The protection of biodiversity in the framework of the common fisheries policy: What room for the shared competence?

Abstract

The protection of biodiversity (species and ecosystems) in the framework of the Common Fisheries Policy was one important concern of the reform enacted by the EU Regulation No.1380/2013. The most visible innovation was the direct link, established by Art. 11, between the fisheries management and the achievement of the goals set forth by the Marine Strategy Framework Directive (2008/56/EC) and Directives under which the Natura 2000 network was being developed (92/43/EEC and 2009/147/EC). Article 11 is clearly focused on marine protected areas, but the exact relation between this article and other legal bases raises problems of interpretation. In fact, the concern with the protection of the ecosystems is also foreseen in several provisions of EU Regulation No. 1380/2013 (e.g., Arts. 19 and 20). When comparing all legal bases, we come to the conclusion that the Regulation clearly distinguishes the powers of the coastal Member State depending on whether fishing vessels fly its flag or not. Nonetheless, the legal solutions are not always identical, that is, the decision-making process changes from one article to another. The first goal is, therefore, to analyze the purpose of each legal basis, to determine their interrelation, and to discuss the order of their application by a coastal Member State in a concrete situation. As a second goal, the balance between the exclusive competence for the conservation of fisheries resources and the shared competence for the protection of biodiversity of the European Union will be addressed. As a matter of fact, under European Union legislation, Member States have the duty to designate marine protected areas and to achieve a good environmental status (shared competence). Accordingly, Member States have also the duty to approve the necessary management measures. Fisheries are very often one of the human activities envisaged by the management measures, given the need for restricting or prohibiting fisheries in order to ensure the protection of the ecosystems and/or species. The question is to assess whether EU Regulation No. 1380/2013 facilitates or hinders the action of the Member States in the fulfillment of their duties. Throughout the chapter, several hermeneutic proposals will be formulated in order to ensure a more effective protection of marine biodiversity under EU Regulation No. 1380/2013, without putting in jeopardy the essence of the shared competence. This chapter is based on a version published in Portuguese, entitled “A protecção da biodiversidade marinha no quadro do Regulamento (UE) n.° 1380/2013. A perspectiva do Estado-Membro costeiro”, in Pueyo Losa & Jorge Urbina (Coord.), La Gobernanza Marítima Europea. Retos planteados por la reforma de la política pesquera común, Navarra, Thomson Reuters - Aranzadi, November 2016, pp. 73–105 [research project: The Reform of the International and European Fisheries Governance. Challenges for the Spanish Fishing Industry (DER2013-45923-R), Spain].