Explanatory Memorandum to COM(2018)657 - EU position on adopting guidelines on environmentally sound interim storage of mercury, other than waste mercury, as per art. 10, paragraphs 2, 3 of the Minamata Convention

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dossier COM(2018)657 - EU position on adopting guidelines on environmentally sound interim storage of mercury, other than waste mercury, as per ...
source COM(2018)657 EN
date 26-09-2018


1. Subject matter of the proposal

This proposal concerns the decision establishing the position to be taken, on the Union's behalf, at the second meeting of the Conference of the Parties to the Minamata Convention on Mercury in connection with the envisaged adoption of guidelines on the environmentally sound interim storage of mercury, other than waste mercury, referred to in Article 10, paragraphs 2 and 3 of that Convention.

2. Context of the proposal.

2.1.The Minamata Convention on Mercury

The Minamata Convention on Mercury ('the Agreement’) is the main international legal framework aimed at protecting human health and the environment from anthropogenic emissions and releases of mercury and mercury compounds to air, water and land.

It addresses the whole life-cycle of mercury, from primary mercury mining to mercury waste disposal, including the interim storage of mercury, mixtures of mercury with other substances, including alloys of mercury, with a mercury concentration of at least 95% per weight ('mercury mixtures'), and of six mercury compounds, including mercury (I) chloride, mercury (II) oxide, mercury (II) sulphate, mercury (II) nitrate, cinnabar and mercury sulphide, other than waste mercury.

The Agreement entered into force on 16 August 2017.

The European Union is a party to the Agreement 1  as well as most Member States 2 .

2.2.The Conference of the Parties

The Conference of the Parties to the Agreement ('COP') performs the functions assigned to it by the Agreement and, to that end, shall consider and undertake inter alia any additional action that may be required for the achievement of the objectives of the Agreement, including the adoption of relevant guidelines.

According to Article 28 of the Agreement and Decision MC-1/1 on Rules of Procedures adopted by the COP at its first meeting (24-29 September 2017), each Party has one vote. However, the Union, as a regional economic integration organisation, exercises its right to vote, on matters within its competence, with a number of votes equal to the number of its Member States that are parties to the Agreement. The Union shall not exercise its right to vote if any of its Member States exercises its right to vote, and vice versa.

2.3.The envisaged act of the Conference of the Parties

On 19 November 2018, during its second meeting, the COP is to adopt guidelines regarding the environmentally sound interim storage of mercury, other than waste mercury, referred to in Article 10, paragraphs 2 and 3 of the Agreement (‘the envisaged act’).

The purpose of the envisaged act is to establish guidelines aimed at ensuring the environmentally sound interim storage of mercury, mercury mixtures, and of six mercury compounds (mercury (I) chloride, (II) oxide, (II) sulphate, (II) nitrate, suphide and cinnabar), other than waste mercury. In practice, the envisaged act is mainly relevant for the storage of liquid metallic mercury.

Under Article 10, paragraphs 2 and 3 of the Agreement, the measures Parties shall undertake to ensure environmentally sound interim storage must take into account the guidelines adopted by the COP.

3. Position to be taken on the Union's behalf

The proposed position to be taken on the Union's behalf is to support, at the second meeting of the COP, the adoption of the envisaged act.

The content of the envisaged act is the outcome of the intersessional process launched by the COP at its first meeting by means of Decision MC-1/18 3 , requesting “the secretariat to undertake further revision of the draft guidelines” and to “submit the revised guidelines at its second meeting for consideration and possible adoption”. Experts from the Union contributed significantly to this process by providing submissions to the Secretariat in accordance with the timetable set out in Decision MC-1/18. The resulting draft guidelines, as revised by that Secretariat, took on board comments received from EU experts and did not give rise to further EU comments as the guidelines are consistent with the acquis, including Directive 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the control of major-accident hazards involving dangerous substances 4 , concerning larger stocks of mercury. Furthermore, the guidelines include the recognition that they may be applied flexibly, in particular regarding small stocks.

The proposed position is consistent with EU policy and legislation on mercury as the implementation of the envisaged act by Parties to the Agreement would contribute to the reduction of mercury emissions and releases from interim storage, hence contributing to the protection of human health and of the environment, including within the Union.

A Union position is needed as, once adopted, the Parties to the Agreement shall have to take such guidelines into account when taking measures on the environmentally sound interim storage of mercury, mercury mixtures, and of the six concerned mercury compounds, other than waste mercury.

4. Legal basis

4.1.Procedural legal basis

4.1.1.Principles

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the rules of international law governing the body in question. It also includes instruments that do not have a binding effect under international law, but that are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’ 5 .

4.1.2.Application to the present case

The COP is a body set up by an agreement, namely the Minamata Convention on Mercury.

The envisaged act, which the COP is called upon to adopt, constitutes an act having legal effects. The envisaged act has legal effects because Parties to the Agreement shall take it into account when undertaking measures to ensure the environmentally sound interim storage of mercury, mercury mixtures, and of six mercury compounds (mercury (I) chloride, (II) oxide, (II) sulphate, (II) nitrate, suphide and cinnabar), other than waste mercury.

The envisaged act does not supplement or amend the institutional framework of the Agreement.

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU.

4.2.Substantive legal basis

4.2.1.Principles

The substantive legal basis for a decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the Union's behalf. If the envisaged act pursues two aims or has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the decision under Article 218(9) TFEU must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component.

4.2.2.Application to the present case

The main objective and content of the envisaged act relate to environment.

Therefore, the substantive legal basis of the proposed decision is Article 192(1) TFEU.

4.3.Conclusion

The legal basis of the proposed decision should be Article 192(1) TFEU, in conjunction with Article 218(9) TFEU.