Regulation (EC) No 1102/2008 of the European Parliament and of the Council of 22 October 2008 on the banning of exports of metallic mercury and certain mercury compounds and mixtures and the safe storage of metallic mercury (Text with EEA relevance)
Date: 2008-10-22
Institutions: Council of the European Union, European Parliament
Subjects: EU environmental policy, export restriction, mercury, metal pollution, pollution control measures, storage

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REGULATION (EC) No 1102/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 22 October 2008

on the banning of exports of metallic mercury and certain mercury compounds and mixtures and the
safe storage of metallic mercury

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

mechanism should continue in order to allow the areas
affected to find viable solutions for local environment,
employment and economic activities.

(5)

(6)

(7)

Having regard to the Treaty establishing the European Commu-
nity, 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 laid down in Article 251
of the Treaty (2),

Whereas:

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

(2)

In accordance with the Communication from the Commis-
sion to the Council and the European Parliament entitled
‘Community Strategy Concerning Mercury’, the Council
conclusions of 24 June 2005 and the European Parliament's
resolution of 14 March 2006 (3) on the aforementioned
strategy, 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.

(8)

(4)

Environmental and social problems arise from the closure
of mercury mines in the Community. The support of
projects and other initiatives from the available funding

(1) OJ C 168, 20.7.2007, p. 44.
(2) Opinion of the European Parliament of 20 June 2007 (OJ C 146 E,
12.6.2008, p. 209), Council Common Position of 20 December
2007 (OJ C 52 E, 26.2.2008, p. 1) and Position of the European
Parliament of 21 May 2008 (not yet published in the Official
Journal). Council Decision of 25 September 2008.

(3) OJ C 291 E, 30.11.2006, p. 128.

The export of metallic mercury, cinnabar ore, mercury (I)
chloride, mercury (II) oxide and mixtures of metallic
mercury with other substances, including alloys of mercury,
with a mercury concentration of at least 95 % weight by
weight 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.

it

is considered as waste,

In order to provide for possibilities of safe storage of
metallic mercury that
is
appropriate to derogate from Article 5(3)(a) of Council
Directive 1999/31/EC of 26 April 1999 on the landfill of
waste (4) for certain types of landfill, and to declare the
criteria set out in 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 (5)
temporary
storage of metallic mercury for more than one year in
above-ground facilities dedicated to and equipped for this
purpose.

inapplicable

retrievable

for

storage facilities

for metallic mercury that

The other provisions of Directive 1999/31/EC should apply
is
to all
considered as waste. This includes the requirement, set
out in Article 8(a)(iv) of that Directive, that the applicant for
a permit make adequate provision, by way of a financial
security or any other equivalent,
the
obligations (including after-care provision) arising under
the permit are discharged and that the closure procedures
are followed. Furthermore, Directive 2004/35/EC of the
European Parliament and of the Council of 21 April 2004
on environmental liability with regard to the prevention
and remedying of environmental damage (6) applies to such
storage facilities.

to ensure that

(4) OJ L 182, 16.7.1999, p. 1.
(5) OJ L 11, 16.1.2003, p. 27.
(6) OJ L 143, 30.4.2004, p. 56.

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(9)

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 (1) should apply.

the Member States concerned to facilitate enforcement of
this Regulation. The industry sectors that gain mercury
from the cleaning of natural gas or as a by-product from
non-ferrous mining and smelting operations should also
provide the Commission and the competent authorities of
the Member States concerned with relevant data. The
Commission should make this information publicly avail-
able.

(10) This Regulation should be without prejudice to Regulation
(EC) No 1013/2006 of the European Parliament and of the
Council of 14 June 2006 on shipments of waste (2).
in order to allow appropriate disposal of
Nevertheless,
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 Article 11(1)(a) of that
Regulation. It is noted that, according to Article 11(3)
in the case of hazardous waste produced in a
thereof,
Member State of dispatch in such a small quantity overall
per year that the provision of new specialised disposal
installations within that Member State would be uneco-
nomic, Article 11(1)(a) thereof shall not apply.

(11)

the safety assessment

In order to ensure storage that is safe for human health and
the environment,
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 underground,
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 to Directive 1999/31/EC, when they are
amended for the purpose of this Regulation.

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

(14) Member States should submit

information on permits
issued for storage facilities as well as on the application and
the market effects of this Regulation, in order to allow for
an assessment thereof in due time. Importers, exporters and
operators should submit information on movements and
use of metallic mercury, cinnabar ore, mercury (I) chloride,
mercury (II) oxide and mixtures of metallic mercury with
including alloys of mercury, with a
other substances,
mercury concentration of at least 95 % weight by weight.

(15) 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.

(16)

It is appropriate to organise an exchange of information
with relevant stakeholders in order to assess the potential
need for supplementary measures related to export, 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.

technical

(17) The Commission and the Member States should encourage
the provision of
to developing
countries and countries with economies in transition,
especially assistance which facilitates the shift
towards
alternative mercury-free technologies and the eventual
phase-out of uses and releases of mercury and mercury
compounds.

assistance

(18) Research is ongoing on the safe disposal of mercury,
including the 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.

(13) The chlor-alkali

industry should send all relevant data
related to the decommissioning of mercury cells in their
plants to the Commission and the competent authorities of

(1) OJ L 10, 14.1.1997, p. 13.
(2) OJ L 190, 12.7.2006, p. 1.

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

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concerning mercury supply and demand,

(20) The Commission should also follow international develop-
ments
in
particular multilateral negotiations, and report on these in
order to enable the consistency of the overall approach to
be assessed.

(21) The measures necessary for

the application of

this
Regulation 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.

