Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the Conference of the Parties to the Rotterdam Convention on the Prior Informed Consent Procedure for certain hazardous chemicals and pesticides in international trade as regards certain amendments to the Convention and its Annex III
Date: 2023-01-27
Institutions: Directorate-General for Environment, European Commission
Subjects: UN convention, chemical product, dangerous substance, environmental protection, export, import, international trade, pesticide, public health, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 27.1.2023  COM(2023) 42 final 2023/0016 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the Conference of the Parties to the Rotterdam Convention on the Prior Informed Consent Procedure for certain hazardous chemicals and pesticides in international trade as regards certain amendments to the Convention and its Annex III  
 
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 Conference of the Parties to the Rotterdam Convention on the Prior Informed Consent 
Procedure for certain hazardous chemicals and pesticides in international trade in connection 
with  the  envisaged  adoption  of  decisions  to  amend  Annex  III  by  adding  acetochlor, 
carbosulfan, chrysotile asbestos, fenthion (ultra low volume (ULV) formulations at or above 
640  g  active  ingredient/L),  iprodione,  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 terbufos.  

In  addition,  this  proposal  concerns  the  decision  establishing  the  position  to  be  taken  on  the 
Union's  behalf  in  the  Conference  of  the  Parties  to  the  Rotterdam  Convention  in  connection 
with the proposal to amend the Convention submitted by Switzerland, Australia and Mali. 

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  certain 
hazardous  chemicals  in  order  to  protect  human  health  and  the  environment  from  potential 
harm and to contribute to their environmentally sound use. The Convention entered into force 
on 24 February 2004. 
The European Union is a party to the Convention1. 

2.2. 

The Conference of the Parties 

Established pursuant to Article 18 of the Convention, the Conference of the Parties (COP) 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 (CRC). 

In accordance with Article 5(1) of the Convention, Parties are required to submit notifications 
of  final  regulatory  action  taken  to  ban  or  severely  restrict  the  use  of  a  chemical  at  national 
level. After receipt by the Secretariat of two such notifications on the same chemical from two 
Parties  belonging  to  two  different  PIC  regions,  those  notifications  will  be  presented  to  the 
CRC. The CRC is to review those notifications against the criteria laid down in Annex II to 
the  Convention  and  to  adopt  a  recommendation  as  regards  the  listing  of  the  respective 
chemical for consideration by the COP.  

In addition, any Party that is a developing country or a country with an economy in transition 
and  that  is  experiencing  problems  caused  by  a  severely  hazardous  pesticide  formulation 
(SHPF)  under  conditions  of  use  in  its  territory  can  propose  to  list  that  severely  hazardous 
pesticide  formulation  in  Annex  III  to  the  Convention  in  accordance  with  Article  6(1).  The 
CRC  is  to  review  those  proposals  against  the  criteria  laid  down  in  Annex  IV  to  the 
Convention and to adopt a recommendation as regards the listing of the respective SHPF for 
consideration by the COP. 

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). 

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The procedure for adoption of amendments to the Convention is governed by Article 21 of the 
Convention,  and  the  procedure  for  adoption  and  amendment  of  Annexes  by  Article  22.  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 acts of the Conference of the Parties 

At the eleventh ordinary meeting, the Conference of the Parties will consider the adoption of 
decisions  to  list  acetochlor,  carbosulfan,  chrysotile  asbestos,  fenthion  (ultra  low  volume 
(ULV)  formulations  at  or  above  640  g  active  ingredient/L),  iprodione,  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 terbufos 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  when  internationally  traded.  This  will  require  Parties  to  submit  import 
responses to the Secretariat so that the Secretariat can make those import responses available 
to  all  Parties.  Exporting  Parties  will  be  required  to  respect  the  import  responses  when 
exporting those chemicals. 

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’. 

