Common Implementation Strategy
16th meeting of the
Working Group on Good Environmental Status (WG GES)
6 December 2016
DG Environment, Avenue de Beaulieu 5, 1160 Brussels (Room 0/C)
Agenda Item: / 5c
Document: / GES_16-2016-04
Title: / Follow-up note to the 2011 Common Understanding of EU-Member States of 22 November 2011
Prepared by: / DG GES
Date prepared: / 21.11.2016
Background / Marine Directors and the Regulatory Committee agreed a revision package in order to address the shortcomings of the implementation of Art. 8, 9 and 10 MSFD as reported by Member States in 2012. As part of this package the 2011 Common Understanding Document of (Initial) Assessment, Determination of Good Environmental Status (GES) and Establishment of Environmental Targets (Articles 8, 9 and 10 MSFD) (the ‘CU 2011’) should be revised.
MSCG 17 noted the recommendation of WG GES 14 on the way forward in the review/revision of the CU 2011 (MSCG 17-2015-05). Based on this proposal, DE, FI, RO and UK have worked to prepare a ‘CU follow-up document’ in the style of the ‘Recommendations for implementation and reporting’ so far developed by MS in the MSFD CIS process for Art. 11 and Art. 13 MSFD. This ‘CU follow-up document’ was intended to supplement the CU 2011 by providing a high-level overview with key messages and to provide an umbrella over the various guidance documents.
In the course of the drafting work, the question was raised again as to the usefulness of the approach and best use of resources. WG GES 15 endorsed the following alternative approach for the ‘CU follow-up document’:
- to draft a short complementary note (the ‘CU follow-up note’) for inclusion at the front of the CU 2011 which would highlight the progress since 2011 while referring to other relevant documentation (such as the ‘cross-cutting issues document’ of the EU Commission) for this purpose.
- to use the development of Art. 8 MSFD assessment guidance (GES 16-2016-02) for MS to draft a common understanding on the MSFD assessment processes. Developing the contribution to the Art. 8 MSFD assessment guidance will follow the timelines of the development of the Art. 8 MSFD assessment guidance and follow-up work on the new Commission Decision on GES criteria and methodological standards (MSCG 19 document).
The attached draft ‘CU follow-up note’ to the CU 2011 includes text elements drawing on the explanatory note of the EU Commission which accompanied the first draft for a revised Commission Decision on GES criteria and methodological standards, as presented to the 11th meeting of the Regulatory Committee (27 January 2016). The text elements have been adjusted to reflect the Decision as adopted by the Art. 25 MSFD Regulatory Committee on 10 November 2016. The attached draft was developed by DG GES in written procedure.
The WG GES is invited to:
a. Consider the attached ‘CU follow-up note’ and recommend it to MSCG for inclusion and publication at the front of the 2011 Common Understanding Document.
Follow-up note
to the 2011 Common Understanding of EU-Member States
of (Initial) Assessment, Determination of Good Environmental Status (GES) and Establishment of Environmental Targets (Articles 8, 9 and 10 MSFD) of 22 November 2011
The Common Understanding (CU) document was endorsed by Marine Directors at their meeting on 8/9 December 2011 as a living document. The CU was intended to support EU Member States in implementing Art. 8, 9 and 10 MSFD on which reporting was required in 2012.
In its 2014 assessment[1] under Art. 12 MSFD of Member States’ first reports on Art. 8, 9 and 10 MSFD, the EU Commission concluded that there were important differences in the interpretation and implementation of the requirements of the MSFD in EU Member States and that more efforts were urgently needed if the Union’s marine waters are to achieve good environmental status by 2020. The Commission report identified that while Member States generally applied COM Decision 2010/477/EU, their determination of good environmental status varied considerably both within marine regions or subregions and across the EU. Existing EU legislation and Regional Sea Convention standards were not systematically integrated into their strategies. A consistent determination of good environmental status, as required by the Directive, had thus not been achieved. Moreover, Member States’ determination of their good environmental status often remained general, making it difficult or impossible to assess whether it has been achieved or not. Part of the problem lay in the fact that Commission Decision 2010/477/EU did not set out criteria and methodological standards in enough detail for certain descriptors.
