EUIP-PGPP TERM PAPER

Dec-2018

Challenges for the Implementation of Marine

Strategy Framework Directive (MSFD) within EU

Submitted By: Abhishek VS

Roll No: 183308009

 ABSTRACT
The European Marine Strategy Framework Directive (MSFD) was considered as one of the basic structure of
European Environmental Policy which allows member states to integrate regionally to achieve a common goal
by setting regional institutions. MSFD has the main focus on maritime research across the member states of
European Union to achieve Good Environmental Status (GES) within the four main regions of EU; the
Mediterranean Sea, Black Sea, Baltic Sea and North-east Atlantic. This paper focuses mainly on the challenges
that emerges during the implementation of the MSFD with in member states to achieve the common goal, they
were in the form of institutional ambiguity between the government and the regional institutions and investors
and the lack of coordination and cooperation between the non EU member nations or third countries who were
not ready to accept the regional conventions that the Member States came up with to achieve MSFD. And also
the challenges that the MSs face during the climate changes and other regional

Key words: Marine Strategy Framework directive (MSFD), Good Environmental Status (GES), Member States
(MSs), European Union (EU), institutional ambiguity, regional sea conventions .

Introduction
The increase in the level of pollution in European seas due to increased human activities lead to the
implementation of a new European legislation which is aiming at protection and sustainability of the European
Seas and marine environment. The European Union (EU) has introduced a strong policy domain called ‘Marine
Strategy Framework Directive’ (MSFD) which includes a comprehensive framework towards the conservation,
protection and maintenance of marine environment within EU maritime borders (Union, DIRECTIVE
2008/56/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 2008).

The Marine Strategy Framework Directive (MSFD) was ratified by European Council with the agreement of
twenty seven Member States (MSs) in 2008 (Union, DIRECTIVE 2008/56/EC OF THE EUROPEAN
PARLIAMENT AND OF THE COUNCIL, 2008). The scheme for the adoption of MSFD was given by
European Parliament. The MSFD has four different categories with respect to maritime waters they were the
Black Sea, Northeast Atlantic Ocean, the Baltic Sea and Mediterranean Sea including the sub regions
respectively. The main aim of MSFD was to ensure the proper use of natural resources in a sustainable manner
to maintain the biodiversity in the European seas and also to keep the seas healthy, clean and productive (Judith
van Leeuwena*).

The ultimate goal of MSFD is to establish Good Environmental Status (GES) within European marine waters by
2020. In order to achieve this Member States were firstly asked to analyse their current Maine environment
policy and the existing pressures on their respective marine ecosystem. And by 15 July 2012 MSs were asked to
set targets to establish Good Environmental Status (GES). And it is followed by the implementation of
maintenance programs by July 2014 and also the programmes of measures by 2015 to achieve GES by the end
of 2020. The ‘Directorate General for Environment’ (DG ENV) of ‘European Commission’ has conducted the
development and planning of MSFD, and it was considered as one of the prominent directive among the other
environmental directives (Juda, The European Union and the Marine Strategy Framework Directive: Continuing
the Development of European Ocean Use Management, 17 Jan 2010).

In order to achieve the goal Member States should coordinate each other regionally and also with the
neighbouring third country’s for their cooperation because the marine pollution was transboundary in nature and
can move from one country to other with in seas. Because of this reason Member States should “develop a
marine strategy for its marine waters which, while being specific to its own waters, reflects the overall
perspective of the marine region or sub-region concerned” (Union, DIRECTIVE 2008/56/EC OF THE
EUROPEAN PARLIAMENT AND OF THE COUNCIL, 2008) . The identified marine regions and sub regions
in directive are for the purpose of implementation and in order to establish the MSFD successfully the member
should make use of already existing Regional Sea Conventions such as the Bucharest Treaty in the Black Sea,
the Barcelona regulations in the Mediterranean, the Helsinki regulations in the Baltic, and the OSPAR
Convention in the North Eastern Atlantic (Juda, The European Union and Ocean Use Management: The Marine
Strategy and the Maritime Policy, Volume 38, 2007) . Since 1970s these regional seas conventions are existed
but now they are took directly into the European policies through Marine Strategy Framework Directive
(MSFD) and this was the unique feature of MSFD to enhance the regional cooperation between the Member
States.

