Proposal for a Regulation of the European Parliament and the Council on the banning of exports and the safe storage of metallic mercury {SEC(2006) 1369} {SEC(2006) 1370}
Date: 2006-10-26
Institutions: European Commission
Subjects: EU environmental policy, export restriction, mercury, metal pollution, pollution control measures, storage

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 26.10.2006 
COM(2006) 636 final 

2006/0206 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND THE COUNCIL  

on the banning of exports and the safe storage of metallic mercury  

(presented by the Commission) 

{SEC(2006) 1369} 
{SEC(2006) 1370} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

Objectives 

The Proposal aims at banning the export of metallic mercury from the Community as 
well as at ensuring that this mercury does not re-enter the market and is safely stored, 
in  line  with  actions  5  and  9  identified  in  the  Community  Strategy  Concerning 
Mercury. The fundamental purpose is to limit further additions to the “global pool” 
of mercury already released.  

1.2. 

General context 

On  28  January  2005,  the  Commission  adopted  the  Communication  to  the  Council 
and  the  European  Parliament  on  a  Community  Strategy  Concerning  Mercury1.  The 
Strategy addresses all aspects of the mercury life cycle. It proposes twenty actions, 
two of them implemented by the present Proposal.  

Action  5  stipulates  that  “as  a  pro-active  contribution  to  a  proposed  globally 
organised  effort  to  phase  out  primary  production  of  mercury  and  to  stop  surpluses 
re-entering  the  market  …,  the  Commission  intends  to  propose  an  amendment  to 
Regulation  (EC)  No.  304/2003  to  phase  out  the  export  of  mercury  from  the 
Community by 2011.”  

Under Action 9, “The Commission will take action to pursue the storage of mercury 
from the chlor-alkali industry, according to a timetable consistent with the intended 
phase-out  of  mercury  exports  by  2011.  In  the  first  instance  the  Commission  will 
explore the scope for an agreement with industry.” 

On  24  June  2005,  the  Council  adopted  its  Conclusions  on  the  Mercury  Strategy.  It 
welcomed  the  Commission  Communication  and  underlined  “the  importance  of  the 
proposal to phase out the export of mercury from the Community”. It also invited the 
Commission “to take action as soon as possible … to present appropriate proposals” 
on the issue of the “phasing out of the export of mercury from the Community and 
action  to  pursue  the  safe  storage  or  disposal  of  mercury  inter  alia  from  the  chlor-
alkali  industry  to  a  timescale  consistent  with  the  intended  phase  out  of  mercury 
exports”. 

On  14  March  2006,  the  European  Parliament  adopted  a  Resolution  welcoming  the 
Strategy,  underlining  “the  significance  of  the  Commission’s  pro-active  proposal  to 
phase  out  the  export  of  metallic  mercury  …  from  the  Community”  and  asking  the 
Commission “to take action ensuring that all mercury coming from the chlor-alkali 
industry is safely stored”. 

It is worth stressing that this Proposal, not intended to implement other actions than 5 
and 9 as identified in the Strategy, is nevertheless embedded into a broader context. 

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COM(2005)20 final 

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In  order  to  achieve  the  overall  objective  of  reduced  mercury  exposure  on  a  global 
scale  complementary  measures  at  international  level  are  necessary.  A  first  global 
framework for action on mercury is set by UNEP's Mercury Programme decided in 
20032.  By  its  2005  Decision  on  chemicals  management,  the  Governing  Council 
requested  governments,  the  private  sector  and  international  organisations  to  take 
"immediate action to reduce the risk to human health and the environment posed on 
a global scale by mercury in products and production processes" such as, inter alia, 
"considering  curbing  primary  production  and  the  introduction  into  commerce  of 
excess mercury supply"3. The proposal responds perfectly to this request.  

The  Commission  will  further  develop  its  action  in  the  international  field  by 
organising  a  global  mercury  conference  on  supply  and  demand  issues  on  26/27 
October  2006  in  Brussels,  well  in  advance  of  the  2007  UNEP  Governing  Council 
(GC).  This  event  should  allow  for  identifying  possibilities  to  move  forward  on  a 
global scale as well as common interests with non-EU countries to be brought into 
the GC negotiation process. 