Given the shortcomings of the implementation of Art. 8, 9 and 10 MSFD and to ensure that the next cycle of implementation of the MSFD (2018 and beyond) yields greater benefits, the Marine Strategy Coordination Group agreed a package of actions under the MSFD CIS Work Programme 2014–2020 to improve the coherence, consistency and adequacy of the Directive’s implementation, including through
· the revision of the 2011 Common Understanding document;
· the review/revision of Commission Decision 2010/477/EU
· the review of Annex III and its alignment with Annex I MSFD based on Art. 24(1) MSFD.
The reviews of Decision 2010/477/EU and MSFD Annex III were undertaken under a mandate in 2013 of the Art. 25 MSFD Regulatory Committee.
Given different views of Member States on the interpretation of the Directive, the revision of the Common Understanding progressed with difficulties. In view of this slow progress and the need to provide guidance to the Decision review process, the European Commission developed the document on cross-cutting issues (MSCG-17-2015-06) to clarify certain conceptual approaches to the implementation of the Directive in relation to Articles 8, 9 and 10. The ‘cross-cutting issues document’ provides the basis for the EU Commission’s revision of Commission Decision 2010/477/EU and for the Drafting Group GES’ development of associated guidance on Art. 8 MSFD assessment. The ‘cross-cutting issues document’ provides clarification that the concept of ‘Good Environmental Status’ (GES) is the starting and end point of the Directive. All operational MSFD provisions link to GES (see Figure 1).
Figure 1: The concept of ‘Good Environmental Status’ is the starting and end point of the Directive.
GES therefore needs to be determined in a manner that allows a conclusion on whether or not GES is being achieved or maintained, or not. The ‘cross-cutting issues document’ clarifies inter alia
- the distinct roles of Art. 9 and Art. 10 MSFD, thereby dismissing the understanding in Chapter 4 of the CU 2011.
- the role of ‘associated indicators’ under the MSFD (Art. 10 MSFD).
- the links between Art. 8 and Annex III MSFD with Art. 9 and Annex I MSFD as well as with Art. 10 MSFD. To clarify those links, the Art. 25 MSFD Regulatory Committee adopted a revised draft Annex III to MSFD on 10 November 2016.
- the terminology of the Directive and of the MSFD CIS process through revising the glossary of the CU 2011.
- the assessment framework and conceptual approaches for determinations of GES under under Art. 9 MSFD and assessments of whether it has been achieved or maintained under Art. 8, building on Annex 6 of the CU 2011. The assessment framework was not fully developed in the CU 2011.
- questions of geographic scales which were not fully developed in the CU 2011.
Therefore, the CU 2011 document is to be read in the light of the progress made in the EU CIS MSFD process following the first reporting of EU Member States in 2012 on Art. 8, 9 and 10 MSFD, in particular in light of
- the conclusions of the EU Commission on the evaluation of the first implementation reporting on Art. 8, 9 and 10 MSFD
- the ‘cross-cutting issues document’
- the revised Commission Decision on criteria and methodological standards for good environmental status adopted by the Art. 25 MSFD Regulatory Committee on 10 November 2016 (the ‘new Decision’).
- explanatory and supporting documentation presented by the EU Commission to the Art. 25 MSFD Regulatory Committee in the course of the revision of COM Decision 2010/477/EU.
- the evolving Art. 8 MSFD assessment guidance, whose drafting started in 2016 and is intended to help Member States in the application of the new Decision, including agreements required under the new Decision on methodological standards, and of the conceptual assessment framework set out in the ‘cross-cutting-issues document’
- the Deltares report “Coherent geographic scales and aggregation rules in assessment and monitoring of Good Environmental Status – Analysis and conceptual phase. – Towards a guidance document.”
