EN    EN EN 
EN    EN  EUROPEAN COMMISSION 
Brussels, 11.3.2011 
SEC(2011) 304 final 
  
RECOMMENDATION FROM THE CO MMISSION TO THE COUNCIL 
to amend Council Decision of 26 July 2010 on the participation of the European Union 
in negotiations of amendments to th e 1998 Protocol on Heavy Metals to the 1979 
Convention on Long-range Transboundary Air Pollution 
 
EN    EN A. EXPLANATORY MEMORANDUM  
1. O BJECTIVES  
The objective of this Recommendation is to  amend the Council Decision of 26 July 
2010 on the participation of the European Un ion in negotiations of amendments to 
the 1998 Protocol on Heavy Metals to the 1979 Convention on Long-Range 
Transboundary Air Pollution (h ereafter: the Council Deci sion) in view of the 
decision of the Convention's Executive B ody in December 2010 to broaden the scope 
of the negotiations to include mercury cont aining products and adjust the timing for 
the finalisation of the negotiations. 
2. G ENERAL CONTEXT  
The European Union is a Party to  the UN-ECE Convention on Long-Range 
Transboundary Air Pollution (hereinafter: the Convention) since 15 July 1982 and to 
the Protocol on Heavy Metals (hereina fter: the Protocol) since 3 May 2001. The 
Protocol sets obligations for the Parties th at aim at reducing air emissions of heavy 
metals, in particular for cadmium, lead and mercury.  
The Executive Body of the Convention in  December 2009 decided to revise the 
Protocol with the aim of facilitating for non-parties to accede to an amended Protocol 
and mandated the Working Group on Strategi es and Review (her einafter: WGSR) to 
start negotiations. At that  time negotiations on mercur y containing products (Annex 
VI and VII) were excluded from the mandate awaiting further information on 
progress in the recently ope ned negotiations under UNEP on a global legally binding 
instrument for mercury. The WGSR was ma ndated to aim at concluding negotiations 
by the end of 2011.  
On 26 July 2010, the Council authorised the Commission to participate on behalf of 
the EU in the negotiations of the revisi on of the Protocol. The Council Decision was 
adopted in view of the mandate given to  the WGSR in December 2009 and therefore 
does not include an authorisation to ne gotiate obligations on mercury containing 
products (described in Annex VI and VII). In this respect, the Council Decision in 
Article 1 Paragraph 4 stipulates that the Council may, in any case, consider 
reviewing the negotiating directives, shoul d the Executive Body decide to broaden 
the mandate to amend Annex VI, including co nsequential changes to other parts of 
the Protocol and its Annexes. 
Furthermore, the Commission was authorised  to participate on behalf of the EU in 
the negotiations until the end of 2011, in acco rdance with the original plan of the 
negotiations under the Convention.  
3. R ECENT DEVELOPMENTS  
On 17 December 20101 the Executive Body of the C onvention decided to broaden 
the scope of negotiations to include also aspects of mercury c ontaining products (i.e. 
Annex VI and VII) and consequential changes to the other parts of the Protocol. It 
further mandated the WGSR to continue ne gotiations with the vi ew of finalizing the 
discussions and presenting proposed amendm ents to the Protoc ol in 2012 at the 
                                                 
