Mercury: Aligning EU Rules with the Minamata Convention

Mercury is widely regarded as a hazardous substance, given that is found to be toxic and “transboundary” in nature, meaning that it can travel great distances through water, air and in the flesh of animals such as fish. In the last two decades, the EU has adopted many restrictions on mercury, but such attempts are expected to be ineffective if surrounding regions do not follow suit. Efforts to globalise regulation of mercury culminated in the Minamata Convention in 2013, an ambitious international project with binding commitments. After a long procedure, the EU bodies have managed to reach an agreement on ratifying the Convention and embedding its rules into Union law.

After signing the Minamata Convention in October 2013, the EU aimed to ensure its swift ratification and implementation across Member States. First of all, to ratify the UN Convention, the Council needed to adopt a Decision (requiring the Parliament’s consent) and to encourage Member States to ratify the Convention on a national level as well, since to enter into force the Minamata Convention has to be ratified by 50 countries. Secondly, the Commission was requested to assess the gap between the existing EU legislation and the Convention in order to implement correctly the international rules. It therefore proposed a Regulation repealing and replacing the now outdated Regulation on mercury (Regulation 1102/2008) to align EU legislation with the provisions of the Minamata Convention.

In the final steps of a long procedure, on Tuesday 25 April the Council adopted the new Regulation on mercury, endorsing the compromise reached with the European Parliament last December. In addition, during the plenary session on Thursday 27 April, the European Parliament gave its formal consent to the Council Decision on the ratification of the Minamata Convention. Therefore, the Council will now be able to adopt its Decision, enabling the EU to participate at the first Conference of the Parties (COP1) to be held in September.

All in all, this week marks the end of a difficult path paved with intense political negotiations and technical discussions. If not handled properly, mercury may pose a risk to the well-being of both humans and the environment; but regulating it regionally might be insufficient, as, for instance, it mostly enters the body of humans and other animals through the consumption of contaminated fish, which have little respect for borders. The Minamata Convention, signed by 128 countries in 2013, was created to establish an effective and binding international agreement to tackle the dangers of pollution by mercury and its compounds. Now 26 of the EU Member States have already signed the Convention, while the remaining two (Portugal and Estonia) both declared their support and their intention to ratify it in the Council. The ratification by the EU and its signatory Member States will therefore allow the Convention to enter into force as planned.

The New Mercury Regulation

Mercury is often described as a threat to living organisms, as it has been found by many studies to be toxic to the nervous system. Effects range from trembling hands and numbness in limbs to impairments in speech, vision or hearing – and it can be fatal in large quantities. It was found to be especially dangerous for children, when it is four to five times more destructive than for adults; while when digested during pregnancy, it may lead to serious birth defects. Mercury is used in a wide range of industries, such as gold mining, dentistry and in the chemical production sector.

The Regulation transposing the Convention into EU law will introduce new rules in five distinct areas related to the anthropogenic (manmade) emissions and releases of mercury and mercury compounds. This briefing will take into account the four main provisions included in the new Regulation aligning EU rules to the UN Convention:

1. Restrictions on mining and international trade of mercury

The new EU rules ban the export of Mercury, with a view to gradually extending the ban to mercury compounds and mixtures as well, by January 2020. The only exception to this rule is if the purpose of the export is to provide mercury to laboratories or other research facilities for scientific analysis.

The new Regulation also bans the import of mercury, unless the exporting country does not have the necessary conversion capacity and thus the sole purpose of the import is to dispose of the mercury waste. As the derogation only applies if the mercury was obtained in a legal way (not from a primary mining facility), this will require a certificate from the exporting state and written consent from importing one. The prohibition also extends to mercury mixtures and compounds acquired for the purpose of reclaiming mercury, as well as to the import of mercury to be used in Artisanal and Small-scale Gold Mining (ASGM), as described below.

All import, export and manufacturing of mercury-added products will also be gradually prohibited. The only exceptions to this rule are products necessary for military use or civil protection and the products for research, for calibration of instrumentation, or those to be used as reference standard.

2. Restrictions on use and storage of mercury, mercury compounds and mixtures of mercury

Industrial activities

The Regulation bans the use of mercury and its compounds in manufacturing processes in which the substance(s) is used as a catalyst (from 1 January 2018) or as an electrode (from 1 January 2022). Nevertheless, it introduces strict temporary measures prior to the application of the complete ban (as per Annex III) for manufacturing processes producing sodium or potassium methylate or ethylate. Interim storage of mercury and its compounds should be carried out in an environmentally sound manner and complying with stringent requirements concerning the storage of mercury, as laid out in the SEVESO III and the Industrial Emissions Directives.

New mercury-added products and new manufacturing processes

The Regulation aims to phase out new mercury-added products and new manufacturing processes by forbidding economic operators to manufacture or sell new mercury-added products. They can still obtain an exemption from this through the RoHS II Directive or via an implemented act by the Commission.

Several other derogations apply to this Article, including if a Member State claims that it would jeopardise its essential security interests, if the equipment is to be sent into space, or if a product is only being redesigned, partly in order to reduce the amount of mercury it contains. The same prohibition applies to new processes where the product itself does not contain mercury but the manufacturing process requires the use of mercury or mercury compounds. For both parts, “new” processes mean those that that were not conducted before 1 January 2018.

In the event that an economic operator tries to obtain permission for a new process involving mercury after 2018, it will have to go through a strict examination process which has to include proof that the process can only be conducted using mercury, an extensive assessment of the potential effects on the environment, and detailed plans on effective waste disposal, among others. Applications will be carefully reviewed by both the Member States’ competent authorities and the Commission. All new licenced processes will be added to the Annex of the Regulation via delegated acts, while the list of “old” processes will be collected in an online directory.

