Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the ninth meeting of the Conference of the Parties to the Stockholm Convention on Persistent Organic Pollutants as regards the proposals for amendments of Annexes A and B
Date: 2019-02-06
Institutions: Directorate-General for Environment, European Commission
Subjects: chemical product, dangerous substance, environmental protection, international convention, organic pollution, pollution control measures, public health, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 6.2.2019  COM(2019) 52 final 2019/0025 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the ninth meeting of the Conference of the Parties to the Stockholm Convention on Persistent Organic Pollutants as regards the proposals for amendments of Annexes A and B  
 
 
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  Stockholm  Convention  in  connection  with  the 
envisaged adoption of decisions to amend Annexes A and B by listing further chemicals and 
amending existing entries. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Stockholm Convention 

The  Stockholm  Convention  on  Persistent  Organic  Pollutants  (‘the  Convention’)  aims  to 
protect  human  health  and  the  environment  from  persistent  organic  pollutants  (POPs).  The 
Convention  creates  legally  binding  obligations  for  Parties  to  take  measures  in  order  to 
eliminate or  restrict the  production and use,  and  the import and export of POPs.  Parties are 
also obliged to take measures to reduce or eliminate releases from unintentional production of 
POPs and releases from stockpiles and waste. 

The Agreement entered into force on 24 February 2004. 
The European Union and 27 Member States are parties to the Convention1. 

2.2. 

The Conference of the Parties to the Stockholm Convention 

Established  pursuant  to  Article  19  of  the  Convention,  the  Conference  of  the  Parties  is  the 
governing body of the Stockholm 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 POPs Review Committee. 

In accordance with Article 23 of the Convention, 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 or to 
modify existing entries in Annexes A, B and/or C to the Convention. 

The purpose of the envisaged acts is to list further chemicals or to amend existing entries in 
Annexes A, B and/or C to the Convention. The listing in Annexes A, B and/or C has the effect 
that  the  chemicals  will  be  subject  to  measures  aiming  at  eliminating  or  restricting  their 
production  and  use,  including  the  reduction  or  elimination  of  unintentional  releases.  The 
amendment  of  existing  entries  aims  at  reducing  the  number  of  exemptions  from  control 
measures. 

The envisaged acts will become binding on the parties in accordance with Article 22(4) of the 
Convention, which provides: ‘The proposal, adoption and entry into force of amendments to 
Annex  A,  B  or  C  shall be  subject  to  the  same  procedures  as  for  the  proposal,  adoption  and 
entry into force of additional annexes to this Convention, except that an amendment to Annex 
A, B or C shall not enter into force with respect to any Party that has made a declaration with 
respect  to  amendment  to  those  Annexes  in  accordance  with  paragraph  4  of  Article  25,  in 

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OJ L 209, 31.7.2006, p. 1. 

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which case any such amendment shall enter into force for such a Party on the ninetieth day 
after  the  date  of  deposit  with  the  depositary  of  its  instrument  of  ratification,  acceptance, 
approval or accession with respect to such amendment.’ 

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  Annexes  A  and  B  to  the  Convention  at  the  ninth  meeting  of  the 
Conference  of  the  Parties.  Those  decisions  will  add  further  chemicals  to  Annex  A,  making 
them  subject  to  the  obligations  under  the  Convention,  in  particular  the  reduction  or 
elimination of releases from intentional production and use. In addition, the Conference of the 
Parties is expected to adopt a decision that will remove or amend certain exemptions for the 
use of a chemical already listed in Annex B to the Convention. 

The  decisions  that  are  presented  to  the  Conference  of  the  Parties  for  adoption  are  based  on 
recommendations  from  the  Persistent  Organic  Pollutants  Review  Committee  (POP-RC),  a 
subsidiary body under the authority of the Conference of the Parties. Chemicals recommended 
by  the  POP-RC  for  listing  in  Annex  A  were  found  to  meet  the  criteria  of  Annex  D  to  the 
Convention. Recommendations by the POP-RC to remove or amend exemptions granted for 
the  use  of  chemicals  listed  in  the  Convention  are  based  on  an  assessment  of  available 
alternatives. 