The MSFD is a framework directive, the difference here between the directive and the framework directive is,
for the implementation of any EU directive occurs only when the European Commission, the Council of
Minister and the European Parliament interplay together. And after that the Member States adopt the directives
and further shapes them when they are put into national rules. But for the implementation of framework
directives member states are set free to operate the policy as there are no certain specific targets. The directive
gives a framework for member states under which they are required to formulate the environmental objectives to
achieve Good Environmental Status (GES). In addition to that they are required to adopt the measures nationally
rather than that of European level. Hence the MSs are completely independent of formulating and
implementation of the programmes nationally to achieve the common goal (Lucio Carlos Freire-Gibba, 2014).

The two main features of MSFD, as it is a framework directive and the character of establishing the regional
cooperation through the existing maritime conventions which leads to the uncertainty within the institutions. As
the collaboration and coordination between MSs is essential for the successful establishment of MSFD. But the
‘European Treaty’ will not recognise the regional level and hence formation of new institutions in regional level
is necessary. Hence it creates institutional ambiguity between EU and Regional levels (Judith van Leeuwena*).

The regional cooperation has many problems and challenges for the implementation of MSFD. Because, for the
successful outcome member states need to have cooperation between the non EU nations and are not require to
ratify MSFD. And the regional societies which depending on the maritime resources and also private investors
who were liable on regional seas resources for their wellbeing and profit respectively can create high level of
complexity to MSs in implementing regional sea conventions. It can create conflict between regional
government and stakeholders during the policy implementation (McQuatters-Gollop, 2012).

The main aim and objective of the paper is to identify all the challenges that can come across during the
implementation of MSFD and it can help to address the governance issues, institutional ambiguity, problems for
the regional implementation and to operationalize the policy. The paper is divided as follows: Defining the term
GES and then the implementation challenges through institutional uncertainty and governance and also the
common implementation strategy challenges. And the paper will conclude with the conclusion of overall
challenges for implementation of MSFD with in EU (Leeuwen, 2012).

Defining Good Environmental Status (GES)

Pollution has a major effect on the three main categories: Social ( It reduces the aesthetic nature and the safety
of the publics ), economic ( It affects mainly on the economy of a nation in the aspects of tourism, damage to
shipping vessels, fishing and fishery operations and also the cleaning costs) and ecological ( It has a major
impact on health of the marine species and threat to many ocean growing plants and micro-organisms through
which it also has an effect on food chain those who consumes these organisms especially human food cycle)

Good environmental Status is define as maintain these pollution categories with in certain limits in different
compartments including sea bed, coastline, sea surface and water column of the marine environment. And to
achieve this standards within European Seas with the help of reginal cooperation and regional conventions
established by EU member states with in the set timings of 2020.
Chronology of implementation of MSFD
1. 2005: Proposal for a Directive forming a Framework for Public Action in the field of Marine
Environmental Policy (Union, DIRECTIVE 2008/56/EC OF THE EUROPEAN PARLIAMENT AND OF
THE COUNCIL, 2008).
2. 2008: Forming a framework for public action in the field of marine environmental policy (Marine
Strategy Framework Directive) (Union, Official Journal of European Union, 2008)
3. 2010: Commissions verdict on standards and methodological values on good environmental status of
marine waters.
4. 2011: Commission staff working paper on the Relationship between the initial assessment of marine
waters and the criteria for good environmental status.
5. 2014: Report from the Commission on the first phase of implementation of the Marine Strategy
Framework Directive.
6. 2015: Marine protected areas shows significant progress in establishing protected areas in European
seas with benefits for the economy and the environment (F. Galgani, 2010).

The MSFD’s 11 qualitative descriptors of GES (Good Environmental Status)

1. Non indigenous species level has been maintained so that they won’t adversely affect the ecosystem.
2. Marine food cycle should be untouched and functioning.
3. Bio diversity should be maintained with in EU marine waters.
4. Marine anthropogenic litter is minimised.
5. Good structural and functional integrity of sea-floor.
6. Sea water contamination concentrations should not raise the pollution effects.
7. Maintain the safe biological limit of commercial fish populations.
8. Contamination of seafood should be at safe levels.
9. Marine litter should not affect the environment.
10. Alterations in hydrography should not adversely affect the marine ecosystems.
11. Human induced energy and noise should not adversely affect the marine environment (Lucio Carlos
Freire-Gibba, 2014).

