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 to amend Annexes A and B to that Convention
Date: 2023-09-22
Institutions: Directorate-General for Environment, European Commission
Subjects: environmental protection, international convention, mercury, metal pollution, prevention of pollution, public health, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 22.9.2023  COM(2023) 542 final 2023/0329 (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 to amend Annexes A and B to 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  ('the  Agreement’)1  regarding  the  envisaged  adoption  of  Decisions  amending 
Annexes  A  and  B  to  that  Convention.  These  annexes  establish  lists  of  mercury-added 
products  (‘MAPs’)  and  of  manufacturing  processes  using  mercury  or  mercury  compounds 
(‘mercury  processes’),  subject  either  to  phase-out  dates  or  to  provisions  regulating  mercury 
use2.    

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Minamata Convention on Mercury (‘the Agreement’) 

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. 

It entered into force on 16 August 2017. 

The  European  Union  (‘the  Union’)  is  a  party  to  the  Agreement3,  as  well  as  all  its  Member 
States. 

Under the  Agreement,  MAPs are subject  to  the following two different  types of  restrictions 
depending on whether they are covered by Part I or II to Annex A to the Agreement4:  

– 

– 

The MAPs listed in Part I (e.g. certain compact fluorescent lamps) can no longer be 
manufactured,  imported  and  exported  after  the  phase-out  dates  specified  therein,  in 
accordance with  Article 4, paragraph 1. 

The  MAPs  listed  in  Part  II  to  Annex  A  are  subject  to  the  specific  conditions  and 
restrictions on mercury use established therein. By virtue of Article 4, paragraph 3, 
Parties5  shall  take  the  necessary  measures  to  comply  with  those  conditions  and 
restrictions. To date, only dental amalgam is listed in Part II to Annex A.  

Similarly, under the Agreement, mercury processes are also subject to two different types of 
restrictions depending on whether they are covered by Part I or II to Annex B: 

Text of the Minamata Convention available at:  

1 
         https://mercuryconvention.org/sites/default/files/2021-06/Minamata-Convention-booklet-rus-full.pdf  
2 

For the purpose of this document, the expression ‘regulating mercury use’ covers generically requirements 
such as those established in Parts II of Annexes A and B to the Minamata Convention on Mercury.     
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).  
References to articles and annexes in this document are references to articles and annexes to the Minamata 
Convention on Mercury, unless otherwise specified.   
For the purpose of this document, ‘Parties’ means Parties to the Convention on Mercury. 

1 

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3 

4 

5 

EN 

 
 
 
 
 
 
 
– 

– 

The mercury processes listed in Part I of Annex B (e.g. chlor-alkali production) must 
cease  using  mercury  or  mercury  compounds  by  the  phase-out  dates  set  therein,  in 
accordance with Article 5, paragraph, 2. 

The  mercury  processes  listed  in  Part  II  to  Annex  B  are  subject  to  mercury  use 
requirements  (e.g.  no  use  of  mercury  from  primary  mercury  mining)  established 
therein.  In  accordance  with  Article  5,  paragraph  3,  Parties  shall  take  measures  to 
comply with those conditions and requirements, including in terms of conversion to 
mercury-free  processes  when  the  Conference  of  the  Parties  to  the  Agreement 
(‘COP’)  concludes  on  the  availability  of  economically  and  technically  feasible 
alternatives. 

Pursuant to Article 4, paragraph  8, and Article 5, paragraph 10, Annexes A and B had to be 
reviewed  by  16  August  2022.  In  doing  so,  the  COP  takes  into  account  (i)  the  Parties’ 
amendment proposals made under Article 4, paragraph 7, and Article 5, paragraph 9,   (ii) the 
information transmitted by Parties on MAPs and processes and their alternatives by virtue of 
Articles 4, paragraph 4, and Article 5, paragraph 4, and (iii) the availability of  technically and 
economically  feasible  mercury-free  alternatives,  while  considering  the  environmental  and 
human health risks and benefits.       

2.2. 

