Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the third meeting of the Conference of the Parties to the Minamata Convention on Mercury as regards the adoption of a Decision establishing thresholds for mercury waste, in accordance with Article 11, paragraph 2, of that Convention
Date: 2019-09-16
Institutions: Directorate-General for Environment, European Commission
Subjects: environmental protection, hazardous waste, international convention, mercury, metal pollution, prevention of pollution, public health

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   EUROPEAN COMMISSION  Brussels, 16.9.2019  COM(2019) 413 final 2019/0193 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the third meeting of the Conference of the Parties to the Minamata Convention on Mercury as regards the adoption of a Decision establishing thresholds for mercury waste, in accordance with Article 11, paragraph 2, of that Convention  
 
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 third meeting of the Conference of the Parties to the Minamata Convention on 
Mercury regarding the envisaged adoption of a Decision establishing thresholds for mercury 
waste, as referred to Article 11, paragraph 2 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.  

Article 11, paragraph 2 of the Agreement, stipulates that, for the purpose of this Agreement, 
‘mercury  wastes’  means,  substances  or  objects  (a)  consisting  of  or  (b)  containing  or  (c) 
contaminated with mercury or mercury compounds, in a quantity exceeding the thresholds to 
be  defined  by  the  Conference  of  the  Parties,  and  which  are  disposed  of  or  are  intended  or 
required to be disposed of in accordance with national law or the Agreement. This provision 
adds that this definition of ‘mercury wastes’ excludes mining waste (overburden, waste rock 
and  tailings),  except  mining  waste  from  primary  mercury  mining,  containing  mercury  or 
mercury compounds in a quantity below the thresholds to be defined by the Conference of the 
Parties.  

Article 11, paragraph 3, of the Agreement, specifies that waste qualifying as mercury waste 
under  its  Article  11,  paragraph  2,  must  be  managed  in  an  environmentally  sound  manner 
(‘ESM’).    

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 

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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  20  June  2019,  twenty-three  Member  States  had  ratified  the  Minamata  Convention  on  Mercury,  i.e. 
Austria,  Belgium,  Bulgaria,  Croatia,  Czech  Republic,  Denmark,  Estonia,  Finland,  France,  Germany, 
Hungary,  Ireland,  Latvia,  Lithuania,  Luxembourg,  Malta,  Netherlands,  Portugal,  Romania,  Slovakia, 
Slovenia, Sweden and the United Kingdom. 

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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.  

The envisaged act of the Conference of the Parties  

2.3. 
The  COP,  during  its  second  meeting  (19-23  November  2018),  adopted  Decision  MC-2/23 
establishing  a  group  of  technical  experts  to  proceed  with  discussions  on  mercury  waste 
thresholds during the intersessional period leading to its third meeting (‘COP3’). The mandate 
of  the  above-mentioned  group  called  in  particular  the  development  of  approaches  and 
methodologies  for  establishing  thresholds  for  mercury  waste,  including  for  relevant  mining 
waste.  

In  light  of  the  outcome  of  the  expert  work,  COP3  is  expected  to  adopt  a  decision  on  this 
matter (the envisaged act).  

The envisaged act will set thresholds allowing the identification of waste (a) consisting of or 
(b) containing or (c) contaminated with  mercury  or mercury  compounds that will fall under 
Article  11  of  the  Agreement.  Accordingly,  the  envisaged  act  will  define  the  scope  of 
application  of  the  waste  provisions  of  the  Agreement,  and  in  particular  of  its  Article  11, 
paragraph 3, on the duty to treat relevant mercury waste according to ESM. 

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 third meeting of 
the COP, the adoption of a Decision that is consistent with the EU acquis.  

Mercury  waste  is  regulated  at  EU  level,  notably  by  Regulation  (EU)  2017/852  of  the 
European  Parliament  and  of  the  Council  of  17  May  2017  on  Mercury  and  repealing 
Regulation (EC) No 1102/20084, by Directive 2008/98/EC of the European Parliament and of 
the  Council  of  19  November  2008  on  waste5,  by  Directive  2006/21/EC  of  the  European 
Parliament and of the Council of 15 March 2006 on the management of waste from extractive 
industries  and  amending  Directive  2004/35/EC6  and  by  Commission  Decision  2000/532/EC 
of  3  May  2000  replacing  Decision  94/3/EC  establishing  a  list  of  wastes  pursuant  to  Article 
1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing 
a  list  of  hazardous  waste  pursuant  to  Article  1(4)  of  Council  Directive  91/689/EEC  on 
hazardous waste7.  

