Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the second meeting of the Conference of the Parties to the Minamata Convention on Mercury with regard to the adoption of guidelines on the environmentally sound interim storage of mercury, other than waste mercury, referred to in its Article 10, paragraphs 2 and 3
Date: 2018-09-26
Institutions: Directorate-General for Environment, European Commission
Subjects: environmental impact, environmental protection, international conference, international convention, mercury, metal pollution, prevention of pollution, public health, storage

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   EUROPEAN COMMISSION  Brussels, 26.9.2018  COM(2018) 657 final 2018/0337 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the second meeting of the Conference of the Parties to the Minamata Convention on Mercury with regard to the adoption of guidelines on the environmentally sound interim storage of mercury, other than waste mercury, referred to in its Article 10, paragraphs 2 and 3  
 
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This  proposal  concerns  the  decision  establishing  the  position  to  be  taken,  on  the  Union's 
behalf, at the second meeting of the Conference of the Parties to the Minamata Convention on 
Mercury  in  connection  with  the  envisaged  adoption  of  guidelines  on  the  environmentally 
sound  interim  storage  of  mercury,  other  than  waste  mercury,  referred  to  in  Article  10, 
paragraphs 2 and 3 of that Convention.  

2. 

CONTEXT OF THE PROPOSAL. 

2.1. 

The Minamata Convention on Mercury 

The  Minamata  Convention  on  Mercury  ('the  Agreement’)  is  the  main  international  legal 
framework  aimed  at  protecting  human  health  and  the  environment  from  anthropogenic 
emissions and releases of mercury and mercury compounds to air, water and land.  

It addresses the whole life-cycle of mercury, from primary mercury mining to mercury waste 
disposal, including the interim storage of mercury, mixtures of mercury with other substances, 
including  alloys  of  mercury,  with  a  mercury  concentration  of  at  least  95%  per  weight 
('mercury mixtures'), and of six mercury compounds, including mercury (I) chloride, mercury 
(II)  oxide,  mercury  (II)  sulphate,  mercury  (II)  nitrate,  cinnabar  and  mercury  sulphide,  other 
than waste mercury. 

The Agreement entered into force on 16 August 2017. 
The European Union is a party to the Agreement1 as well as most Member States2. 

2.2. 

The Conference of the Parties   

The Conference of the Parties to the Agreement ('COP') performs the functions assigned to it 
by  the  Agreement  and,  to  that  end,  shall  consider  and  undertake  inter  alia  any  additional 
action that may be required for the achievement of the objectives of the Agreement, including 
the adoption of relevant guidelines. 

According  to  Article  28  of  the  Agreement  and  Decision  MC-1/1  on  Rules  of  Procedures 
adopted  by  the  COP  at  its  first  meeting  (24-29  September  2017),  each  Party  has  one  vote. 
However,  the  Union,  as  a  regional  economic  integration  organisation,  exercises  its  right  to 
vote,  on  matters  within  its  competence,  with  a  number  of  votes  equal  to  the  number  of  its 
Member States that are parties to the Agreement. The Union shall not exercise its right to vote 
if any of its Member States exercises its right to vote, and vice versa.  

2.3. 

The envisaged act of the Conference of the Parties  

On 19 November 2018, during its second meeting, the COP is to adopt guidelines regarding 
the environmentally sound interim storage of mercury, other than waste mercury, referred to 
in Article 10, paragraphs 2 and 3 of the Agreement (‘the envisaged act’). 

1 

2 

Council Decision (EU) 2017/939 of 11 May 2017 on the conclusion on behalf of the European Union of 
the Minamata Convention on Mercury (OJ L 142, 2.6.2017, p. 4).  
On 7 September 2018, twenty-two Member States had ratified the Minamata Convention on Mercury, 
i.e. Austria, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, 
Hungary, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Romania, Slovakia, Slovenia, 
Sweden and the United Kingdom. 

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The  purpose  of  the  envisaged  act  is  to  establish  guidelines  aimed  at  ensuring  the 
environmentally  sound  interim  storage  of  mercury,  mercury  mixtures,  and  of  six  mercury 
compounds (mercury (I) chloride, (II) oxide, (II) sulphate, (II) nitrate, suphide and cinnabar), 
other than waste mercury. In practice, the envisaged act is mainly relevant for the storage of 
liquid metallic mercury. 

Under Article 10, paragraphs 2 and 3 of the Agreement, the measures Parties shall undertake 
to  ensure  environmentally  sound  interim  storage  must  take  into  account  the  guidelines 
adopted by the COP.    

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The proposed position to be taken on the Union's behalf is to support, at the second meeting 
of the COP, the adoption of the envisaged act.  

The content of the envisaged act  is the outcome of the intersessional process launched by the 
COP  at  its  first  meeting  by  means  of  Decision  MC-1/183,  requesting  “the  secretariat  to 
undertake further revision of the draft guidelines” and to “submit the revised guidelines at its 
second meeting for consideration and possible adoption”. Experts from the Union contributed 
significantly to this process by providing submissions to the Secretariat in accordance with the 
timetable  set  out  in  Decision  MC-1/18.  The  resulting  draft  guidelines,  as  revised  by  that 
Secretariat, took on board comments received from EU experts and did not give rise to further 
EU  comments  as  the  guidelines  are  consistent  with  the  acquis,  including  Directive 
2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the control of 
major-accident hazards involving dangerous substances4, concerning larger stocks of mercury. 
Furthermore,  the  guidelines  include  the  recognition  that  they  may  be  applied  flexibly,  in 
particular regarding small stocks. 

