RECOMMENDATION FROM THE COMMISSION TO THE COUNCIL to amend Council Decision of 26 July 2010 on the participation of the European Union in negotiations of amendments to the 1998 Protocol on Heavy Metals to the 1979 Convention on Long-range Transboundary Air Pollution
Date: 2011-03-11
Institutions: European Commission
Subjects: air quality, environmental policy, metal pollution, pollution control measures, protocol to an agreement, transfrontier pollution

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EUROPEAN COMMISSION 

Brussels, 11.3.2011 
SEC(2011) 304 final 

RECOMMENDATION FROM THE COMMISSION TO THE COUNCIL 

to amend Council Decision of 26 July 2010 on the participation of the European Union 
in negotiations of amendments to the 1998 Protocol on Heavy Metals to the 1979 
Convention on Long-range Transboundary Air Pollution 

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A. 

EXPLANATORY MEMORANDUM 

1. 

OBJECTIVES 

The objective of this Recommendation is to amend the Council Decision of 26 July 
2010  on  the  participation  of  the  European  Union  in  negotiations  of  amendments  to 
the  1998  Protocol  on  Heavy  Metals  to  the  1979  Convention  on  Long-Range 
Transboundary  Air  Pollution  (hereafter:  the  Council  Decision)  in  view  of  the 
decision of the Convention's Executive Body in December 2010 to broaden the scope 
of the negotiations to include mercury containing products and adjust the timing for 
the finalisation of the negotiations. 

2. 

GENERAL CONTEXT 

The  European  Union  is  a  Party  to  the  UN-ECE  Convention  on  Long-Range 
Transboundary Air Pollution (hereinafter: the Convention) since 15 July 1982 and to 
the  Protocol  on  Heavy  Metals  (hereinafter:  the  Protocol)  since  3  May  2001.  The 
Protocol sets obligations for the Parties that aim at reducing air emissions of heavy 
metals, in particular for cadmium, lead and mercury.  

The  Executive  Body  of  the  Convention  in  December  2009  decided  to  revise  the 
Protocol with the aim of facilitating for non-parties to accede to an amended Protocol 
and mandated the Working Group on Strategies and Review (hereinafter: WGSR) to 
start negotiations. At that time negotiations on mercury containing products (Annex 
VI  and  VII)  were  excluded  from  the  mandate  awaiting  further  information  on 
progress in the recently opened negotiations under UNEP on a global legally binding 
instrument for mercury. The WGSR was mandated to aim at concluding negotiations 
by the end of 2011.  

On 26 July 2010, the Council authorised the Commission to participate on behalf of 
the EU in the negotiations of the revision of the Protocol. The Council Decision was 
adopted in view of the mandate given to the WGSR in December 2009 and therefore 
does  not  include  an  authorisation  to  negotiate  obligations  on  mercury  containing 
products  (described  in  Annex  VI  and  VII).  In  this  respect,  the  Council  Decision  in 
Article  1  Paragraph  4  stipulates  that  the  Council  may,  in  any  case,  consider 
reviewing  the  negotiating  directives,  should  the  Executive  Body  decide  to  broaden 
the mandate to amend Annex VI, including consequential changes to other parts of 
the Protocol and its Annexes. 

Furthermore,  the  Commission  was  authorised  to  participate  on  behalf  of  the  EU  in 
the  negotiations  until  the  end  of  2011,  in  accordance  with  the  original  plan  of  the 
negotiations under the Convention.  

3. 

RECENT DEVELOPMENTS 
On  17  December  20101  the  Executive  Body  of  the  Convention  decided  to  broaden 
the scope of negotiations to include also aspects of mercury containing products (i.e. 
Annex  VI and VII)  and  consequential changes to the other parts of the Protocol. It 
further mandated the WGSR to continue negotiations with the view of finalizing the 
discussions  and  presenting  proposed  amendments  to  the  Protocol  in  2012  at  the 

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Report of the twenty-eight session of the Executive Body of the Convention (Section VI B) 

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latest. The main reason for broadening the scope was the positive signals from some 
non-Parties, in particular Belorussia and the Russian Federation, that amendments of 
Annex VI and VII would be important for these countries to accede to an amended 
Protocol.  In  the  light  of  Article  1  Paragraph  4  of  the  Council  Decision  and  in 
accordance  with  Article  218  (3)  of  the  Treaty  on  the  Functioning  of  the  European 
Union, it is necessary for the Commission to make recommendations to the Council 
which shall authorize the Commission to participate in the negotiations on behalf of 
the  EU  also  on  the  above  mentioned  additional  elements.  At  the  same  time  the 
Recommendation proposes to adjust the time frame of the authorization in order to 
enable the Commission to participate in the negotiations until the end of 2012.  

