KUTUPLAR -VII ULUSLARARASI BOYUTUYLA ANTARTİKA ve ARKTİKA Prof. Dr. Henning Jessen – Summary of the Paper

A.Metin Uracin

10.05.2015

This paper will address some features of the European Union (EU) approach in developing its own EU Arctic Policy. It has been argued in the past that the EU’s interest in the Arctic was largely motivated by geopolitical considerations, in particular by Russia planting its flag on the sea bottom beneath the North Pole on 1 August 2007.  It is true that this unilateral symbolic act coincided with the EU beginnings to evaluate its own role in the Arctic more systematically since 2007-2008. Since then and until now, the emerging EU Arctic policy is made up of a continuously evolving network of “soft law” instruments.  However, the EU Arctic Policy also overlaps with the EU highlighting its global responsibilities in environmental matters and specifying its own “Integrated Maritime Policy” in more detail.  All in all, the reasons for the EU to concentrate more on Arctic issues are multi-layered and are composed of a number of different motivations.

One major policy objective of the EU in the Arctic is to promote the sustainable use of Arctic resources. The latest EU’s Council conclusions of 24 May 2014 developing further the EU Policy towards the Arctic Region address this policy goal by referring to the existing efforts of the Arctic states “to develop joint approaches and best practice to address the potential environmental impact and safety concerns related to increasing activities in the region”. Taking this reference as an example, the paper shortly introduces the new intra-EU standards on offshore oil and gas drilling, i.e., Directive 2013/30/EU on the safety of offshore oil and gas operations. Directive 2013/30/EU includes some extra-territorial elements relating to offshore oil and gas operations outside of the EU and it also softly addresses the protection of the Arctic itself. Though not directly applicable, the Directive may thus at least add to the global legal framework of generally accepted best practices and safety standards for exploration and production activities in environmentally sensitive ecosystems. As a result, this Directive has some “Arctic relevance”. The paper concludes with some remarks on the activity of Germany in the Arctic (previously, German

1
OGEL Special Issue on
Emerging Issues in Polar Energy Law and Governance
The EU’s Offshore Oil and Gas Directive (2013/30/EU) and Arctic Governance:
Does Regulatory Activity of Third Parties Have Any Impact?
Henning Jessen*
Abstract
One major policy objective of the European Union (EU) in the Arctic is to promote the sustainable use
of Arctic resources. The latest EU’s Council conclusions of 24 May 2014 developing further the EU
Policy towards the Arctic Region address this policy goal by referring to the existing efforts of the
Arctic states “to develop joint approaches and best practice to address the potential environmental
impact and safety concerns related to increasing activities in the region” (para. 6). To some extent the
EU’s referral to “joint approaches and best practice” also relates to the new intra-EU standards on
offshore oil and gas drilling, i.e., Directive 2013/30/EU on the safety of offshore oil and gas operations.
This rather new EU Directive is, in fact, a direct legal reaction of the EU in response to devastating oil
spills, above all, the Deepwater Horizon accident. The “Arctic relevance” of Directive 2013/30/EU may
not be obvious at first sight. However, there are some applicable conceptual as well as legal links.
This paper is divided into three parts. First, the paper provides a summary and reference guide on the
EU’s general policy objectives in international (marine) environmental law and ocean governance,
including statements on the evolution of the emerging EU Arctic policy. Second, the paper introduces
in more detail the legal substance and also the policy objectives of Directive 2013/30/EU on the safety
of offshore oil and gas operations. The key elements of the Directive are a licensing scheme,
documentary rules, updated and extended provisions on the liability for environmental damage (as
defined under the Environmental Liability Directive 2004/35/EC), rules on the competent authority
within EU Member States, rules on transparency and information sharing as well as on more efficient
cooperation between EU Members.
Third and finally, the paper attempts to combine the results of the first part and the second section to
address the “delicate” issue of possible third-party effects of Directive 2013/30/EU, e.g., for future
offshore oil and gas operations in Arctic waters. Such a legal effect may be vehemently disputed by
non-EU Arctic States. Nevertheless, the Directive includes some extra-territorial elements relating to
offshore oil and gas operations outside of the EU and it also softly addresses the protection of the
Arctic itself. Though not directly applicable, the Directive may thus at least add to the global legal
framework – which is currently still rather a “patchwork” – of generally accepted best practices and
safety standards for exploration and production activities in environmentally sensitive ecosystems. As
a result, the Directive has some “Arctic relevance”.
A. Introduction – The EU and the Arctic ………………………………………………………………………………… 2
I. International Promotion of Environmental Legal Principles by the EU…………………………………. 4

1. The Context of Protecting the Marine Environment ………………………………………………………. 5
2. In Particular: The EU’s Marine Strategy Framework ……………………………………………………… 7
3. Summary ………………………………………………………………………………………………………………… 8
   II. Developing an Arctic Policy: The Evolution of an EU Strategy So Far ………………………………… 9
4. EU Council Conclusions of 2009 and 2014………………………………………………………………… 10
5. (Joint) Communications by EU Institutions in 2008 and 2012……………………………………….. 11
   2
6. Resolutions of the European Parliament in 2011 and 2014………………………………………….. 12
7. Summary ………………………………………………………………………………………………………………. 13
   B. A Legal Primer on Directive 2013/30/EU on the Safety of Offshore Oil and Gas Operations . 14
   I. Key Administrative Requirements of the Directive ………………………………………………………….. 17
8. The Competent Authority within EU Member States……………………………………………………. 17
9. Early and Efficient Public Participation………………………………………………………………………. 19
10. “Major Hazards” / “Major Accidents” / “Major Environmental Incidents”………………………….. 21
11. Systematic Risk Management (“suitable” / “acceptable”)……………………………………………… 22
12. Major Accident Prevention by Operators/Owners ……………………………………………………….. 24
13. Emergency Preparedness and Response………………………………………………………………….. 25
14. Independent Verification, Compliance and Oversight by EU Members ………………………….. 26
15. Documents to be submitted, especially the “Report on Major Hazards”…………………………. 28
    II. The Key Issue under Private Law: Liability for Damages…………………………………………………. 30
16. Formal Issues Relating to Liability under the Directive ………………………………………………… 31
17. Material Issues Relating to Liability under the Directive……………………………………………….. 32
    III. Evaluation and Summary ………………………………………………………………………………………… 34
    C. Extra-Territorial Effects and “Arctic Relevance” of Directive 2013/30/EU?………………………… 36
18. Extra-Territorial Effects of the Directive?……………………………………………………………………. 37
19. “Arctic Relevance” of the Directive? ………………………………………………………………………….. 39
    D. Conclusions and Outlook ……………………………………………………………………………………………….. 41
    A. Introduction – The EU and the Arctic
    As evidenced in particular by the multilateral Antarctic Treaty System (ATS),
    1
    geographical proximity to the Polar regions of the world is not a prerequisite for
    States (or organizations and other entities) to affect those areas, either directly or
    indirectly. However, and in the nature of things, the majority of the discussions on
    Arctic governance, are traditionally centred on the vital role of the eight adjacent
    “Arctic inner circle States”.
    2 This is especially true for debates relating to the opening
    of Arctic shipping routes and to the use and extraction of natural as well as mineral

• University of Hamburg, Faculty of Law, Professor for Maritime Law and the Law of the Sea.
  1 See generally on the Antarctic Treaty System: Alex G. Oude Elferink, Erik J. Molenaar and Donald R.
  Rothwell, “The Regional Implementation of the Law and the Sea and the Polar Regions”, in Erik J.
  Molenaar, Alex G. Oude Elferink, Donald R. Rothwell (eds.), The Law of the Sea and the Polar
  Regions (Boston/Leiden, Brill Academic Publishers, 2013), 1-16 (at 12 et seq.); see also ibid.,
  “Interactions Between Global and Regional Regimes: Trends and Prospects”, 388-417 (at 390 et
  seq.); Timo Koivurova, “Multipolar and Multilevel Governance in the Arctic and the Antarctic”, ASIL
  Proceedings (2013), 443-446.
  2 The expression “inner circle” is also used by Kristine Offerdal, “The EU in the Arctic”, International
  Journal (Autumn 2011), 861-877 (at 862).
  3
  resources within the Exclusive Economic Zone (EEZ) and on the (outer) continental
  shelf.3
  The Arctic Council is widely seen as the most important political coordination forum in
  Arctic matters.
  4 Recent discussions about the continuous enlargement of the Arctic
  Council in relation to its governmental, intergovernmental and non-governmental
  “non-Arctic” permanent observers also demonstrate the political willingness of
  various third-party stakeholders to participate more actively in emerging Arctic
  governance.
  5 This political process includes, for example, various Asian States one
  would not necessarily think of instantly in Arctic matters.
  6 At their 2013 Kiruna
  Ministerial Meeting, the eight Arctic Council Members even adopted an “Arctic
  Council Observer Manual” to formalize the requirements and procedures for granting
  permanent observer status to applicant entities.
  7
  The European Union (EU) has been an ad hoc observer to Arctic Council meetings
  before, however, in contrast to 32 other different stakeholders, it is still not among the
  list of its permanent observers.
  8 Three EU Members (Denmark, Finland, Sweden)
  are, in fact, Arctic Council Members and another seven EU Members (France,
  Germany, Italy, The Netherlands, Poland, Spain, United Kingdom) are among the
  3 On the EEZ and the continental shelf see Articles 55 (et seq) and Articles 76 (et seq) of the United
  Nations Convention on the Law of the Sea, done at Montego Bay, 10 December 1982, U.N.T.S., vol.
  1833, p.3 (entry into force on 16 November 1994, hereinafter: UNCLOS).
  4 See generally on the Arctic Council, e.g., Betsy Baker, “Offshore Oil and Gas Development in the
  Arctic: What the Arctic Council and International Law can – and cannot – do”, ASIL Proceedings
  (2013), 275-279; Lilly Weidemann, International Governance of the Arctic Marine Environment
  (Heidelberg/New York et al., Springer International Publishing, 2014), at 49 et seq.; Svein Vigeland
  Rottem, “A Note on the Arctic Council Agreements”, Ocean Development & International Law, 46:1
  (2015), 50-59; Olav Schramm Stokke, “International institutions and Arctic governance”, in Olav
  Schramm Stokke, Geir Hønneland (eds.), International Cooperation and Arctic Governance
  (London/New York, Routledge, 2007), 164-184.
  5 As of 2015, there are twelve non-Arctic States, nine Intergovernmental and Inter-Parliamentary
  Organizations and eleven Non-governmental organizations (NGOs) which have already been admitted
  as permanent observers to the Arctic Council. It can be expected that this list is going to be extended
  in the years to come.
  6 Five Asian countries have been granted permanent observer status by the Arctic Council, i.e., China,
  Japan, South Korea, Singapore and India. See further: John K.T. Chao, “China’s Emerging Role in the
  Arctic”, in Harry N. Schreiber, Jin-Hyun Paik (eds.), Regions, Institutions, and the Law of the Sea
  (Boston/Leiden, Brill Academic Publishers, 2013), 467-491;“Asia in the Arctic”, The Circle – WWF
  Magazine No. 3 (2014), and Lloyd’s List of 10 March 2015 (“Asia’s ambitions on ice”), 8-9, discussing
  existing business ties and further expansion opportunities between Asian and Russian companies in
  the area of Arctic offshore oil and gas exploration and production.
  7 The manual e.g. summarizes the criteria for admittance as observers and their legal rights and
  obligations. It is available for download at http://www.arctic-council.org/index.php/en/about-us/arcticcouncil/observers [last access: 15 March 2015]. 8 The Arctic Council received the application of the EU for observer status affirmatively, but deferred a
  final decision on implementation until the Council Ministers agree by consensus with the
  understanding that the EU may observe Council proceedings until such time as the Council acts on
  the letter’s proposal, see “Roadmaps for international cooperation”, Commission Staff Working
  Document, Brussels, 11 September 2014, SWD(2014) 276 final, at 15.
  4
  group of its permanent observers. The EU’s inadvertent absence may have several
  political reasons. One of those reasons has been commonly attributed to the EU’s
  treatment of Canadian seal products and the related disputes at the World Trade
  Organization (WTO)9 prompting Canada to apply a (rather mild) form of symbolic
  political “cross sector retaliation” and to temporarily frustrate the EU’s political desire
  to become a permanent observer to the Arctic Council.
  10
  It may be assumed, however, that this will be just a diplomatic “interlude” and,
  eventually, the EU will be granted a permanent observer status to the Arctic Council
  at some (still undetermined) point of time in the future. It has also been argued that
  the most difficult diplomatic challenge for the EU will neither be Canada nor Denmark
  (as an Arctic EU Member with an intentional reluctance to transfer more political
  power to the EU). Rather the biggest obstacle might be Russia’s discomfort to
  negotiate with the EU as a non-national but rather unique supranational entity.11
  Obviously, the technical argument that the EU has legal personality and that the EU
  is itself a party to the United Nations Convention on the Law of the Sea (UNCLOS)12
  will not be enough. Nevertheless, in times of deteriorating diplomatic relations and
  even economic sanctions applied between the EU and Russia, the question is not “if”
  but rather “when” the step of granting permanent observer status to the EU in the
  Arctic Council will be politically acceptable to all of its Members.
  Leaving diplomacy now aside, the next sub-sections intend to illustrate – at least from
  an institutional point of view – that there are far enough appropriate reasons for such
  a step of political symbolism.
  I. International Promotion of Environmental Legal Principles by the EU
  In order to focus on the possible “Arctic relevance” of key EU legal acts only a
  compressed reference guide on internationally accepted legal principles of (marine)
  environmental law and the applicable EU law can be offered by this paper. Most
  important is the fact that some core principles of international environmental law have
  9 See: WTO, DS369: European Communities — Certain Measures Prohibiting the Importation and
  Marketing of Seal Products (Complainant: Canada) and WTO, DS400: European Communities —
  Measures Prohibiting the Importation and Marketing of Seal Products (Complainant: Canada).
  10 See further, e.g., Njord Wegge, “Politics Between Science, Law and Sentiments. Explaining the
  European Union’s Ban on Trade with Seal Products,” Environmental Politics 22 (2013), 255−273. 11 Kristine Offerdal, “The EU in the Arctic”, International Journal (Autumn 2011), 861-877 (at 870 and
  877).
  12 See supra, note 3.
  5
  been gradually integrated into the European Treaties, above all, into the Treaty of the
  Functioning of the European Union (TFEU) itself.13 Thus, in the decade-long process
  of continuously reforming and updating the EU’s most important legal foundations,
  some internationally accepted principles of environmental law have been upgraded to
  become primary sources of EU law. For example, Article 191 TFEU sets out that the
  EU’s policy on the environment shall contribute to the pursuit of a number of
  objectives, stating in the first sentence of the provisions’ second paragraph:
  “Union policy on the environment shall aim at a high level of protection taking into
  account the diversity of situations in the various regions of the Union. It shall be
  based on the precautionary principle and on the principles that preventive action
  should be taken, that environmental damage should as a priority be rectified at source
  and that the polluter should pay.”
  This provision refers explicitly only to “the regions of the Union” and the first sentence
  of Article 191(4) TFEU also concedes that “within their respective spheres of
  competence, the Union and the Member States shall cooperate with third countries
  and with the competent international organisations”. Thus, the direct effect of EU
  legal measures is, of course, generally confined to the EU itself. The EU is cautious
  not to give an outside impression of being a self-appointed global environmental
  regulator. Nevertheless, such explicit intra-EU endorsement of principles of
  international environmental law – as also confirmed on various occasions by the
  European Court of Justice (ECJ)14 – is of fundamental legal importance. It is
  especially relevant for the intra-EU persuasiveness of the European Commission in
  performing its multiple functions of being, e.g., “the guardian of the EU Treaties”, the
  EU’s primary executive organ as well as the most active policy-proposing and
  agenda-setting EU institution.