In addition, the Conference of the Parties will consider a proposal submitted by Switzerland, 
Australia and Mali to  amend Articles 7, 10, 11 and 22 of the Rotterdam Convention and to 
add  a  new  Annex  VIII.  Depending  on  the  discussions  at  the  Conference  of  the  Parties,  the 
proposal may need to be modified. The proposed amendments will establish a mechanism to 
regulate the export of those chemicals that are recommended for listing in Annex III by the 
CRC, but on which the Conference of the Parties did not yet reach consensus on their listing 
in Annex III.  

The listing in Annex VIII together with the corresponding rules on the export of the respective 
chemicals will apply  for all Parties that ratify the amendment  until that chemical is listed in 
Annex  III.  The  decision  on  the  listing  in  Annex  VIII  will  be  made  by  consensus,  with  the 
possibility to decide by a three-fourths majority vote of the Parties present and voting at the 
meeting, if all efforts to achieve consensus have been exhausted. 

The  envisaged  amendment  will  become  binding  on  the  Parties  in  accordance  with  Article 
21(5)  of  the  Convention,  which  provides:  ‘Ratification,  acceptance  or  approval  of  an 
amendment  shall  be  notified  to  the  Depositary  in  writing.  An  amendment  adopted  in 
accordance with paragraph 3 shall enter into force for the Parties having accepted it on the 
ninetieth day after the date of deposit of instruments of ratification, acceptance or approval 
by at least three fourths of the Parties. Thereafter, the amendment shall enter into force for 
any other Party on the ninetieth day after the date on which that Party deposits its instrument 
of  ratification,  acceptance  or  approval  of  the  amendment’.  Consequently,  once  the 
amendment  is  adopted and communicated to  the Union by the depository, the  Union would 
need  to  take  steps  to  approve  this  amendment  under  Article  21(5)  of  the  Convention  and 
notify it to the depository. 

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3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The position to be taken on the Union's behalf at the eleventh meeting of the Conference of 
the  Parties  to  the  Rotterdam  Convention  should  be  to  support  the  listing  of  acetochlor, 
carbosulfan, chrysotile asbestos, fenthion (ultra low volume (ULV) formulations at or above 
640  g  active  ingredient/L),  iprodione,  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  terbufos  in  Annex  III  in  line  with  the  relevant 
recommendations of the Chemical Review Committee (CRC). 

In accordance with Article 5(1) of the Convention, Parties had submitted notifications of final 
regulatory action taken to ban or severely restrict the use of acetochlor, carbosulfan, chrysotile 
asbestos, iprodione and terbufos at national level.  

In  addition,  Parties  had  submitted  proposals  to  list  fenthion  (ultra  low  volume  (ULV) 
formulations  at  or  above  640  g  active  ingredient/L)  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,  in  Annex  III  to  the  Convention  in 
accordance with Article 6(1). 

The  CRC  reviewed  the  notifications  against  the  criteria  laid  down  in  Annex  II  and  the 
proposals against the criteria laid down in Annex IV to the Convention and concluded that all 
relevant criteria are met. 

The listing in Annex III has the effect that the chemicals will be subject to the Prior Informed 
Consent  Procedure  when  internationally  traded.  This  will  require  Parties  to  submit  import 
responses to the Secretariat so that the Secretariat can make those import responses available 
to  all  Parties.  Exporting  Parties  will  be  required  to  respect  the  import  responses  when 
exporting those chemicals. 

The position to be taken on the Union's behalf at the eleventh meeting of the Conference of 
the  Parties  to  the  Rotterdam  Convention  as  regards  the  proposal  submitted  by  Switzerland, 
Australia  and  Mali  should  be  to  advocate  an  amendment  that  would  introduce  a  voting 
mechanism for the listing of chemicals in Annex III. Taking into account the experience from 
discussions  with  other  Parties,  it  seems  that  only  few  Parties  would  support  such  an 
amendment. Therefore, the alternative position should be to support in principle the proposal 
submitted by Switzerland, Australia and Mali, provided that the following conditions are met: 

(a) 

(b) 

(c) 

(d) 

