[8] The EU Member States therefore have a significant role in operationalising the goal of achieving or maintaining Good Environmental Status in the marine environment by the year 2020.

[7] It also aims to protect the European marine environment and to ensure that natural resources are exploited sustainably, so biodiversity is maintained or achieved.

[5][19][4] The MSFD establishes criteria for this sustainable exploitation of natural resources based on the precautionary principle to prevent irreversible changes.

[24][7] The 11 qualitative descriptors of the MSFD are listed in the third part of the Directive in Annex I and describe the desired state of the environment.

[25] For instance, D3 Commercial Fish and Shellfish and D5 Eutrophication were already steered by the Common Fisheries Policy and the Water Framework Directive, respectively.

[26] The main actors in the MSFD are the policy-making entities in the governments of the national Member States, as they are the ones responsible for developing marine strategies as well as achieving and maintaining GES.

These include the European Commission that play a role in guidance, oversight, and coordination, as it is responsible for the analysis of submitted Member State assessments, which are evaluated for their adequacy, completeness and coherence.

[27] As regards to stakeholders, different public, private and third sector organisations who have a vested interest in marine waters are worthy of mention.

[4] Survey results have found that environmental NGOs have a significantly higher preference for being involved in decision-making processes to achieve GES as compared to other private stakeholders.

[29] Maritime disputes between Member States would often result in arbitration proceedings, such as the MOX Plant Case (Ireland v. United Kingdom) of October 2001.

[36] Now constituting a major part of the EU environmental legislation, the Marine Strategy Framework Directive was ratified on 17 June 2008 by the European Council with the unanimity of all 27 (at the time) Member States.

[7][4] It was then published on 25 June 2008 and came into force 20 days later, on 15 July 2008, reflecting an increasingly active role of the EU in marine governance.

[37][10] Before the adoption of the Directive, the European Commission’s preparatory work emphasised the need for effective ocean use management to address problems such as marine pollution, overexploitation of resources, and the need to protect biodiversity in a comprehensive manner.

[39] The ecosystem approach is intended to serve as a corrective to management failures that were associated with earlier sectoral policies taken on a compartmentalised basis.

[7] The fact that the MSFD rests on an ecosystem approach – and thereby takes a systems perspective – distinguishes the Directive from most other environmental policies in the EU, as they are sectoral in scope.

[7] The term ‘Framework’ in the title of the MSFD reflects the EU’s principle of subsidiarity, which states that decisions should be taken as close to the people as possible, as per Article 5 of the Lisbon Treaty.

[7] In implementing the MSFD, however, the Member States do not have full discretion as regards choosing by which means they will manage pressures on the marine environment and thereby achieve the goal of GES, as they are constrained by other international, EU and national legislation.

[7] For the Member States, the procedural obligations of the Directive consist in timely adoption and reporting of assessments, programmes, and strategies.

[21] The first implementation cycle ran from 2012 to 2016, and during these years, Member States had to take six procedural steps to develop a marine strategy for their waters.

[9] Firstly, by late 2012, Member States should provide an initial assessment of European waters for the 11 descriptors to identify pressures and impacts.

[19] There are several challenges associated with this, as it is inherently complex to quantify the benefits of marine ecosystem goods and services such as food, energy, recreation, aesthetics, storm and flood protection, and biodiversity.

[19] Those ecosystem goods and services that are created in a marine environment are indeed not traded on markets, and therefore prices as an indicator for value do not exist.

[19] The third and final reason relates to the fact that European seas are trans-boundary in nature, which might result in the negligence of benefits that occur outside national territories.

[19] The implication of this challenge in valuing marine ecosystem goods and services can thus be that the environmental effectiveness of the MSFD might be hampered, and that GES might not be achieved, because the costs of implementing a programme of measure are relatively overestimated.

[19] These include: i) carrying out economic and social analyses (ESA) of the use of marine waters and examining the cost of degradation of the marine environment, ii) considering social and economic concerns in the establishment of environmental targets, and iii) justify potential exceptions to implement measures to reach GES based on disproportionate costs of measures.

[43] The target year of 2012 was set for establishing and maintaining ecologically representative systems of marine protected areas during the 7th Conference of the Parties to the Convention on Biological Diversity.

[45] The European Commission was set to present a first evaluation report on the implementation of the MSFD within two years of receiving all programmes of measure and, in any case, by 2019 at the latest.

The Commission recommended all Member States take action to fully implement monitoring programmes to avoid gaps in assessment by 2018.

[48][10] The third factor is related to institutional ambiguity, which is a result of i) coordination and cooperation taking place through the Regional Seas Conventions (RSCs) and ii) the framework character of the Directive (see above).

Other impediments that challenge an effective implementation of the MSFD include scientific uncertainty as regards how to organise knowledge gathering and -generation about ecological, social and economic pressures as well as uncertain existing information and problems of credibility and legitimacy.