Common Position (EC) No 1/2008 of 20 December 2007 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Regulation of the European Parliament and of the Council on the banning of exports and the safe storage of metallic mercury Text with EEA relevance
Date: 2007-12-20
Institutions: Council of the European Union
Subjects: dangerous substance, export restriction, mercury, metal pollution, storage of waste, waste management

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III

(Preparatory Acts)

COUNCIL

COMMON POSITION (EC) No 1/2008

adopted by the Council on 20 December 2007

with a view to adopting Regulation (EC) No …/2008 of the European Parliament and of the Council
of … on the banning of exports and the safe storage of metallic mercury

(Text with EEA relevance)

(2008/C 52 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 175(1) thereof and, in relation
to Article 1 of this Regulation, Article 133 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

After consulting the Committee of the Regions,

Acting in accordance with the procedure
Article 251 of the Treaty (2),

laid down in

(4)

(5)

(6)

Whereas:

(1)

(2)

(3)

Mercury releases are recognised as a global threat that
warrants action at regional, national and global level.

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

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.

(1) OJ C 168, 20.7.2007, p. 44.
(2) Opinion of

the European Parliament of 20 June 2007 (not yet
published in the Official
Journal), Council Common Position of
20 December 2007 and Position of the European Parliament of … (not
yet published in the Official Journal).

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
this mercury
safe storage within the Community of
should be ensured.

In order to provide for possibilities of safe storage of
metallic mercury that is considered as waste, it is appro-
priate to derogate from Article 5(3)(a) of Council Direc-
tive 1999/31/EC of 26 April 1999 on the landfill of
waste (3) 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/EC (4)
temporary storage of
metallic mercury for more than one year in above-
ground facilities dedicated to and equipped for
this
purpose.

inapplicable for

(7)

For temporary storage of metallic mercury for more than
one year in above-ground facilities dedicated to and
equipped for this purpose, Council Directive 96/82/EC of
9 December 1996 on the control of major-accident
hazards involving dangerous substances (5) should apply.

(3) OJ L 182, 16.7.1999, p. 1. Directive as amended by Regulation (EC)
the Council

the European Parliament and of

No 1882/2003 of
(OJ L 284, 31.10.2003, p. 1).

(4) OJ L 11, 16.1.2003, p. 27.
(5) OJ L 10, 14.1.1997, p. 13. Directive as last amended by Regulation (EC)

No 1882/2003.

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(8)

(9)

This Regulation should be without prejudice to Regu-
lation (EC) No 1013/2006 of the European Parliament
and of the Council of 14 June 2006 on shipments of
waste (1). Nevertheless,
to allow appropriate
in order
disposal of metallic mercury in the Community,
the
competent authorities of destination and dispatch are
encouraged to avoid raising objections to shipments of
metallic mercury that is considered as waste based on
is noted that,
that Regulation.
Article 11(1)(a) of
according to Article 11(3) thereof, in the case of hazar-
dous waste produced in a Member State of dispatch in
such a small quantity overall per year that the provision
installations within that
of new specialised disposal
Member State would be uneconomic, Article 11(1)(a)
thereof shall not apply.

It

In order to ensure storage that is safe for human health
and the environment, the safety assessment required for
underground storage under Decision 2003/33/EC should
be complemented by specific requirements and should
also be made applicable to non-underground storage. No
final disposal operation should be permitted until the
special requirements and acceptance criteria are adopted.
The storage conditions in a salt mine or in deep under-
ground, hard rock formations, adapted for the disposal of
metallic mercury, should notably meet the principles of
protection of groundwater against mercury, prevention of
vapour emissions of mercury, impermeability to gas and
liquids of the surroundings and — in case of permanent
storage — of firmly encapsulating the wastes at the end
of the mines' deformation process. Those criteria should
be introduced in the annexes of Directive 1999/31/EC,
when they are amended for the purpose of this Regu-
lation.

(10)

The above-ground storage conditions should notably
meet the principles of reversibility of storage, protection
of mercury against meteoric water,
impermeability
towards soils and prevention of vapour emissions of
mercury. Those criteria should be introduced in the
are
annexes of Directive 1999/31/EC when they
amended for the purpose of this Regulation. The above-
ground storage of metallic mercury should be considered
a temporary solution.

