Proposal for a Council Decision Setting out the effects of the accession of the Czech Republic and Poland on the participation of the European Community to the Convention on the International Commission for the Protection of the Oder Against Pollution and the Convention on the International Commission for the Protection of the Elbe
Date: 2004-12-16
Institutions: European Commission
Subjects: Czechia, EU environmental policy, Poland, accession to the European Union, environmental cooperation, external competence (EU), international convention, pollution control measures, pollution of waterways, the EU's international role, withdrawal from an agreement

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 16.12.2004 
COM(2004) 810 final 

Proposal for a 

COUNCIL DECISION 

Setting out the effects of the accession of the Czech Republic and Poland on the 
participation of the European Community to the Convention on the International 
Commission for the Protection of the Oder Against Pollution and the Convention on the 
International Commission for the Protection of the Elbe 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

Upon  accession  of  the  new  Member  States  on  1  May  2004,  the  situation  of 
transboundary  river  basins  shared  by  EU  Member  States  and  third  countries  has 
changed in two ways.  

One consequence is that, further to the eastwards shift of the EU borders, it will now 
be necessary to address the relations with our new neighbours as far as transboundary 
rivers are concerned. This will require exploring the feasibility and modalities of the 
possible  participation  of  the  European  Community  in  existing  or  new  international 
agreements on transboundary rivers and watercourses further to the East of Europe.  

Another  immediate  consequence  is  that  the  situation  changed  substantially  for  those 
international rivers that are located since enlargement fully within the territory of the 
EU. The Oder and Elbe river basins are in this situation.  

The  European  Community  has  been  a  contracting  party  to  the  Convention  on  the 
International Commission for the Protection of the Oder Against Pollution1 and to the 
Convention  on  the  International  Commission  for  the  Protection  of  the  Elbe2 
(hereinafter ‘the Oder and Elbe Conventions’).  

In  both  cases,  the  participation  of  the  Community  was  necessary  because  the 
Conventions  were  concluded  with  third  countries  and  addressed  matters  covered  by 
EC  environmental  policy.  In  fact,  the  linkages  with  Community  law  are  particularly 
close, and the two Conventions have been widely recognised as an important tool to 
promote  the  objectives  of  the  Water  Framework  Directive  (WFD)  in  Poland  and  the 
Czech Republic, anticipating the process of accession of these countries to the EU.  

From the date of accession of Poland and the Czech Republic, all States Parties to the 
Oder  and  Elbe  Conventions  are  EU  Member  States.  In  view  of  this  fundamental 
change of circumstances, this decision takes stock of the end of the legal relationship 
between the European Community and these two Conventions. 

The  enlargement  of  the  European  Union  has had the effect of radically transforming 
the  legal  relations  between  the  Parties.  Upon  accession,  it  has  become  possible  to 
achieve  the  underlying  policy  objectives  through  the  measures  laid  down  in  internal 
Community  legislation.  Relations  with  Poland  and  the  Czech  Republic  concerning 
integrated water management in the Oder and Elbe river basins have become a matter 
of compliance with existing EC acquis, and notably the Water Framework Directive.  

In  that  respect,  it  is  recalled  that  the  Water  Framework  Directive  already  contains  a 
provision  by  which,  for  international  river  basin  districts,  the  Member  States 
concerned  shall  together  ensure  this  coordination  and  may,  for  this  purpose,  use 
existing structures stemming from international agreements (Article 3(3)).  

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Council Decision 1999/257 of 29 March 1999, OJ L100/20 of 15.4.1999.  
Council Decision 91/598/EEC of 18 November 1991, OJ L321/24 of 23.11.1991.  

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This is already the case of various agreements between Member States encompassing 
transboundary  rivers  (e.g.  agreements  for  the  Schelde  or  the  Meuse).  The  current 
observer  status  allows  for  appropriate  cooperation  and  facilitates  policy  coherence. 
However, the Community is not a party to these agreements between Member States, 
since there are no third countries involved and the issue of external competence of the 
Community  in  the  sense  of  Article  300  of  the  EC  Treaty  does  not  arise.  The  same 
should apply in the case of the Oder and the Elbe further to the accession of Poland 
and the Czech Republic.  

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In  conclusion,  further  to  the  fundamental  change  in  the  legal  relations  between  the 
Parties to the Conventions as a consequence of accession, the Community cannot be 
any longer a party to the two Conventions.  

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Proposal for a 

COUNCIL DECISION 

Setting out the effects of the accession of the Czech Republic and Poland on the 
participation of the European Community to the Convention on the International 
Commission for the Protection of the Oder Against Pollution and the Convention on the 
International Commission for the Protection of the Elbe 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, 

Having regard to the Act concerning the conditions of accession of the Czech Republic, the 
Republic  of  Estonia,  the  Republic  of  Cyprus,  the  Republic  of  Latvia,  the  Republic  of 
Lithuania,  the  Republic  of  Hungary,  the  Republic  of  Malta,  the  Republic  of  Poland,  the 
Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which 
the European Union is founded (hereinafter ‘the Act of accession’)3, and in particular Article 
57 thereof, 

Having regard to the proposal from the Commission4, 

Whereas: 

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(2) 

The participation of the Community European to the Convention on the International 
Commission for the Protection of the Oder Against Pollution5 and to the Convention 
on the International Commission for the Protection of the Elbe6 (hereinafter ‘the Oder 
and Elbe Conventions’) was necessary because the two Conventions were concluded 
with third countries and addressed matters covered by EC environmental policy. 

As from 1 May 2004, further to the accession of Poland and the Czech Republic to the 
European  Union, all States Parties to the two Conventions are Member States of the 
European Union. Therefore, the basis for the consent of the Community to be bound 
by such Conventions does not any longer exist. From this moment, the participation of 
the Community is no longer needed or justified.  

(3)  Moreover,  the  enlargement  of  the  European  Union  has  had  the  effect  of  radically 
transforming  the  legal  relations  between  the  Parties.  Upon  accession,  it  becomes 
possible to achieve the underlying policy objectives through the measures laid down in 
Community legislation.  

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OJ L 236 of 23.9.2003. 
OJ C of , p. 
Council Decision 1999/257 of 29 March 1999, OJ L100/20 of 15.4.1999.  
Council Decision 91/598/EEC of 18 November 1991, OJ L321/24 of 23.11.1991.  

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The Act of Accession has not provided a specific provision for this situation and it is 
therefore  necessary  to  adopt  the  required  measures  in  accordance  with  Article  57  of 
the Act of Accession, which allows correcting such omissions. 

It  should  be  therefore  made  clear  that,  with  effect  of  the  date  of  accession,  the 
Community  is  no  longer  a  party  to  the  Conventions  and  that  certain  transitory 
measures may need to be taken.  

HAS ADOPTED THIS DECISION: 

Article 1 

1. 

2. 

The  European  Community  has  ceased  to  be  a  party  to  the  Convention  on  the 
International Commission for the Protection of the Oder Against Pollution and to the 
Convention  on  the  International  Commission  for  the  Protection  of  the  Elbe  with 
effect of 1 May 2004.  

If  appropriate,  the  Commission  shall  agree  with  the  three  Member  States  involved 
solutions  to  any  transitory  problem  which  may  result  from  the  end  of  the 
participation of the Community in the Conventions. 

Article 2 

This  Decision  is  addressed  to  the  Czech  Republic,  the  Federal  Republic  of  Germany  and 
Poland. 

Done at Brussels,  

For the Council 
The President 

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