Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the 39th session of the Executive Body under the Convention on Long-Range Transboundary Air Pollution
Date: 2019-10-23
Institutions: Directorate-General for Environment, European Commission
Subjects: acidification, air quality, atmospheric pollutant, eutrophication, international convention, ozone, protocol to an agreement, revision of an agreement, transfrontier pollution

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   EUROPEAN COMMISSION  Brussels, 23.10.2019  COM(2019) 545 final 2019/0238 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the 39th session of the Executive Body under the Convention on Long-Range Transboundary Air Pollution  
 
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This  proposal  concerns  the  decision  establishing  the  position  to  be  taken  on  the  Union’s 
behalf in the Executive Body of the Convention on Long-Range Transboundary Air Pollution 
(the Air Convention) in connection with the decision on proposed amendments of Article 3bis 
and  Annex  VII  to  the  Air  Convention  Protocol  to  Abate  Acidification,  Eutrophication  and 
Ground-level Ozone (as amended 2012). 

2. 

2.1. 

CONTEXT OF THE PROPOSAL 

The Air Convention and its Protocol to Abate Acidification, Eutrophication and 
Ground-level Ozone (as amended 2012) 

The  UNECE  Convention  on  Long-Range  Transboundary  Air  Pollution  (the  ‘Air 
Convention’),  adopted  in  1979,  is  the  most  advanced  regional  environmental  agreement 
addressing clean air policy. 
Under the Air Convention, the Protocol to Abate Acidification, Eutrophication and Ground-
level Ozone (the ‘Gothenburg Protocol’) was agreed in November 1999. It forms the basis for  
Directive  (EC)  2016/22841  on  the  reduction  of  national  emissions  of  certain  atmospheric 
pollutants that repealed Directive 2001/81/EC2 on national emission ceilings. The Gothenburg 
Protocol was amended in 2012. The amended version entered into force on 7 October 2019. 
The  European  Union  is  a  Party  to  the  Air  Convention3  and  to  the  Gothenburg  Protocol  as 
amended in 20124. All Member States are Parties to the Air Convention; 21 Member States 
are Parties to the Gothenburg Protocol5 and 15 Member States have so far accepted the 2012 
amendment to the Gothenburg Protocol6.  

2.2. 

The Executive Body 

The  Executive  Body  is  the  governing  body  of  the  Air  Convention  and  is  composed  of 
representatives of Parties to the Convention. Pursuant to Article 10 of the Air Convention, the 
Executive Body shall review the implementation and development of the Air Convention and 
its Protocols.  

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Directive (EU) 2016/2284 of the European Parliament and of the Council of 14 December 2016 on the 
reduction of national emissions of certain atmospheric pollutants, amending Directive 2003/35/EC and 
repealing Directive 2001/81/EC, OJ L 344, 17.12.2016, p. 1–31. 
Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national 
emission ceilings for certain atmospheric pollutants, OJ L 309, 27.11.2001, p. 22–30. 
81/462/EEC:  Council  Decision  of  11  June  1981  on  the  conclusion  of  the  Convention  on  long-range 
transboundary air pollution, OJ L 171, 27.6.1981, p. 11–24. 
2003/507/EC: Council Decision of 13 June 2003 on the accession of the European Community, to the 
Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution to Abate Acidification, 
Eutrophication  and  Ground-Level  Ozone,  OJ  L  179  ,  17/07/2003  P.  0001  –  0002;  Council  Decision 
(EU) 2017/1757 of 17 July 2017 on the acceptance on behalf of the European Union of an Amendment 
to  the  1999  Protocol  to  the  1979  Convention  on  Long-Range  Transboundary  Air  Pollution  to  Abate 
Acidification, Eutrophication and Ground-Level Ozone, OJ L 248, 27.9.2017, p. 3–75. 
Belgium,  Bulgaria,  Croatia,  Cyprus,  Czech  Republic,  Denmark,  Finland,  France,  Germany,  Hungary, 
Latvia,  Lithuania,  Luxembourg,  the  Netherlands,  Portugal,  Romania,  Slovakia,  Slovenia,  Spain, 
Sweden and the United Kingdom (status of ratifications on 12 August 2019). 
Bulgaria,  Croatia,  Cyprus,  Czech  Republic,  Finland,  Germany,  Latvia,  Luxembourg,  the  Netherlands, 
Portugal,  Romania,  Slovakia,  Spain,  Sweden,  and  the  United  Kingdom  (status  of  ratifications  on  12 
August 2019). 

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The Executive Body aims to reach its decisions by consensus.7 

Amendments to the Gothenburg Protocol shall be adopted by consensus of the Parties present 
at a session of the Executive Body.8 

The envisaged decision of the Executive Body 

2.3. 
On  9-13  December  2019,  during  its  39th  session,  the  Executive  Body  will  discuss  and 
potentially  adopt  amendments  proposed  by  the  USA  to  Article  3bis  and  Annex  VII  of  the 
amended Gothenburg Protocol (‘the envisaged act’). 

The  purpose  of  the  envisaged  act  is  to  extend  the  possibility  for  countries  in  the  Eastern 
European,  Caucasus  and  Central  Asian  (EECCA)  region  to  apply  a  flexible  timescale  for 
meeting certain obligations, to facilitate their ratification of the Gothenburg Protocol.  

The envisaged act will become binding for the Parties: 
-  in  accordance  with  Article  13bis  of  the  Gothenburg  Protocol,  which  provides  that 
amendments to the Protocol shall enter into force for the Parties, which have accepted them 
on the ninetieth day after the date on which two thirds of those that were Parties at the time of 
the adoption have deposited their acceptance instruments.9 

-  For  those  Parties  having  accepted  it,  a  different  procedure  is  foreseen  in  respect  of 
amendments to annexes IV to XI of the Gothenburg Protocol: such amendments shall become 
effective  one  year  from  the  date  of  communication  of  the  decision  to  all  Parties,  except  for 
those Parties that notify the depositary that they are unable to approve the amendment. In the 
case of 16 or more Parties submitting such a notification, the amendment shall not enter into 
force10. 