(11) Member States should submit information on permits
issued for storage facilities as well as on the application
in order to
and the market effects of this Regulation,
allow for an assessment thereof in due time. Importers,
exporters and operators should submit information on
movements and use of metallic mercury.

(13)

(14)

(15)

(16)

(17)

(18)

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

related to export,

Research is ongoing on safe disposal of mercury,
including on different
techniques for stabilisation or
other ways of immobilising mercury. The Commission
should, as a matter of priority, keep this research under
review and submit a report as soon as possible. This
information is important as it will provide a sound basis
for a review of this Regulation in order to achieve its
objective.

The Commission should take this
information into
account when submitting an assessment report in order
to identify possible needs for amending this Regulation.

The Commission should also follow international devel-
opments concerning mercury supply and demand, in par-
ticular multilateral negotiations, and report on these in
order to enable the consistency of the overall approach
to be assessed.

The measures necessary for the application of this Regu-
lation concerning temporary storage of metallic mercury
in certain facilities referred to herein should be adopted
in accordance with Directive 1999/31/EC taking into
account the direct link between this Regulation and that
Directive.

Since the objective of this Regulation, namely the redu-
cing of exposure to mercury by means of an export ban
and a storage obligation, cannot be sufficiently achieved
by the Member States, and can therefore, by reason of
the impact on the movement of goods and the func-
tioning of
the internal market as well as the trans-
boundary nature of mercury pollution, be better achieved
adopt
at Community
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 that objective,

the Community may

level,

HAVE ADOPTED THIS REGULATION:

(12) Member States should determine the penalties applicable
to infringements of the provisions of this Regulation to
be imposed on natural and legal persons. Those penalties
should be effective, proportionate and dissuasive.

Article 1

(1) OJ L 190, 12.7.2006, p. 1.

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

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Article 2

make an appropriate proposal as soon as possible, and at the
latest by 1 January 2010.

From 1 July 2011, metallic mercury that is no longer used in
the chlor-alkali
industry, metallic mercury gained from the
cleaning of natural gas and metallic mercury from non-ferrous
mining and smelting operations shall be considered waste and
be disposed of according to the provisions of Directive
2006/12/EC of the European Parliament and of the Council of
5 April 2006 on waste (1) in a way that is safe for human
health and the environment.

Article 3

By way of derogation from Article 5(3)(a) of Directive
1.
1999/31/EC, metallic mercury that is considered as waste may,
in appropriate containment, be

(a) temporarily stored for more than one year or permanently
stored (disposal operations D 15 or D 12 respectively, as
defined in Annex II A of Directive 2006/12/EC)
in salt
mines adapted for the disposal of metallic mercury, or in
deep, underground, hard rock formations providing a level
of safety and confinement equivalent to that of those salt
mines; or

(b) temporarily stored (disposal operation D 15, as defined in
Annex II A of Directive 2006/12/EC) for more than one
year in above-ground facilities dedicated to and equipped for
the temporary storage of metallic mercury. In this case, the
criteria set out in Section 2.4 of the Annex to Decision
2003/33/EC shall not apply.

The other provisions of Directive 1999/31/EC and Decision
2003/33/EC shall apply to points (a) and (b).

Directive 96/82/EC shall apply to storages as referred to in

2.
paragraph 1(b) of this Article.

Article 4

The safety assessment to be carried out in accordance with
1.
Decision 2003/33/EC for
the disposal of metallic mercury
according to Article 3 of this Regulation shall cover in particular
the additional risks arising from the nature and long-term prop-
erties of the metallic mercury and its containment.

The permit referred to in Articles 8 and 9 of Directive
2.
1999/31/EC for facilities according to Article 3(1)(a) and (b) of
this Regulation shall
include requirements for regular visual
inspections of the containers and the installation of appropriate
vapour detection equipment to detect any leak.

