# IMMC.COM%282019%29413%20final.ENG.xhtml.1_EN_ACT_part1_v4.docx

european flagEUROPEAN COMMISSION Brussels, 16.9.2019 COM(2019) 413 final 2019/0193(NLE) Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the third meeting of the Conference of the Parties to the Minamata Convention on Mercury as regards the adoption of a Decision establishing thresholds for mercury waste, in accordance with Article 11, paragraph 2, of that Convention
EXPLANATORY MEMORANDUM 1. Subject matter of the proposal This proposal concerns the decision establishing the position to be taken, on the Union's behalf, at the third meeting of the Conference of the Parties to the Minamata Convention on Mercury regarding the envisaged adoption of a Decision establishing thresholds for mercury waste, as referred to Article 11, paragraph 2 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. Article 11, paragraph 2 of the Agreement, stipulates that, for the purpose of this Agreement, ‘mercury wastes’ means, substances or objects (a) consisting of or (b) containing or (c) contaminated with mercury or mercury compounds, in a quantity exceeding the thresholds to be defined by the Conference of the Parties, and which are disposed of or are intended or required to be disposed of in accordance with national law or the Agreement. This provision adds that this definition of ‘mercury wastes’ excludes mining waste (overburden, waste rock and tailings), except mining waste from primary mercury mining, containing mercury or mercury compounds in a quantity below the thresholds to be defined by the Conference of the Parties. Article 11, paragraph 3, of the Agreement, specifies that waste qualifying as mercury waste under its Article 11, paragraph 2, must be managed in an environmentally sound manner (‘ESM’). 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 The COP, during its second meeting (19-23 November 2018), adopted Decision MC-2/2 3 establishing a group of technical experts to proceed with discussions on mercury waste thresholds during the intersessional period leading to its third meeting (‘COP3’). The mandate of the above-mentioned group called in particular the development of approaches and methodologies for establishing thresholds for mercury waste, including for relevant mining waste. In light of the outcome of the expert work, COP3 is expected to adopt a decision on this matter (the envisaged act). The envisaged act will set thresholds allowing the identification of waste (a) consisting of or (b) containing or (c) contaminated with mercury or mercury compounds that will fall under Article 11 of the Agreement. Accordingly, the envisaged act will define the scope of application of the waste provisions of the Agreement, and in particular of its Article 11, paragraph 3, on the duty to treat relevant mercury waste according to ESM.
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 third meeting of the COP, the adoption of a Decision that is consistent with the EU acquis. Mercury waste is regulated at EU level, notably by Regulation (EU) 2017/852 of the European Parliament and of the Council of 17 May 2017 on Mercury and repealing Regulation (EC) No 1102/2008 4 , by Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste 5 , by Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC 6 and by Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste 7 . EU waste law relies upon the key obligation set out in Articles 13 and 17 of above-cited Directive 2008/98/EC according to which Member States shall take the necessary measures to ensure that waste management is carried out without endangering human health and without harming the environment. These provisions implement the ESM obligation set out in Article 11, paragraph 3, of the Agreement. In effect, whilst the EU was instrumental regarding the development of the Agreement, including its provisions on mercury waste and whereas EU experts contributed significantly to the envisaged act, the EU acquis on waste goes beyond Article 11 of the Agreement as all mercury waste referred to in this provision are regulated at EU level and made subject to ESM irrespective of their content in mercury or mercury compounds. In the light of the above, the EU can therefore support the adoption of an envisaged act, which is consistent with the EU acquis. Accordingly, at the third meeting of the Conference of the Parties to the Agreement, the EU can only support the adoption of a Decision that is consistent with the EU acquis. A Union position is needed as, once adopted, the Parties to the Agreement shall have to implement the envisaged act. 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 ’ 8 . 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 measures to ensure that it is implemented and complied with. 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. 2019/0193 (NLE) Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the third meeting of the Conference of the Parties to the Minamata Convention on Mercury as regards the adoption of a Decision establishing thresholds for mercury waste, in accordance with Article 11, paragraph 2, of that Convention THE COUNCIL OF THE EUROPEAN UNION Having regard to the Treaty on the Functioning of the European Union, and in particular Article 192(1), in conjunction with Article 218(9) thereof, Having regard to the proposal from the European Commission, Whereas: (1) The Minamata Convention on Mercury 9 (‘the Agreement’) was concluded by the Union by Council Decision (EU) 2017/939 10 and entered into force on 16 August 2017.