1. The Context of Protecting the Marine Environment
   13 The TFEU (reproduced in full in the Official Journal of the European Union (OJ) C 306/50 of 17
   December 2007) came into force on 1 December 2009. It is the political result of the ratification of the
   Lisbon Treaty by the (now 28) EU Members.
   14 See, e.g.,Case 240/83 Procureur de la Republique v ADBHU (1985) ECR 531; Case C-379/92 Re
   Peralta [1994] ECR I-3453; Case T-13/99 Pfizer v European Commission [2002] ECR II-3305.
   6
   It cannot surprise that the EU’s most recent (and Commission-driven) legal activity in
   the area of the safety of offshore oil and gas operations (as analysed in more detail in
   Part B. of this paper) is explicitly based on Article 191 TFEU as well.
   15 Moreover, in a
   marine environmental context, being transboundary by its very nature and also
   framing the original roots of the EU’s emerging Arctic policy, strict territorial and
   “aquitorial”16 confinement is not exactly helpful in support of efficient international
   environmental rules. This is also why Article 11 TFEU broadly states that
   “environmental protection requirements must be integrated into the definition and
   implementation of the Union’s policies and activities, in particular with a view to
   promoting sustainable development.”
   Consequently, the promotion of sustainable development17 and global cooperation in
   all environmental affairs are – indisputably – essential policy objectives of the EU.
   18
   This also explains why the EU has already evaluated, e.g., its own Arctic carbon
   footprint.
   19 It also explains why the EU will not dismiss its aim of seeking a
   permanent observer position within the Arctic Council as long as it may take to
   achieve this position, thus supplementing, e.g., the already existing EU participation
   in the Barents Euro-Arctic Council (and in other regional fora for coordinating Arctic
   matters).
   20
   15 See Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety
   of offshore oil and gas operations and amending Directive 2004/35/EC, OJ L 178/66 of 28 June 2013.
   Recital (1) reads: “Article 191 of the Treaty on the Functioning of the European Union establishes the
   objectives of preserving, protecting and improving the quality of the environment and the prudent and
   rational utilisation of natural resources. It creates an obligation for all Union action to be supported by
   a high level of protection based on the precautionary principle, and on the principles that preventive
   action needs to be taken, that environmental damage needs as a matter of priority to be rectified at
   source and that the polluter must pay.”
   16 The term “aquitorial” relates to the territorial sea as defined in Article 3 (et seq.) of UNCLOS but not,
   however, to the EEZ or the continental shelf regime as also regulated by UNCLOS.
   17 Obviously, the term “sustainable development” can be charged with an endless variety of political
   objectives, however, it is also a legal principle at the forefront of the environmental policies of the EU
   and of many nations, see generally Ronán Long, “Principles and Normative Trends in EU Ocean
   Governance”, in Clive Schofield/Seokwoo Lee/Moon-Sang Kwon (eds.), The Limits of Maritime
   Jurisdiction, (Boston/Leiden, Brill Academic Publishers, 2014), 699-726 (at 716). 18 See also Article 3(3) and (5) of the Treaty on the European Union (TEU), in particular, Article 3(5)
   TEU states that: “In its relations with the wider world, the Union shall uphold and promote its values
   and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the
   sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair
   trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as
   well as to the strict observance and the development of international law, including respect for the
   principles of the United Nations Charter.”
   19 “EU Arctic footprint and policy assessment: Final report”, Ecologic Institute (2010), Berlin; see also
   Kristine Offerdal, “The EU in the Arctic”, International Journal (Autumn 2011), 861-877 (at 872). 20 See also: “Opinion of the European Economic and Social Committee on ‘EU Arctic Policy to address
   globally emerging interests in the region — A view of civil society”, OJ C 198/26 of 10 July 2013, para.
   7
   The EU’s role in promoting sustainable “Ocean Governance” – primarily concentrated
   on international shipping and also the difficult area of fisheries activities but (inter
   alia) also including offshore extractive industries – has already been analysed
   elsewhere in a succinct, yet excellent manner.21 Generally, just like in any other
   regulatory field, the EU applies its own unique legal instruments, i.e., secondary
   legislation imposed on its 28 Members in accordance with Article 288 TFEU. This
   legislation takes the form of legally binding Regulations and (more flexible)
   Directives, to further the EU’s primary policy objectives. For example, in 2005, as part
   of the EU’s overall “Integrated Maritime Policy”, the Commission proposed the
   adoption of a Directive to implement a broad thematic strategy, i.e. the “Marine
   Strategy Framework”, to address marine pollution through a long term programme of
   diagnosis and action carried out by competent authorities in the Member States and
   under the European regional seas conventions.
2. In Particular: The EU’s Marine Strategy Framework
   The “Marine Strategy Framework Directive” was agreed late in 2007 and formally
   adopted in 2008.22 While this legal act does not address specifically the
   environmental impacts of maritime transport or other uses of the sea, it has created

2.4: “[…]The EU should have a stronger position in the Council, because this would allow it to better
contribute to the Council’s work and to boost the Council’s influence through its participation. The EU
has a lot to contribute to cooperation. One possible way to strengthen EU’s position is to become an
observer entity and the Arctic EU member States should take into account also EU views in the
Council. The EU should also endeavour to strengthen cooperation in the Barents Euro-Arctic Council
(and Barents Regional Council), because they play a key role in cross-border interaction amongst the
13 member regions (in Norway, Sweden, Finland and Russia) of the resource-rich Barents region
[…]”.
21 See Ronán Long, “Principles and Normative Trends in EU Ocean Governance”, in Clive
Schofield/Seokwoo Lee/Moon-Sang Kwon (eds.), The Limits of Maritime Jurisdiction, (Boston/Leiden,
Brill Academic Publishers, 2014), 699-726; on “Ocean Governance” itself: David Freestone,
“Governing the Blue: Governance of Areas Beyond National Jurisdiction in the Twenty-First Century”,
in Clive Schofield/Seokwoo Lee/Moon-Sang Kwon (eds.), The Limits of Maritime Jurisdiction,
(Boston/Leiden, Brill Academic Publishers, 2014), 729-752; David Freestone, “Principles Applicable to
Modern Ocean Governance”, International Journal of Coastal and Marine Law, 23(3) (2008), 385-391;
David Freestone, “The Modern Principles of High Seas Governance. The Legal Underpinnings”,
International Environmental Policy and Law, 39(1) (2009), 44-49.
22 Directive 2008/56/EC establishing a framework for community action in the field of marine
environmental policy, OJ L164/19 of 25 June 2008; see generally Till Markus/Sabine Schlacke/Nina
Maier, “Legal Implementation of Integrated Ocean Policies: The EU’s Marine Strategy Framework
Directive” The International Journal of Marine and Coastal Law, (26) (2011), 59–90; Ronán Long, “The
Marine Strategy Framework Directive: A new European approach to the regulation of the marine
environment, marine natural resources and marine ecological services”, Journal of Energy and Natural
Resources Law, 29(1) (2011), 1-44.
8
governance mechanisms which over time generate new EU actions having direct
implications for any marine-related sector, thus also including the offshore oil and gas
drilling industry. The “Marine Strategy Framework Directive” is, in short, the
environmental pillar of the EU’s “Integrated Maritime Policy”.
23 It promotes and
applies several internationally-accepted environmental principles,such as

• the principle of sustainable development,
• the principle of environmental integration,
• the precautionary principle, and
• the ecosystem approach.24
  Again, it is hardly surprising that the EU’s most recent legal activity in the area of the
  safety of offshore oil and gas operations (as analysed in more detail in Part B. of this
  paper) is also explicitly based on the EU’s long-term sustainability objectives as
  stressed by “Marine Strategy Framework Directive” to be achieved by 2020 (and
  further on).
  25 In particular, the EU aims “to address the cumulative impacts from all
  activities on the marine environment”, seeking to establish “the linking of particular
  concerns from each economic sector with the general aim of ensuring a
  comprehensive understanding of the oceans, seas and coastal areas, with the
  objective of developing a coherent approach to the seas taking into account all
  economic, environmental and social aspects […]”.
  26

