European Union Law and the Seabed

The European Union (EU) is a supranational organization established under international law. Nevertheless, over several decades, it has evolved into a suis generis international entity with its own legal order, significant competences and an effective enforcement mechanism. The Court of Justice of the European Union (CJEU), which under the Treaty has exclusive jurisdiction to interpret EU law and to review the legality of any EU secondary legislation,1 has emphasised the unique nature of the EU.2 The EU Member States did not delegate but transferred some sovereign rights to the EU meaning that only the EU has competence to act, either internally or externally, in a number of fields of activity. Furthermore, the transfer of sovereignty has not only occurred by expressed provision in the EU Treaties but also by the EU adopting extensive secondary legislation and thus occupying the field.3 This latter process means that for some activities, the initial shared competence to act has been replaced by exclusive EU competence. In this chapter the focus is on the extent to which the EU has competence to regulate the seabed under the sovereign jurisdiction of the EU Member States and the manner in which the competence has been exercised. The chapter will explain first the extent of the EU’s competence in respect of the relevant seabed (Section 2). Then, the chapter will, by way of illustration of the level of policy and legislative activity, consider two areas affecting the seabed: the EU’s policy in respect of seabed mining and the application of EU environmental protection and liability legislation to the seabed (Section 3). In neither area has there been EU legislation adopted specifically in respect of the seabed. However, several policy papers have been published by the European Commission on seabed mining which demonstrates the Commission’s intention for the EU to be an