4. 

EXISTING UNION'S PROVISIONS 

The subject matter of Annexes VI (product measures) and VII (product management) 
is  covered  by  EU  legislation.  This  includes  Directive  98/70/EC  of  the  European 
Parliament and of the Council of 13 October 1998 relating to the quality of petrol and 
diesel  fuels2  and  Directive  2006/66/EC  on  batteries  and  accumulators  and  waste 
batteries and accumulators3 (as amended by Directive 2008/103/EC4).  

Product  management  measures  now  listed  in  Annex  VII  are  covered  inter  alia  by 
Regulation  1103/20105  on  the  labeling  of  batteries,  Directive  2002/95/EC  on 
restriction  of  the  use  of  certain  hazardous  substances  in  electrical  and  electronic 
equipment6,  Directive  2002/96/EC  on  waste  electrical  and  electronic  equipment 
(WEEE)7  and  Directive  2007/51/EC  relating  to  restrictions  on  the  marketing  of 
certain measuring devices containing mercury8.  

B. 

RECOMMENDATION 

In  the  light  of  the  above,  the  Commission  recommends  amending  the  Council  Decision  as 
follows:  

(a) 

(b) 

In Article 1 Paragraph 1, the words '2010 and 2011' are replaced by '2011 and 2012';  

Article 1 Paragraph 4 is replaced by the following: 

'4. The Council may review the content of the negotiating directives at any time. The 
Council may, in particular, consider reviewing them in case of relevant developments 
during 2011 and 2012. To this effect, the Commission shall report to the Council on 
the outcome of the negotiations at regular intervals.' 

(c) 

Point 1 of the Negotiating Directives set out in the Annex to the Council Decision is 
replaced by the following:  

'1.  In  the  negotiation  process  under  the  auspices  of  the  UNECE,  the  Commission 
shall  endeavour  to  ensure  the  objectives  falling  within  the  scope  of  the  mandate 
given by the Executive Body of the Convention on Long-Range Transboundary Air 

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OJ L 350 , 28.12.1998 p. 58  
OJ L 266, 26.9.2006, p. 1 
OJ L 327, 5.12.2008, p. 7 
OJ L 313 30.11.2010, p 3 
OJ L 37, 13.2.2003, p. 19 
OJ L 37, 13.2.2003, p. 24 
OJ L 257, 3.10.2007, p.13 

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Pollution to the Working Group on Strategies and Review (WGSR) on 17 December 
2010, that is:  

"(a)  To  continue  negotiations  with  the  view  of  finalizing  the  discussions  and 
presenting  proposed  amendments  to  the  Protocol  on  Heavy  Metals  at  the  thirtieth 
session of the Executive Body in 2012 at the latest. It requested the Working Group 
to  consider  potential  revisions  to  the  Protocol  on  Heavy  Metals  that  fall  within  the 
following scope:  

As  a  first  priority  for  any  revision  possibilities  for  increasing 
(i) 
ratifications  of  the  Protocol  taking  into  consideration  possible  options  put 
forward by the Task Force on Heavy Metals;  

Potential  revisions  to  the  text  of  the  Protocol  and  annexes  I  to  VII, 
(ii) 
taking  into  consideration  possible  options  put  forward  by  the  Task  Force  on 
Heavy Metals as well as the relevant adopted amendments to the Protocol on 
POPs and the proposed amendments to the Gothenburg Protocol, provided that 
such  revisions  would  not  make  it  more  difficult  to  achieve  increased 
ratifications;  

Possibilities 

(iii) 
future 
developments by producing a guidance document on best available techniques 
extracted from annex III and updated as appropriate". 

the  Protocol  more  adaptable 

to  make 

to 

(b)  To focus the negotiations, as requested in 2011,on those proposed amendments 
aimed at increasing ratifications and that address issues raised also in the revision of 
the Gothenburg Protocol. 

(c)  To  be  mindful  of  the  work  of  the  Intergovernmental  Negotiating  Committee, 
under  the  auspices  of  the  United  Nations  Environment  Program,  when  considering 
proposals  for  amendments  to  Annexes  VI  and  VII  regarding  mercury  containing 
products  (based  on  the  proposal  by  the  European  Union  and  the  work  of  the  Task 
Force on Heavy Metals) given that this Intergovernmental Negotiating Committee is 
working  towards  a  legally-binding  global  instrument  to  address  mercury  including 
mercury containing products.' 

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