Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on 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
Date: 2008-01-29
Institutions: European Commission
Subjects: exchange of information, export restriction, industrial pollution, mercury, metal pollution, pollution control measures, storage

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 29.1.2008 
COM(2008) 44 final 

2006/0206(COD) 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the 
common position of the Council on 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 

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 1 

BACKGROUND 

Date of transmission of the proposal to the EP and the Council 
(document COM(2006)636 final – 2006/0206COD): 

26 October 2006 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

25 April 2007 

Date of the opinion of the European Parliament, first reading: 

20 June 2007 

Date of adoption of the common position (by unanimity): 

20 December 2007 

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OBJECTIVE OF THE COMMISSION PROPOSAL 

The  aim  of  the  proposal  is  to  implement  actions  5  (phase  out  of  mercury  exports)  and  9 
(storage  of  surplus  mercury  from  the  chlor-alkali  industry)  of  the  Mercury  Strategy,  COM 
(2005)20  of  28  January  2005.  It  is  one  part  of  a  broader  package  of  legislative  and  non-
legislative actions under the Strategy. 

The Commission Proposal contains two specific measures relating to mercury: 

- banning of exports of metallic mercury and  

-  introducing  a  storage  obligation  for  metallic  mercury  from  three  industrial  sources  (chlor-
alkali  industry,  non-ferrous  metal  production,  natural  gas  cleaning),  covering  the  options  of 
temporary storage as well as of final disposal. 

An information exchange mechanism and reporting obligations complement these provisions. 
The  information  exchange  shall  ensure  that  potential  emerging  needs  for  further  legislative 
steps can be identified in due time. 

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3.1 

COMMENTS ON THE COMMON POSITION 

General comments 

The Commission accepted in full, in part or in principle 8 of the 40 amendments adopted by 
the  European  Parliament  in  its  first  reading.  2  amendments  have  now  been  incorporated, 
either verbatim or in spirit, in the common position. 

The Commission accepted the amendments introducing a provision on penalties, amendments 
relating  to  an  expansion  of  the  information  exchange  and  amendments  bringing  minor 
changes  in  wording  to  the  recitals.  The  Commission  did  not  accept  the  amendments  which 
changed  the  legal  base  of  the  Proposal,  expanded  its  scope,  changed  the  date  for  entry  into 
effect  of  the  export  ban,  limited  the  storage  of  metallic  mercury  to  temporary  storage  only, 
sought granting preferential treatment for the Almadén site and introduced support measures 
for developing countries and NGOs. 

The  Council  has  agreed  to  incorporate,  with  a  slightly  different  wording,  the  Parliamentary 
amendments introducing a provision on penalties. 

The Commission considers that the common position does not alter the approach or aims of 
the Proposal and can thus support it as it stands. 

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3.2 

Detailed comments 

3.2.1 

Parliamentary amendments accepted by the Commission and incorporated in full, in 
part or in principle in the common position 

Amendments 17 and 34 have been incorporated, with slightly different wording. They add an 
Article on penalties and a corresponding recital to the original Proposal. 

3.2.2 

Parliamentary amendments rejected by the Commission but incorporated in full, in 
part or in principle in the common position 

No amendment rejected by the Commission has been incorporated in the common position. 

3.2.3 

Parliamentary  amendments  rejected  by  the  Commission  and  the  Council  and  not 
incorporated in the common position 

The  majority  of  the  parliamentary  amendments  were  rejected  by  both  institutions  and  not 
incorporated. 

Amendments  1,  7,  8,  9,  10,  16,  20,  22,  33  and  50  were  rejected  since  they  imply  a 
considerable extension of the scope of the Regulation (export ban for mercury compounds and 
mercury containing products, import ban). The Commission's impact assessment on the initial 
proposal did not allow to justify the need or opportunity of such an extension.  

Amendments 2 and 19 were rejected as they change the legal base of the Proposal. 

Amendments  6,  24  and  36  were  rejected  as  they  imply  a  preferential  treatment  for  a  single 
storage  site  (Almadén)  and  compensation  measures  for  former  mines.  The  choice  of 
individual  storage  sites  should  be  left  to  the  economic  operators.  The  Regulation  is  not  a 
financial  instrument  and  support  measures,  if  and  where  needed,  should  be  dealt  with  in  a 
different context. 

Amendment  11  was  rejected  as  a  reference  to  a  PARCOM  Decision  on  the  phase  out  of 
mercury  cell  technology  in  the  chlor-alkali  industry  is  irrelevant  for  the  content  of  the 
Regulation. 

Amendments 12, 15, 25, 26, 28 and 47 were rejected as they imply a restriction to temporary 
storage alone, excluding the possibility of final disposal. The Commission sees final disposal 
of metallic mercury as perfectly feasible, under the condition of strict safety rules.  

Amendments  16  and  35  were  rejected  as  there  is  no  need  for  specific  provisions  on  public 
information  and  awareness  raising.  The  risk  associated  with  mercury  are  widely  publicised 
and all relevant information on Community actions is easily available on the internet. 

Amendments 18, 38 and 39 were rejected as technical and financial assistance to developing 
countries  and/or  to  NGOs  active  in  the  field  of  mercury  go  far  beyond  the  scope  of  the 
Regulation. The Regulation is not a financial instrument. 

Amendments  13,  30  and  32  were  rejected  as  they  introduce  very  complex  and  burdensome 
reporting requirements that are disproportional to the real information needs. 

Amendment 37 was rejected as the proposed date is too early. 

Amendment 41 was rejected as it is unnecessary, as IPPC permitting covers the issue already. 

3.2.4  Parliamentary amendments accepted in full, in part or in principle by the Commission 
but not incorporated in the common position 

Amendments 3, 4, 5, 14, 23 and 31 were accepted in part or in principle by the Commission 
but not incorporated. They predominantly concern minor changes in the recitals.  

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3.2.5  Additional changes made by the Council to the Proposal 

In Article 3, a new option for the temporary or permanent storage of metallic mercury in deep 
underground hard rock formations has been introduced.  

In Article 4, a new paragraph 3 has been introduced, stipulating the development of technical 
criteria for the storage of metallic mercury under comitology before the entry into force of the 
export ban. 

In  Article  5,  specific  reporting  requirements  for  importers,  exporters  and  storage  operators 
have been introduced.  

Article  7  has  been  re-written  and  now  contains  both  the  information  exchange,  revised  and 
extended reporting obligations for the Commission and a revision clause. 

In Article 8, a specific reference to export restrictions at Member State level has been added. 

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CONCLUSION 

The changes introduced by the Council are acceptable to the Commission as they are limited 
to tightening the safety conditions for the storage of mercury and to an increase in reporting 
requirements. They do not extend the scope of the Proposal. Therefore the Commission can 
accept the Common Position.  

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