CELEX: 52022PC0062
Language: en
Date: 2022-02-16
Title: Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the second segment of the fourth meeting of the Conference of the Parties to the Minamata Convention on Mercury as regards the adoption of a Decision establishing thresholds for mercury waste, in accordance with Article 11, paragraph 2, of that Convention

EUROPEAN
                              COMMISSION
                                                       Brussels, 16.2.2022
                                                       COM(2022) 62 final
                                                       2022/0042 (NLE)
                                          Proposal for a
                                    COUNCIL DECISION
   on the position to be taken on behalf of the European Union at the second segment of the
       fourth meeting of the Conference of the Parties to the Minamata Convention on
      Mercury as regards the adoption of a Decision establishing thresholds for mercury
            waste, in accordance with Article 11, paragraph 2, of that Convention
EN                                                                                          EN
 ---pagebreak---                                  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 second segment of the fourth meeting of the Conference of the Parties to the
   Minamata Convention on Mercury (COP4.2) 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, of that
   Convention.
   2.        CONTEXT OF THE PROPOSAL
   2.1.      The Minamata Convention on Mercury
   The Minamata Convention on Mercury (‘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 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
   Agreement1 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), adopted Decision MC-3/52, 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
   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.
   1
        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).
   2
        Decision MC-3/5 Mercury waste thresholds, Report of the Conference of the Parties to the Minamata
        Convention on Mercury on the work of its third meeting, UNEP/MC/COP.3/23 of 07.01.2020, available
        here: https://www.mercuryconvention.org/sites/default/files/documents/final_report/UNEP-MC-COP-3-23-
        Report-EN.pdf
EN                                                      1                                                      EN
 ---pagebreak---    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), is to
   continue with discussions on applicable thresholds during the intersessional period leading to
   its fourth 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 Procedures
   adopted by the COP at its first meeting (24-29 September 2017), 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 above-cited intersessional expert work has resulted in a dedicated report developed by the
   Secretariat of the Convention, which includes a draft COP decision on mercury waste
   thresholds for consideration and possible adoption at COP4.2 (the envisaged act)3.
   The envisaged act will set thresholds allowing the identification of mercury contaminated
   waste that will fall under Article 11 of the Agreement. Accordingly, the envisaged act will
   further define the scope of application of the waste provisions of the Agreement and, in
   particular, of its Article 11, paragraph 3, on the duty to treat relevant mercury waste according
   to ESM.
   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 second segment
   of the fourth 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 COP.3, which was instrumental in developing
   this Decision and already covered the issue of the threshold for such waste.4
   Mercury waste is regulated at EU level, notably by Regulation (EU) 2017/852 of the
   European Parliament and of the Council of 17 May 2017 on Mercury and repealing
   3
        UNEP/MC/COP.4/8
   4
        See Council Decision (EU) 2019/2119 of 21 November 2019 on the position to be taken, on behalf of the
        European Union, at the third meeting of the Conference of the Parties to the Minamata Convention on
        Mercury, as regards the adoption of a Decision establishing thresholds for mercury waste, as referred to in
        Article 11(2) of that Convention (OJ L 3210, 11.12.2019, p. 117).
EN                                                       2                                                          EN
 ---pagebreak---    Regulation (EC) No 1102/20085, by Directive 2008/98/EC of the European Parliament and of
   the Council of 19 November 2008 on waste6, by 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 and by 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 waste8.
   EU waste law relies upon the key obligation set out in Articles 13 and 17 of Directive
   2008/98/EC 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.
   A Union position is needed as, once adopted, the Parties to the Agreement shall have to
   implement the envisaged act.
   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’9.
   4.1.2.    Application to the present case
   The COP is a body set up by an agreement, namely the Minamata Convention on Mercury.
   5
        OJ L 137, 24.05.2017, p. 1.
   6
        OJ L 312, 22.11.2008, p. 3.
   7
        OJ L 102, 11.4.2006, p. 15.
   8
        OJ L 226, 6.9.2000, p. 3.
   9
        Judgment of the Court of Justice of       7   October 2014, Germany    v Council,  C-399/12,
        ECLI:EU:C:2014:2258, paragraphs 61 to 64.
EN                                                  3                                                EN
 ---pagebreak---    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.      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 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.
EN                                                 4                                              EN
 ---pagebreak---                                                                 2022/0042 (NLE)
                                                   Proposal for a
                                              COUNCIL DECISION
   on the position to be taken on behalf of the European Union at the second segment of the
        fourth meeting of the Conference of the Parties to the Minamata Convention on
       Mercury as regards the adoption of a Decision establishing thresholds 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)     The Minamata Convention on Mercury10 (‘the Agreement’) was concluded by the
           Union by Council Decision (EU) 2017/93911 and entered into force on 16 August
           2017.
   (2)     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.
   (3)     The Conference of the Parties to the Agreement, during its third meeting on 25-29
           November 2019, adopted Decision MC-3/512 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.
   (4)     The Conference of the Parties, during the second segment of its fourth meeting on 21-
           25 March 2022, is expected to adopt a Decision (‘the proposed Decision’) on
           thresholds for mercury contaminated waste, as referred to in Article 11, paragraph 2,
           of the Agreement, which would, as a result, define the scope of application of Article
           11 of the Agreement for such waste. Whereas mercury contaminated waste that would
   10
           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
   11
           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).
   12
           Decision MC-3/5 Mercury waste thresholds, Report of the Conference of the Parties to the Minamata
           Convention on Mercury on the work of its third meeting, UNEP/MC/COP.3/23 of 07.01.2020, available
           here: https://www.mercuryconvention.org/sites/default/files/documents/final_report/UNEP-MC-COP-3-
           23-Report-EN.pdf
EN                                                        5                                                   EN
 ---pagebreak---           fall under Article 11, paragraph 2, of the Agreement, should be subject to
          environmentally sound management by virtue of Article 11, paragraph 3, of that
          Agreement.
   (5)    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.
   (6)    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 proposed Decision; 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 second segment of the fourth 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
EN                                                 6                                               EN