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. 

therefore  support 

the  proposed  decisions 

The  Union  should 
list  dicofol  and 
perfluorooctanoic  acid  (PFOA),  its  salts  and  PFOA-related  compounds  in  Annex  A.  These 
chemicals are already subject to restrictions under Union law that are similar to those under 
the  Convention.  The  use  of  dicofol  has  been  prohibited  in  the  Union  by  Commission 
Regulation  (EC)  No  2032/20032  and  Commission  Decision  2008/764/EC3.  The  use  of 
perfluorooctanoic acid (PFOA), its salts and PFOA-related compounds has been restricted by 
Commission Regulation (EU) 2017/10004. 

to 

Decision  POPRC-14/2  of  the  POP-RC  recommends  the  listing  of  perfluorooctanoic  acid 
(PFOA),  its  salts  and  PFOA-related  compounds  with  certain  specific  exemptions.  That 

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Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the 10-year 
work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of 
the Council concerning the placing of biocidal products on the market, and amending Regulation (EC) 
No 1896/2000 (OJ L 307, 24.11.2003, p.1). 
Commission Decision 2008/764/EC of 30 September 2008 concerning the non-inclusion of dicofol in 
Annex  I  to  Council  Directive  91/414/EEC  and  the  withdrawal  of  authorisations  for  plant  protection 
products containing that substance (OJ L 262, 1.10.2008, p. 40). 
Commission Regulation (EU) 2017/1000 of 13 June 2017 amending  Annex XVII to Regulation (EC) 
No 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, 
Authorisation  and  Restriction  of  Chemicals  (REACH)  as  regards  perfluorooctanoic  acid  (PFOA),  its 
salts and PFOA-related substances (OJ L 150, 14.6.2017, p. 14). 

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recommendation is based on the review of information submitted by Parties and stakeholders, 
including information originating from the Union, and reflects the need for continued use of 
PFOA  for  certain  specific  uses.  Some  of  the  specific  exemptions  would  be  needed  by  the 
Union,  as  demonstrated  by  Commission  Regulation  (EU)  2017/1000,  which  includes 
provisions allowing the continued use of PFOA for certain specific uses in the Union. 

The Union should also support the removal or amendment of acceptable purposes and specific 
exemptions for the use of perfluorooctane sulfonic acid (PFOS), its salts and perfluorooctane 
sulfonyl fluoride (PFOSF) in Annex B. All acceptable purposes and specific exemptions that 
are recommended for deletion are no longer used in the Union. 

The position to  be taken on the  Union's behalf  at  the Conference of the  Parties needs to  be 
established, since the amendments of Annexes A and B will be legally binding on the Union 
and  will  have  to  be  reflected  in  Regulation  (EC)  No  850/2004,  which  implements  the 
Stockholm 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’5. 

4.1.2.  Application to the present case 

The  Conference  of  the  Parties  is  a  body  set  up  by  an  agreement,  namely  the  Stockholm 
Convention on Persistent Organic Pollutants. 

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(4) of the Stockholm Convention and will have to be reflected in Regulation (EC) 
No 850/2004 of the European Parliament and of the Council of 29 April 2004 on persistent 
organic pollutants and amending Directive 79/117/EEC6. This is because Article 14(1) of that 
Regulation requires the amendment of its Annexes I, II and III whenever a substance is listed 
in 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. 

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

Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  
OJ L 158, 30.4.2004, p. 7. 

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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 acts relate to the area of ‘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), in conjunction with Article 
218(9) TFEU. 

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2019/0025 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union at the ninth meeting of the 
Conference of the Parties to the Stockholm Convention on Persistent Organic Pollutants 
as regards the proposals for amendments of Annexes A and B 

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) 

The  Stockholm  Convention  on  Persistent  Organic  Pollutants  (‘the  Convention’) 
entered  into  force  on  17  May  2004  and  was  concluded  on  behalf  of  the  Union  by 
Council Decision 2006/507/EC7. 

Regulation  (EC)  No  850/2004  of  the  European  Parliament  and  of  the  Council  of  29 
April 2004 implements the Stockholm Convention in the Union8. 

Pursuant  to  Article  8  of  the  Convention,  the  Conference  of  the  Parties  shall  decide 
whether to list a chemical, and specify its related control measures, in Annexes A, B 
and/or C. 

The  ninth  meeting  of  the  Conference  of  the  Parties  to  the  Stockholm  Convention  is 
expected  to  adopt  decisions  to  list  further  chemicals  in  Annex  A  and  to  modify  an 
existing entry in Annex B. 

