Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the Conference of the Parties as regards amendments of Annex III to the Rotterdam Convention on the Prior Informed Consent Procedure for certain hazardous chemicals and pesticides in international trade
Date: 2019-02-06
Institutions: Directorate-General for Environment, European Commission
Subjects: chemical product, dangerous substance, environmental protection, export, import, international trade, pesticide, public health, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 6.2.2019  COM(2019) 54 final 2019/0026 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the Conference of the Parties as regards amendments of Annex III to the Rotterdam Convention on the Prior Informed Consent Procedure for certain hazardous chemicals and pesticides in international trade  
 
 
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  Conference  of  the  Parties  to  the  Rotterdam  Convention  in  connection  with  the 
envisaged  adoption  of  decisions  to  list  further  chemicals  in  Annex  III  to  the  Rotterdam 
Convention. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Rotterdam Convention 

The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous 
Chemicals  and  Pesticides  in  International  Trade  (‘the  Convention’)  aims  to  promote  shared 
responsibility  and  cooperative  efforts  among  Parties  in  the  international  trade  of  hazardous 
chemicals,  in  order  to  protect  human  health  and  the  environment,  and  contribute  to  the 
environmentally  sound  use  of  those  chemicals.  The  Convention  creates  legally  binding 
obligations  for  the  implementation  of  the  Prior  Informed  Consent  (PIC)  procedure,  and 
protects countries, particularly developing countries, from unwanted imports of chemicals by 
imposing export obligations on exporting Parties. 

The Agreement entered into force on 24 February 2004. 
The European Union and all 28 Member States are a party to the Convention1.  

2.2. 

The Conference of the Parties to the Rotterdam Convention 

Established  pursuant  to  Article  18  of  the  Convention,  the  Conference  of  the  Parties  is  the 
governing body of the Rotterdam Convention. This body normally meets every two years to 
monitor the implementation of the Convention. It also reviews chemicals brought forward for 
its consideration by the Chemical Review Committee. 

In  accordance  with  Articles  44  and  45  of  the  Rules  of  Procedure  for  the  Conference  of  the 
Parties, each party has one vote. However, regional economic integration organisations such 
as  the  EU  exercise  their  right  to  vote  with  a  number  of  votes  equal  to  the  number  of  their 
member States that are parties to the Convention. 

2.3. 

The envisaged act of the Conference of the Parties 

At  the  ninth  ordinary  meeting,  which  takes  place  from  29  April  to  10  May  2019,  the 
Conference of the Parties will consider the adoption of decisions to list further chemicals in 
Annex III to the Convention. 

The purpose of the envisaged acts is to list further chemicals in Annex III to the Convention. 
The listing in Annex III has the effect that the chemicals will be subject to the prior informed 
consent procedure under the Convention when traded internationally. 

The envisaged acts will become binding on the parties in accordance with Article 22(5)(c) of 
the  Convention,  which  provides:  ‘A  decision  to  amend  Annex  III  shall  forthwith  be 
communicated to the Parties by the Depositary. The amendment shall enter into force for all 
Parties on a date to be specified in the decision’. 

1 

Council  Decision  2006/730/EC  of  25  September  2006  on  the  conclusion,  on  behalf  of  the  European 
Community,  of  the  Rotterdam  Convention  on  the  Prior  Informed  Consent  Procedure  for  certain  hazardous 
chemicals and pesticides in international trade (OJ L 299, 28.10.2006, p. 23–25). 

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3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The Commission is proposing to the Council a decision to support, on behalf of the Union, the 
decisions to amend Annex III to the Convention at the ninth meeting of the Conference of the 
Parties. Those decisions will add further chemicals to Annex III making them subject to the 
prior informed consent procedure under the Convention. 

The  decisions  that  are  presented  to  the  Conference  of  the  Parties  for  adoption  are  based  on 
recommendations  from  the  Chemical  Review  Committee,  a  subsidiary  body  under  the 
authority of the Conference of the Parties. Chemicals recommended by the Chemical Review 
Committee  for  listing  in  Annex  III  were  found  to  meet  the  criteria  of  Annex  II  to  the 
Convention. 

As a leader in environmental policy-making, it is crucial for the Union to reaffirm its global 
commitment to promote better implementation of multilateral environmental agreements and 
standards. This includes the support and implementation of the recommendations adopted by 
scientific subsidiary bodies of those agreements and the adherence to the criteria set out in the 
agreements on which such recommendations are based. 

In addition, this initiative is in line with the Juncker priority to become a stronger global actor, 
with  the  sustainable  development  goals,  in  particular  good  health  (3)  and  responsible 
consumption and production (12), and with the 7th Environment Action Programme. 

The  Union  should  therefore  support  the  proposed  decisions  to  list  acetochlor,  carbosulfan, 
chrysotile asbestos, fenthion (ultra low volume (ULV) formulations at or above 640 g active 
ingredient/L),  hexabromocyclododecane,  liquid  formulations  (emulsifiable  concentrate  and 
soluble  concentrate)  containing  paraquat  dichloride  at  or  above  276  g/L,  corresponding  to 
paraquat  ion  at  or  above  200  g/L,  and  phorate  in  Annex  III.  These  chemicals  are  already 
subject to restrictions on export pursuant to Regulation (EU) No 649/2012 that are similar to 
those under the Convention. 

The position to  be taken on the  Union's behalf  at  the Conference of the  Parties needs to  be 
established, since the amendments of Annex III will be legally binding on the Union and will 
have  to  be  reflected  in  Regulation  (EU)  No  649/2012,  which  implements  the  Rotterdam 
Convention in the Union. 

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.’ 

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’2. 

