# CE2008052EN.01000101.xml

| 26.2.2008 | EN | Official Journal of the European Union | CE 52/1 |
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26.2.2008

EN

Official Journal of the European Union

CE 52/1

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COMMON POSITION (EC) No 1/2008

COMMON POSITION

adopted by the Council on 20 December 2007

with a view to adopting Regulation (EC) No .../2008 of the European Parliament and of the Council of ... on the banning of exports and the safe storage of metallic mercury

(Text with EEA relevance)

(2008/C 52 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof and, in relation to Article 1 of this Regulation, Article 133 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee (1),

1

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),

2

Whereas:

| (1) | Mercury releases are recognised as a global threat that warrants action at regional, national and global level. |
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(1)

Mercury releases are recognised as a global threat that warrants action at regional, national and global level.

| (2) | In accordance with the Communication from the Commission to the Council and the European Parliament ‘Community Strategy Concerning Mercury’, it is necessary to reduce the risk of exposure to mercury for humans and the environment. |
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(2)

In accordance with the Communication from the Commission to the Council and the European Parliament ‘Community Strategy Concerning Mercury’, it is necessary to reduce the risk of exposure to mercury for humans and the environment.

| (3) | Measures taken at Community level must be seen as part of a global effort to reduce the risk of exposure to mercury, in particular in the framework of the Mercury Programme under the United Nations Environment Programme. |
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(3)

Measures taken at Community level must be seen as part of a global effort to reduce the risk of exposure to mercury, in particular in the framework of the Mercury Programme under the United Nations Environment Programme.

| (4) | The export of metallic mercury from the Community should be banned in order to significantly reduce the global mercury supply. |
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(4)

The export of metallic mercury from the Community should be banned in order to significantly reduce the global mercury supply.

| (5) | The export ban will result in considerable amounts of surplus mercury in the Community that should be prevented from re-entering the market. Therefore, the safe storage within the Community of this mercury should be ensured. |
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(5)

The export ban will result in considerable amounts of surplus mercury in the Community that should be prevented from re-entering the market. Therefore, the safe storage within the Community of this mercury should be ensured.

| (6) | In order to provide for possibilities of safe storage of metallic mercury that is considered as waste, it is appropriate to derogate from Article 5(3)(a) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (3) for certain types of landfill, and to declare the criteria of Section 2.4 of the Annex to Council Decision 2003/33/EC of 19 December 2002 establishing criteria and procedures for the acceptance of waste at landfills pursuant to Article 16 of and Annex II to Directive 1999/31/EC (4) inapplicable for temporary storage of metallic mercury for more than one year in above-ground facilities dedicated to and equipped for this purpose. |
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(6)

In order to provide for possibilities of safe storage of metallic mercury that is considered as waste, it is appropriate to derogate from Article 5(3)(a) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (3) for certain types of landfill, and to declare the criteria of Section 2.4 of the Annex to Council Decision 2003/33/EC of 19 December 2002 establishing criteria and procedures for the acceptance of waste at landfills pursuant to Article 16 of and Annex II to Directive 1999/31/EC (4) inapplicable for temporary storage of metallic mercury for more than one year in above-ground facilities dedicated to and equipped for this purpose.

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4

| (7) | For temporary storage of metallic mercury for more than one year in above-ground facilities dedicated to and equipped for this purpose, Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (5) should apply. |
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(7)

For temporary storage of metallic mercury for more than one year in above-ground facilities dedicated to and equipped for this purpose, Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (5) should apply.

5

| (8) | This Regulation should be without prejudice to Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (6). Nevertheless, in order to allow appropriate disposal of metallic mercury in the Community, the competent authorities of destination and dispatch are encouraged to avoid raising objections to shipments of metallic mercury that is considered as waste based on Article 11(1)(a) of that Regulation. It is noted that, according to Article 11(3) thereof, in the case of hazardous waste produced in a Member State of dispatch in such a small quantity overall per year that the provision of new specialised disposal installations within that Member State would be uneconomic, Article 11(1)(a) thereof shall not apply. |
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(8)

This Regulation should be without prejudice to Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (6). Nevertheless, in order to allow appropriate disposal of metallic mercury in the Community, the competent authorities of destination and dispatch are encouraged to avoid raising objections to shipments of metallic mercury that is considered as waste based on Article 11(1)(a) of that Regulation. It is noted that, according to Article 11(3) thereof, in the case of hazardous waste produced in a Member State of dispatch in such a small quantity overall per year that the provision of new specialised disposal installations within that Member State would be uneconomic, Article 11(1)(a) thereof shall not apply.