Artisanal and small-scale gold mining and processing

Using mercury in Artisanal and Small-scale Gold Mining (ASGM) will also be prohibited. In the event of widespread non-compliance, the relevant Member State’s competent authority will have to develop and implement a national plan to redress the issue.

Addressing this industry separately is pivotal because it is the single largest global perpetrator, releasing more mercury into the environment than any other sector, even though only 20% of all gold mines in the world are artisanal or small-scale. According to an estimate by the US’s Environmental Protection Agency, ASGM releases approximately 400 metric tons of airborne elemental mercury per year.

Dental amalgam

The other important industry where the use of mercury is still widespread is dentistry. Dental amalgam is a mixture of liquid mercury and metal alloy, and its safety is a source of continuous heated debates among experts. Although the Regulation does not explicitly ban dental amalgam, it restricts its usage in pre-dosed and encapsulated form. It also prohibits its usage for children under fifteen and for pregnant or breastfeeding women, unless it is deemed absolutely necessary by the dentist.

In order to ensure that previously used amalgam fillings are disposed of properly, dental practices will have to obtain so-called “amalgam separators”, which can collect the waste mercury. They will also have to ensure that the collected mercury is handled and collected by an authorised waste management establishment. In addition, all Member States will have to produce national plans for the phasing out of dental amalgam by 1 July 2019.

3. Steps for ensuring safe and environmentally responsible storage and management of mercury waste

The Regulation obliges all involved entities to ensure that the storage and disposal of mercury waste is completely safe. Economic operators from four sectors (chlor-alkali industry, cleaning of natural gas, non-ferrous mining and smelting, and extraction from cinnabar ore) will have to send reports to the relevant Member State authorities, detailing every aspect of their mercury waste management (amount, storage and conversion facilities used, certificates, etc.).

Operators will only be allowed to store mercury waste temporarily in a liquid form if all other requirements are met and, even then, only until 2023 (unless the Commission decides to prolong it by a maximum of three years). Before permanent disposal, mercury will have to be converted and, in some cases, solidified, before being disposed of in special facilities licenced for hazardous waste.

Operators of facilities dealing with mercury waste will have to create registers concerning all the mercury waste they hold, in order to establish secure traceability. Every shipment of mercury also has to be carefully registered, along with a certificate that proves that the destination facility is legally allowed to convert waste mercury. Other certificates are to be issued at the time of conversion and when the converted mercury is placed in a permanent storage, and the register for these certificates transmitted annually to the Member States’ competent authorities.

4. Penalties for infringements and reporting

The Commission will be tasked to oversee the exchange of information among Member States regarding areas that have been contaminated by mercury or compounds thereof, to mitigate the risks they pose to human health and the environment. This information will be accumulated into an online register available for the general public containing the list of every contaminated area within the Member States.

Establishing the penalties for non-compliance by economic operators is at the discretion of the Member States as long as they are proportionate, effective and dissuasive. Identifying infringements will be the task of the competent authorities, also designated by the Member States. To ensure that the Commission has the necessary information available to verify that the Regulation is being applied effectively, Member States will have to submit reports detailing, among others, all the mercury located in their territories, significant sources of mercury, and all information gathered in the process of complying with the provisions of the Regulation and with those of the Minamata Convention, by January 2020.

In order to ensure that the Regulation stays timely, the Commission has the right to enact delegated acts to the Annexes, as well as to align them with the potential changes in the Minamata Convention. This delegation of powers is for an initial five years after entry into force, which can be extended if the Parliament and the Council do not oppose such an extension, or can be revoked at any time by either institution. At the same time, the Commission will have to consult a group of experts designated by the Member States before any delegated act, according to last year’s Interinstitutional Agreement on Better Law-Making.

By June 2020, the majority of the restrictions will apply and therefore the Commission is tasked to report to the Parliament and the Council on whether further regulation is needed, especially regarding dental amalgam restrictions and phase-out. By 2024 the Commission will also report on the implementation and review of the Regulation. The Commission may, if appropriate, present a legislative proposal together with its reports.

In brief, the Minamata Convention was a historic global achievement in preventing further mercury pollution, and through this Regulation (along with the ratifying Decision) the EU will be able to play a leading role in overseeing its proper implementation. The first meeting of the Conference of the Parties to the Minamata Convention on Mercury (COP1) will be held in September 2017 in Geneva, but only if the Convention enters into force by then, for which it needs 50 ratifications. As a consequence of this week’s events, it looks as though the Convention will soon enter into force and the Conference, titled “Making mercury history”, will go ahead as planned.

Next steps

The Regulation has been adopted by both the European Parliament and the Council, and will soon be published in the Official Journal. On the same day from which it applies (1 January 2018), the redundant Mercury Export Ban Regulation (No. 1102/2008) will be repealed.

Following the formal consent of the European Parliament last Thursday, the Council Decision on the ratification is expected to be adopted at a future Council meeting to be held in the coming weeks (and most likely by the end of June), in order to allow the EU to participate in the COP1 in September.

Additional Facts

Full Title: Regulation of the European Parliament and the Council on mercury, and repealing Regulation (EC) No 1102/2008

Council Decision on the conclusion of the Minamata Convention

Proposal Dates: 02 February 2016 / 14 July 2016

Legal Basis: Articles 192(1) and 207 of the TFEU / Art. 192(1) and 218(6a) of the TFUE

Type of procedure: Ordinary Legislative Procedure / Non-legislative enactments (consent by Parliament)