kom (2016) 0039 - Ingen titel

Europaudvalget 2016
KOM (2016) 0039
Offentligt

EUROPEAN

COMMISSION

Brussels, 2.2.2016

SWD(2016) 18 final

COMMISSION STAFF WORKING DOCUMENT

Implementation Plan

Accompanying the document

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on mercury, and repealing Regulation (EC) No 1102/2008

{COM(2016) 39 final}

{SWD(2016) 14 final}

{SWD(2016) 17 final}

kom (2016) 0039 - Ingen titel

Implementation Plan

1. Title of the document for the proposed act

Proposal for a Regulation of the European Parliament and of the Council on mercury, and

repealing Regulation (EC) No 1102/2008.

2. Contact point

David Grimeaud (DG ENV.C4)

Telephone:

+32 229-64044

Email:

[email protected]

3. Deliverables and implementation challenges

The Proposal seeks to complement the EU

acquis

on mercury with a view to ensuring full

compliance of EU law with the Minamata Convention on Mercury (hereinafter, "Minamata

Convention" or "Convention") and consequently to allowing the EU and its Member States to

ratify it.

As this Convention reflects to a large extent the content of the EU

acquis,

including Mercury

Export Ban Regulation (EC) No 1102/2008

this Proposal needs therefore only to address a

few issues not yet tackled at EU level, including the establishment of restrictions on the

import of mercury and on the import, export and manufacturing of certain mercury-added

products, the control of the use of mercury in specific existing manufacturing processes, in

new products and processes and for artisanal and small-scale gold mining (ASGM), the use of

dental amalgam and the implementation of best environmental practices in dental facilities.

From this list, it is considered that the potential implementation challenges would only be

ralated to the international trade in mercury and mercury-added products, as well as to the use

of mercury in new manufacturing processes and mercury-added products and in dental

facilities.

Accordingly, the potential implementation challenges that may be raised by this Proposal are

limited to those listed below.

3.1.

3.1.1

To control international trade in mercury and mercury-added products

To restrict the import of mercury

In line with the Minamata Convention, the Proposal establishes a restriction regime on the

import of mercury into the EU, which draws a twofold distinction, i.e. between imports from

Parties and from non-Parties to the Convention and based on the source of the imported

mercury. In particular, while imports into the EU of mercury from other Parties are allowed

unless the mercury originates from prohibited primary mining, imports from non-Parties must

This Implementation Plan is provided for information purposes only. It does not legally bind the Commission

on whether the identified actions will be pursued or on the form in which they will be pursued.

Regulation (EC) No 1102/2008 of the European Parliament and of the Council of 22 October 2008 on the

banning of exports of metallic mercury and certain mercury compounds and mixtures and the safe storage of

metallic mercury, OJ L 304, 14.11.2008, p. 75.

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be based upon a certification from the exporting country that imported mercury is neither

from primary mining nor from mercury used in the chlor-alkali industry.

Additionally,

mercury imports from Parties and non-Parties require a written consent for the importing

Member State.

The Proposal foresees also a prohibition on mercury import when intended to be used for

ASGM, irrespectively on whether mercury is imported from a Party or a non-Party to the

Minamata Convention.

The potential implementation challenge for Member States will concern the traceability of the

imported mercury, i.e. to ensure that it does not come from an unlawful source in breach of

the requirements set out in the Convention and this Proposal. For doing so, Member States

will have to ensure that the national authorities (e.g. customs authorities) designated under

Regulation (EU) N° 649/2012 concerning the export and import of hazardous chemicals

carry out the administrative functions required by its implementation are also given the

responsibility and the means to control imports of mercury. In particular, those authorities will

have to check if the information provided by the exporting country, contains precise data

regarding the origin of the exported mercury. Moreover, the authorities will need to ensure

that the imported mercury does not end up in ASGM. In doing so, the designated national

competent authorities may undertake to identify current mercury importers and liaise with

them so as to ensure that they are informed of the new import restrictions.

3.1.2

To restrict the import, export and manufacturing of a set of mercury-added products

In accordance with the Minamata Convention, the Proposal provides for a prohibition as from

January 2021 to manufacture, import into the EU and export from the EU a range of

products when they contain mercury, including batteries, switches and relays, high pressure

mercury vapour lamps (HPMVs), pesticides, biocides and topical antiseptics and a set of non-

electronic measuring devices (e.g. thermometers) or when their mercury content exceeds a

given threshold, including button zinc silver or zinc air batteries, compact fluorescent lamps

(CFLs), linear fluorescent lamps (LFLs), cold cathode fluorescent lamps and external

electrode fluorescent lamps (CCFLs and EEFLs) and cosmetics.

The EU

acquis

addresses already the placing on the (EU) market of all the mercury-added

products covered by the Minamata Convention and, in some cases, the import of such

products into the EU. EU law sets also mercury-content requirements that are in some cases

different (tighter) from those established in the Convention.

Hence, as a potential implementation challenge, Member States will have the obligation to

prevent the manufacture (for export) in their territory of mercury-added products not

complying with the requirements of the Minamata Convention and of this Proposal. To do so,

depending on each national administrative system, Member States will have to ensure that the

national competent authorities in charge, for instance, of the registration and authorisation of

industrial and artisanal activities, including those manufacturing relevant products containing

mercury, are provided with the responsibility and the means to undertake controls on an

Regarding mercury from chlor-alkali facilities located in the territory of Parties to the Convention, these Parties

have the obligation to dispose of excess mercury generated from the decommissioning of those facilities as

mercury waste.

OJ L 201, 27.07.2012, p. 60.