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| (9) | In order to ensure storage that is safe for human health and the environment, the safety assessment required for underground storage under Decision 2003/33/EC should be complemented by specific requirements and should also be made applicable to non-underground storage. No final disposal operation should be permitted until the special requirements and acceptance criteria are adopted. The storage conditions in a salt mine or in deep underground, hard rock formations, adapted for the disposal of metallic mercury, should notably meet the principles of protection of groundwater against mercury, prevention of vapour emissions of mercury, impermeability to gas and liquids of the surroundings and — in case of permanent storage — of firmly encapsulating the wastes at the end of the mines' deformation process. Those criteria should be introduced in the annexes of Directive 1999/31/EC, when they are amended for the purpose of this Regulation. |
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(9)

In order to ensure storage that is safe for human health and the environment, the safety assessment required for underground storage under Decision 2003/33/EC should be complemented by specific requirements and should also be made applicable to non-underground storage. No final disposal operation should be permitted until the special requirements and acceptance criteria are adopted. The storage conditions in a salt mine or in deep underground, hard rock formations, adapted for the disposal of metallic mercury, should notably meet the principles of protection of groundwater against mercury, prevention of vapour emissions of mercury, impermeability to gas and liquids of the surroundings and — in case of permanent storage — of firmly encapsulating the wastes at the end of the mines' deformation process. Those criteria should be introduced in the annexes of Directive 1999/31/EC, when they are amended for the purpose of this Regulation.

| (10) | The above-ground storage conditions should notably meet the principles of reversibility of storage, protection of mercury against meteoric water, impermeability towards soils and prevention of vapour emissions of mercury. Those criteria should be introduced in the annexes of Directive 1999/31/EC when they are amended for the purpose of this Regulation. The above-ground storage of metallic mercury should be considered a temporary solution. |
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(10)

The above-ground storage conditions should notably meet the principles of reversibility of storage, protection of mercury against meteoric water, impermeability towards soils and prevention of vapour emissions of mercury. Those criteria should be introduced in the annexes of Directive 1999/31/EC when they are amended for the purpose of this Regulation. The above-ground storage of metallic mercury should be considered a temporary solution.

| (11) | Member States should submit information on permits issued for storage facilities as well as on the application and the market effects of this Regulation, in order to allow for an assessment thereof in due time. Importers, exporters and operators should submit information on movements and use of metallic mercury. |
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(11)

Member States should submit information on permits issued for storage facilities as well as on the application and the market effects of this Regulation, in order to allow for an assessment thereof in due time. Importers, exporters and operators should submit information on movements and use of metallic mercury.

| (12) | Member States should determine the penalties applicable to infringements of the provisions of this Regulation to be imposed on natural and legal persons. Those penalties should be effective, proportionate and dissuasive. |
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(12)

Member States should determine the penalties applicable to infringements of the provisions of this Regulation to be imposed on natural and legal persons. Those penalties should be effective, proportionate and dissuasive.

| (13) | It is appropriate to organise an exchange of information in order to assess the potential need for supplementary measures related to export, import and storage of mercury and to mercury compounds and products containing mercury without prejudice to the competition rules of the Treaty, in particular Article 81 thereof. |
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(13)

It is appropriate to organise an exchange of information in order to assess the potential need for supplementary measures related to export, import and storage of mercury and to mercury compounds and products containing mercury without prejudice to the competition rules of the Treaty, in particular Article 81 thereof.

| (14) | Research is ongoing on safe disposal of mercury, including on different techniques for stabilisation or other ways of immobilising mercury. The Commission should, as a matter of priority, keep this research under review and submit a report as soon as possible. This information is important as it will provide a sound basis for a review of this Regulation in order to achieve its objective. |
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(14)

Research is ongoing on safe disposal of mercury, including on different techniques for stabilisation or other ways of immobilising mercury. The Commission should, as a matter of priority, keep this research under review and submit a report as soon as possible. This information is important as it will provide a sound basis for a review of this Regulation in order to achieve its objective.

| (15) | The Commission should take this information into account when submitting an assessment report in order to identify possible needs for amending this Regulation. |
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(15)

