Regulation (EC) No 304/2003 of the European Parliament and of the Council of 28 January 2003 concerning the export and import of dangerous chemicals (3) implemented the Rotterdam Convention on the prior informed consent procedure for certain hazardous chemicals and pesticides in international trade (4), hereinafter ‘the Convention’, which entered into force on 24 February 2004, and replaced Council Regulation (EEC) No 2455/92 of 23 July 1992 concerning the export and import of certain dangerous chemicals (5).
(2)
In its judgment of 10 January 2006 in Case C-178/03 (Commission v Parliament and Council) (6), the Court of Justice of the European Communities annulled Regulation (EC) No 304/2003 as it was based solely on Article 175(1) of the Treaty, ruling that both Articles 133 and 175(1) were the appropriate legal bases. However the Court also ruled that the effects of the Regulation were to be maintained until the adoption, within a reasonable period, of a new Regulation founded on appropriate legal bases. That also implies that obligations that were already fulfilled under Regulation (EC) No 304/2003 do not need to be accomplished again.
(3)
In accordance with Regulation (EC) No 304/2003, the Commission has submitted a report to the European Parliament and the Council on the operation of Regulation (EC) No 304/2003 from 2003 to 2005. Overall the procedures have worked well. However, the report identifies a number of technical amendments that appear to be necessary. It is therefore appropriate to incorporate those elements in this Regulation.
(4)
The Convention allows Parties the right to take action that is more stringently protective of human health and the environment than that called for in the Convention, provided that such action is consistent with the provisions of the Convention and is in accordance with international law. It is necessary and appropriate, in order not to weaken the level of protection afforded to the environment and to the general public of importing countries under Regulation (EEC) No 2455/92, to go further than the provisions of the Convention in certain respects.
(5)
As regards the participation of the Community in the Convention, it is essential to have a single contact point for Community interaction with the Secretariat and other Parties to the Convention as well as with other countries. The Commission should act as that contact point.
(6)
Exports of dangerous chemicals that are banned or severely restricted within the Community should continue to be subject to a common export notification procedure. Accordingly, dangerous chemicals, whether in the form of substances on their own or in preparations or in articles, which have been banned or severely restricted by the Community as plant protection products, as other forms of pesticides, or as industrial chemicals for use by professional users or by the public, should be subject to export notification rules similar to those applicable to such chemicals when they are banned or severely restricted within either or both of the use categories laid down in the Convention, namely as pesticides or chemicals for industrial use. In addition, chemicals subject to the international prior informed consent (PIC) procedure should also be subject to the same rules. This export notification procedure should apply to Community exports to all third countries, whether or not they are Parties to the Convention or participate in its procedures. Member States should be permitted to charge administrative fees, in order to cover their costs in carrying out this procedure.
(7)
Exporters and importers should be obliged to provide information concerning the quantities of chemicals in international trade covered by this Regulation so that the impact and effectiveness of the arrangements laid down therein can be monitored and assessed.
(8)
Notifications to the Secretariat of the Convention of Community or Member State final regulatory actions banning or severely restricting chemicals, with a view to their inclusion in the international PIC procedure, should be submitted by the Commission and should relate to those cases meeting the criteria laid down in the Convention in this regard. Additional information to support such notifications should be sought where necessary.
(9)
In cases where Community or Member State final regulatory actions do not qualify for notification because they do not meet the criteria, information concerning the actions should nevertheless be conveyed to the Convention Secretariat and other Parties to the Convention in the interests of information exchange.
(10)
It is also necessary to ensure that the Community take decisions with regard to the import into the Community of chemicals that are subject to the international PIC procedure. These decisions should be based on applicable Community legislation and take into account bans or severe restrictions imposed by Member States. Where justified, amendments to Community legislation should be proposed.