The Conference of the Parties (‘COP’)   

The  COP  performs  the  functions  assigned  to  it  by  the  Agreement.  To  that  end,  it  shall 
consider and undertake inter alia any action that may be required for achieving the objectives 
of the Agreement.  

According  to  Article  28  of  the  Agreement  and  Decision  MC-1/1  on  Rules  of  Procedure6 
adopted  by  the  COP  at  its  first  meeting  (24-29  September  2017)7,  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 acts of the Conference of the Parties  

For the purpose of launching a process for reviewing Annexes A and B, the COP adopted, at 
its third meeting (25-29 November 2019), Decision MC-3/18 establishing an ad-hoc group of 
technical  experts  to  proceed  with  discussions  on  MAPs  and  mercury  processes  during  the 
intersessional period leading to its fourth meeting (‘COP4’). The mandate of this group called 

6 

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 

7  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  

8 

EN 

Decision adopted by the third Conference of the Parties to the Minamata Convention on Mercury - MC-3/1 
Review 
at: 
http://www.mercuryconvention.org/Meetings/COP3/Decisions/tabid/8654/language/en-US/Default.aspx 

UNEP/MC/COP3/Dec. 

available 

annexes 

and 

B, 

of 

1, 

A 

2 

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in  particular  for  improving  and  organising  the  information  submitted  by  the  Parties  in 
accordance with Article 4, paragraphs 4 and 7, and  Article 5, paragraphs 4 and 9. Based on 
the  outcome  of  this  expert  work  and  on  the  submissions  made  by  Parties9,  including  the 
submissions  from  the  European  Union10  ahead  of  COP4  (21-25  March  2022),  the  COP 
adopted Decision MC-4/311. 

Paragraph 5 of Decision MC-4/3 

Parties agreed to  add in  Part I to  Annex A  four  additional MAPs (see  left  column in  below 
table).  However,  as  they  could  not  reach  consensus  at  COP4  on  associated  phase-out  dates, 
Parties  decided,  as  reflected  in  paragraph  5  of  Decision  MC-4/3,  to  defer  the  discussion  on 
such dates at the fifth meeting of the COP (‘COP5’) on the basis of proposed bracketed dates 
(see right column in below table).  

Mercury-added products 

Date  after  which  the 
manufacture, import or 
export  of  the  product 
shall  not  be  allowed 
(phase-out date) 

Button  zinc  silver  oxide  batteries  with  a  mercury  content  <  2%  and 
button zinc air batteries with a mercury content < 2% 

[2025] [2029] 

Very high accuracy capacitance and loss measurement bridges and high 
frequency radio frequency switches and relays in monitoring and control 
instruments  with  a  maximum  mercury  content  of  20  mg  per  bridge 
switch  or  relay  [except  those  used  for  research  and  development 
purposes] 

[2025] 

Linear fluorescent lamps (LFLs) for general lighting purposes: 

(a)  Halophosphate phosphor ≤ 40 watts with a mercury content not 

exceeding 10 mg per lamp 

(b)  Halophosphate phosphor ≥ 40 watts 

[2025] [2027] [2030] 

Linear fluorescent lamps (LFLs) for general lighting purposes: 

(a)  Triband phosphor < 60 watts with a mercury content not exceeding 

[2027] [2030] 

5 mg/lamp 

Paragraph 6 of Decision MC-4/3 

9 

Proposals by the Africa Region, Canada and Norway to amend Parts I and II of Annex A to the Minamata 
Convention on Mercury, available at: https://mercuryconvention.org/en/meetings/cop4#cop-documents  
10  UNEP/MC/COP.4/26/Add1 Proposal by the European Union to amend Part I and II of Annex A and Part I 
at: 

of 
https://mercuryconvention.org/en/documents/proposal-european-union-amend-part-i-annex-part-ii-annex-
and-part-i-annex-b-minamata  

the  Minamata 

on  Mercury, 

Convention 

available 

Annex 

to 

B 

11  Decision adopted by the fourth Conference of the Parties to the Minamata Convention on Mercury MC-4/3 
Review  and  amendments  of  annexes  A  and  B,  UNEP/MC/COP4/Dec.  3,  available  at: 
https://mercuryconvention.org/sites/default/files/documents/decision/4_Dec3_Amendment.English.pdf  

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Regarding mercury processes, Parties decided also to consider at COP5  to add the production 
of  polyurethane  using  mercury-containing  catalysts  to  Part  I  of  Annex  B,  as  a  process  that 
must cease at a given phase-out date. 