1. Summary
   To sum up the applicable fundamentals of EU law for the purposes of this paper in
   just three sentences: Since 2005, the EU is following a long-term, principle-fuelled
   and goal-based (marine) environmental policy of “everything is interconnected” which
   23 See Recital (7) of Directive 2013/30/EU. 24 All applicable principles have been discussed in the context of the EU’s Integrated Maritime Policy
   by Ronán Long, “Principles and Normative Trends in EU Ocean Governance”, in Clive
   Schofield/Seokwoo Lee/Moon-Sang Kwon (eds.), The Limits of Maritime Jurisdiction, (Boston/Leiden,
   Brill Academic Publishers, 2014), 699-726.
   25 See Recital (6) of Directive 2013/30/EU stating that “[…] By reducing the risk of pollution of offshore
   waters, this Directive should therefore contribute to ensuring the protection of the marine environment
   and in particular to achieving or maintaining good environmental status by 2020 at the latest, an
   objective set out [by the Marine Strategy Framework Directive]”. 26 See Recital (7) of Directive 2013/30/EU.
   9
   also includes the regulation of the offshore oil and gas industry (explicitly since 2013).
   In achieving a “good environmental status” of marine waters by 2020, the EU is fully
   aware of the fact that it cannot create legal obligations for third (non-EU) parties.
   However, both the sustainability approach and the cooperative elements of the EU’s
   (marine) environmental policy have a global dimension, extending also to areas
   beyond national jurisdiction and thus far beyond the formal territorial and aquitorial
   boundaries of the EU itself.
   27 As summarized in the next sub-section, the EU’s
   evolving Arctic policy is a good practical example for the inclusion of a global
   dimension in EU instruments, in this case relating to the world’s “Northern
   dimension”.
   II. Developing an Arctic Policy: The Evolution of an EU Strategy So Far
   In academic literature, it has been argued that the EU’s interest in developing its own
   Arctic Policy has been largely motivated by geopolitical considerations, in particular
   by Russia planting its flag on the sea bottom beneath the North Pole on 1 August
   2007.28 It is true that this unilateral symbolic act (also largely geared towards the
   global media and allegedly privately sponsored) coincides with the EU beginnings to
   evaluate its own role in the Arctic more systematically since 2007-2008. However, it
   also overlaps with the EU highlighting its own global responsibilities in environmental
   matters and specifying its own “Integrated Maritime Policy” in more detail, e.g., by
   passing the “Marine Strategy Framework Directive”, as discussed above.
   As commonly known, the Arctic as a whole offers various actual or potential business
   opportunities in utilizing its natural and mineral resources but, at the same time,
   operations within the Arctic’s unforgiving outer conditions also create considerable
   dangers for the sustainable use of marine biodiversity and maritime-related
   27 Although associated with the EU Member State Denmark, it must be stressed at this point that since
   1 February 1985, Greenland is not part of the EU (then EEC) territory (anymore) following the results
   of a referendum of 1982. Rather it is included in the list of overseas countries and territories set out in
   Annex II to the TFEU. In accordance with Article 198 TFEU, the purpose of the association of the
   overseas countries and territories with the EU is to promote the economic and social development of
   the overseas countries and territories and to establish close economic relations between them and the
   EU as a whole.
   28 Kristine Offerdal, “The EU in the Arctic”, International Journal (Autumn 2011), 861-877 (at 863).
   10
   services.29 All in all, the reasons for the EU Commission to deploy more manpower
   on Arctic issues are multi-layered and are composed of a number of different
   motivations.30 At the forefront of those EU motives are issues commonly associated
   with the buzzword “sustainable development”, in particular relating to global climate
   change, as well as other environmental concerns. Since 2007/2008, the emerging
   EU Arctic policy is made up of a continuously evolving network of “soft law”
   instruments.31
2. EU Council Conclusions of 2009 and 2014
   The EU has so far passed two Council conclusions (by the foreign affairs council) in
   200932 and 2014.
   33 Generally, Council conclusions are a non-binding political
   instrument. However, multiple official Council conclusions often have a preparatory
   character paving the way for future legally-binding intra-EU instruments. If the
   Commission can refer to a series of “bottom up” Council conclusions it gets harder for
   reluctant EU Member States to obstruct entering into a new “hardened” phase of EU
   policy integration. Remarkably, the title of the Arctic-related conclusions has
   developed from merely addressing an incoherent variety of “Arctic Issues” in 2009 to
   a more institutionalized “Developing a EU Policy towards the Arctic Region” in 2014,
   thus reflecting a gradual formulation of a policy on Arctic issues to address EU
   interests and responsibilities. In particular, paragraph 6 of the 2014 Council
   conclusions “recognises the efforts of the Arctic states to develop joint approaches
   and best practice to address the potential environmental impact and safety concerns
   29 As already discussed, e.g., in the OGEL by Kamrul Hossain/Timo Koivurova, “Hydrocarbon
   Development in the Offshore Arctic: Can it be Done Sustainably?”, OGEL 2 (2012),
   www.ogel.org/article.asp?key=3258; see also the extensive work done by Rachael Lorna Johnstone,
   Offshore Oil and Gas Development in the Arctic under International Law (Boston/Leiden, Brill
   Academic Publishers, 2014).
   30 Kristine Offerdal, “The EU in the Arctic”, International Journal (Autumn 2011), 861-877, does not
   deny the EU’s multi-purpose approach to the Arctic and specifically stresses the changing role of
   Norway in first motivating the EU in a proactive way (i.e. to discover the Arctic at all as a dormant
   policy area) while later having to slow down the Commission and taking a more defensive approach. 31 All EU instruments discussed below are available online at the internet presence of the European
   Commission, see: http://ec.europa.eu/maritimeaffairs/policy/sea_basins/arctic_ocean/index_en.htm
   [last access: 15 March 2015].
   32 Council of the European Union, Council conclusions on Arctic issues, 2985th Foreign Affairs Council
   meeting, Brussels, 8 December 2009. On the substance of the 2009 Council conclusions see also
   Kristine Offerdal, “The EU in the Arctic”, International Journal (Autumn 2011), 861-877 (at 871). 33 Council of the European Union, Council conclusions on developing a European Union Policy
   towards the Arctic Region, Foreign Affairs Council meeting, Brussels, 12 May 2014.
   11
   related to increasing activities in the region” calling for a strengthened collaboration of
   the EU and its agencies with Arctic Council bodies in addressing “common Arctic
   challenges”. The instrument itself represents a coordinated position of the
   Commission and the 28 EU Member States setting out the EU’s policy objectives for
   the future.
3. (Joint) Communications by EU Institutions in 2008 and 2012
   Mid-2012 witnessed the publication of an ambitious “joint Communication” by the
   European Commission and the High Representative of the EU for Foreign Affairs and
   Security.
   34 In contrast to EU Council conclusions, a joint Communication (and also a
   Communication issued solely by the Commission) does not yet reflect a coordinated
   approach between the EU Commission, other participating EU institutions and the 28
   EU Member States. Rather a communication merely represents a vision of its
   originator(s) setting out the details for the most important cornerstones of a certain
   EU policy area. It has been rightly pointed out that sometimes such documents are
   mistaken for representing official positions of the EU as a whole.35 However, this is
   not the case and this is also a reason why Communications can be far more
   extensive and detailed as compared to Council conclusions.
   The 2012 Arctic joint Communication is built on a broader 2008 joint paper (of the
   same originators) on climate change and international security36 and on an earlier
   2008 Commission Communication on “the EU and the Arctic Region”.
   37 Four years
   later, the offspring of those two rather general documents of 2008, included a total of
   28 action points adopting the strapline of “knowledge, responsibility, engagement”.
   38
   In particular, the 2012 Arctic joint communication stressed the considerable financial
   engagement and contribution of the EU to Arctic research and the EU’s support for a
   34 Joint Communication to the European Parliament and the Council: Developing a European Union
   Policy towards the Arctic Region: progress since 2008 and next steps, Brussels, 26 June 2012,
   JOIN(2012) 19 final.
   35 Kristine Offerdal, “The EU in the Arctic”, International Journal (Autumn 2011), 861-877 (at 862). 36 “Climate change and international security”, Paper from the High Representative and the European
   Commission to the European Council, S113/08 of 14 March 2008.
   37 Communication from the Commission to the European Parliament and the Council: The European
   Union and the Arctic Region, Brussels, 20 November 20, COM(2008) 763 final.
   38 See Jason Chuah, “The Development of an EU Arctic Policy? Perhaps Not…”, Journal of
   International Maritime Law (18) (2012), 251-252.
   12
   sustainable use and management of Arctic resources. The document avoided
   addressing politically contentious issues (like the earlier idea of creating a new Arctic
   Treaty System). As a result, time was simply not ripe to include a more direct or
   robust agenda. This will most probably also be the case for an updated joint
   Communication on “the further development of an integrated and coherent Arctic
   Policy by December 2015”, as requested by the above-mentioned 2014 EU Council
   conclusions.39
4. Resolutions of the European Parliament in 2011 and 2014
   Finally, the European Parliament (or rather a smaller group of parliamentarians)40
   has shown original interest in Arctic issues and in shaping the interrelationship with
   EU policies. It has pushed forward the European Parliament to pass (again: nonbinding) Resolutions, in particular, an Arctic-specific Resolution of 201441 which is
   based on a more broad Resolution of 2011 on a sustainable EU policy for the High
   North.
   42 However, though generally more progressive, the European Parliament has
   also eschewed to bring contentious political issues (like, e.g., the question of
   Fisheries and the “Svalbard issue”) to the table. Consequently, the latest Resolution
   of the European Parliament has also been criticized as serving of function of just
   reiterating the Parliament’s own consultative importance in the EU-Arctic policymaking process.43
   39 See paragraph 15: “The Council requests the Commission and the High Representative to keep it
   regularly informed on the progress in implementing the Communication of June 2012. The Council
   furthermore requests the Commission and the High Representative to present proposals for the further
   development of an integrated and coherent Arctic Policy by December 2015. As part of this exercise,
   the Council encourages the Commission to ensure effective synergies between the various EU
   funding instruments in the Arctic region.” 40 Kristine Offerdal, “The EU in the Arctic”, International Journal (Autumn 2011), 861-877 (at 873). 41 European Parliament Resolution of 12 March 2014 on the EU strategy for the Arctic
   (2013/2595(RSP)).
   42 European Parliament resolution of 20 January 2011 on a sustainable EU policy for the High North
   (2009/2214(INI)).
   43 See, e.g., the comment by Andreas Raspotnik and Andreas Østhagen, “To Svalbard and Beyond –
   The European Parliament is Back on its Arctic Track”, March 17, 2014: “At least the resolution keeps
   the Arctic in focus in Brussels – albeit without a clear end-goal in sight.”, available online:
   http://www.thearcticinstitute.org/2014/03/to-svalbard-and-beyond-european.html [last access: 15
   March 2015].
   13
5. Summary
   In sum, and not surprisingly, the continuously intensified efforts to establish a fully
   developed EU Arctic strategy did not generate any EU hard law yet (i.e. in the form of
   Directives or even directly binding Regulations). Rather, it is still EU policymaking in
   transition. This policy is characterized by a visible shift from an initial approach of
   geopolitics to a more innovation-centred and research-related attitude,
   44
   supplemented by addressing the whole spectrum of practical measures to promote
   the sustainable use of Arctic resources (quite often in a rather “bloomy” language).
   A recent answer given by the High Representative of the EU for Foreign Affairs and
   Security on behalf of the Commission to a question of a Member of the European
   Parliament can serve as “diplomatic showcase” for the current state of EU affairs in
   Arctic matters. The parliamentarian simply asked (inter alia): “Does the EU have
   specific interests in the Arctic region?”
   45 The written reply of the High Representative
   first referred to the 2012 Arctic joint communication and to the other EU soft law
   instruments, as discussed above. Under the joint paper’s notion of EU “knowledge,
   responsibility, engagement”, the High Representative continued to stress that: “The
   EU is stepping up its engagement with its partners to jointly meet the challenge of
   safeguarding the environment while ensuring the sustainable and peaceful
   development of the Arctic region through investment in knowledge, promoting
   responsible approach to arising commercial opportunities and constructive
   engagement with Arctic partners. […] The majority of today’s known resources are
   within the boundaries of the 200-mile zones and/or continental shelves of the Arctic
   coastal states and are uncontested.”
   46
   44 For example, the European Commission has devoted financial resources to create and develop
   Arctic observatory networks, and to facilitate access to research facilities in the Arctic to scientists from
   Europe and beyond. This is done by funding projects such as INTERACT, a multi-disciplinary network
   of 58 land-based Arctic and northern research stations, building capacity throughout the Arctic for
   environmental monitoring, research, education and outreach, see further: http://www.eu-interact.org/
   [last access: 15 March 2015].
   45 See: “Question for written answer E-002847/14 to the Commission”, Sergio Paolo Francesco
   Silvestris (PPE), “Subject: The race for the Arctic: European prospects” (11 March 2014), OJ 2014/C
   326/01 (written questions by Members of the European Parliament and their answers given by a
   European Union institution).
   46 Ibid., Answer given by High Representative/Vice-President Ashton on behalf of the Commission (24
   June 2014).
   14
   B. A Legal Primer on Directive 2013/30/EU on the Safety of Offshore Oil and
   Gas Operations
   Turning away from the Arctic for the second section of this paper, this part further
   consolidates the initial discussion of EU environmental law and policies, specifically
   relating to the offshore oil and gas industry. In 2011, the EU Commission stressed
   that approximately thousand offshore oil and gas platforms were operating in
   European waters at the time.
   47 Most of those offshore installations are still located in
   the North Sea. But there is also a potential for more offshore drilling in the
   Mediterranean Sea and in other European sea areas in the future.
   48
   The Commission also warned that the likelihood of a major offshore accident in
   European waters still remained “unacceptably high” referring to 14 past major
   accidents in global offshore oil and gas operations since the 1980s (e.g., well blowouts and total loss of production platforms).
   49 Two of the most prominent European
   offshore disasters of the past have been the accidents of the ”Alexander Kielland” of
   1980 and of the “Piper Alpha” of 1988.
   50 Nevertheless and rather surprisingly, the
   safety of offshore oil and gas operations was not subject to any specific EU legal act
   and left completely to the national legislator until 2013.
   In response to the “wake up call” of the 2010 “Deepwater Horizon” disaster51 and –
   less prominently, also as a reaction to the 2009 Montara oil spill52 – the EU
   47 As of 2011, there were located within the EU: 486 offshore installations in the UK, 181 in the
   Netherlands, 61 in Denmark, 2 in Germany, 2 in Ireland, 123 in Italy, 4 in Spain, 2 in Greece, 7 in
   Romania, 1 in Bulgaria and 3 in Poland. Additionally, drilling operations have recently started in
   Cyprus. In Malta, offshore licences have already been awarded, see European Commission:
   MEMO/11/740 of 27 October 2011 (“Commission proposes new rules on the safety of offshore oil and
   gas activities”), 6. 48 Apart from the traditional exploration countries UK and Norway, interest in offshore oil and gas is
   developing throughout the EU as, all in all, 13 EU Member States (UK, the Netherlands, Denmark,
   Germany, Ireland, Italy, Spain, Greece, Romania, Bulgaria, Poland, Malta and Cyprus) have awarded
   offshore oil and gas licences, see European Commission Press Release IP/11/1260 of 27 October
   2011, p. 2.
   49 Ibid, p. 1. 50 See Greg Gordon, “The Deepwater Horizon disaster: the regulatory response in the United Kingdom
   and Europe”, in Richard Caddell/Rhidian Thomas, Shipping, Law and the Marine Environment in the
   21st Century: Emerging Challenges for the Law of the Sea – Legal Implications and Liabilities (Witney:
   Lawtext Publishing Ltd., 2013), 181-210 (at 187); see also Lloyd’s List of 9 July 2013, p. 8 (“Piper
   Alpha remembered 25 years on”).
   51 Out of the extensive literature available on this accident, see generally: Melissa K. Merry, Framing
   Environmental Disaster – Environmental Advocacy and the Deepwater Horizon Oil Spill, (London/New
   York, Routledge, 2014), at 77 (et seq); Sergei Vinogradov, “The Impact of the Deepwater Horizon: The
   Evolving International Legal Regime for Offshore Accidental Pollution Prevention, Preparedness, and
   Response”, Ocean Development & International Law, 44:4 (2013), 335-362; Greg Gordon, “The
   15
   Commission had prepared legislative action in this policy area since 2011. One of the
   reasons for this initiative is also the fact that – since “Deepwater Horizon” – the
   tolerance of the general public for environmental damage has reached an all-time
   low.53 Initially, the Commission had intended to institute a directly binding EU
   Regulation. However, a number of EU Members (above all, the UK and the
   Netherlands) but also the EEA Member State Norway opposed the far-reaching legal
   effects of imposing an EU Regulation.54 The intra-EU conciliation efforts finally
   resulted in the more flexible instrument of a Directive, i.e., Directive 2013/30/EU on
   safety of offshore oil and gas operations which entered into force on 18 July 2013.
   55
   This rather new EU Directive mandates all 28 EU members to transpose its
   provisions into national legislation by 19 July 2015, no matter if they are active in
   offshore oil and gas operations or not.
   56 The act has no bearing on the offshore oil
   and gas industry located in EU countries until it is transposed into the national law by
   the EU Member States. However, in relation to owners/operators of planned
   production installations and owners/operators planning or executing well operations,
   EU Member States shall apply the laws, regulations and administrative provisions
   adopted on the national level – in implementation of the Directive – by 19 July 2016
   (Article 42(1) of the Directive). Existing offshore installations controlled by EU entities
   will have until 19 July 2018 (at the latest) to comply with the legal requirements of the
   Directive (Article 42(2) of the Directive).
   Directive 2013/30/EU is a complex legal act of 44 Articles and nine Annexes. Article 2
   of the Directive lists 37 (partly new) legal definitions for the purposes under EU law.
   The sum of the Directive’s overall policy objectives piles up to 65 Recitals. Recitals