The challenges of MSFD implementation (CIS)

The Common Implementation Strategy (CIS) was established in the article 12 of the Commission for the
implementation of any strategies into action. It will take a survey within the EU for implementation and sets out
the strategy for implementation. During the primary survey of implementation strategy it has revealed many
strategical failures for the implementation of MSFD within the EU. And it has reported that many of the
Member States of EU are delayed in the submission of reports due to the complications that are associated with
in the implementation strategy and also as it is frame work directive the member states have to put regulations
and implementation strategy actions and also due to differences in approaches to the regional conventions and
regulations to achieve cooperation, these kind of complications member states submitted their first report by the
end of 2013. And also it has shown that the reports submitted by many member states are outdated due to the
new regulations that have already put in those regions such as OSPAR and HELCOM for the establishment of
Regional Sea Conventions.

The periodical implementation for the MSFD is essential to establish the goal of achieving good environmental
Strategy and also for the updating in the fields of technology, science and innovations are updated with the time
period by using new research outcomes (R&D) for the implementation strategy to work more efficiently and to
out come from the complexity of implementations involved in many fields that are very technical to handle. In
order to achieve this they need a great integrity between the reginal conventions, regulations, implementations
strategy and also with the neighbouring member states and should must have to setup new institutions of the
common implementation strategy.

Challenges in Regional governance: regional cooperation and stakeholder participation

The term regional governance refers to the governing bodies within the region where the MSFD has to be
implemented which includes state governments, rural governing bodies, stake holders, marketing bodies and
other institutions controlling the region through the public participation and representing the publics (Lucio
Carlos Freire-Gibba, 2014). It focuses on creating unity between the MSs Government and the society. There
are many institutions within the region of Baltic Sea which were governed by or under the control of the
member states of the EU and they consists of many number of stake holders in MSFD. And the North Atlantic
Ocean also acts as a major hub of investors’ participation and many of these countries are also the MSs of EU.
The term ‘regional cooperation’ (Union, Official Journal of European Union, 2008) with in the MSFD defined
as the cooperation between the countries with in EU and also with the third countries. The MSFD is focused
more on investors participation in the establishment of its strategies and hence enhances the public cooperation
and leading to more awareness in the regions. The MSFD was divided into many regions internally for the easier
implementation they were Baltic Sea region, North Atlantic Sea, Mediterranean Sea, and the Black sea and it
has many sub regions that are Celtic sea etc (Commission, 2013). Depending up on the regions with in the
countries, states there are many differences politically, economically, and in other means too. Hence it is very
essential to have a good regional cooperation and investor’s participation to establish the regional governance.

The approach of MSFD implementation was done with considering the political, social, economic interests of
the local or regional governances with considering the investors support within the CFP (Leeuwen, 2012). To
achieve the GES the failures in the regional governances are the major issues to implement successfully.
The cooperation between the MSs and regional governing bodies in the Mediterranean Sea was a great
challenge because of many other regional conventions that are already within the region and are set
different regulations comparing to each other and also the implementation dates and duration of
implementation are differs hence it is very difficult within Mediterranean waters to achieve regional
cooperation and also it happens in the Black Sea (Pollack, 15 Jun 2005) as it has the same problem. The
third countries were not cooperating successfully with the MSs so as the regulations are hard to
implement in their marine waters.

“for the Mediterranean Sea it is even more complex, because we have 7 MSs and 14 non-MSs, and in the Black
Sea with 2 MSs and 4 non-MSs, it is very complicated to achieve GES in those areas as well, but anyways we
will try, we will do our best” (Guttenbrunner) .

Within the Article 6 of MSFD it was clearly mentioned that the investor’s participation within the EU marine
regions was very important for the implication of directive. “Member States shall use existing regional
institutional cooperation structures, including those under Regional Sea Conventions (and) relevant existing
programmes and activities.” (Marks, 1996).

