In line with the Minamata Convention, the Proposal establishes a restriction regime on the import of mercury into the EU, which draws a twofold distinction, i.e. between imports from Parties and from non-Parties to the Convention and based on the source of the imported mercury. In particular, while imports into the EU of mercury from other Parties are allowed unless the mercury originates from prohibited primary mining, imports from non-Parties must be based upon a certification from the exporting country that imported mercury is neither from primary mining nor from mercury used in the chlor-alkali industry. Additionally, mercury imports from Parties and non-Parties require a written consent for the importing Member State.

As this Convention reflects to a large extent the content of the EU acquis, including Mercury Export Ban Regulation (EC) No 1102/2008 this Proposal needs therefore only to address a few issues not yet tackled at EU level, including the establishment of restrictions on the import of mercury and on the import, export and manufacturing of certain mercury-added products, the control of the use of mercury in specific existing manufacturing processes, in new products and processes and for artisanal and small-scale gold mining (ASGM), the use of dental amalgam and the implementation of best environmental practices in dental facilities. From this list, it is considered that the potential implementation challenges would only be ralated to the international trade in mercury and mercury-added products, as well as to the use of mercury in new manufacturing processes and mercury-added products and in dental facilities.

The Proposal seeks to complement the EU acquis on mercury with a view to ensuring full compliance of EU law with the Minamata Convention on Mercury (hereinafter, "Minamata Convention" or "Convention") and consequently to allowing the EU and its Member States to ratify it.

The potential implementation challenge for Member States will concern the traceability of the imported mercury, i.e. to ensure that it does not come from an unlawful source in breach of the requirements set out in the Convention and this Proposal. For doing so, Member States will have to ensure that the national authorities (e.g. customs authorities) designated under Regulation (EU) N° 649/2012 concerning the export and import of hazardous chemicals to carry out the administrative functions required by its implementation are also given the responsibility and the means to control imports of mercury. In particular, those authorities will have to check if the information provided by the exporting country, contains precise data regarding the origin of the exported mercury. Moreover, the authorities will need to ensure that the imported mercury does not end up in ASGM. In doing so, the designated national competent authorities may undertake to identify current mercury importers and liaise with them so as to ensure that they are informed of the new import restrictions.

3.1.2 To restrict the import, export and manufacturing of a set of mercury-added products

In accordance with the Minamata Convention, the Proposal provides for a prohibition as from 1st January 2021 to manufacture, import into the EU and export from the EU a range of products when they contain mercury, including batteries, switches and relays, high pressure mercury vapour lamps (HPMVs), pesticides, biocides and topical antiseptics and a set of non-electronic measuring devices (e.g. thermometers) or when their mercury content exceeds a given threshold, including button zinc silver or zinc air batteries, compact fluorescent lamps (CFLs), linear fluorescent lamps (LFLs), cold cathode fluorescent lamps and external electrode fluorescent lamps (CCFLs and EEFLs) and cosmetics.

The EU acquis addresses already the placing on the (EU) market of all the mercury-added products covered by the Minamata Convention and, in some cases, the import of such products into the EU. EU law sets also mercury-content requirements that are in some cases different (tighter) from those established in the Convention.

Hence, as a potential implementation challenge, Member States will have the obligation to prevent the manufacture (for export) in their territory of mercury-added products not complying with the requirements of the Minamata Convention and of this Proposal. To do so, depending on each national administrative system, Member States will have to ensure that the national competent authorities in charge, for instance, of the registration and authorisation of industrial and artisanal activities, including those manufacturing relevant products containing mercury, are provided with the responsibility and the means to undertake controls on an ad hoc basis or as part of a routine inspection, programme and to review and revise permits if necessary. Another implementation challenge will be the implementation of adequate means to control imports and exports of the relevant mercury-added products to guarantee that only products complying with the Convention and EU law are imported and exported. To do so, Member States will have to make sure that the national competent authorities (e.g. market surveillance, customs authorities) designated to control the implementation of the requirements set out in several EU instruments regulating the relevant mercury-added products, including e.g. Regulation (EU) N° 649/2012 concerning the export and import of hazardous chemicals, the Batteries Directive (2006/66/EC), the RHoS Directive (2011/65/EU) and the Cosmetic Products Regulation (1223/2009) or any other competent authorities Member States may designate for that purpose, are also in charge of controling the implementation of the import and export restrictions and are provided with adequate control and enforcement means.

3.2.To control mercury use

3.2.1 To control the use of mercury in new manufacturing processes and in new mercury-added products

The Minamata Convention provides that Parties shall discourage the manufacture and marketing of mercury-added products not covered by any known use of mercury-added products, unless an assessment of the risks and benefits of the product shows environmental or human health benefits. The Convention contains a similar provision regarding manufacturing processes, i.e. Parties shall discourage the development of any facility using a manufacturing process in which mercury or mercury compounds are intentionnally used that did not exist prior to the entry into force of the Convention, unless the Party concerned can demonstrate that it provides significant environmental and health benefits and that there are no technically and economically mercury-free alternatives available providing such benefits.

Against this background, the Proposal foresees, on the one hand, an a-priori prohibition according to which the manufacture and/or placing on the market of a new mercury-added product or the development of a new manufacturing process using mercury is prohibited. On the other hand, the Proposal provides that a new mercury-added product or manufacturing process using mercury might still be authorised at EU level, provided that it is demonstrated that the product or process would result in significant environmental and health benefits and that there would be no mercury-free alternatives available.

Hence, the potential implementation challenge is the implementation of the conditions under which a new mercury-added product or the development of a new manufacturing process using mercury might be allowed. Regarding economic operators, they will have to provide ex ante relevant information to the competent authorities of the Member State concerned (where the manufacture and/or placing on the market of the new mercury-added product is expected to take place or where the new manufacturing process is foreseen to develop) to allow them to assess whether the conditions laid down in the Minamata Convention, as transposed in the Proposal, could be met. The Member State should share with the Commission this information and its opinion on whether those conditions are fulfilled. The Commission will then have to verify whether compliance with the requirements of the Proposal are met and, if so, adopt an Implementing Act authorising the new product or process. The Commission will also keep the Secretariat of the Minamata Convention informed of the assessment and its outcome. Thus, in sum, whereas operators will have to provide all information necessary to justify the manufacture and/or placing on the market of a new mercury-added product or the development of a new manufacturing process using mercury, the Member State concerned will need to assess the sufficiency and content of the information so provided and decide whether a notification to the Commission is necessary (i.e. whether the new product or process could be considered as meeting the applicable conditions). The Commission will assess and decide whether the concerned product or process could in fine be authorised on the EU market and territory.