Proposal for a Council Decision on the conclusion, on behalf of the European Community, of the Rotterdam Convention on the Prior Informed Consent Procedure for certain hazardous chemicals and pesticides in international trade
Date: 2006-05-30
Institutions: European Commission
Subjects: UN convention, chemical product, dangerous substance, environmental protection, international convention, international trade, pesticide, public health

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 30.5.2006 
COM(2006) 250 final 

2006/0080 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the conclusion, on behalf of the European Community, of the Rotterdam Convention 
on the Prior Informed Consent Procedure for certain hazardous chemicals and 
pesticides in international trade 

(presented by the Commission) 

EN 

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EXPLANATORY MEMORANDUM 

Under the auspices of the Food and Agriculture Organisation (FAO) and the United Nations 
Environment  Programme  (UNEP),  negotiations  for  a  Convention  for  the  application  of  the 
Prior  Informed  Consent  procedure  for  certain  hazardous  chemicals  and  pesticides  in 
international trade were concluded in March 1998. The Convention was opened for signature 
at a Ministerial Diplomatic Conference held in September 1998 in Rotterdam. It was signed 
by the Community on 11 September 1998. 

In  January  2002,  the  Commission  put  forward  a  proposal,  based  on  Article  133  (relating  to 
common commercial policy), in conjunction with the first sentence of the first subparagraph 
of  Article  300(2)  and  the  first  subparagraph  of  Article  300(3)  of  the  Treaty,  for  a  Council 
Decision  concerning  the  Community’s  ratification  of  the  Convention.  Article  2(2)  of  the 
proposal indicated that the ‘the Community is competent in respect of all matters governed by 
the Convention’. 

After  the  European  Parliament  had  been  consulted  pursuant  to  Article  300(3),  the  Council 
unanimously decided to replace Article 133 by Article 175(1) and adopted Council Decision 
2003/106/EC of 19 December 2002 on the approval, on behalf of the European Community, 
of the Convention1 together with a declaration of competence, as required by Article 25(3) of 
the Convention, which read as follows:  

“The  European  Community  declares  that,  in  accordance  with  the  Treaty  establishing  the 
European  Community,  and  in  particular  Article  175(1)  thereof, it  is  competent  to  enter  into 
international  agreements,  and  to  implement  the  obligations  resulting  therefrom,  which 
contribute to the pursuit of the following objectives: 

– 

– 

– 

– 

preserving, protecting and improving the quality of the environment, 

protecting human health, 

prudent and rational utilisation of natural resources, 

promoting  measures  at  international  level  to  deal  with  regional  or  worldwide 
environmental problems. 

Moreover  the  European  Community  declares  that  it  has  already  adopted  legal  instruments, 
including  Regulation  (EC)  No  304/2003  of  the  European  Parliament  and  the  Council  of  28 
January  2003  concerning  the  export  and  import  of  dangerous  chemicals,  binding  on  its 
Member States, covering matters governed by this Convention, and will submit and update, as 
appropriate, a list of those legal instruments to the Secretariat of the Convention. 

The  European  Community  is  responsible  for  the  performance  of  those  obligations  resulting 
from the Convention which are covered by Community law in force. 

The exercise of Community competence is, by its nature, subject to continuous development.” 

1 

OJ L63, 6.3.2003, p.27 

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The  instrument  of  ratification,  together  with  the  declaration  of  competence,  was  deposited 
with  the  Secretary-General  of  the  United  Nations  on  20  December  2002.  The  Convention 
entered into force on 24 February 2004. 

On  10  January  2006,  in  its  judgment  in  case  Commission  v.  Council2,  the  Court  of  Justice 
annulled the Council Decision on approval of the Convention, ruling that there should have 
been  a  dual  legal  base  including  both  Articles  133  and  175  first  paragraph.  In  a  parallel 
judgment3, the Court also annulled for the same reasons Regulation (EC) No 304/2003 of the 
European  Parliament  and  the  Council  concerning  the  export  and  import  of  dangerous 
chemicals,  although  it  ruled  that  this  could  remain  in  effect  until  the  adoption,  within  a 
reasonable period, of a new regulation founded on the appropriate legal bases. 

The  annulment  of  Council  Decision  2003/106/EC  does  not  affect  the  original  Community 
ratification  of  the  Convention  and  the  EC  remains  a  Party  in  accordance  with  the  Vienna 
Convention on the Law of Treaties. However it is necessary to adopt a new Council Decision 
with  the  above-mentioned  dual  legal  base  together  with  an  amended  declaration  of 
competence to be delivered to the UN depositary reflecting the change in the legal base. To 
avoid  any  legal  vacuum,  it  is  proposed  that  the  new  decision  should  have  retroactive  effect 
back to the date of adoption of the previous Council Decision. 

As regards the required change to the legal base of the Council Regulation implementing the 
Convention’s  provisions,  this  as  well  other  amendments  will  be  included  in  a  separate 
proposal that the Commission will be putting forward. 