For measures already triggered in parallel on mercury containing products within the 
EU see below in section 1.3. Further action will be developed to tackle the complex 
issue  of  mercury  use  in  small  scale  gold  mining,  in  particular  in  developing 
countries.  It  is  likely  that  policy  measures  different  from  a  Parliament  and  Council 
Regulation are needed in this field. 

The EU had already flagged the need for a legally binding instrument on mercury at 
a global scale on occasion of the 23rd GC meeting in 2005. The issue remains on the 
agenda  and  will  be  re-discussed  at  the  24th  GC  meeting  in  February  2007.  The 
Commission  will  contribute  actively  to  the  elaboration  of  an  agreed  Community 
position. 

The  present  Proposal  will  be  a  significant  contribution  to  the  global  objective  of 
reducing exposure to mercury, though should not remain a stand-alone measure. To 
deliver its full benefits, it must be complemented by further international action.  

1.3. 

Existing Community provisions 

A  complete  overview  on  current  and  anticipated  Community  legislation  and  policy 
relating  to  mercury  and  its  compounds  was  given  in  the  Extended  Impact 
Assessment,  annex  to  the  Commission  Communication  on  a  Community  Strategy 
Concerning Mercury, on p.116 ff. Two recent legal acts must be added to the list: 

•  Directive  2006/11/EC  on  pollution  caused  by  certain  dangerous  substances 
discharged  into  the  aquatic  environment  of  the  Community4,  covering  mercury 
and mercury compounds; 

•  The  Commission  adopted  on  21  February  2006  a  Proposal  for  a  Directive 
amending Council Directive 76/769/EEC relating to restrictions on the marketing 

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4 

UNEP Governing Council Decision 22/4, 7.2.2003 
UNEP Governing Council Decision 23/9, 25.2.2005 
OJ L 64, 4.3.2006, p.52 

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of  certain  measuring  devices  containing  mercury5.  This  legal  proposal  already 
contributes to the implementation of the Mercury Strategy (action 7). 

A complete overview on Community legislation introducing restrictions on products 
containing mercury is given in the impact assessment added to this Proposal, section 
5.3. 

To  date  there  is  no  legislation  addressing  the  export  of  mercury  from  the 
Community, nor any legislation on its storage. Regulation No. 304/2003 concerning 
the  export  and  import  of  dangerous  chemicals6  lists  cosmetic  soaps  containing 
mercury in its annex V listing chemicals and articles subject to an export ban. 

A pre-condition for  listing in the annex is that the use of the  chemical or article in 
question  is  prohibited  in  the  Community  for  the  protection  of  human  health  or  the 
environment  (Article  14  (2)).  The  use  of  mercury  in  the  Community  is  severely 
restricted,  but  not  prohibited,  and  some  residual  uses  will  remain  in  future.  An 
opening of Article 14(2) to chemicals and articles that are severely restricted only is 
not  appropriate  as  it  would  allow  a  ban  on  the  export  of  an  unlimited  number  of 
substances. It is the intention to limit the scope of the intended export ban to metallic 
mercury  and  not  to  create  a  precedent  for  other  substances.  For  this  reason 
Regulation No. 304/2003 is not the appropriate legal basis for a mercury export ban 
and the Commission opted for a separate instrument. 

To the extent that mercury is considered as waste, it falls within the scope of existing 
Community  legislation  on  waste:  Directive  75/442  on  waste,  Regulation  259/93  on 
waste shipments and, given the wide definition of “landfill” in Article 2(g), Directive 
1999/31/EC on the landfill of waste. The same legal acts apply to waste containing 
mercury. Whereas this Regulation intends to introduce some additional requirements 
for the handling of mercury, irrespective of whether or not it is considered as waste, 
this  part  of  the  environmental  acquis  should  continue  to  apply,  with  the  sole 
exception  of  those  provisions  that  stand  in  the  way  of  the  storage  of  metallic 
mercury. 