EU  waste  law  relies  upon  the  key  obligation  set  out  in  Articles  13  and  17  of  above-cited 
Directive 2008/98/EC according to which Member States shall take the necessary measures to 
ensure that waste management is carried out without endangering human health and without 
harming the environment. These provisions implement the ESM obligation set out in Article 
11, paragraph 3, of the Agreement.     

3 

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5 
6 
7 

Decision  MC-2/2  Mercury  waste  thresholds,  Report  of  the  Conference  of  the  Parties  to  the  Minamata 
Convention on Mercury on the work of its second meeting, UNEP/MC/COP2/19 of 06.12.2018,  available 
here: http://www.mercuryconvention.org/Meetings/COP2/tabid/6355/language/en-US/Default.aspx 
OJ L 137, 24.05.2017, p. 1.  
OJ L 312, 22.11.2008, p. 3. 
OJ L 102, 11.4.2006, p. 15. 
OJ L 226, 6.9.2000, p. 3. 

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In  effect,  whilst  the  EU  was  instrumental  regarding  the  development  of  the  Agreement, 
including its provisions on mercury waste and whereas EU experts contributed significantly to 
the  envisaged  act,  the  EU  acquis  on  waste  goes  beyond  Article  11  of  the  Agreement  as  all 
mercury waste referred to in this provision are regulated at EU level and made subject to ESM 
irrespective of their content in mercury or mercury compounds. 

In the light of the above, the EU can therefore support the adoption of an envisaged act, which 
is consistent with the EU acquis.  

Accordingly, at the third meeting of the Conference of the Parties to the Agreement, the EU 
can only support the adoption of a Decision that is consistent with the EU acquis.   

A  Union  position  is  needed  as,  once  adopted,  the  Parties  to  the  Agreement  shall  have  to 
implement the envisaged act. 

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’8. 

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 
measures to ensure that it is implemented and complied with. 

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 

8 

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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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. 

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2019/0193 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union at the third meeting of the 
Conference of the Parties to the Minamata Convention on Mercury as regards the 
adoption of a Decision establishing thresholds for mercury waste, in accordance with 
Article 11, paragraph 2, of that Convention 

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) 

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The  Minamata  Convention  on  Mercury9  (‘the  Agreement’)  was  concluded  by  the 
Union  by  Council  Decision  (EU)  2017/93910  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  third  meeting  on  25-29 
November  2019,  is  expected  to  adopt  a  Decision  (‘the  proposed  Decision’)  on 
thresholds  for  mercury  waste,  as  referred  to  in  Article  11,  paragraph  2,  of  the 
Agreement, which would, as a result, define the scope of application of Article 11 of 
the  Agreement  on  waste;  whereas  mercury  waste  that  would  fall  under  Article  11, 
paragraph 2, of the Agreement should be subject to environmental sound management 
by virtue of Article 11, paragraph 3, of the Agreement.   

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
Conference  of  the  Parties  to  the  Agreement,  as  this  proposed  Decision,  if  approved, 
will have legal effects since the Parties to the Agreement will have to take measures to 
implement it at national and/or regional levels.  

The Union contributed significantly to the development of the waste provisions of the 
Agreement  and  to  the  intersessional  expert  work  launched  by  Decision  MC-2/211 
adopted by the Conference of the Parties to the Agreement at its second meeting and 
that has led to the proposed Decision; whereas the Union acquis requires already that 

of 

copy 

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-2/2 Mercury waste thresholds, Report of the Conference of the Parties to the Minamata 
Convention on Mercury on the work of its second meeting, UNEP/MC/COP2/19 of 06.12.2018.     

on  Mercury 

Convention 

available 

at: 

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all  mercury  waste  referred  to  in  Article  11,  paragraph  2,  of  the  Agreement,  be 
managed  without  endangering  human  health  and  without  harming  the  environment 
irrespective of their mercury content;  

(6) 

The Union should only  support the adoption of  a Decision by the Conference of the 
Parties to the Agreement that is consistent with the Union acquis.  

HAS ADOPTED THIS DECISION: 

The position to be taken on the Union's behalf in the third meeting of the Conference of the 
Parties  to  the  Agreement  shall  be  to  support  the  adoption  of  a  Decision  on  thresholds  for 
mercury waste that is consistent with the Union acquis.   

Article 1 

This Decision is addressed to the Commission. 

Article 2 

Done at Brussels, 

 For the Council 
The President 

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