Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the fifth meeting of the Conference of the Parties to the Minamata Convention on Mercury as regards the adoption of a Decision establishing a threshold for mercury waste, in accordance with Article 11, paragraph 2, of that Convention
Date: 2023-09-22
Institutions: Directorate-General for Environment, European Commission
Subjects: environmental protection, hazardous waste, international convention, mercury, metal pollution, prevention of pollution, public health, waste disposal

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   EUROPEAN COMMISSION  Brussels, 22.9.2023  COM(2023) 541 final 2023/0328 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the fifth meeting of the Conference of the Parties to the Minamata Convention on Mercury as regards the adoption of a Decision establishing a threshold 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 fifth meeting of the Conference of the Parties to the Minamata Convention on 
Mercury (COP5) regarding the envisaged adoption of a Decision establishing  thresholds for 
waste contaminated with mercury or mercury compounds (thereafter ‘mercury contaminated 
waste’), as referred to Article 11, paragraph 2(c), of that Convention. 

2. 

CONTEXT OF THE PROPOSAL 

The Minamata Convention on Mercury 

2.1. 
The  Minamata  Convention  on  Mercury  (‘the  Agreement’)1  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 entire life-cycle of mercury, from primary mercury mining to mercury waste disposal.  

The Agreement entered into force on 16 August 2017.  

The European Union is a party to the Agreement as well as all its Member States. 

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 COP, at its third meeting (25-29 November 2019)2, adopted Decision MC-3/53, 
which provides as follows:  

On the one hand, all wastes consisting of or containing mercury or mercury compounds are 
‘mercury wastes’ within the meaning of Article 11(2) of the Agreement, irrespective of their 
content  of  mercury  or  mercury  compounds.  Regarding  overburden  and  waste  rock  from 

1  The Minamata Convention on Mercury (Text and Annexes),  

https://mercuryconvention.org/en/documents/minamata-convention-mercury-text-and-annexes 

2  Third  meeting  of  the  Conference  of  the  Parties  to  the  Minamata  Convention  on  Mercury  (COP-3),  Geneva, 

Switzerland, 25 – 29 November 2019,   https://mercuryconvention.org/en/meetings/cop3 

3  Decision adopted by the third Conference of the Parties to the Minamata Convention on Mercury – MC-3/5 - 

Mercury waste thresholds, 7 January 2020, 

   https://mercuryconvention.org/sites/default/files/documents/decision/UNEP-MC-COP3-Dec5-

MercuryWasteThresholds.EN.pdf 

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mining  other  than  primary  mercury  mining,  there  is  no  need  to  develop  thresholds,  which 
implies that they do fall under the scope of application of Article 11 of the Agreement. 

On  the  other  hand,  concerning  wastes  contaminated  with  mercury  or  mercury  compounds 
(‘mercury  contaminated  wastes’),  including  for  tailings  from  mining  other  than  primary 
mercury mining (‘mining tailings’), as no agreement could be reached by Parties, the group of 
technical experts, established by the COP at its second meeting (19-23 November 2018)4, is to 
continue with discussions on applicable thresholds during the intersessional period leading to 
its fifth meeting.  

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  Procedures5 
adopted  by  the  COP  at  its  first  meeting  (24-29  September  2017)6,  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 
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.  

2.3. 

The envisaged act of the Conference of the Parties 

The  group  of  technical  experts  established  pursuant  to  decision  MC-2/27,  which  received 
extended  mandates  by  decisions  MC-3/5  and  MC-4/68,  discussed  threshold(s)  for  mercury 
wastes  falling  under  sub-category  2  (c)  of  Article  11.  After  considering  all  the  views 
expressed by the members, the group agreed to recommend to the Conference of the Parties to 
establish  a  threshold  for  mercury  contaminated  waste,  presenting  three  possible  threshold 

4  Second meeting of the Conference of the Parties to the Minamata Convention on Mercury (COP-2), Geneva, 

Switzerland, 19 – 23 November 2018 
https://mercuryconvention.org/en/meetings/cop2 

5  Decision adopted by the first Conference of the Parties to the Minamata Convention on Mercury  - MC-1/1: 

Rules of procedure, 22 November 2017,  
https://mercuryconvention.org/sites/default/files/documents/decision/UNEP-MC-COP1-Dec1-
RulesProcedure.EN.pdf 

6  First  meeting  of  the  Conference  of  the  Parties  to  the  Minamata  Convention on  Mercury  (COP-2),  Geneva, 

Switzerland, 24 – 29  September 2017, https://mercuryconvention.org/en/meetings/cop1  

7  Decision adopted by the  second Conference of the Parties to the Minamata Convention on Mercury  – MC-

2/2: Mercury waste thresholds, 6 December 2018, 
https://mercuryconvention.org/sites/default/files/documents/decision/UNEP-MC-COP2-Dec2-
MercuryWasteThresholds.EN.pdf 

8  Decision  adopted  by  the  fourth  meeting  of  the  Conference  of  the  Parties  to  the  Minamata  Convention  on 

Mercury – MC-4/6: Mercury waste thresholds, 8 April 2022,  
https://mercuryconvention.org/en/documents/mercury-waste-thresholds-1 

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values for the COP to decide upon. The group agreed on other recommendations in relation to 
the threshold(s). 