In  addition  to  above-mentioned  paragraphs  5  and  6  of  Decision  MC-4/3,  in  negotiating  and 
developing  the  envisaged  acts,  Parties  will  also  have  to  consider  at  COP5  the  submission 
made by the Africa Region ahead of that meeting, in accordance with Article 4, paragraph 712. 
This submission proposes below further amendments to Parts I and II to Annex A.  

2.4. 

Africa Region submission 

Proposed amendments to Part I to Annex A  

The Africa Region proposes to add to Part I of Annex A the following  six product categories 
together with associated  phase-out dates. 

Mercury-added products 

Date  after  which  the 
manufacture,  import 
or  export  of 
the 
product  shall  not  be 
allowed 
(phase-out 
date) 

Cosmetics,  including  skin  lightening  soaps  and  creams,  and  not 
including eye are cosmetics where mercury is used as a preservative and 
no effective and safe substitute preservatives are available  
Dental amalgam 
Compact fluorescent lamps (CFLs) for general lighting purposes that are 
> 30 watts 
Compact  fluorescent  lamps  with  a  non-integrated  ballast  (CFL.ni)  for 
general lighting purposes that are ≤ 30 watts with a mercury content not 
exceeding 5 mg per lamp burner 
Linear fluorescent lamps (LFLs) for general lighting purposes: 

(b)  Triband phosphor ≥ 60 watts 

Non-linear  fluorescent  lamps  (NFLs)  (e.g.,  U-bend  and  circular)  for 
general lighting purposes: 

(a)  Triband phosphor, all wattages 
(b)  Halophophate phosphor, all wattages 

Proposed amendments to Part II to Annex A  

2025 

2030 

2025 

2025 

2026 

2026 

The Africa Region proposes also to add to Part II of Annex A (i) one new MAP category, i.e. 
cosmetics  together  with  trade  restrictions  and  (ii)  additional  requirements  concerning  dental 
amalgam.   

12  Proposal  by 

the  Africa  Region 

to  amend  Parts 

I  and 

II 

to  Annex  A,  available  at:  

https://mercuryconvention.org/en/meetings/cop5  

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Mercury-added products 

Provisions 

soaps 

Cosmetics,  including  skin 
lightening 
and 
creams,  and  not  including 
eye  are  cosmetics  where 
is  used  as  a 
mercury 
preservative 
no 
and 
effective and safe substitute 
preservatives are available 

Dental amalgam 

Measures to be taken by a Party to phase out the sale and offering of 
sale of mercury-added cosmetics from both local markets and online 
platforms shall include: 

i. 

Setting national objectives to phase out sale and offering of 
sales including, but not limited to carrying out two or more 
of the following: 

a.  Developing and implementing strategies to discourage 

marketing, advertising and display 

b.  Developing and publicising advisories, detention and 

prohibited substances lists of mercury-added cosmetics 

c.  Licensing and product ingredient approvals for 

manufacturing facilities for cosmetics and beauty products 
d.  Engaging online platforms in developing and implementing 

product safety pledges 

ii. 

Coordinating and collaborating on phase out initiatives inter-
ministerially and bilaterally and/or regionally. 

iii. 

Raising public awareness about the hazards of SLPs use 
among physicians, dermatologists and beauty centres, as 
well as consumers and family members 
Additional provisions for dental amalgam shall include: 

i. 

ii. 

