Opinion of the Economic and Social Committee on the "Proposal for a Council Regulation concerning the export and import of dangerous chemicals" (COM(2001) 803 final — 2001/0026 (ACC))
Date: 2002-07-17
Institutions: European Economic and Social Committee
Subjects: chemical product, dangerous substance, exchange of information, export monitoring, import policy, information system, labelling, trading operation

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Opinion of the Economic and Social Committee on the ‘Proposal for a Council Regulation
concerning the export and import of dangerous chemicals’

(COM(2001) 803 final — 2001/0026 (ACC))

(2002/C 241/09)

On 19 June 2002 the Council decided to consult the Economic and Social Committee, under
Article 175(1) of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Agriculture, Rural Development and the Environment, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 20 June 2002. The rapporteur
was Mr Sklavounos.

At its 392nd Plenary Session on 17 and 18 July 2002 (meeting of 17 July), the Economic and Social
Committee adopted the following opinion by 121 votes with four abstentions.

1.

Introduction

1.1.
The proposed Council Regulation concerning the
export and import of dangerous chemicals (1) will implement
the requirements of the Rotterdam Convention on Prior
Informed Consent (PIC) in order for the European Community
(EC) to ratify this Convention (2).

1.2.
The EESC supports sustainable development strategies
and encourages a precautionary approach to chemicals’ man-
agement in order to prevent harm to health and the environ-
ment. By improving access to information and assisting
decision-making in developing countries, the Rotterdam Con-
vention on Prior Informed Consent could reduce exposure of
human populations and their environment to certain hazard-
ous chemicals. The EESC applauds the leading role played by
the European Community in achieving a strong Convention,
and its insistence on ensuring that exporting countries recog-
nise their responsibilities to developing countries, in spite of
opposition to many of the proposals to achieve this objective
industrialised countries. The
from a number of other
implementing Regulation is in line with the views of Member
States that it is appropriate to go beyond the provisions of the
Convention in order to fully assist developing countries to
become better informed about hazardous chemicals exported
from Europe, to increase transparency in decision-making, and
to improve governance. The EESC supports these efforts,
which will not only assist sustainable development, but also

reduce global hazards. The Regulation reaffirms the intention
of the European Community to offer technical assistance to
developing countries to strengthen their regulatory capacity,
and the EESC supports this objective.

1.3.
The PIC Convention requires 50 ratifications to be
legally binding, and as the EC participates as a ‘Regional
Economic integration organisation’ the early adoption of the
Regulation to allow the Community to ratify the Convention
is important. Currently, the Rotterdam Convention is signed
by 73 parties including the European Community and all
Member States except Ireland. However, it is still not in force
as only 21 parties had it ratified at this stage. The EESC urges
rapid global ratification expressing though its regret that the
European Commission has not acted more quickly.

The new Regulation (1) will replace the current Regu-
1.4.
lation (EEC) No 2455/92 (3) regarding the export and import
of certain dangerous chemicals. It is stricter than the current
Regulation and introduces a number of additional elements in
comparison with the Convention with the aim of assisting
developing countries to take more informed regulatory
decisions.

2. Background

2.1.
It is worth considering briefly the history of the PIC
Convention. In 1989 the PIC procedure was included in the
Food and Agriculture Organisation of the United Nations
(FAO) International Code of Conduct on the Distribution and
Use of Chemicals and the UN Environment Programme (UNEP)

( 1) COM(2001) 803 final.
( 2) COM(2001) 802 final.

(3) OJ L 251, 29.8.1992, p. 13.

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London Guidelines for the Exchange of
Information on
Chemicals in International Trade. It operated on a voluntary
basis from 1991. The initial drive arose from a concern
that chemicals which were banned or restricted for use
in industrialised countries would be exported and used in
developing countries. The issue of banning the export of
banned chemicals is raised by some governments and public
interest organisations. However PIC was developed because:

(a) Many developing countries did not want their ability
to import and use chemicals restricted by actions of
industrialised countries.

(b)

If demand for such chemicals continues to exist, pro-
duction would shift elsewhere and trade to developing
countries would continue.

