CELEX: 52022PC0067
Language: en
Date: 2022-02-24
Title: Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the 15th Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal with regard to certain amendments of Article 6(2) in that Convention

EUROPEAN
                              COMMISSION
                                                      Brussels, 24.2.2022
                                                      COM(2022) 67 final
                                                      2022/0046 (NLE)
                                         Proposal for a
                                    COUNCIL DECISION
    on the position to be taken on behalf of the European Union at the 15th Conference of
     the Parties to the Basel Convention on the Control of Transboundary Movements of
   Hazardous Wastes and their Disposal with regard to certain amendments of Article 6(2)
                                      in that Convention
EN                                                                                        EN
 ---pagebreak---                                     EXPLANATORY MEMORANDUM
   1.        SUBJECT MATTER OF THE PROPOSAL
   This proposal concerns a decision establishing the Union’s position at the 15th meeting of the
   Conference of the Parties to the Basel Convention, with respect to a proposal to change
   Article 6 of this Convention. The meeting is scheduled to take place in June 2022.
   2.        CONTEXT OF THE PROPOSAL
   2.1.      The Basel Convention on the Control of Transboundary Movements of Hazardous
             Wastes and their Disposal
   The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and
   their Disposal (‘the Convention’) was adopted on 22 March 1989 and entered into force in
   1992. The European Union as well as its Member States are Parties to the Convention1. The
   Convention has 188 Parties.
   The Convention's cornerstone is a control system for the export, import and transit of certain
   waste, through the procedure of “prior informed consent”. Exports of waste subject to the
   Convention shall be notified in advance to the competent authorities of the States of import
   and transit. The notifications shall be made in writing and shall contain the declarations and
   information specified in Annex V A to the Convention. A waste export may only proceed if
   and when all States concerned have given their written consent (Article 6 of the Convention).
   The Convention's control system applies to hazardous waste defined in Article 1 and listed in
   Annex VIII to the Convention, as well as to waste listed in Annex II, which contains waste
   collected from households, residues arising from the incineration of household waste and
   certain plastic waste. The Convention also lists waste entries in Annex IX which do not fall
   within its scope and control system unless such waste contains a material belonging to a
   category in Annex I to an extent causing it to exhibit a hazardous characteristic in Annex III.
   2.2.      The Conference of the Parties
   The Conference of the Parties to the Basel Convention is the principal decision-making body
   of the Convention. It has powers to amend the Annexes to the Convention and it meets every
   two years.
   The fifteenth meeting of the Conference of the Parties to the Basel Convention (CoP15) is
   being held in two segments: a first online segment took place from 26 to 30 July 2021 and the
   meeting will be resumed during a face-to-face segment in Geneva, from 6 to 17 June 2022.
   2.3.      The proposed amendment to the Convention
   The Russian Federation tabled a proposal for consideration at the 15th meeting of the
   Conference of the Parties, designed to amend the first sentence of paragraph 2 of Article 6 of
   the Convention (‘the envisaged act’)2.
   1
           Council Decision 93/98/EEC concerning the conclusion, on behalf of the Community, of the Basel
           Convention of 22 March 1989 on the control of transboundary movements of hazardous wastes and
           their disposal, OJ L 39, 16.2.1993, p. 1.
   2
           The      proposal    is   available     on the website    of   the    Basel Convention,    see
           http://www.basel.int/TheConvention/Communications/tabid/1596/Default.aspx
EN                                                      1                                                 EN
 ---pagebreak---    The first sentence of Article 6(2) of the Convention reads as follows: “The State of import
   shall respond to the notifier in writing, consenting to the movement with or without
   conditions, denying permission for the movement, or requesting additional information”.
   This envisaged act proposes to change this sentence through the addition of a time limit of 30
   days within which a country of import should respond to the notifier (to consent to the
   planned shipment, deny its permission to this shipment, or to request additional information).
   In addition, the proposal consists in deleting the “,” between “conditions” and “denying”, to
   replace the comma with “or”.
   The Convention is implemented in the Union through Regulation (EC) No 1013/2006 of the
   European Parliament and of the Council of 14 June 2006 on shipments of waste3 (“the WSR”
   hereafter). Any modifications to the Convention would come into effect in the EU after they
   have been implemented through amendments of this Regulation.
   The current rules applying to the Union and its Member States already foresee a 30 days
   deadline for the importing country to respond to the notifier (see Article 8 of the WSR). This
   also applies to other OECD countries, as per the OECD Decision4.