2 
3 

Case C-94/03. 
Case C-178/03 Commission v. European Parliament and Council. 

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2006/0080 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the conclusion, on behalf of the European Community, of the Rotterdam Convention 
on the Prior Informed Consent Procedure for certain hazardous chemicals and 
pesticides in international trade 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
133  and  Article  175(1),  in  conjunction  with  the  first  sentence  of  the  first  subparagraph  of 
Article 300(2), and the first subparagraph of Article 300 (3) thereof, 

Having regard to the proposal from the Commission4, 

Having regard to the opinion of the European Parliament5, 

Whereas: 

(1) 

(2) 

(3) 

4 
5 
6 
7 
8 

Council  Decision  2003/106/EC  of  19  December  2002  concerning  the  approval,  on 
behalf  of  the  European  Community,  of  the  Rotterdam  Convention  on  the  Prior 
Informed  Consent  Procedure  for  certain  hazardous  chemicals  and  pesticides  in 
international trade6 authorised the President of the Council to designate the person or 
persons empowered to deposit the instrument of approval on behalf of the Community 
with the Secretary-General of the United Nations, in accordance with Article 25(1) of 
that  Convention,  hereinafter  “the  Rotterdam  Convention”7.  The  instrument  of 
approval,  together  with  the  declaration  of  competence  set  out  in  Annex  B  to  that 
Decision,  was  lodged  with  the  depositary  on  20  December  2002.  The  Rotterdam 
Convention entered into force on 24 February 2004. 

In  its  judgment  of  10  January  2006  in  case  C-94/03  (Commission  v.  Council)8,  the 
Court  of  Justice  of  the  European  Communities  annulled  Decision  2003/106/EC  as  it 
was  based  solely  on  Article  175(1),  in  conjunction  with  Article  300  of  the  Treaty, 
ruling that both Articles 133 and 175(1), in conjunction with the relevant provisions of 
Article 300, were the appropriate legal basis.  

The  Court’s  judgment  does  not  affect  the  Community’s  status  as  Party  to  the 
Convention.  In  accordance  with  Article  46  of  the  Vienna  Convention  on  the  Law  of 
Treaties,  the  deposit  of  a  new  instrument  of  ratification  is  therefore  not  required.  A 

OJ C , , p. . 
OJ C , , p. . 
OJ L 63, 6.3.2003, p.27. 
OJ L 63, 6.3.2003, p. 29. 
[Not yet reported] 

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new  Council  Decision  approving  the  Rotterdam  Convention  is  however  necessary 
together with an amended declaration of competence to reflect the change in the legal 
base, in accordance with Article 25(3) of the Rotterdam Convention.  

(4) 

To ensure legal certainty and to avoid a legal void, it is appropriate for this Decision to 
take effect from the date at which Decision 2003/106/EC was adopted, 

HAS DECIDED AS FOLLOWS: 

Article 1 

The  Rotterdam  Convention  on  the  Prior  Informed  Consent  Procedure  for  certain  hazardous 
chemicals  and  pesticides  in  international  trade  signed  in  Rotterdam  on  11  September  1998, 
hereinafter “the Rotterdam Convention”, is hereby approved on behalf of the Community. 

Article 2 

The  President  of  the  Council  is  hereby  authorised  to  designate  the  person  or  persons 
empowered to deposit the declaration of competence attached to this Decision as required by 
Article 25(3) of the Rotterdam Convention. 

This Decision shall take effect from 19 December 2002.  

Article 3 

Done at  

For the Council 
The President 

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ANNEX  

Declaration by the European Community in accordance with Article 25(3), of the 
Rotterdam Convention 

The  European  Community  declares  that,  in  accordance  with  the  Treaty  establishing  the 
European  Community,  and  in  particular  Article  175(1)  thereof, it  is  competent  to  enter  into 
international  agreements,  and  to  implement  the  obligations  resulting  therefrom,  which 
contribute to the pursuit of the following objectives: 

– 

– 

– 

– 

preserving, protecting and improving the quality of the environment, 

protecting human health, 

prudent and rational utilisation of natural resources, 

promoting  measures  at  international  level  to  deal  with  regional  or  worldwide 
environmental problems. 

The  European  Community  also  declares  that,  in  accordance  with  Article  133  of  the  Treaty 
establishing  the  European  Community,  it  has  exclusive  competence  on  commercial  policy, 
including, inter alia, trade in goods. 

Moreover  the  European  Community  declares  that  it  has  already  adopted  legal  instruments, 
including  Regulation  (EC)  No  304/2003  of  the  European  Parliament  and  the  Council 
concerning  the  export  and  import  of  dangerous  chemicals,  binding  on  its  Member  States, 
covering matters governed by this Convention, and will submit and update, as appropriate, a 
list of those legal instruments to the Secretariat of the Convention. 

The  European  Community  is  responsible  for  the  performance  of  those  obligations  resulting 
from the Convention which are covered by Community law. 

The exercise of Community competence is, by its nature, subject to continuous development. 

EN 

6 

   EN