The  proposed  position  is  consistent  with  EU  policy  and  legislation  on  mercury  as  the 
implementation  of  the  envisaged  act  by  Parties  to  the  Agreement  would  contribute  to  the 
reduction of mercury emissions and releases from interim storage, hence contributing to the 
protection of human health and of the environment, including within the Union.  

A Union position is needed as, once adopted, the Parties to the Agreement shall have to take 
such  guidelines  into  account  when  taking  measures  on  the  environmentally  sound  interim 
storage  of  mercury,  mercury  mixtures,  and  of  the  six  concerned  mercury  compounds,  other 
than waste mercury. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

3 

4 

Decision MC-1/18 Draft guidelines on the interim storage of mercury and mercury compounds referred 
to in paragraph 3 of article 10, Report of the Conference of the Parties to the Minamata Convention on 
Mercury on the work of its first meeting, UNEP/MC/COP1/29 of 22.11.2017.   
OJ L197, 24.07.2012, p.1 

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The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’5. 

4.1.2.  Application to the present case 

The COP is a body set up by an agreement, namely the Minamata Convention on Mercury. 

The  envisaged  act,  which  the  COP  is  called  upon  to  adopt,  constitutes  an  act  having  legal 
effects. The envisaged act has legal effects because Parties to the Agreement shall take it into 
account  when undertaking  measures to  ensure the environmentally  sound interim  storage of 
mercury, mercury mixtures, and of six mercury compounds (mercury (I) chloride, (II) oxide, 
(II) sulphate, (II) nitrate, suphide and cinnabar), other than waste mercury. 

The  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the 
Agreement. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union's  behalf.  If  the envisaged act  pursues  two  aims  or  has  two  components  and  if  one  of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The main objective and content of the envisaged act relate to environment. 

Therefore, the substantive legal basis of the proposed decision is Article 192(1) TFEU. 

4.3. 

Conclusion 

The legal basis of the proposed decision should be Article 192(1) TFEU, in conjunction with 
Article 218(9) TFEU. 

5 

Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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2018/0337 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union at the second meeting of the 
Conference of the Parties to the Minamata Convention on Mercury with regard to the 
adoption of guidelines on the environmentally sound interim storage of mercury, other 
than waste mercury, referred to in its Article 10, paragraphs 2 and 3 

THE COUNCIL OF THE EUROPEAN UNION 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 192(1), in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

6 

7 

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The  Minamata  Convention  on  Mercury6  (‘the  Agreement’)  was  concluded  by  the 
Union by Council Decision (EU) 2017/9397 and entered into force on 16 August 2017.  

Pursuant  to  Decision  MC-1/1  on  Rules  of  Procedures  adopted  by  the  Conference  of 
the Parties to the Agreement at its first meeting, the Parties shall make every effort to 
reach agreement on all matters of substance by consensus.  

The Conference of the Parties to the Agreement, during its second meeting on 19-23 
November 2018, is to adopt guidelines on the environmentally sound interim storage 
of mercury, other than waste mercury.  

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
the 
Conference  of 
environmentally  sound  interim  storage  of  mercury,  other  than  waste  mercury,  shall 
have legal effects since the Parties to the Agreement shall have to take such guidelines 
into account when undertaking measures on interim storage.  

these  guidelines  on 

the  Agreement,  as 

the  Parties 

to 

The Union contributed to the revision of the draft guidelines on environmentally sound 
interim  storage  in  the  framework  of  the  intersessional  expert  work  launched  by 
Decision MC-1/188 adopted by the Conference of the Parties to the Agreement at its 
first meeting; whereas the Union did not consider there was a need to propose further 
amendments to the draft revised guidelines resulting from this intersessional work. 

of 

copy 

Convention 

the  Minamata 

Certified 
https://treaties.un.org/doc/Treaties/2013/10/20131010%2011-16%20AM/CTC-XXVII-17.pdf 
Council Decision (EU) 2017/939 of 11 May 2017 on the conclusion on behalf of the European Union of 
the Minamata Convention on Mercury (OJ L 142, 2.6.2017, p. 4).  
Decision MC-1/18 Draft guidelines on the interim storage of mercury and mercury compounds referred 
to in paragraph 3 of article 10, Report of the Conference of the Parties to the Minamata Convention on 
Mercury on the work of its first meeting, UNEP/MC/COP1/29 of 22.11.2017.   

on  Mercury 

available 

at: 

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(6) 

The  proposed  guidelines  on  the  environmentally  sound  interim  storage  of  mercury, 
other than mercury waste, should therefore be supported. 

HAS ADOPTED THIS DECISION: 

Article 1 

The position to be taken on the Union's behalf in the second meeting of the Conference of the 
Parties to the Agreement shall be the following: 

The European Union shall support, at the second meeting of the Conference of the Parties to 
the  Agreement,  the  adoption  of  guidelines  on  the  environmentally  sound  interim  storage  of 
mercury,  other  than  waste  mercury,  referred  to  in  Article  10,  paragraphs  2  and  3  of  the 
Agreement.   

Minor changes to the documents referred to in the first sub-paragraph may be agreed to by the 
representatives of the Union without further decision of the Council.  

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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