   For the Union, the only practical consequence of the changes linked to the Russian Federation
   proposal would relate to the procedure for the export of notified waste to non-OECD
   countries. As export of Annex VIII and Annex II waste to non-OECD countries is banned
   under the WSR, the change triggered by the Russian proposal would only relate to “unlisted
   waste” (i.e. with the Russian proposal, non-OECD countries importing unlisted waste from
   the EU would have to respond to the notifier within 30 days), which, under Article 3(1)(b)(iii)
   and (iv) of the WSR, are subject to the procedure of “prior informed consent”. The
   amendment proposed by the Russian Federation would mean that, for these cases, the
   importing country would have to respond within 30 days to the notifier of a shipment from the
   Union destined to a non-OECD country.
   The procedure for amending the Convention is governed by Article 17 of the Convention.
   Any such amendment must be adopted at a meeting of the Conference of the Parties. An
   amendment becomes binding on those Parties that deposit their instruments of ratification,
   approval, formal confirmation or acceptance in accordance with Article 17(5) of the
   Convention, which provides: “Instruments of ratification, approval, formal confirmation or
   acceptance of amendments shall be deposited with the Depositary. Amendments adopted in
   accordance with paragraphs 3 or 4 above shall enter into force between Parties having
   accepted them on the ninetieth day after the receipt by the Depositary of their instrument of
   ratification, approval, formal confirmation or acceptance by at least three-fourths of the
   Parties who accepted them or by at least two thirds of the Parties to the protocol concerned
   who accepted them, except as may otherwise be provided in such protocol. The amendments
   shall enter into force for any other Party on the ninetieth day after that Party deposits its
   instrument of ratification, approval, formal confirmation or acceptance of the amendments”.
   There is therefore a need for a ratification, approval, formal confirmation or acceptance by
   three quarters of the Parties to the Convention (so 141 Parties) for any amendment of the
   Convention to enter into force.
   So far, the body of the Convention has been amended once, through the addition of an Article
   4A and of a subsequent addition of an Annex VII (“the Basel Ban amendment”) to the
   3
           OJ L 190, 12.7.2006, p. 1.
   4
           Decision on the Control of Transboundary Movements of Wastes Destined for Recovery Operations,
           https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0266
EN                                                        2                                               EN
 ---pagebreak---    Convention. This amendment was agreed by the Conference of the Parties at its third meeting
   in 1995 and it entered into force in 2019, for those Parties that have ratified it.
   3.       POSITION TO BE TAKEN ON THE UNION'S BEHALF
   (1)      The Union should not support the amendment of paragraph 2 of Article 6 of the
            Convention as proposed by the Russian Federation.
   (2)      The first part of the amendment (30 days time limit for the importing country to
            respond to the notifier) would not bring any major change for the Union and its
            Member States, as the time limit of 30 days for importing countries to respond to the
            notifier contained in the proposed amendment already applies to the majority of
            shipments notified by the EU and its Member States under Union law (with the
            exception of exports of unlisted waste to non-OECD countries). Neither would it
            change obligations for the EU/and its Member States receiving notifications, as the
            time limit of 30 days to respond already applies under Union law.
   (3)      The second part of the amendment (replacing a comma with “or”) does not seem
            necessary and would create legal uncertainty. The current formulation is sufficiently
            clear that the importing country can react in three different manners when responding
            to the notifier (consenting to the movement, denying the permission to this
            movement, or requesting additional information). There is therefore no need to
            amend this sentence.
   (4)      The process relating to amending the Convention is very burdensome and time
            consuming, especially as it requires each Party to proceed with its internal
            ratification process and a threshold of three quarters of all Parties to ratify if before
            the amendment enters into force. This amendment might also in the end have a
            limited impact, as amendments are only binding on those who have ratified them.
            The proposed amendment therefore would not address improving the effectiveness
            of the Convention in an efficient way as it would launch a lengthy and heavy process
            within the Convention and for its Parties.
   (5)      While not supporting the proposed amendments, the Union should stress that Parties
            should promote a better functioning of the notification procedure, within the
            framework of the Basel Convention. This could include the establishment of other
            time limits for responses to notifiers, notably for transit countries, as well as
            encouraging the use of electronic data interchange systems or incorporating the
            concept of “pre-consented facilities”, which stems from the OECD Decision on
            transboundary movements of waste, into the Basel Convention framework. There are
            a number of processes ongoing in the Convention already on these issues, which are
            useful but have so far delivered only limited results. The Union should underline the
            importance of these issues and explore if they could be addressed at as part of
            existing or new initiatives, which would not imply a change to the Convention. The
            Union should show openness towards such possible initiatives.