Metallic  mercury  is  liquid  under  normal  conditions  of  pressure  and  temperature. 
Council Directive 1999/31/EC on the landfill of waste7 stipulates that liquid wastes 
must  not  be  accepted  in  landfills  (Art.5(3)(a)).  In  addition,  Council  Decision 
2003/33/EC  establishing  criteria  and  procedures  for  the  acceptance  of  waste  at 
landfills  sets  leaching  limit  values  that  should  not  apply  to  the  landfill  of  metallic 
mercury. The Regulation therefore clarifies that the intended storage obligation does 
not conflict with this interdiction and the limit values, in case the metallic mercury to 
be stored is considered as waste. 

1.4. 

Consistency with other policies and rules 

The proposed Regulation complements existing Community policies and legislation 
in  the  fields  of  industrial  pollution  control,  chemicals  (including  the  REACH 
proposal),  protection  of  the  health  and  safety  of  workers  and  waste.  It  is  also 

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COM(2006)69 final 
OJ L 63, 6.3.2003, p.1 
OJ L 182, 16.7.1999, p.1 

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consistent  with  policy  objectives  at  the  global  level,  namely  the  UNEP  Mercury 
Programme. 

It is, in particular, noteworthy that the application of Directive 96/61/EC concerning 
integrated  pollution  prevention  and  control8  leads  to  the  progressive  phase-out  of 
mercury  cell  technology,  no  longer  recognised  as  best  available  technique,  in  the 
chlor-alkali  industry.  The  conversion  to  other  production  processes  will  liberate 
considerable amounts of metallic mercury. Dispersal of this mercury worldwide for 
diverse, partly illicit, uses would simply transfer an environmental problem that has 
already been solved within the Community to beyond the EU borders. The proposed 
Regulation  therefore  constitutes  a  necessary  complement  to  the  IPPC  Directive, 
avoiding globally negative side-effects of the phase-out. 

Specific  attention  is  given  to  compatibility  of  the  export  ban  with  WTO  rules. 
Article  XI  of  the  General  Agreement  on  Tariffs  and  Trade  (GATT)  prohibits 
restrictions  on  importation,  exportation  and  the  sale  for  export.  Article  XX  GATT 
provides for derogation from general rules of the  agreement to pursue a number of 
policy objectives. Whether the proposed measures are justifiable under the provisions 
of  Article  XX  GATT  (general  exceptions)  is  therefore  analysed  in  detail  in  the  IA 
(section 6.11).  

Apart  from  the  strictly  legal  analysis,  it  is  worth  noting  that  the  Commission  is 
systematically  improving  its  contacts  with  non-EU  countries  that  are  relevant  as 
producers,  users  and  exporters  of  mercury  and/or  are  subject  to  mercury  pollution 
problems.  An  international  mercury  conference  to  be  held  on  26/27  October  in 
Brussels  with  significant  non-EU  participation,  will  build  up  additional  momentum 
for international negotiations, including on trade issues, well before the 24th session 
of the UNEP Governing Council in 2007. This session will be an occasion to further 
enhance the implementation of the UNEP mercury programme. 

2. 

RESULTS  OF  CONSULTATIONS  WITH  THE  INTERESTED  PARTIES  AND  IMPACT 
ASSESSMENTS 

2.1. 

Consultations 

Extensive  stakeholder  consultation  was  on-going  throughout  the  preparation  of  the 
Community  Strategy  on  mercury.  For  an  overview  see  section  11,  p.61  ff,  of  the 
extended impact assessment complementing the Strategy. 

