ICG on Cumulative Impacts of Hu- man Activities and ICG Socio-Economic Analysis (OSPAR, 2012a). Furthermore, in 2010 OSPAR adopted the North-East Atlantic Environmental Strategy (OSPAR, 2010a) which encompasses the MSFD objectives. Since 2010, the OSPAR monitoring and assessment has been guided by the Strategy for the Joint Assessment and Monitoring Pro- gramme (JAMP) which includes, in particular, the Coordinated Environmental Monitoring Pro- gramme (CEMP). More support to a comprehensive assessment of the main environmental issues in the NEAR comes from OSPAR Quality Status Report (OSPAR, 2010b). Moreover, OSPAR adopted a number of Ecological Quality Objectives (EcoQOs) and also a set of common indicators for some of the MSFD descriptors.

1.4. Objectives

As mentioned in the introduction of this chapter, the main aim of the study is to analyse the level of regional coordination and coherence achieved by the countries of the North-East Atlantic region during the implementation of the first cycle of the EU Marine Strategy Framework Directive. This aim has been elaborated on the basis of the weaknesses identified by the CIS (CIS, 2013), the JRC (EC, JRC 2014), the EEA (EEA, 2015) and the EC assessment under article 12 (EC, 2014a; EC, Annex 2014) with a special focus on the issues related to the regional coordination and policy integration. The aim has been divided into three objectives which are addressed in the three following chapters and discussed in Chapter 5 together with some recommendations on how the MSFD can be implemented in a more coherent and coordinated way across the NEAR.

10 CHAPTER 1

The data to carry out this research has been gathered from different sources, namely national, regional and EC reports, which present many differences in the way words such as regional coordination, policy coherence, social structures are used and interpreted. For this reason, it is necessary to clarify the meaning of some words that are widely used in this thesis:  Coordination and cooperation: in general, refer to the international cooperation among countries of the same region or sub-region and are used as synonymous;  Coherence: this word is often used in the EC reports, however, it is ambiguous and its meaning has not been clarified. Here ‘coherence’ is used to refer to similar (but not identical) GEnS definitions, targets, methodologies used for the initial assessment and the programmes of measures. Coherence is also used to indicate a similar integration with environmental policies e.g. the coherent integration of the OSPAR list of species and habitats or WFD Good Ecological Status definition. Other words such as harmonious and homogenous are used as synonymous.  Environmental policies or legislation: In most of the cases, these are used as synonymous and refer to all European and international policies, directives, agreements, conventions and regulations.  Coordination structures and social platforms: unless specified, they refer to the structures described in section 1.2.2. Forum and social networks are also used as equiva- lents.  Stakeholders: refer specifically to the representatives of the maritime economic sectors.

1.4.1. First objective – What are the main differences among national strategies of the North-East Atlantic region?

According to the CIS Strategic Document on the lessons learned and the work programme for the future implementation of the directive (CIS, 2013) the complex interaction between the MSFD and other policies requires more discussion to be able to benefit from them and avoid duplication. It also highlights technical and scientific gaps that have to be filled by exchanging knowledge at various levels (local, national, regional). The Joint Research Centre (JRC) report (EC, JRC 2014) is a review of the differences in the way countries have integrated existing work from other policies in the first phase of the directive.

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It shows that the integration of the work from the Habitats Directive, Birds Directive, WFD, CITES and Bonn Convention with D1-Biodiversity, D4-Foodweb and D6-Seafloor was highly heteroge- neous despite the potential overlap between pieces of legislation. For D2-Non-indigenous species, national reports gave scarce details of the methodologies adopted in the initial assessment. Most of the countries provided a list of the Non-indigenous species, but only few assessed their impact on particular ecosystems or vectors related to each invasive species. The GEnS definitions for this descriptor were also varied: in some cases, they were defined through vectors and pressures, else- where through reporting the definition in the MSFD or COM Decision 2010/477/EU (EC, 2010) indicators (EC, JRC 2014). For D5-Eutrophication, the JRC analysis concludes that, the reporting sheets provided limited details on the application of methodologies preventing the direct comparison between reported thresholds, baseline and limits. Finally, the EC assessment of the first phase of the MSFD (EC, 2014a; EC, Annex 2014) recognises the efforts made by Member States to implement the MFSD but it also points out the lack of cooperation and classifies the level of coherence among national strategies into low, moderate and high for the four regions. In general, the lowest levels regard biodiversity descriptors (D1, D4, D6), where Member States reported on different species and habitats lists, some of them ignoring those set by the Habitats Directive. The same heterogeneity was found in the list of contaminants adopted by each country, in relation to the WFD list. Only a few Member States clearly stated that all fish stocks should be exploited at or below maximum sustainable yield levels. With regards to the GEnS, the EC assessment identified over 20 different definitions of GEnS across the EU, and therefore no common or comparable goals. Taking into consideration such weaknesses, the first objective was to analyse the role of coordination platforms of the NEAR and review the international, European and regional legislation whose scope needs to be integrated with the MSFD. Moreover, it was necessary to give the lessons learned so far during the implementation and coordination of other environmental policies (e.g. the Common Fisheries Policy and the Water Framework Directive), to determine the problems faced by countries during their implementation and if so, whether these problems have been overcome. The initial assessments, GEnS definitions and environmental targets established by the ten countries of the NEAR were compared for each of the eleven descriptors to investigate whether a proper integration with data, methodologies and objectives from the related pieces of legislation

12 CHAPTER 1 led to higher levels of coherence. This involved a comparative analysis of the national reports (documents translated by Milieu Ltd) and the EC reports about the first phase of the MSFD.

1.4.2. Second objective – What are the impediments hampering regional coordination?

Having identified the differences in the implementation of the MSFD in the North-East At- lantic region, the second objective was to investigate the impediments that are preventing countries achieving a high level of regional coherence by an on-line survey. The questions of the survey were formulated on the basis of the problems identified by the official reports of the EC agencies and the most recent literature. For example, regarding the effectiveness of the coordination structures, the CIS (2013) highlights the need for its Working Groups to re-focus their tasks to better support the Marine Strategy Coordination Group, especially for what concerns coordination with the work of the RSC on similar issues, and also more cooperation between the Working Groups to address issues jointly, when necessary. The JRC (EC, JRC 2014) report explains why, in some cases, the scale of region/sub-region is too large for an accurate assessment and smaller subdivisions may be therefore necessary, depending on the topic, for example eutrophication. It also concludes that the differences among countries approaches in their initial assessment, the definition of GEnS and the targets are the result of the flexibility in the interpretation of MSFD implementation. In particular, the GEnS and the targets are reported on pressure level, on impact or on a combination of both (EC, JRC 2014). In most cases, especially when GEnS and targets are applied on pressures, there are no measurable methodological approaches accompanied by thresholds and limits. This causes a twofold compli- cation to the assessment of MSFD implementation, because of the incomparability to set GEnS/targets between neighbouring countries and the inability to assess whether the GEnS or the targets are achievable (EC, JRC 2014). Both the CIS (2013) and the European Environmental Agency (EEA, 2015) highlights that the lack of knowledge on the status of several ecosystem components could be at the basis of the differences among countries and the need to fill those technical and scientific gaps exchanging knowledge at various levels (local, national, regional). According to the EEA report, the information on the status of highly mobile species at regional level (e.g. some fish stock and marine mammals) is difficult to obtain, fragmented and often lacks of coherence among countries (EEA, 2015). With regard to policy integration, the EEA (2015) concludes that Member States often do not take into account even their existing obligations under other EU Directives when they outline the targets by which

13 MARIANNA CAVALLO they intend to reach GEnS and emphasises the need to better understand how different policy targets relate to each other, from a science, policy and management point of view. Finally, the EC (EC, 2014a; EC, Annex 2014) considers the support provided by the RSC adequate, but the Member States use of regional coordination structures varies. As a result, coherence varies widely across the EU and is higher in some regions and for some descriptors, but the overall levels are moderate to low (EC, 2014a). The report also finds lack of consistency between the initial assessment, the determination of GEnS and the targets established by each country. In fact, some Member States did not distinguish clearly between the determination of GEnS and the targets themselves, or did not take into account their initial assessment in developing targets. The survey aimed at understanding how each of these factors have contributed to the differences among national strategies and whether there are any other reasons that impede regional coherence and gave Member States representatives the possibility to explain such divergences. The survey collected the views of the participants of the MSCG since this was considered the most suitable group of experts to address issues related to international coordination. In this case, the area of study was extended to the four regions to determine differences among regions, for example, as a result of the effectiveness of (regional) coordination platforms. The participants were asked to identify the phases of the MSFD and the descriptors where more flexibility is needed to address local and national specificities and other where a regional approach is more appropriate to address transboundary issues (threatened marine populations and economic activities). Moreover, they were asked to rank a number of priority actions that need to be taken to achieve the GEnS of marine environment. The survey was particularly valuable in providing the different views of Member States (according to the region in which they are located), the EC and Regional Seas Conventions representative as well as the opinion of economic stakeholders and NGOs.

14.3. Third objective – What is the level of coherence at sub-regional level in the adopted programmes of measures?

Meeting this objective required a more detailed analysis of the original reports on programmes of measures of the Bay of Biscay and Iberian coast sub-region which was the sub-region that showed the lowest levels of coherence in the first phase of the MSFD according to the EC assessment (EC, 2014a). The programmes of measures of the three countries included in the sub-region – France, Portugal and Spain – were compared to identify the main differences in the reporting, human pressures addressed, spatial coverage, economic analysis and integration with other policies.

Chapter 2

The ability of regional coordination and policy integration to produce coherent marine management

Note that this chapter is the summary of the paper presented as annex: The ability of regional coordination and policy integration to produce coherent marine management: Implementing the Marine Strategy Framework Directive in the North-East Atlantic. 2016 Marine Policy 68:108– 116 Marianna Cavallo, Michael Elliott, Julia Touza, Victor Quintino

Summary

Cooperation among countries is essential during the implementation of marine policies to manage transboundary marine resources and impacts. At the EU level, the MSFD was adopted to maintain and, where necessary, improve the status of the marine environment, promoting regional coordination and fostering a coherent policy integration. In 2012, Member States published their national reports on the first implementation phase of the MSFD, including the initial assessment, GEnS definitions and targets and, in 2014, the EC assessed their levels of adequacy, consistency and coherence. This chapter considers the results on the levels of coherence (high, medium and low) among the ten countries of the NEAR and, using the information gathered in national reports, presents the main differences in the approaches adopted. The comparative analysis shows that, in general, the integration with the work of related environmental policies, namely data, methodologies and targets, corresponds to the higher levels of coherence among countries while a limited use of such policies produces less coherence. To improve coherence among national strategies in the future steps of the directive implementation, it is suggested here that Member States, EC and Regional Seas Conventions should work together using the existing coordination and social structures to identify the connection between the MSFD and related international and European environmental policies to harmonise policy objectives and avoid overlaps.

Chapter 3

Benefits for and impediments to the integrated and coordinated management of European seas

Abstract

New multi-sectoral policies with a regional implementation are developed when maritime states recognise the importance of managing the marine environment under an ecosystem-perspective rather than a use-perspective. At the European level, the MSFD is the first attempt to promote an integrated management of the seas from the coastline to the Exclusive Economic Zone. This chapter shows that, nine years from its adoption, there remain several ecological, economic, social and governance challenges. The obstacles are identified which prevent a successful regional cooperation and policy integration using information gathered in a dedicated survey and in the recent literature. This indicates that the MSFD coordination structures are, in general, well-developed but there is an apparent lack of political will to coordinate actions at the regional level. Member States ask for more flexibility to implement the directive but putting their national interests before the benefit of a coherent and integrated approach for the entire region/s. Differences in budget, economic sector predominance, lack of staff and the MSFD short time-scale were identified as the factors that can hamper cooperation. This has produced possible strategies for achieving coordination which respect the subsidiarity principle underpinning the MSFD.

Keywords: Regional Coordination, Policy Integration, MSFD, Integrated Management, Ma- rine Governance.

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3.1. Introduction

Maritime states are facing new challenges worldwide and the adoption of an integrated (Cruz and McLaughlin, 2008) and coordinated marine management is becoming an urgent issue requiring marine legislation. The United Nations Law of the Sea Convention Agenda 21 calls for “new approaches to marine and coastal area management and development, at the national, sub-regional and global levels, approaches that are integrated in content and precautionary and antici- patory in ambit”6. An integrated marine governance approach has been adopted when coastal countries replaced sectoral policies with new policies that regulate a wide range of socio-economic activities (Cruz and McLaughlin, 2008). At the same time, transboundary management is more effective at the level of large marine ecosystems and/or sea regions (Mee et al., 2008), resulting in several structures and platforms being developed at the regional sea level. Regional Conventions have existed since 1970s, which express in clear terms the commitment and political will of governments to tackle their common environmental issues through joint coordinated activities7. These RSC were designed initially to address mainly the impact of pollution but did not regulate fisheries (Mee et al., 2008) and shipping. Only recently have these conventions been extended to include the protection of biodiversity. The same trend was observed in EU policies, which moved from a sectoral to a more holistic marine management approach (i.e. managing the whole system rather than individual sectors such as shipping, energy, etc…); for example, the adoption of the WFD and other Framework Directives (Boyes and Elliott, 2014). The Clean Water and Oceans Acts in the US have similar aims (Ocean Act, 2000). Marine management has long accommodated a vertical hierarchy of governance from the local to the global (Elliott, 2014; Boyes and Elliott, 2014) and ecosystem governance (i.e. policies, politics, administration and legislation) should be pluricentric where arrangements are taken at local, national and supra-national levels (see Ostrom, 1998; Stoker, 1998; Hooghe and Marks, 2003; van Kersbergen and van Waarden, 2004), while characterized by non-hierarchical methods of control (Olsson et al., 2007). There has been a mismatch between the ecological and management scales in the openness and high connectivity between marine areas for their ecological components require similarly-connected governance. Some of the consequences of this mismatch have

6 http://www.un.org/depts/los/consultative_process/documents/A21-Ch17.htm. 7 At the present, more than 143 countries participate in 15 Regional Seas programmes: Black Sea, Wider Caribbean, East Asian Seas, Eastern Africa, South Asian Seas, ROPME Sea Area, Mediterranean, North-East Atlantic, Baltic, North-East Pacific, Northwest Pacific, Red Sea and Gulf of Aden, South-East Pacific, Pacific, and Western Africa

18 CHAPTER 3 been the decline of fish stocks (Wilson, 2006), alteration of food webs, biodiversity loss, increasing pollution (Maier, 2014) and, more generally, the loss of future economic opportunities (Duda, 2004). For example, in Europe, the CFP provided strong institutional tools at the central EU level for fisheries management but has not led to sustainable fisheries exploitation (Hegland et al., 2012). With its last reform, the efficiency and legitimacy of the CFP aims to benefit from a regional implementation where the decision-making process takes place at a level closer to the specific fisheries (Raakjaer et al., 2012). Achieving an integrated management is not straightforward, since sectoral policies have a specific set of governance arrangements (Van Tatenhove, 2013), different economic strengths and political influence (Ounanian et al., 2012). Moreover, maritime activities occur at different spatial levels, from fixed structures (e.g. oil and gas extraction) to temporary and mobile activities (e.g. fishing and shipping) that occupy the three dimensional marine space (Van Tatenhove, 2011). Despite these difficulties, successful policy integration and international cooperation brings many benefits from the ecological, political and socio-economic perspectives. For example, it is essential to address and prevent the impact of diffuse pollution (e.g. caused by shipping), as well as to manage many fish stocks whose distribution is larger than a single Exclusive Economic Zone (Freire-Gibb et al., 2014). Economic benefits can be achieved with lower costs if cost-effectiveness is analysed across countries (see e.g. Neumann and Schernewski, 2001) and measures will be more effective if coordinated across borders between different countries (Hegland et al., 2012; Bertram et al., 2013). The political advantages of a coordinated implementation of environmental policies are related to the effectiveness of the structures and networks that are used to overcome conflicts among marine sectors as well as negotiate political decisions among governments. These structures are more valuable if all the parties have the opportunities to discuss their position from early stages (Maier, 2014) and throughout the whole implementation process (Berkes, 2009). This chapter identifies the obstacles to an effective coordination and integrated implementation of marine policies which are essential to achieve an ecosystem-based management of maritime activities. Therefore, the analysis uses as an example the implementation of the MSFD and its coordination platforms. In particular, the study investigates the effectiveness of existing coordination structures that support countries in the implementation of the MSFD and evaluates whether it is possible to implement the directive in a coordinated way given the diversity in marine habitats as well as political and socio-economic landscapes within the four regions identified in the di-

19 MARIANNA CAVALLO rective – the Baltic Sea, the Black Sea, the Mediterranean Sea and the North-East Atlantic Ocean. This is achieved through an on-line survey covering the basis of the main weaknesses identified by the European Commission (CIS, 2013; EC Annex, 2014; EEA, 2015). The MSFD is one of the directives approved in 2008 by European Member States in the context of the Integrated Maritime Policy8 to foster collaboration among countries to improve in the long-term the status of the marine environment. This framework was the result of an extensive consultation process initiated in December 2002 with stakeholders and actors from EU and non- EU countries (Long, 2011; Markus et al., 2011), to identify best practices for marine management and exchange experiences. The views collected during the consultations were included by the Commission in the Proposal of the MSFD of the European Parliament and of the Council (COM, 2005). Some Member States were against the interference of the EU in marine affairs and many were concerned about a binding regional approach. Finally, it was established that each country should propose definitions of GEnS for their waters (Mee et al., 2008; Borja et al., 2013) and that such definitions will be assessed by the EC to ensure a coherent and coordinated regional implementation of the MSFD among the Member State strategies. The framework has been transposed into national legislation by specific marine strategies, whose preparation started with the assessment of the characteristics of marine waters (Article 8) including a detailed study of the main pressures and impacts and an economic and social analysis. On the basis of such an assessment, Member States defined what they considered GEnS of their marine waters (Article 9) and established a set of environmental targets to achieve it (Article 10). During the period 2015–2016, Member States were developing and implementing their programmes of measures to achieve GEnS (Article 13). These steps will be revised and repeated during the second 6-year cycle (starting in 2018) taking into account the experience gained.

3.2. Methodology

3.2.1. Survey of the Marine Strategy Coordination Group (MSCG)

The MSCG was considered the most suitable group of experts to be addressed in the survey. This group is one of the platforms of the CIS where representatives of the Member States, stakeholders, international organisations, NGOs, EC and RSC gather to discuss their concerns, identify

8 http://ec.europa.eu/maritimeaffairs/policy/index_en.htm.

20 CHAPTER 3 best practices and produce guidelines in support of a coherent implementation of the directive (EC Annex, 2014). The MSCG is also responsible for coordinating and supervising other working groups: data and information and knowledge exchange (WG DIKE), a regionally agreed set of common GEnS criteria, environmental targets and associated indicators (WG GES) and the cost- effectiveness of measures (WG ESA) (CIS, 2013). The 52 participants of the MSCG that have attended the meetings at least once in the last 3 years were selected for the survey. The survey was prepared using the Qualtrics Software9 and e- mailed in April 2016. It consisted of seven questions, requiring the respondents to choose from single-choice, multiple-choice or by ranking the options provided (Table 1).

Table 1 Summary of the survey for the MSCG.

