EN   EN 
 
 
 EUROPEAN  
COMMISSION   
Brussels, 24.2.2022  
COM(2022) 67 final  
2022/0046 (NLE)  
 
Proposal for a  
COUNCIL DECISION  
on the position to be taken on behalf of the European Union at the 15th Conference of 
the Parties to the Basel Convention on the Control of Transboundary Movements of 
Hazardous Wastes and their Disposal with regard to certain amendments of Article 6(2) 
in that Convention   
EN 1  EN EXPLANATORY MEMORANDUM  
 
1. SUBJECT MATTER OF THE PROPOSAL  
This proposal concerns a decision establishing the Union’s position at the 1 5th meeting of the 
Conference of the Parties to the Basel Convention , with respect to a proposal to change 
Article 6 of this Convention. The meeting is scheduled to take place in June 2022.  
 
2. CONTEXT OF THE PROPOSAL  
2.1. The Basel Convention on the Control of Transboundary Movements of Hazardous 
Wastes and their Disposal  
The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and 
their Disposal (‘the Convention ’) was adopted on 22 March 1989 and entered into force in 
1992. The Euro pean Union as  well as its Member States are P arties to the Convention1. The 
Convention has 188 Parties.  
The Convention 's cornerstone  is a control system  for the export , import and transit of certain 
waste , through the procedure of “ prior informed consent ”. Exports of waste subject to the 
Convention shall be notified in advance to the competent authorities of the S tates of import 
and transit . The notification s shall be made in writing and shall contain the declarations and 
information specified in Annex V A to the Convention. A waste export may only proceed if 
and when all States concerned have given their written consent (Article 6 of the Convention) . 
The Convention's control system applies to hazardous waste defined in Article 1 and listed in 
Annex VIII to the Convention , as well as to  waste listed in Annex II , which contains waste 
collected from households , residues arising from the incineration of household waste  and 
certain plastic waste . The  Convention also lists waste entries in Annex IX which do not fall 
within its scope and control system unless such waste contains a material belonging to a 
category in Annex I to an extent causing it to exhibit a hazardous characteristic in Annex III.  
2.2. The Conference of the Parties  
The Conference of the Parties to the Basel Convention is the principal decision -making body 
of the Convention. It has powers to amend  the A nnexes to the Convention and it meets every 
two years.  
The fifteenth meeting of the Conference of the Parties to the Basel Convention  (CoP15)  is 
being held in two segments: a first online segment took place from 26 to 30 July 2021  and t he 
meeting will be re sume d during a face -to-face segment in Geneva, from 6 to 17 June 202 2. 
 
2.3. The proposed amendment to the Convention   
The Russian Federation tabled a proposal for consideration at the 1 5th meeting of the 
Conference of the Parties, designed to amend  the first sentence of paragraph 2 of Article 6 of  
the Convention ( ‘the envisaged act’)2. 
                                                 
1 Council Decision 93/98/EEC concerning the conclusion, on behalf of the Community, of th e Basel 
Convention of 22 March 1989 on the control of transboundary movements of hazardous wastes and 
their disposal, OJ L  39, 16.2.1993, p. 1.  
2 The proposa l is available on the website of the Basel Convention, see 
http://www.basel.int/TheConvention/Communications/tabid/1596/Default.aspx   
EN 2  EN The first sentence of Article 6(2) of the Convention reads as follows: “ The State of import 
shall respond to the notifier in writing, consenting to the movement with or without 
conditions, denying permission for the movement, or requesting additional infor mation ”. 
This envisaged act proposes to change this sentence  through the addition of a time limit of 30 
days within which  a country of import should respond to the notifier (to consent to the 
planned shipment, deny its permission to this shipment, or to re quest additional information). 
In addition, the proposal consists in deleting the “,” between “ conditions ” and “ denying ”, to 
replace the comma with “ or”.  
The Convention is implemented in the Union through Regulation (EC) No 1013/2006 of the 
European Parli ament and of the Council of 14 June 2006 on shipments of waste3 (“the WSR” 
hereafter) . Any modifications to the Convention would  come into effect in the EU after they 
have been implemented through amendments of  this Regulation.   
The current rules applying to the Union and its Member States  already foresee a 30 days 
deadline for the importing country to respond to the notifier (see Article 8 of the WSR). This 
also applies to ot her OECD countries, as per the OECD Decision4.  
For the Union , the only practical consequence of the changes linked to the Russian Federation 
proposal would relate to the procedure for the export of notified waste to non -OECD 
countries. As export of Annex VIII and Annex II waste to non -OECD countries is banned  
under the WSR , the change triggered by the Russian proposal would only relate to “unlisted 
waste” (i.e. with the Russian proposal, non -OECD countries importing unlisted waste from 
the EU would have to respond t o the notifier within 30 days), which, under Article 3(1)(b )(iii) 
and (iv)  of the WSR, are subject to the procedure of “ prior informed consent ”. The 
amendment proposed by the Russian Federation would mean that, for these cases, the 
importing country would have to respond within 30 days to the notifie r of a shipment from the 
Union destined to a non -OECD country.  
The procedure for amending the Co nvention is governed by Article 17 of the Convention. 
Any such amendment must be adopted at a meeting of the Conference of the Parties . An 
amendment  become s binding on th ose Parties that deposit their instruments of ratification, 
approval, formal confirmation or acceptance in accordance with Article  17(5) of the 
Convention , which provides:  “Instruments of ratification, approval, formal confirmation or 
accepta nce of amendments shall be deposited with the Depositary. Amendments adopted in 
accordance with paragraphs 3 or 4 above shall enter into force between Parties having 
accepted them on the ninetieth day after the receipt by the Depositary of their instrument  of 
ratification, approval, formal confirmation or acceptance by at least three -fourths of the 
Parties who accepted them or by at least two thirds of the Parties to the protocol concerned 
who accepted them, except as may otherwise be provided in such proto col. The amendments 
shall enter into force for any other Party on the ninetieth day after that Party deposits its 
instrument of ratification, approval, formal confirmation or acceptance of the amendments ”. 
There is therefore a need for a ratification , approval, formal confirmation or acceptance by  
three quarters of the Parties to the Convention (so 141 Parties) for any amendment of the 
Convention to enter into force.  
So far, the body of the Convention has been amended once, through the addition of an Article 
4A and of a subsequent addition of an Annex VII (“the Basel Ban amendment”)  to the 
                                                 