In  addition,  a  further  stakeholder  meeting  took  place  in  Brussels  on  8  September 
2005.  The  invitation  was  sent  to  a  broad  selection  of  interested  entities  including 
Member  States,  industry  and  environmental  and  health  NGOs.  Stakeholder 
contributions included9: 

•  Information  on  the  legal  situation  throughout  the  European  Union,  on  mercury 
waste streams and on the recycling and recovery of mercury containing products 
(collected  from  the  Member  States).  These  contributions  have  provided  useful 

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OJ L 257, 10.10.1996, p.26 
All the consultation responses to be found on http://www.ec.europa.eu/environment/chemicals/mercury/ 

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information on the mercury flows and the availability of mercury in the European 
Union both before and after the proposed export ban.  

•  At  the  stakeholder  meeting  the  Commission  presented  its  basic  concept  for  the 
planned  legislative  proposal  and  asked  for  feedback  on  the  exact  scope  of  the 
export  ban  (metallic  mercury,  compounds)  as  well  as  on  the  storage  obligation 
(metallic mercury from the chlor-alkali industry only or also from other sources), 
and  necessary  amendments  to  the  landfill  directive  and  other  waste  legislation. 
The Commission also requested additional information on the recovery/recycling 
of mercury. Additional meetings have been held with Spain, the most concerned 
Member State, and Eurochlor to discuss the intended instrument and the voluntary 
agreement from the chlor-alkali industry.  

The  information  collected  in  the  consultation  process  has  been  integrated  into  the 
impact assessment. 

2.2. 

Impact assessment 

The  Communication  on  a  Community  Strategy  concerning  mercury  was  already 
complemented by an extended impact assessment (ExIA), published as an annex to 
the Communication10. Section 6 of this ExIA, p.20 ff, is also relevant for the present 
proposal. In addition a supplementary impact assessment has been carried out. It is 
annexed to this Proposal. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

3.1. 

Legal basis 

The Proposal contains two basic elements: an export ban for metallic mercury, on the 
one hand, and an obligation to store mercury in a way that is safe for human health 
and the environment on the other. The export ban element indicates Article 133 ECT 
as the appropriate legal basis, even if the measure is motivated by the objectives of 
preserving,  protecting  and  improving  the  quality  of  the  environment  as  well  as 
protecting human  health, and not by commercial policy considerations. The second 
element,  the  storage  obligation  including  the  subsequent  information  and  reporting 
obligations, is clearly motivated by environmental policy considerations as laid down 
in Article 175 ECT. In accordance with the recent judgments of the ECJ in cases C-
94/03  and  C-178/03  concerning  the  approval  of  the  Rotterdam  Convention  and 
Regulation  (EC)  No  304/2003  concerning  the  export  and  import  of  dangerous 
chemicals,  the  proposal  builds  on  both  Articles  133  and  175  ECT.  Both  the 
Rotterdam  Convention  and  Regulation  No  304/2003  are  characterised  by  a  mix  of 
environmental and trade policy elements very similar to this Proposal. 

3.2. 

Subsidiarity and proportionality 

Mercury  is  a  substance  subject  to  the  internal  market  rules  and,  if  considered  as 
waste, it is governed by Community waste legislation. The measures foreseen in this 

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http://www.europa.eu.int/comm/environment/chemicals/mercury/pdf/extended_impact_assessment.pdf 

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legal instrument must therefore also be taken at Community level and cannot be left 
to the Member States. 

Storage/disposal possibilities may vary from country to country, depending on local 
environmental  circumstances.  Therefore,  while  some  general  standards  should  be 
met, detailed storage or disposal requirements are left to the Member States.  

The  measures  foreseen  in  this  Regulation  are  also  necessary  to  comply  with  the 
objectives  of  the  Waste  Strategy.  They  avoid  any  form  of  micro-management  that 
could be considered as problematic in terms of proportionality. 

3.3. 

Choice of instruments 

Given  the  limitation  to  a  few  straightforward  obligations  –  export  ban,  storage 
obligation,  reporting  and  information  exchange  -  no  implementing  measures  at 
Member  State  level  are  necessary.  Therefore  a  Regulation  of  the  European 
Parliament  and  the  Council  is  chosen  as  an  instrument.  Details  concerning  storage 
are left to a voluntary commitment by industry. 

4. 