Question (Q) Response options Response type

Q1. Effectiveness coordination struc- CIS; RSC; Bilateral/Trilateral Meetings; others Rank options (order of tures importance)

Q2. Feasibility to achieve high levels of It is possible using existing coordination struc- Single choice followed regional coherence tures; existing structures need to be strength- by an open-ended ques- ened; minimum requirements should be estab- tion lished; it is not possible

Q3. Identification of the suitable spatial Regions; sub-regions; adjacent countries; na- Single choice scale for common criteria/ indicators tional level

Q4. Identification of reasons behind the Limited support from the RSC; the role of the Multiple-choice fol- establishment of different targets RSC was not clear; too large spatial scale; lack lowed by an open-ended of indications in the directive. question

Q5. Selection of common lists of spe- Yes or no Single choice followed cies/habitats/communities by an open-ended question

Q6. Actions to achieve GEnS More dialogue among all the parties; better co- Rank options (order of ordination among countries; integration with importance) other policies; more investments

Q7. Importance of policy integration for Very important; important; negligible. Multiple-choice a coherent implementation within regions

The first part of the survey comprised three sections. In the first section, participants were asked to identify themselves as one of three categories: EC representative, Member State authority

9 Qualtrics: Online Survey Software & Insight Platform

21 MARIANNA CAVALLO or Observer. These two last categories were further asked to indicate the region/s where their organisation/body is located: Black Sea, Mediterranean Sea, Baltic Sea and the North-East Atlantic Ocean. In the second section, respondents were asked to rank, in order of importance, the most effective coordination structure. The following section aimed at evaluating the feasibility of a coherent implementation of the MSFD at regional scale. The response options provided were valuable to establish the adequacy of the coordination structures and to identify the elements (ecological, socio-economic and governance) that could hamper regional coherence during all the phases of directive. Respondents were also asked to indicate other elements other than those considered in the survey and to comment their answers. The second part of the survey included three sections and focused on three specific aspects of the MSFD: the selection of common criteria and indicators, the identification of common lists of species/habitats and the establishment of environmental targets at regional level (Table 1). In particular, the section concerning the targets aimed at understanding why countries were not able or willing to establish coherent sets of targets within their regions. The responses are designed to assess the adequacy of the support provided by a specific type of coordination structure, namely the four RSC, and the feasibility to establish a coherent set of targets at regional scale for all the eleven descriptors. In this case, respondents were allowed to choose more than one response option and to add any further elements. In the last part of the survey, participants were asked to rank the most important actions to achieve GEnS and how integration with other policies contributed to a more coherent implementation using the experience gained from other directives.

3.2.2. Statistical analysis

In order to determine whether the responses varied according to the three MSCG categories (Member States, EC and observers), the data were tested using Analysis of Similarity (ANOSIM), a non-parametric multivariate hypothesis testing method (Clarke, 1993). The tests were run sepa- rately for each question, under the null hypothesis of no significant differences among the participant categories. For the single/multiple choice questions, the options were coded as presence- absence variables, attributing the value 1 to the option chosen by the respondent and 0 to other options. This yielded a presence-absence data matrix for each question, the response options rep- resenting the variables and the respondents the samples. The resemblance matrix among the

22 CHAPTER 3 respondents was determined per question and by applying the Jaccard similarity coefficient (for binary responses). For the rank questions, the resemblance among respondents was determined by calculating the Spearman rank correlation. All resemblance matrices were tested by one-way ANOSIM. This method produces the statistic R, which varies from -1 to +1 and is equal to +1 when all the respondents of the same category are more similar to each other than any of the respondents from different categories, and so rejecting the null hypothesis. R approaches the value 0 when the null hypothesis is true. The R statistic is accompanied by a significance value obtained by calculating the probability of the observed R within a series of simulated R values obtained by permutation (Clarke, 1993). ANOSIM was run using the software PRIMER v7 (Clarke and Gorley, 2015).

3.3. Results

From the 52 invited participants of the MSCG, 27 completed the survey (a response level of 52%, Table 2). Most of these were from the Member States, thus reflecting the composition of the MSCG.

Table 2 MSCG categories and number of respondents.

Category Number of participants Personal Organisation’s Subdivision per region opinion opinion EC (Directorate-General, European Environmental 4 0 - Agency, Joint Research Centre, European Parliament) Observer (RSC, International Organisations, Stake- 4 5 Mediterranean Sea 1 holders, Consultants) North-East Atlantic 2 Baltic 1 Black 0 All waters 5 Member States Authority 8 6 Mediterranean Sea 4 North-East Atlantic 5 Baltic Sea 4 Black Sea 1

The ANOSIM test showed that the participant category had no influence in the responses provided in the survey (Table 3). The results of the qualitative responses (open answers/comments) also did not follow a clear pattern either within each of the three categories or within the regions.

23 MARIANNA CAVALLO

Table 3 ANOSIM global test R values for the null hypothesis under study in the seven survey questions. All R values were found non-significant (p > 0.05 in all cases), meaning that the null hypothesis was never rejected.

Q1 Q2 Q3 Q4 Q5 Q6 Q7 R-values 0.145 - 0.001 - 0.077 0.116 0.031 - 0.046 - 0.043

When the participants were asked to rank the four coordination structures according to their effectiveness, about 60% placed the RSC first and the CIS second (42%) (Figure 5). RSC were considered the most effective structure to coordinate actions by those people that have their body/organisation located in the North-East Atlantic and in the Baltic Sea regions (9 out of 15). Three observers (from the Baltic and Atlantic region) and one EC representative commented that, when properly used, the existing coordination structures are adequate, while two Member States (from the Mediterranean and Black sea regions) not unexpectedly, pointed out that coordinating actions is more difficult in those marine regions where EU countries are the minority (8 out of 21 in the Mediterranean region and 2 out of 6 in the Black Sea). The non-EU countries usually have a less well-developed experience and history of marine environmental protection and capability.

Figure 5 Assignment proportions of the coordination structures according to their rank position attributed by the respondents.

The next question asked whether it was feasible to implement the MSFD in a coherent way within regions. Most of the respondents (41%) considered it valuable to establish a set of minimum requirements at regional level (e.g. identification of criteria and indicators). In response, they sug-

24 CHAPTER 3 gested that it would be helpful to have some guidance for some criteria but not for the indicators, given the differences among countries (Observer, Mediterranean Sea). Others considered it of value to establish minimum requirements but also that Member States should not be obliged to use criteria that may not be relevant for their territory, not sufficiently scientifically developed or for which there is no political support. In contrast, 19% said that even if countries were willing to be coordinated, it would not be possible to achieve high levels of coherence, explaining that the MSFD timescale is too short, it requires long international negotiation and many staff. Others added that coherence depends on the different financial arrangements and resources in each country, since they have to fund compliance with national implementation (North-East Atlantic Mem- ber State). Another 22% of the respondents, all from the Baltic and the North-East Atlantic regions, considered that it is possible to be coherent at a regional level when the current coordination structures are properly used. In contrast, 18% indicated that the role of the coordination structures needs to be strengthened.

When asked to identify one or more reasons that led countries to establish sets of environmental targets that differed within regions, most of the responses indicated that it was not feasible to achieve high level of coherence for some descriptors (e.g. Biodiversity) at such a large scale (60%). For two Mediterranean Member States, expectations were not realistic since the first phase of the implementation was based on existing data from other policies and that regional coherence involves not only ecological but also socio-economic and political aspects which can be fulfilled only over the long-term. The second most selected option (35%) suggested that the directive lacks a clear indication of to what extent countries included in the same region had to be coherent while, according to 26% of the responses, the role of the RSC was not clear. The least selected option (11%) indicated that it was due to the limited support from the RSC. According to one NGO, the role of the RSC was clear but countries did not necessarily agree with this, thus these structures have not been used properly to coordinate actions. Another two participants explained that there was lack of political will to cooperate among countries due to the stakeholder economic interests (NGO) and to the fact that governments do not want to commit to actions without securing complete control of their investments (EC). Another two observers (from the Mediterranean Sea and the North-East Atlantic), suggested that there was little guidance or the guidance was sufficiently flexible for countries to define their GEnS, and to choose criteria and indicators during the first cycle of the MSFD given the ecological differences within regions. For another four respondents,

25 MARIANNA CAVALLO coherence is necessary in the GEnS definitions but not for the establishment of targets since “the targets to achieve similar GEnS may vary between countries, because the situation (the distance to achieve GEnS) can be different between them. However, they are coherent because they are working for achieving the same GEnS”.

According to the survey participants, sub-regions (52%) and regions (35%) were the most suitable spatial scale to adopt common criteria and indicators. One observer, however, pointed out that, given the multi-sectoral nature of the MSFD, the proper spatial scale is a mixture of regional and sub-regional scale depending on the issue e.g. pollution, habitat protection and so on.

With regard to the protection of biodiversity10, 70% of the respondents agreed that there should be a common list of the most vulnerable species/habitat/communities within each region. Most of these respondents (19 out of 27) further suggested that such a list should include and go beyond the lists of other relevant pieces of legislation and agreements (such as the HD and BD and OSPAR) (Figure 6).

Figure 6 Among the 19 respondents that agreed on the adoption of a common list of the most vulnerable species, habitats and communities at regional level for Biodiversity descriptors, some indicated one or more elements that should be considered in that list: be in line or go beyond the lists of other legislations (10 respondents) and/or include all migratory species (5 respondents) and functional groups (5). The category ‘other’ includes all top predators fish, mammals or indicated single species (ex. harbour porpoise, some sharks).

10 Covered by three qualitative descriptors: Descriptor 1 Biodiversity; Descriptor 4 Elements of marine food webs (all elements at normal abundance and diversity) and Descriptor 6 Sea floor integrity (species, habitats and structures and functions are not adversely affected)

26 CHAPTER 3

The importance of integration with other environmental policies was confirmed when the participants were asked whether a proper integration between the MSFD and other relevant pieces of legislation could contribute to a coherent implementation of the directive. All but one respondent marked policy integration as very important (67%) or important (30%).

In the last part of the survey, the participants ranked the actions that would contribute more to the achievement of the GEnS of European seas. As suggested by 42%, more investments are necessary to reduce pressures on the marine environment, followed by a better regional coordination (35%) and more dialogue. Policy integration was the second most important action (42%) (Figure 7).

Figure 7 Ranking of the most important actions towards GEnS of the European Sea

Some comments highlighted that the political willingness of national governments is also essential to achieve GEnS. Notably a representative of the EC suggested that governments lack political will to embrace an ecosystem-based approach to share resources and information, to promote joint monitoring and measures programmes and to develop co-financed projects at upper- national level. According to another respondent, the Member States see the MSFD as nature conservation legislation rather than a framework which aims to manage the whole marine environment in an integrated way and with a regional focus.

27 MARIANNA CAVALLO

3.4. Discussion

When it entered into force in 2008, the MSFD set a governance challenge of historical importance for European environmental policy (Van Leeuwen et al., 2014). It represents the first attempt to implement an ecosystem-based management at the level of European regional seas (Ounanian et al., 2012; van Tatenhove, 2013) and the lessons learned during its implementation process can be valuable in using an ecosystem approach for managing other large marine areas worldwide. The study identified the impediments to a coherent and harmonious implementation of the MSFD at regional level and suggest possible solutions to improve regional cooperation in its second cycle.

3.4.1. Effectiveness of MSFD coordination structures

The results indicated that, when properly used, coordination structures are valuable platforms to help countries to achieve high levels of coherence within regions; however, according to some of the participants, their role is limited and should be strengthened. Among the four types of structures listed in the survey, RSC were ranked as the most effective to coordinate actions followed by the CIS. The MSFD defines regional cooperation as “cooperation and coordination of activities between Member States and, whenever possible, third countries sharing the same marine region or sub-region, for the purpose of developing and implementing marine strategies”. In the text of the directive, the RSC are the main platforms for coordination, although it makes a general reference to other existing structures. The comments provided by the survey confirm that some RSC (OSPAR and HELCOM) are more effective than others. Other studies demonstrate that the role of these structures is limited when it comes to adopting and implementing specific policy measures in support of ecosystem-based management (see ESaTDOR Annex 13, 2013; Raakjaer et al., 2014). Since European Member States are also contracting parties to the RSC, achieving the Convention objectives should benefit from a successful implementation of EU policies and vice versa. For example, with the adoption of the MSFD, OSPAR assumed a prominent role as an executive organisation and a regional forum to facilitate compliance (OSPAR, 2012). However, it does not have the capacity to enforce its decisions since, being a convention by agreement, it opted for non-binding recommendations and agreements and there are no sanctions other than the criticism of fellow members. Unlike OSPAR, which is a convention by signa- tories, the EU can take legal actions via infraction proceedings for infringement of its directives (ESaTDOR Annex 13, 2013).

28 CHAPTER 3

The CIS platforms were also considered to be valuable to exchange information and to enhance trust in the decision-making phase and this survey confirms their efficiency as coordination structures, since they were ranked second. Even in this case, more institutionalised procedures are needed to ensure lasting cooperation (Maier, 2014). Other fora, such as ICES, Baltfish (a BONUS ERAnet project) and the MedGovernance Project, as well as trilateral and bilateral meetings may be used either to coordinate countries or to encourage common working but they could also increase institutional ambiguity (Freire-Gibb et al., 2014). MSFD coordination structures are a combination of ‘hard’ and ‘soft’ modes of governance (Simpson, 2013) and can be considered bridging organisations that provide an arena for trust building, learning, enhancing cooperation and resolving conflicts, according to the definition of Hahn et al. (2006). Among the reasons behind the establishment of different sets of targets within each region during the first phase of the directive, only few respondents (three) admitted that the support received from such structures was limited. This suggests that the MSFD coordination structures were not considered as major impediments for a coherent implementation. In fact, respondents indicated that the lack of any coherence was the result of other aspects, namely the will of national governments to coordinate their actions, limited financial resources, a lack of dedicated funding, the MSFD short time-scale and reduced staff. Freire-Gibb et al. (2014) identified more reasons at the basis of the lack of cooperation among countries; for example, changes in national governments, disorganisation in institutional structures and research biases. The influence of the private sectors was also identified as one of the elements that can affect both Member State implementation actions and the way they cooperate in the region (van Hoof et al., 2014). From the study, it is concluded that the coordination structures are, in general, adequate but stronger political commitment is needed from all the parties involved in these fora to guarantee a lasting cooperation during all the phases of implementing the directive. National strategies will benefit from a better integration of the work already carried out in the context of the RSC since it will enable them to fulfil their obligations in both contexts.

3.4.2. Spatial scale

Cruz and McLaughlin (2008) considered marine geo-political regions the most proper spatial scale to implement an ecosystem-based approach of the marine environment. However, it is not

29 MARIANNA CAVALLO clear how countries of the same region can establish environmental targets and define GEnS co- herently, taking also into account the peculiarities of their marine ecosystems, climatic conditions, management priorities or socio-economic activities (Boyes et al., 2016). As a framework, the MSFD calls for regional coordination while allowing Member States a certain degree of flexibility and freedom to implement the different phases (given that subsidiarity is a founding principle of the EU, the ability to take decisions at a local level). This flexibility led Member States to define GEnS and to establish targets, criteria and indicators in very different ways within the regions and this survey identified some of the reasons behind such differences. Most of the responses indicated that it is not feasible to achieve high levels of coherence for some descriptors (e.g. Biodiversity) at a regional scale. More than half of the responses indicated sub- regions as the most suitable spatial scale to adopt common criteria and indicators. The results suggest that each of the phases and the eleven qualitative descriptors of the MSFD might require the identification of a specific spatial scale that in some cases can be smaller than marine regions. However, achieving a comprehensive international cooperation is difficult even at sub-regional level without a strong political commitment. For example, in the Dogger Bank area, countries have had great difficulties in agreeing a joint recommendation for fisheries management and wind farms and thus on habitat protection, leading to paralysis over the last four years11. Similar conclusions were drawn regarding the Wadden Sea trilateral cooperation (Germany, Denmark and the Nether- lands) where countries did not follow a coordinated approach in relation to EU legislation, fisheries, tourism, and shipping safety. This was explained by the dominance of commercial interests and the fact that the ministries responsible for these issues were not represented in the trilateral cooperation while others argue that it was due to the noncommittal character of the cooperation (ESaTDOR Annex 13, 2013) Although countries are allowed a certain degree of freedom, hence the nature of a ‘framework’ directive, successful international cooperation and coherence among actions are necessary to achieve similar levels of ambition and to have the ability to compare the results of the national strategies. Most survey respondents seem to recognise the importance of cooperation and agreed that minimum requirements should be established at regional level to achieve higher levels of coherence, although a wide range of requirements have been suggested (such as minimum criteria,

11 http://www.parliament.uk/business/committees/committees-a-z/lords-select/eu-environment-and-agriculture-sub- committee-d/news/lords-eu-d-regional-marine-cooperation-report/

30 CHAPTER 3 indicators, targets, GEnS definitions). The Organisation for Economic Cooperation and Develop- ment (OECD, 2012) suggests that a comprehensive set of ambitious targets should be established at the regional level to better enable the politicians and administrators to pursue a coherent agenda. It has been previously suggested (Chapter 2) that, when establishing environmental targets in the context of the MSFD, Member States should evaluate whether such targets are compatible with those identified by their neighbouring countries and with those already established under existing national and international obligations thus avoiding conflicts. The difficulties in establishing similar targets were also discussed by Dogterom (2001), who found that many different targets were established by different countries and transboundary river authorities for freshwater quality corresponding to UN/ECE Class 1 (sustaining the ecological function). The author related this to the degree of risk that each party is prepared to accept or to their interpretation of a normal ‘ecological function’. It is concluded here that it is possible to be coherent within regions but not at the detailed level required by the MSFD. A coordinated implementation of such a multi-sectoral directive requires significant investment of time and financial resources by the countries involved, hence more flexibility and freedom is needed to achieve its goals. However, since maritime activities in Europe have been historically managed at different levels, with the MSFD the EU is moving from a ‘sector-perspective’ to a ‘system-perspective’ (Ounanian et al., 2012) countries have to recognise the importance of this approach and put more economical and political effort to reach agreements within regions and sub-regions.

3.4.3. Priority actions to achieve the GEnS of European seas

Most respondents agreed that the most urgent action to achieve GEnS requires greater investments in measures aimed at reducing pressure (such as sustainable fisheries, reducing plastics and nutrient emission). They also recognised the importance of regional coordination. In fact, the implementation of marine policies without a regional focus could lead to conflicts between countries. For example, the poor implementation by a Member State (or even a third country) may encourage others not to take ambitious measures since they might consider that their efforts could be under- mined (Juda & Hennessey, 2001). Another survey found that the interest of most EU private stakeholders goes beyond the national EEZs (Freire-Gibbs et al., 2014) and for that reason they have a strong interest in regional

31 MARIANNA CAVALLO cooperation and in participating in decision-making and implementation processes. Marine stakeholders also recognise that the problems emanating from too-localised policies and those one-size- fits-all approaches can cause the failure of ecosystem-based management (Ounanian et al., 2012). With regard to the importance of the integration between the MSFD and other related environmental policies, the respondents agreed that a better integration will improve coherence among national implementation strategies. In Chapter 2 is presented a list of the possible pieces of environmental legislation that can be integrated with the MSFD and concluded that when countries of the North-East Atlantic used data, approaches and targets from related legislation, the national strategies were more coherent. In the current survey, the participants recognised that policy integration was particularly important for the protection of biodiversity. They particularly agreed on a common list of the most vulnerable species/habitats and communities within each region. To date, it is difficult to evaluate the effects of integration among policies, or the lack of it, especially in quantitative terms, given the paucity of studies in this area (OECD, 2012). For this reason, it is necessary to have a clear understanding of the potential synergies between them to avoid contrasting policies objectives and a waste of resources (Cavallo et al., 2016; Chapter 2). Policy priority areas should be monitored transparently to identify any inconsistency of approach to develop additional arrangements; however, a complete integration among policies may not always be feasible due to different national interests (OECD, 2012).