Deepwater Horizon disaster: the regulatory response in the United Kingdom and Europe”, in Richard
Caddell/Rhidian Thomas, Shipping, Law and the Marine Environment in the 21st Century: Emerging
Challenges for the Law of the Sea – Legal Implications and Liabilities (Witney: Lawtext Publishing Ltd.,
2013), 181-210
52 See Stephen Tromans, “Pollution from Offshore Rigs and Installations” in Bariş Soyer/Andrew
Tettenborn (eds.), Offshore Contracts and Liabilities (Informa Law, London 2014), 253-273 (at 257). 53 See: Interview with Eero Ailio, Deputy Head of Unit Retail Markets, Coal and Oil at the European
Commission, available at: http://www.dnv.com/industry/oil_gas/publications/updates/
Oil_and_Gas_Update/2013/02_2013/Preventing_major_offshore_accidents_in_Europe.asp [last
access: 15 March 2015].
54 Greg Gordon, “The Deepwater Horizon disaster: the regulatory response in the United Kingdom and
Europe”, in Richard Caddell/Rhidian Thomas, Shipping, Law and the Marine Environment in the 21st
Century: Emerging Challenges for the Law of the Sea – Legal Implications and Liabilities (Witney:
Lawtext Publishing Ltd., 2013), 181-210 (at 203 et seq). 55 Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety of
offshore oil and gas operations and amending Directive 2004/35/EC, OJ L 178/66 of 28 June 2013.
56 See Article 41 of the Directive.
16
(1), (6) and (7) of the Directive have already been cited above to demonstrate the
direct interrelationship with specific environmental instruments of the EU’s Integrated
Maritime Policy. Highlighting another policy objective in the specific regulatory
context of the Directive, according to Recital (17), “within the [EU], there are already
examples of good standards in national regulatory practices relating to offshore oil
and gas operations. However, these are inconsistently applied throughout the [EU]
and no Member State has yet incorporated all of the best regulatory practices in its
legislation for preventing major accidents or limiting the consequences for human life
and health, and for the environment.”
Consequently, the Directive seeks to introduce and implement those best regulatory
practices, necessary to deliver effective regulation which secures the highest safety
standards and protects the environment. All in all, the Directive introduces a licensing
scheme, documentary rules, updated and extended provisions on the liability for
environmental damage (as defined and regulated under the Environmental Liability
Directive 2004/35/EC),57 rules for a competent authority within EU Member States,
rules on transparency and information sharing as well as cooperation between EU
Members and some provisions on offshore oil and gas operations outside of the EU.
Below, the accumulation of administrative requirements established by the act will be
summarized as a first step. In particular, the objective of these sub-sections is to
identify interrelated legal provisions of the Directive and its overall “system” which is
not easy to grasp. Second, the truly complicated issue of liability for damages caused
by offshore oil and gas operations will be touched upon. However, the sensitive
liability issue refers to a still largely uncoordinated area of law which is currently
undergoing an intensive and time-consuming review, not only within Europe.58 As a
result, only a cautious intermediary result, emphasizing the existing problems and the
way forward in liability for offshore oil and gas operations under EU law can be
presented.
57 Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on
environmental liability with regard to the prevention and remedying of environmental damage, OJ L
143/56 of 30 April 2004.
58 On a variety of related legal difficulties, see e.g. Peter Wetterstein, “Environmental Liability in the
offshore sector with special focus on conflict of laws”, Journal of International Maritime Law (20)
(2014), Part I: 30-49, Part II: 86-102.
17
I. Key Administrative Requirements of the Directive
Directive 2013/30/EU mandates the EU Member States to introduce or update legal
rules on different levels such as:

• independence and objectivity of the competent authority within EU Member
  States ensuring its adequate human and financial resources;
• efficient and early public participation in decisions with potential effects of
  planned offshore oil and gas exploration operations on the environment;
• participation of the employees in matters affecting safety and human health at
  work;59
• warranties and continued verifications of comprehensive concepts on
  environmental management and of preventing major accidents by
  operators/owners;
  60
• updated documentary obligations of the owners/operators to be verified by the
  competent authority;
• the formulation and continuous improvement of norms and strategies to
  prevent major accidents, in particular, analysis of causes of accidents;
• the introduction of coordinated internal and external emergency response
  plans and transboundary cooperation;
• international exchange of information and public transparency.61

1. The Competent Authority within EU Member States
   One major objective of Directive 2013/30/EU is to ensure an independent and
   objective administration of offshore oil and gas operations by a single competent
   authority in each of the 28 EU Member States. Pursuant to Article 8(1) of the
   59 See Greg Gordon, “The Deepwater Horizon disaster: the regulatory response in the United Kingdom
   and Europe”, in Richard Caddell/Rhidian Thomas, Shipping, Law and the Marine Environment in the
   21st Century: Emerging Challenges for the Law of the Sea – Legal Implications and Liabilities (Witney:
   Lawtext Publishing Ltd., 2013), 181-210 (at 207). 60 The term “operator” is legally defined in Article 2(5) of the Directive as “the entity appointed by the
   licensee or licensing authority to conduct offshore oil and gas operations, including planning and
   executing a well operation or managing and controlling the functions of a production installation”. The
   term “owner” is legally defined in Article 2(27) of the Directive as meaning “an entity legally entitled to
   control the operation of a non-production installation.” 61 The final two topics will be addressed in the third section of this paper.
   18
   Directive the EU Members appoint their national competent authority which is
   responsible for a variety of regulatory functions. Among those are the assessment
   and acceptance of reports on major hazards as well as design notifications and
   overseeing compliance by operators and owners with the Directive, including
   inspections, investigations and enforcement actions (Articles 8(1)(a) and (b) of the
   Directive).
   The EU Members are required by the Directive to enable the competent authority to
   be able to carry out its functions and duties in an independent and objective way and
   with adequate human and financial resources (Articles 8(2) to (5) of the Directive). In
   particular, objectivity and independence shall be ensured by preventing any kind of
   conflicting interests between the regulatory functions of the competent authority and
   the regulatory functions relating to the economic development of the offshore natural
   resources and licensing of offshore oil and gas operations within the Member State
   (including the collection and management of revenues from those operations). It has
   been pointed in academic literature that the licensing itself is governed by an older
   EC Directive62 and it seems quite strange that a new Directive on the safety of
   offshore oil and gas operations now interferes with this older act.63 Possible options
   would have been a review and recast of the older Hydrocarbon Licensing Directive or
   a more visible coordination between the two acts.
   In accordance with Article 18 of the Directive the competent authority is empowered
   to require improvements and, if necessary, prohibit the continued operation of any
   installation (or any part thereof or any connected infrastructure) where it is shown

• by the outcome of an inspection,64
• by a determination that the operator no longer has the capacity to meet the
  requirements under the Directive (resulting in the licensee(s)65 assuming
  62 Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions
  for granting and using authorizations for the prospection, exploration and production of hydrocarbons,
  OJ L164/3 of 30 June 1994
  63 Greg Gordon, “The Deepwater Horizon disaster: the regulatory response in the United Kingdom and
  Europe”, in Richard Caddell/Rhidian Thomas, Shipping, Law and the Marine Environment in the 21st
  Century: Emerging Challenges for the Law of the Sea – Legal Implications and Liabilities (Witney:
  Lawtext Publishing Ltd., 2013), 181-210 (at 206). 64 See Article 8(1)(b) of the Directive. 65 See the legal definition for “licensee” in Article 2(11) of the Directive: “Licensee means the holder or
  joint holders of a licence”. The more important situation of “joint holders of a license” was included only
  at a later stage of the negotiations leading to the final Directive. To complete the picture, “Licence”
  means an authorisation for offshore oil and gas operations pursuant to Directive 94/22/EC”, see Article
  2(9) of the Directive.
  19
  responsibility for the discharge of the duties concerned and factually “forcing”
  the licensee to propose a replacement operator to the licensing authority),66
• by a periodic review of the report on major hazards,
  67 or
• by changes to notifications (to be submitted by the operator/owner),68
  that the legal requirements of the Directive are not being fulfilled or that there are
  reasonable concerns about the safety of offshore oil and gas operations or
  installations.
  Finally, in accordance with Article 22(1)(a) and (b) of the Directive, the EU Members
  shall ensure that the competent authority establishes mechanisms for confidential
  reporting of safety and environmental concerns relating to offshore oil and gas
  operations from any source and for investigation of such reports while maintaining
  the anonymity of the individuals concerned. Operators and owners are required to
  communicate details of the national arrangements for those mechanisms to their
  employees (including also contractors connected with the operation and their
  employees) and to ensure that reference to confidential reporting is included in
  relevant training and notices (Article 22(2) of the Directive).