3 OJ L 190, 12.7.2006, p. 1.  
4 Decision  on the Control of Transboundary Movements of Wastes D estined for Recovery Operations , 
https://legalinstruments.oecd.org/en/instruments/OECD -LEGAL -0266   
EN 3  EN Convention . This amendment was agreed by the Conference of the Parties at its third meeting 
in 1995 and it entered into force in 2019, for those Parties that have ra tified it.  
 
3. POSITION TO BE TAKEN ON THE UNION'S BEHALF  
(1) The Union should not support the amendment of paragraph 2 of Article 6 of the 
Convention  as proposed by the Russian Federation .  
(2) The first part of the amendment (30 days time limit for the importing country to 
respond to the notifier) would not bring any major change  for the Union and its 
Member States, as the time limit of 30 days for importing countries to respond to the 
notifier contained in the proposed amendment already applies to the m ajority of 
shipments notified by the EU and its Member States under Union law (with the 
exception of exports of unlisted waste to non -OECD countries). Neither would it 
change obligations for the EU/and its Member States receiving notifications, as the 
time limit of 30 days to respond already applies under Union law.  
(3) The second part of the amendment (replacing a comma with “or”) does not seem 
necessary and would create legal uncertainty. The current formulation is sufficiently 
clear that the importing c ountry can react in three different manners when responding 
to the notifier (consenting to the movement, denying the permission to this 
movement, or requesting additional information). There is therefore no need to 
amend  this sentence.  
(4) The process rel ating to amending the Convention is very burdensome  and time 
consuming , especially as it requires each Party  to proceed with its internal 
ratification process  and a threshold of three quarters of all Parties to ratify if before 
the amendment enters into force . This amendment might also in the end have a 
limited impact, as amendments are only binding on those who have ratified them. 
The proposed amendment theref ore would  not address  improving the effectiveness 
of the Convention  in an efficient way as it would launch a lengthy and heavy  process 
within the Convention and for its Parties.  
(5) While not supporting the proposed amendments, the Union should stress that Parties 
should promote a better functioning of the notification procedure, within the 
framework of the Basel Convention.   This could include the establishment of other 
time limits  for responses to notifiers , notably for transit countries, as well as 
encouraging the use  of electronic data interchange systems  or incorporating the 
concept of “pre -consented facilities”, which stems from the OECD Decision on 
transboundary movements of waste, into the Basel Convention framework . There are 
a number of processes  ongoing in the Convention already on these issues , which  are 
useful but have so far delivered only limited results. The Union should underline the 
importance  of these issues and explore if they could be addressed  at as part of 
existing or new  initiative s, which would not imply a change to the Convention.  The 
Union should show openness towards such possible initiatives.   
(6) Finally, it should be noted that the adoption of the proposed amendment, while not 
having clear added -value, would not prejudice the Union ’s interests either .  
 