1 Report of the twenty-eight session of the Executive Body of the Convention (Section VI B) 
 
EN    EN latest. The main reason for broadening the scope was the positive signals from some 
non-Parties, in particular Belorussia and the Russian Federation, that amendments of 
Annex VI and VII would be important for these countries to accede to an amended 
Protocol. In the light of Article 1 Pa ragraph 4 of the Council Decision and in 
accordance with Article 218 (3) of the Trea ty on the Functioning of the European 
Union, it is necessary for the Commission to make recommendations to the Council which shall authorize the Commission to par ticipate in the negotia tions on behalf of 
the EU also on the above mentioned addi tional elements. At the same time the 
Recommendation proposes to adjust the time frame of the authorization in order to 
enable the Commission to participate in  the negotiations until the end of 2012.  
4. E
XISTING UNION 'S PROVISIONS  
The subject matter of Annexes VI (product measures) and VII (product management) 
is covered by EU legislation. This include s Directive 98/70/EC of the European 
Parliament and of the Council of 13 October 1998 relating to the quality of petrol and 
diesel fuels2 and Directive 2006/66/EC on batteries and accumulators and waste 
batteries and accumulators3 (as amended by Directive 2008/103/EC4).  
Product management measures now li sted in Annex VII are covered inter alia  by 
Regulation 1103/20105 on the labeling of batteri es, Directive 2002/95/EC on 
restriction of the use of certain hazardous  substances in elect rical and electronic 
equipment6, Directive 2002/96/EC on waste elect rical and electronic equipment 
(WEEE)7 and Directive 2007/51/EC relating to restrictions on the marketing of 
certain measuring devices containing mercury8.  
B. RECOMMENDATION  
In the light of the above, the Commission recommends amending the Council Decision as 
follows:  
(a) In Article 1 Paragraph 1, the words '2010 and 2011' are replaced by '2011 and 2012';  (b) Article 1 Paragraph 4 is  replaced by the following: 
'4. The Council may review the content of the negotiating directiv es at any time. The 
Council may, in particular, consider reviewi ng them in case of relevant developments 
during 2011 and 2012. To this effect, the Commission shall report to the Council on the outcome of the negotiati ons at regular intervals.' 
(c) Point 1 of the Negotiating Di rectives set out in  the Annex to the Council Decision is 
replaced by the following:  
'1. In the negotiation process under the auspices of the UNECE, the Commission 
shall endeavour to ensure the objectives falling within  the scope of the mandate 
given by the Executive Body of the C onvention on Long-Range Transboundary Air 
                                                
 
2 OJ L 350 , 28.12.1998 p. 58   
3 OJ L 266, 26.9.2006, p. 1 
4 OJ L 327, 5.12.2008, p. 7 
5 OJ L 313 30.11.2010, p 3 
6 OJ L 37, 13.2.2003, p. 19 
7 OJ L 37, 13.2.2003, p. 24 
8 OJ L 257, 3.10.2007, p.13 
 
EN    EN Pollution to the Working Group on Strategies and Review (WGSR) on 17 December 
2010, that is:  
"(a) To continue negotiations with the view of finalizing the discussions and 
presenting proposed amendments to the Prot ocol on Heavy Metals  at the thirtieth 
session of the Executive Body in 2012 at th e latest. It requested the Working Group 
to consider potential revisions  to the Protocol on Heavy Metals that fall within the 
following scope:  
(i) As a first priority for any revision possibilities for increasing 
ratifications of the Protocol taking into consideration possible options put 
forward by the Task Force on Heavy Metals;  
(ii) Potential revisions to the text of  the Protocol and annexes I to VII, 
taking into consideration possible options put forward by the Task Force on 
Heavy Metals as well as the relevant adopted amendments to the Protocol on 
POPs and the proposed amendments to the Gothenburg Protocol, provided that such revisions would not make it mo re difficult to achieve increased 
ratifications;  
(iii) Possibilities to make the Pr otocol more adaptable to future 
developments by producing a guidance doc ument on best available techniques 
extracted from annex III and updated as appropriate". 
(b) To focus the negotiations, as request ed in 2011,on those proposed amendments 
aimed at increasing ratifications and that addr ess issues raised also  in the revision of 
the Gothenburg Protocol. 
(c) To be mindful of the work of th e Intergovernmental Negotiating Committee, 
under the auspices of the United Nations Environment Program, when considering 
proposals for amendments to Annexes VI and VII regarding mercury containing 
products (based on the proposal by the Eur opean Union and the work of the Task 
Force on Heavy Metals) given that this Intergovernmental Negotiating Committee is 
working towards a legally-bi nding global instrument to address mercury including 
mercury containing products.'