Submitting to the Secretariat a national plan concerning the 
measures Parties intend to implement to phase out the use of 
dental amalgam 

Excluding or not allowing, by taking measures as 
appropriate, the use of dental amalgam in government 
insurance policies and programmes 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The objective of the Union is to phase-out mercury use at Union and global level, as rapidly 
and  as  completely  as  possible,  where  viable  alternatives  exist.13  The  achievement  of  this 
objective requires notably the phasing-out of MAPs and the conversion of mercury processes 
to non-mercury processes, when available economically and  technically feasible alternatives 
exist providing  benefits to human health and the environment. 

Progress at global level towards this objective would contribute to the Zero Pollution ambition 
for a toxic-free environment set-out in the European Green Deal14. It would also contribute to 
implementing  the  2020  EU  Chemical  Strategy  for  Sustainability15  in  which  the  European 

13  See Council Conclusions 'Review of the Community Strategy concerning Mercury', 14 

March 2011 

14  Communication from the Commission of 11.12.219, The European Green Deal, COM(2019) 640 final.   
15  Communication  of  the  Commission  ‘Chemicals  Strategy  for  Sustainability  Towards  a  Toxic-Free 

Environment’ (COM(2020) 667 final, of 14.10.2020. 

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Commission  has  committed  to  maintain  a  leading  role  at  international  level  concerning  the 
sound management of chemicals. 

Amendment of Annex A to the Agreement setting the list of mercury-added products subject 
to a manufacturing, import and export ban or to requirements on mercury use.  

The position to be taken on the Union’s behalf is based upon the following elements:  

– 

– 

– 

Annex II to Regulation (EU) 2017/852 on Mercury (‘Mercury Regulation’)16, which 
has transposed Annex A (Part I) to the Agreement, has a broader scope of application 
than the Agreement, as it covers more MAPs (e.g., button cell batteries).  

The Union submission (March 2020), transmitted in accordance with Decision MC-
3/117, identified a number of other MAPs for which feasible and beneficial mercury-
free alternatives are available, including products which are already prohibited from 
being  placed  on  the  internal  market  and  imported18/19,  e.g.  in  accordance  with 
Directive 2011/65/EU (‘RoHS’)20 and Regulation (EC) No 1907/2006 (‘REACH’)21, 
but which are not yet subject to a manufacturing and export prohibition. 

Commission Delegated Regulation (EU) .../... of 14 July 2023 amending Regulation 
(EU)  2017/852  (C(2023)4683  final)22  which  transposed  Decision  MC-4/3  in 
accordance with Article 20 of the Mercury Regulation.  

The MAPs contained in the proposal by the Africa Region concerning amendments to Part I 
of Annex A are either consistent with the Union acquis e.g., the requests for renewal of the 
exemptions  on  mercury-containing  lamps  have  been  rejected,  in  accordance  with  the  RoHS 
Directive;  or  concern  the  phase-out  of  MAPs,  which  are  subject  to  on-going  legislative 
developments aimed at setting a similar ban at Union level. 

16  Regulation (EU) 2017/852 of the European Parliament and of the Council of 17 May 2017 on Mercury and 

17 

18 

repealing Regulation (EC) No 1102/2008 (OJ L 137, 24.05.2017, p. 1).  
Submission  from  the  EU  on  mercury-added  products  and  manufacturing  processes  using  mercury  or 
at:  
mercury 
http://www.mercuryconvention.org/Portals/11/documents/meetings/COP4/submissions/EU_AnnexAB.pdf 
The notion of ‘placing on the internal market’ includes ‘import’ under EU legislation regulating the placing 
on the market of mercury-added products.    

compounds 

available 

(March 

2020), 

19  The  full  list  of  relevant  EU  law  is  available  in  the  Commission  Staff  Working  Document  Impact 
Assessment  ‘Ratification  and  Implementation  by  the  EU  of  the  Minamata  Convention  on  Mercury 
Accompanying the document Proposal for a Regulation of the European Parliament and of the Council on 
mercury, and repealing Regulation (EC) No 1102/2008’ (SWD/2016/017 final, of 2.2.2016).  

20  Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011 on the restriction of 
the  use  of  certain  hazardous substances  in  electrical  and  electronic  equipment  (OJ  L  174,  01.07.2011,  p. 
88).   