   (6)      Finally, it should be noted that the adoption of the proposed amendment, while not
            having clear added-value, would not prejudice the Union’s interests either.
   4.       LEGAL BASIS
   4.1.     Procedural legal basis
EN                                                  3                                                 EN
 ---pagebreak---    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’5.
   4.1.2.    Application to the present case
   The Conference of the Parties to the Basel Convention is a body set up by the Convention.
   The act which the Conference of the Parties is called upon to adopt constitutes an act having
   legal effects. The envisaged act will be binding under international law in accordance with
   Article 18 of the Convention. It is capable of influencing the content of EU legislation,
   namely Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14
   June 2006 on shipments of waste. This Regulation implements the Convention by, inter alia,
   laying down the procedures for exports from and imports to the Union as well as shipments
   between Member States.
   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
   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 protection of the
   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.
   5
           Judgment of the Court of Justice of 7 October 2014, Germany v Council, C-399/12,
           ECLI:EU:C:2014:2258, paragraphs 61to 64.
EN                                                  4                                                EN
 ---pagebreak---                                                           2022/0046 (NLE)
                                             Proposal for a
                                      COUNCIL DECISION
     on the position to be taken on behalf of the European Union at the 15th Conference of
      the Parties to the Basel Convention on the Control of Transboundary Movements of
    Hazardous Wastes and their Disposal with regard to certain amendments of Article 6(2)
                                         in 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)     The Basel Convention on the Control of Transboundary Movements of Hazardous
           Wastes and their Disposal (‘the Convention’) entered into force in 1992 and was
           approved by the Union by Council Decision 93/98/EEC concerning the conclusion, on
           behalf of the Community, of the Basel Convention of 22 March 1989 on the control of
           transboundary movements of hazardous wastes and their disposal6.
   (2)     Pursuant to Article 15(5)(b) of the Convention, the Conference of the Parties shall
           consider and adopt, as required, amendments to the Convention.
   (3)     The Conference of the Parties, during its 15th meeting in June 2022, is to consider the
           adoption of amendments of Article 6(2) of the Convention submitted by the Russian
           Federation. That proposal aims to establish a 30 days time limit for an importing
           country to respond to the notifier of a shipment of waste and to include another change
           presented as editorial.
   (4)     It is necessary to establish the position to be taken on the Union’s behalf at the
           Conference of the Parties on this proposal, as, being an amendment to the text of the
           Convention, it has legal effects. If adopted by the Conference of the Parties, this act
           would be binding on the Union and impact the content of Union law, namely
           Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14
           June 2006 on shipments of waste7.
   (5)     The Union should not support the above amendments of the Convention since this
           would require a long and heavy process to enter into force and it seems
           disproportionate to launch such process for an amendment, the objectives of which
           could be achieved by other means. The Union should rather be open to initiatives
           designed to improve the functioning of the procedure of “prior informed consent”, on
           the conditions that they have a broader scope than the proposal submitted to CoP15,
           are in line with broad Union policies and objectives and do not require an amendment
   6
           OJ L 39, 16.2.1993, p. 1.
   7
           OJ L 190, 12.7.2006, p. 1.
EN                                                  5                                              EN
 ---pagebreak---           to the Convention. It should be noted that the adoption of the proposed amendment,
          while not having clear added-value, would not prejudice the Union’s interests either.
   HAS ADOPTED THIS DECISION:
                                               Article 1
   1.       The position to be taken on the Union’s behalf at the 15th meeting of the Conference
            of the Parties to the Basel Convention shall be that it will not support the
            amendments to paragraph 2 of Article 6 of the Convention, as submitted by the
            Russian Federation.
   2.       Should other proposals to improve the functioning of the procedure of “prior
            informed consent” be submitted at the 15th meeting of the Conference of the Parties
            to the Basel Convention, the Union shall support such proposals subject to the
            following conditions :
            (a)   they are designed to improve the functioning of that procedure, by addressing
                  the delays and problems experienced by States of export, transit or import to
                  handle notifications and supporting the digitalisation of the procedure of “prior
                  informed consent”, so that waste can be shipped across borders without undue
                  delay, when the shipments in question are compliant with the provisions of the
                  Convention, without necessitating a change to the Convention;
            (b)   they contribute to the environmentally sound management of waste and to the
                  transition towards a global circular economy; and
            (c)   they support the proper implementation of the control mechanisms laid down
                  in the Convention and contribute to legal clarity in that regard.
                                               Article 2
   Refinement of the position referred to in Article 1 may be agreed to, in the light of
   developments at the 15th meeting of the Conference of the Parties, by representatives of the
   Union, in consultation with the 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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