Twenty-fifth Report of Session 2015-16 Documents considered by the Committee on 9 March 2016 Contents

3Minamata Convention on Mercury: Ratification and implementation

Summary and Committee’s conclusions

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested

Document details

(a) Proposal for a Council Decision on the conclusion of the Minamata Convention on mercury; (b) Proposal for a Regulation on mercury, and repealing Regulation (EC) No. 1102/2008

Legal base

(a) Article 192(1) TFEU in conjunction with Article 218(6)(a); consent; QMV (b) Articles 192(1) and 207 TFEU; ordinary legislative procedure; QMV

Department

Environment, Food and Rural Affairs

Document Numbers

(a) (37503), 5772/16 + ADD 1, COM(16) 42; (b) (37502), 5771/16 + ADDs 1–4, COM(16) 39

3.1The Minamata Convention is the main international legal framework for regulating emissions of mercury into the environment, addressing its whole life cycle, and the EU and 26 Member States (including the UK) are signatories to the Convention, which is likely to come into force towards the end of 2016.

3.2We have reported separately12 on the production of guidance relating to a specific aspect of the Convention when it comes into force, whilst these two documents address different aspects of the ratification process. The first is a proposal for a Council Decision approving the conclusion of the Convention on behalf of the EU (and allowing the deposit of an instrument indicating the Union’s willingness to be bound by the Convention), and the second is a proposal for a Regulation which would address the gaps in existing EU legislation which need to be filled in order to enable the EU to ratify.

3.3The Government says that it has no objection to EU ratification once the proposed Regulation has been finalised, though it will also wish to clarify that the EU is only assuming obligations under the Convention to the extent it has competence. However, the Government has raised a number of concerns on the proposed Regulation relating to its legal base, subsidiarity, and the extent to which it goes beyond the minimum needed to ratify the Convention, and it has also said that it will be preparing a UK impact assessment.

3.4Neither document appears to raise any significant policy concerns, although we will be interested to see the Government’s impact assessment, and the extent to which document (b) goes beyond what is needed to ratify the Convention.

3.5However, it is clear that there are a number of legal issues raised by the two documents, and we are grateful to the Minister and his officials for their careful attention to these. In relation to the draft Council Decision enabling the EU to ratify the Minamata Convention (document (a)), we agree with Government’s position and its intention to request that the Decision be amended to clarify not only that it had adopted the required internal rules (document (b)) but also that the EU is only assuming obligations under the Convention to the extent it has competence.

3.6We ask the Minister to note that we have had many exchanges with the Government about the adequacy of wording that is required to protect shared competence13 to be exercised by Member States, referring him in particular in relation to the EU-Mongolia PCA.14 We also draw his attention to the commendable example of where the Government has achieved clarity in EU texts on the division and exercise of competences: the negotiations on the Decisions to sign and conclude the Protocol to eliminate illicit trade in tobacco products to the World Health Organisation’s Framework Convention on Tobacco Control.15 We look forward to hearing from the Minister in due course as to what, if any, progress has been made in achieving the amendments sought, and in achieving transparency in respect of the exercise of shared competence.

3.7As regards the proposed Regulation (document (b)), we are assisted by the Government’s helpful subsidiarity assessment, and agree that the substance of the proposal itself does not raise subsidiarity concerns. We ask the Minister to keep us informed of any progress in removing the Article 207 TFEU legal basis and to confirm in due course whether the Government intends to challenge that legal base before the Court of Justice if it is retained on adoption. We also ask him to update us on any developments on the two areas that he identifies where the proposed Regulation essentially gold-plates Convention requirements in terms of EU implementation.

3.8In the meantime, we keep both documents under scrutiny.

Full details of the documents

(a) Proposal for a Council Decision on the conclusion of the Minamata Convention on mercury: (37503), 5772/16 + ADD 1, COM(16) 42; (b) Proposal for a Regulation of the European Parliament and of the Council on mercury, and repealing Regulation (EC) No. 1102/2008: (37502), 5771/16 + ADDs 1–4, COM(16) 39.

Background

3.9The Minamata Convention is the main international legal framework for regulating emissions of mercury into the environment, addressing its whole life cycle, and the EU and 26 Member States (including the UK) are signatories to the Convention, which is likely to come into force towards the end of 2016, once it has been ratified by the requisite number of signatories.

The current documents

3.10These two documents address different aspects of the ratification process, document (a) being simply a proposal for a Council Decision approving the conclusion of the Convention on behalf of the EU, and allowing the deposit of an instrument indicating the Union’s willingness to be bound by the Convention.