(e) 

there  is  no  sufficient  support  by  other  Parties  for  an  amendment  of  the  decision-
making procedure for listing in Annex III that would introduce the possibility to vote 
in accordance with Article 22(4) read in conjunction with Article 22(3), but without 
the application of Article 22(3)(b) of the Convention, 

the additional rules and procedures introduced by the amendment are coherent with 
the existing rules and procedures under the Convention, 

the amendments ensure that  preference is  given to  the listing in  Annex III  and  that 
the additional rules do not interfere with the listing in Annex III, including any listing 
in Annex III decided when a chemical is already listed in Annex VIII, 

the amendments ensure that the rules as regards the protection of importing countries 
that will apply to  the  export of chemicals  listed in  Annex VIII will be stricter than 
those that apply to the export of chemicals listed in Annex III, 

the amendment ensures  that  all Parties that ratify the amendment will be  bound by 
any decision to list a chemical in Annex VIII, including any decision that is taken by 
a vote. 

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The proposal  is  coherent with  and complements the implementation  of Regulation  (EU) No 
649/2012, which implements the Rotterdam Convention in the Union. It is fully in line with 
the  objective  of  the  Convention  to  promote  shared  responsibility  and  cooperative  efforts 
among  Parties  in  the  international  trade  of  certain  hazardous  chemicals  in  order  to  protect 
human  health  and  the  environment  from  potential  harm  and  to  contribute  to  their 
environmentally sound use. 

The proposal is coherent with Regulation (EC) No 1107/2009, Regulation (EU) No 528/2012 
and  Regulation  (EC)  No  1907/2006  since  it  does  not  interfere  with  any  decisions  on  the 
placing on the market of chemicals in the European 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. 

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 acts, which the Conference of the Parties is called upon to adopt, constitute acts having 
legal effects. The envisaged acts to amend Annex III will be binding under international law 
in accordance with Article 22 of the Rotterdam Convention and will need to be implemented 
in  Regulation  (EU)  No  649/2012.  The  act  to  amend  the  Convention  as  proposed  by  three 
Parties is capable of decisively influencing the content of EU legislation, namely Regulation 
(EU)  No  649/2012.  This  is  because  the  amendment  to  the  Convention  would  have  to  be 
implemented in Union legislation, if the Union decides to ratify the amendment. 

The  envisaged  acts  to  amend  Annex  III  do  not  supplement  or  amend  the  institutional 
framework of the Agreement. 

The  envisaged  act  to  either  amend  the  rules  on  adoption  of  an  amendment  of  Annex  III 
(Article 22(5))) or to amend Articles 7, 10, 11 and 22 and introduce a new Annex VIII (list of 
chemicals  subject  to  explicit  consent)  does  neither  amend  nor  supplement  the  institutional 
framework of the Convention, since it either only changes the rules for amending Annex III or 
it  only  adds  to  the  Convention  an  additional  possibility  to  list  chemicals  that  will  become 
subject  to  explicit  consent  of  the  importing  party  for  their  export,  pending  their  listing  in 
Annex III. 

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

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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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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 acts pursue objectives and have components in the area of ‘environment’ and 
‘trade’.  These  elements  of  the  envisaged  acts  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 the first subparagraph of Article 207(4) TFEU. 

4.3. 

Conclusion 

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

5. 

PUBLICATION OF THE ENVISAGED ACT 

As  the  act  of  the  Conference  of  the  Parties  will  amend  the  Rotterdam  Convention,  it  is 
appropriate to publish it in the Official Journal of the European Union after its adoption. 

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2023/0016 (NLE) 

Proposal for a 

COUNCIL DECISION 

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

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 the first subparagraph of Article 207(4), in conjunction with 
Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

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The  Rotterdam  Convention  on  the  Prior  Informed  Consent  Procedure  for  certain 
hazardous  chemicals  and  pesticides  in  international  trade  (‘the  Convention’)  was 
concluded  by  the  Union  by  Council  Decision  (2006/730/EC)3  and  entered  into  force 
on 24 February 2004. 

Pursuant  to  Article  7  of  the  Convention,  the  Conference  of  the  Parties  may  adopt 
decisions to list chemicals in Annex III. 