The difficult faced in the establishment of some of the previous directives lead to the MSs to focus mainly on
the community cooperation i.e., it has been clearly seen before during the implication of Water Framework
Directive lead to many difficulties in trans -border cooperation, for example of German and Polish water borders
are prescribed as differently in these nations as transitional waters in Polish and Coastal Waters in the German
model for the same water and it made a misguidance in the policy areas (Guttenbrunner).

The problems in the policy areas leads to the political uncertainties between the countries which has a direct
impact on the regional governance and in participation of the investors this causes the delay in the
implementation of the directives in the common waters. In case of Mediterranean Waters it consists of many
other states which are not the MSs of EU and hence the outcome of the good result or expectation of goof results
after the establishing of directives cannot be seen. Hence the problems in the regional governance and stake
holders participation are the major challenges for the implication of MSFD within the Certain regions specified
within the framework of MSFD (Judith van Leeuwena*).

Institutional uncertainty challenges in implementing the MSFD

In the process of execution of any directives from the EC needs the support of many actors in the ground level
for the smooth and successful process of execution and to obtain the estimated standards. In order to execute the
MSFD norms the EC has given the complete framework to achieve the standards within their borders. Hence the
MSs has formulated many institutions within their consequences for the fine implication of standards. These
institutions are responsible for the actions to take in the field of having good relationships with the already
existing maritime conventions, the investor groups in the local level, has to coordinate with the local
governments, non-member state institutions and also in social and public institutions (Leeuwen, 2012).

When these institutions are started to functioning in the execution process there exists many problems in terms
of mutual understanding of the local interests by these institutions and also it was not set in the framework that
up to what extent that these institutions can work together it leads to the great ambiguity between the institutions
in the field of mutual cooperation. The ‘regions and the sub regions’ (Lucio Carlos Freire-Gibba, 2014) that
were mentioned in the directive are not have the proper institutional approach which institution to act for the sub
regional level was not at properly mentioned and hence the sub regional actors have always be in the edge of
uncertainty (Leeuwen, 2012).

As the institutional setup was under the member state control and the directive promotes at the enhanced
cooperation within the other nations there executes a difference in the methodology and approaching ideologies
between the MSs while coordinating and hence due to the absence of a single supranational institution to
establish the directive it leads to the lack of governance and institutional uncertainty. And also there exists a
high level of uncertainty in the field as there is no proper communication between the other directives executed
in relation with the MSFD were not get in touch like Water Framework Directive, Integrated Maritime Policy,
Common Fisheries Policy (Judith van Leeuwena*), this leads to the institutional ambiguity in the high level of
EU due to lack of communication (Leeuwen, 2012).

Challenges emerging with good marine environmental quality as defined by the

‘Regional Sea’
The norms for achieving GES are set by MSs and also to implement them in their respective waters. MSs are
requested by the EC to set proper norms in their respective sea borders and they were also given guidelines to
set their norms to achieve this community goal and they are made to use the existing ‘Regional Sea
Conventions’ (Lucio Carlos Freire-Gibba, 2014) in their provenances. They need to strengthen those existing
norms and also add some more norms set by the MSs but the regional sea regulations are not only under the
single MSs are consisting of many other nations states some of are the non-MSs of the European community
also, hence it was a big drawback for the MSFD. The Regional sea means the local marine waters that the
member states owns though this region was under the control of MSs as the transboundary nature of the aquatic
pollution needs the support from the neighbouring waters that it borders with to execute the action plan
successfully in its region. The obstacles that exist are the nature of pollution in the region and the execution of
action plans should must be different regarding to the climate variations of the regions. If the waters having the
diversity in the climate then the regulations should be set differently according to the regions, these were the
challenges that exist under the regional sea (McQuatters-Gollop, 2012).
Challenges emerging in European seas for implementation of MSFD

Baltic Sea
The establishment of the Helsinki Convention with in Baltic Sea with the eight institutions within EU, EC and
with one of the non-member state of EU i.e., Russia in the year 2007 with the presence of the representatives
from each nation lead to the formation of Black Sea Action Plan (BSAP) which aims at the protection of marine
environment and natural habitats within the Baltic region and also to enhance the condition of natural habitats
and the sea condition before 2021. It was a major challenge that occurs in the Baltic Sea for bridging the
regulations, action plans that are under taken by the already established BSAP with the current MSFD
(Commission, 2013).