(c)

This action could only apply to chemicals banned or
to severely restricted
withdrawn from use, and not
chemicals.

(d) Many pesticides that cause health or environmental
problems in developing countries have not been banned
or severely restricted in industrialised countries.

(e) High standards of chemical management in developing
countries will benefit consumers in those countries as
well as in countries consuming their agricultural exports,
including in the European Union, as a result of lower
pesticide residues.

2.3.
The major strength of PIC lies in its role in exchanging
information and helping to strengthen regulatory capacity for
chemicals in developing countries, making an important
contribution to sustainable development. At the 1992 Earth
Summit, governments agreed that PIC should become a legally
binding Convention by the year 2000. If hazardous properties
of certain chemicals become apparent, governments in indus-
trialised countries have capacity to identify risks and take
action to ban or severely restrict such chemicals to protect
human health and/or the environment. Most developing
countries lack enabling legislation, scientific and technical
laboratories for
resources to carry out risk assessments,
analytical work and other key resources. The PIC Convention
provides developing countries with robust information about
regulatory actions taken on hazardous chemicals, and it helps
them to prevent unwanted imports of these chemicals. It was
agreed by governments to be implemented on a voluntary
basis from the date of signing on 11 September 1998. The
Convention suggests that countries can take stronger measures
that remain consistent with its aims.

3. Key elements of the Rotterdam Convention and the

chemicals covered by the new Regulation

The adoption of this Regulation will allow the Euro-
3.1.
pean Union to ratify the Rotterdam Convention, the key
elements of which include:

— governments must appoint a Designated National Autho-
rity (DNA) to perform administrative functions of the
Convention;

2.2.
Nevertheless a ban on export of certain chemicals
can be considered under some circumstances if developing
countries can be assisted in finding alternatives. A second
international Convention, the Stockholm Convention on Per-
sistent Organic Pollutants (POPs), aims to fully eliminate the
production and use of certain chemicals, initially 12, including
nine pesticides (1). The Stockholm and Rotterdam Conventions
will
together improve global safety and management of
hazardous chemicals.

— governments must notify the PIC Secretariat (2) of any
bans or severe restrictions within 90 days of taking a final
regulatory action against a chemical;

— governments that have banned or severely restricted a
an export notification to
chemical must provide
importing countries at least until the chemical is included

( 1) Opinion of the Economic and Social Committee on the Proposal
for a Decision of the European Parliament and of the Council
laying down the Community Environment Action Programme
2001-2010, OJ C 221, 7.8.2001, pp. 80-85.

(2) Governments form the decision-making body (through the Inter-
national Negotiating Committee (INC) and once ratified through
the Conference of the Parties (CoP). The Secretariat carries out
procedures laid down in the Convention and implements decisions
of the INC/CoP.

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on the PIC list, and importing countries have indicated
whether they permit or prohibit its import;

— a chemical will qualify for inclusion on the ‘PIC List’ when
it has been banned or severely restricted (consistent with
the definition of the Convention) by two countries in two
regions of the world;

— in addition, severely hazardous pesticide formulations
found to be causing acute health or environmental
problems in developing countries or countries with
economies in transition may be included in PIC by these
countries on the basis of specific incidents. While such
countries may ban or severely restrict such pesticides
when they have enabling legislation in place, this action
is not a prerequisite for them;

— a Chemical Review Committee made up of experts
appointed by Parties to the Convention scrutinises the
control actions validated by the Secretariat, and if these
meet the definition of the Convention the Chemical
Review Committee will be asked to develop a Decision
Guidance Document;

— the Conference of the Parties decides whether to add the
chemical to the PIC list; once included in PIC, govern-
ments receive the Decision Guidance Document and are
required to indicate whether they consent to, or prohibit
the import of the chemical;

— countries will ensure that their exporters comply with

import decisions.

3.1.1.
The new Regulation establishes the infrastructure for
participating in the mechanisms of the Convention, including
appointing DNAs, participation in the Conference of
the
Parties and the Chemical Review Committee, and a mechanism
for Member States to deal with preparation of technical
documentation. The Regulation makes clear that the European
Community will take decisions as an importer of chemicals, as
well as undertaking its obligations as an exporter of chemicals.