At its eleventh meeting, the Conference of the Parties is expected to adopt decisions to 
list further chemicals in Annex III to the Convention. 

To  promote  shared  responsibility  and  cooperative  efforts  among  Parties  in  the 
international trade of certain hazardous chemicals in order to protect human health and 
the environment from potential harm and to contribute to their environmentally sound 
use it is necessary to list further chemicals that were found to meet all relevant criteria 
in Annex III to the Convention. 

Furthermore, the Conference of the Parties will consider a proposal for amending the 
Convention  submitted  by  Switzerland,  Australia  and  Mali.  That  proposal  aims  at 
addressing  the  difficulty  to  list  new  chemicals  in  Annex  III  to  the  Convention 
originating from the need to achieve consensus for a decision to amend Annex III in 
accordance with Article 22(5) of the Convention. 

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 or capable of 
decisively  influencing  the  content  of  Union  law,  namely  Regulation  (EU)  No 
649/2012 of the European Parliament and of the Council4. 

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). 
Regulation (EU) No 649/2012 of the European Parliament and of 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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HAS ADOPTED THIS DECISION: 

Article 1 

The position to be taken on the Union's behalf at the eleventh meeting of the Conference of 
the Parties to the Convention and any subsequent Conference of the Parties where the point is 
on the agenda shall be that the Union shall support the adoption of the amendments to Annex 
III to the Convention as regards the inclusion of acetochlor, carbosulfan, chrysotile asbestos, 
fenthion  (ultra  low  volume  (ULV)  formulations  at  or  above  640  g  active  ingredient/L), 
iprodione,  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 terbufos.  

Article 2 

The position to be taken on the Union's behalf at the eleventh meeting of the Conference of 
the Parties to the Convention and any subsequent Conference of the Parties where the point is 
on  the  agenda  shall  be  that  the  Union  shall  advocate  an  amendment  that  would  introduce  a 
voting mechanism for the listing of chemicals in Annex III to the Convention. The alternative 
position  shall  be  to  support  the  adoption  of  the  amendments  submitted  by  Switzerland, 
Australia  and  Mali  (document  XXX),  provided  that  the  following  conditions  are  met  and 
necessary amendments are made to that effect: 

(a) 

(b) 

(c) 

(d) 

(e) 

there  is  no  sufficient  support  by  other  Parties  for  an  amendment  of  the  decision-
making  procedure  for  listing  chemicals  in  Annex  III  that  would  introduce  the 
possibility to vote in accordance Article 22(4) read in conjunction with Article 22(3), 
but without the application of Article 22(3), point (b), of the Convention, 

the additional rules and procedures introduced by the amendments are coherent with 
the existing rules and procedures under the Convention, 

the amendments ensure that preference is given to the listing of chemicals in Annex 
III to the Convention and that the additional rules do not interfere with the listing of a 
chemical in Annex III, including when that chemical will have been already listed in 
Annex VIII to the Convention, 

the amendments ensure that the rules that will apply to the export of chemicals listed 
in  Annex  VIII  to  the  Convention  will  not  be  weaker  as  regards  the  protection  of 
importing Parties than those that apply to the export of chemicals listed in Annex III 
to the Convention, 

the amendments  ensure that  all Parties that ratify the amendment will be  bound by 
any  decision  to  list  a  chemical  in  Annex  VIII  to  the  Convention,  including  any 
decision that is taken by a vote. 

Article 3 

Refinements of the position referred to in Articles 1 and 2, in light of the developments at the 
eleventh  meeting  of  the  Conference  of  the  Parties  to  the  Convention  and  any  subsequent 
Conference  of  the  Parties  where  the  point  is  on  the  agenda,  may  be  agreed  upon  by 
representatives  of  the  Union,  in  consultation  with  the  Member  States,  during  on-the-spot 
coordination meetings without a further decision of the Council. 

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This Decision is addressed to the Commission. 

Done at Brussels, 

Article 4 

For the Council 
The President 

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