3.4.4. Future challenges

Coordination structures proved to be effective as a forum to exchange information and identify best-practices, and in turn enabled the parties to make large efforts to meet some of the principles at the basis of the ecosystem-based management. However, they failed to guarantee a more coherent approach in the implementation of the MSFD at regional and sub-regional level and integrating European and international policies (EC, 2014 Annex). The MSFD coordination structures are mostly based on soft modes of governance (defined as less binding and based on voluntary agreements by Raakjaer et al., 2014) and bring together public and private actors, and their non-legal binding nature aims to establish mutual understanding and move decision-making beyond self-interested intergovernmental bargaining (Raakjaer et al., 2014; Nilsson, 2013). Skjærseth et al. (2006) use the example of the International North Sea Conferences (INSC) on actions to reduce pollution to show how ambitious measures are more easily achieved

32 CHAPTER 3 in soft law institutions which can influence the strength of the legally binding ones (European directives) by exerting pressure on those reluctant to comply. They argue that binding rules need a much longer negotiation by those responsible for implementation since they often require monitoring and verification. The MSFD text suggests that the GEnS definition and programmes of measures need to be adaptive and flexible taking into account scientific development and environmental changes, including climate change (Elliott et al., 2015). It is considered here that the concept of adaptive management introduced in the directive could help countries to overcome most of the uncertainties related to a coordinated implementation of this directive identified in this study. For example, GEnS and related targets can be refined with increasing scientific knowledge or if they do not provide the expected improvement in the environment (Mee et al., 2008) or if they are causing conflicts. Consequently, it is suggested here that the MSFD also requires adaptive co-management which combines dynamic learning with collaborative management (see Wollenberg et al., 2000; Gadgil et al., 2000; Ruitenbeek and Cartier, 2001; Folke et al. 2003; Borrini-Feyerabend, 2004). This type of governance helps to negotiate conflicts among groups of stakeholders that differ in values, interests and power (Dietz et al., 2003) and fosters social coordination that leads to self- organisation (Olsson et al., 2007) The responses in the current study show that participants have to work harder to provide more coherent GEnS definitions with similar levels of ambition across the European Union, otherwise the objective of the ecosystem-based management of marine environment at the basis of this directive is compromised. If a Member State is unwilling to achieve the required regional implementation of the MSFD, the EC may have to be prepared to have a stronger leading role (Freire- Gibb et al., 2014). Finally, it should be emphasised that, from its adoption, much progress has been made and a better use of the current coordination platforms in the decision-making phase could result in a more coherent implementation of this directive during the second cycle (starting in 2018).

CHAPTER 4

Chapter 4

Challenges for the coordinated management of European Seas: comparing the programmes of measures for the Bay of Biscay and Iberian coast sub-region

Abstract

The EU Member States have recently developed and submitted their programmes of management measures to meet their obligations under the MSFD. Measures are required to be coherent and consistent among countries and properly integrated with actions under other Community legislation and international agreements. This current study analyses the programmes of the three countries of the Bay of Biscay and Iberian coast sub-region – France, Portugal and Spain - to see whether they were able to meet these requirements. Among the four sub-regions of the North-East Atlantic region (NEAR), this was the one that showed the lowest levels of coherence during the first phase of the implementation of the MSFD. The analysis shows the difficulty in comparing the three programmes because of the differences in the type of information reported. The same difficulty will be faced by the EC when will determine the adequacy of compliance with the directive. This study shows that most of the measures address marine biodiversity but this is through a wide range of actions, covering different pressures and different species/habitats. The integration with other legislation is more similar between Spain and France and very different between these two countries and Portugal. The three countries also recognise the lack of knowledge to perform the economic analysis, in particular in quantifying the social benefits and costs derived from their measures. It is concluded here that a better use of the regional (OSPAR Commission) and EU (CIS Working Groups) platforms is needed to fill the gaps in knowledge and to exchange good practices. More political will is necessary to take action at EU and international level to mitigate the impact of those socio-economic activities through joint programmes (Article 15), for which European funding is available.

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4.1. Introduction

The European Union has played a central role in the field of sustainable development in the last decades with the adoption of more than 200 environmental directives (Beunen et al., 2009; Boyes and Elliott, 2015). In many cases, these statutes were produced without a real coordination thus, in 2007, the EC proposed the Integrated Maritime Policy (IMP) to improve synergies among sectorial maritime policies (Bagagli, 2015). The Marine Strategy Framework Directive (MSFD) is an important component of the IMP and has been adopted to achieve an integrated approach in the exploitation of marine resources, in coordination among EU Member States at the level of region and sub-region. The framework has been transposed into national legislation by specific marine strategies and includes five phases which were completed in 2016 and that will be updated during the second cycle starting in 2018 (see section 1.2). One of these phases, the programmes of measures (PoM), was developed and adopted in the period 2015–2016 (Article 13). The measures are actions to reduce the intensity of the predominant pressures and to improve the environmental status, such as the restoration of marine habitats and populations (EC, 2014b). Management measures are responses to control the marine activities and prevent state changes and impacts on human welfare (Elliott et al., 2017) and, to be successful, these should be focused on the so-called 10-tenets, namely be ecologically sustainable, economically viable, technologically feasible, so- cially desirable and morally correct, legally permissible, administratively achievable, politically expedient, culturally inclusive and effectively communicable (Elliott, 2013) This Chapter gives a comparative analysis of the PoM of the three countries bordering the Bay of Biscay and Iberian coast sub-region – France, Portugal and Spain – to identify the main differences in the reporting, human pressures addressed, spatial coverage, economic analysis and integration with other policies. The Bay of Biscay and the Iberian coast sub-region presented very low levels of coherence during the first phase of the MSFD, especially during the establishment of targets and definition of GEnS (EC, Annex 2014; Cavallo et al., 2016; Chapter 2). The results of this chapter identify the best practices in the reporting exercise, the national measures that will have a positive effect on the environmental status of the entire sub-region and the pressures that require international cooperation to be addressed effectively.

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4.1.1. Requirements of the PoM

To improve coherence and comparability among national PoM at European level, the EC developed non-legally binding recommendations to be included in Member State reports (EC, 2014b). At the regional level, OSPAR (2015) complements that of the EC, to guide countries of the North-East Atlantic towards a more coordinated development of their programmes in line with OSPAR work and existing measures. This section reviews the main requirements of these documents to assess the consistency and coherence among the three PoM. National reports have to indicate the link between the proposed measures and the established environmental targets, one or several qualitative descriptors, pressures and expected effect (EC, 2014b). Article 13 and Article 5(2) of the directive require Member States to ensure that their PoM are coherent and coordinated across the marine region or sub-region concerned. The RSC play a key role in coordinating measures, mainly as a platform to exchange information and by developing measures at regional level focused on transboundary issues. Hence, a regional approach under the guidance of RSC should be used to manage the marine populations and economic activities that transcend national borders (e.g. management of MPAs, gas/oil exploitation in open seas; chemical contamination and nutrient enrichment; litter, underwater noise etc…) and Member States have to indicate the level of implementation of their measures (national, regional, EU/international) and their effects, positive or negative, at upper-national scale (EC, 2014b). National PoM should include existing measures from other national, EU and international agreements, and new measures, when existing ones are not sufficient to meet the environmental targets and GEnS. New measures can be identified through consultation with stakeholders, the scientific community, other Member States, an input from RSC, or even expand or reinforce existing measures (EC, 2014b). Both EC and OSPAR guidelines provide a comprehensive list of policies and agreements that can be integrated within the scope of the MSFD (see also Boyes et al., 2016). For example, the WFD and the MSFD have several aspects in common (Borja et al., 2010). The first cycle of the MSFD is being implemented simultaneously with the second cycle of the WFD and PoM had to be adopted and implemented for both directives in December 2015 with the existing WFD PoM being updated while MSFD PoM are developed for the first time (EC, 2014b). In both directives, the measures have to be aggregated under a predefine set of Key Type Measures (KTM) (EC, 2014b) and, considering that many of the pressures on the EU seas are land- based, 25 out of 39 WFD KTM need to be included in the MSFD PoM to achieve or maintain GEnS and to enable an integrated approach between policies.

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Member States are also required to carry out an impact assessment of their measures, including a Cost-Effectiveness Analysis (CEA) and Cost-Benefit Analysis (CBA). CEA aims to identify the ‘cheapest solution’ among a number of measures designed to meet the same objective. The CBA evaluates and compares the present value of benefits and costs of a measure or policy inter- vention (EC, 2014b). The CEA and CBA are required for new measures and, when needed, these analyses should be conducted at regional and sub-regional level (EC, 2014b). The EC recommendation document recognises the limited knowledge of the ecosystem services of some marine environment (e.g. deep sea) which can complicate quantifying the potential social benefits and costs of management measures. Given this limitation, it is not necessary to quantify these analyses (in terms of monetary value) (EC, 2014b). The MSFD text also requires Member States to identify clearly any instances or exceptions in their PoM within their marine waters where the GEnS cannot be achieved (Article 14) or when actions at EU and international level are necessary to address environmental issues through joint programmes (Article 15). There can be some situations where Member States are not required to take specific steps (Long, 2011; Boyes et al., 2015; Elliott et al., 2015). For example, recital 30 says that “provision should be made where it is impossible for a Member State to meet its environmental targets because of action or inaction for which it is not responsible, (…) or because of actions which that Member State has itself taken for reasons of overriding public interest which outweigh the negative impact on the environment (…)” (Article 14).

4.2. Methodology

The PoM of France and Spain were published on the EIONET web page12 (MAGRAMA, 2015; Ministére de l’Environnement, de l’Énergie et de la Mer 2016a; 2016b). The PoM of Portu- gal consisted of two reports published in the DGRM web page13 (MAM, SRMCT, SRA, 2014). The comparative analysis of national reports focused on the requirements listed in the previous section: the type of GEnS descriptors or groups of descriptors (e.g. D2-Non-indigenous species), associated KTM, level of implementation (e.g. national, (sub)regional, EU and international), effect at upper-national scale, integration with other EU and international legislation, CBA and CEA.

12 http://rod.eionet.europa.eu/obligations/612/deliveries?id=612&id=612&tab=deliveries&tab=deliveries&d- 4014547-p=1&d-4014547-o=1&d-4014547-s=1 13 https://www.dgrm.mm.gov.pt/xportal/xmain?xpid=dgrm&actualmenu=1470807&selected- menu=1641550&xpgid=genericPageV2&conteudoDetalhe_v2=1641651

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For this study, measures were grouped into six categories: Biodiversity (Descriptors D1, D4, D6), Non-indigenous species (D2), Commercial fish and shellfish (D3), Introduction of nutrients/contaminants (D5, D8, D9), Marine litter (D10), ‘other measures’ covering Hydrological conditions (D7), the Introduction of Energy (D11) and Transverse measures addressing all descriptors. For each category of descriptors, the measures were classified by key type (KTM). In order to analyse how the three countries integrated existing policies in their PoM, a data resemblance matrix was prepared using as samples the groups of descriptors and as variables the pieces of legislation. Transverse measures were not included in the analysis since they cover all descriptors and integrate mostly national legislation. The resemblance matrix between samples was built using the Sørensen coefficient considering the legislation mentioned for each descriptor (presence-absence data). This similarity matrix was visualized as a 2-dimensional ordination diagram obtained by non-metric multidimensional scaling (nMDS) and submitted to hypothesis testing under the null hypothesis of no significant difference among the countries, using Analysis of Similarities (ANOSIM). ANOSIM produces the statistic R, varying from -1 to +1. R is equal to +1 when all the descriptors/group of descriptors from one country are more similar to each other than to any of the descriptors from another country, rejecting the null hypothesis. R approaches 0 when the null hypothesis is true, and significance is assessed by calculating the probability of the observed R within a series of R values obtained by permutation (Clarke, 1993). The nMDS diagram is accompanied by a stress value quantifying the mismatch between the distances among samples measured in the 2-dimensions ordination diagram and in the resemblance matrix. Empir- ical studies have shown that stress values below 0.1 indicate a good to very good representation of the samples and below 0.2 still corresponds to a useful 2-dimensions representation. All multivariate analyses were performed with PRIMER v7 (Clarke and Gorley, 2015).

4.3. Results

4.3.1. Coherence in the information reported

The three programmes differ in the type of recommendation provided, the number of measures proposed for each descriptor and in the way each measure is presented (Table 4). For example, the Portuguese programme lacks relevant information that does not indicate the exact number of measures, if and when the consultation with other Member States took place and the descriptor/s, the spatial coverage, the KTM and the targets associated to each existing measure. The three countries mention the EC recommendations, while France and Spain also consider the OSPAR recommendations.

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Table 4 List of the requirements provided in the PoM of France, Portugal and Spain in the Bay of Biscay and Iberian Coast sub-region.

Country France Portugal Spain Year of publication 2016 2014 2016 Public consultation (national) Yes Yes Yes Consultation with other countries Yes No Yes Number of measures for the sub-region 121 (12 new) 85 approx. (11 319 (79 new) new) Number of measures D1, D4, D6 37 19 176 D2, 8 5 26 D3 14 23 57 D5, D8, D9 36 13 67 D10 16 6 63 D7, D11 18 4 24 Transverse (all descriptors) 17 3 22 Descriptor Yes Yes * Yes Integration with other policies Yes Yes Yes Number of Spatial Protection Measures 7 1 31 Indication of the level of implementation Yes* Yes* Yes Number of measures with effect at upper-national scale 39 0 50 KTMs (Key Types of Measures) Yes Yes* Yes CBA and CEA Yes** Yes *** Yes*

*information provided mostly for new measures; ** CEA only; *** one measure

Although the three countries mentioned a wide range of KTM, Table 5 shows the most common types of measures in the sub-region. None of the countries referred to exceptions under Article 14 and Article 15.

Table 5 List of KTM most commonly considered in the Bay of Biscay and Iberian Coast sub-region.

KTM - Key Type Measures (and associated descriptors) Number of measures by country*

KTM 14 Research, improvement of knowledge base reducing uncertainty (applies to all 1 FR, 5 PT, 25 ES descriptors) KTM 15 Measures for the phasing-out or reduction of emissions, discharges and losses 1 FR, 9 ES of priority (hazardous) substances (D1, D5, D8, D9) KTM 20 Measures to prevent/control the adverse impacts of fishing and other exploita- 25 ES tion/removal of animal and plants (D1, D2, D3, D4, D6, D8)

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KTM 27 Measures to reduce physical damage in marine waters (D1, D3, D4, D6, D8, 15 FR, 2 ES D10) KTM 29 Measures to reduce marine litter (Descriptor D1, D5, D6, D8, D9, D10) 12 FR, 49 ES

KTM 31 Measures to reduce contamination by hazardous substances in the marine envi- 16 FR, 10 ES ronment from sea- and air- based sources (D1, D5, D6, D8, D9, D10) KTM 32 Measures to reduce sea-based accidental pollution (D1, D5, D8, D9, D10, D11) FR 2 ,ES 12

KTM 34 Measures to reduce the introduction and spread of non-indigenous species in the FR 8, ES 12 marine environment and for their control (D1, D2, D6, D10) KTM 35 Measures to reduce biological disturbance in the marine environment from the FR 12, ES 24 extraction of species, including incidental non-target catches (D1, D3, D4, D6) KTM 37 Measures to restore/conserve marine ecosystems, habitats and species (D1, D2, FR 3, PT 2, ES 53 D3, D4, D6, D8, D10) KTM 38 Measures related to Spatial Protection Measures for the marine environment FR 7, PT 1, ES 31 (D1, D2, D3, D4, D6, D8, D10, D11) KTM 39 Other measures (apply to all descriptors) FR 18, PT 3, ES 28

Abbreviations: FR: France, PT: Portugal, ES: Spain *MAGRAMA, 2015; Ministére de l’Environnement, de l’Énergie et de la Mer 2016a; 2016b; MAM, SRMCT, SRA, 2014

4.3.2. Coordination in the three PoM

This section shows the differences in the scope of the three programmes and their contribution to improve the environmental quality of the sub-region taking into consideration the following aspects for each group of measures: KTM, level of implementation (e.g. national, (sub)regional, EU and international), expected effect at upper-national scale and spatial protection measures (if any).

4.3.2.1. Biodiversity

This group includes measures covering D1-Biodiversity, D4-Foodweb and D6-Seafloor integrity, but actions under other descriptors will contribute, directly or indirectly, to achieving GEnS for marine biodiversity. The details and information provided in each PoM vary among the three countries (Table 6). Spatial Protection measures were also included in this group, which, in some cases, involve the creation of new protected areas or the expansion of existing ones.

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Table 6 Biodiversity related measures and their spatial application. In brackets is given the number of measures proposed.

Country KTM Level coordination in im- Effect at upper-national plementation scale Spain 14 (14) regional (42) (24) 20 (25) EU/International (21) 27 (2) 35 (23) 37 (53) 38 (31) 39 (4) other (27) France 5 (5) Sub-regional (8) (8) 14 (1) 27 (14) 35 (5) 38 (7) other (5) Portugal 37 (2) All national/local not specified for any meas- 38 (1) ure Other (2) KTM not provided in many cases

At the level of the sub-region, most of the measures are focused ‘on the restoration/conservation of marine ecosystems, habitats and species’ (KTM 37) (Table 6). For example, Portugal presents two new measures which generically refer to the protection of seabirds and sea mammals in national waters, while Spain reports 24 measures where the name of the species and habitats is clearly indicated, together with the related conventions, mainly OSPAR. Twenty-eight measures are identified in the entire sub-region to ‘reduce biological disturbance in the marine environment from the extraction of species’ (KTM 35). Broader measures are presented in the French reports (e.g. framework for the reduction of by-catch), while Spain is more specific in reporting 12 new measures to address this issue, e.g. risk assessment of the accidental catch of protected turtles, cetaceans and seabirds and elasmobranchs. Moreover, the existing measures included in the Spanish PoM consider six recommendations of the International Com- mission for the Conservation of Atlantic Tunas (ICCAT), to reduce the by-catching of turtle and birds. France and Spain present new and existing measures on ‘research, improvement of knowledge base reducing uncertainty’ (KTM 14). In particular, Spain describes one measure to promote studies aimed at improving the knowledge on species, habitats and the human impacts on marine biodiversity.

