Explanatory Memorandum to COM(2018)144 - Persistent organic pollutants (recast) - Main contents

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This page contains a limited version of this dossier in the EU Monitor.

dossier	COM(2018)144 - Persistent organic pollutants (recast).
source	COM(2018)144
date	22-03-2018

1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

Regulation (EC) No 850/2004 of the European Parliament and of the Council ¹ ('the POPs Regulation') implements the commitments of the Union under the Stockholm Convention on Persistent Organic Pollutants (‘the Stockholm Convention’) approved by Council Decision 2006/507/EC ² and under the Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Persistent Organic Pollutants (‘the POPs Protocol’) approved by Council Decision 2004/259/EC ³ .

1. The following reasons lead to the proposal to recast the POPs Regulation:

Article 16 of the POPs Regulation states that the comitology committee for general matters of the Regulation has its legal basis in Article 29 of Council Directive 67/548/EEC ⁴ . However, this Directive was revoked by Article 60 of Regulation (EC) 1272/2008 of the European Parliament and of the Council ⁵ with the effect that the comitology committee for the Regulation ceased to exist on 1 June 2015.

As a result of this, and in view of the procedural changes introduced by the Treaty on the Functioning of the European Union (the Lisbon Treaty), it is necessary to adapt the provisions of the POPs Regulation concerning comitology. In particular, it should be specified which rules are subject to implementing acts and clarified which conditions apply to the adoption of delegated acts.

In order to support the Commission in its tasks foreseen under the POPs Regulation, it is proposed to involve the European Chemicals Agency ("the Agency") in certain administrative, technical and scientific tasks necessary for the implementation of the Regulation. It is also proposed to support the enforcement of the POPs Regulation by Member States by including a coordination role for the Forum for Exchange of Information on Enforcement established by Regulation (EC) No 1907/2006 of the European Parliament and of the Council ('REACH') ⁶ .

In light of the experience of the functioning of the procedures under the POPs Regulation, it is appropriate to include certain technical amendments to the operative provisions, such as clarifying existing definitions and adding the definitions of manufacturing, use and a closed-system site-limited intermediate. It is also appropriate to update the provisions of the reporting requirements in light of the conclusions reached in the recently adopted Report on Actions to Streamline Environmental Reporting. ⁷

As a result of amendments to the Annexes of the Stockholm Convention that were decided at the Conference of the Parties in 2015, it is necessary to update the Annexes of the POPs Regulation in order to comply with the Union's commitments under that Convention.

The proposal contributes to the achievement of priority objective 3 of the 7th Environment Action Programme to 2020: "To safeguard the Union’s citizens from environment-related pressures and risks to health and well-being" and also fits under priority objective 4, paragraph 65, which requires that the public has access to clear environmental information at national level. To that end, the proposal makes cross-references to and guarantees consistency with the requirements of Directive 2003/4/EC of the European Parliament and of the Council ⁸ and of Directive 2007/2/EC of the European Parliament and of the Council ⁹ (the INSPIRE Directive).

Furthermore, simplifications of reporting and monitoring processes are pursued, with a focus on automation, lower frequency and relevance of data, in line with the Union's Better Regulation agenda and the findings of the Fitness Check on Environmental Reporting and Monitoring ¹⁰ . At the same time, this proposal is in line with the Commission's Digital Single Market strategy with provisions to improve citizens' access to information and transparency.

• Consistency with existing policy provisions in the policy area

The current Union rules relating to the management of persistent organic pollutants are laid down in the POPs Regulation, as most recently amended by Commission Regulation (EU) 2016/460 ¹¹ . In addition, Union obligations relating to export of persistent organic pollutants are implemented by Regulation (EU) No 649/2012 of the European Parliament and of the Council ¹² .

• Consistency with other Union policies

The proposal is fully in line with existing policies and objectives aimed at protecting human health and the environment globally.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The substantive legal basis is Article 192 i (relating to Environmental Protection) of the Treaty on the functioning of the European Union, given that the measures agreed under the Stockholm Convention predominantly pursue an environmental objective (i.e. the elimination of persistent organic pollutants).

• Subsidiarity (for non-exclusive competence)

The objectives of the proposal cannot be achieved by the Member States because a harmonised approach is needed to ensure that the Union, as a Party to the Stockholm Convention, meets its international obligations.