4. LEGAL BASIS  
4.1. Procedural legal basis  
EN 4  EN 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 l egislation adopted by the EU legislature ’5. 
4.1.2.  Application to the present case  
The Conference of the Parties to the Basel Convention is a body set up by  the Convention . 
The act which the Conference of the Parties is called upon to adopt constitutes an act having 
legal effects.  The envisaged act will be binding under international law in accordance with 
Article  18 of the Convention. It is capable of influencing the content of EU legislation, 
namely  Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 
June 2006 on shipments of waste . This R egulation implements the Convention by, inter alia , 
laying down the procedures for  exports from and imports to the Union as well as shipments 
between Member States .  
The envisaged act does not  supplement or amend the institutional framework of the 
Agreement.  
Therefore, t he 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 ide ntifiable 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 prese nt case  
The main objective and content of the envisaged act  relate to  the protection of the 
environment.  
Therefore, t he substantive legal basis of the proposed decision  is Article 1 92(1) TFEU.  
4.3. Conclusion  
The legal basis of the proposed decision should  be Article 1 92(1) TFEU , in conjunction with 
Article  218(9) TFEU.   
                                                 
5 Judgment of the Court of Justice of 7 October 2014, Germany v Council, C -399/12, 
ECLI:EU:C:2014:2258, paragraphs 61to 64.  
EN 5  EN 2022/0046 (NLE)  
Proposal for a  
COUNCIL DECISION  
on the position to be taken on behalf of the European Union at the 15th Conference of 
the Parties to the Basel Convention on the Control of Transboundary Movements of 
Hazardous Wastes and their Disposal with regard to certain amendments of Article 6(2) 
in 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 Basel Convention on the Control of Transboundary Mov ements of Hazardous 
Wastes and their Disposal (‘the Convention ’) entered into force  in 1992 and was 
approved  by the Union by Council Decision  93/98/EEC concerning the conclusion, on 
behalf of the Community, of the Basel Convention of 22 March 1989 on the control of 
transboundary movements of hazardous wastes and their disposal6.  
(2) Pursuant to Article 15(5)(b)  of the Convention , the  Conferenc e of the Parties shall 
consider and adopt, as required, amendments to the Convention . 
(3) The Conference of the Parties , during its 15th meeting in June 2022, is to consider the 
adoption of amendments of Article 6 (2) of the Convention  submitted by the Russian 
Federation. That proposal aims to establish a 30 days time limit for an importing 
country to respond to the notifier of a shipment of waste and to include another change 
presented as editorial.  
(4) It is necessary  to establish the  position to be taken  on the Union ’s behalf at the 
Conference of the Parties  on this proposal , as, being an amendment to the text of the 
Convention, it has legal effect s. If adopted by the Conference of the Parties, this act  
would  be binding on the Union  and impact  the content of Union law, namely  
Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 
June 2006 on shipments of waste7. 
(5) The Union should not suppo rt the above amendments of the Convention since this 
would  require a long and heavy process to enter into force and it seems 
disproportionate to launch such process for an amendment, the objectives of which 
could be achieved by other means . The Union should rather be open to initiatives 
designed to improve the fu nctioning of the  procedure of  “prior informed consent ”, on 
the conditions that they have a broader scope than the proposal submitted to CoP15 , 
are in line with broad  Union policies and objectives and do not require an amendment 
                                                 
6 OJ L 39, 16.2.1993, p. 1 . 
7 OJ L 190, 12.7.2006, p. 1.  
EN 6  EN to the Convention.  It should  be noted that the adoption of the proposed amendment, 
while not hav ing clear added -value, would not prejudice  the Union ’s interests either . 
 
HAS ADOPTED THIS DECISION:  
Article 1  
1. The position to be taken  on the Union ’s behalf at the 15th meeting of the Conference 
of the Parties to the Basel Convention  shall be that it will not support the 
amendments to paragraph 2 of Article 6 of the Convention, as submitted by the 
Russian Federation .  
2. Should other proposals to improve the functioning of the procedure  of “prior 
informed consent” be submitted at the 15th meeting of the Conference of the Parties 
to the Basel Convention , the Union shall support such proposals subject to the 
following conditions :  
 
(a) they are designed to improve the functioning of that procedure, by addressing 
the delays and problems experienced by States of export, transit or import to 
handle notifications  and supporting  the digitalisation of the procedure of “prior 
informed consent”, so that waste can be shipped across borders without  undue 
delay, when the shipments in question are compliant with the provisions of the 
Convention , without necessitating a change to the Convention ; 
(b) they contribute to the environmentally sound management of waste and to the 
transition towards a global circular economy; and  
(c) they support the proper implementation of the control mechanisms laid down 
in the Convention and contribute to legal clarity in that regard.  
Article 2  
Refinement of the position referred to in Article 1 may be agreed to, in the light of 
developments at the 15th meeting of the Conference of the Parties, by representatives of the 
Union, in consultation with the Member States, during on -the-spot coordinatio n meetings, 
without a further decision of the Council.  
Article 3  
This Decision is addressed to the Commission .  
Done at Brussels,  
 For the Council  
 The President