The Regulation covers chemicals banned (including
3.2.
withdrawn from use) or severely restricted in the EU for health
or environmental reasons. In relation to ‘pesticides’, it includes

those regulated in the EU as ‘plant-protection products’ and
‘biocides’ and in relation to industrial chemicals it includes
those for ‘professional use’ and ‘use by the general public’.
Annex 1 sets out the chemicals covered by the Regulation, as
follows:

— Part 1: chemicals banned or severely restricted in the
Community and therefore subject to export notification
because of a ban or severe restriction (the list includes
chemicals already in PIC, where export notification
obligations may have ceased).

— Part 2: chemicals where the control action to ban or
severely restrict it in the Community qualify it for PIC
notification (excluding those already included in PIC).

— Part 3: chemicals already subject to the PIC procedure.

3.2.1.
The Regulation has a wider scope than the Conven-
tion by requiring export notification of certain articles, or
products, that contain the unreacted (pure) form of a banned
or severely restricted chemical. In addition, articles or products
listed in Annex V of this Regulation that are prohibited for use
in the Community shall not be exported.

3.2.1.1.
Further chemicals will be added to Annex 1 as
appropriate final regulatory actions are taken under Com-
munity legislation or when chemicals are added to the
Convention following notification by other parties.

4. EESC opinion on measures promoted by the Regu-

lation

4.1.
In adopting the Regulation for implementing the
PIC Convention, and consistent with principles held to be
important,
including ‘shared responsibility and cooperative
efforts in the international trade of hazardous chemicals in
order to protect human health and the environment from
potential harm’, this proposal specifies a number of important
measures. The EESC wishes to draw attention to the benefits
of the following measures included in the Regulation, and
suggests action to further the objectives:

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E x p o r t n o t i f i c a t i o n s

4.1.1.
Export notification of chemicals banned or severely
restricted in the EU will continue until the chemical is included
in PIC, and in that case export notification can continue if
requested by importing countries; chemicals listed in Parts 2
or 3 of Annex 1 will not be exported without the explicit
consent of the importing country. By modifying the Conven-
tion requirement that the ‘status quo’ will prevail when a party
fails to give explicit consent for import, the Convention goals
are strengthened. The EESC supports the importance of on-
going export notification, and urges that every effort should
be taken to ensure that all interested parties in developing
countries, including public interest groups, are made aware of
continuing imports.

A c c e s s t o i n f o r m a t i o n o n e x p o r t s

Article 9 promotes access to information, by requir-
4.1.2.
ing an exporter to notify the DNA of its Member State of
quantities of shipments of any chemical banned or severely
restricted in the EU or any chemical subject to the Convention,
and a summary of non-confidential
information will be
publicly available. The EESC applauds the initiative of the
European Commission and the chemical industry in estab-
lishing a voluntary agreement, prior to Community ratification
and to the Rotterdam Convention being legally binding,
information on quantities of exports of
to provide annual
chemicals covered by Regulation (EEC) No 2455/92. The
goodwill of the chemical
industry in participating in this
initiative must be fully recognised and appreciated, as indus-
tries elsewhere in the world will not yet be subject to this
obligation. The EESC also appreciates the initiative of the
European Commission to make export information available
annually on an aggregated basis, and recognises its commit-
ment to ensuring that importing countries will have full and
regular access to all information collected by the European
Commission, however it:

— urges the European Commission to make this information
available on the basis of exports from Member States,
provided that commercial confidentiality is not compro-
mised;

— suggests that the European Commission should collect
and make publicly available information on the location
of production, and annual production figures of any
chemicals covered by this Regulation or other measures
reflected in the White Paper — Strategy for a Future
Chemicals Policy (1);

( 1) COM(2001) 88 final.

4.1.2.1.
The European Commission operates a public data-
base of exports to importing countries. However all exports
are listed as coming from the Community. The origin of the
exporting Member State is important public information and
the EESC believes that this should be routinely available.

