EN   EN 
 
 
 EUROPEAN  
COMMISSION   
Brussels, 16.2.2022  
COM(2022) 62 final  
2022/0042 (NLE)  
 
Proposal for a  
COUNCIL DECISION  
on the position to be taken on behalf of the European Union at the second segment of the 
fourth 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   
EN 1  EN 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  second segment of the fourth meeting of the Conference of the Parties to the 
Minamata Convention on Mercury (COP4.2) regarding  the envisaged adopt ion of a Decision 
establishing thresholds for waste  contaminated with mercury  or mercur y compounds 
(thereafter ‘mercury contaminated waste’) , as referred to Article 11, paragraph 2 , of that 
Convention .  
2. CONTEXT OF THE PROPOS AL 
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 entire  life-cycle of mercury , from primary me rcury mining to mercury waste disposal . The 
Agreement entered into force on 16 August 2017 . The European Union is a party to the 
Agreement1 as well as  all its Member States . 
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 Partie s, 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 mi ning 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 environmental ly sound manner 
(‘ESM’).     
The COP, at its third meeting  (25-29 Novem ber 2019), adopted Decision MC -3/52, which 
provides as follows:   
 
On the one hand, a ll wastes consisting of or containing mercury or mercury compounds are 
‘mercury wastes’ within the meaning of Article 11(2) of the Agreement, irrespective of their 
content of  mercury or mercury compounds . Regarding overburden and waste rock from 
mining other than primary mercury min ing, t here is no need to develop thresholds , which 
implies that they do fall under the scope of application of Article 11 of the Agreement.   
                                                 
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 Decision MC -3/5 Mercury waste thresholds,  Report of the Conference of the Parties to the Minamata 
Convention on Mercury on the work of its third meeting,  UNEP/MC/COP.3/23 of 07.01.2020, available 
here: https://www.mercuryconvention.org/sites/default/files/documents/final_report/UNEP -MC-COP -3-23-
Report -EN.pdf  
EN 2  EN On the other hand, concerning wastes contaminated with mercury or mercury compounds 
(‘mercury contaminated wastes’) , including for tailings from mining other than primary 
mercury mining (‘mining tailings’) , as no agreement could be reached by Parties, t he group of 
technical experts , established by the COP at its second meeting (19-23 November 2018) , is to 
continue with  discussions on applicable thresholds during the intersessional period leading to 
its fourth meeting .  
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 adopti on of relevant guideline s. 
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 i ts 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, a nd vice versa.  
2.3. The envisaged act of the  Conference of the Parties  
The above -cited i ntersessional expert work has resulted in a dedicated report developed by the 
Secretariat of the Convention, which includes a draft COP decision on mercury waste 
thresholds for consideration and possible adoption at COP 4.2 (the envisaged act)3. 
  
The envis aged act will set thresholds allowing the identification of mercury contaminated 
waste that will fall under Article 11 of the Agreement. Accordingly, the envisaged act will 
further define the scope of application of the wa ste 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  second segment 
of the fourth  meeting of the COP , the adoption of an envisaged act that is consistent with the 
EU acquis .  
 
In fact, whereas the envisaged act will complement Decision MC -3/5 by addressing another 
category of mercury waste, i.e. mercury contaminated waste, this proposed position is fully in 
line with the EU p osition  adopted in view of COP.3 , which was instrumental in developing 
this Decision and already covered the issue of the threshold for such waste.4  
 
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 
                                                 
3 UNEP/MC/COP.4/8  
4 See Council Decision (EU) 2019/2119  of 21 November 2019 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, as referred to in 
Article 11(2) of that Convention (OJ L 3210,  11.12.2019, p. 117).  
EN 3  EN Regulation (EC) No 1102/20085, by Directive 2008/98/EC of the European Parliament and of 
the C ouncil of 19 November 2008 on waste6, 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/EC7 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 waste8.  
 
EU waste law relies upon the key obligation set out in Articles 13 and 17 of Directive 
2008/98/EC  according to which Member States shall take the necessary measures to ensure 
that waste management is carried out without endanger ing human health and without harming 
the environment . These provisions implement the ESM obligation set out in Article 11, 
paragraph 3, of the Agreement.      
 