21  Regulation  No  1907/2006  of  the  European  Parliament  and  of  the  Council  of  18  December  2006  on  the 
Registration,  Evaluation,  Authorisation  and  Restriction  of  Chemicals  (REACH),  establishing  a  European 
Chemicals  Agency,  amending  Directive  1999/45/EC  and  repealing  Council  Regulation  (EEC)  No  793/93 
and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission 
Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396 of 30.12.2006, p. 1). 

22  Commission Delegated Regulation (EU) .../... of 14 July 2023 amending Regulation (EU) 2017/852 of the 
European  Parliament  and  of  the  Council  as  regards  mercury-added  products  subject  to  manufacturing, 
import and export prohibitions (C(2023)4683 final). 

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Regarding other parts of the propsal by the Africa Region concerning amendments to Part II 
of Annex A, certain provisions are consistent with the Union acquis, including: 

• 

• 

National plans concerning the measures Parties intend to implement to phase out the 
use of dental amalgam (Mercury Regulation, Article 10(3)) 

Setting  national  objectives  to  phase  out  sale  and  offering  of  sales  of  cosmetics 
including, but not limited to carrying out two or more of the following: 

• 

• 

Developing  and  implementing  strategies  to  discourage  marketing,  advertising 
and display 

Engaging  online  platforms  in  developing  and  implementing  product  safety 
pledges 

However, other provisions are not covered by the Union acquis, including: 

• 

• 

Excluding  or  not  allowing,  by  taking  measures  as  appropriate,  the  use  of  dental 
amalgam in government insurance policies and programs 

For cosmetics:  

• 

• 

Coordinating  and  collaborating  on  phase  out  initiatives  inter-ministerially  and 
bilaterally and/or regionally  

Raising  public  awareness  about  the  hazards  of  SLPs  use  among  physicians, 
dermatologists and beauty centres, as well as consumers and family members 

These  provisions  do  not  have  legal  effect  to  the  Union  acquis.  For  example,  according  to 
Mercury  Regulation  Article  19(b)  competence  in  organizing  and  delivering  health  services 
and medical care is Member State competence. They are therefore not subject to this proposed 
Council Decision.  

Accordingly,  the  amendment  of  Annex  A  provides  several  opportunities  to  reduce  further 
mercury use and associated pollution worldwide:  

(1) 

(2) 

To  narrow  the  gap  between  the  existing,  more  advanced  Union  law  and  the 
Agreement by adding, to Part I of its Annex A, products already listed in Annex II to 
the Union Mercury Regulation.  

To add in Part I of Annex A to the Agreement products that are not yet subject to a 
ban  on  manufacturing  and  export  under  the  Union  Mercury  Regulation  but  are 
nonetheless either no longer allowed to be placed on the Union market or subject to 
on-going legislative developments aimed at setting a similar ban at Union level. 

Hence, the position to be taken on the Union’s behalf at COP5 shall consist in supporting the 
adoption  of  acts  aimed  to  extend  the  scope  of  application  of  Annex  A  to  the  Agreement  to 
MAPs  that  are  already  prohibited  from  being  manufactured  and  traded  in  accordance  with 
Annex II to the Union Mercury Regulation, or are already banned from being placed on the 
Union market, or are subject to on-going legislative developments aimed at setting a similar 
ban  at  Union  level,  and  that  can  be  replaced  with  mercury-free  alternatives  proven  to  be 

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economically and technically feasible as well as beneficial from an environmental and human 
health perspective.  

Amendment of Annex B to the Agreement setting the list of mercury processes subject to a 
‘phase-out’ date or to requirements on mercury use.  

The position to be taken on the Union’s behalf is based upon the following elements:  

Union  law,  in  particular  Article  7,  paragraphs  1  and  3,  and  Annex  III  to  the  Mercury 
Regulation have transposed Article 5, paragraphs 2 and 3, and Annex B, to the Agreement, in 
a stricter manner.  