• Proportionality

The proposal complies with the proportionality principle since it does not go beyond what is necessary to achieve its objectives. It concentrates on changes only where they are deemed necessary and appropriate for its proper functioning or where they are necessary due to changes in other legislation.

• Choice of the instrument

Given that the existing legislation to be replaced is in the form of a regulation, this is the most appropriate instrument.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

Due to the necessity to undertake the recast and the limited scope of the changes introduced, it was not deemed necessary to carry out an ex-post evaluation of the existing legislation. However, the Commission has recently completed a Fitness Check evaluation on Reporting and Monitoring of environmental legislation and the Report ¹³ from this Fitness Check has been examined in order to asses the effectiveness of the reporting obligations laid down in the POPs Regulation. Some adjustments are made in the recast that are considered necessary in line with the actions identified in the Report, including streamlining, simplifying and automatising the reporting/monitoring process and improving the provision of public information.

• Stakeholder consultations

Due to the nature of the recast, which introduces only technical amendments to the operative provisions, it was not deemed necessary to carry out a formal consultation of stakeholders.

Relevant stakeholders have been informed within the framework of the meetings of Competent Authorities for the POPs Regulation about the intended modifications. Participants have included stakeholders such as industry and NGOs as well as Member States, all of whom have had an opportunity to give their opinions and to make comments.

• Collection and use of expertise

Due to the limited scope of changes proposed in the context of this review, it was not deemed necessary to make extensive use of external expertise. However, the Agency was consulted on some technical issues.

• Impact assessment

The current rules set out in the Regulation are generally working well and only minor technical modifications are necessary to facilitate the implementation. The main changes aim to align the POPs Regulation with the Lisbon Treaty and general chemicals legislation as well as to involve the Agency in the tasks foreseen under the Regulation. As the overall impact of the review is expected to be limited, it was not considered imperative to carry out an impact assessment. The main effects of the changes can be summarised as follows:

–As a result of the proposed changes, there will be more clarity, transparency and increased legal certainty for all parties involved in the implementation of the Regulation;

–Some tasks will be transferred from the Commission to the Agency, which is expected to reduce the overall costs and to increase the scientific knowledge available for implementation;

–The current high level of protection of human health and the environment will be maintained.

• Regulatory fitness and simplification

The proposal does not exempt micro-enterprises and does not include special rules for SMEs since it addresses persistent organic pollutants which are of global concern and, therefore, need to be phased-out by all companies at global level. The proposal does not have any impact on sectoral EU competitiveness or international trade since it implements legally binding obligations under the Stockholm Convention that apply in principle to all Parties to the Convention.

The proposal includes a role for the Agency in receiving, monitoring and exchanging information submitted to it under the provisions of the proposal. As the Agency currently manages other information activities in the framework of EU chemicals legislation, including REACH, CLP and the PIC Regulation, it is considered appropriate to specify a similar role for the Agency in this proposal so as to enhance consistency in regulatory implementation.

• Fundamental rights

The unsound management of hazardous substances contributes to overall environmental pollution which may have serious effects on the right to life, the right to the integrity of the person, the right to fair and just working conditions and also the right to environmental protection.

The Stockholm Convention, underpinned by the precautionary principle, entered into force in 2004 to protect human health and the environment from chemicals that persist in the environment for long periods, become widely distributed geographically, accumulate in human and wildlife body tissues, and have adverse effects on human health or the environment.

The POPs Regulation currently implements the provisions of the Convention and the Protocol in the Union. Bearing in mind Principles 14 and 15 of the Rio Declaration on Environment and Development, this Regulation provides measures to minimise, with a view to eliminating where feasible as soon as possible, releases of POPs, and establishes provisions regarding waste consisting of, containing or contaminated by any of those substances.

The proposal will replace the current POPs Regulation while adhering to the commitments made by the Union under the Convention and Protocol.

4. BUDGETARY IMPLICATIONS

The proposal is not expected to have important budgetary implications since no new tasks were introduced compared to the current POPs Regulation. The transfer of certain tasks from the Commission to the Agency is expected to have no significant impact on the overall costs of implementation. Reductions are expected to be achieved in the medium-term considering the potential for synergies with other existing tasks of the Agency.