(11)
Arrangements are needed to ensure that Member States and exporters are aware of the decisions of importing countries as regards chemicals that are subject to the international PIC procedure, and that exporters comply with those decisions. Furthermore, in order to prevent undesired exports, no chemicals banned or severely restricted within the Community that meet the Convention criteria or that are covered under the international PIC procedure should be exported unless the explicit consent of the importing country concerned has been sought and obtained, whether or not that country is a Party to the Convention. At the same time, a waiver from this obligation is appropriate in relation to exports of certain chemicals to countries that are members of the Organisation for Economic Cooperation and Development (OECD) provided that certain conditions are met. Furthermore a procedure is needed to deal with cases in which, despite all reasonable efforts, no response is obtained from the importing country, so that exports of certain chemicals may proceed on a temporary basis under specified conditions. It is also necessary to provide for periodic review of all such cases as well as those in which explicit consent is obtained.
(12)
The database established by the Commission is an important tool which should underpin the application of this Regulation and its control.
(13)
It is also important that all chemicals exported have an adequate shelf-life so that they may be used effectively and safely. As regards pesticides, in particular and especially those exported to developing countries, it is essential that information about appropriate storage conditions be provided and that suitable packaging and sizes of containers are used to avoid creating obsolete stocks.
(14)
Articles containing chemicals do not fall within the scope of the Convention. Nevertheless, it seems appropriate that articles containing chemicals that could be released under certain conditions of use or disposal and that are banned or severely restricted in the Community within one or more of the use categories laid down in the Convention or are subject to the international PIC procedure should also be subject to the export notification rules. Furthermore, certain chemicals and articles containing specific chemicals falling outside the scope of the Convention but giving rise to particular concern should not be exported at all.
(15)
In accordance with the Convention, information on transit movements of chemicals subject to the international PIC procedure should be provided to Parties to the Convention who request such information.
(16)
Community rules on packaging and labelling and other safety information should apply to all dangerous chemicals when intended for export to Parties and other countries unless those provisions would conflict with any specific requirements of those countries, taking into account relevant international standards.
(17)
In order to ensure effective control and enforcement of the rules, Member States should designate authorities such as customs authorities that should have the responsibility of controlling imports and exports of chemicals covered by this Regulation. The Commission and the Member States have a key role to play and should act in a targeted and coordinated way. Member States should provide for appropriate sanctions in the event of infringements. To facilitate customs control, and to reduce the administrative burden for both exporters and authorities, a system of codes confirming compliance with the rules to be used in export declarations should be established. In order to allow all parties time to become accustomed to this system before it becomes mandatory a short transitional period should be provided for.
(18)
Information exchange, shared responsibility and cooperative efforts between the Community and the Member States and third countries should be promoted with a view to ensuring sound management of chemicals, whether or not those third countries are Parties to the Convention. In particular, technical assistance to developing countries and countries with economies in transition should be provided directly by the Commission and the Member States, or indirectly via support for projects by non-governmental organisations, especially assistance seeking to enable those countries to implement the Convention.
(19)
There should be regular monitoring of the operation of the procedures if they are to be effective. To this end, Member States should regularly submit reports to the Commission, which should in turn regularly report to the European Parliament and the Council.
(20)
Technical notes for guidance should be drawn up to assist the competent authorities, including such authorities as customs controlling exports, in the application of this Regulation.
(21)
The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (7).
(22)
In particular the Commission should be empowered to adopt measures to include a chemical in Parts 1 or 2 of Annex I following final regulatory action at Community level, measures to include a chemical that is subject to Regulation (EC) No 850/2004 of the European Parliament and of the Council of 29 April 2004 on persistent organic pollutants (8) in Part 1 of Annex V, measures to amend Annex I, including modifications to existing entries, measures to include a chemical already subject to an export ban at Community level in Part 2 of Annex V, measures to amend Annexes II, III, IV and VI, and measures to modify existing entries in Annex V. Since those measures are of general scope and are designed to amend non-essential elements of this Regulation, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC,