The Commission should take this information into account when submitting an assessment report in order to identify possible needs for amending this Regulation.

| (16) | The Commission should also follow international developments concerning mercury supply and demand, in particular multilateral negotiations, and report on these in order to enable the consistency of the overall approach to be assessed. |
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(16)

The Commission should also follow international developments concerning mercury supply and demand, in particular multilateral negotiations, and report on these in order to enable the consistency of the overall approach to be assessed.

| (17) | The measures necessary for the application of this Regulation concerning temporary storage of metallic mercury in certain facilities referred to herein should be adopted in accordance with Directive 1999/31/EC taking into account the direct link between this Regulation and that Directive. |
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(17)

The measures necessary for the application of this Regulation concerning temporary storage of metallic mercury in certain facilities referred to herein should be adopted in accordance with Directive 1999/31/EC taking into account the direct link between this Regulation and that Directive.

| (18) | Since the objective of this Regulation, namely the reducing of exposure to mercury by means of an export ban and a storage obligation, cannot be sufficiently achieved by the Member States, and can therefore, by reason of the impact on the movement of goods and the functioning of the internal market as well as the trans-boundary nature of mercury pollution, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective, |
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(18)

Since the objective of this Regulation, namely the reducing of exposure to mercury by means of an export ban and a storage obligation, cannot be sufficiently achieved by the Member States, and can therefore, by reason of the impact on the movement of goods and the functioning of the internal market as well as the trans-boundary nature of mercury pollution, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective,

HAVE ADOPTED THIS REGULATION:

Article 1

The export of metallic mercury (Hg, CAS 7439-97-6) from the Community shall be prohibited from 1 July 2011.

Article 2

From 1 July 2011, metallic mercury that is no longer used in the chlor-alkali industry, metallic mercury gained from the cleaning of natural gas and metallic mercury from non-ferrous mining and smelting operations shall be considered waste and be disposed of according to the provisions of Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (7) in a way that is safe for human health and the environment.

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Article 3

1.   By way of derogation from Article 5(3)(a) of Directive 1999/31/EC, metallic mercury that is considered as waste may, in appropriate containment, be

| (a) | temporarily stored for more than one year or permanently stored (disposal operations D 15 or D 12 respectively, as defined in Annex II A of Directive 2006/12/EC) in salt mines adapted for the disposal of metallic mercury, or in deep, underground, hard rock formations providing a level of safety and confinement equivalent to that of those salt mines; or |
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(a)

temporarily stored for more than one year or permanently stored (disposal operations D 15 or D 12 respectively, as defined in Annex II A of Directive 2006/12/EC) in salt mines adapted for the disposal of metallic mercury, or in deep, underground, hard rock formations providing a level of safety and confinement equivalent to that of those salt mines; or

| (b) | temporarily stored (disposal operation D 15, as defined in Annex II A of Directive 2006/12/EC) for more than one year in above-ground facilities dedicated to and equipped for the temporary storage of metallic mercury. In this case, the criteria set out in Section 2.4 of the Annex to Decision 2003/33/EC shall not apply. |
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(b)

temporarily stored (disposal operation D 15, as defined in Annex II A of Directive 2006/12/EC) for more than one year in above-ground facilities dedicated to and equipped for the temporary storage of metallic mercury. In this case, the criteria set out in Section 2.4 of the Annex to Decision 2003/33/EC shall not apply.

The other provisions of Directive 1999/31/EC and Decision 2003/33/EC shall apply to points (a) and (b).

2.   Directive 96/82/EC shall apply to storages as referred to in paragraph 1(b) of this Article.

Article 4

1.   The safety assessment to be carried out in accordance with Decision 2003/33/EC for the disposal of metallic mercury according to Article 3 of this Regulation shall cover in particular the additional risks arising from the nature and long-term properties of the metallic mercury and its containment.

2.   The permit referred to in Articles 8 and 9 of Directive 1999/31/EC for facilities according to Article 3(1)(a) and (b) of this Regulation shall include requirements for regular visual inspections of the containers and the installation of appropriate vapour detection equipment to detect any leak.

3.   The requirements for facilities listed in Article 3(1)(a) and (b) of this Regulation as well as acceptance criteria for metallic mercury, amending Annexes I, II and III of Directive 1999/31/EC, shall be adopted according to the procedure referred to in Article 16 of that Directive. The Commission shall make an appropriate proposal as soon as possible, and at the latest by 1 January 2010.