3.11When the EU signed the Convention, it did so on the basis that the measures it introduced already exist to a very large extent within the EU by virtue of Regulation (EC) No. 1102/2008. However, to the extent that is not the case, document (b) — which would repeal and re-enact that Regulation — would seek to address those gaps in the following areas in order to enable the EU to ratify:

The Government’s view

3.12These two documents have been the subject of Explanatory Memoranda dated 19 February 2016 from the Parliamentary Under-Secretary of State at the Department for Environment, Food and Rural Affairs (Rory Stewart).

3.13In the case of the Council Decision at document (a), he says that the UK has no objections to the EU ratifying the Convention, but that the Government will argue that the Decision should not be adopted until the proposed Regulation (document (b)) has been finalised, as it considers that the EU should not assume obligations under international law until it has the necessary internal rules in place to implement them. Also, it will seek to amend the Decision to clarify that the EU is only assuming obligations under the Convention to the extent it has competence, and has adopted the relevant internal rules.

3.14However, in the case of document (b), the Minister highlights three areas. First, he says that the Government disagrees with the proposed dual legal basis — Article 192(1)(environment) and Article 207 (common commercial policy) — believing that there should be a single environment base as the predominant purpose is environmental protection, with the regulation of trade being merely incidental.

3.15Secondly, he observes that the Commission’s assessment as regards subsidiarity is that the objectives of this proposal cannot be sufficiently achieved by the Member States, and that it maintains the principle of subsidiarity is not applicable to the provisions requiring each Member State to implement the proposed export prohibitions and conditional import prohibition as these are measures in the field of common commercial policy (which fall within the exclusive competence of the Union in accordance with Article 3(e) TFEU). He adds that the Government considers these measures fall within the Union’s shared competence in relation to environmental and human health protection, and that the principle of subsidiarity therefore applies. However, the Government is satisfied that the trade-related elements of the proposal respect the subsidiarity principle because the proposed action will affect trade between EU Member States and third countries, and would therefore be better achieved at Union level.

3.16The Minister adds that the Commission’s assessment goes on to point out that the other provisions of the proposal on the use of mercury, on the control of mercury emissions into the environment, on the storage of mercury and management of mercury waste all belong to the category of the shared competence between the Union and the Member States in respect of environmental and human health protection, which are areas already extensively regulated at Union level — for example in Regulation (EC) 1102/2008. Consequently, the Commission considers that the proposal respects the subsidiarity principle — an assessment with which the Government agrees.

3.17The third point raised by the Minister is the extent to which the proposal goes beyond the minimum requirements needed to ratify the Convention, where he identifies two areas. The first of these relates to new uses, in that, whilst parties to the Convention are required to discourage the commercial manufacture and distribution of novel mercury-added products (unless an assessment has demonstrated environmental or human health benefits), the proposed Regulation would prohibit their manufacture, marketing and use, subject to a derogation where the Commission is satisfied that there would be significant environmental and health benefits, and that there are no technically and economically feasible mercury-free alternatives providing such benefits. The Government is concerned that, even with a derogation, this might limit innovation, particularly by small and medium-sized enterprises, and is considering whether a simple notification requirement (regarded by the Commission as less effective) would provide a better balanced means of discouraging novel mercury use.

3.18The other area of concern relates to the use of dental amalgam, where the Convention requires its use to be phased down by at least two of the measures covering:

i)national health care policies and systems;

ii)education and research;

iii)best environmental practices; and

iv)restrictions on the form of dental amalgam used by dentists.

3.19Whilst the Government agrees with the Commission’s assessment that most of these measures would be best addressed by Member States, it notes that research is an area already covered by the EU’s Horizon 2020 programme, meaning that the choice for a second measure at EU level rests between restricting the use of dental amalgam to its encapsulated (ready prepared) form and promoting best environmental practices at dental clinics by imposing the use of separators (which trap excess amalgam before it enters the sewerage system). Even though, strictly speaking, only one of these measures would be needed to comply with the Convention, the proposed Regulation would require both — an approach which the Government supports, as each accords with already established UK practice.

3.20The Minister concludes by saying that the Government will prepare a UK impact assessment, and that it is considering the question and timing of the UK’s own ratification of the Convention in the light of this proposal.

Previous Committee Reports

None.

12 See (37462), 5375/16: Twenty fourth Report HC 342-xxiii (2015–16), chapter 5 (24 February 2016) and Chapter 17 of this Report.

13 Shared competence can be exercised by either the EU or the Member States, but once exercised by the EU, it can no longer by exercised by Member States.

14 Twenty-first Report HC 342-xx (2015–16), chapter 11 (27 January 2016).

15 Twentieth Report HC 342-xix (2015–16), chapter 14 (20 January 2016).




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Prepared 16 March 2016