In practice, the proposed amendments will not affect the obligations for Member States since 
the obligations in question are already part of the EU acquis and applied by Member States. 
The proposed amendments would however provide a possibility for non-EU Parties, notably 
in the EECCA region, to continue to use the flexibility already negotiated and agreed as part 
of the 2012 amendment of the Gothenburg Protocol, for a prolonged period. 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The flexible timescales in Article 3bis and Annex VII of the amended Gothenburg Protocol 
were agreed and adopted in 2012 with the purpose of providing a simplified entry mechanism 
to encourage ratification by more Parties. By August 2019, no single EECCA country had yet 
managed  to  make  use  of  this  flexibility.  Following  discussions  about  existing  ratification 
barriers for EECCA countries, the Air Convention Parties at the Working Group on Strategy 
and  Review  meeting  on  20-24  May  2019  therefore  voiced  their  interest  in  addressing  and 
extending these flexible timescales.  

Without  the  extension  of  the  flexibility,  it  is  deemed  unlikely  that  EECCA  countries  will 
ratify  the  Protocol  in  the  near  future.  It  is  in  the  interest  of  the  EU  that  neighbourhood 
countries  ratify  the  Gothenburg  Protocol  to  help  decrease  the  transboundary  air  pollution 
coming from EECCA countries to the EU Member States.  

The Directive (EU) 2016/2284 provisions mirror the obligations of the Gothenburg Protocol. 

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Rules  of  procedure  for  sessions  of  the  Executive  Body  for  the  Convention  on  Long-range 
Transboundary Air Pollution as adopted by decision 2010/9 and amended by decision 2013/1, Rule 29. 
Gothenburg Protocol (amended 2012), Article 13bis, paragraph 3 
Gothenburg Protocol (amended 2012), Article 13bis, paragraph 3 
Gothenburg Protocol (amended 2012), Article 13bis, paragraph 7 

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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’11. 

4.1.2.  Application to the present case 

The Executive Body is a body set up by an agreement, namely the Air Convention. 

The  act,  which  the  Executive  Body  is  called  upon  to  adopt,  constitutes  an  act  having  legal 
effects. The envisaged act will be binding under international law in accordance with Article 
13bis of the Gothenburg Protocol. 

The  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the  Air 
Convention or of the Gothenburg Protocol. 

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 the environment. 

Therefore, the substantive legal basis of the proposed decision is Article 191 TFEU. 

4.3. 

Conclusion 

The  legal  basis  of  the  proposed  decision  should  be  Article  191  TFEU  in  conjunction  with 
Article 218(9) TFEU. 

5. 

PUBLICATION OF THE ENVISAGED ACT 

As  the  act  of  the  Executive  Body  will  amend  the  Gothenburg  Protocol  under  the  Air 
Convention, it is appropriate to publish it in the Official Journal of the European Union after 
its adoption. 

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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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2019/0238 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union at the 39th session of the 
Executive Body under the Convention on Long-Range Transboundary Air Pollution 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 191, in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The  Protocol  to  Abate  Acidification,  Eutrophication  and  Ground-level  Ozone  in 
amended version adopted 2012 (‘the Protocol’) under the Convention on Long-Range 
Transboundary  Air  Pollution  was  approved  by  the  Union  by  Council  Decision  (EU) 
2017/1757 (12) and entered into force on 7 October 2019.  

Pursuant to Article 13bis of the Protocol, the Executive Body may adopt amendments 
to the Protocol and its annexes. 

The  Executive  Body,  during  its  39th  session  on  9-13  December,  is  to  adopt 
amendments to the Protocol (Article 3bis) and its annexes (Annex VII) with the aim to 
facilitate ratification of the Protocol by non-EU Parties. 

 It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union’s  behalf  in  the 
Executive Body, as the subject and content of the Protocol to be amended is covered 
by the EU acquis and notably  Directive (EU) 2016/2284 of the European Parliament 
and Council (13). 

HAS ADOPTED THIS DECISION: 

Article 1 
The position to be taken on the Union’s behalf in the 39th session of the Executive Body of the 
Convention on Long-Range Transboundary Air Pollution shall be the following: 

The proposal tabled by the United States of America to amend Article 3bis and Annex VII of 
the  Protocol  to  extend  the  flexibility  timescales  from  2019  to  2024  and  from  2022  to  2028 
shall be supported. 

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Council Decision (EU) 2017/1757 of 17 July 2017 on the acceptance on behalf of the European Union 
of  an  Amendment  to  the  1999  Protocol  to  the  1979  Convention  on  Long-Range  Transboundary  Air 
Pollution to Abate Acidification, Eutrophication and Ground-Level Ozone, OJ L 248, 27.9.2017, p. 3–
75. 
Directive (EU) 2016/2284 of the European Parliament and of the Council of 14 December 2016 on the 
reduction of national emissions of certain atmospheric pollutants, amending Directive 2003/35/EC and 
repealing Directive 2001/81/EC, OJ L 344, 17.12.2016, p. 1–31. 

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Article 2 

Refinement  to  the  position  referred  to  in  Article  1  may  be  agreed  to,  in  the  light  of 
developments  at  the  39th  session  of  the  Executive  Body  of  the  Convention  on  Long-Range 
Transboundary  Air  Pollution,  by  representatives  of  the  Union,  in  consultation  with  the 
Member  States,  during  on-the-spot  coordination  meetings,  without  a  further  decision  of  the 
Council.  

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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