(2) Pursuant to Decision MC-1/1 on Rules of Procedures adopted by the Conference of the Parties to the Agreement at its first meeting, the Parties shall make every effort to reach agreement on all matters of substance by consensus. (3) The Conference of the Parties to the Agreement, during its third meeting on 25-29 November 2019, is expected to adopt a Decision (‘the proposed Decision’) on thresholds for mercury waste, as referred to in Article 11, paragraph 2, of the Agreement, which would, as a result, define the scope of application of Article 11 of the Agreement on waste; whereas mercury waste that would fall under Article 11, paragraph 2, of the Agreement should be subject to environmental sound management by virtue of Article 11, paragraph 3, of the Agreement. (4) It is appropriate to establish the position to be taken on the Union's behalf in the Conference of the Parties to the Agreement, as this proposed Decision, if approved, will have legal effects since the Parties to the Agreement will have to take measures to implement it at national and/or regional levels. (5) The Union contributed significantly to the development of the waste provisions of the Agreement and to the intersessional expert work launched by Decision MC-2/2 11 adopted by the Conference of the Parties to the Agreement at its second meeting and that has led to the proposed Decision; whereas the Union acquis requires already that all mercury waste referred to in Article 11, paragraph 2, of the Agreement, be managed without endangering human health and without harming the environment irrespective of their mercury content; (6) The Union should only support the adoption of a Decision by the Conference of the Parties to the Agreement that is consistent with the Union acquis. HAS ADOPTED THIS DECISION: Article 1 The position to be taken on the Union's behalf in the third meeting of the Conference of the Parties to the Agreement shall be to support the adoption of a Decision on thresholds for mercury waste that is consistent with the Union acquis . Article 2 This Decision is addressed to the Commission. Done at Brussels, For the Council The President
(1) Council Decision (EU) 2017/939 of 11 May 2017 on the conclusion on behalf of the European Union of the Minamata Convention on Mercury (OJ L 142, 2.6.2017, p. 4).
(2) On 20 June 2019, twenty-three Member States had ratified the Minamata Convention on Mercury, i.e. Austria, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Romania, Slovakia, Slovenia, Sweden and the United Kingdom.
(3) Decision MC-2/2 Mercury waste thresholds, Report of the Conference of the Parties to the Minamata Convention on Mercury on the work of its second meeting, UNEP/MC/COP2/19 of 06.12.2018, available here:
http://www.mercuryconvention.org/Meetings/COP2/tabid/6355/language/en-US/Default.aspx
(4) OJ L 137, 24.05.2017, p. 1.
(5)
OJ L 312, 22.11.2008, p. 3.
(6) OJ L 102, 11.4.2006, p. 15.
(7) OJ L 226, 6.9.2000, p. 3.
(8) Judgment of the Court of Justice of 7 October 2014, Germany v Council, C-399/12, ECLI:EU:C:2014:2258, paragraphs 61 to 64.
(9) Certified copy of the Minamata Convention on Mercury available at:
https://treaties.un.org/doc/Treaties/2013/10/20131010%2011-16%20AM/CTC-XXVII-17.pdf
(10)
Council Decision (EU) 2017/939 of 11 May 2017 on the conclusion on behalf of the European Union of the Minamata Convention on Mercury (OJ L 142, 2.6.2017, p. 4).
(11)
Decision MC-2/2 Mercury waste thresholds , Report of the Conference of the Parties to the Minamata Convention on Mercury on the work of its second meeting, UNEP/MC/COP2/19 of 06.12.2018.