1. Early and Efficient Public Participation
   A second major policy objective of the Directive is the establishment of early and
   efficient public participation in decision-making with a potential negative effect on the
   environment. Recitals (15) and (16) of the Directive summarize these objectives
   referring to other international instruments such as the “Aarhus Convention”
   69 and to
   existing EU legal instruments.70 The final part of Recital (16) stresses, however, that
   66 See Article 6(4) of the Directive. 67 See Articles 11(1)(e), 12 and 13 of the Directive. 68 See Article 11(1)(a) to (k) of the Directive. 69 UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access
   to Justice in Environmental Matters 1998, (1999) 38 ILM, p. 517.
   70 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the
   assessment of the effects of certain plans and programmes on the environment, OJ L 197/30 of 21
   July 2001; Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003
   providing for public participation in respect of the drawing up of certain plans and programmes relating
   to the environment, OJ L 156/17 of 25 June 2003; Directive 2011/92/EU of the European Parliament
   and of the Council of 13 December 2011 on the assessment of the effects of certain public and private
   projects on the environment, OJ L 26/1 of 28 January 2012; and Directive 2012/18/EU of the
   20
   “not all exploratory offshore oil and gas operations are covered by existing [EU law]”.
   This would apply in particular to the decision-making that aims or could lead to
   exploration operations being commenced from a non-production installation although
   such exploration operations may in some circumstances potentially have significant
   effects on the environment. Thus, one policy objective of the Directive is that this kind
   of decision-making has to be the subject of public participation as required under the
   “Aarhus Convention” as well.
   As a result, Article 5(1) of the Directive mandates that “the drilling of an exploration
   well from a non-production installation shall not be commenced unless the relevant
   authorities of the Member State have previously ensured that early and effective
   public participation on the possible effects of planned offshore oil and gas operations
   on the environment pursuant to other EU legal acts has been undertaken”. Where
   public participation has not been undertaken and where it is planned to allow
   exploration operations, the EU Member States shall ensure that other arrangements
   are made, such as information of the public by public notices or other appropriate
   means such as electronic media (Article 5(2)(a) to (f) of the Directive). This legal
   requirement does, however, not apply in respect of areas licensed before the entry
   into force of the Directive (i.e., 18 July 2013, see Article 5(3) of the Directive).
   The public participation requirements of Directive 2013/30/EU will probably result in
   some changes in the national legal orders of the EU Member States.71 For the future,
   the drilling of new offshore exploration wells will be subjected to the duty of
   undertaking prior environmental impact assessments as well as to generally assess
   the effects of certain plans and programmes on the environment.72 In the future,
   some EU Members might decide to extend this legal requirement also to the drilling
   of onshore exploration wells.

European Parliament and of the Council of 4 July 2012 on the control of major-accident hazards
involving dangerous substances, OJ L 348/9 of 28 November 2012.
71 See also generally Greg Gordon, “The Deepwater Horizon disaster: the regulatory response in the
United Kingdom and Europe”, in Richard Caddell/Rhidian Thomas, Shipping, Law and the Marine
Environment in the 21st Century: Emerging Challenges for the Law of the Sea – Legal Implications and
Liabilities (Witney: Lawtext Publishing Ltd., 2013), 181-210 (at 206). 72 For a discussion of this requirement in a polar context, see Robin Warner, Environmental
Assessments in the Marine Areas of the Polar Regions”, in in Erik J. Molenaar, Alex G. Oude Elferink,
Donald R. Rothwell (eds.), The Law of the Sea and the Polar Regions (Boston/Leiden, Brill Academic
Publishers, 2013), 139-162.
21

3. “Major Hazards” / “Major Accidents” / “Major Environmental Incidents”
   Recital (22) of the Directive summarizes the policy objectives in relation to identifying
   “major hazards”
   73 and the prevention of “major accidents”
   74 which are key legal terms
   of the Directive. “Specific legislation is needed to address the major hazards relating
   to the offshore oil and gas industry, specifically in process safety, safe containment of
   hydrocarbons, structural integrity, prevention of fire and explosion, evacuation,
   escape and rescue, and limiting environmental impact following a major accident.”
   The legal definition of “major accident” in Article 2(1) of the Directive relates to the
   term “installation or connected infrastructure”, widely defined in Article 2(19) and (21)
   of the Directive.75 Additionally, the Directive also introduces the legal category of a
   “major environmental incident” (Article 2(37) of the Directive)76 to the regulation of
   offshore oil and gas operations. This now opens an array of other legal instruments of
   EU environmental legislation to the offshore oil and gas sector because the legal
   definition of “major environmental incident” refers to the EU’s Environmental Liability
   Directive.77 This Directive legally defines “environmental damage” in its Article 2(1)
   as:
   73 A “major hazard” is legally defined in Article 2(23) of the Directive as: “[…] a situation with the
   potential to result in a major accident.”
   74 A “major accident” is legally defined “[…] in relation to an installation or connected infrastructure”
   with four sub-elements in Article 2(1) of the Directive as: (a) an incident involving an explosion, fire,
   loss of well control, or release of oil, gas or dangerous substances involving, or with a significant
   potential to cause, fatalities or serious personal injury; (b) an incident leading to serious damage to the
   installation or connected infrastructure involving, or with a significant potential to cause, fatalities or
   serious personal injury; (c) any other incident leading to fatalities or serious injury to five or more
   persons who are on the offshore installation where the source of danger occurs or who are engaged in
   an offshore oil and gas operation in connection with the installation or connected infrastructure; or (d)
   any major environmental incident resulting from incidents referred to in points (a), (b) and (c).
   75 See Article 2(19) of the Directive: “Installation” means a stationary, fixed or mobile facility, or a
   combination of facilities permanently inter-connected by bridges or other structures, used for offshore
   oil and gas operations or in connection with such operations. Installations include mobile offshore
   drilling units only when they are stationed in offshore waters for drilling, production or other activities
   associated with offshore oil and gas operations.” Article 2(21) of the Directive: “Connected
   infrastructure” means, within the safety zone or within a nearby zone of a greater distance from the
   installation at the discretion of the Member State: (a) any well and associated structures,
   supplementary units and devices connected to the installation; (b) any apparatus or works on or fixed
   to the main structure of the installation; (c) any attached pipeline apparatus or works.”
   76 “Major environmental incident” means an incident which results, or is likely to result, in significant
   adverse effects on the environment in accordance with Directive 2004/35/EC”.
   77 See supra, note 57.
   22
   (a) damage to protected species and natural habitats, which is any damage that
   has significant adverse effects on reaching or maintaining the favourable
   conservation status of such habitats or species;
   (b) water damage, which is any damage that significantly adversely affects the
   ecological, chemical and/or quantitative status and/or ecological potential
   […];
   78
   (c) land damage, which is any land contamination that creates a significant risk
   of human health being adversely affected as a result of the direct or indirect
   introduction, in, on or under land, of substances, preparations, organisms or
   micro-organisms.
   Thus, incidents may be qualified as “major environmental incidents” under the
   Directive 2013/30/EU if the above-named subjects of protection are affected “with
   significant adverse effects” (either actually or potentially). As a result, some EU
   Member States will probably have to update their national legal understanding of the
   legal terms “major hazard”, “major accident” and “major environmental incident”.
4. Systematic Risk Management (“suitable” / “acceptable”)
   The Directive’s rules on risk management reflect in particular the character of the
   legal act as a direct reaction to the “Deepwater Horizon” (and also Montara)
   disasters. Recital (14) of the Directive outlines the most important policy objectives in
   this area: “Operators should reduce the risk of a major accident as low as reasonably
   practicable, to the point where the cost of further risk reduction would be grossly
   disproportionate to the benefits of such reduction. The reasonable practicability of
   risk reduction measures should be kept under review in the light of new knowledge
   and technology developments. In assessing whether the time, cost and effort would
   be grossly disproportionate to the benefits of further reducing the risk, regard should
   be had to best practice risk levels compatible with the operations being conducted.”
   In implementation of this objective, Article 3(1) of the Directive mandates the EU
   Member States to require operators to ensure that “all suitable measures”
   79 are taken
   78 However, Directive 2013/30/EU extends the legal understanding of “water damage” to ensure that
   the liability of licensees under the Environmental Liability Directive applies to marine waters of the EU
   Member States (as defined in Directive 2008/56/EC).
   23
   to prevent major accidents in offshore oil and gas operations. Specifically, Article 3(4)
   of the Directive postulates that the EU Member States shall require operators to
   ensure that offshore oil and gas operations are carried out on the basis of “systematic
   risk management” so that the residual risks of major accidents to persons, the
   environment and offshore installations are “acceptable”. Remarkably, just like the
   general term “suitable”, the threshold of a risk being “acceptable” is legally defined in
   Articles 2(8) of the Directive in the spirit of the above-mentioned Recital (20) of the
   Directive.80
   The EU legislator is, of course, aware of the fact that various highly sophisticated
   measures of risk management are already implemented in the international offshore
   oil and gas industry. However, the Directive seeks to push those industry measures
   further to the limit, up to the point when “time, cost or effort would be grossly
   disproportionate to the benefits of further reducing the risk”. It might be a point of
   possibly differing opinions between competent authorities and operators/owners
   whether the implementation of certain risk management measures are actually
   “grossly disproportionate” in relation to their risk reduction potential.
   In any case, effective from 19 July 2015, operators/owners of new or relocated
   offshore oil and gas projects will have to include in their documents to be submitted
   to the competent authority pursuant to Article 11 of the Directive (in conjunction with
   its Annex I) also a demonstration that, inter alia,81

• all the major hazards have been identified,
• their likelihood and consequences have been assessed, including any
  environmental, meteorological and seabed limitations on safe operations,
• their control measures including associated safety and environmental critical
  elements are suitable so as to reduce the risk of a major accident to an
  acceptable level;
  79 See Article 2(6) of the Directive: “Suitable” means right or fully appropriate, including consideration
  of proportionate effort and cost, for a given requirement or situation, based on objective evidence and
  demonstrated by an analysis, comparison with appropriate standards or other solutions used in
  comparable situations by other authorities or industry.” 80 “Acceptable”, in relation to a risk, means a level of risk for which the time, cost or effort of further
  reducing it would be grossly disproportionate to the benefits of such reduction. In assessing whether
  the time, cost or effort would be grossly disproportionate to the benefits of further reducing the risk,
  regard shall be had to best practice risk levels compatible with the undertaking.” 81 See Annex I, Part 2 point 5 and Part 3 point 5 of the Directive, both relating to information to be
  submitted in a report on major hazards for a production/non-production installation.
  24
  This demonstration shall include an assessment of any oil spill response
  effectiveness (see below on “Emergency Preparedness and Response”).

3. Major Accident Prevention by Operators/Owners
   Article 19 of the Directive is the key provision for major accident prevention to be
   implemented by operators/owners and to be supervised by EU Members. A subparagraph of this provision will also be addressed in an extra-territorial context in the
   final section of this paper. Generally, operators and owners will be required to
   prepare a document setting out their corporate major accident prevention policy82
   and to ensure that this policy is implemented throughout their offshore oil and gas
   operations, including by setting up appropriate monitoring arrangements to assure
   effectiveness of the policy (Article 19(1) of the Directive).
   83 The corporate major
   accident prevention policy shall take account of the operators’ primary responsibility
   for the control of risks of a major accident that are a result of its operations and for
   continuously improving control of those risks so as to ensure a high level of
   protection at all times (Article 19(2) of the Directive).
   Moreover, operators and owners have to prepare a document setting out their
   corporate safety and environmental management system (Article 19(3) of the
   Directive).84 That document shall include, inter alia, a description of the
   organisational arrangements for control of major hazards as well as arrangements for
   preparing and submitting reports on major hazards.85
   Finally, pursuant to Articles 23 and 24 of the Directive, the EU Member States shall
   ensure industry cooperation with the 28 competent authorities within the EU “to
   establish and implement a priority plan for the development of standards, guidance
   82 The corporate major accident prevention policy is to be submitted to the competent authority
   pursuant to Article 11(1)(a) of the Directive.
   83 The document shall contain the information specified in Annex I, Part 8, i.e., a list of (at least) nine
   specific points, among them (1) “the responsibility at corporate board level for ensuring, on a
   continuous basis, that the corporate major accident prevention policy is suitable, implemented, and
   operating as intended”; (2) “measures for building and maintaining a strong safety culture with a high
   likelihood of continuous safe operation; […]”.
   84 The corporate safety and environmental management system is to be submitted to the competent
   authority pursuant to Article 11(1)(b) of the Directive.
   85 Annex I, Part 9 of the Directive governs the minimum standards for the corporate safety and
   environmental management system.
   25
   and rules which will give effect to best practice in major accident prevention, and
   limitation of consequences of major accidents should they nonetheless occur.”86 In
   this context, in October 2014, the Commission issued a new implementing act in
   accordance with Article 24(2) of the Directive – entitled Commission Regulation (EU)
   No 1112/2014 – determining a common data reporting format and the details of
   information to be shared.87
4. Emergency Preparedness and Response
   Based on their corporate major accident prevention policy operators/owners shall
   also prepare an internal emergency response plan (Article 14(1) of the Directive in
   conjunction with its Annex 1, Part 10).88 Those plans shall be prepared (and
   continuously updated)89 in accordance with Articles 28 and 29 of the Directive taking
   into account the major accident risk assessment undertaken during preparation of the
   most recent report on major hazards. The internal emergency plan shall include an
   analysis of the oil spill response effectiveness.
   Internal emergency response plans have to be put into action without delay to
   respond to any major accident or a situation where there is an immediate risk of a
   major accident. The internal emergency response plans of operators/owners have to
   be consistent with the external emergency response plan prepared by EU Member
   States in cooperation with licensees (Article 29 of the Directive).90 Pursuant to Article
   28(2) of the Directive, the EU Member States shall ensure “that the operator and the
   owner maintain equipment and expertise relevant to the internal emergency response
   86 Annex IV of the Directive summarizes the information to be submitted by operators and owners for
   prevention of major accidents.
   87 Commission Implementing Regulation (EU) No 1112/2014 of 13 October 2014 determining a
   common format for sharing of information on major hazard indicators by the operators and owners of
   offshore oil and gas installations and a common format for the publication of the information on major
   hazard indicators by the Member States, OJ L 302/1 of 22 October 2014.
   88 The corporate internal emergency response plan is to be submitted to the competent authority
   pursuant to Article 11(1)(g) of the Directive.
   89 As a consequence of any material change to the report on major hazards or notifications, see Article
   28(3) of the Directive.
   90 According to Article 29(2) of the Directive “external emergency response plans shall be prepared by
   the Member State in cooperation with relevant operators and owners and, as appropriate, licensees
   and the competent authority, and shall take into account the most up to date version of the internal
   emergency response plans of the existing or planned installations or connected infrastructure in the
   area covered by the external emergency response plan.”
   26
   plan in order for that equipment and expertise to be available at all times and to be
   made available as necessary to the authorities responsible for the execution of the
   external emergency response plan of the Member State where the internal
   emergency response plan applies”.
   Finally, it is also important to note in this context that Article 19(6) of the Directive
   mandates the EU Members to make sure that operators and owners have to prepare
   and maintain a complete inventory of emergency response equipment pertinent to
   their offshore oil and gas operation.
5. Independent Verification, Compliance and Oversight by EU Members
   Article 17(1) of the Directive introduces another new feature under EU law,
   mandating EU Member States to ensure that operators and owners establish
   schemes for independent verification, including a description of such schemes.91 The
   results of the independent verification shall be without prejudice to the responsibility
   of the operator or the owner for the correct and safe functioning of the equipment and
   systems under verification (Article 17(2) of the Directive).
   “Independent verification” is legally defined in Article 2(29) of the Directive as “an
   assessment and confirmation of the validity of particular written statements by an
   entity or an organisational part of the operator or the owner that is not under the
   control of or influenced by, the entity or the organisational part using those
   statements”. In respect of offshore installations, the schemes for independent
   verification shall be established, in accordance with Article 17(4)(a) of the Directive,
   to assure
   91 The independent verification scheme and its description is a document to be submitted to the
   competent Authority pursuant to Article 11(1)(d) of the Directive, to be included within the safety and
   environmental management system to be submitted to the competent authority pursuant to Article
   11(1)(b) of the Directive. The description of the independent verification scheme shall contain the
   information specified in Annex I, Part 5 of the Directive. Pursuant to Article 17(3) of the Directive, the
   selection of the independent verifier and the design of schemes for independent verification shall meet
   the criteria of Annex V of the Directive.
   27