Firstly, whilst Annex B to the Agreement covers five specific mercury processes (production 
of  chlor-alkali,  acetaldehyde,  vinyl  chloride  monomer 
(‘VCM’),  alcoholates  and 
polyurethane), Annex III to the Mercury Regulation contains a catch-all provision prohibiting, 
at specified phase-out dates, the use of mercury or mercury compounds in all manufacturing 
processes  in  the  Union,  i.e.  when  used  as  a  catalyst  (1  January  2018)  or  as  an  electrode  (1 
January 2022). The scope of application of this prohibition  is thus  open-ended under Union 
law. 

Secondly, although Annex III to the Mercury Regulation sets a derogating phase-out date for 
alcoholates  production,  this  provision  is  stricter  in  comparison  with  Annex  B  to  the 
Agreement.  Whereas  the  Mercury  Regulation  prohibits  mercury  use  as  catalyst  for 
polyurethane  production  since  1  January  2018,  the  Agreement  sets  only  a  restriction  on 
mercury use and specifies that the Parties either ‘aim at’ phasing-out  this  use by 16 August 
2027  (polyurethane)  or  phase-out  such  use  five  years  after  the  COP  has  determined  that 
mercury-free  alternatives  have  become  technically  and  economically  feasible  (VCM  and 
alcoholates).  

The amendment of Annex B provides an opportunity to reduce the industrial use of mercury. 
This can be achieved by narrowing the gap between existing, more advanced Union law and 
the  Agreement  by  adding  to  Part  I  of  Annex  B  to  the  Agreement,  phase-out  dates  for 
polyurethane production using mercury, in consistency with the Union acquis and considering 
existing  available technically and economically feasible mercury-free  alternatives processes, 
as reported in the March 2020 Union submission under Decision MC-3/1. 

Hence, the position to be taken on the Union’s behalf at COP5 should consist in supporting 
the adoption of acts  aimed to  introduce  a phase-out  date for the  production of polyurethane 
using mercury. 

4. 

LEGAL BASIS 

4.1. 

4.1.  Procedural legal basis 

4.1.1.  Principles 

Article  218(9)  of  the  Treaty  on  the  Functioning  of  the  European  Union  (TFEU)  regulates 
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.’ 

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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’23. 

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 acts which the COP is called upon to adopt constitute acts having legal effects, because 
the Parties to the Agreement would have to take measures to ensure that they are implemented 
and complied with. 

The  envisaged  acts  do  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 
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  protection  of  the 
environment and human health. 

Thus, 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. 

23 

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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2023/0329 (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 to amend Annexes A and B to 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) 

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The  Minamata  Convention  on  Mercury  (the  ‘Agreement’)  was  concluded  by  the 
Union  by  Council  Decision  (EU)  2017/93924  and  entered  into  force  on  16  August 
2017. 

Pursuant to Decision MC-1/1 on Rules of Procedure, adopted by the Conference of the 
Parties to the Agreement (‘COP’) at its first meeting, the Parties to the Agreement (the 
‘Parties’) should make every effort to reach agreement on all matters of substance by 
consensus. 

Pursuant to Articles 4(8) and 5(10) of the Agreement, the COP should, by 16 August 
2022, review Annexes A and B to the  Agreement, and may consider amendments to 
those  Annexes,  taking  into  account  proposals  submitted  by  the  Parties  pursuant  to 
Articles 4(7) and 5(9) of the Agreement, information made available by the Secretariat 
of  the  Agreement  pursuant  to  Articles  4(4)  and  5(4)  of  the  Agreement,  and  the 
availability  of  technically  and  economically  feasible  mercury-free  alternatives  taking 
account of associated  environmental and human health risks and benefits. 

On  30  April  2021,  the  Union  submitted  to  the  Secretariat  of  the  Agreement  a 
proposal25 to amend Annexes A and B to the Agreement, in accordance with Articles 
4(7)  and  5(9)  of  that  Agreement.  The  Union’s  proposal  to  amend  Annex  A  to  the 
Agreement  aimed  to  extend  its  scope  of  application  to  additional  mercury-added 
products with associated phase-out dates or mercury-regulating measures. The Union’s 
proposal to amend Annex B to the Agreement aimed to introduce a phase-out date for 
the production of polyurethane using mercury-containing catalyst. 