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The measures vary not only in the details provided but also in their focus. France mostly focuses on ‘regulating dredging activities and sediment management’ (KTM 27) with 14 measures (only 2 from Spain and none from Portugal) while Spain presents 25 measures to ‘prevent/control the adverse impacts of fishing’ (KTM 20) (none from Portugal and France). Among the 232 measures established in the sub-region for the three biodiversity descriptors, Spain specifies that 63 require regional and/or international/EU coordination, France indicates that 8 measures require coordination at level of sub-region and Portugal indicates none (with all measures just recognised to require only national or local coordination). France and Spain identify the measures (respectively 8 and 24) that should have a positive impact in the waters beyond national borders. Most of them aim to reduce the effects of fisheries or consider the benefits of Spatial Protection measures. The three countries describe measures related to the creation or expansion of protected areas (KTM 38 – ‘Spatial Protection Measures for the marine environment’). In particular, Portugal introduces a new measure to expand the network of Marine Protected Areas (MPA) covering high sea habitats mainly (OSPAR seamounts) in line with the targets of Natura 2000 and the UN CBD. France presents seven existing Spatial Protection measures in its programme, considering them sufficient to meet the GEnS of the MSFD. These include, for example, the creation and management of MPAs under national legislation, to complement the offshore Natura 2000 network to protect mammals (great dolphin and harbour porpoise), birds and reefs. Spain includes 31 new and existing Spatial Protection measures in its programme, including the proposal for the creation of new MPAs and a number of specific regulations to manage human activities (professional fishery, scientific research, aquaculture, mammal observation, material extraction). The OSPAR recommendation document provides a list of species/habitats to guide its EU contracting parties towards a coherent development and implementation of management measures. This presents 44 species/habitats that occur in the Bay of Biscay and Iberian coast sub-region, including invertebrates, birds, fish, reptiles and mammals, mostly highly mobile species (Table 7). Among the three countries, Spain reports on specific (existing) measures which refer to these species while France makes a more generic reference to the red list of species of IUCN and OSPAR in a single measure.

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Table 7 OSPAR’s list of species/habitats that occur in the Bay of Biscay-Iberian Coast sub-region (region IV according to OSPAR regional classification) Category (total number)* Species/habitat mentioned in the three PoM Country Invertebrates (3) None (explicitly mentioned) - Birds (4) Balearic shearwater PT, ES Roseate tern ES Iberian guillemot FR, ES Fish (19) Sturgeon FR, ES Allis shad ES European eel FR, ES Portuguese dogfish ES Leafscale gulper shark ES Basking shark ES Cod FR Long-snouted seahorse ES Short-snouted seahorse ES Sea lamprey ES North-East Atlantic spurdog ES Angel shark ES Reptiles (2) Loggerhead turtle FR, PT, Leatherback FR, PT, ES Mammals (3) Blue whale PT, ES Northern right whale ES Harbour porpoise FR, PT Habitats (12) Coral gardens ES Cymodocea meadows ES Deep-sea sponge aggregations PT, ES Lophelia pertusa reefs ES Maerl beds FR, ES Modiolus modiolus beds ES Ostrea edulis beds FR Seamounts PT, ES Zostera beds FR, ES * OSPAR (2015)

4.3.2.2. Non-indigenous species

Nearly 40 measures are described by the three countries to address the impact of invasive species (Table 4), of which 18 are exclusive for this descriptor. The remaining measures are associated with other descriptors (mainly biodiversity). Most of the measures aim ‘to reduce the introduction and spread of non-indigenous species in the marine environment and for their control’ (KTM 34). France and Spain include some actions to prevent new introductions, the early deten- tion and eradication. Portugal does not report specific measures for this descriptor and this pressure is mainly addressed by measures covering all descriptors. The level of coordination to implement such measures is mainly national; only Spain describes measures that require regional and EU/international coordination (4 in total). Six measures are expected to have a positive effect beyond national waters.

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4.3.2.3. Commercial fish and shellfish A total of 94 measures are described in the sub-region, 14 of which exclusive to this descriptor, while most are also associated with biodiversity descriptors. It was not possible to establish the exact number of measures of Portugal for this descriptors (approx. 20) and the KTM is specified for 3 measures (which refers to ‘KTM 39 - Other measures’). France and Spain present 10 and 12 measures respectively ‘to reduce biological disturbance in the marine environment from the extraction of species, including incidental non-target catches’ (KTM 35). For example, these include a new certification system for fisheries products and development of new practices for professional fishery to limit its impacts on marine ecosystems. Two new measures are presented by Spain: Permanent cessation of the activity of 569 fishing boats in the period 2016-2020 and national funding for temporal stop of fishing. Some measures from Portugal also aim to reduce and readjust the fisheries pressures. Only Spain includes 24 existing measures ‘to prevent/control the adverse impacts of fishing and other exploitation/removal of animal and plants’ (KTM 20). Most of the measures are in line with OSPAR requirements, covering particular species (e.g. Red tuna, some sharks). Portugal also describes in details actions to recover the population of sardine and hake (according to ICES recommendations). All French and Portuguese measures require national coordination, while Spain specifies that 16 measures require an International/EU and regional level of coordination. France and Spain consider that 14 of their measures should have a positive impact at upper-national level.

4.3.2.4. Introduction of nutrients and contaminants A total of 116 measures were identified, covering the three descriptors. In particular, 4 exclusively address Eutrophication (D5), 27 Contaminants (D8) and 4 Contaminants in seafood (D9). These are grouped into 24 KTMs, including ‘construction or upgrades of wastewater treatment plants’ (KTM 1), ‘reduce nutrients and pesticides pollution from agriculture’ (KTM 2 and 3), ‘phasing-out or reduction of emissions, discharges and losses of priority (hazardous) substances’ (KTM 15). France and Spain also respectively propose 15 and 10 measures ‘to reduce contamination by hazardous substances in the marine environment from sea- and air- based sources’ (KTM 31) and another 14 each ‘to reduce sea-based accidental pollution’ (KTM 32). The level of coordination is mainly at national and/or local levels. Spain will implement 16 measures at regional level with reference to OSPAR in many cases, and France indicates one

45 MARIANNA CAVALLO measure at the sub-regional level. Eleven measures are considered to have an effect at upper-national level, mostly related with the pollution caused by maritime activities and port operation.

4.3.2.5. Marine litter Of the 85 measures addressing contamination by litter, 58 are exclusive for this descriptor and the others are in association with descriptors addressing contamination and biodiversity. The three countries present measures ‘to improve the knowledge’ (KTM 14) on litter. In particular, Portugal includes two new measures; one aims to develop a data base for the characterisa- tion of the marine litter on the coast (e.g. the quantity, the distribution, the composition and the origin). This agrees with OSPAR requirements and is the basis of litter data collection. Another measure aims to determine bioindicators of litter, including litter content in fish and birds. Portugal is also developing a measure for the collection and management of litter in ports and to reduce/prevent the illegal discharges of contaminants (solid and liquid) in the ocean. Spain is developing similar measures to improve knowledge, specifically for microplastics. Spain and France describe ‘specific actions to reduce litter’ (KTM 29), respectively 48 and 11 although the strategies differ between the two countries. While France places more effort on promoting a responsible management of waste from fisheries and aquaculture (shellfish), on mit- igating the effects of dredging operations and another measure on the application of regulation related with operation of shipping recycling, Spain reports on several actions to reduce litter from fisheries and aquaculture, namely improvement of port structures for the reception and management of litter. Spain is also developing new measures aimed at cleaning and surveillance of beaches and the seabed (including the project Fishing for Litter), at reducing the production of plastic and microplastic from source and new sanctions for the abandonment and release of solid and liquid waste. Spain has 14 measures for litter requiring an international and regional coordination while France have one measure requiring sub-regional implementation. The other measures of the two countries and all the measures of Portugal have national or local level implementation. The actions requiring regional implementation include Fishing for Litter initiative, the creation of “beach guardians” and the OSPAR regional Action Plan for the prevention and management of marine litter in the North-East Atlantic. Spain and France specify that 25 of their measures should have a positive effect at supra-national level.

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4.3.2.6. Other measures Other measures (46) are described to address the changes in Hydrological conditions (D7) and the Introduction of energy (D11). Nine of them are exclusive to D7 and seven to D11. The remaining measures include also biodiversity and eutrophication/contaminants descriptors. Transverse or hor- izontal measures are considered by the three countries, concerning legislative barriers, financial and methodological support, innovation, social and economic aspects, employment, training and others. The KTM of Spain and France are mainly focused on ‘reducing the inputs of energy, including underwater noise, to the marine environment’ (KTM 28) and aimed at ‘improving the knowledge’ (KTM 14) on underwater noise. For descriptors D7 and D11, 5 measures require a regional implementation (mainly related with OSPAR work) and 3 might have a positive effect at upper-national level. The implementation level of transverse measures is in four cases at the EU/regional level and in 10 cases they should have a positive effect at the upper-national level.

4.3.3 Economic analysis The approaches used in the economic analysis of national PoM and the level of details provided varied greatly across the sub-region. Portugal reports the CBA in a qualitative manner for a single measure (no CEA), ‘Establishing Marine Protected Areas in the Portuguese marine waters’, admitting that the current knowledge about the deep sea ecosystems and the impact of human activities, make it unable to establish monetary value to the ecosystem services of oceanic MPA. In contrast, France presents only the CEA for new measures and, even in this case, the lack of knowledge means that the results of this analysis are again mainly qualitative. For example, for the measure ‘to improve National Coherence in the Regulation of Recreational Fishing’, the CEA limits to state that “there will be a low cost of implementation and a potentially high effectiveness”. In general, all new actions reported by France are considered cost-effective, with a focus on the financial costs of the implementation but ignoring the social costs. Spain presents a more detailed CBA and CEA for all new measures, but the analysis is again qualitative, with a focus on financial implications, and neglecting the wider social impacts due to their effects on ecosystem services. To assess the effectiveness, costs and benefits of each measure, it mainly uses expert judgement. For example, the average cost of measures addressing biodiversity is considered low. The effectiveness is considered from moderate to high. The benefits for nine economic sectors considered to be affected by biodiversity related measures are stated to be

47 MARIANNA CAVALLO very low except for the tourism sector. Moreover, the cost of measures adopted to reduce the impact of fishery is considered moderate to high, where four of them have a very high cost (corresponding to investments of more than € 2 million). The effectiveness is considered moderate or high, with three measures having a very high effectiveness (those concerning the ceasing/temporary halt to fishing). In general, this group of measures is considered cost-effective. In contrast, the market based benefits for the economic sectors interested are considered very low.

4.3.4. Integration with relevant legislation

The three countries report on the relevant policies, agreements and conventions associated with new and existing measures. Figure 8 shows an ordination analysis of the descriptors/group of descriptors per country, according to the pieces of legislation mentioned in each measure.

Figure 8 Two-dimensional nMDS showing the distribution of descriptors/groups of descriptors per country. The greater the distance among the same group of descriptors (e.g. D10 – Litter), the less agreement there is among the pieces of legislation mentioned by each country in the respective measures.

Portugal lists approximately 20 pieces of legislation in its PoM which are repeated among groups of descriptors (mainly OSPAR and CFP) while Spain and France integrate approximately 50 different statutes each. In the ordination analysis, Portugal measures for each descriptor are grouped, while those of Spain and France are mixed together. In agreement, ANOSIM rejected the

48 CHAPTER 4 null hypothesis of no significant differences in the type of legislation integrated for each descriptor by the three countries (p-value <0.01). The pairwise comparisons indicate no statistical significant difference between Spain and France, and both differ significantly from Portugal (p-value <0.01) (Table 8).

Table 8 ANOSIM global test and pairwise comparisons R –values with associated significance testing the null hypothesis of no difference among the countries in respect to the pieces of legislations mentioned in their PoM, by descriptor/group of descriptors of the MSFD.

Type of test R-value P value Global Test 0.423 < 0.0003 Pairwise tests among groups: Spain, Portugal 0.639 0.002 Spain, France 0.089 0.199(ns) Portugal, France 0.511 0.002

For the biodiversity descriptors, the OSPAR, CFP and the HD-BD-Natura 2000 Directives are the most cited by the three countries but with differences in the number of measures (e.g. Spain integrated OSPAR work in 41 measures while Portugal and France mentioned OSPAR in two) (Figure 9). Other legislation related to the protection of biodiversity is mentioned very little despite their important role, e.g. the UN CBD (7 measures of Spain and France), the Bern Convention (3 measures of Spain) and the EU BS (3 measures of Spain and France).

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Figure 9 Main pieces of legislation integrated in the three PoM for each group of descriptors.

Abbreviations: ACAP: Agreement on the Conservation of Albatrosses and Petrels; ACCOBAMS: Agreement on the Conservation of Cetaceans in the Black Sea Mediterranean Sea and Contiguous Atlantic Area; Bern Convention: Conservation of European Wildlife and Natural Habitats; BD: Birds Directive; CFP: Common Fisheries Policy (and amendments); Com (2012)665 final: Action Plan for reducing incidental catches of seabirds in fishing gears; Directive 2009-17-EC establishing a Community vessel traffic monitoring and information system; Directive 2009-123-EC on ship-source pollution; Directive 2013-39-EU regards priority substances in the field of water policy; Directive 2014-101-EU: framework for Community action in the field of water policy (amending WFD); EU BS: EU Biodiversity Strategy; FAO: UN Food and Agriculture Organization; HD: Habitats Directive; IC- CAT: International Commission for the Conservation of Atlantic Tunas; ICES: International Council for the Exploration of the Sea; IEA: Environmental Impact Assessment (and amendments); IMO: International Maritime Organization; IUCN: International Union for Conservation of Nature; PRF: Port Reception Facilities Directive; EMFF: the European Maritime and Fisheries Fund; Reg. 708-2007: concerning use of alien and locally absent species in aquaculture; Reg. 854-2004: controls on products of animal origin intended for human consumption; Reg. 2015-812: as regards the landing obligation; Reg. 2016-145: on invasive alien species; Reg. 2166-2005: measures for the recovery of the Southern hake and Norway lobster stocks in the Cantabrian Sea and Western Iberian peninsula; SEA: Strategic Environmental Assessment (and amendments); TAC: Total allowable catches; UN CBD: Con- vention on Biological Diversity; UNEP: UN Environmental Protection; UNCLOS: UN Convention on the Law of the Sea; UWWT: Urban Waste Water Directive; Waste Framework Directive.

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4.4. Discussion

The analysis of the PoM from Spain, Portugal and France showed that there are differences in the reporting, scope of the measures, level of implementation, economic analysis and in the integration with relevant legislation.

4.4.1. Differences in reporting

Member States are allowed a certain degree of flexibility, under the principle of subsidiarity, in developing their programmes but the information must be reported in a consistent and comparable format (EC, 2014b). Using the EC and OSPAR guidelines as reference, more similarities were found between Spain and France, which both provide the most relevant requirements while important information is missing in the Portuguese PoM (Table 4). In particular, the descriptor/s and the KTM are not indicated in most of the existing measures, but it is assumed that these will contribute to improving the environmental status of Portuguese national waters. These differences in reporting could be explained by the fact that Portugal published its programme almost two years before (at the end of 2014) Spain and France as well as the other countries of the North-East Atlantic region (EIONET Report Obligation Database14); this has reduced the possibility to learn from others and to fill eventual gaps in information that needed to be reported. This also prevented a consultation between Portugal and the other countries, but allowed it between Spain and France, thus enabling a closer reporting and similarity between these two countries. The lack of information and the differences in the reporting between the countries prevent an understanding of environmental issues in common in the sub-region and that are better tackled by concerted actions. For example, Spain reports on single measures for the protection of species and habitats of the OSPAR list, while France and Portugal mention few species on this list. Differences were also noted in the economic analysis, where Spain gives more details about the cost, the effectiveness and the benefits for each of the sectors affected by new measures. There was also disagreement between the information provided in the reporting sheets and in the paper report of each country, for example in the number of measures listed. Moreover, the level of detail provided for each measure varied within national programmes. In fact, some measures are well described while others, mainly existing measures, are reported with little detail and with no clear insight of how they will contribute to the achievement of GEnS. Loizidou et al., (2017) also analyse the PoM

14 http://rod.eionet.europa.eu/obligations/612/deliveries

52 CHAPTER 4 of the Mediterranean Sea region and report the same difficulties in comparing national reports and identifying common measures because of the wide range of approaches adopted by the Member States. The same problems were identified by the JRC in its ‘in-depth analysis’ (EC, JRC 2014) in the first phase. Activities to fill gaps in other phases of the directive, e.g. targets and monitoring, are by definition not measures (EC, 2014b), however, they have been reported by the three countries under different descriptors. For example, the French measure “Limiting the point and diffuse source of pesticides” or the Spanish measure “Improve the knowledge of aspects related to marine pollution” can be more likely considered targets. All the differences identified in this analysis, highlight the need for a more coherent reporting exercise as the first step for a coordinated implementation of environmental policies and this could be easily achieved if countries are willing to discuss their gaps in knowledge and to exchange information during the development of their programmes.

4.4.2. Differences in scope and spatial application

In the sub-region, measures address all the qualitative descriptors of the MSFD but with differences on the number and focus. Most measures are directly linked to biodiversity and focused either on the restoration and conservation of biodiversity, through the creation or extension of Marine Protected Areas, or on mitigation of the impact from maritime activities, such as fisheries. Other actions, aimed at reducing contamination, eutrophication and litter in the ocean, will also contribute to achieve GEnS for biological diversity. However, measures related to biodiversity show differences in detail: from a very general reference to the protection of seabirds and sea mammals to the specific mention of particular species/habitats, associated pressure and Interna- tional Convention (mainly OSPAR and ICCAT). The integration with the existing lists of threatened species/habitats distributed at sub-regional and regional level is particularly important in this phase of the MSFD since coordinated measures are needed to improve their status effectively. The wide differences in the KTM for each group of descriptors do not have to be considered only as a negative aspect, especially when the impact of a given pressure is mitigated through a wide range of actions among countries. For example, the impact of fisheries on biodiversity is addressed by reducing by-catches, by decreasing the number of fishing boats, temporary cessation activities, and establishing minimum capture size for several species. Moreover, the impact of contaminants and nutrients has been addressed in very different ways: from reduction of sea-based pollution to

53 MARIANNA CAVALLO land-based pollution through different actions. Such a mixture of approaches may be the result of the specific characteristics of each country and not the lack of political will to develop coordinated measures. It is suggested here that when one or more local pressures may have an impact on the waters beyond national borders (e.g. introduction of nutrients and contaminants from land) they can be jointly addressed by countries through different measures. When several pressures act at the same time in a given area, their impact can be cumulative, producing synergistic or antagonistic effects either strengthening or weakening each other (Griffith et al., 2011, 2012; Elliott et al, 2017). For this reason, it is valuable to determine the interaction between different measures; whether they can boost or weaken each other’s effects (Judd et al., 2015). For example, Uusitalo et al. (2016) demonstrated that nutrient reductions produce more positive effects in the marine ecosystem than the decrease of fishery effort and that the greatest benefit is reached by joint reductions of these two pressures. However, in some cases, coherence among measures is needed to tackle those pressures that have effects on the waters of the entire region, such as contamination from ships, or to protect threatened species that have wider distribution. In these cases, countries should set coherent limits, e.g. in the catches of red tuna, or to integrate targets of other legislation. For example, oil tanker accidents, such as the Erika (France, 1999) and Prestige (Spain, 2002), have received public attention at international level to find solution for minimising the risks related to such events (Vanem et al., 2009). As a consequence, several international regulation and preventive measures have been developed to reduce the environmental risk associated with oil spills related to either operation or tank design (Vanem et al., 2009). Even if France and Spain have developed a number of measures that need to be implemented at sub-regional and regional level, none of the countries examined here identified any issue that require actions at EU and regional level and that cannot be tackled by measures adopted at national level (Article 15, see Chapter 2). This contrasts with what is suggested in the literature, where the interconnectivity of the seas require some management measures to be taken in a coordinated way among countries to avoid opportunistic behaviours (e.g. Swanson & Johnston 1999; Perrings, 2016). For example, “free-riders” enjoy the benefits of the exploitation of common maritime resources (e.g. fish) without participating in the costs and constraints imposed by regulations. More- over, similar levels of ambition in the implementation of marine policy need to be reached by each country (Borja et al., 2010) and each of them have to contribute to the achievement of the GEnS of the (sub)region.