• that the elements identified as “critical” for safety and the protection of the
  environment92 in the operator’s/owner’s risk assessment are “suitable”
  93 as
  described in the report on major hazards (Article 11(2) of the Directive), and
• that the schedule of examination and testing of the safety and environmental
  critical elements is “suitable”, up-to-date and operating as intended.
  In respect of notifications of well operations, the schemes for independent verification
  shall give assurance that the well design and well control measures are “suitable” for
  the anticipated well conditions at all times (Article 17(4)(b) of the Directive).
  Operators and owners will be required to make available to the competent authority
  advice received from the independent verifier (relating to the two issues listed above),
  also relating to records of action taken on the basis of the independent advice. These
  records must be retained by the operator/owner for a period of six months after
  completion of the offshore oil and gas operations to which they relate (Article 17(6) of
  the Directive). Generally, the EU Members shall ensure that operators/owners
  respond to and take appropriate action based on the advice of the independent
  verifier (Article 17(5) of the Directive).
  Finally, pursuant to Articles 8 and 21 of the Directive, the EU Members (via their
  competent authorities) shall ensure the compliance of operators/owners with the
  measures established in the report on major hazards (as discussed further below)
  and as required by the variety of the other plans established under the Directive. In
  particular, EU Members shall ensure “that operators/owners provide the competent
  authority […] with transport to or from an installation or vessel associated with oil and
  gas operations, including the conveyance of their equipment, at any reasonable time,
  and with accommodation, meals and other subsistence in connection with the visits
  to the installations, for the purpose of facilitating competent authority oversight,
  including inspections, investigations and enforcement of compliance” (Articles 8(1)(b)
  and 21(2) of the Directive). In this context, the competent authorities of the 28 EU
  Member States will have to develop, review and continuously improve annual plans
  for effective oversight (Article 21(3) of the Directive).
  92 See the legal definition of “safety and environmental critical elements” in Article 2(33) of the
  Directive meaning “parts of an installation, including computer programmes, the purpose of which is to
  prevent or limit the consequences of a major accident, or the failure of which could cause or contribute
  substantially to a major accident.” 93 See the legal definition in Article 2(6) of the Directive, see supra, note 79.
  28

3. Documents to be submitted, especially the “Report on Major Hazards”
   It has already been stressed that Article 11 of the Directive is the key provision for all
   documents to be submitted by operators/owners. Some of those documents where
   already introduced in this paper, i.e.

• the corporate major accident prevention policy,
• the corporate safety and environmental management system,
• the corporate internal emergency response plan or
• the independent verification scheme and its description.
  There are also other documents to be submitted to the competent authority,
  specifically relating to the design of a production installation or to the possible
  relocation of a production installation (Annex 1, Part 1 of the Directive), to well
  operations (Article 15 of the Directive) or to combined operations (Article 16 of the
  Directive).
  However, the relevance of the so-called “report on major hazards”, a final key and
  very complex document to be submitted in accordance with Articles 11(1)(e) and
  11(7) of the Directive, must be finally emphasized at this point. Recitals (26) and (27)
  of the Directive outline the future practical relevance of this report extensively: “[…]
  The risk assessments and arrangements for major accident prevention should be
  clearly described and compiled in the report on major hazards […] [this report] should
  be prepared and, as necessary, amended in respect of any significant aspect of the
  lifecycle of a production installation, including design, operation, operations when
  combined with other installations, relocation of such installation within the offshore
  waters of the Member State in question, major modifications, and final abandonment.
  Similarly, the report on major hazards should also be prepared in respect of nonproduction installations and amended as necessary to take into account significant
  changes to the installation. No installation should be operated in offshore waters of
  Member States unless the competent authority has accepted the report on major
  hazards submitted by the operator or owner […].”
  29
  The report on major hazards shall be submitted to the competent authority by a
  deadline ending before the planned commencement of the operations. Assessing
  and accepting94 reports on major hazards, assessing design notifications, and
  assessing notifications of well operations or combined operations, and other similar
  documents that are submitted to it will be among the primary regulatory functions and
  duties of the competent authority (Article 8(1)(a) of the Directive).
  Materially, Article 12 (for production installations)95 and Article 13 (for non-production
  installations)96 of the Directive set out the legal requirements for adhering to the
  complexity of the report on major hazards which is to be updated whenever
  appropriate or when so required by the competent authority.
  97 The report may be
  prepared in relation to a group of production installations, subject to the agreement of
  the competent authority (Article 12(3) of the Directive). This rule does, however, not
  apply to non-production installations). In sum, the Directive mandates EU Members
  to ensure that
• workers’ representatives are consulted at the relevant stages in the
  preparation of the report on major hazards for a production installation, and
  that evidence is provided to this effect;98
• that the operator provides, if deemed necessary by the competent authority,
  further information and makes any necessary changes to the submitted report
  on major hazards;
  99
• that the operator prepares an amended report on major hazards100 where
  modifications are to be made to the production installation entailing a material
  change, or where it is intended to dismantle a fixed production installation;101
  94 The term „acceptance” “in relation to the report on major hazards“ is legally defined in Article 2(22)
  of the Directive as meaning “the communication in writing by the competent authority to the operator or
  the owner that the report, if implemented as set out therein, meets the requirements of this Directive.
  Acceptance does not imply any transfer of responsibility for control of major hazards to the competent
  authority.” 95 In conjunction with Annex I, Parts 2 and 5 of the Directive. 96 In conjunction with Annex I, Parts 3 and 5 of the Directive. 97 The report on major hazards for both production and non-production installation shall be subject to a
  thorough periodic review by the owner at least every five years or earlier when so required by the
  competent authority. The results of the review shall be notified to the competent authority, see Articles
  12(7) and 13(7) of the Directive.
  98 See Article 12(2) of the Directive in conjunction with Annex I, Part 2, point 3 of the Directive and
  Article 13(2) of the Directive in conjunction with Annex I, Part 3, Point 2 of the Directive.
  99 See Articles 12(4) and 13(3) of the Directive and Article 13(3) of the Directive. 100 To be submitted pursuant to Article 11(1)(f) of the Directive by a deadline specified by the
  competent authority, in accordance with Annex I, Part 6 of the Directive.
  101 See Articles 12(5) and 13(4) of the Directive.
  30
• that the planned modifications are not brought into use nor any dismantlement
  commenced until the competent authority has accepted the amended report
  on major hazards for the production installation.102
  Additionally, Annex I of the Directive, Part 2 (for production installations) and Part 3
  (for non-production installations) list the minimum formal requirements for the report
  on major hazards, summing up a list of 16 individual points to be addressed and
  adhered to. Practically, as regards content, almost all other legal requirements of the
  Directive form elements of the report on major hazards. As such, it will be a very
  complex (and time-consuming) document to be finally produced by operators/owners.
  II. The Key Issue under Private Law: Liability for Damages
  Already by its name, Directive 2013/30EU is a legal instrument primarily relating to
  safety and not to liability for damages caused by offshore oil and gas operations.
  However, within the legal order of the EU, the Directive at least introduces a “way
  forward concept” on the liability of licensees and operators of offshore installations
  and their access to sufficient physical, human and financial resources.
  The Directive touches very complicated legal grounds here.103 Recitals (9), (11), (58)
  and (63) of the Directive address the general policy objectives of the EU relating to
  questions of liability. Highlighting some of the most important statements, Recital (9)
  of the Directive refers to the problem that “[…] under existing liability regimes, the
  party responsible may not always be clearly identifiable and may not be able, or
  liable, to pay all the costs to remedy the damage it has caused.” As a result, “the
  party responsible should always be clearly identifiable before offshore oil and gas
  operations are commenced.”
  102 See Articles 12(6) and 13(5) and (6) of the Directive. 103 See generally, e.g., Peter Wetterstein, “Environmental Liability in the offshore sector with special
  focus on conflict of laws”, Journal of International Maritime Law (20) (2014), Part I: 30-49, Part II: 86-
  102; Rachael Lorna Johnstone, Offshore Oil and Gas Development in the Arctic under International
  Law (Boston/Leiden, Brill Academic Publishers, 2014), at 247 et seq.
  31
  Recital (11) of the Directive stresses the need “to clarify that holders of authorisations
  for offshore oil and gas operations104 are also the liable ‘operators’ within the
  meaning of [the Environmental Liability Directive], and should not delegate their
  responsibilities in this regard to third parties contracted by them.”
  Finally, Recital (63) of the Directive postulates that “operators should ensure they
  have access to sufficient physical, human and financial resources to prevent major
  accidents and limit the consequences of such accidents. However, as no existing
  financial security instruments, including risk pooling arrangements, can
  accommodate all possible consequences of major accidents, the Commission should
  undertake further analysis and studies of the appropriate measures to ensure an
  adequately robust liability regime for damages relating to offshore oil and gas
  operations, requirements on financial capacity including availability of appropriated
  financial security instruments or other arrangements. This may include an
  examination of the feasibility of a mutual compensation scheme. […]”. Pondering the
  available options will prove quite time-consuming for the European Commission.

3. Formal Issues Relating to Liability under the Directive
   The first strategic steps of undertaking analysis and studies are substantiated further
   by Article 39(1) of the Directive, requesting the Commission to submit, by 31
   December 2014, to the European Parliament and to the Council a report on the
   availability of financial security instruments, and on the handling of compensation
   claims, where appropriate, accompanied by proposals. The underlying issues are,
   however, so complex that this report could not be published within the timeframe
   envisioned by Article 39(1) of the Directive. So far, the Commission has been
   assisted by an extensive external report on the topic which was completed in August
   2014 and which has identified a deeply fragmented legal picture within the EU (the
   104 Pursuant to Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on
   the conditions for granting and using authorizations for the prospection, exploration and production of
   hydrocarbons, OJ L164/3 of 30 June 1994.
   32
   EEA States Norway and Iceland have been included in the study as well).105 In its
   summary, the report states that there is currently:

• no liability in many EU States for most third-party claims for compensation for
  “traditional” damage caused by an [offshore] accident;
• no regime in the vast majority of EU States to handle compensation payments;
  and
• no assurance in many EU States that operators or other liable persons would
  have adequate financial assets to meet such claims.106
  Given the complexity of varying and fragmented approaches in the national legal
  order of most EU Member States, it may well be that the Commission report on the
  availability of financial security instruments, and on the handling of compensation
  claims will be further postponed. Maybe it will even be combined (at a later stage)
  with another report that the Commission has to prepare as well: In accordance with
  Article 39(2) of the Directive, the Commission shall, by 19 July 2015, submit to the
  European Parliament and to the Council a report on its assessment of the
  effectiveness of the liability regimes in the [EU] in respect of the damage caused by
  offshore oil and gas operations. That report shall include an assessment of the
  appropriateness of broadening liability provisions. The report shall be accompanied,
  where appropriate, by proposals.