Any final disposal operation (disposal operation D 12, as defined in Annex II A of Directive 2006/12/EC) concerning metallic mercury shall only be permitted after the date at which the amendment of Annexes I, II and III of Directive 1999/31/EC has been adopted.

Article 5

1.   Member States shall submit to the Commission a copy of any permit issued for a facility designated to store metallic mercury temporarily or permanently (disposal operations D 15 or D 12 respectively, as defined in Annex II A of Directive 2006/12/EC).

2.   By 1 July 2012, Member States shall inform the Commission on the application and market effects of this Regulation in their respective territories. Member States shall, upon request from the Commission, submit that information earlier than that date.

3.   By 1 July 2012, importers, exporters and operators of activities referred to in Article 2, as appropriate, shall send to the Commission and to the competent authorities the following data:

| (a) | volumes, prices, originating country and destination country as well as the intended use of metallic mercury entering the Community; |
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(a)

volumes, prices, originating country and destination country as well as the intended use of metallic mercury entering the Community;

| (b) | volumes, originating country and destination country of metallic mercury considered waste that is traded cross-border within the Community. |
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(b)

volumes, originating country and destination country of metallic mercury considered waste that is traded cross-border within the Community.

Article 6

Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are applied. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by ... (8) and shall notify it without delay of any subsequent amendment affecting them.

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Article 7

1.   The Commission shall organise an exchange of information between the Member States and the industries concerned. This exchange of information shall, in particular, examine the potential need for: extending the export ban to mercury compounds and products containing mercury; an import ban of metallic mercury, mercury compounds and products containing mercury; extending the storage obligation to metallic mercury from other sources; and time limits concerning temporary storage of metallic mercury.

2.   The Commission shall keep under review ongoing research activities on safe disposal options, including solidification of metallic mercury. The Commission shall submit a report to the European Parliament and the Council by 1 July 2010. On the basis of this report, the Commission shall, if appropriate, present a proposal for a revision of this Regulation as soon as possible and not later than 1 July 2013.

3.   The Commission shall assess the application and market effects of this Regulation in the Community, taking into account the information referred to in paragraphs 1 and 2 and in Article 5.

4.   The Commission shall submit a report, if appropriate accompanied by a proposal for a revision of this Regulation, to the European Parliament and the Council by 1 July 2013 which shall reflect and evaluate the outcome of the information exchange referred to in paragraph 1 and of the assessment referred to in paragraph 3.

5.   The Commission shall report to the European Parliament and the Council by 1 July 2010 on progress in multilateral activities and negotiations on mercury, assessing in particular the consistency of the timing and scope of the measures specified in this Regulation with international developments.

Article 8

Until 1 July 2011, Member States may maintain national measures restricting the export of metallic mercury which were adopted in line with Community legislation before the adoption of this Regulation.

Article 9

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Official Journal of the European Union

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at ...

For the European Parliament

The President

For the Council

The President

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(1)  OJ C 168, 20.7.2007, p. 44.

1

(2)  Opinion of the European Parliament of 20 June 2007 (not yet published in the Official Journal), Council Common Position of 20 December 2007 and Position of the European Parliament of ... (not yet published in the Official Journal).

2

(3)  OJ L 182, 16.7.1999, p. 1. Directive as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).

3

(4)  OJ L 11, 16.1.2003, p. 27.

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(5)  OJ L 10, 14.1.1997, p. 13. Directive as last amended by Regulation (EC) No 1882/2003.

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(6)  OJ L 190, 12.7.2006, p. 1.

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(7)  OJ L 114, 27.4.2006, p. 9.

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(8)  One year from the entry into force of this Regulation.

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STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

The Commission submitted its proposal for a Regulation of the European Parliament and of the Council on the banning of exports and the safe storage of metallic mercury to the Council on 26 October 2006. The proposal is based on Articles 133 and 175(1) of the Treaty establishing the European Community.

On 20 June 2007, the European Parliament adopted its Opinion at first reading.

On 25 April 2007, The Economic and Social Committee adopted its Opinion.

On 27 November 2006, the Committee of Regions decided not to deliver an opinion on this proposal.

On 20 December 2007, the Council adopted its common position in accordance with Article 251(2) of the Treaty establishing the European Community.