A c c e s s
i m p o r t i n g c o u n t r i e s

t o i n f o r m a t i o n a n d a s s i s t a n c e f o r

The European Commission and Member States will
4.1.3.
facilitate provision of scientific, technical, economic and legal
information (noting the need to protect confidential business
information) concerning the chemicals covered by the Regu-
including toxicological, ecotoxicological and safety
lation,
information.
In substantially increasing information to
developing countries, the EESC believes that the European
Community must make funds available to implement the
following priorities identified in the Regulation:

4.1.3.1.
Support for the information network on capacity-
building set up by the Intergovernmental Forum on Chemical
Safety.

4.1.3.2.
action requested by an importing party.

Additional information on a chemical or regulatory

4.1.3.3.
Information and relevant details on transit move-
ments to the countries through which PIC chemicals pass en
route to their destination, submitted in the appropriate
language of those countries.

O b l i g a t o r y
c h e m i c a l s

s t a n d a r d s

w h e n

e x p o r t i n g

4.1.4.
The EESC welcomes the Regulation requirement that
classification, packaging and labelling standards in the EU shall
apply to exports and that safety data should be in the
language(s) or a principal language of the country of desti-
nation. However additional problems may arise during ship-
ping, some of which are beyond the control of the exporter:
shipments of banned and severely restricted chemicals may
pass through a number of countries and be handled by many
who are unaware of
the dangers; unscrupulous shipping
companies may conceal the nature of the shipments. The EESC

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suggests these problems need urgent attention, which may
include the need for shipping documentation accompanying
hazardous chemicals in the language of all countries through
which the goods pass before reaching their final destination,
and other measures (1). Under technical assistance, the Com-
munity should promote training for customs officers, who will
play a key role in the practical aspects of implementing the
PIC Convention.

4.1.4.1. Minimum standards on exported chemicals, aim to
ensure quality and relevance, requiring compliance with purity
specifications, shelf life, and appropriate packaging sizes to
avoid obsolete stocks.

4.1.5.
The EESC urges the European Commission to ensure
developing countries improve their capacity to assess appropri-
ateness of chemical imports, through targeting development
aid to improving training and provision of laboratories. The
EESC recognises the significant problem of obsolete pesticide
stocks which have arisen from oversupply and provision
of inappropriate pesticides, as well as from poor stocking
conditions in the importing countries. Action must be support-
ed to prevent the build up of future obsolete stocks, as well as
the need for funds to dispose safely of existing stocks.

E x p o r t b a n

4.1.6.
The export ban which, at the discretion of the
Council of Ministers, may be applied to certain chemicals and
articles as listed in Annex V, is an important innovation and
the EESC urges the European Commission to work with
Member States to ensure that all articles containing hazardous
chemicals in a form that will harm those exposed are subject
to such a ban. The EESC wishes to consider guidance on the
wider application of export bans in the context of World Trade
Organisation (WTO) rules.

that assistance should be provided to workers’ organisations
and NGOs concerned with health,
the environment, and
agricultural systems that reduce reliance on hazardous pesti-
cides.

L i s t i n g o f c h e m i c a l s i n A n n e x 1

4.1.8.
Plant-protection products on the market in Member
States are regulated under Directive 91/414/EEC. A review
process is underway whereby a large number of pesticides
(plant-protection products) will be taken off the market
in 2003 because there is insufficient data to renew the
authorisation, or because the market is too small for the
manufacturers and distributors to invest in generating the data
required. In some cases, the removal from the market of these
products is purely for commercial reasons, in other cases there
is a concern that the chemical may cause an adverse health or
environmental impact. The European Commission considers
it important that those products not included in the relevant
part of the Annex to Directive 91/414/EEC because of health
or environmental concerns be identified and notification be
submitted under the PIC procedure. This is an important and
useful initiative and the EESC offers its support, urging at the
same time acceleration of the review foreseen on the basis of
new scientific and technical data. Bans or severe restrictions
on industrial chemicals because of concerns for human health
or the environment are regulated by Directive 76/769/EEC.
The EESC welcomes the fact that such measures will also be
notified.

