Recommendation from the Commission to the Council on the participation of the European Community in negotiations towards a legally binding instrument on mercury further to Decision 24/3 of the Governing Council of the United Nations environment programme (UNEP)
Date: 2008-02-12
Institutions: European Commission
Subjects: UN Environment Programme, action programme, environmental protection, marketing restriction, mercury, public health

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 12.2.2008 
COM(2008) 70 final 

RECOMMENDATION FROM THE COMMISSION TO THE COUNCIL 

on the participation of the European Community in negotiations towards a legally 
binding instrument on mercury further to Decision 24/3 of the Governing Council of the 
United Nations Environment Programme (UNEP)  

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A. EXPLANATORY MEMORANDUM 

1. 

OBJECTIVES 

The objective of the Recommendation is to ensure a reliable, consistent and efficient 
negotiation  position  of  the  Community  in  the  upcoming  process  launched  by  the 
Governing  Council  of  United  Nations  Environment  Programme  (UNEP)  at  its  24th 
session  (Decision  24/3  on  chemicals  management),  with  a  view  to  adopt  an 
international legally binding instrument on mercury. 

2. 

GENERAL CONTEXT 

UNEP  recognised  already  in  2003  that  there  was  sufficient  evidence  of  significant 
global  adverse  impacts  from  mercury  and  its  compounds  to  warrant  further 
international action to reduce the risk to human health and the environment from the 
release of mercury and its compounds to the environment. The Decision, establishing 
a  "Programme  for  international  action  on  mercury",  did  however  not  call  for  any 
legally binding action on mercury at the global level. 
The 23rd Governing Council (GC) Session adopted Decision 23/9 which left it to the 
next  Session  to  assess  "the  need  for  further  action  on  mercury,  considering  a  full 
range  of  options,  including  the  possibility  of  a  legally  binding  instrument, 
partnerships and other actions". 
The 24th Session of the UNEP GC re-launched the debate on the need for a legally 
binding instrument at the international level. No agreement could be found yet. The 
GC  decided  however  on  a  list  of  priority  issues,  including  the  reduction  of  global 
mercury demand and supply, and put in place an ad hoc open-ended working group 
(AHOEWG) mandated to examine, for each of the priorities, the range of available 
response  measures  and  strategies,  the  feasibility  and  effectiveness  of  voluntary  and 
legally binding approaches, implementation options and cost and benefits of response 
measures and strategies1. 

The ad-hoc open ended working group is scheduled to meet twice, once before the 
10th  Special  Session  of  the  UNEP  GC,  in  the  week  of  12  November  2007,  and  a 
second time between that Special Session and the 25th regular UNEP GC scheduled 
for February 2009. The group is mandated to provide a progress report to the Special 
Session and a final report presenting options and consensus recommendations to GC 
25. 
On EU level, the Commission adopted its Community Strategy Concerning Mercury2 
in 2005. Action 5 of the Strategy reads: "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  phase  out  the 
export of mercury from the Community by 2011". Action 20 stipulates that "to reduce 
mercury supply internationally, the Community should advocate a global phase-out 
of  primary  production  and  encourage  other  countries  to  stop  surpluses  re-entering 
the  market".  In  reaction  to  the  Strategy,  the  Council,  in  its  Resolution  of  16  June 
2005  underlined  the  importance  of  this  action,  but  also  stated  that  it  "will  not  be 

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UNEP GC Decision 24/3 of 9 February 2007 
COM(2005)20 final, 28.1.2005 

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sufficient to protect human  health  and the environment from  the negative  effects of 
the  mercury  released  into  the  environment"  and  that  therefore  "an  international 
commitment  is  needed  in  addition,  with  a  view  to  agreeing  on  a  legally  binding 
instrument". 
This continued to be the EU position during the 24th Session of the UNEP Governing 
Council (5-9 February 2007). There was some support for legally binding regulation 
on  mercury  at  the  global  level  from  African  and  South  American  countries,  but 
others  like  the  USA,  Canada,  China  and  India  refused  to  commit  towards  a  LBI 
approach, at least for the time being. 

