Explanatory Memorandum to COM(2023)542 - EU position 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 - Main contents
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| dossier | COM(2023)542 - EU position at the fifth meeting of the Conference of the Parties to the Minamata Convention on Mercury as regards the ... |
|---|---|
| source | COM(2023)542 |
| date | 22-09-2023 |
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.
Contents
- 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:
- a. Triband phosphor, all wattages
- 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
- c. Licensing and product ingredient approvals for manufacturing facilities for cosmetics and beauty products
- iii. Raising public awareness about the hazards of SLPs use among physicians, dermatologists and beauty centres, as well as consumers and family members
- i. Submitting to the Secretariat a national plan concerning the measures Parties intend to implement to phase out the use of dental amalgam
- 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
- Accordingly, the amendment of Annex A provides several opportunities to reduce further mercury use and associated pollution worldwide:
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:
- 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 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).
Paragraph 6 of Decision MC-4/3
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.
Proposed amendments to Part II to Annex A
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.
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 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.
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:
- Excluding or not allowing, by taking measures as appropriate, the use of dental amalgam in government insurance policies and programs
- 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:
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.
(2) 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 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.’
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.