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). 
Council Decision (EU) 2021/727 of 29 April 2021 on the submission, on behalf of the European Union, 
of proposals to amend Annexes A and B to the Minamata Convention on Mercury, regarding mercury-
added products and manufacturing processes in which mercury or mercury compounds are used (OJ L 
155, 5.5.2021, p. 23). 

EN 

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  EN 

 
 
(5) 

(6) 

(7) 

(8) 

(9) 

At  the  second  segment  of  its  fourth  meeting,  the  COP  decided  in  its  Decision  MC-
4/326 to include eight new mercury-added products in its Annex A (Part I). 

However,  for  four  mercury-added  products  no  agreement  was  reached  on  phase-out 
dates.  Decision  MC-4/3  deferred  the  decision  on  those  phase-out  dates  to  the  fifth 
meeting of the Conference of the Parties (31 October to 3 November).  

Decision MC-4/3 also deferred the decision on adding the production of polyurethane 
using  mercury-containing  catalysts  to  Part  I  of  Annex  B  to  the  fifth  meeting  of  the 
COP. 

A new proposal for amending Annex A to the Agreement has been submitted by the 
Africa  Region  in  accordance  with  Article  4(7)  of  the  Agreement.  The  proposal 
concerns cosmetics, dental amalgam, and mercury-containing lamps and proposes new 
text for Parts I and II to Annex A. 

The  Union should support amendments  to  Annexes A and B to  the  Agreement in  so 
far as they would be consistent with the Union’s submission27, with the Union acquis 
or with EU policy. 

(10)  To  the  extent  that  they  are  referred  to  in  the  submission  by  the  Africa  Region,  the 
Union  should  support  amendments  to  Annex  A  to  the  Agreement  in  so  far  as  they 
cover lamps, cosmetics and dental amalgam. 

(11)  At the fifth meeting of the COP, the Parties will consider the adoption of a Decision to 

amend Annex A to the Agreement. 

(12) 

It  is  appropriate  to  establish  the  position  to  be  taken,  on  behalf  of  the  Union,  at  the 
fifth meeting of the COP, as the proposed Decision, if adopted, will have legal effects, 
since  the  Parties  will  have  to  take  measures  to  implement  it  at  national  or  regional 
levels, or both. 

HAS ADOPTED THIS DECISION: 

Article 1 

The  position  to  be  taken,  on  behalf  of  the  Union,  at  the  fifth  meeting  of  the  COP  to  the 
Agreement shall be to support the adoption of a Decision to amend Annex A thereof, which: 

— is consistent with the Union acquis; or 

— is consistent with Council Decision (EU) 2021/727 of 29 April 2021; or  

—  aims  to  support  a  phase-out  of  mercury-containing  lamp  categories  referred  to  by  the 
Africa Region in its submission made in accordance with Article 4(7) of the Agreement, and 
for which the requests for renewal of the exemptions on mercury use have been rejected, in 
accordance with Directive 2011/65/EU; or  

— aims to support a phase-out of the use of dental amalgam.  

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27 

Decision  MC-4/3:  Review  and  amendment  of  annexes  A  and  B  to  the  Minamata  Convention  on 
Mercury, 25 March 2022. 
Council Decision (EU) 2021/727 of 29 April 2021 on the submission, on behalf of the European Union, 
of proposals to amend Annexes A and B to the Minamata Convention on Mercury, regarding mercury-
added products and manufacturing processes in which mercury or mercury compounds are used (OJ L 
155, 5.5.2021, p. 23). 

EN 

11 

  EN 

 
Article 2 

Refinement  of  the  position  referred  to  in  Article  1  may  be  agreed  to,  in  the  light  of 
developments  at  the  fifth  meeting  of  the  COP,  by  the  representatives  of  the  Union,  in 
consultation with Member States during on-the-spot coordination meetings, without a further 
decision of the Council. 

Article 3 

This Decision is addressed to the Commission. 

Done at Brussels, 

For the Council 
The President 

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  EN