The financing of the tasks carried out by the Agency will be provided in form of a subsidy from the Union budget.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

The proposal contains provisions on monitoring of persistent organic pollutants and on reporting on their manufacturing, use and emissions. In addition, it provides for obligations on monitoring the application of the POPs Regulation. It also requires the setting-up and regular review of a plan for implementation of the Stockholm Convention. As this proposal is a recast of an existing Regulation that already contains those elements, it focuses on taking account of the results of the above-mentioned Fitness Check but does not introduce any additional implementation, monitoring or reporting requirements.

• Detailed explanation of the specific provisions of the proposal

The proposed recast Regulation would essentially maintain all provisions of the current POPs Regulation, including those that go beyond the requirements of the Stockholm Convention and the POPs Protocol. However, certain technical amendments are deemed necessary to improve the clarity and functioning of the Regulation. The main changes are as follows:

–Changes and clarifications as regards certain definitions (Article 2)

In order to ensure that the terminology used in this Regulation is clear and reflects the interpretation of terminology used in chemicals legislation in general, the definitions for ‘placing on the market’, ‘article’, ‘substance’, ‘waste’, ‘disposal’ and ‘recovery’ have been amended. The term ‘preparation’ has been replaced by ‘mixture’ to reflect the changes in the general chemicals legislation. It has also been deemed appropriate to add definitions for manufacturing, use and closed-system, site-limited intermediate.

–Involvement of the European Chemicals Agency (Articles 8, 16 and 17)

A role for the Agency in the implementation of this Regulation has been proposed due to the Agency's expertise and experience with the implementation of general chemicals legislation and international agreements on chemicals, in particular regarding its current involvement in REACH and Regulation (EU) No 649/2012.

It is proposed that the role of the Agency will include its involvement in the technical preparation of dossiers on substances that may be used by the Commission, should it use its discretion to propose one or more such substances to be listed as POPs in the Stockholm Convention. In particular, the Agency will take action where substances are considered to fulfil the criteria in Annex D of the Stockholm Convention.

Substances for which there are uses within the scope of the authorisation requirement of REACH, that are considered to fulfil the criteria in Annex D of the Stockholm Convention and which are identified in accordance with Article 59 of REACH due to their persistence and bioaccumulation should, in general, be subject to the restriction procedure under REACH, unless other regulatory measures are deemed to be more appropriate, with a clear indication that the substance may be submitted to the Convention at a later stage. Where such substances have not been identified in accordance with Article 59 of REACH, they should first be subject to that identification procedure or be subject to assessment by the REACH Member State Committee. The Agency must ensure that the restriction dossier is taken into account when preparing the POP dossier, which shall cover information on all known uses of the substance in the Union and not only those considered under REACH. This will ensure a consistent and efficient implementation of legislation on chemicals in the Union and coherence between the work on a potential POP that is carried out under REACH and the international work that is conducted in support of the Stockholm Convention.

The POP dossier should be made subject to the normal stakeholder consultations undertaken by the Agency. This extended process serves the purpose of obtaining stakeholder information at an early stage and provides the evidence base for the Commission to decide whether to propose the substance as a POP under the Stockholm Convention in a draft Decision pursuant to Article 218(9) of the Lisbon Treaty.

–Inclusion of a role for the Forum for Exchange of Information on Enforcement ('the Forum') established by REACH (Article 8(2)).

The Forum is a network of authorities responsible for the enforcement of REACH, Regulation (EC) No 1272/2008 (CLP) and Regulation (EC) 649/2012 (PIC) in the EU. As a result of the experience it has accrued in relation to those chemical regulations, it is deemed appropriate to propose a role for the Forum in coordinating the enforcement tasks specified in this Regulation.

–Adaptation of provisions in the current POPs Regulation related to the comitology procedures to the procedures of the Lisbon Treaty (Articles 4 i, 7 i, 15, 18)

The provisions in which certain powers are conferred upon the European Commission have been revised in order to reflect the entry into force of the Lisbon Treaty.

–Adaptation of the provisions on reporting and monitoring;

Articles 11 and 13 will be updated by more effective provisions which simplify monitoring. It is foreseen that Member States put in place a data set gathering relevant data under this Regulation, in particular Annex III. Collected spatial data sets require compliance with the INSPIRE Directive. To that end, the support of ECHA is foreseen, whose role will also be to regularly compile and assess the data and provide the Commission with Member State and EU overviews of the Regulation's implementation.

🡻 Corrigendum, OJ L 229, 29.6.2004, p. 5 (adapted)