54 CHAPTER 4

4.4.3. Differences in policy integration

The analysis of policy integration showed that a wide range of international and EU (and national) legislation was mentioned by the three countries in their programmes. However, the types of legislation implied were more similar for Spain and France than for Portugal. Differences were also observed in the number of times a given legislation is mentioned (Figures 9 and 10). Major similarities were found for the integration of policies regarding D3–Fish and shellfish, where the three countries integrate measures from the CFP and using TAC while Spain and Por- tugal also considers the work under ICCAT and OSPAR Commission. Despite the relevant role of ICES in fisheries management, only Portugal integrates related targets. On the other hand, there were many differences in the type of legislation integrated with descriptors for Contaminants and Eutrophication. This could be due to the fact that, for instance, Portugal focuses more on preventing sea-based pollution caused by ships (integrating mainly European legislation); Spain focuses more on the reduction of nutrients and contaminants from land and air (integrating mainly OSPAR work) while France addresses the reduction of nutrients from agriculture (integrating directive 2014-101-EU amending the WFD). However, in some cases, even when countries address the same type of pressure, e.g. reduction of nutrients from land or protection of a given species, different pieces of legislation have been integrated. The same ‘pick-and-choose approach’ was identified during the definition of GEnS, establishment of targets and initial assessment (EC, Annex 2014; Chapter 2). In Chapter 2 it is suggested that this could be explained by the fact that Member States have limited knowledge of the real connection between such policies and the MSFD. In recognition of this, either the EC (EC, 2014b) or OSPAR (OSPAR, 2015) provided recommendations with a comprehensive list of the pieces of legislation whose work should be considered in the MSFD PoM. This analysis has shown that some important pieces of legislation have not been mentioned by the three countries. For example, for the biodiversity descriptors, the ACCOBAMS is mentioned only by Spain, while the CITES Convention only by France; for Eutrophication, the UWWD is mentioned only in two measures by France and Spain. The purpose of the MSFD is to integrate and not to replace other related environmental legislation (Boyes and Elliott, 2014) and several pieces of legislation are clearly mentioned in its text regarding the protection of biodiversity – CBD, HD and BD – and the prevention of pollution –

55 MARIANNA CAVALLO

UNCLOS, WFD and others. When implementing the future steps of the MSFD and other multi- sectoral policies, Member States should put more effort to integrate the objectives of other legislation. The consequences of the failing in policy integration could be duplication of work, contradicting policy outcomes and waste of economic resources (Maier, 2014). Even though achieving the final objective of GEnS is strongly linked to the success of other EU (van Leeuwen et al., 2012; Ounanian et al., 2012) and international legislation, in some cases, existing measures are not sufficient to reach this objective and it is useful to identify and resolve gaps and, where necessary, take further actions (Boyes et al., 2016).

4.4.4. Gaps in the economic analysis

The EC through its Common Implementation Strategy Working Groups provides support to Member States to exchange information and to identify best-practices on the CBA and CEA application (EC, 2015a). However, there are no specific guidelines indicating which methodologies have to be adopted for the economic analysis (EC, 2015a) and, as a result, the approaches used to perform this analysis vary among the three Member States. They recognise a lack of information to perform the economic analysis, which was mainly qualitative, and lacking the social considerations that should characterise this type of analysis. In particular, comments provided in the Span- ish public participation process recognise that the benefits of the programme of measures would have been much higher if the ecosystem services would have been considered in the analysis (MA- GRAMA, 2015). Global biodiversity continues to decline, undermining ecosystem functions and thus compromising the flow of ecosystem services and societal benefits (MEA15; De Groot et al., 2012; Turner and Schaafsma, 2015). Environmental appraisal tools, such as cost-benefit analysis and cost-effectiveness, are valuable to raise awareness about the importance of marine ecosystems and biodiversity to policy makers (Atkinson and Mourato, 2008; De Groot, et al., 2012; Turner and Schaafsma 2015; Elliott et al., 2017). This approach is recommended to make a more effective use of limited financial resources, identifying where protection is economically most important and can be achieved at lowest cost (Crossman and Bryan, 2009; Crossman et al., 2011, Borja and Elliott, 2013). Assessing the benefits of a sustainable use of marine resources could be also im-

15 http://www.millenniumassessment.org/en/index.html

56 CHAPTER 4 portant to know the economic loss deriving from the degradation of ecosystems for the maritime sectors (Borja et al., 2017). A coordinated effort at regional and EU level could help countries to address these gaps and eventually to establish the compensation that should be paid for the loss of biodiversity and the related services provided. The UNEP project, TEEB for Ocean & Coasts, aims to bridge the gaps in knowledge on ocean ecosystem services and functions and to draw attention to the social non-market benefits deriving from the maintenance of marine biodiversity16. Despite the progress in economic valuation as a tool for decision making, when dealing with the management of environmental resources, the cultural value of ecosystems is a key dimension in which there are still many challenges to contextualise in monetary terms due to social complexity, diversity, spiritual significance on human health and well-being (Sandler, 2012; Turner and Schaafsma, 2015; Elliott et al., 2017). It is suggested here that Member States included in the same marine region and/or sub-region should work together to identify those measures that are more effectively implemented in collaboration with other countries (under Article 15) to share the costs and the benefits of such actions. To promote this kind of actions, the EC provides financial support through the European Maritime and Fisheries Fund (EMFF) and Cohesion Funds (CIS, 2013).

4.5 Conclusions

The programmes of measures developed by the three countries of the Bay of Biscay and the Iberian coast sub-region are, in general, difficult to compare given the lack of relevant information that does not allow understanding of how such measures will improve the status of the marine environment. Most actions aim to protect the marine biodiversity, although Spain has mainly integrated the OSPAR list of species and habitats that have sub-regional distribution; these species require coordinated and wider-scale effort in order to be protected but French and Portuguese measures have mostly a national level of implementation. It is concluded here that countries need to make better use of the EC and OSPAR coordination structures and the guidelines they provide, to improve coherence in the programmes of measures and in all the phases of the MSFD. Further- more, more political willingness is essential to identify common gaps in knowledge and exchange

16 http://www.teebweb.org/areas-of-work/biome-studies/teeb-for-oceans-and-coasts/

57 MARIANNA CAVALLO best practices, even with the Member States of the other regions and sub-region. Moreover, Mem- ber States need to work together to develop joint programmes of measures to address transboundary issues and to perform joint economic analysis where costs and benefits can be shared across the sub-region.

Chapter 5

Discussion, Recommendations for Further Work and Conclusions

In order to move towards an ecosystem approach to the management of the marine environment is essential to implement marine policies with a regional focus, promoting collaboration among countries and integration between all economic sectors and recognising the importance of human social system (UNEP, 2011). The aim of the present study was to identify the impediments and opportunities associated with a coherent implementation of the Marine Strategy Framework Directive (MSFD) in the North-East Atlantic Region (NEAR). This has encompassed: 1) identifying the phases of the directive (e.g. definition of GEnS or set of targets) where national strategies showed the major differences through a comparative analysis of the Member States reports; 2) analysing the effectiveness of the EU and regional coordination structures and other social platforms (described in Sec- tion 1.2.2) through an on-line survey and a literature review; 3) identifying the benefits of a coherent integration of existing EU and international environmental legislation, especially those that regulate maritime activities that have an impact on the environmental status of the entire region and 4) assessing the impediments and opportunities behind the adoption of common agendas at regional level. The main findings of this research are discussed in this chapter and have allowed to make some recommendations to improve coherence in the implementation of the second cycle of the MSFD and that can be applied also to other EU and international marine policies.

5.1. Comparability of the reporting requirements

The first weakness that emerged from the comparative analysis of the national reports was the heterogeneity of the information provided by each Member State. In fact, despite the recommendations of the EC (EC, 2010; WG GES, 2011; CIS, 2013; EC, 2014b) and the OSPAR (OSPAR 2012a, b; OSPAR, 2015) to improve consistency in the reporting exercise, there were differences in the period of submission, level of detail in the information and the type of recommendation

59 MARIANNA CAVALLO reported. It is surprising that, even if representatives of each Member State have participated in the developed of such non-binding guidelines, these have been considered in very different ways in national reports. Such differences were identified both in the reports on the first phase of implementation (Chapter 2) of the ten countries of the NEAR and in the programmes of measures of the three countries of the Bay of Biscay and the Iberian coast sub-region (Section 4.3). For example, differences in the period of submission were identified in the programmes of measures, where Portugal published its programme almost two years before Spain and France. In Chapter 2 are presented the differences in the approaches used to establish GEnS and targets in the NEAR where both have been defined at different levels, from descriptor to indicator level. Moreover, the level of details in the economic analysis of the programmes of measures varied widely among countries where Spain presents both CEA and CBA for all the new measures, the French analysis was limited to the CEA and Portugal reports the CBA for one measure only. The same weaknesses are identified by the EC in its recent analysis of the WFD PoM of all the EU countries (EC, 2015b). It highlights the delay in submitting the report by certain countries and “the lack of detail in defining the measures concretely which may lead to insufficient action to tackle the specific problems of the water bodies and hinder the achievement of the WFD at local level”. The MSFD allows Member States a certain degree of flexibility in developing their programmes but it require the information to be reported in a consistent and comparable format (EC, 2014b). The differences in reporting identified in this study made it difficult to compare the national strategies and identify best practices and issues where more scientific research is needed to fill gaps in knowledge. Other studies highlight that the data reported to fulfil the obligation of environmental policies do not always have the same units, names and codes, thus there are draw- backs in their compilation in aggregated data sets (Deltares, 2014; IOC-UNESCO & UNEP,2016; Bertram & Rehdanz, 2013; CoR, 2016). Such differences could be explained as follow. The different periods of submission could be a consequence of the complexity of national governance arrangements which varied widely across the NEAR. For example, in Spain, even if the implementation of the MSFD is within the compe- tence of the central government (Suárez de Vivero and Rodríguez-Mateos 2012), the Autonomous Communities play a central role in the development and implementation of measures and they could have delayed the submission of the report. Moreover, the marine waters of Spain and France

60 CHAPTER 5 are part of two regions - the North-East Atlantic and the Mediterranean Sea – and both countries have developed measures that are specific for each region. The comparative analysis of the PoM showed that Spain and France programmes were more complete and easier to compare while Portugal reports, published at the end of 2014, lack of relevant information, especially for the existing measures (Table 4). It is clear that the differences identified in the approaches used in reporting represent the first bottleneck towards a coherent and successful implementation of the MSFD because these prevent countries from learning from each other and overcoming the problems deriving from the complex reporting exercise as well as to align GEnS definitions, targets and measures.

5.2. When is regional coherence and coordination essential in the implementation of the MSFD?

The Introduction of the thesis presents the main MSFD obligations on regional coordination and policy integration (MSFD, Paragraphs 11 and 13; Articles 5(2) and 6) that Member States have to fulfil to achieve the GEnS of their marine waters. However, the three previous chapters have demonstrated that achieving a good level of coherence both a regional and at sub-region level is not straightforward. In particular, the comparative analysis of national reports made in Chapters 2 and 4 presents the main differences among GEnS definitions, targets, measures and in the type of legislation integrated, but did not allow to understand the reasons behind these differences. To this end, in the on-line survey very specific questions were formulated to allow the parties involved in the coordination activities of the MSFD to identify those reasons and to give their opinion about the Member States difficulties in achieving a coherent implementation of the directive. It has been identified here what can be termed a “paradox of coherence” since Member States have the control over the way they implement this framework (under the principle of subsidiarity) but a certain degree of coordination is required to develop coherent strategies. The failure of the top-down approach in the management of marine resources is well documented in the implementation of the CFP, where details were decided at the central EU level without taking due consideration of local ecologic and social needs (Symes 2007, Hegland et al., 2012). Here it is emphasised that there are some aspects of the MSFD where a national or even local approach is necessary to address specific issues (Sections 3.4.2 and 4.4.2). The responses provided in the survey indicate that there are some phases and requirements that countries are not able to fulfil in a coherent way

61 MARIANNA CAVALLO across the region, namely some targets, indicators/criteria, management measures. In fact, some of these are strictly dependent on the specificity of national geopolitical and biogeographical characteristics (biodiversity composition and types of pressure) and on the financial resources available. For example, environmental targets, and associated indicators, were established to bridge the gaps between the current situation (established in 2012 with the initial assessment) and the GEnS (that have to be reached in 2020). It is clear that the status of the marine environment across the region was different, hence, as consequence, the targets have been established taking into consideration such baselines. Similarly, the different programmes of measures of France, Portugal and Spain showed that it is difficult to be coherent even at sub-regional level and that a given impact can be mitigated through different actions, according to the financial possibility of each country.

On the other hand, it remains to be confirmed that each country is contributing in improving the environmental quality of the entire marine region and that the actions, or inactions, taken at national level are not compromising the GEnS of the adjacent countries. For this reason, it is suggested here that higher levels of coherence are essential in the definitions of GEnS, to ensure that countries are working to reach similar levels of ambitions (similar conditions), otherwise the objective of ecosystem-based management at the basis of this directive is compromised. The comparative analysis made in Chapter 2 shows many differences in the approaches used by the ten countries of the NEAR to establish GEnS for their national waters and, in particular, among the three countries of the Bay of Biscay and the Iberian coast sub-region. The lowest levels of coherence among definitions were associated to biodiversity descriptors (D1, D4, D6) since none of the ten Member States have defined the GEnS in the same way (or even similarly) (Milieu Ltd., 2014f). Moreover, a wide range of targets were established for biodiversity descriptors with a lack of consideration of the list of threatened species and habitats which distribution span national borders and, for this reason, require coordinated efforts to be protected effectively. The same weaknesses were identified in the PoM of France, Portugal and Spain. In fact, there were differences in the list of species and habitats and the focus of the measures was mainly national (Table 5). Among the 237 biodiversity related measures, 71 of them require a regional or EU/international level of implementation (63 from Spain and none from Portugal) while 32 will have a positive effect at upper- national level (Table 4). The thesis wants to emphasise that achieving coordination at regional and sub-regional level is essential to regulate those socio-economic activities that have an impact on the water of the entire region or to protect the species and habitats, and more in general, marine resources which

62 CHAPTER 5 are distributed across the NEAR and its sub-regions (namely mammals, seabirds, reptiles and sharks). For example, unsustainable fisheries have an impact not only on commercial species but also on marine biodiversity, through by-catch, discard, bottom trawling, and fishing litter. Simi- larly, the impact from shipping, namely invasive species, emission of solid, liquid and gas pollutants need to be addressed at the international level. These considerations are made on the basis of the answers provided by the respondents of the survey (Section 3.3). When they were asked whether it was feasible to implement the MSFD in a coherent way within regions, most of the respondents (41%) considered it valuable to establish a set of minimum requirements at regional level (e.g. GEnS and criteria but not indicators). With regard to the protection of biodiversity, 70% of the respondents agreed that there should be a common list of the most vulnerable species/habitat/communities within each region and that such a list should include and go beyond those of other relevant pieces of legislation and agreements (e.g. the HD and BD and OSPAR) (Figure 4). A low level of coherence in the implementation of this multi-sectoral directive, together with the consequences for the marine biodiversity, brings uncertainty among those economic sectors whose activities span geopolitical boundaries. Other studies on the stakeholder perspective on the MSFD, highlight the concerns of the shipping and offshore renewable energy sectors about the fact that Member States will interpret the directive in different ways (EWEA 2007; Ounanian et al., 2012).

5.3. Need to improve coherence in policy integration

One of the main objectives of this thesis was to demonstrate that higher levels of regional coherence were achieved among countries when data, targets and measures from existing legislation were integrated. Chapter 2 demonstrates how a proper policy integration has improved coherence in the GEnS definitions and targets among countries; for example, the level of coherence for D5-Eutrophica- tion, D8-Contaminants, D9-Contaminants in seafood and D10-Marine litter was, in general, high and most of the ten countries made large reference to the WFD and OSPAR during the first phase. Chapter 4 presents the differences in the integration of measures from related legislation (Figure 8 and Figure 9) and the statistical analysis has established significant differences among the pieces of legislation mentioned by Spain and France and those of Portugal (Table 8).

63 MARIANNA CAVALLO

Despite the differences identified in the national reports, the survey presented in Chapter 3 showed that participants of the Marine Strategy Coordination Group recognise the importance of a coherent policy integration. For example, the integration with the obligations of other policies is considered one of the most important factors to achieve GEnS, after more investment in measures to reduce pressures (Figure 6 and 7). Moreover, a proper integration with relevant pieces of legislation was ranked as very important and important (97% of the respondents) to improve coherence among countries. It has to be recognised here that, given the multi-sectoral feature of the MSFD, the work from a very wide range of legislation can be integrated (see Chapter 2) and it has generated uncertainty among Member States on how the integration should be made (Chapter 2 and Figure 9). The MSFD recognises the possibility of conflicts deriving from a non-coherent integration with related European and international legislation. In fact, Article 1(4) states that “the MSFD shall contribute to coherence between, and aim to ensure the integration of environmental concerns into the different policies […] which have an impact on the marine environment”. To this end, some guidelines were provided to improve coherence in policies integration for each qualitative descriptors (summarised in Chapter 2). The legislations listed in these guidelines have been considered in very different ways, especially those related with the protection of biodiversity adopted at national, regional (e.g. OSPAR), EU (Biodiversity Strategy or HD) and international (UN Convention on Biological Diversity). For example, the analysis of the programmes of measures showed that the three countries of the sub-region integrated the measures from around 40 pieces of legislation for biodiversity (Figure 9 - Biodiversity). The importance of a coherent integration with the work from existing legislation and the benefits deriving from it are recognised by other authors. Salomon & Dross (2013) suggests Member States to consider existing objectives and measures approved by RSC while van Leeuwen et al., (2012) and Ounanian et al., (2012) recognise that achieving GEnS is strictly related to the success of other EU legislation. Loizidou et al., (2017) after an analysis of the PoM adopted in the Medi- terranean Sea region, highlight the great opportunities offered by the integration of the measures developed to meet the obligations of other legislation. A Dutch study explained that a comprehensive integration among environmental legislation is becoming more complicated because several actors (e.g. economic stakeholders and institutions), at national, regional and international level, deal with the many directives which differ in the spatial and temporal scale of application (Beunen et al., 2009). Ounanian et al., (2012) analyse

64 CHAPTER 5 the problems deriving from the growing complexity of the environmental regulation adopted at different level for the shipping sector. They highlight the concerns of this sector in regulations addressing ballast water and anti-fouling paint. According to them, there can be potential conflicts in the way these two pressures are regulated at the international level by the IMO and at the EU level by the MSFD and the WFD (Ounanian et al., 2012). Problems were identified in the integration between natural directives and the CFP (Jones et al., 2013; Qiu and Jones, 2013) and the Common Agricultural Policy (ICCB-ECCB, 2015) that, if unresolved, can generate conflict between marine protection and economic activities (Maier 2014; Salomon, 2006; Markus et al., 2011). The Organisation for the Economic Cooperation and Development concludes that to date, it is difficult to evaluate the effects of integration among policies, or the lack of it, especially in quantitative terms, given the paucity of studies in this area (OECD, 2012).