(22) Since the objective of this Regulation, namely to reduce 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 functioning of the
internal market as well as the trans-boundary nature of
mercury pollution, be better achieved at Community level,
the Community may 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 that objective,

HAVE ADOPTED THIS REGULATION:

Article 1

1. The export of metallic mercury (Hg, CAS RN 7439-97-6),
cinnabar ore, mercury (I) chloride (Hg2Cl2, CAS RN 10112-91-
1), mercury (II) oxide (HgO, CAS RN 21908-53-2) and mixtures
of metallic mercury with other substances, including alloys of
mercury, with a mercury concentration of at least 95 % weight
by weight
from the Community shall be prohibited from
15 March 2011.

the European Parliament and of the Council of 5 April 2006 on
waste (1)
is safe for human health and the
environment:

in a way that

(a) metallic mercury that is no longer used in the chlor-alkali

industry;

(b) metallic mercury gained from the cleaning of natural gas;

(c) metallic mercury gained from non-ferrous mining and

smelting operations; and

(d) metallic mercury extracted from cinnabar ore in the

Community as from 15 March 2011.

Article 3

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

(a)

(b)

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

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).

2. Directive 96/82/EC shall apply to storages as referred to in
paragraph 1(b) of this Article.

2. The prohibition shall not apply to exports of compounds
referred to in paragraph 1 for research and development, medical
or analysis purposes.

Article 4

3. The mixing of metallic mercury with other substances for
the sole purpose of export of metallic mercury shall be
prohibited from 15 March 2011.

Article 2

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

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

From 15 March 2011, the following shall be considered as waste
and be disposed of in accordance with Directive 2006/12/EC of

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

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3. The requirements for facilities referred to in Article 3(1)(a)
and (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 in accordance with the procedure
referred to in Article 16 of that Directive. The Commission shall
make an appropriate proposal as soon as possible, and at the
latest by 1 January 2010, taking into account the outcome of the
exchange of information pursuant to Article 8(1) and the report
on research on safe disposal options pursuant to Article 8(2).

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.

(c)

amount of waste mercury sent to individual temporary or
permanent storage facilities, location and contact details of
these facilities.

2. The companies concerned in the industry sectors that gain
mercury from the cleaning of natural gas or as a by-product from
non-ferrous mining and smelting operations shall send the
following data related to mercury gained in a given year to the
Commission and the competent authorities of the Member States
concerned:

(a)

amount of mercury gained;

Article 5

(b)

amount of mercury sent
temporary or
permanent storage facilities as well as location and contact
details of these facilities.

to individual

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), accompanied by the respective safety assessment
pursuant to Article 4(1) of this Regulation.

2. By 1 July 2012, Member States shall inform the Commission
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.

3. By 1 July 2012,
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:

3. The companies concerned shall send the data referred to in
paragraphs 1 and 2, as applicable,
time by
4 December 2009, and thereafter each year by 31 May.

the first

for

the European Parliament and of

4. The Commission shall make the information in paragraph 3
publicly available in accordance with Regulation (EC) No 1367/
2006 of
the Council of
6 September 2006 on the application of the provisions of the
Aarhus Convention on Access to Information, Public Participa-
tion in Decision-making and Access to Justice in Environmental
Matters to Community institutions and bodies (1).

Article 7

(a)

(b)

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

volumes, originating country and destination country of
metallic mercury considered as waste that is traded cross-
border within the Community.

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 4 December 2009 and shall notify it without
delay of any subsequent amendment affecting them.

Article 6

Article 8

1. The companies concerned in the chlor-alkali industry shall
send the following data related to the decommissioning of
mercury in a given year to the Commission and the competent
authorities of the Member States concerned:

1. The Commission shall organise an exchange of information
between the Member States and the relevant stakeholders by
in
1 January 2010. This exchange of
particular, examine the need for:

information shall,

(a)

best estimate of total amount of mercury still in use in
chlor-alkali cell;

(a)

extending the export ban to other mercury compounds,
mixtures with a lower mercury content and products
containing mercury,
in particular thermometers, barom-
eters and sphygmomanometers;

(b)

total amount of mercury stored in the facility;

(1) OJ L 264, 25.9.2006, p. 13.

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(b)

(c)

(d)

an import ban of metallic mercury, mercury compounds
and products containing mercury;

extending the storage obligation to metallic mercury from
other sources;

time limits concerning temporary storage of metallic
mercury.

This exchange of information shall also consider the research on
safe disposal options.

The Commission shall organise further exchanges of information
when new relevant information has become available.

4. The Commission shall as soon as possible, but not later than
15 March 2013, submit to the European Parliament and the
Council a report, if appropriate accompanied by a proposal for a
revision of this Regulation, which shall reflect and evaluate the
outcome of the information exchange referred to in paragraph 1
and of the assessment referred to in paragraph 3, as well as the
report referred to in paragraph 2.

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 specified in
this Regulation with international developments.

Article 9

2. The Commission shall keep under review ongoing research
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 January 2010. On the
basis of this report, the Commission shall, if appropriate, present
a proposal for a revision of this Regulation as soon as possible
and not later than 15 March 2013.

Until 15 March 2011, Member States may maintain national
measures restricting the export of metallic mercury, cinnabar ore,
mercury (I) chloride, mercury (II) oxide and mixtures of metallic
mercury with other substances, including alloys of mercury, with
a mercury concentration of at least 95 % weight by weight which
were adopted in line with Community legislation before
22 October 2008.

3. The Commission shall assess the application and market
effects of this Regulation in the Community, taking into account
the information referred to in paragraphs 1 and 2 and in
Articles 5 and 6.

Article 10

This Regulation shall enter into force on the 20th day following
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 Strasbourg, 22 October 2008.

For the European Parliament

The President

H.-G. PÖTTERING

For the Council

The President

J.-P. JOUYET