The above-cited intersessional expert work has resulted in a dedicated report developed by the 
Secretariat  of  the  Convention9,  which  includes  recommendations  to  the  COP  on  mercury 
waste thresholds for consideration and possible adoption at COP5. 

The recommendations to the COP include the establishment of a threshold of [25] [15] [10] 
mg/kg  total  concentration  of  mercury  for  wastes  contaminated  with  mercury  or  mercury 
compounds. 

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 fifth meeting of 
the COP, the adoption of an envisaged act that is consistent with the EU acquis.  

In fact, whereas the envisaged act will complement Decision MC-3/5 by addressing another 
category of mercury waste, i.e., mercury contaminated waste, this proposed position is fully in 
line  with  the  EU  position  adopted  in  view  of  COP3,  which  was  instrumental  in  developing 
this Decision and already covered the issue of the threshold for such waste. Mercury waste is 
regulated  at  EU  level,  notably  by  the  Mercury  Regulation10,  by  the  Waste  Framework 
Directive11,  by  the  Extractive  Waste  Directive12  and  by  Commission  Decision  on  the 
European list of waste13. 

EU  waste  law  relies  upon  the  key  obligation  set  out  in  Articles  13  and  17  of  Directive 
2008/98/EC on waste 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.  

Indeed,  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  above-mentioned  intersessional  expert  discussions,  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. 

9  UNEP/MC/WT.2/L.1  Draft  report  of  the  meeting  of  the  group  of  technical  export  on  mercury  waste 
https://mercuryconvention.org/sites/default/files/inline-

at: 

threshold, 
files/2_L1_meeting_report_final.pdf  

available 

10  Council  Decision  94/904/EC  establishing  a    list  of  hazardous  waste  pursuant  to  Article  1(4)  of  Council 

Directive 91/689/EEC on hazardous waste 

11  Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste 
12  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/EC7  

13  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 waste 

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A  Union  position  is  needed  as,  once  adopted,  the  Parties  to  the  Agreement  shall  have  to 
implement the envisaged act. With regard the three proposed values, the EU should strive to 
find an agreement on a single value to be adopted by COP5. The EU can show flexibility on 
the final value.  

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’14. 

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, because Parties to the Agreement shall take measures to ensure that it is implemented 
and complied with. 

The  envisaged  act  does  neither  supplement  nor  amend  the  institutional  framework  of  the 
Agreement. Therefore, the procedural legal basis for the proposed decision is Article 218(9) 
TFEU. 

4.2. 

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 

14 

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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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  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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2023/0328 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union at the fifth meeting of the 
Conference of the Parties to the Minamata Convention on Mercury as regards the 
adoption of a Decision establishing a threshold 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) 

The  Minamata  Convention  on  Mercury15  (‘the  Agreement’)  was  concluded  by  the 
Union  by  Council  Decision  (EU)  2017/93916  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  (‘Conference  of  the  Parties’)  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, adopted Decision MC-3/5 setting thresholds for waste consisting of 
or containing mercury or mercury compounds, as referred to in Article 11, paragraph 
2, of the Agreement, and requiring the group of technical  experts, established by the 
Conference of the Parties at its second meeting on 19-23 November 2018, to develop 
thresholds  for  waste  contaminated  with  mercury  or  mercury  compounds  (‘mercury 
contaminated waste’), including for tailings from mining other than primary mercury 
mining.  

The Conference of the Parties, during the second segment of its fourth meeting on 21-
25  March  2022,  was  not  able  to  adopt  a  Decision  on  thresholds  for  mercury 
contaminated  waste,  as  referred  to  in  Article  11,  paragraph  2  (c),  of  the  Agreement. 
Rather, Decision MC-4/6 requested the group of technical experts to continue its work 
primarily  by  electronic  means  and  to  hold  one  face-to-face  meeting  of  sufficient 
duration to address mercury wastes falling under paragraph 2 (c) of article 11, subject 

15  Certified 

copy 

of 

the 

Minamata 

Convention 

on 

Mercury, 

available 

at: 

https://treaties.un.org/doc/Treaties/2013/10/20131010%2011-16%20AM/CTC-XXVII-17.pdf  

16  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). 

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(5) 

(6) 

to  the  availability  of  resources,  and  to  report  on  its  work  to  the  Conference  of  the 
Parties at its fifth meeting. 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
Conference  of  the  Parties,  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-3/5  and 
that has led to  the recommendations; whereas the Union acquis  requires  already that 
all mercury waste referred to in Article 11, paragraph 2, of the Agreement, including 
mercury  contaminated  waste,  be  managed  without  endangering  human  health  and 
without harming the environment, irrespective of their mercury content.  

(7) 

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

HAS ADOPTED THIS DECISION: 

Article 1 

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

Article 2 

This Decision is addressed to the Commission. 

Done at Brussels, 

For the Council 
The President 

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