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hoc

basis or as part of a routine inspection, programme and to review and revise permits if

necessary. Another implementation challenge will be the implementation of adequate means

to control imports and exports of the relevant mercury-added products to guarantee that only

products complying with the Convention and EU law are imported and exported. To do so,

Member States will have to make sure that the national competent authorities (e.g. market

surveillance, customs authorities) designated to control the implementation of the

requirements set out in several EU instruments regulating the relevant mercury-added

products, including e.g. Regulation (EU) N° 649/2012 concerning the export and import of

hazardous chemicals, the Batteries Directive (2006/66/EC),

the RHoS Directive

(2011/65/EU)

and the Cosmetic Products Regulation (1223/2009)

or any other competent

authorities Member States may designate for that purpose, are also in charge of controling the

implementation of the import and export restrictions and are provided with adequate control

and enforcement means.

3.2.

To control mercury use

3.2.1 To control the use of mercury in new manufacturing processes and in new mercury-

added products

The Minamata Convention provides that Parties shall discourage the manufacture and

marketing of mercury-added products not covered by any known use of mercury-added

products, unless an assessment of the risks and benefits of the product shows environmental

or human health benefits. The Convention contains a similar provision regarding

manufacturing processes, i.e. Parties shall discourage the development of any facility using a

manufacturing process in which mercury or mercury compounds are intentionnally used that

did not exist prior to the entry into force of the Convention, unless the Party concerned can

demonstrate that it provides significant environmental and health benefits and that there are

no technically and economically mercury-free alternatives available providing such benefits.

Against this background, the Proposal foresees, on the one hand, an a-priori prohibition

according to which the manufacture and/or placing on the market of a new mercury-added

product or the development of a new manufacturing process using mercury is prohibited. On

the other hand, the Proposal provides that a new mercury-added product or manufacturing

process using mercury might still be authorised at EU level, provided that it is demonstrated

that the product or process would result in significant environmental and health benefits and

that there would be no mercury-free alternatives available.

Hence, the potential implementation challenge is the implementation of the conditions under

which a new mercury-added product or the development of a new manufacturing process

using mercury might be allowed. Regarding economic operators, they will have to provide

ante

relevant information to the competent authorities of the Member State concerned (where

the manufacture and/or placing on the market of the new mercury-added product is expected

to take place or where the new manufacturing process is foreseen to develop) to allow them to

assess whether the conditions laid down in the Minamata Convention, as transposed in the

Proposal, could be met. The Member State should share with the Commission this

information and its opinion on whether those conditions are fulfilled. The Commission will

OJ L 266, 26.09.2006, p. 1.

OJ L 174, 01.07.2011, p. 88.

OJ L 342, 22.12.2009, p. 59.

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then have to verify whether compliance with the requirements of the Proposal are met and, if

so, adopt an Implementing Act authorising the new product or process. The Commission will

also keep the Secretariat of the Minamata Convention informed of the assessment and its

outcome. Thus, in sum, whereas operators will have to provide all information necessary to

justify the manufacture and/or placing on the market of a new mercury-added product or the

development of a new manufacturing process using mercury, the Member State concerned

will need to assess the sufficiency and content of the information so provided and decide

whether a notification to the Commission is necessary (i.e. whether the new product or

process could be considered as meeting the applicable conditions). The Commission will

assess and decide whether the concerned product or process could

in fine

be authorised on the

EU market and territory.

3.2.2

To control the use of dental amalgam

In accordance with the Minamata Convention, the Proposal foresees that dental amalgam be

used only in an encapsulated form and that dental facilities be equipped with amalgam

separators aimed at collecting and retaining amalgam particles with a view to preventing

discharge of mercury residues into sewage systems and,

in fine,

into the environment.

As potential implementation challenges, Member States will have to ensure that dentists that

use dental amalgam be no longer supplied by mercury suppliers with mercury in bulk, but

only dental amalgam in an encapsulted form. To do so, Member States may identify mercury

suppliers that provide mercury to dentists located in their national territory and inform them

of the new obligation on dental amalgam. As to dental facilities, they will have to ensure that

their dental equipment be equipped with an amalgam separator, that this separator be

regularly maintained to ensure a high level of mercury particle retention in accordance with

applicable ISO and CEN standards or equivalent national standards and that the collected

mercury particles be collected by an authorised hazardous waste collector.

4.1. Possible Commission actions to promote complete, correct and timely

implementation of the proposed Regulation

•

Creating a framework to enable an exchange of information on implementation. This

framework may be integrated in existing or foreseen platforms and/or expert groups.

Requesting Member States to nominate contact points and inform the ENV contact

point.

Pursuing continuous informal dialogue with Member States' contact points.

Updating the Europa website to include the Mercury Regulation, a section dedicated to

implementation duties, deliverables and timetables, links to relevant implementation

guidance and/or information, to FAQs and to good practice examples.

Facilitating bilateral and/or multilateral meetings with Member States, where there

appear specific implementation challenges requiring further attention.

Should implementation problems be identified and should informal bilateral dialogue

fail to lead to a complete and correct implementation, the Commission may launch

infringement procedures.

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4.2.

•

Possible Member State actions:

Identify and nominate the appropriate liaison officers to take part in further technical

discussions (mandatory).

Inform the Commission about any potential problems related to implementation as

soon as they are identified, and to share information related to implementation

(recommended).

Set up dedicated national web-pages (recommended) in order to,

inter alia:

raise awareness and early adaptation to the new legal requirements;

disseminate general information on the Regulation to the operators;

offer a platform for FAQs and exchange of best practices.

Develop e-services to support operators for,

inter alia:

notification of their intent to manufacture and/or place on the market a new

mercury-added product or to develop a new manufacturing process using

mercury;

reporting (e.g. on non-compliance);

storing reported information in accordance with Article 12(2).

•