As the BSAP was in progress in the region which may cause many institutional uncertainty in the action plan of
the MSFD regulations as the already implemented regulation is more towards the preserving of the biodiversity,
maintenance of the marine habitats, resources in the member states region and these actions are almost matches
with established new regulations under the MSFD hence the cooperation between the two regulation may have
little uncertainty in the target dates and standards. It is possible to overcome the imbalances that occur with
regards to other regions in the EU (Leeuwen, 2012).

North Atlantic Sea

The North Atlantic Ocean is not that challenging in the implementation of the MSFD because the sea was
mainly surrounded by the waters of member states of EU mainly the Norway and the Iceland. And also the
already existed regulation in the region that is OSPAR convention which was established during 2010 with the
aim of establishing healthy waters with in the sea because it is one of the major shipping regions and also it is
aimed at regulating sea pollution under the North East Atlantic Environmental Strategy in 2010 (Leeuwen,
2012). Since the strategy was established long back and also within the control of the MSs of EU it is easy to
achieve the status of GES but with a less institutional uncertainties that exists due to imbalances in governing
bodies and regulatory measures (Judith van Leeuwena*).

Mediterranean Sea

The Mediterranean sea was the most active sea with referring to the biodiversity as it connects the waters of two
regions, it was a major hub for harbour activities as a major trading and shipping lines are situated in the region
and also it connects the African countries with the Europe and hence it was a major gateway for refugee
migration by looking at all the perspectives and also it shares the waters with majority of non-European nations,
i.e., 21 countries shares the water in the Mediterranean sea hence it was great challenge in front of member
states to achieve GES in the Mediterranean Sea. As from long historical background it has many sea rules and
conventions that are set before in this region with other nations and European countries to establish
productiveness of the sea that is Mediterranean Action Plan (MAP) (Leeuwen, 2012) under the Barcelona
Convention during 1975 with the Ecosystem Approach. Hence association of rules developed under the MSFD
are very difficult to comply with the existing convention as the non-MSs are not ready to accept the action plan
as it affects their local economy because of some of the non-member states are dependent on the marine
resources for their regional economy. Hence the major institutional uncertainty to fully operationalise MSFD
and to achieve the good environment in this region within the set time period is highly complicated (Judith van
Leeuwena*).
Black Sea
The black is one of the challenging region for the MSs to achieve GES because only two MSs of EU are sharing
the waters of Black sea. The region was already having the sea convention which is Bucharest Convention was
came into force since 1992. As under the act that it is ready to accept any regulations set for the marine
protection but in practical it is lagging in the same. During 2009 they came up with another strategic planning
for the protection and re habitation of the Black Sea i.e., BS SAP (Lucio Carlos Freire-Gibba, 2014) to enhance
the activity of the already existed laws and rules. The MSs sharing the waters in Black sea need to face many
challenges in achieving GES as their influence on that water was less compared to non-MSs. Although the
regional support for the establishment of MSFD was not so cooperative due to uncertainty in conventions,
standards, the regional institutions were putting forward this action of achieving GES through the enhanced
cooperation that was mentioned before in the existing conventions (Leeuwen, 2012).

Conclusions
The European Marine Strategy Framework Directive (MSFD) has many challenges for the implementation with
in the regional seas as mentioned in the EU directive. Because of the lack of communication between the EU,
regional governments, institutions and Member States about the implementation Strategy and also the lack of
coordination with the third country nationals within the region as they don’t have to ratify for the MSFD
established by EU. And also it has many challenges in setting up of the GES (Good Environmental Status) as
the marine pollution is of transboundary in nature and it should be collectively implemented by the member
states and the neighbouring nationals but it was not happening due to the ambiguity between the local or
regional stake holders and regional governments which are depending on the marine products for their economy
to sustain will not cooperate with the MSs productively. And also as it is a framework directive and there is not
set programmes and rules and regulations from EU level it leads to the uncertainty in between member states
who shares the same marine waters.
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