3. Material Issues Relating to Liability under the Directive
   According to Article 4(2)(c) of the Directive, when assessing the technical and
   financial capability of the applicant for a licence, due account shall be taken in
   particular of the “applicant’s financial capabilities, including any financial security, to
   cover liabilities potentially deriving from the offshore oil and gas operations in
   question including liability for potential economic damages where such liability is
   provided for by national law”. The above-mentioned external report prepared to assist
   the Commission in adhering to Article 39(1) of the Directive has, however, identified
   105 BIO by Deloitte, “Civil Liability, financial security and compensation claims for offshore oil and gas
   activities in the European Economic Area, Final Report prepared for the European Commission – DG
   Energy” (2014).
   106 Ibid., p. 12.
   33
   that most EU Member States currently do not recognize a liability for potential
   economic damages (with notable exceptions, such as France).
   107
   The extensive provision of Article 4(3) of the Directive mandates the EU Member
   States to “ensure that the licensing authority does not grant a licence unless it is
   satisfied with evidence from the applicant that the applicant has made or will make
   adequate provision […] to cover liabilities potentially deriving from the applicant’s
   offshore oil and gas operations. Such provision shall be valid and effective from the
   start of offshore oil and gas operations. […].” Licensees will also be required to
   maintain sufficient capacity to meet their financial obligations resulting from liabilities
   for offshore oil and gas operations. It can be expected that the majority of EU
   Member States will implement Article 4(3) of the Directive by requiring a proof of
   insurance from licensees (with minimum standards for coverage, as some national
   legal orders within the EU do already prescribe).
   Finally, Article 7 of the Directive, in fact, governs liability for environmental damage
   by stating: “Without prejudice to the existing scope of liability relating to the
   prevention and remediation of environmental damage pursuant to [the EU Directive
   on Environmental Liability], Member States shall ensure that the licensee is
   financially liable for the prevention and remediation of environmental damage as
   defined in [the Environmental Liability Directive], caused by offshore oil and gas
   operations carried out by, or on behalf of, the licensee or the operator.”
   Thus, the holder of a license (i.e. the licensee) will be directly financially liable for the
   prevention and remediation of environmental damage caused by offshore oil and gas
   activities carried out by, or on behalf of, the licensee or the operator. Nevertheless,
   the operator is the entity with the primary responsibility for the safety of offshore
   operations, obliged under EU law to reduce the risk of major accidents as low as
   “proportionately acceptable”. Depending on commercial arrangements or national
   administrative requirements, the operator can be a third party or the licensee itself or
   only one of several licensees.108 It is remarkable that even if a licensee is (or if joint
   holders of a license are) not identical with the operator, the licensee(s) is/are strictly
   liable under the now combined legal regimes of the Offshore Safety Directive and the
   Environmental Liability Directive. Consequently, in transposition of Directive
   107 Ibid., p. 10. 108 See Recital (13) of the Directive and the legal definitions of “operator” in Article 2(5) as well as
   “licensee” in Article 2(11) of the Directive.
   34
   2013/30/EU to the national legal orders of the EU Member States, financial liability for
   damages caused by offshore oil and gas operations will be strictly channelled to
   licensees in the future.
   III. Evaluation and Summary
   In sum, Directive 2013/30/EU is – in sum – an efficient reaction of the EU legislator to
   the 2010 Macondo and 2009 Montara disasters. As will be shown in the third part of
   the paper, events like those devastating accidents with no immediate connection to
   the Arctic may lead to a policy that has some Arctic implications.
   Generally, apart from its harmonizing legal requirements to be transposed into the
   national laws of the EU Members, the instrument has (inter alia) at least two short
   term legal effects: First, there will be no room at all for any kind of state liability if EU
   Members correctly apply and continuously update the regime of Directive
   2013/30/EU within their national legal order from 19 July 2015 onwards.109 This is
   important to note for one particular reason and lesson learnt from the past: In the
   proceedings relating to the Montara spill, the Indonesian government had sought
   compensation both from the well operator and from the Australian government,
   alleging that the responsible Northern Territory Department of Resources had not
   been a “diligent regulator”.110 There might be room for state liability if an injured party
   can prove that the competent authority within a given EU State had, in fact, serious
   shortcomings in its procedures in applying the specifications of the EU Directive, thus
   contributing to a major offshore accident.111
   109 See for a general discussion of this point Rachael Lorna Johnstone, Offshore Oil and Gas
   Development in the Arctic under International Law (Boston/Leiden, Brill Academic Publishers, 2014),
   at 194 et seq.
   110 See Stephen Tromans, “Pollution from Offshore Rigs and Installations” in Bariş Soyer/Andrew
   Tettenborn (eds.), Offshore Contracts and Liabilities (Informa Law, London 2014), 253-273 (at 257). 111 Although it did not happen offshore, there exists a good and recent case study (the proceedings
   are, however, not finalized yet) for a possible contributory negligence from a German regulatory
   agency: In November 2013, there was a major oil accident in an onshore oil storage facility (a cavern
   site) situated close to the German North Sea coastline which caused a spill of 40.000 litres of crude oil
   into the surrounding coastal waters. Criminal investigations for water pollution charges also included
   members of the competent regulatory agency; for more information on the accident see:
   http://www.kavernen-informationszentrum-etzel.de/detail-aktuelles/schadensereignis-am-standortetzel.html (in German, last access: 15 March 2015).
   35
   Second, as an imminent practical result, Directive 2013/30/EU now extends the
   scope of application of the EU Environmental Liability Directive. For water damage,
   the former EU legal framework for environmental liability was restricted to the
   territorial sea (i.e., (only) twelve nautical miles measured from the baselines). This
   would, however, materially exclude most offshore oil and gas projects to be covered
   by Directive 2013/30/EU. Thus, Recital (58) of the Directive postulates that “the
   definition of water damage in [the Environmental Liability Directive] should be
   amended to ensure that the liability of licensees under [the Environmental Liability
   Directive also] applies to marine waters112 of Member States […]”. The amendment is
   effected specifically by Article 38 of Directive 2013/30/EU. For water damage, by 19
   July 2015, the updated EU legal framework for environmental liability will be
   extended to the exclusive economic zone and to the relevant continental shelf of the
   EU Members (i.e., 200 nautical miles measured from the baselines). Consequently,
   the geographical scope for liability under the two Directives has been extended
   significantly.
   For the remaining issues relating to civil liability in general, it will be most interesting
   to see what the year 2015 (or much further on) will hold ready for further European
   integration in the area of liability for damages caused by offshore oil and gas
   operations. However, as it has already been pointed out quite succinctly in academic
   literature, experience in the field of environmental liability generally suggests that
   progress in harmonising a civil liability regime is likely to be “tortuous”.113 Thus,
   significant progress and early agreement cannot be expected in this new area under
   EU law. Civil liability of licensees for loss or damage suffered by third parties is not
   addressed by the Directive 2013/30/EU. This problem might as well be a potential
   (but truly sensitive) legislative issue for the EU Commission to navigate through the
   EU’s internal process of legal harmonisation and integration in the years to come.
   112 The marine waters of the EU Members are legally defined in Article 3(1) of Directive 2008/56/EC of
   the European Parliament and of the Council of 17 June 2008 establishing a framework for community
   action in the field of marine environmental policy (Marine Strategy Framework Directive), OJ L 164/19
   of 25 June 2008. See Article 3(1)(a) defining “marine waters” as “waters, the seabed and subsoil on
   the seaward side of the baseline from which the extent of territorial waters is measured extending to
   the outmost reach of the area where a Member State has and/or exercises jurisdictional rights, in
   accordance with the [the United Nations Convention on the Law of the Sea] […]”. 113 See Stephen Tromans, “Pollution from Offshore Rigs and Installations” in Bariş Soyer/Andrew
   Tettenborn (eds.), Offshore Contracts and Liabilities (Informa Law, London 2014), 253-273.
   36
   C. Extra-Territorial Effects and “Arctic Relevance” of Directive 2013/30/EU?
   Inspired by the discussions of the general basics of EU environmental law and the
   EU’s emerging Arctic strategy, followed by the more specific legal analysis of a
   modern EU act designed to protect the marine environment, this section attempts to
   combine the results of the first part and the second section by addressing the
   “delicate” issue of possible third-party effects of Directive 2013/30/EU, e.g., for future
   offshore oil and gas operations in non-EU waters, including Arctic waters. Such a
   legal effect may be vehemently disputed by non-EU Arctic States like Russia,
   Canada or the United States. However, as the EU itself concedes, e.g., in Recital
   (38) of Directive 2013/30/EU, the issue at stake should not be mistaken with directly
   obliging third non-EU parties to follow the administrative details of an EU Directive.
   Domestic regulation at the expensive of third parties is simply not acceptable under
   public international law. For international treaties, this rule is generally evidenced by
   the concept of Article 34 of the United Nations Convention on the Law of Treaties
   (VCLT).114
   The question is rather whether third non-EU States might follow the legal “spirit” of
   Directive 2013/30/EU. Without even referencing explicitly to the EU Directive they
   might as well apply a comparable methodology and generally-accepted best
   practices as part of their national legal order. Directive 2013/30/EU itself includes
   eleven explicit references to “best practices and standards”. In wider context
   including climate change and the regulation of greenhouse gas emissions, it has in
   fact been argued that if the EU could show that it enforces stricter environmental
   rules to protect (inter alia) the Arctic environment as compared to the coastal States,
   it could increase the EU’s legitimacy and perhaps its influence on Arctic
   environmental questions.115 At the international level, such a legal development
   would add to an emerging “patchwork” of generally-accepted best practices for the
   safety of offshore oil and gas operations advancing to become a real legal
   framework.116 The current patchwork is governed by different national laws and non-
   114 The provision simply states that: “A treaty does not create either obligations or rights for a third
   State without its consent.” Article 35 VCLT continues that: “An obligation arises for a third State from a
   provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the
   obligation and the third State expressly accepts that obligation in writing.” 115 Kristine Offerdal, “The EU in the Arctic”, International Journal (Autumn 2011), 861-877 (at 872). 116 This topic is also discussed by Myron H. Nordquist/Aimee Fausser, “Offshore Drilling in the Outer
   Continental Shelf: International Best Practices and Safety Standards in the Wake of the Deepwater
   37
   binding international guidelines issued by the Arctic Council which are all
   fundamentally based on identical environmental principles and concepts but which
   could possibly be integrated in a more coherent way.117
4. Extra-Territorial Effects of the Directive?
   A first remarkable issue is the fact that, in accordance with Article 19(8) of the
   Directive, the corporate major accident prevention policy to be implemented by
   operators/owners in accordance with the Directive also covers their production and
   non-production installations outside of the EU. Thus, European operators/owners
   cannot back out arguing that they are (solely or partly) active in non-EU marine
   waters. It is the seat of the physically controlling offshore oil and gas company which
   governs the safety obligations under EU law and not the random geographical
   location of a (e.g.) drilling site – though the national laws applicable in the non-EU
   country may add further to legal complexities of a coordinated licensing and safety
   regime for offshore oil and gas operations.
   Recitals (36) and (37) of the Directive put this requirement into the context of “best
   global practices” requiring licensees, operators and owners to take primary
   responsibility for controlling the risks they create by their operations. Thus, Article
   19(8) of the Directive is an explicit EU implementation of the internationally accepted
   “polluter pays principle” as well as of the “precautionary approach”, enshrined in
   Article 191(2) TFEU, as it also includes operations conducted by contractors on
   behalf of licensees, operators and owners.
   118 Therefore, licensees, operators and
   owners have to establish (within their corporate major accident prevention policy) the
   mechanisms and highest level of corporate ownership to implement and enforce their
   corporate major accident prevention policy consistently throughout their organisation
   and throughout the world.