5.4. Assessing the effectiveness of the MSFD coordination structures and social platforms

Throughout the thesis, a number of social and coordination platforms have been identified and described together with their effectiveness in exchanging and coordinate views and identifying common practices in the implementation of the MSFD, namely the EC CIS Working Groups, OSPAR Commission, trilateral and bilateral meetings, and the national public consultation. These include representatives of the Member States, stakeholders, international organisations, NGOs, EC and RSC. The RSC are considered by the Marine Strategy Coordination Group participants the most effective structures for enhancing cooperation, followed by the CIS. However, Member States from the Mediterranean and Black sea regions, not unexpectedly, pointed out that coordinating actions is more difficult in those marine regions where EU countries are the minority (8 out of 21 in the Mediterranean region and 2 out of 6 in the Black Sea). When asked whether it was feasible to implement the MSFD in a coherent way within regions, 22% of the respondents, all from the Baltic and the North-East Atlantic regions, considered that it is possible when the current coordination structures are properly used. Moreover, as explained in sections 1.3 and Chapter 2, the OSPAR Commission supported Member States of the region through specific strategies to accommodate MSFD and an Intersessional Correspondence Group-MSFD. As a result, the OSPAR work has been mentioned for all the 11 descriptors during the first phase of the directive (Chapter 2) and in the PoM for each group of descriptors (Figure 9) and its guidelines have been

65 MARIANNA CAVALLO used by two of them (France and Spain). Taking into consideration these results, the OSPAR Com- mission can be considered an effective coordination structure for a coherent implementation of the MSFD. On the other hand, it has to be recognised that coordination structures and social platforms are not sufficient to deliver a coherent implementation of the MSFD without a strong political will of all the countries to use it to cooperate. This thesis presents an extensive literature review on the effectiveness and opportunities offered by a proper use of coordination structures and social platforms to fill gaps in knowledge, identify and resolve conflicts, lack of communication and trust, resistance to collaborate and adopt common solutions. Filling gaps in knowledge. Chapter 4 identifies important knowledge gaps in evaluating the broad social benefits of the marine protection measures in order to inform a cost benefit analysis and in identifying those measures already in place under international legislation. The same gaps were observed in the German PoM (Bertram et al., 2014) where it was not possible to adequately estimate the benefits deriving from marine protection measures. The authors suggest to fill those gaps by improving data availability to allow for a more complete CBA combining qualitative and quantitative information (not only based on monetary values) (Bertram et al., 2014). The management of the marine environment with an ecosystem approach requires knowledge of complex social–ecological interactions (Folke et al. 2003; Elliott et al., 2017). This flow and integration of knowledge from different sources is possible through social networks that include actors with different expertise and from different institutions (Imperial 1999, Olsson et al. 2006). It has been demonstrated that representatives from institutions at different levels (from EU and international organisation to local governments) possess very specific but incomplete knowledge about the use of marine resources (e.g. fisheries) but if put together their strengths can be combined (see Ostrom, 1990; Plummer and Fitz-Gibbon, 2004; Singleton, 1998; Berkes, 2009; Noble, 2000; Rutherford et al., 2005). However, there is the need for experts with a multidisciplinary background able to integrate social, economic and natural science, and the lack of it has impeded the communication between marine science and marine policy (Elliott 2013, 2014; Fletcher 2007; Torres and Hanley, 2017) especially in fisheries, water quality, whaling, and marine conservation areas (Duda and Sherman, 2002). The United States Committee on Science and Policy for the Coastal Ocean (1995) observed that, ‘‘at the very heart of the issue of the use of science for policy- making is the fact that science is concerned with inquiry, description, and explanation, whereas policy-making is concerned with governance and human behaviour”. Quevauviller et al. (2005)

66 CHAPTER 5 affirm that there is the insufficient flow of information from the scientific community to policy decision-makers or vice versa as to formulating their problems to identify scientific ‘inputs’ necessary to solve them. Analysing the implementation of the MSFD in the Mediterranean Sea, Levin et al. (2014) suggest that the following steps should be taken to fill the gaps in data flow for biodiversity descriptors: a) to make available current inaccessible datasets and databases on depth, habitats, and species distribution; b) to harmonize current approaches in marine mapping, and c) to undertake further extensive habitat mapping to fill in the gaps especially in the deep seas and special features such as canyons and seamounts. These recommendations can be applied also to the NEAR given that the lowest levels of coherence identified here for biodiversity descriptors could be also the results of the differences in knowledge among countries. Identifying and resolving conflicts. There is an extensive literature that has investigated the problems deriving from the management of natural resources that does not pay due attention to the associated social component (also referred as mismatch between social and ecological dynamics) (Folke et al. 1998, Berkes and Folke 1998, Carpenter and Gunderson 2001, Berkes et al. 2003; Young 2002, 2003). Other authors proved that effective social structures are an arena for conflict resolution and trust building (Jones et al., 2013; Costanza 1999; Pinkerton, 1989; Berkes, 2007; Granovetter 1973). Given that the MSFD is a Framework Directive, collaboration among countries and enforced commitment cannot be achieved through control by the EU (Pahl-Wostl, 2007a, 2007b; Van Ark, 2005) but through voluntary agreements reached by the discussion that takes place in the social platforms (Beunen et al., 2009). Fletcher (2007) identifies some weaknesses in the use of these structures, such as the unspecified actors that have to participate and, at what stage and how they should be involved. The MESMA project (Jones et al., 2013) analysed 12 cases studies across Europe to identify good practices of stakeholder involvement structures. This comparison shows that, despite the progress made in some fora to involve actors (such as the Wadden Sea Trilateral Cooperation in the Southern North Sea), they have very little power in the decision- making (mainly top-down control by central governments). Moreover, the MESMA research demonstrated that there are few mechanisms for conflict resolution and that such mechanisms have not being implemented effectively (Jones et al., 2013). Resistance to adopt common solutions and practices. The results of the survey indicate that lack of political willingness of some countries to cooperate is one of the main impediments towards a coherent implementation of the directive (Section 3.4.4). Maier (2014) affirm that MSFD coor-

67 MARIANNA CAVALLO dination structures proved to be effective during the adoption of the MSFD, but “more institutionalised procedures” are needed to improve cooperation in the post-adoption phase. More studies highlight the importance of social structures for a successful management of marine ecosystems not only in relation to the MSFD (see Olsson et al., 2007; Connelly and Richardson, 2004; Elliott, 2014; Maier, 2014; Zenetos et al., 2013; Patrício et al., 2014; Newton and Elliott, 2016).

5.5. Recommendations and suggestions for further work

The comprehensive analysis of the MSFD implementation in the North-East Atlantic region has allowed to propose some recommendations for further work in this research area and some suggestions for all the parties involved in the implementation of the directive in the four marine regions.

5.5.1 Recommendations for further research

Here, two research areas have been identified where further work is necessary to overcome the impediments toward a successful implementation of the directive: the social and economic aspects. On the one hand, the thesis has assessed the effectiveness of the coordination structures and social platforms in enhancing coherence among national strategies, however it is necessary to investigate the role of each structure (see the complete list in 1.1.2) that differ for the type of participants, in the way they take part in the decision process and the issues discussed. Therefore, a comprehensive analysis would be very valuable to identify good-practices that can be exchanged and applied to different structures. Other aspects need to be clarified, possibly through ad-hoc interviews. For example, the type of stakeholders that takes part at EU, regional and national level and what is their contribution – are they just observers or do they have power to influence the decision process? On the other hand, the different approaches used by France, Portugal and Spain for the economic analysis and the lack of details provided, did not allow to make consideration on the benefits deriving from the measures established by each country. It is recommended here to extend the analysis to the entire region (North-East Atlantic region) or to make a comparison among four marine regions, to identify best-practices. This was not possible in this study since the original national reports had not been translated (into France or English).

68 CHAPTER 5

5.5.2 Suggestions for policy-makers

A more coherent and coordinated implementation of the MSFD in the next cycle can be achieved through the following actions that should be taken into consideration by all the parties, namely governments, EC and RSC representatives, stakeholders and scientific community. Improving comparability in the reporting. To this end it is recommended here 1) to make a more extensive use of the EC and RSC guidelines; 2) to work together to improve and update such guidelines to identify the minimum elements (e.g. indicators or threatened species) that are specific for the North-East Atlantic region or each sub-region; 3) to integrate data from other legislation (e.g. the WFD); 4) to fill gaps in the reporting using the existent platforms to exchange information. At EU level, tools such as REFIT (Fitness-check on streamlining monitoring and reporting obligations in environment policy), EMODnet and Marine Knowledge 2020, have been created to improve access to data and reduces costs to users, to stimulate innovation and reduce uncertainty about the nature of our seas. At regional level, OSPAR developed the ODIMS (Data and Infor- mation Management System) to facilitate data reuse and increasing transparency of data underpinning assessments and reports. The European Committee for the Regions on this issue, suggests that better and more accessible information at national and regional levels will allow environmental problems to be identified earlier, facilitating the application of the early-warning systems set out in the various directives, and saving costs in the longer term (CoR, 2015). Achieving higher levels of coherence. In Section 5.2. are identified the phases and requirements of the MSFD where coherence is particularly important and other where a certain degree of flexibility is necessary to address local specificities. It is suggested that a coordinated effort is essential to protect those species and habitats which distribution span national borders and to manage those economic activities that may have an impact in the entire region (e.g. contamination from land or from shipping). In the future cycles of the MSFD, all countries should put more effort to establish targets and measures that require a coordinated implementation and clearly state their effect on the waters of the entire region. This could be very useful to assess how each country is contributing to achieve the GEnS of the entire region. As a result, the fact that actions taken by one country could have a positive effect also on other national waters, could encourage other countries to take more ambitious measures since they have the perception that everybody in the regions is putting the same/similar efforts to achieve the same objective. Another way to improve coherence would be the development of joint programmes of measures, joint monitoring programmes

69 MARIANNA CAVALLO and common high-level targets. Some studies have demonstrated that, for international environmental problems, the same targets can be achieved with much lower cost if the cost-effectiveness analysis involves collaboration between countries (see Neumann and Schernewski, 2001). The results of an EC survey17 investigating the opinion of approximately 70 stakeholders in the context of the Maritime Spatial Planning, showed that enhancing coordination will have important positive economic effects since it will provide greater predictability and transparency for investment, especially in projects in different Member States’ territorial waters. Here it is also suggested that countries should not be forced to adopt indicators and criteria as well as targets and measures that are not relevant for their territory, that do not address local and national specificities, including biodiversity and local economic activities, and will not provide benefits for local society. Improving coherence in policy integration. It has been shown that a coherent integration with the data, targets and measures from other legislation is particularly difficult when there are in place many national, European, regional and international legislative instruments. It is suggested here that there should be the integration of the UN Convention on Biological Diversity targets (Aichi biodiversity targets) related to the protection of marine biodiversity that have already been included in other legislation; for example, by the OSPAR (concerning the establishment of MPAs), by the EU Biodiversity Strategy (all targets), Benn Convention (invasive species), FAO (sustainable fisheries) and IUCN (technical support). Moreover, at the level of NEAR, the Member States that are also OSPAR contracting parties should integrate the list of 42 species and 16 habitats that are either threatened or in decline (OSPAR, 2015). The integration of CBD targets and OSPAR list of species into the MSFD will help countries to fulfil their obligation other under legislations and to adopt a common agenda with the other non-EU countries. Given the complexity of the issue, all the parties responsible for the implementation of the MSFD, including Member States, Euro- pean Directorates-General, the RSC and working groups set up under the international conventions should work together to identify the real overlap between pieces of legislation, hence to make the best use of the existent work and to identify possible areas of conflicts among objectives that need to be resolved. More effective use of the coordination and social platforms. Throughout the thesis it has been emphasised that the many social and coordination platform supporting a coherent implementation of the MSFD at different level, if properly used, will contribute to identify and resolve conflicts

17 http://ec.europa.eu/dgs/maritimeaffairs_fisheries/consultations/blue_growth/index_en.htm

70 CHAPTER 5 that can rise during the future implementation of the directive, to exchange views and concerns, to identify and adopt best practices, to fill gaps in knowledge and information. The approach used in these platforms, defined as adapting co-management, combines the dynamic learning characteristic of adaptive management (sensu Holling 1978) with the collaborative management (sensu Ols- son et al., 2007). The adaptive process allows all the parties to review and update their strategies when they feel they are not improving environmental conditions or are creating conflicts among people and groups who differ in values, interests, perspectives, power (see also Dietz et al. 2003). The current study has demonstrated that an effective integration and participation of governments (at several levels), stakeholders (economic and not), scientists and all actors affected by marine management is not easy and it still presents several gaps at European level and at sub-regional level. However, some of these structures have proven to be effective (OSPAR) and can be used to identify best practices and to apply them to other the MSFD structures (e.g. other RSC).

5.6 Conclusions

The 2020 deadline for GEnS is getting closer. This thesis has shown that the implementation of the MSFD in a coherent and coordinated way with a regional focus is very challenging and that the objectives of this multi-purpose directive are very ambitious. Regional coordination and a complete integration with existing legislation have demonstrated to be essential to ensure an ecosystem-based approach to the management of marine ecosystem and to preserve it for future generations. On the basis of the comprehensive analysis on the implementation of the MSFD in the North-East Atlantic region, it can be concluded that: - Member States were not able, or not willing, to find the right balance between national and regional needs and characteristics, leading to differences in the period of reporting, use of the EC and OSPAR recommendations, environmental targets and associated indicators and criteria, GEnS and management measures; - low levels of coherence in the development and implementation of national strategies is the results of the combination of ecological, socio-economic, political and governance impediments;

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- regional coordination structures and social platforms are, in general, effective but a more extensive use is essential to improve coherence and coordination. However, solving problems through these platforms, requires long-term discussion to finally reach an agreement and the tight timeline of the MSFD does not allow it; - there is not a single spatial scale that can be applied to implementing the MSFD, but rather different spatial scales that have to be adopted according to the descriptors and the phases; - a regional approach is essential to protect marine biodiversity whose distribution spans national borders and to manage those transboundary activities that have an impact on the marine environment (contamination from shipping and fisheries) and that require common effort to be addressed effectively.

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Appendix

MSFLD Annex I

Qualitative descriptors for determining good environmental status (referred to in Articles 3(5), 9(1), 9(3) and 24)

(1) Biological diversity is maintained. The quality and occurrence of habitats and the distribution and abundance of species are in line with prevailing physiographic, geographic and climatic conditions. (2) Non-indigenous species introduced by human activities are at levels that do not adversely alter the ecosystems. (3) Populations of all commercially exploited fish and shellfish are within safe biological limits, exhibiting a population age and size distribution that is indicative of a healthy stock. (4) All elements of the marine food webs, to the extent that they are known, occur at normal abundance and diversity and levels capable of ensuring the long-term abundance of the species and the retention of their full reproductive capacity. (5) Human-induced eutrophication is minimised, especially adverse effects thereof, such as losses in biodiversity, ecosystem degradation, harmful algae blooms and oxygen deficiency in bottom waters. (6) Sea-floor integrity is at a level that ensures that the structure and functions of the ecosystems are safeguarded and benthic ecosystems, in particular, are not adversely affected. (7) Permanent alteration of hydrographical conditions does not adversely affect marine ecosystems. (8) Concentrations of contaminants are at levels not giving rise to pollution effects. (9) Contaminants in fish and other seafood for human consumption do not exceed levels established by Community legislation or other relevant standards. (10) Properties and quantities of marine litter do not cause harm to the coastal and marine environment. (11) Introduction of energy, including underwater noise, is at levels that do not adversely affect the marine environment.

To determine the characteristics of good environmental status in a marine region or sub-region as provided for in Article 9(1), Member States shall consider each of the qualitative descriptors listed in this Annex in order to identify those descriptors which are to be used to determine good environmental status for that marine region or sub-region. When a Member State considers that it is not appropriate to use one or more of those descriptors, it shall provide the Commission with a justification in the framework of the notification made pursuant to Article 9(2).

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MSFD Annex III

Indicative lists of characteristics, pressures and impacts (referred to in Articles 8(1), 9(1), 9(3), 10(1), 11(1) and 24)

Table 1 Characteristics

Physical and chem- ‐ topography and bathymetry of the seabed ical features ‐ annual and seasonal temperature regime and ice cover, current velocity, upwelling, wave exposure, mixing characteristics, turbidity, residence time ‐ spatial and temporal distribution of salinity ‐ spatial and temporal distribution of nutrients and oxygen ‐ pH, pCO2, profiles or equivalent information used to measure marine acidification Habitat types ‐ the predominance seabed and water column habitat types with a description of the characteristic physical and chemical features, such as depth, water temperature, cur- rents and other water movements, salinity, structure and substrata composition of the seabed ‐ identification and mapping of special habitat types, especially those recognised or identified under Community legislation or international conventions as being of special scientific of biodiversity interest ‐ habitats in areas which by virtue of their characteristics, location or strategic importance merit a particular reference. Biological features ‐ a description of the biological communities associated with the predominant seabed and water column habitats, including information on the phytoplankton and zooplank- ton communities, ‐ information on angiosperms, macro-algae and invertebrate bottom fauna, including species composition, biomass and annual/seasonal variability ‐ Information on the structure of fish populations, including the abundance, distribution and age/size structures of the populations ‐ a description of the population dynamics, natural and actual range and status of species of marine mammals and reptiles occurring in the marine region or sub-region ‐ a description of the population dynamics, natural actual range and status of species of seabirds occurring in the marine region or sub-region ‐ a description of the population dynamics, natural and actual range and status of the species occurring in the marine region or sub-region which are the subject of Commu- nity legislation or international agreements ‐ an inventory of the temporal occurrence, abundance and spatial distribution of non- indigenous, exotic species or, where relevant, genetically distinct forms of native species, which are present in the marine region or sub-region Other features ‐ A description of the situation with regard to chemicals, including chemicals giving rise to concern, sediment contamination, hotspots, health issues and contamination of biota ‐ A description of any other features or characteristics typical of or specific to the marine region or sub-region

88 APPENDIX

Table 2 Pressures and impacts

Physical loss ‐ Smothering (e.g. by man-made structures, disposal and dredge spoil) ‐ Sealing (e.g. by permanent construction) Physical damage ‐ Changes in siltation ‐ Abrasion ‐ Selective extraction Other physical dis- ‐ Underwater noise (from shipping, underwater acoustic equipment) turbance ‐ Marine litter Interference with ‐ Significant changes in thermal regime hydrological pro- ‐ Significant changes in salinity regime cesses Contamination by ‐ Introduction of synthetic compounds (e.g. priority substances under WFD which are hazardous sub- relevant for the marine environment such as pesticides, anti-foulants, pharmaceuticals, stances resulting for example, from losses from diffuse sources, pollution by ships, atmospheric deposition and biologically active substances ‐ Introduction of non-synthetic substances and compounds (e.g. heavy metals, hydrocar- bons, resulting, for example, from pollution by ships and oil, gas and mineral exploration and exploitation, atmospheric deposition, riverine inputs ‐ Introduction of radio-nuclides Systematic and/or ‐ Introduction of other substances, whether solid, liquid or gas, in marine waters, result- intentional release ing from their systematic and/or intentional release into the marine environment, as of substances permitted in accordance with other Community legislation and/or international conventions Nutrient and or- ‐ Inputs of fertilisers and other nitrogen – and phosphorous-rich substances ganic matter en- ‐ Inputs of organic matter (e.g. sewers, mariculture, riverine inputs) richment Biological disturb- ‐ Introduction of microbial pathogens ance ‐ Introduction of non-indigenous species and translocations ‐ Selective extraction of species, including incidental non-target catches

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MSFD Annex VI

Programmes of measures (referred to in Articles 13(1) and 24)

(1) Input controls: management measures that influence the amount of a human activity that is permitted. (2) Output controls: management measures that influence the degree of perturbation of an ecosystem component that is permitted. (3) Spatial and temporal distribution controls: management measures that influence where and when an activity is allowed to occur. (4) Management coordination measures: tools to ensure that management is coordinated. (5) Measures to improve the traceability, where feasible, of marine pollution. (6) Economic incentives: management measures which make it in the economic interest of those using the marine ecosystems to act in ways which help to achieve the good environmental status objective. (7) Mitigation and remediation tools: management tools which guide human activities to restore damaged components of marine ecosystems. (8) Communication, stakeholder involvement and raising public awareness.