5. EESC observations and recommendations on matters

not addressed in the Regulation

The EESC wishes to draw further attention to the following
elements:

T e c h n i c a l a s s i s t a n c e

4.1.7.
The European Commission and Member States are
asked to cooperate in promoting technical assistance, including
training, to develop infrastructure, capacity and expertise for
developing countries to manage chemicals throughout their
life cycle, and to implement the Convention. The EESC believes

( 1) Currently, such documents are issued in six languages under

United Nations relevant procedures.

Occupational health and safety

5.1.
The EESC places great importance on occupational
health and safety. In relation to ‘industrial chemicals’, the
Regulation indicates that it covers chemicals for use by
professionals and chemicals for use by the public. The EESC
wishes to emphasise that the term ‘professionals’ refers to all
those using chemicals in the course of their work in order to
make clear that the Regulation must cover all those likely to
be exposed in the workplace, domestic settings or the wider
environment.

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Bans in individual Member States

Directive 98/8/EC

5.2.
Article 10.7 of the proposal prohibits Member States
from submitting notifications to the secretariat regarding final
regulatory actions. This implies that only chemicals banned or
severely restricted (under Directives 91/414/EEC, 98/8/EC, 79/
117/EEC, 76/769/EEC and/or any other relevant Community
legislation) across all Member States shall be notified. The
EESC believes that when a Member State has taken a ban or
severe restriction this information must be made available to
importing countries, and the European Commission must
establish procedures to submit a ‘notification of control action’
or at minimum ensure that under information-exchange
countries are notified of the action.

The EESC in the past (2) in its opinion concerning the
5.4.
placing of biocidal products in the market, emphasized the
need to secure a high level of protection of human and
animal health and environment through harmonized national
evaluation of dossiers related to such dangerous substances.
With regret, it notes that still not all Member States have
transposed the Directive into national law.

5.4.1.
Only recently, the European Commission launched
before the Court of Justice procedures against certain Member
States (F, L, D, E, P and IRL) for not transposing the provisions
of Directive 98/8/EC; once more the EESC urges further
examination of this topic.

Supporting innovation in the chemical industry

Education and Training for developing countries

5.3.
The EESC recognises the important role of an innova-
tive and competitive chemical industry in Europe, and believes
that its activities should be fully supported by policies that
encourage sustainable development. The EESC invites both
industry and the European Commission to promote research
in the area of alternatives, including biological controls and
other pest-management methodologies, to the production and
use of pesticides. The objective of such actions should be to
sustainable competitiveness and eco-pro-
support both,
ductivity, and to launch an EU strategy for promoting organic
farming and sustainable rural development. The EESC encour-
ages the European Commission to assist industry in its efforts
to contribute to sustainable, ecological innovation through
encouraging research and development, training and appropri-
ate scholarships.

5.3.1.
The EESC believes that the European chemical indus-
try is a global leader regarding corporate responsibility in
environmental and labour issues in developing countries, and
encourages it to maintain this leadership role (1).

5.3.2.
cations on products in international trade.

The EESC supports the establishment of FAO specifi-

5.5.
Already in 1991 the EESC in its Opinion concerning
export and import of certain dangerous chemicals (3) (point 2.7
+ 2.8) ‘urged the Community and the international organ-
izations to help the less developed nations to set up appropriate
instruments enabling them to act swiftly on any information
notified, and ... suggested that the Commission should draw
up a handbook explaining the relevant procedures to help
Community businesses to implement the basic Regulation’.
Similarly, the EESC had raised the need to develop training
and education in such environmental matters. Such a rec-
ommendation is also expressed by the United Nations and
FAO when they encourage assistance to developing countries
and countries with economies in transition in implementing
specific projects to identify severely hazardous pesticide formu-
lations causing problems under conditions of use in those
countries. This element should be of serious consideration in
view of the EU enlargement and projects should be promoted
via the TAIEX services of the European Commission.

National Member State policies should tackle: enforce-
5.6.
ment, educational programmes and programmes to raise
national awareness, capacity building related to risk reduction/
risk management, strengthening institutional mechanisms and
programmes as well as information systems, networks and
Internet links. Mechanisms of national interministerial coordi-
nation should be encouraged and ensured.