Horizon Explosion and Oil Spill”, in Michael W. Lodge/Myron H. Nordquist (eds), Peaceful Order in the
World’s Oceans (Boston/Leiden, Brill Academic Publishers, 2014), 115-145.
117 On the application of general environmental principles by the Arctic Council see Betsy Baker,
“Offshore Oil and Gas Development in the Arctic: What the Arctic Council and International Law can –
and cannot – do”, ASIL Proceedings (2013), 275-279 (at 276). 118 On the application of the precautionary principle in the context of Arctic Offshore Oil and Gas
Operations see Rachael Lorna Johnstone, Offshore Oil and Gas Development in the Arctic under
International Law (Boston/Leiden, Brill Academic Publishers, 2014), at 105 et seq.
38
Moreover, under the heading “Offshore oil and gas operations conducted outside the
Union”, Article 20(1) of the Directive establishes ad hoc reporting obligations for
offshore oil and oil companies registered within the territory of the EU. The provision
states that EU Members shall require those companies which conduct (either directly
or through subsidiaries) offshore oil and gas operations outside of the EU, e.g. as
licence holders or operators, to report to them – on a request specifying the details of
the information required – the circumstances of any major accident in which they
have been involved. Articles 20(2) and 27(1) of the Directive establish duties for the
competent authorities of the 28 EU Members to exchange the relevant information
obtained. In this context, the individual competent authorities will be mandated to
regularly exchange knowledge, information and experience with other competent
authorities, inter alia, through the EU Offshore Oil and Gas Authorities Group
(EUOAG).119 Pursuant to Article 27(2) of the Directive „knowledge, information and
experience exchanged […] shall concern, in particular, the functioning of the
measures for risk management, major accident prevention, verification of compliance
and emergency response relating to offshore oil and gas operations within the Union,
as well as outside of the Union where appropriate.”
Finally, Article 31 of the Directive establishes rules on transboundary emergency
preparedness and response of EU Members with offshore oil and gas operations
under their jurisdiction. Thus, the provision mainly relates to transboundary effects
within the EU itself. Nevertheless, Article 31(4) of the Directive postulates that EU
Members shall also coordinate between themselves measures relating to areas
outside of the EU in order to prevent potential negative effects of offshore oil and gas
operations. Again, this provision implements Article 191(2) TFEU by considering both
the precautionary principle and the principle that preventive action should be taken.
As a result, Articles 19, 20, 27 and 31 of the Directive 2013/30/EU generate some
extra-territorial application of administrative rules but they have no extra-territorial
repercussions at all that non-EU States could reasonably complain about.
119 On the setting up of the EUOAG see also generally Greg Gordon, “The Deepwater Horizon
disaster: the regulatory response in the United Kingdom and Europe”, in Richard Caddell/Rhidian
Thomas, Shipping, Law and the Marine Environment in the 21st Century: Emerging Challenges for the
Law of the Sea – Legal Implications and Liabilities (Witney: Lawtext Publishing Ltd., 2013), 181-210 (at
203).
39

2. “Arctic Relevance” of the Directive?
   Directive 2013/30/EU is intended inter alia to serve as a future “diplomatic tool” for
   the EU to further promote the highest standards of offshore safety globally, sharing
   best practices and improving standards in cooperation with third countries, with a
   particular emphasis on sensitive sea areas, such as the Arctic. In this context, Recital
   (52) and Article 33(3) of the Directive mention a possible significance of the legal act,
   also for Arctic governance. Generally, Article 33 of the Directive introduces three subprovisions on a “coordinated approach towards the safety of offshore oil and gas
   operations at the international level”. The provision specifically authorizes the
   European Commission:
   (1) to promote cooperation with third countries that undertake offshore oil and gas
   operations in the same marine regions as Member States,
   (2) to facilitate the exchange of information between Member States with offshore
   oil and gas operations and adjacent third countries with similar operations in
   order to promote preventive measures and regional emergency response
   plans, and
   (3) to promote high safety standards for offshore oil and gas operations at
   international level in relevant global and regional fora, including those relating
   to Arctic waters.
   Remarkably, only Article 33(1) of the Directive includes explicit references to an
   internal “close cooperation” of the Commission with the EU Members “without
   prejudice to relevant international agreements”. Does this mean, argumentum e
   contrario, that Articles 33(2) and (3) of the Directive do not entail close intra-EU
   cooperation and no observance of the relevant international agreements by the
   European Commission? Obviously not, this must be an editorial mistake of the
   Directive.
   At the merely “policy-inspiring” and by itself non-binding level of the Directive’s
   political objectives, Recital (52) of the Directive classifies the Arctic waters as “a
   neighbouring marine environment of particular importance for the EU” which plays an
   important role in mitigating climate change. As a result, the serious environmental
   concerns relating to the Arctic waters would require “special attention to ensure the
   40
   environmental protection of the Arctic in relation to any offshore oil and gas
   operation, including exploration, taking into account the risk of major accidents and
   the need for effective response”. After that, Recital (52) specifically addresses
   Denmark, Finland and Sweden as concomitant EU/Arctic Council Member States,
   encouraging them in particular “to actively promote the highest standards with regard
   to environmental safety in this vulnerable and unique ecosystem, such as through the
   creation of international instruments on prevention, preparedness and response to
   Arctic marine oil pollution, and through building, inter alia, on the work of the Task
   Force established by the Arctic Council and the existing Arctic Council Offshore Oil
   and Gas Guidelines.”
   120
   As a result, the EU as a whole (and the Commission in particular) agrees to impose
   on itself a considerable degree of self-restraint. The EU concedes that it can only be
   the coordinative forum of the Arctic Council in which technical guidelines, explicit
   adherence to international best practices and standards and – maybe at some point
   in the future – even directly binding obligations for Arctic governance might be
   reasonably created and enforced. The EU will concentrate on promoting intensified
   forms of cooperation and information exchange (including Arctic research funding)121
   as well as the application of generally accepted best practices in the safety of
   offshore oil and gas operations both within and outside of the EU. In fact, this means
   that the EU – as a Member of UNCLOS – furthers the legal objectives of Article
   208(4) and (5) as codified by the Law of the Sea Convention.
   However, the EU also recognizes the crucial role of the three Arctic EU States as
   “diplomatic transmitters” between the Arctic Council and the EU (driven by the
   Commission as the EU’s key policy proposer). As a result, assuming that the state of
   EU-Russian relations will at least undermine a short-term acceptance of the EU as a
   permanent observer to the Arctic Council, also impeding the current efficiency of the
   work of the Barents Euro-Arctic Council, three important questions of the future in
   EU-Arctic Council relations will arise: First, will Denmark, Sweden and Finland accept
   their “transmitter role” within the Arctic Council and what are the details and
   120 The 2009 guidelines are available at http://www.pame.is/index.php/projects/offshore-oil-and-gas
   [last access: 15 March 2015].
   121 See also the “Opinion of the European Economic and Social Committee on ‘EU Arctic Policy to
   address globally emerging interests in the region — A view of civil society”, OJ C 198/26 of 10 July
   2013, para. 6.5, stressing that over the course of 2007-2013, the EU has invested around EUR 1.4
   billion to promote sustainable development in the Arctic and in the neighbouring regions.
   41
   instruments of such an intermediary position? Second, will Greenland – as a non-EU
   but nevertheless associated overseas territory – move closer or farther away from
   coordinated Brussels politics?122 Third, and in the long run, how exactly will the
   European Commission perform its role as an international promoter of EU rules on
   the safety of offshore oil and gas operations in accordance with Article 33 of Directive
   2013/30/EU?
   D. Conclusions and Outlook
   Well situated within the vast framework of the EU’s legal instruments on
   environmental policy, Directive 2013/30/EU on the safety of offshore oil and gas
   operations establishes a stringent and complex safety regime to bring the risk of EUrelated offshore accidents down to an absolute minimum. The Directive sets out clear
   – but nevertheless lengthy – rules covering the whole lifecycle of all exploration and
   production activities from initial design to the final abandonment or decommissioning
   of platforms and rigs. In the Directive’s Recital (38) the EU recognizes that “it may not
   be possible to enforce application of the corporate major accident prevention policy
   outside of the EU.” However, as a result of Article 19(8) of the Directive, the EU
   Members will nevertheless ensure that operators and owners also have to include
   their offshore oil and gas operations outside of EU marine waters in their corporate
   major accident prevention policy documents. This is a commendable step as
   “backing out” for purely geographic reasons will not be tolerated by the European
   regulators at the national level.
   In the third section of the paper, the question has been raised whether non-EU
   States might follow the “spirit” of Directive 2013/30/EU or whether they might apply a
   comparable methodology and generally-accepted best practices as part of their
   national legal order. For example, a recent study which focussed on some identified
   weaknesses of the Brazilian offshore oil and gas safety regime specifically took the
   UK, Norway and the United States as possible legal role models for a future reform of
   122 There is, in fact, a recent example of a sectorial policy cooperation between Greenland and the EU,
   relating to the bilaterally coordinated approach to the trade in rough diamonds, see, Council Decision
   No. 136/2014/EU of 20 February 2014 laying down rules and procedures to enable the participation of
   Greenland in the Kimberley Process certification scheme, OJ L84/99 of 20 March 2014.
   42
   the applicable domestic Brazilian rules.123 Directive 2013/30/EU, in turn, can be seen
   as inspired largely by UK and Norwegian offshore oil and gas regulations, adding
   however, some modern prescriptive elements deemed absolutely necessary by the
   European Commission.
   Remarkably, in early 2015, proposed United States’ rules on exploratory drilling on
   the U.S. Arctic Outer Continental Shelf were published which – once finalized – will
   also add to an emerging international patchwork of best practices of national
   regulators in this sensitive area.124 Just like the applicable European regime(s) the
   U.S. proposal seeks to implement a mixture of performance-based and prescriptive
   safety standards as well. Of course, the new U.S. legislative proposals make no
   explicit references to the law of foreign nations. Nevertheless, it can be tentatively
   inferred from recent literature that other national regimes have not been completely
   disregarded in the informal consultative process leading to the proposed new U.S.
   rules.125 Additionally, the proposed new U.S. rules also address specifically some
   “multilateralized” guidelines of the Arctic Council on Outer Continental Shelf oil and
   gas operations.
   126
   Quite naturally, the “flip side of the coin” would also mean that the EU would have to
   update its supranational legal order if technological developments, expert
   assessments and policy evaluations evidence that non-EU States apply instruments
   that serve the protection of the marine environment even better as compared to the
   requirements of its own Directive. In the end, combined and coordinated rule
   standardization driven by multiple stakeholders including, inter alia,
   123 See Pietro A.S. Mendes/Jeremy Hall/Stelvia Matos/Bruno Silvestre, “Reforming Brazil’s offshore oil
   and gas safety regulatory framework: Lessons from Norway, the United Kingdom and the United
   States”, Energy Policy (74) (2014), 443-453; see also a description of a recent fatal offshore oil and
   gas accident in Brazilian waters: “Explosion Kills At Least 3 at Petrobras Oil Platform”, available online
   at http://www.maritime-executive.com/article/explosion-kills-at-least-3-at-petrobras-oil-platform [last
   access: 15 March 2015]. 124 See: U.S. Department of the Interior, Bureau of Safety and Environmental Enforcement, 30 CFR
   Parts 250 and 254, Bureau of Ocean Energy Management, 30 CFR Part 550, “Oil and Gas and
   Sulphur Operations on the Outer Continental Shelf – Requirements for Exploratory Drilling on the
   Arctic Outer Continental Shelf; Proposed Rule”, Federal Register, vol. 80, No. 36, Part III (February
   24, 2015)..
   125 See, e.g., Betsy Baker/Roman Sidortsov, “The Legal and Regulatory Regime for Offshore
   Hydrocarbon Resources in the U.S. Arctic”, (ABA-SEER. January 2014), available online at:
   http://www.americanbar.org/groups/environment_energy_resources/resources/energy_law_us_russia.
   html [last access: 15 March 2015], see especially the concluding sentence of the paper: “Taking a
   critical and open look at how other Arctic countries address similar issues can help the United States
   improve its own laws and regulations and to take a leadership role in setting region-appropriate
   standards for operations in the Arctic offshore.” 126 E.g., the 2009 Arctic Offshore Oil and Gas Guidelines of the Arctic Council and the 2014 Arctic
   Council Offshore Oil and Gas Guidelines on Systems Safety Management and Safety Culture.
   43

• the eight Arctic Council Members,
• the (currently) 32 permanent observers of the Arctic Council,
• the EU as a unique legal entity, and also
• the International Standardization Organisation (ISO)127
  might even lead to a “race to the top” of international best practices and safety
  standards. Thus, hopefully, a comprehensive regulation of the offshore oil and gas
  industry operating in the Arctic and in other particularly sensitive sea areas can avoid
  a problem that has been known for a long time, e.g. in international shipping, as
  application of “sub-standards” in the absence of efficient enforcement by national
  (flag) States.
  127 ISO is in the process of drafting globally applicable standards for „Arctic operations” (ISO/TC 67/SC
  8), see: http://www.iso.org/iso/home/store/catalogue_tc/catalogue_tc_browse.htm?commid=652790
  [last access: 15 March 2015].