90 Marine Policy 68 (2016) 108–116

Contents lists available at ScienceDirect

Marine Policy

journal homepage: www.elsevier.com/locate/marpol

The ability of regional coordination and policy integration to produce coherent marine management: Implementing the Marine Strategy Framework Directive in the North-East Atlantic

Marianna Cavallo a,b,n, Michael Elliott b, Julia Touza c, Victor Quintino d a Department of Applied Economics, University of Vigo, Vigo 36310, Spain b Institute of Estuarine & Coastal Studies (IECS), University of Hull, Hull HU6 7RX, UK c Environment Department, Wentworth Way, University of York, Heslington, York YO10 5NG, UK d Department of Biology & CESAM, University of Aveiro, 3810-193 Aveiro, Portugal article info abstract

Article history: The transboundary nature of the marine environment requires concerted actions among neighbouring Received 18 January 2016 countries to improve its quality in an effective way. Coordination at international level is particularly Received in revised form important during the implementation of environmental policies aimed at reducing the widespread 17 February 2016 pressures derived from activities, such as shipping and fishing. The European Marine Strategy Framework Accepted 17 February 2016 Directive (MSFD) aims to protect and improve the status of a wide range of ecosystem components with a regional focus, promoting cooperation among countries and integration with other environmental Keywords: policies. In 2014, the European Commission assessed the level of adequacy, consistency and coherence Marine Strategy Framework Directive achieved by Member States during the implementation of the first phase of the MSFD and hence this Coherence paper focuses on the cross-border coherence and coordination within one marine region in order to Policy integration achieve the goals of the Directive. In particular, it identifies and analyses the main differences among the Regional coordination fi Cooperation results of the implementation of the rst phase of the MSFD across the North-East Atlantic region. This analysis shows that, in general, the use of existing data, methodologies and targets from related environmental policies corresponds to the higher levels of coherence among countries while a limited use of such policies produces less coherence. This suggests that the European Commission, Regional Seas Conventions and Member States should work together to identify the real connection between the MSFD and other policies to make a proper use of existing data and approaches and to harmonise different policy objectives. In particular, the review shows what might be termed a ‘paradox of coherence’ amongst Member States where coherence of action has to be achieved within a European policy of subsidiarity, the act of Member States having control over the way they implement framework directives. This can be regarded as a fundamental flaw in having a ‘Framework Directive’ instead of the greater control in a ‘Directive’. & 2016 Elsevier Ltd. All rights reserved.

1. Introduction and the ability to solve problems through involving different actors. Moreover, coordination between different institutions re- The growing importance of maritime activities such as fish- sponsible for developing and implementing environmental po- eries, shipping, resource extraction, tourism and offshore renew- licies is essential to avoid contradicting policy outcomes and du- able energy across European seas, requires strong political co- plication of work [26]. Management measures taken to meet the ordination among countries that share the same marine area to requirements of sectoral policies, their lack of coherence, the un- ensure a more sustainable management of the marine environ- clear definition of competencies and the consequent waste of re- ment. The exchange of information and knowledge between sources are considered the main obstacles towards an effective countries can improve the understanding of ecosystem dynamics implementation of marine legislation ([8] 539:16; [23,1,24]). The ecosystem-based approach to the management of marine environment underpins the Marine Strategy Framework Directive n Corresponding author at: Department of Applied Economics, University of Vigo, Vigo 36310, Spain. (MSFD, 2008/56/EC [11]), which aims to achieve Good Environ- E-mail address: [email protected] (M. Cavallo). mental Status of all European marine regions, promoting http://dx.doi.org/10.1016/j.marpol.2016.02.013 0308-597X/& 2016 Elsevier Ltd. All rights reserved. M. Cavallo et al. / Marine Policy 68 (2016) 108–116 109 cooperation and coordination between countries and integration subdivided into four according to its characteristics: the Greater with other environmental policies [2]. The four European regions North Sea, the Celtic Sea, the Bay of Biscay and the Iberian Coast are the Mediterranean Sea, North-East Atlantic Ocean, Black Sea and the Macaronesian subregions. These cover highly diversified and Baltic Sea, each of which has a Regional Sea Convention, re- marine landscapes with fjords, estuaries, bays and wetlands, spectively the Barcelona, OSPAR, Bucharest and HELCOM Con- which all support extremely productive ecosystems but also im- ventions. The MSFD framework has been transposed into national portant human activities.2 It encompasses OSPAR, an international legislation by specific marine strategies whose preparation (the convention ratified by fifteen NEAR countries to protect and im- first phase), started with the assessment of the characteristics of prove the quality of the marine environment.3 Although origi- marine waters (Article 8) including a detailed study of the main nating in 1972 to cover land and sea-based pollution, an annex on pressures and impacts and an economic and social analysis. On the biodiversity and ecosystems was adopted in 1998 to cover non- basis of such an assessment, Member States defined what they polluting human activities that can adversely affect marine quality. consider Good Environmental Status (GEnS1) of their marine wa- To support the implementation of the MSFD in this region, in 2010 ters (Article 9) and established a set of environmental targets OSPAR adopted the North-East Atlantic Environmental Strategy (Article 10) to achieve it. In 2014, monitoring programmes were [40] which includes six thematic strategies to identify specific established to assess the progress towards GEnS (Article 11) and emerging issues such as Biodiversity and Ecosystem, Eutrophica- during 2015–2016 Member States are developing and im- tion, Hazardous Substances, Offshore Industry, and the Joint As- plementing a programme of measures (Article 12) to achieve sessment and Monitoring Programme (JAMP). GEnS. These five steps will be revised and repeated during the second cycle (2018–2021) taking into account the experiences 2.2. The role of the European Commission gained. During the MSFD legislative process, some Member States op- The so-called Common Implementation Strategy (CIS), was posed a binding regional approach in the implementation phase established at European level to coordinate Member State actions. [26]. However, after a long consultation, the parties agreed to It was set up in 2001 under the Water Framework Directive (WFD) implement the MSFD with a regional focus (Articles 4, 5 and 6) but mainly to (i) develop a common understanding and approaches to specific governance structures were not stipulated [52]. Regional improve the status of superficial waters; (ii) elaborate informal coordination relies upon existing structures, including the four technical guidance including best practice examples; (iii) share European Regional Sea Conventions, but decisions taken through experiences and resources, and (iv) avoid duplication of efforts [7]. these are not binding. However, these structures should allow an In the MSFD, the CIS comprises several Working Groups: the group exchange of information and good practices related to approaches on Good Environmental Status (WG GES) assists countries during to assess status, environmental targets and management measures the definition of GEnS; the group on Information Exchange (WG common to the entire region. This paper questions whether this is DIKE) supports countries in reporting data, and the working group the case. on Economic and Social Analysis (WG ESA) develops common European coordination structures have been analysed in rela- methodologies and approaches to carry out the socio-economic tion to the implementation of the MSFD [46] identifying the main analysis of the activities affecting marine waters. strengths and weaknesses [19] and developing alternative gov- The Marine Strategy Coordination Group is responsible to ernance models [52,53]. Van Hoof et al. [50] analyse the aspects of oversee the work of these three Working Groups and to report the integration and regionalisation of the Integrated Maritime Policy, information to national Marine Directors. The Marine Directors the Marine Strategy Framework Directive and the Common Fish- give inputs to the documents prepared by the Marine Strategy eries Policy, while Van Leeuwen et al. [51] includes policy co- Coordination Group and their role is focused on more political and ordination as one of the key four potential impediments to im- technical issues that could not be resolved by the coordination plementing the MSFD. group. During their informal meetings, Marine Directors exchange In 2014, the European Commission assessed the level of ade- views, build trust and understanding and eventually consolidate quacy, consistency and coherence among Member States during the results of the CIS process [6]. During these meetings Member fi the implementation of the rst phase of the MSFD. The current State representatives also discuss how to integrate the work of paper focuses on the level of coherence across the North-East existing European and international policies, but they cannot Atlantic region (hereinafter NEAR). In particular, it investigates amend them, so coordinating different Directorates-General to whether the integration with existing environmental policies is harmonise different pieces of legislation remains a challenge related to the different levels of coherence and if a proper use of [4,51]. Moreover, during the first phase of the MSFD, bilateral and existing data, methodologies and targets has improved the co- trilateral meetings were organised at regional and subregional herence among countries. As such, this paper aims to identify level, allowing Member States to exchange their knowledge [42]. impediments to a coherent implementation of the future phases of However, it is not clear to what extent the solutions proposed and the MSFD in the NEAR. discussed during these informal meetings were then considered during the development of national strategies.

2. Coordination structures in the North-East Atlantic region (NEAR) 3. Lesson learned on coordination during the implementation of relevant policies 2.1. OSPAR Commission Some of the problems facing the MSFD in relation to an effec- The NEAR is the biggest sea region in Europe and has been tive regional coordination were already identified during the implementation of other European environmental policies. For ex- 1 There is potential confusion between terms in using GES for Good Ecological ample, coordination among countries to adopt coherent tools and Status in the Water Framework Directive and Good Environmental Status in the MSFD – Borja et al. [3] and Mee et al. [27] suggest a change of acronym respectively to GEcS and GEnS. Although this has not been widely adopted, the terms are used 2 http://www.ospar.org/convention/the-north-east-atlantic. here for clarity. 3 http://www.ospar.org/convention. 110 M. Cavallo et al. / Marine Policy 68 (2016) 108–116 approaches for the definition of Good Ecological Status was Table 1 achieved during the WFD intercalibration exercises [3]. This ex- List of key policies, regulations and conventions related to each Descriptor in the ercise also improved cooperation between scientists and managers Marine Strategy Framework Directive. responsible for surface water assessment [3]. The MSFD does not Descriptor and reference Related marine legislation require such intercalibration exercises, but it recommends adopting coherent methods and approaches that can be compared 1 Biodiversity [5] HD; BD; EU BS; WFD; CFP; Bern Convention; Bonn within the same region. The progress made during the im- Convention; OSPAR Convention; Ramsar Conven- tion; CBD. plementation of the WFD in coordinating countries to develop 2 Non-indigenous species CBD; Bern Convention; HD; ICES; Ramsar Con- common approaches and understanding could be used to improve [39] vention; Bonn Convention; BWMC; Phytosanitary coherence during the different phases of the MSFD. However, Directive; Regulation on wild species trade; WFD; while the WFD was criticised for being the result of a bottom-up Regulation for use of alien and locally absent spe- approach, which allowed Member States greater latitude in im- cies in aquaculture; OSPAR QSR 2010a 3 Exploited fish [43] CFP; ICES plementing it as they chose (termed subsidiarity by the EU), an 4 Food-webs No reference approach which then required intercalibration [22], it was hoped 5 Eutrophication [18] OSPAR Convention; UWWTD; WFD that the MSFD would be stipulated in greater detail, and more as a 6 Seafloor integrity [47] WFD top-down approach, thus reducing the need for the intercalibra- 7 Hydrographic condi- WFD tions [12] tion necessary for coherence [3]. This has not turned out to be the 8 Contaminants [25] WFD; EQS directive; Quality Assurance Quality case. Control; EC Regulation REACH; OSPAR Convention; The Common Fisheries Policy (CFP) established in the early London Dumping Convention; Stockholm Conven- 1970s, is one of the first environmental policies adopted in the tion on Persistent Organic Pollutants European Union. The CFP governance system includes three main 9 Contaminants in sea- EQS Directive; OSPAR JAMP; ICES TIMES (Techni- food [48] ques in Marine Environment Series); Regulations politico-administrative levels: the European Commission, the Re- No 333/2007; Regulation No 1883/2006. gional Advisory Councils and the Member States [21]. Therefore, 0 Marine Litter [20] UNCLOS; MARPOL; London Convention; IMO Con- the CFP and MSFD are also considered bottom-up hierarchical vention; Basel Convention; Agenda 21; CBD; OS- policies, both characterised by a decentralised (regional) authority PAR Convention; Directive 1999/31/EC; PRF Direc- tive; Waste Framework Directive; HD; WFD but with several differences in the role that Member States and the 11 Introduction of energy Bonn Convention; the International Whaling European Commission play as competent authorities. Coordinated [49] Commission; IUCN; IMO Convention; OSPAR Con- actions between countries of the North-East Atlantic region have vention; HD (for Article 12) contributed to achieve a more sustainable fishing activity for an ¼ ¼ ¼ increasing number of stocks since 2007 [15]. This experience could BD Birds Directive; BWMC Ballast Water Management Convention; CBD Convention of Biological Diversity; CFP¼ Common Fisheries Policy; CITES¼ Con- be used as reference to set common targets and establish co- vention on International Trade in Endangered Species of Wild Fauna and Flora; EU ordinate measures to reduce the pressure of fisheries in the con- BS¼ European Biodiversity Strategy; EIA¼ Environmental Impact Assessment Di- text of the MSFD (Descriptor 3). rective; EQS¼ Environmental Quality Standard Directive; EUNIS¼ European Nat- The European Habitats and Birds Directives are considered as ure Information System; HD¼ Habitats Directive: ICES¼ International Council for the Exploration of the Seas; IUCN¼ International Union for Conservation of Nature; two of the most well-developed international legal tools for nature OSPAR EcoQOs¼ OSPAR Ecological Quality Objectives; OSPAR EAC¼ Environmental conservation [17,45]. The Natura 2000 is the result of the combi- Assessment Criteria; OSPAR QSR¼ OSPAR Quality Status Report; MARPOL¼ Inter- nation between these two directives and its implementation national Convention for the Prevention of Pollution from Ships; MPS¼ Marine aimed for the creation of a network of protected areas across Spatial Planning; PRF¼ Port Reception Facilities Directive; SEA Directive¼ Strategic ¼ Europe [4] which also contributes to achieving the United Nation Environmental Assessment; UNCLOS United Nations Convention on the Law of the Sea; UNEP¼ United Nations Environment Programme; UWWTD¼ Urban Convention on Biological Diversity objectives [44]. The Natura Wastewater Treatment Directive; WFD¼ Water Framework Directive. 2000 designation may represent the best comparator for the implementation of the MSFD since its Directives (for Habitats and Wild Birds) already encounter policy integration and Member how the work already carried out in these contexts can be in- State coordination. Member States have attempted to adopt com- tegrated in the MSFD. mon criteria and to identify the levels of coverage of species and habitat types for meeting the obligations of the Habitats Directive 4.1. The MSFD and the water framework directive (WFD) [17]. In 2012 the European Commission launched the Natura 2000 Biogeographical Process to support the exchange of information The Ecological Quality Status in the WFD expresses the struc- and experiences between countries, as well as to establish com- ture of aquatic biological quality elements (WFD Art. 2(21)) while mon objectives for a more coherent management of the Natura in the MSFD, the concept of Good Environmental Status takes into 2000 Network with the view of achieving a Favourable Con- account a wide range of environmental pressures (i.e. fishing, servation Status in the context of the Habitats Directive. marine litter and introduction of energy) and components (i.e. seafloor and food-webs). The WFD is limited to coastal waters (to 1 nm, and internal waters) while the MSFD is exclusively for 4. Integration of the MSFD with relevant policies marine waters from the coastline (and estuarine bay-closing lines) out to the Economic Exclusive Zone (200 nm) [3]. Despite these Despite the considerable connections between the MSFD with differences, the two frameworks share several common aspects. other European and international pieces of legislation [4], limited The methodologies developed to assess the Ecological Quality indications are given in the MSFD to what extent existent data, Status in the WFD, the data collected since 2000 and the defini- approaches and objectives have to be taken into account. More tions of Good Ecological Status if used, would ensure a better specific recommendations on how Member States should integrate comparability of results among countries in the MSFD. The defi- other policies are given in the COM Decision 2010/477/EU [12] and nitions of Good Ecological Status and ‘reference conditions’ (con- in the reports prepared by different task-groups for each qualita- ditions with very low human pressure) were harmonised during tive descriptor (listed in Annex I of the MSFD, except for D7 for the WFD intercalibration process, where Member States held a which there was no task-team) (Table 1). It is this valuable to il- common view and so similar levels of ambition of water quality in lustrate the similarity between the MSFD and relevant policies and the regions. Such harmonised definitions could be used as M. Cavallo et al. / Marine Policy 68 (2016) 108–116 111 reference to set environmental targets and to define Good En- (EcoQOs) and also a set of common indicators for some of the vironmental Status in the context of the MSFD [3]. Despite this, the MSFD descriptors. Finally, the OSPAR Intersessional Correspon- actions during the implementation of the WFD need to be adapted dence Group for the Implementation of the Marine Strategy Fra- to a more oceanic context to be applicable to the MSFD [3]. mework Directive coordinates the OSPAR role with respect to the regional implementation of the MSFD. 4.2. The MSFD, the Common Fisheries Policy and the International Council for the Exploration of the Sea 5. Levels of coherence in the NEAR during the first phase The reformed Common Fisheries Policy (CFP) is the main policy instrument for sustainably managing fish stocks in European seas During the first phase of MSFD implementation, several and it could play a critical role in supporting a coherent im- meetings were organised both by the European Commission (by plementation of the MSFD across Europe, as both policies aim to the CIS) and OSPAR where the parties exchanged their views and fi achieve a sustainable exploitation of sh stocks. Given that the provided guidelines to support a common understanding of initial descriptors of the MSFD are correlated to each other and hier- assessment, determination of GEnS and establishment of en- archical [3], the work already developed under the CFP could help vironmental targets. However, the outcomes of the first phase fi Member States to achieve GEnS for D3-commercial sh and show that both GEnS and environmental targets have been defi fi shell sh, which will also reduce the impacts of shing activities on fined at different levels, from descriptor level to indicator level, fl D1-biodiversity, D4-food-webs and D6-sea oor integrity. The In- making their comparison difficult across the region. Moreover, the ternational Council for the Exploration of the Seas (ICES) has also methodologies and approaches adopted in the initial assessment developed advice to ensure consistency across Europe on the as- in some cases are not consistent among Member States. Among fi sessment of the status of D1-biodiversity and D3-commercial sh the three subregions, the lowest levels of coherence were identi- fi and shell sh. fied in the Bay of Biscay and Iberian Coasts during the three phases. 4.3. The MSFD, the Birds and Habitat Directives and the Convention It is of value to identify here the main differences between on Biological Diversity approaches adopted by countries of the NEAR, on the basis of the assessment carried out by the European Commission under Article The Natura 2000 Directives (Habitats and Birds), together 12 on the level of adequacy, consistency and coherence in the four protect all wild birds present in Europe, more than 1000 other regions [9] and on the Member States reports prepared by Milieu species and over 230 habitats both terrestrial and marine [13]. The Ltd. [28–38]. integration of these policies with the MSFD is essential to achieve a comprehensive GEnS for biodiversity, food-webs and seafloor 5.1. The initial assessment (article 8) integrity descriptors, but it is necessary to have a clear understanding of the potential synergies between them and how they According to the Directive (Article 8.3(a)), when preparing the complement each other. For example, the main aim of the MSFD is to achieve and maintain GEnS of all the components of marine assessment on the status of marine waters, Member States have to environment, while the Habitats and Birds Directive objectives are make every effort to ensure that the methodologies are consistent to achieve Favourable Conservation Status (FCS) of particular ha- across the marine (sub)region. This phase is an important starting bitats and species in the whole European territory (not only the point which indicates the gap between the current state and the fi marine environment). However, while the GEnS will refer to all de nition of GEnS, taking into account the essential features, features in an area, FCS only refers to the conservation elements pressures and impacts on the national marine environment. (species, habitats) for which an area was designated. Across the region, the levels of coherence during the initial assessment were considered low for the biodiversity-related defi 4.4. The MSFD and the OSPAR strategies scriptors (D1, D4, D6) and moderate for D3-exploited sh and shellfish and D7-alteration of hydrographical conditions (Table 2, The major contribution to a coherent implementation of the columns 3 and 4). For biodiversity descriptors, the level of co- MSFD in the North-East Atlantic comes from the OSPAR Conven- herence among countries on pressures and impacts was relatively tion and both have the same objectives and principles, with the high, while it was low in the assessment on biological features. For implementation of the ecosystem-approach at their core [42]. The example, to report on the status of highly mobile species groups ICG-COBAM (Intersessional Correspondence Group-Coordination (birds, mammals, reptiles, fish and cephalopods) two Member of Biodiversity Assessment and Monitoring) provides technical States reported only on species groups, one only on functional support to the development of common approaches and methods groups, one reported on individual species and the remainer used to assess the status of biodiversity descriptors. ICG Eutrophication, a mixture of these approaches. ICG Marine Litter, ICG Environmental Assessment Criteria, ICG on For D3-exploited fish and shellfish, the level of coherence was Cumulative Impacts of Human Activities and ICG Socio-Economic moderate since Member States used different ICES reference Analysis are other OSPAR expert groups through which Contract- points: one country used F (fishing mortality), six countries ing Parties cooperate for determining GEnS, setting targets and adopted FMSY (Fishing mortality consistent with achieving Max- associated indicators [42]. imum Sustainable Yield) and two did not specify which ICES re- The six parts of the OSPAR North-East Atlantic Environment ference points had been used. Moreover, six different reference Strategy (see Section 2.1) encompasses the MSFD objectives. Since points were used in relation to the assessment of spawning stock. 2010, the OSPAR monitoring and assessment has been guided by The moderate level coherence on the assessment of D7-al- the Strategy for the Joint Assessment and Monitoring Programme teration of hydrographical conditions reflected the fact that this (JAMP) which includes, in particular, the Coordinated Environ- descriptor has received low attention and support at European mental Monitoring Programme (CEMP). More support to a com- level (with no Task Group) and by Member States [42]. Some prehensive assessment of the main environmental issues in the Member States have produced a very general assessment, focused NEA comes from OSPAR Quality Status Report [41]. Moreover, only on coastal areas and without a proper analysis on pressures OSPAR adopted a number of Ecological Quality Objectives and impacts [33]. Table 2 112 Level of coherence and policy integration achieved in the NEAR and its subregions during the initial assessment (art. 8), definition of GES (art. 9), establishment of targets (art. 10). Abbreviation: MS¼Member States.