BUDGETARY IMPLICATION 

The Proposal has no budgetary implications for the Community. 

5. 

DETAILED EXPLANATION 

The Proposal responds to the principles of “Better Legislation”. It aims at being short 
and  clear,  avoiding  as  much  as  possible  grey  areas  subject  to  contradictory 
interpretations.  In  the  choice  of  terminology,  coherence  is  sought  with  existing 
Community legislation. The Proposal contains nine Articles. 

Article  1  sets  the  export  ban  obligation,  defines  its  scope  and  fixes  a  date,  in  line 
with  the  Mercury  Strategy.  The  scope  covers  metallic  mercury,  by  far  the  most 
relevant  substance  in  terms  of  quantity  as  compared  to  mercury  compounds  and 
products containing mercury.  

The date for the entry into effect of the export ban on mercury had already lead to 
substantial  debate  in  the  European  Parliament  and  the  Council  when  the  two 
institutions  discussed  the  Mercury  Strategy.  For  this  Proposal  the  Commission 
decided to choose the date that appears most likely to rally support from a majority 
of Member States as well as from other stakeholders. 

Article  2  sets  the  storage  obligation  and  defines  its  scope. The  three  most  relevant 
sources  of  metallic  mercury  in  the  Community  are  covered  by  this  obligation.  The 
term  of  “storage”  is  chosen  because  “disposal”  is  a  specific  term  in  Community 
waste  legislation  (see  Article  1(e)  of  Directive  75/442/EEC  on  waste  as  amended). 
The storage obligation applies to mercury independently of the classification of the 
substance or not as waste. Storage in this context does not only cover short- to mid-
term options, but also encompasses long-term options (that can qualify as disposal). 
In terms of timing, this element is linked to the entry into force of the export ban for 
metallic mercury and calomel. 

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The  wording  “no  longer  used  in  the  chlor-alkali  industry”  implies  that  transfers  of 
mercury from one chlor-alkali installation to another within the Community remain 
possible. 

A voluntary commitment from the chlor-alkali industry complements this provision. 
It  commits  the  industry  to  send  its  surplus  mercury  for  storage  to  highly  qualified 
operators  only,  to  ensure  appropriate  containment  and  to  submit  data  on  mercury 
flows to the Commission. The article is drafted accordingly, without going into any 
detail.  Additional  requirements  for  storage installations  are,  however,  introduced  in 
Article 4.  

Article 3 clarifies the interface with existing waste legislation. Under the given legal 
situation,  any  storage  of  metallic  mercury  (which  is  liquid)  in  any  kind  of  landfill 
would  conflict  with  the  provision  of  Article  5  (3)  (a)  of  Directive  1999/31/EC. 
Derogation  is  therefore  necessary.  The  leaching  limit  values  and  other  criteria  laid 
down  in  section  2.4  of  Council  Decision  2003/33/EC  establishing  criteria  and 
procedures  for  the  acceptance  of  waste  at  landfills,  applicable  to  granular  waste, 
cannot be applied for liquid mercury. 

Article  3  therefore  proposes  to  derogate  from  these  provisions  with  regard  to  two 
specific  storage  options  for  metallic  mercury,  namely  underground  storage  in  salt 
mines  adapted  for  the  purpose  and  temporary  storage  in  facilities  specifically 
dedicated for the purpose, which can be considered – under appropriate conditions – 
as safe for human health and the environment. The derogation in favour of facilities 
“exclusively dedicated to and equipped for the temporary storage of metallic mercury 
prior to its final disposal” shall allow for technology development activities aimed at 
finding  innovative  solutions  for  the  disposal  of  mercury  in  non-liquid  form. 
“Ordinary” landfill of liquid mercury remains illegal.  

As  section  2.4  of  Council  Decision  2003/33/EC  is  not  applicable  to  underground 
storage  operations  (see  section  2.5),  the  article  differentiates  between  the  two 
options. 

As this provision is not limited to metallic mercury from specific sources, Member 
States which might wish to store metallic mercury of other sources in underground or 
other specialised facilities are allowed to do so. 

