Legally and politically important
Not cleared from scrutiny; further information requested; scrutiny waiver granted
(a) Proposal for a Council Decision on the conclusion of the Minamata Convention on mercury; (b) Proposal for a Regulation of the European Parliament and of the Council on mercury, and repealing Regulation (EC) No. 1102/2008
(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
Environment, Food and Rural Affairs
(a) (37503), 5772/16 + ADD 1, COM(16) 42; (b) (37502), 5771/16 + ADDs 1–4, COM(16) 39
4.1The Minamata Convention is the main international legal framework for regulating emissions of mercury, 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 shortly.
4.2These 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 ratification to take place.
4.3The Government has no objection to EU ratification once the proposed Regulation has been finalised, but wished to clarify that the EU was only assuming obligations under the Convention to the extent it has competence. It also 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 said that it would be preparing a UK impact assessment.
4.4In view of this, we decided on 9 March 2016 that, although neither document appeared to raise any significant policy concerns, it would be right to retain them under scrutiny whilst the outstanding legal issues were clarified. We have now received an update from the Government indicating that there is likely to be a satisfactory outcome on the legal base, and that “the EU should only assume obligations under the Convention to the extent that it has competence and has adopted relevant internal rules” which is tantamount to indications that the EU should only act to the extent it has exclusive competence. In view of this, and the fact that the trilogue negotiations between the Commission, European Parliament and Council are entering the final stages, it has asked if the documents can be released from scrutiny so as to allow the UK to support a final package containing an acceptable outcome.
4.5Whilst we are grateful to the Government for this update, we think it would be prudent to hold the documents under scrutiny until the content of that final package has been established. That said, we have no wish at this stage in the proceedings to fetter the Government’s negotiating freedom, and we are therefore willing to grant a scrutiny waiver, on condition that (a) the Government indicate what steps (if any) it has taken to make it clear the EU action is limited to matters for which is has exclusive competence—whether by amendment of the text or by minute statement, and (b) that it informs us of the eventual outcome of the discussions in the Council by the end of January 2017.
(a) Proposal for a Council Decision on the conclusion of the Minamata Convention on mercury: (37503), + 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), + ADDs 1–4, COM(16) 39.
4.6The Minamata Convention is the main international legal framework for regulating emissions of mercury, and the EU and 26 Member States (including the UK) are signatories to the Convention, which is likely to come into force shortly, once it has been ratified by the requisite number of signatories.
4.7In February 2016, the Commission put forward these two documents addressing 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.
4.8When 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—seeks to address those gaps in a number of areas, notably the import of mercury; the export of certain mercury added-products; the use of mercury in certain manufacturing processes; new mercury uses in products and manufacturing processes; mercury use in artisanal small-scale gold mining (AGSM); and mercury use in dental amalgam.
4.9As we noted in our Report of 9 March 2016, the UK has no objections to the EU ratifying the Convention, but intended to argue that the Decision at document (a) should not be adopted until the proposed Regulation (document (b)) had been finalised, on the grounds that the EU should not assume obligations under international law until it has the necessary internal rules in place to implement them. In addition, it would 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.
4.10The Government also highlighted three areas of concern in relation to document (b). First, it 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.
4.11Secondly, the Commission considers that the objectives of the proposal cannot be sufficiently achieved by the Member States, and that the principle of subsidiarity is not applicable to the provisions relating to 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). However, 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.
4.12Thirdly, there are two areas where the proposal goes beyond the minimum requirements needed to ratify the Convention. The first 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, the proposed Regulation would prohibit this (subject to a derogation where there would be significant environmental and health benefits, and no technically and economically feasible mercury-free alternatives are available), the Government’s concern being that this might limit innovation. The other concern related to the use of dental amalgam, which the Convention requires to be phased down by various means, but where the proposed Regulation would impose more onerous requirements.
4.13We commented that, although we would be interested to see the impact assessment which the Government had promised, neither document appeared to raise any significant policy concerns. However, it was clear that there were a number of legal issues, where we agreed with Government’s position on document (a) and its intention that the Decision should be amended to clarify not only that it had adopted the required internal rules, but also that the EU was only assuming obligations under the Convention to the extent it had competence.
4.14As regards the proposed Regulation (document (b)), we noted the Government’s helpful subsidiarity assessment, and agreed that the substance of the proposal itself does not raise subsidiarity concerns. However, we asked to be kept informed of any progress in removing the Article 207 TFEU legal basis, and for confirmation in due course whether the Government intended to challenge that legal base before the Court of Justice if it were to be retained on adoption. We also asked to be updated on any developments on the two areas where the proposed Regulation had been identified as essentially gold-plating Convention requirements in terms of EU implementation.
4.15We have now received a letter of 22 November 2016 from the Parliamentary Under Secretary of State at the Department for Environment, Food and Rural Affairs (Dr Thérèse Coffey), enclosing an Impact Assessment and providing an update on the progress of the negotiations.
4.16She says that good progress has been made on removing the Article 207 TFEU legal base, and, although discussions were continuing, both the European Parliament and the Council share the view that a single legal base—Article 192(1) TFEU—should be used. She also says that, as regards any challenge to a dual legal base in the European Court, the situation should not now arise in view of the course of the negotiations, but that, in the unlikely event of the Council persisting with the original approach, the Government would then consider how best to proceed.
4.17The Minister adds that, on the issue of competence, the Government believes that the Council Decision should not be adopted until the proposed Regulation has been finalised, and that the EU should only assume obligations under the Convention to the extent that it has competence and has adopted relevant internal rules. She is also satisfied with the progress made in addressing the issue of gold-plating.
9 December 2016