Descriptor Article Level of coherence Level of coherence within sub-regions Level of policy integration (2) NEAR (1)

D1 Biodiversity, D4 Food-webs, D6 Sea floor Art. 8 low/moderate low/moderate in the three sub- All but two countries made extensive reference to the HD and BD during the initial assessment and the integrity regions definition of GES. During the initial assessment all countries also referred to the OSPAR work, while Art. 9 low low in IC/BB and NS; moderate for only six used the OSPAR EcoQOs to define GES and to establish targets. The Good Ecological Status CS definition of the WFD was largely used to define the baseline of GES. Other relevant policies/agree- Art. 10 low low in the three sub-regions ments were used during the three steps by one or two countries: EIA, ICES, Natura 2000, CITES, CFP, CBD, RAMSAR, IUCN, Bern and Bonn Convention and EUNIS. Only three countries referred to the HD and BD in their targets and other three to the WFD. D2 Non-Indigenous Species Art. 8 high high in the three sub-regions The integration between this descriptor and other pieces of legislation was quite low. During the initial Art. 9 low low in the IC/BB and NS, moderate assessment, only three MS mentioned the OSPAR work and two referred to ICES. One country referred in the CS to the IMO BWMC in its definition of GES. Art. 10 low low in the IC/BB and the NS, mod- For the establishment of targets, one MS referred to OSPAR and to MSP, one mentioned the Natura erate in the CS 2000 and another one IMO Convention. Six MS did not mention any of these pieces of legislation in their targets and GES definitions. D3 Exploited fish and shellfish Art. 8 moderate moderate- high IC/BB and CS, moder- Despite the connection between this descriptor, the CFP and the ICES, only one MS mentioned them in ate in the NS its initial assessment. Four MS referred at least to one of these pieces of legislation to define GES. 108 (2016) 68 Policy Marine / al. et Cavallo M. Art. 9 low/moderate low in the IC/BB and NS, moderate During the establishment of targets, reference was made to the work of the CFP (3 MS) and ICES (3 MS), in the CS OSPAR (2 MS), Maritime Spatial Planning (1 MS). Two countries did not mention any of these policies/ Art. 10 low low in the IC/BB and NS, moderate agreements at all. in the CS D5 Eutrophication Art. 8 high high in the three sub-regions In general, there was large reference to the WFD and OSPAR during the three phases; however, great Art. 9 high moderate in the IC/BB, high in the divergence was found in the selection of the criteria and indicators. For the initial assessment, coun- CS and NS tries referred to the OSPAR Common Procedure, OSPAR QSR 2010 and the OSPAR EAC. GES definitions Art. 10 moderate low in the IC/BB and NS, high in the were, in many cases, in line with the OSPAR EcoQOs and the Good Ecological Status of the WFD. CS D7 alteration of hydrographical conditions Art. 8 moderate high for IC/BB and CS, moderate for The integration with OSPAR’s work was higher during the initial assessment (seven MS). Other relevant the NS directives were considered during the initial assessment: HD (two MS) and BD (two MS), EIA (three Art. 9 high low for the IC/BB, high in the CS and MS), WFD (two MS). Three countries did not mention any related legislation in the definition of GES. NS When established targets, few countries considered the MSP (one), HD/BD (two), EIA (three), OSPAR Art. 10 high moderate in the IC/BB, high in the (one), SEA (three). –

CS and the NS 116 D8 Contaminants Art. 8 high moderate in the IC/BB, high in the CS The level of integration between this descriptor, the OSPAR and the WFD work was high during the and NS three phases. Moreover, the EQS Directive was mentioned in the environmental targets of five MS. Art. 9 high low in the IC/BB, high in the CS and ICES, Shellfish Water Directive, Dangerous substances Directive, MSP, MARPOL, PRF Directive, UWWT NS Directive, REACH were also considered in the targets. However, the type of contaminants varied largely Art. 10 high low in the IC/BB, high in the CS and among countries. sh Art. 8 high moderate in the IC/BB, high in the CS In their initial assessment, MS mentioned at least one of these directives: Shellfish Water Directive, NS and NS 1881/2006 Regulation, Bathing water Directive, OSPAR. Regulation 1881/2006 was used to define GES D9 Contaminants in fi Art. 9 high low for the IC/BB, high in the CS and by eight MS. Three countries referred to the Shellfish Water Directive in their targets, while five in- NS cluded Regulation 1881/2006 work. The work of ICES, Common Agricultural Policy, Directive 2001/22/ Art. 10 high moderate in the IC/BB, high in the EC and MARPOL were also mentioned in one of the three phases. CS and NS D10 Marine Litter Art. 8 high high in the three sub-regions All countries used OSPAR work in their initial assessment. An extensive use of OSPAR work was made Art. 9 high moderate in IC/BB and CS, high in also in the definition of GES (seven countries), but also MARPOL (one), PRF (one), ICES (two) and UNEP the NS (two) were considered. Art. 10 moderate low in the IC/BB and the NS, mod- Five MS used OSPAR to set their targets. erate in CS M. Cavallo et al. / Marine Policy 68 (2016) 108–116 113

5.2. The deﬁnition of GEnS (article 9)

For each marine (sub)region concerned, Member States have to determine a set of characteristics for GEnS on the basis of the eleven qualitative descriptors (Art. 9.1). In the first cycle, GEnS should rely on existing data and assessments (WG [54]) as well as on the criteria and indicators recommended in the [12]. As in the case of the initial assessment, the lower levels of coherence among definitions were associated to biodiversity descriptors (D1, D4, D6), D2- non-indigenous species and D11- introduction of energy (Table 2, column 3 and 4). For D1-biodiversity and D4-food-webs, the level of coherence was low since none of the 10 Member States have defined the GEnS in the same way (or even similarly) [33].In fact, GEnS definitions were made on the bases of different species and habitats and also the level of details varied greatly from descriptor to indicator level and the chosen criteria and indicators. As for D1 and D4, GEnS definition of D6-seafloor integrity varied nition of GES and the targets.

ﬁ largely among countries: most Member States deﬁned GEnS using at least one of the two criteria of the Common Decision, while two Member States reproduced the text of Annex I of the MSFD (de-

cluded in this analysis because the data were incomplete. scriptor level). Only one Member State included a quantitative indicator, the Benthic Quality Index, related to the WFD and other and France), Greater North Sea (NS which includes France, Belgium, Denmark, two countries referred to this directive more in general [33]. GEnS for D2 and D11 was deﬁned in a rather vague way and with differences in the level of detail and focus. . 38] – 5.3. The establishment of environmental targets (article 10) [28 Environmental targets should be based primarily on pressure

The integration of this descriptorthe with three relevant European phases. and Only Internationalcountry two legislation mentioned countries was very the mentioned low IEA OSPAR in work during during the the de initial assessment and one and impact since this is the most effective way to achieve GEnS (WG [54]). The MSFD requires environmental targets be SMART (Specific, Measurable, Achievable, Realistic and Time-bound) and associated to the indicators outlined in the [12]. If targets are not sufficiently well-defined then monitoring for compliance with those targets is inherently difficult [16]. There were significant differences between the approaches used to set environmental targets for each descriptor and, in some cases, Member States reports did not demonstrate that their targets are suitable to achieve GEnS. Moreover, despite the considerable importance to establish environmental targets in a coordinated way across the region, the level of coherence was con- and NS and NS sidered high only for three of the eleven descriptors: D7-alteration of hydrographical conditions, D8-Contaminants, D9-contaminants in fish, (Table 2, column 3 and 4). For example, the set of environmental targets established for D8 across the region was consistent although the number of targets varied greatly as well as the level of detail. Most Member States used Environmental Quality Standards and/or OSPAR work (Ecological Quality Objec- tives (EcoQOs) or Environmental Assessment Criteria) as reference levels. All Member States (but one) set a target on acute pollution

Art. 9Art. 10 low low low in the moderate in IC/BB the and IC/BB, NS, low high in in the CS CS events, targeting illegal discharges and oil spills [33]. Six Member States have used the common OSPAR target on the minimisation of acute pollution events and their impacts on biota or a similar

; information in column 5 has been obtained from the ten reports prepared by Milieu Ltd. target [33].

[9] Targets deﬁned for D8, were applied to D9 as they address the same sources of contamination. During the set of targets for D9, Member States referred to the concentration levels to comply with EU Regulation 1881/2006 on contaminants in foodstuffs. Some- times, however, the reference to relevant legislation was implicit in expressions such as ‘national and international legislation’, for abbreviations. ‘Community legislation’, ‘EU limits’, etc. A few Member States have also included compliance with the Shellﬁsh Water Directive (re-

Table 1 pealed in 2013 and subsumed into the WFD) to encompass mi- : column 3 and 4 EC, Annex crobial pathogens [33]. Some countries did not set any targets for D11 Introduction of Energy Art. 8 high moderate in the IC/BB, high in the CS Source (2) See (1) Four subregions: Iberian CoastsGerman, and Sweden, the the Bay of Netherlands Biscay and (IC/BB UK) which and includes the Portugal, Macaronesia Spain and subregion France), (Atlantic Celtic islands Sea of (CS Portugal which and includes Ireland, Spain). UK The Macaronesia sub-region is not in D6, D7 and D11. 114 M. Cavallo et al. / Marine Policy 68 (2016) 108–116

6. Relationship between policy integration and coherence consistency among the three articles was achieved for D5, which among countries reflects the proper use of definitions, baseline and methodologies from the WFD and OSPAR. It is of value to compare the results on the level of coherence with the level of policy integration in the NEAR during the first phase. Countries should refer to the work carried out in the WFD 7. Concluding remarks in seven of the eleven descriptors (Table 1). However, good and clear reference to the WFD was made only for D1-biodiversity, D5- This review has shown that coordinated actions within regions eutrophication, where in many cases Member States used GEcS to during the implementation of the MSFD can produce a more ef- define GEnS, and for D8-contaminants, where most countries have fective improvement of European environmental quality, as well as referred to the WFD monitoring methodology [33] (Table 2, col- the integration of sectoral policies and hence a more sustainable umn 5). Reference to the WFD for the D7-hydrological condition management of marine resources. Despite that, there are many was quite limited and vague. examples where coordinated actions have not been made. Mem- Member States should consider data and approaches developed ber States have recognised that some mistakes were made during in the context of the CFP and ICES in four descriptors (Table 1). the development and implementation of their national strategies However, references to the CFP was minimal in the region, where and that, in some cases, the OSPAR and the CIS Working Groups just one country mentioned this policy in its initial assessment, work came too late [10]. In fact, only in 2012 did OSPAR publish another one in its definition of GEnS, while three countries con- advice documents on descriptors of GEnS [42] while the GES sidered the CFP in their targets (Table 2, column 5). Working Group prepared a document with a clearer indication on The Natura Directives were often mentioned in the Member how to implement the three articles at the end of 2011 (WG [54]). States national reports although it was expected [14] that a much These guidance documents, however, may produce a more co- larger use of the work already occurred in the context of the two ordinate implementation of the MSFD during the second cycle, directives. The reference to these directives and the Convention on starting in 2018. Biological Diversity varied largely among countries and among It is concluded here that a way to gain coherence in the iden- descriptors and within the same descriptor among criteria and tification of a common list of marine species and habitat that have indicators considered (Table 2, column 5). Only half of the Member (sub)regional distribution (e.g. for highly mobile species) could be States in the region referred to specific habitats and species in a more extensive use the work already carried out in the context of their GEnS definitions [33], while others generally included spe- the Habitats and Birds Directive, Bern and Bonn Conventions, cies/habitats covered by relevant international and European leg- OSPAR Convention, Convention on Biological Diversity, Ramsar islation without specifying which legislation. Convention, Common Fisheries Policy and ICES. Such a list will be The wide reference to the OSPAR work in national reports re- extremely important not only to know the actual status of such flects the considerable effort the OSPAR Commission made in species but also to develop more effective protection actions. For supporting Member States in all the phases of the implementation the same reason, a common target list of non-indigenous species of the MSFD (column 5, Table 2). However, the use of data, ap- and type of contaminants should be developed at the regional proaches, indicators and targets from OSPAR work varied largely level. between countries and descriptors (column 5, Table 2). Despite the above, it is not yet clear how countries can improve There was, in general, a higher level of coherence between coherence in their GEnS definition and targets for biodiversity- countries when they referred clearly to relevant policies. In fact, related descriptors. The implementation would benefit from a top- the levels of coherence were higher for D5-eutrophication, D7- down (i.e. more centralised) further specified extent to which alteration of hydrographical conditions, D8-contaminants, D9- countries have to be coordinated, for example, in the selection of contaminants in fish and D10-marine litter which also correspond those species/populations, habitats (and related criteria and in- to the major level of policy integration, where all countries of the dicators) that are relevant at (sub)regional scale, taking also in region made reference to one or more related directive. On the consideration national and local characteristics. However, such a other hand, significant differences in approaches were observed centralisation may be counter to the European principle of sub- for D2 and D11, where six Member States did not mention any sidiarity, i.e. the ability to take decisions at the level closest to the legislation in any of the three articles, while the rest of the people. This appears to be the central paradox here, what may be countries mentioned the work of five different strategies/con- termed a ‘paradox of coherence’ amongst Member States where ventions, making results difficult to compare. The moderate level coherence of action has to be achieved and balanced within a of coherence among results achieved for D3-exploitable fish and European policy of subsidiarity, the act of Member States having shellfish was probably the result of a different use of ICES re- control over the way they implement framework directives. Thus ference points. the more freedom a Member State has to implement a directive in Despite the large reference made to relevant existing policies its own way then the greater scope for anomalies and non-co- for the three biodiversity related descriptors (D1, D4, D6), these herence (and thus the greater need for intercalibration and inter- showed the lowest levels of coherence where no country defined comparison exercises). As shown largely by the Water Framework the GEnS in the same way [33]. Directive and now, as indicated here possibly also by the Marine At the Member State level, there was also inconsistency among Strategy Framework Directive, this can be regarded as a funda- the three articles for the same descriptor, since GEnS was defined mental flaw in having a ‘Framework Directive’ instead of the without fully considering the initial assessment and the environ- greater control shown in a ‘Directive’. mental targets sometimes were not in line with GEnS definition The pick-and-choose approach, shown in this paper, of the use [10]. For example, for D3-exploitable fish and shellfish there was a of relevant legislation in the region during the first phase, could be weak link between the baselines stated within the initial assess- either the result of allowing Member States freedom to implement ments and the targets to achieve GEnS [9]. The consistency among the Directive as they want within the overall framework, or be the articles was also rather low between the targets established for result of a limited knowledge of the real connection between such D1-biodiversity which, in some cases, were not linked to the policies and the MSFD. To avoid this occurring during the next specific pressures and impacts identified in the initial assessment phases, Member States together with the Regional Seas Conven- [9]. It should be highlighted, however, that a good level of tion, should identify those policies that better fit with each of the M. Cavallo et al. / Marine Policy 68 (2016) 108–116 115 descriptors and phases to harmonise results and avoid duplication. Commission, ISPRA, Italy, 2014. Moreover, meetings at regional and subregional level could be [15] EEA, State of Europe’s seas, Publications Office of the European Union, Lux- embourg (2015), p. 2015. valuable to identify those gaps in data and knowledge that de- [16] M. 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