The requirements for facilities listed in Article 3(1)(a) and
3.
(b) of
this Regulation as well as acceptance criteria for
metallic mercury, amending Annexes I, II and III of Directive
1999/31/EC, shall be adopted according to the procedure
referred to in Article 16 of that Directive. The Commission shall

Any final disposal operation (disposal operation D 12, as
defined in Annex II A of Directive 2006/12/EC) concerning
metallic mercury shall only be permitted after the date at which
the amendment of Annexes I, II and III of Directive 1999/31/EC
has been adopted.

Article 5

1. Member States shall submit to the Commission a copy of
any permit issued for a facility designated to store metallic
mercury temporarily or permanently (disposal operations D 15
or D 12 respectively, as defined in Annex II A of Directive
2006/12/EC).

2.
By 1 July 2012, Member States shall inform the Commis-
sion on the application and market effects of this Regulation in
their respective territories. Member States shall, upon request
from the Commission, submit that information earlier than that
date.

By 1 July 2012,

3.
importers, exporters and operators of
activities referred to in Article 2, as appropriate, shall send to
the Commission and to the competent authorities the following
data:

(a) volumes, prices, originating country and destination country
as well as the intended use of metallic mercury entering the
Community;

(b) volumes, originating country and destination country of
traded

considered waste

metallic mercury
cross-border within the Community.

that

is

Article 6

Member States shall lay down the rules on penalties applicable
to infringements of the provisions of this Regulation and shall
take all measures necessary to ensure that they are applied. The
penalties provided for must be effective, proportionate and
dissuasive. The Member States shall notify those provisions to
the Commission by … (*) and shall notify it without delay of
any subsequent amendment affecting them.

Article 7

1.
The Commission shall organise an exchange of informa-
tion between the Member States and the industries concerned.
This exchange of information shall, in particular, examine the
potential need for: extending the export ban to mercury
compounds and products containing mercury; an import ban of
metallic mercury, mercury compounds and products containing
mercury; extending the storage obligation to metallic mercury
from other sources; and time limits concerning temporary
storage of metallic mercury.

(1) OJ L 114, 27.4.2006, p. 9.

(*) One year from the entry into force of this Regulation.

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The Commission shall keep under review ongoing research
2.
activities on safe disposal options,
including solidification of
metallic mercury. The Commission shall submit a report to the
European Parliament and the Council by 1 July 2010. On the
basis of
if appropriate,
present a proposal for a revision of this Regulation as soon as
possible and not later than 1 July 2013.

the Commission shall,

this report,

5.
The Commission shall report to the European Parliament
and the Council by 1 July 2010 on progress in multilateral
activities and negotiations on mercury, assessing in particular
the consistency of the timing and scope of the measures speci-
fied in this Regulation with international developments.

Article 8

The Commission shall assess the application and market
3.
effects of this Regulation in the Community, taking into account
the information referred to in paragraphs 1 and 2 and in
Article 5.

Until 1 July 2011, Member States may maintain national
measures restricting the export of metallic mercury which were
adopted in line with Community legislation before the adoption
of this Regulation.

The Commission shall submit a report,

if appropriate
4.
accompanied by a proposal for a revision of this Regulation, to
the European Parliament and the Council by 1 July 2013 which
the information
shall
exchange referred to in paragraph 1 and of
the assessment
referred to in paragraph 3.

reflect and evaluate the outcome of

Article 9

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

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

Done at …

For the European Parliament

The President

For the Council

The President

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STATEMENT OF THE COUNCIL'S REASONS

I.

INTRODUCTION

The Commission submitted its proposal for a Regulation of the European Parliament and of the Council
on the banning of exports and the safe storage of metallic mercury to the Council on 26 October 2006.
The proposal is based on Articles 133 and 175(1) of the Treaty establishing the European Community.

On 20 June 2007, the European Parliament adopted its Opinion at first reading.

On 25 April 2007, The Economic and Social Committee adopted its Opinion.

On 27 November 2006, the Committee of Regions decided not to deliver an opinion on this proposal.

On 20 December 2007, the Council adopted its common position in accordance with Article 251(2) of
the Treaty establishing the European Community.