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

In order to protect human health and the environment from further releases of dicofol 
and  perfluorooctanoic  acid  (PFOA),  its  salts  and  PFOA-related  compounds,  it  is 
necessary to  reduce or eliminate the production and use of those chemicals at  global 
level and support their listing in the Convention. In addition, it is necessary to further 
reduce  or  eliminate  the  use  of  perfluorooctane  sulfonic  acid  (PFOS),  its  salts  and 
perfluorooctane  sulfonyl  fluoride  (PFOSF)  by  deleting  or  amending  the  acceptable 
purposes and specific exemptions in Annex B, 

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8 

Council  Decision  2006/507/EC  of  14  October  2004  concerning  the  conclusion,  on  behalf  of  the 
European  Community,  of  the  Stockholm  Convention  on  Persistent  Organic  Pollutants  (OJ  L  209, 
31.7.2006, p. 1). 
Regulation  (EC)  No  850/2004  of  the  European  Parliament  and  of  the  Council  of  29  April  2004  on 
persistent organic pollutants and amending Directive 79/117/EEC (OJ L 158, 30.4.2004, p. 7). 

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HAS ADOPTED THIS DECISION: 

Article 1 

1. 

The  position  to  be  taken  on  behalf  of  the  Union  at  the  ninth  meeting  of  the 
Conference of the Parties to the Stockholm Convention shall be, in accordance with 
the  relevant  recommendations  of 
the  Persistent  Organic  Pollutants  Review 
Committee, to support the: 

– 

– 

– 

– 

– 

– 

listing of dicofol in Annex A to the Convention without specific exemptions; 

listing  of  perfluorooctanoic  acid  (PFOA), 
its  salts  and  PFOA-related 
compounds  in  Annex  A  with  specific  exemptions  for  manufacture  of 
semiconductors or related electronic devices, photographic coatings applied to 
films, textiles for oil and water  repellency for the protection of workers  from 
dangerous  liquids  that  comprise  risks  to  their  health  and  safety,  invasive  and 
implantable  medical  devices,  fire-fighting  foam  for  liquid  fuel  vapour 
suppression and liquid fuel fires; 

the  following  ‘acceptable  purposes’  from 

deletion  of 
the  entry  on 
perfluorooctane  sulfonic  acid  (PFOS)  and  its  derivatives  in  Annex  B  to  the 
Convention: photo imaging, aviation hydraulic fluids, certain medical devices 
(such  as  ethylene 
layers  and 
tetrafluoroethylene  copolymer 
radio-opaque ETFE production, in vitro diagnostic medical devices, and CCD 
colour  filters),  photo-resist  and  anti-reflective  coatings  for  semi-conductors, 
etching agent for compound semi-conductors and ceramic filters; 

(ETFE) 

the  following  ‘specific  exemptions’  from 

deletion  of 
the  entry  on 
perfluorooctane  sulfonic  acid  (PFOS)  and  its  derivatives  in  Annex  B  to  the 
Convention:  photo  masks  in  the  semiconductor  and  liquid  crystal  display 
(LCD)  industries,  metal  plating  (hard  metal  plating)  and  metal  plating 
(decorative metal plating), electric and electronic parts for some colour printers 
and colour copy machines, insecticides for control of red imported fire ants and 
termits, chemically driven oil production; 

amendment  of  the  ‘acceptable  purpose’  for  PFOS  and  its  derivatives  for 
production and use of fire-fighting foam to a ‘specific exemption’ for the use 
of fire-fighting foam for liquid fuel vapour suppression and liquid fuel fires; 

amendment of the ‘acceptable purpose’ for PFOS and its derivatives for use in 
insect baits for control of leaf-cutting ants from Atta spp. and Acromyrmex spp. 
by  including  sulfluramid  and  specifying  that  the  ‘acceptable  purpose’  is  for 
agricultural use only. 

2. 

Refinement of this position, in light of the developments at the ninth meeting of the 
Conference  of  the  Parties  to  the  Stockholm  Convention,  may  be  agreed  by 
representatives  of  the  Union,  in  consultation  with  the  Member  States,  through 
coordination on the spot without further decision of the Council. 

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This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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