It  is  worth  stressing  that,  wherever  metallic  mercury  is  considered  as  waste,  it 
remains  of  course  subject  to  the  general  provisions  of  Directive  75/442/EEC  on 
waste and – insofar as cross-border shipments within the Community are concerned 
–  of  Regulation  259/93/EEC  on  the  supervision  and  control  of  shipments  of  waste 
within, into and out of the European Community. 

Given the specificities of metallic mercury and given that only a limited number of 
installations are likely to qualify for storage of metallic mercury, raising objections 
against  shipments  of  mercury  considered  as  waste  on  grounds  of  the  principles  of 
proximity,  priority  for  recovery  and  self-sufficiency  appears  to  be  inappropriate.  It 
has  to  be  noted  that  the  aim  of  this  Regulation  is  to  ensure  that  the  mercury 
concerned does not re-enter the market, which makes recovery an undesirable option. 
Therefore  derogation  from  the  provisions  of  the  new  waste  shipment  Regulation  is 
proposed. 

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Article 4 complements Article 2 by adding some more detailed requirements for the 
application  of  the  two  storage  options.  It  focuses  on  the  need  to  carry  out  a  proper 
safety assessment, taking into account the nature of the substance. It also stipulates 
minimum requirements for the permit content. This will guarantee a safe handling of 
mercury even in the absence of any voluntary commitment from industry. 

Article  5  stipulates  the  creation  of  an  information  exchange  between  interested 
stakeholders,  organised  by  the  Commission.  This  will  allow  for  early  detection  of 
and  flexible reactions  to  new  developments in the field of mercury  uses  and flows. 
The information exchange should not be limited to metallic mercury alone, but also 
encompass mercury compounds and mercury containing products. 

Article 6 imposes some information obligations on the Member States. It stipulates 
that  MS  shall  submit  any  permit  given  to  a  mercury  storage  facility  to  the 
Commission. MS shall also inform the Commission on the effects of the instrument, 
three years and five months after the entry into force of the export ban at the latest. 
The Commission may already require this information from MS at an earlier stage. 
This should allow for a rapid and effective reaction to potentially unexpected market 
developments.  It  is  worth  noting  that  it  is  not  the  intention  to  impose  a  regular, 
periodic reporting obligation on MS. 

Article 7 stipulates that the Commission will assess the application of the Regulation 
and  its  effects  on  the  market  and  deliver  a  report  at  the  latest  four  years  after  the 
entry into force of the export ban. The assessment will be based on the information 
submitted by MS. Other sources of information that might be available will also be 
used. 

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Article 8 stipulates that the Commission has to report on international developments 
in  the  field  of  mercury,  in  particular  on  multilateral  negotiations  on  supply  and 
demand  issues  that  are  not  unlikely  to  start  in  the  next  years.  This  should  allow 
monitoring the coherence of global and Community measures, with the aim to reap 
the utmost of benefits for the environment. 

Article 9 is standard text concerning the entry into force of the instrument.  

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2006/0206 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND THE COUNCIL  

on the banning of exports and the safe storage of metallic mercury  

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Articles 
133 and 175(1) thereof, 

Having regard to the proposal from the Commission11, 

Having regard to the opinion of the European Economic and Social Committee12, 

Having regard to the opinion of the Committee of the Regions13, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty14, 

Whereas: 

(1)  Mercury  releases  are  recognised  as  a  global  threat  that  warrants  action  at  national, 

regional and global level. 

(2) 

In  accordance  with  the  Communication  from  the  Commission  to  the  European 
Parliament  and  to  the  Council  “Community  Strategy  Concerning  Mercury”15,  it  is 
necessary to reduce the risk of exposure to mercury for humans and the environment.. 

(3)  Measures taken at Community level must be seen as part of a global effort to reduce 
the  risk  of  exposure  to  mercury,  in  particular  in  the  framework  of  the  Mercury 
Programme under the United Nations Environment Programme. 