II. OBJECTIVES

The aim of the proposed Regulation is to contribute to the reduction of mercury levels in the environ-
ment by reducing the global supply of metallic mercury and to provide a legal framework for a sustain-
able solution for its surpluses. Key objectives are:

— to ban the export of metallic mercury from the Community,

— to ensure that the surplus of metallic mercury from main sources does not re-enter the market and

is safely disposed of,

— to provide for the specific possibility of disposing of metallic mercury in dedicated facilities.

III. ANALYSIS OF THE COMMON POSITION

General

The common position incorporates a number of the European Parliament's first-reading amendments,
either verbatim, in part or in spirit. In particular, it provides for a broad review of needs for a future
possible extension of the scope of the Regulation and introduces additional safety requirements for the
disposal of metallic mercury.
(Article 175(1), and
Article 133 of the Treaty in relation to Article 1 of the Regulation which does not follow amendments 2
and 19), and includes a number of other changes clarifying the text and the application of relevant EC
legislation. The following Sections describe changes of substance.

It also specifies the legal basis of the proposal

Mercury export ban — scope and its review (Articles 1 and 7)

The scope of the Regulation and the date of export ban in Article 1 correspond with the Commission's
initial proposal. The common position is partly consistent with amendments 20, 50, 22, 33, 36, 1, 8, 9
and 14 in that it provides in Article 7(1) and (2) for a review, the aim of which is the future possible
extension of the scope for mercury compounds, products containing mercury, import ban of mercury,
mercury compounds and products containing mercury. Amendments 3, 4, 5 and 7 were considered
redundant and are not part of the common position.

Disposal obligation (Article 2)

Article 2 lays down that metallic mercury from the three most relevant sources in the Community
would be disposed of in accordance with the Directive 2006/12/EC on waste.

Amendments 24, 31 and 6 were not accepted because the Council does not have any justification for
the proposed prioritization of one particular option for the storage of metallic mercury.

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Conditions of metallic mercury disposal (Articles 3 and 4)

Article 3 of the common position extends storage options for metallic mercury considered as waste for
deep, underground, hard rock formations. This extension includes both temporary and permanent solu-
tions. Articles 3 and 4 introduce additional safety requirements for the storage of metallic mercury and
specify application of existing relevant EC legislation to this aim.

The Council agrees with the Commission that the permanent storage of metallic mercury can be the safe
final disposal option under certain conditions and does not therefore follow amendments 23, 25, 26,
11, 12 and 15. However, research activities on safe disposal options for metallic mercury will be further
reviewed in accordance with Article 7(2).

Amendment 41 was not accepted by the Council since it weakens the safety requirements for storage of
metallic mercury. Pursuant to Article 2(g) of Directive 1999/31/EC on the landfill of waste, storage of
waste for disposal for a period of less than one year is not considered as landfill of waste. There is there-
fore no prohibition on the temporary storage of metallic mercury in liquid form as waste up to a period
of one year, including in installations for the production of chlorine, which are subject to the provisions
of Directive 96/61/EC (IPPC). The IPPC Directive governs the environmental permit for a facility and is
not sufficient to ensure the safety requirements for the storage of metallic mercury.

Article 4(3) is partly consistent with amendment 28 since it permits any final disposal activity only after
the adoption of requirements for facilities listed in Article 3(a) and (b) and acceptance criteria for
metallic mercury in Annexes I, II and III of the Landfill Directive.

Reporting and sanctions (Articles 5 and 6)

Amendments 47, 30, 32, 35, 37, 38, 39, 10, 13, 16 and 18 concerning a special fund for mercury
storage, extension and tightening of reporting obligations for Member States, companies and the
Commission, and awareness raising in Member States were not accepted because the Council considers
that the suggested requirements are disproportionate and would increase bureaucracy unnecessarily.

Amendments 34 and 17 on penalties applicable to infringements of the provisions of the Regulation are
taken up fully.

IV. CONCLUSIONS

The Council believes that the common position represents a balanced package that would respect the
objectives of the Regulation. It looks forward to constructive discussions with the European Parliament
with a view to the early adoption of the Regulation.