The general principles underlying a changed common understanding and the new Commission Decision are the following:
a. Assessment framework along pressure-related and state-related descriptors: In order to establish a clear link between the determination of a set of characteristics for good environmental status and the assessment of progress towards its achievement, the new Decision organises the criteria and methodological standards on the basis of the qualitative descriptors laid down in Annex I to MFSD. Criteria are grouped into state-related and pressure/impact-related assessment aspects according to points (a) and (b) of Article 8(1) MSFD and revised Annex III MSFD. Figure 2 provides a generic overview of the assessment framework for Art. 8(1)(a) and (b) MSFD and an integrated scheme for presenting assessment results on the (good) environmental status. To ensure a coherent implementation of the assessment framework through regional sea conventions and Member States, further guidance will be developed at Union level (Article 8 MSFD assessment guidance).
b. Use available EU standards, where appropriate: To make the determination of good environmental status more effective, the new Decision supports the links of MSFD with existing Union legislation, such as the Water Framework Directive, Habitats and Birds Directives, the Common Fisheries Policy and others. Such cross-references will facilitate Member States' assessments under the MSFD, particularly by enabling assessments for other purposes to be used also for the MSFD and thereby reducing administrative burden. The cross-reference ensures greater consistency and comparability at Union level and between EU policies.
Figure 2: Integrated scheme for presenting assessment results (adapted from MSCG-17-2015-06 to the new Decision)
c. Where EU standards are not available, Member States should use or develop suitable standards for the marine region or subregion:
Where the new Decision does not set criteria, methodological standards, specifications and standardised methods for monitoring and assessment, provision is made for Member States to use the ones agreed at international, regional or subregional level or to develop jointly such standards. Establishing such standards should build, where practical and appropriate, upon existing and ongoing work within, for example, the Regional Sea Conventions (e.g. common/core indicator processes). This recognises the ongoing work of the Regional Sea Conventions, as provided under Article 6 of Directive 2008/56/EC. The requirement also allows for use of other regional mechanisms, such as Regional Fisheries Management Organisations (RFMOs). These processes to develop regional/subregional standards are essential to ensure coherence and compatibility in the assessment of the status of the marine ecosystems and determination of GES.
Article 5 of the new Decision requires Member States to endeavour to do so within the time-limit set for the first review of their initial assessment and determination of good environmental status (15 July 2018); where this is not possible, Member States shall establish these as soon as possible thereafter, on condition that they provide justification to the Commission in the 2018 notifications pursuant to Article 9(2) or 17(3) MSFD.
d. Criteria elements: Where possible, the elements for assessment for each criterion have been more clearly specified in the new Decision (and linked to the generic elements of the revised Annex III). In some cases these refer to already existing EU lists (e.g. hazardous substances), or, alternately, provide for Member States to draw up suitable lists for the marine region or subregion, as part of the process of developing regional/subregional coherence in the implementation process. When appropriate, there is provision for a deselection procedure for elements from EU lists (provided there is a suitable justification) to allow for the regional variation in their relevance, including use of risk-based approaches. The risk-based approach should allow Member States to focus their efforts on the main elements and the main anthropogenic pressures affecting their waters.
e. Combine the 'criteria' and 'indicators' of the 2010 Decision: Since the term 'associated indicators' is used in the Directive in relation to Article 10 ("…establish a comprehensive set of environmental targets and associated indicators...") it was considered appropriate to eliminate this term from the new Commission Decision for use in the context of determining GES to avoid confusion or misinterpretation in the future implementation process. The new Decision refers only to criteria for assessing the extent to which good environmental status is being achieved, with the text for each criterion effectively encompassing what was previously expressed as an indicator. The overall effect of this approach to combine criteria and indicators is to reduce the number of indicators.
It is recognised that Regional Sea Conventions use the term ‘indicator’ for scientific or technical assessment tools which address the assessment of the criteria of the new Decision. Regional indicators can act at different levels: some correspond directly to a Decision criterion, while others are one of a number of indicators that contribute to one Decision criterion, thereby requiring agreed integration methods to criterion level.
f. Criteria definition includes threshold values: For the criteria, the new Decision includes threshold values, where available, that contribute to a quantitative assessment of whether good environmental status is achieved. Where these are not available at EU level, there is provision for Member States to develop and agree such threshold values through cooperation at the regional or subregional level; this can be particularly relevant to reflect the differing ecological characteristics of each region and subregion. In some cases (for descriptors 10 on litter and 11 on noise and for criteria D6C4 and D6C5) the threshold values are to be established through cooperation at EU level. Until threshold values are established, Member States may also use national values, directional trends of the values and, for state elements, pressure-based threshold values as proxies. The new Decision requires Member States in cases where threshold values are not met for a particular criterion to consider, as appropriate, whether measures should be taken under Art. 13 MSFD or whether further research or investigation should be carried out.