( 1) See also Opinion of the Economic and Social Committee on
Human Rights in the Workplace, OJ C 260, 17.9.2001, pp. 79-
85, Opinion of the Economic and Social Committee on the Green
Paper: Promoting a European framework for Corporate Social
Responsibility, CES 355/2002, Opinion of the Economic and
Social Committee on the White Paper — Strategy for a Future
Chemicals Policy, OJ C 36, 8.2.2002, pp. 99-104.

(2) Opinion on the Amended proposal for a European Parliament
and Council Directive concerning the placing of biocidal products
on the market, OJ C 174, 17.6.96, p. 32.

(3) Opinion on the Proposal for a Council Regulation (EEC) concern-
ing export and import of certain dangerous chemicals, OJ C 191,
22.7.1991, p. 17.

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A consultative mechanism for workers’ organisations and NGOs

In its opinion concerning promoting non-govern-
5.7.
mental organisations in the field of environmental protec-
tion (1), the EESC stipulated (point 4) that ‘it is necessary
to encourage and finance the activities and environmental
commitment of other NGOs representing European citizens in
their capacity as workers, entepreneurs, farmers or consumers
and whose role in carrying through environmental policies is
vitally important’. Involvement of a broad range of stake-
holders should be ensured when strengthening the legislative
scheme. The EESC supports the need for consultative mechan-
isms that enable stakeholders to express their views to the
European Commission, and notes with regret that it will not
be consulted when the Annexes to the new Regulation will be
subject to modifications. Nevertheless, the EESC recognises
that the European Commission invites stakeholders to relevant
meetings under this Regulation, and urges the European
Commission to put in place the broadest possible consultation
of all stakeholders to ensure transparency and expression of
all views. In this context, the EESC notes its capacity to play
an important role as the forum for promoting stakeholder
opinions.

Pesticide reduction

5.8.
Direct experience with the use of pesticides, and the
need for more sustainable agricultural development, have been
two of the most important motivating factors for the initiation
of activities to reduce risks associated with pesticide use. Such
activities include: product registration, eliminating hazardous
pesticides, codes of practice, measures to reduce workers’ risk
(training, education), promoting sustainable farming methods,
thresholds, research for alternative pest-
development of
control practices, identification of pest-resistant crop varieties,

( 1) Opinion on the Proposal for a decision of the European Parliament
and of the Council laying down a Community Action Programme
promoting non governmental organisations primarily active in
the field of environmental protection, OJ C 36, 8.2.2001, p. 108.

Brussels, 17 July 2002.

integrated pest management (IPM) and green labelling. Sound
management of chemicals depends on such activities. EU
research funding should be reviewed to tackle the needs of
such activities, and development aid funding support should
be reviewed to ensure it
targeted to sustainable
agriculture and sound pest-management practices which pro-
mote IPM, organic or other ecological practices.

is well

Enforcement

Issues like dispute settlement, product liability and
5.9.
illicit trafficking of hazardous chemicals require further atten-
tion and policy development on a rather harmonised basis in
conjunction with the other relevant Conventions.

Control of chemicals should be closely linked to the
5.9.1.
‘precautionary principle’ as outlined by the Rio Declaration.
Similarly, the principle of ‘pollution prevention’ should be
promoted. Both elements should be emphasised in the Euro-
pean Commission’s approach.

Regarding the provisions

5.9.2.
related to penalties
(Articles 17 and 21), the EESC notes with regret that the
European Commission is still not entitled or in position to
monitor the proper implementation of the Community rules
on this matter. As the penalties are decided by the Member
States individually, trade distortion may occur.

Legal basis

5.10.
This proposal targets primarily environmental con-
cerns and not concerns of international trade. The EESC
questions the European Commission’s choice of legal basis
(Article 133). The Court of Justice in its opinion 2/00 related
to the Convention of Biological Diversity and the Cartagena
Protocol
(relevant Commission proposal of similar nature)
concluded that Article 175(1) is the appropriate legal basis for
such issues. The EESC welcomes and endorses the recent
(30 April 2002) Council of Ministers’ decision to modify the
legal basis to meet such concerns.

The President

of the Economic and Social Committee

Göke FRERICHS