2 

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

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

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4.1.2.  Application to the present case 

The  Conference  of  the  Parties  is  a  body  set  up  by  an  agreement,  namely  the  Rotterdam 
Convention on the Prior  Informed Consent  Procedure for Certain  Hazardous Chemicals  and 
Pesticides in International Trade. 

The  act  that  the  Conference  of  the  Parties  is  called  upon  to  adopt  constitutes  an  act  having 
legal  effects.  The  envisaged  act  will  be  binding  under  international  law  in  accordance  with 
Article 22(5) of the Rotterdam Convention and will have to be reflected in Regulation (EU) 
No 649/2012  of the European Parliament  and of the Council of 4 July 2012 concerning the 
export and import of hazardous chemicals3. This is because Article 23(1) of that Regulation 
requires the review of the list of chemicals in its Annex I on the basis of developments under 
the Convention. 

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. 

With regard to an envisaged act that simultaneously pursues a number of objectives, or that has 
several  components,  which  are  inseparably  linked without one  being  incidental  to the  other,  the 
substantive  legal  basis  of  a  decision  under  Article  218(9)  TFEU  will  have  to  include, 
exceptionally, the various corresponding legal bases. 

4.2.2.  Application to the present case 

The  envisaged  act  pursues  objectives  and  has  components  in  the  area  of  ‘environment’  and 
‘trade’.  These  elements  of  the  envisaged  act  are  inseparably  linked  without  one  being 
incidental to the other. 

Therefore,  the  substantive  legal  basis  of  the  proposed  decision  comprises  the  following 
provisions: Articles 192(1) and 207(3) and (4) first subparagraph. 

4.3. 

Conclusion 

The  legal  basis  of  the  proposed  decision  should  be  Articles  192(1)  and  207(3)  and  (4)  first 
subparagraph, in conjunction with Article 218(9) TFEU. 

3 

OJ L 201, 27.7.2012, p. 60. 

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2019/0026 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union at the Conference of the 
Parties as regards amendments of Annex III to the Rotterdam Convention on the Prior 
Informed Consent Procedure for certain hazardous chemicals and pesticides in 
international trade 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles  192(1)  and  207(3)  and  (4)  first  subparagraph,  in  conjunction  with  Article  218(9) 
thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

The  Rotterdam  Convention  on  the  Prior  Informed  Consent  Procedure  for  Certain 
Hazardous Chemicals and Pesticides in International Trade (‘the Convention’) entered 
into force on 24 February 2004 and was concluded on behalf of the Union by Council 
Decision 2006/730/EC4. 

Regulation (EU) No 649/2012 of the European Parliament and of the Council of 4 July 
2012 implements the Rotterdam Convention in the Union5. 

Pursuant  to  Article  7  of  the  Convention,  the  Conference  of  the  Parties  may  adopt 
amendments to Annex III. 

The  ninth  meeting  of  the  Conference  of  the  Parties  to  the  Rotterdam  Convention  is 
expected to adopt decisions to list further chemicals in Annex III. 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
Conference  of  the  Parties,  as  the  amendments  of  Annex  III  will  be  binding  on  the 
Union. 

In order to ensure that importing countries benefit from the protection offered by the 
Rotterdam Convention and since all relevant criteria under the Convention are met, it 
is  necessary  and  appropriate  to  support  the  recommendation  from  the  Chemical 
Review  Committee,  a  subsidiary  body  of  the  Rotterdam  Convention,    as  regards  the 
inclusion  in  Annex  III  to  the  Rotterdam  Convention  of  acetochlor,  carbosulfan, 
chrysotile asbestos, fenthion (ultra low volume (ULV) formulations at or above 640 g 
active  ingredient/L),  hexabromocyclododecane,  phorate  and  liquid  formulations 
(emulsifiable concentrate and soluble concentrate) containing paraquat dichloride at or 
above 276 g/L, corresponding to paraquat ion at or above 200 g/L. Those substances 

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Council  Decision  2006/730/EC  of  25  September  2006  on  the  conclusion,  on  behalf  of  the  European 
Community,  of  the  Rotterdam  Convention  on  the  Prior  Informed  Consent  Procedure  for  certain 
hazardous chemicals and pesticides in international trade (OJ L 299, 28.10.2006, p. 23–25). 
Regulation (EU) No 649/2012 of the European Parliament and the Council of 4 July 2012 concerning 
the export and import of hazardous chemicals, OJ L 201, 27.7.2012, p. 60. 

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are  already  banned  or  severely  restricted  in  the  Union  and  are  therefore  subject  to 
export requirements that go beyond what is required under the Rotterdam Convention 
pursuant to Regulation (EU) No 649/2012, 

HAS ADOPTED THIS DECISION: 

Article 1 

The  position  to  be  adopted  on  behalf  of  the  European  Union  at  the  ninth  meeting  of  the 
Conference  of  the  Parties  to  the  Rotterdam  Convention  is  that  the  Union  shall  support  the 
adoption of the amendments to Annex III to the Rotterdam Convention on the Prior Informed 
Consent  Procedure  for  certain  hazardous  chemicals  and  pesticides  in  international  trade  as 
regards  the  inclusion  of  acetochlor,  carbosulfan,  chrysotile  asbestos,  fenthion  (ultra  low 
ingredient/L), 
volume 
hexabromocyclododecane,  phorate  and  liquid  formulations  (emulsifiable  concentrate  and 
soluble  concentrate)  containing  paraquat  dichloride  at  or  above  276  g/L,  corresponding  to 
paraquat ion at or above 200 g/L. 

formulations 

(ULV) 

active 

above 

640 

or 

at 

g 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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