(4) 

(5) 

11 
12 
13 
14 
15 

The  export  of  metallic  mercury  from  the  Community  should  be  banned  in  order  to 
significantly reduce the global mercury supply. 

The  export  ban  will  result  in  considerable  amounts  of  surplus  mercury  in  the 
Community that should be prevented from re-entering the market. Therefore the safe 
storage within the Community of this mercury should be ensured. 

OJ C , , p. . 
OJ C […], […] , p.[…]. 
OJ C […], […], p. […]. 
Opinion of the European Parliament of xxx and Council Decision of xxx 
COM(2005)20 final of 28.1.2005 

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(6) 

(7) 

(8) 

In order to provide for possibilities of safe storage of  mercury  no  longer used in the 
chlor-alkali  industry,  it  is  appropriate  to  derogate  from  point  (a)  of  Article  5(3)  of 
Council Directive 1999/31/EC of 26 April on the landfill of waste16 for certain types 
of landfill, and to declare the criteria of section 2.4 of the Annex to Council Decision 
2003/33/EC  of  19  December  2002  establishing  criteria  and  procedures  for  the 
acceptance  of  waste  at  landfills  pursuant  to  Article  16  of  and  Annex  II  to  Directive 
1999/31/EC17 inapplicable for non-underground storage. 

In order to ensure storage that is safe for human health and the environment, the safety 
assessment  required  under  Decision  2003/33/EC  for  underground  storage  should  be 
complemented  by  specific  requirements  and  should  also  be  made  applicable  to  non-
underground storage. 

It is appropriate to organise an exchange of information in order to assess the potential 
need  for  supplementary  measures  related  to  export  and  storage  of  mercury,  without 
prejudice to the competition rules of the Treaty, in particular Article 81. 

(9)  Member  States  should  submit  information  on  permits  issued  for  storage  facilities  as 
well as on the application and the market effects of the instrument, in order to allow 
for an assessment of the instrument in due time. 

(10)  The  Commission  should  take  this  information  into  account  when  submitting  an 
assessment report in order to identify possible needs for amending the instrument. 

(11)  The  Commission  should  also  follow  international  developments  concerning  mercury 
supply and demand, in particular multilateral negotiations, and report on these in order 
to allow for assessing the consistency of the overall approach.  

(12)  The  Regulation  contains  a  trade-related  element  as  well  as  elements  motivated  by 
environmental policy considerations. Article 1 is trade–related and therefore based on 
Article 133 of the Treaty, whereas the other Articles are based on Article 175(1). 

(13)  The  objective  of  reducing  exposure  to  mercury  by  means  of  an  export  ban  and  a 
storage  obligation  cannot  be  sufficiently  achieved  by  the  Member  States,  given  the 
impact on the movement of goods and the functioning of the common market as well 
as the trans-boundary nature of mercury pollution and can therefore only be achieved 
at  Community  level.  The  Community  may  therefore  adopt  measures  in  accordance 
with the principle  of subsidiarity  as set out in Article  5 of the Treaty. In  accordance 
with the principle of proportionality, as set out in that Article, this Regulation does not 
go beyond what is necessary in order to achieve this objective, 

16 

17 

OJ  L 182, 16.7.1999, p. 1. Directive  as  amended by  Regulation  (EC) No 1882/2003  of  the  European 
Parliament and of the Council ( OJ L 284, 1.10.2003, p.1) 
OJ L 11, 16. 1. 2003, p. 27. 

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HAVE ADOPTED THIS REGULATION: 

Article 1 

The  export  of  metallic  mercury  (Hg,  CAS  RN  7439-97-6)  from  the  Community  shall  be 
prohibited from 1 July 2011. 

Article 2 

From the date set out in Article 1, metallic mercury that is no longer used in the chlor-alkali 
industry, mercury gained from the cleaning of natural gas and mercury gained as a by-product 
from  non-ferrous  mining  and  smelting  operations  shall  be  stored,  in  the  quality  and 
concentration in a way that is safe for human health and the environment. 

