Documents considered by the Committee on 29 March 2017 Contents

7Minimata Convention on Mercury

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny; (decision of 22 February 2017)

Document details

Proposal for a Council Decision on the conclusion of the Minimata Convention on Mercury.

Legal base

Article 192(1) in conjunction with Article 218(6)(a) TFEU; QMV; EP consent


Environment, Food and Rural Affairs

Document Number

(37503), 5772/16 + ADD 1, COM(16) 42

Summary and Committee’s conclusions

7.1The Minimata Convention is the main international legal framework for regulating emissions of mercury. The EU and 26 Member States (including the UK) are signatories to the Convention.

7.2This proposal would authorise the EU to conclude (ratify) the Convention. The outstanding issue for the Committee was to secure transparency that the EU was only exercising exclusive competence, leaving the Member States to exercise competence that was exclusive to them or shared.20 In this, the Committee is seeking to ensure that the Government follows its own policy that, in relation to agreements with third countries, the EU should normally only exercise its exclusive competence.

7.3This proposal was cleared on the back of an indication from the Minister (Dr Thérèse Coffey) that a declaration of competence attached to the Convention would clarify the extent of the obligations being assumed by the EU and that there would be a minute statement to complement it. We did, however, ask for sight of the text.

7.4We recognise and support the Minister’s efforts to rein in any suggestion of an expansive claim to exclusive EU competence by making a minute statement. We welcome the fact the UK has submitted a minute statement on the competence issue. However, the wording of the declaration and minute statement do not make it sufficiently clear that the EU is only exercising competence where that is exclusive, leaving Member States to exercise shared competence. This is particularly important as the UK and Denmark make it clear in the minute statement that the EU is claiming as exclusive competence matters which should be regarded as shared competence. The effectiveness of that statement is lessened if it remains unclear that the EU is only exercising its exclusive competence. The Committee refers the Minister to Decision 2016/1750 as an example where the EU was expressly and clearly recognised as not exercising shared competence. Such an approach would have benefited this proposal.

Full details of the documents

Proposal for a Council Decision on the conclusion of the Minimata Convention on Mercury: (37503), 5772/16 + ADD 1, COM(16) 42.

The Minister’s Letter of 8 March 2017

7.5The substance of the letter is the provision, in its annexes, of the text of the minute statement and declaration of competence:

Annex A

Minute Statement

“Denmark and the UK recognise the need for a declaration of competence by the European Union pursuant to Paragraph 3 of Article 30 of the Minamata Convention on Mercury (the Convention).

Denmark and the UK are, however, of the opinion that the declaration exceeds the requirement laid down in Paragraph 3 of Article 30 of the Convention by attempting to define the nature of the competence of the European Union.

Denmark and the UK consider that the European Union’s declaration pursuant to Paragraph 3 of Article 30 of the Convention does not alter the distribution of competences between the European Union and its Member States as set out in the Treaty on the Functioning of the European Union. The declaration cannot, therefore, be read as implying exclusive European Union competence in relation to any matter under the Convention where competence is shared between the European Union and its Member States.”

Annex B

Declaration of Competence

“Article 30(3) of the Minamata Convention provides: ‘3. In its instrument of ratification, acceptance, approval or accession, a regional economic integration organization shall declare the extent of its competence in respect of the matters governed by this Convention. Any such organization shall also inform the Depositary, who shall in turn inform the Parties, of any relevant modification of the extent of its competence’.

“The European Union declares that, in accordance with the Treaty on the Functioning of the European Union, and in particular Article 192(1) thereof, it is competent for entering into international agreements, and for implementing the obligations resulting therefrom, which contribute to the pursuit of the following objectives:

“The following list of legal instruments of the Union illustrates the extent to which the Union has exercised its internal competence, in accordance with the Treaty on the Functioning of the European Union, regarding matters governed by the Minamata Convention. The Union is competent for the performance of those obligations from the Minamata Convention on Mercury regarding which the provisions of Union legal instruments, in particular those listed below, establish common rules and insofar as these common rules are affected or altered in scope by the provisions of the Minamata Convention or an act adopted in implementation thereof.

[There follows a list of 16 specific EU legal instruments and one proposal]

“The exercise of competences which Member States of the European Union have transferred to the European Union pursuant to the Treaties is, by its nature, subject to continuous development. The Union therefore reserves the right to adjust this Declaration.”

Our analysis

7.6The first part of the declaration provides an expansive claim to competence to enter into and implement international agreements, which reflects the breadth of EU environmental competence as outlined in Article 191(1) TFEU. The environment is, in principle, a matter of shared competence, although the EU can acquire exclusive competence in relation to an external agreement to the extent that such agreement would affect its internal common rules (Article 3(2) TFEU).

7.7In this regard the declaration then indicates that “The Union is competent for the performance of those obligations of the Minimata Convention” which could affect its common rules, in particular those contained in the listed instruments. This has the effect of defining (albeit non-exhaustively) the extent of EU exclusive competence in accordance with Article 3(2) TFEU.

7.8However these various claims for competence to (a) enter into international agreements, (b) to implement them or (c) perform obligations under the Minimata Convention do not provide a clear limitation as to the extent to which the EU is, in fact, exercising the competence it is claiming in the declaration. It can be assumed that the EU is exercising competence exclusive to it, because Member States are not capable of doing so, but the extensive competence claimed in the first part of the declaration could be shared. Indeed the minute statement makes it clear that the declaration claims as exclusive EU competence matters where Denmark and the UK, at least, consider that competence is shared. However, there is insufficient indication in the text of the Decision, the declaration or the minute statement that the EU is only exercising its exclusive competence and not any matter of shared competence.

7.9To illustrate that it is possible to limit the exercise of EU competence in the way sought by the Committee reference can be made to Council Decision 2016/1750 authorising the EU to conclude the WHO Protocol to Eliminate Illicit Trade in Tobacco Products, which includes in its recitals the statement:

“By concluding the Protocol, the Union will not be exercising shared competence, therefore Member States retain their competence in the areas covered by the Protocol which do not affect common rules or alter the scope of such common rules.”

7.10The Committee commends this clear and straightforward approach.

Previous Committee Reports

Thirty-second Report HC 71-xxx, chapter 9, (22 February 2017); Twenty-second Report HC 71-xx (2016–17), chapter 4 (7 December 2016); Twenty-fifth Report HC 342-xxiv (2015–16), chapter 3 (9 March 2016).

20 EU exclusive competence can only be exercised by the EU, shared competence can be exercised by either the EU or Member States. The choice is political.

31 March 2017