Indeed , whilst the EU was instrumental regarding the development of the Agreement, 
inclu ding its provisions on mercury waste , and whereas EU experts contributed significantly 
to the above -mentioned intersessional expert discussions, 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 . 
 
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 ’9. 
4.1.2.  Application to the present case  
The COP is a body set up by  an agreement, namely the  Minamata Convention on Mercury.  
                                                 
5 OJ L 137, 24.05.2017, p. 1.  
6 OJ L 312, 22.11.2008, p. 3.  
7 OJ L 102, 11.4.2006, p. 15.  
8 OJ L 226, 6.9.2000, p. 3.  
9 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.  
EN 4  EN The envisaged act, which the  COP is called upon to adopt , constitutes an act having legal 
effects , because  Parties to the Agreement shall take measures to ensure that it is implemented 
and complied with . 
The envisaged act does neither  supplement nor 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 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, t he 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.  
EN 5  EN 2022/0042 (NLE)  
Proposal for a  
COUNCIL DECISION  
on the position to be taken on behalf of the European Union at the second segment of the 
fourth 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 UNIO N 
Having regard to the Treaty on the Functioning of the European Union, and in particular 
Article  192(1) , in conjuncti on with Article 218(9) thereof,  
Having regard to the proposal from the European Commission,  
Whereas:  
(1) The Minamata Convention on Mercury10 (‘the Agreement’) was concluded  by the 
Union by Council Decision  (EU) 2017/93911 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 (‘Conference of the Parties’) 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, adopt ed Decision MC -3/512 setting thresholds for waste consisting of 
or containing mercury or mercury compounds , as referred to in Article 11, paragraph 
2, of the Agreement, and requiring the group of technical experts,  established by the 
Conference of the Parties at its second meeting on 19 -23 November 2018, to develop 
thresholds for waste contaminated with mercur y or mercury compounds (‘mercury 
contaminated waste’), including for tailings from mining other than primary mercury 
mining.  
(4) The Conference of the Parties , during the second segment of its fourth meeting  on 21-
25 March 2022, is expected to adopt a Dec ision (‘the proposed Decision’) on 
thresholds for mercury contaminated 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  for such waste . Whereas merc ury c ontaminated waste that would 
                                                 
10 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  
11 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).  
12 Decision MC -3/5 Mercury waste thresholds,  Report of the Conference of the Parties to the Minamata 
Convention on Mercury on the work of its third meeting,  UNEP/MC/COP.3/23 of 07.01.2020, available 
here: https://www.mercuryconvention.org/sites/default/files/documents/final_report/UNEP -MC-COP -3-
23-Report -EN.pdf  
EN 6  EN fall under Article 11, paragraph 2, of the Agreement , should be subject to 
environmental ly sound management by virtue of Article 11, paragraph 3, of that 
Agreement .   
(5) It is appropriate to establish the position to be taken  on the Union's behalf in the  
Conference of the Parties , 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 .  
(6) The Union contributed significantly to the development of the waste provisions of the 
Agreement and to the intersessional exper t work launched by Decision MC-3/5 and 
that has led t o the proposed Decision; whereas the  Union acquis  requires already that 
all merc ury waste referred to in Article 11, paragraph 2, of the Agreement, including 
mercury contaminated waste, be managed without endangering human health and 
without harming the environment , irrespective of their mercury content;  
(7) The U nion should only sup port the adoption of a Decision by the Conference of the 
Parties that is consistent with the U nion acqui s.  
HAS ADOPTED THIS DECISION : 
Article 1  
The position to be taken  on the Union's behalf in the second segment of the fourth meeting  of 
the Conference of the Parties to the Agreement  shall be to support  the adoption of a Decision 
on thresholds for contaminated mercury waste t hat is consistent with the U nion acquis .   
Article  2 
This Decision is addressed to the Commission.  
 
Done at Brussels,  
  For the Council  
 The President