Article 3 

1. 

By derogation to point (a) of Article 5(3) of Directive 1999/31/EC metallic mercury 
that is considered as waste may be stored in appropriate containment in either of the 
following: 

(a) 

an underground salt mine adapted for waste disposal;  

(b) 

a  facility  exclusively  dedicated  to  and  equipped  for  the  temporary  storage  of 
metallic mercury prior to its final disposal. 

In  the  case  referred  to  in  point  (b)  of  the  first  subparagraph  the  criteria  set  out  in 
section 2.4 of the Annex to Decision 2003/33/EC shall not apply. 

By derogation to point (a) of Article 11(1) of Regulation (EC) No 1013/2006 of the 
European  Parliament  and  of  the  Council18  the  competent  authorities  for  destination 
and  dispatch  may  not  raise  objections  to  shipments  of  metallic  mercury  that  is 
considered as waste based on grounds that the planned shipment or disposal would 
not be in accordance with measures taken to implement the principles of proximity, 
priority for recovery and self-sufficiency. 

Article 4 

The safety assessment to be carried out in accordance with Decision 2003/33/EC for 
storage  in  an  underground  salt  mine  adapted  for  waste  storage  shall  cover  in 
particular the additional risks arising from the nature and long-term behaviour of the 
metallic mercury and its containment. 

A  safety  assessment  ensuring  a  level  of  environmental  protection  equivalent  to  the 
level  ensured  by  Decision  2003/33/EC  shall  be  carried  out  and  submitted  to  the 
competent  authority  for  the  temporary  storage  in  a  facility  exclusively dedicated to 
and equipped for the storage of metallic mercury. 

2. 

1. 

2. 

18 

OJ L 190, 12.7.2006, p. 1. 

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3. 

The  permit  referred  to  in  Articles  8  and  9  of  Directive  1999/31/ECfor  the 
underground salt mine  or  the facility exclusively dedicated  to and equipped for the 
temporary storage of metallic mercury shall include requirements for regular visual 
inspections  of  the  containers  and  the  installation  of  appropriate  vapour  detection 
equipment to detect any leak. 

Article 5  

The Commission shall organise an exchange of information between Member States 
and the industries concerned.  

That  exchange  of  information  shall  in  particular  examine  the  potential  need  for 
extending  the  export  ban  to  mercury  compounds  and  products  containing  mercury, 
for extending the storage obligation to metallic mercury from other sources and for 
time limits concerning storage in a facility specifically dedicated to and equipped for 
the temporary storage of metallic mercury 

Article 6 

Member  States  shall  submit  to  the  Commission  a  copy  of  any  permit  issued  for  a 
facility designated to store mercury.  

Member States shall, by 30 November 2014 at the latest, inform the Commission on 
the  application  and  market  effects  of  this  Regulation  in  their  respective  territory. 
Member  States  shall,  upon  request  from  the  Commission,  submit  that  information 
earlier than the date set out in the first subparagraph. 

The  information  referred  to  in  paragraph  2  shall  at  least  contain  data  on  the 
following:  

(a) 

volumes,  prices,  originating  country  and  destination  country  as  well  as  the 
intended use of metallic mercury entering or leaving the Community; 

(b)  volumes,  prices,  originating  country  and  destination  country  as  well  as  the 

intended use of metallic mercury traded cross-border within the Community. 

Article 7 

The Commission shall assess the application and market effects of this Regulation in 
the Community, taking into account the information referred to in Article 6. 

The Commission shall  submit a report to the European  Parliament and  the Council 
by 30 June 2015 at the latest. 

1. 

2. 

3. 

1. 

2. 

At  least  one  year  before  the  date  set  out  in  Article  1,  the  Commission  shall  report  to  the 
European Parliament and the Council on progress in multilateral activities and negotiations on 

Article 8 

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mercury,  assessing  in  particular  the  consistency  of  the  timing  and  scope  of  the  measures 
specified in this Regulation with international developments.  

This Regulation shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 9 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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