II.   OBJECTIVES

The aim of the proposed Regulation is to contribute to the reduction of mercury levels in the environment by reducing the global supply of metallic mercury and to provide a legal framework for a sustainable solution for its surpluses. Key objectives are:

| — | to ban the export of metallic mercury from the Community, |
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—

to ban the export of metallic mercury from the Community,

| — | to ensure that the surplus of metallic mercury from main sources does not re-enter the market and is safely disposed of, |
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—

to ensure that the surplus of metallic mercury from main sources does not re-enter the market and is safely disposed of,

| — | to provide for the specific possibility of disposing of metallic mercury in dedicated facilities. |
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—

to provide for the specific possibility of disposing of metallic mercury in dedicated facilities.

III.   ANALYSIS OF THE COMMON POSITION

General

The common position incorporates a number of the European Parliament's first-reading amendments, either verbatim, in part or in spirit. In particular, it provides for a broad review of needs for a future possible extension of the scope of the Regulation and introduces additional safety requirements for the disposal of metallic mercury. It also specifies the legal basis of the proposal (Article 175(1), and Article 133 of the Treaty in relation to Article 1 of the Regulation which does not follow amendments 2 and 19), and includes a number of other changes clarifying the text and the application of relevant EC legislation. The following Sections describe changes of substance.

Mercury export ban — scope and its review (Articles 1 and 7)

The scope of the Regulation and the date of export ban in Article 1 correspond with the Commission's initial proposal. The common position is partly consistent with amendments 20, 50, 22, 33, 36, 1, 8, 9 and 14 in that it provides in Article 7(1) and (2) for a review, the aim of which is the future possible extension of the scope for mercury compounds, products containing mercury, import ban of mercury, mercury compounds and products containing mercury. Amendments 3, 4, 5 and 7 were considered redundant and are not part of the common position.

Disposal obligation (Article 2)

Article 2 lays down that metallic mercury from the three most relevant sources in the Community would be disposed of in accordance with the Directive 2006/12/EC on waste.

Amendments 24, 31 and 6 were not accepted because the Council does not have any justification for the proposed prioritization of one particular option for the storage of metallic mercury.

Conditions of metallic mercury disposal (Articles 3 and 4)

Article 3 of the common position extends storage options for metallic mercury considered as waste for deep, underground, hard rock formations. This extension includes both temporary and permanent solutions. Articles 3 and 4 introduce additional safety requirements for the storage of metallic mercury and specify application of existing relevant EC legislation to this aim.

The Council agrees with the Commission that the permanent storage of metallic mercury can be the safe final disposal option under certain conditions and does not therefore follow amendments 23, 25, 26, 11, 12 and 15. However, research activities on safe disposal options for metallic mercury will be further reviewed in accordance with Article 7(2).

Amendment 41 was not accepted by the Council since it weakens the safety requirements for storage of metallic mercury. Pursuant to Article 2(g) of Directive 1999/31/EC on the landfill of waste, storage of waste for disposal for a period of less than one year is not considered as landfill of waste. There is therefore no prohibition on the temporary storage of metallic mercury in liquid form as waste up to a period of one year, including in installations for the production of chlorine, which are subject to the provisions of Directive 96/61/EC (IPPC). The IPPC Directive governs the environmental permit for a facility and is not sufficient to ensure the safety requirements for the storage of metallic mercury.

Article 4(3) is partly consistent with amendment 28 since it permits any final disposal activity only after the adoption of requirements for facilities listed in Article 3(a) and (b) and acceptance criteria for metallic mercury in Annexes I, II and III of the Landfill Directive.

Reporting and sanctions (Articles 5 and 6)

Amendments 47, 30, 32, 35, 37, 38, 39, 10, 13, 16 and 18 concerning a special fund for mercury storage, extension and tightening of reporting obligations for Member States, companies and the Commission, and awareness raising in Member States were not accepted because the Council considers that the suggested requirements are disproportionate and would increase bureaucracy unnecessarily.

Amendments 34 and 17 on penalties applicable to infringements of the provisions of the Regulation are taken up fully.

IV.   CONCLUSIONS

The Council believes that the common position represents a balanced package that would respect the objectives of the Regulation. It looks forward to constructive discussions with the European Parliament with a view to the early adoption of the Regulation.

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