It  is  therefore  evident  that  the  four-step  structure  now  put  in  place  by  UNEP,  as 
described  above,  will  be  decisive  for  the  commitment  of  the  international 
Community  towards  further  action  by  means  of  a  LBI,  or  by  giving  preference  to 
other instruments. Even if the group is not formally designed as a negotiation body, it 
is evident from the last GC meetings that, as a matter of fact, it will work very much 
like  an  international  negotiation  committee  in  its  first  phase  of  work.  The 
Community's  ambition  to  come  to  a  global  legally  binding  instrument  on  mercury 
needs therefore to be brought forward and supported in a consistent and convincing 
way. Enhanced co-operation ensuring a high quality input into the process will be of 
high importance. 

3. 

EXISTING COMMUNITY PROVISIONS 

Mercury is a substance already regulated to a large extent by existing legislation at 
Community  level.  The  mercury  related  acquis  consists  of  some  ten  Directives  and 
Decisions  limiting  the  content  of  mercury  in  certain  products,  from  cosmetics  to 
batteries,  or  restricting  the  marketing  and  use  of  mercury  containing  products.  An 
overview list of mercury related Community legislation is given in chapter 5.3 of the 
Impact  Assessment  accompanying  the  recent  proposal  of  a  Regulation  on  the 
banning  of  exports  and  the  safe  storage  of  metallic  mercury3.  Another  important 
piece  of  Community  legislation  still  in  the  legislative  process  is  the  Proposal  for  a 
Directive  relating  to  restrictions  on  the  marketing  of  certain  measuring  devices 
containing  mercury4.  This  Proposal,  as  well  as  the  Mercury  Strategy  itself,  is 
complemented by an Impact Assessment. 

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COM(2006)636 final, 26.10.2006 
COM(2006)69 final, 21.2.2006 

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In the light of the above, the Commission recommends: 

B. RECOMMENDATION 

a) 
that the Council authorizes the Commission to participate, on behalf of the European 
Community, on matters falling under Community competence, in the negotiations towards a 
legally binding instrument on mercury further to UNEP GC Decision 24/3, starting with the 
ad-hoc open ended working group established under this Decision; 

b) 
that the Council authorizes the Commission to conduct these negotiations on behalf of 
the  European  Community,  in  consultation  with  the  special  committee  designated  by  the 
Council in accordance with the negotiating directives set out in the Annex; 

c) 
that, when the negotiations deal with matters falling within the shared competence of 
the  Community  and  of  the  Member  States,  the  Commission  and  the  Member  States  should 
cooperate  closely  during  the  negotiation  process,  with  a  view  to  aiming  for  unity  in  the 
international representation of the European Community. 

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ANNEX  

Negotiating Directives 

1.  In  the  assessment  and  negotiation  process  under  the  auspices  of  UNEP  the  Commission 
will ensure that the full range of measures and available options for a global risk management 
of  mercury  are  considered,  with  a  particular  attention  on  primary  mercury  production, 
restrictions  in  the  trade  of  metallic  mercury,  products  containing  mercury  and  the  use  of 
mercury  in  the  chlor-alkali  industry.  The  Commission  will  aim  for  the  early  adoption  of 
suitable legally binding measures covering these items and the relevant players on the world 
market. 

2. The Commission shall ensure that the provisions  of  the  future  legally  binding  instrument 
are consistent with relevant Community legislation, with international commitments and with 
the  objectives  of  Community  policies,  in  particular  of  the  Community  Strategy  Concerning 
Mercury. 

3. The Commission shall ensure that the draft legally binding instrument on mercury contains 
appropriate provisions enabling the Community to become a Contracting Party thereto. 

4. The Commission shall report to the Council on the outcome of the negotiations and, where 
appropriate, on any problem that may arise during the negotiation. 

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