EUROPEAN COMMISSION

Brussels, 2.2.2016

SWD(2016) 17 final

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT

Ratification and Implementation by the EU of the Minamata Convention on Mercury

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) 18 final}

TABLE OF CONTENTS

TABLE OF CONTENTS

Acronyms and Abbreviations

Introduction

1.Policy context, Problem Definition and Subsidiarity

1.1.Policy context

1.2.Problem definition

1.3.What are the underlying causes of the problem?

1.4.How will the problem evolve?

1.5.Who is affected and how?

1.6.The EU's right to act and justification

1.7.Issues identified in the assessment of the Mercury Export Ban Regulation

2. Objectives

3.Policy Options

3.0 Baseline - “No EU Action”

3.1Import of mercury (P1)

3.2Export of certain mercury-added products (P2)

3.3Mercury use in new products/processes (P3)

3.4Use of mercury in certain manufacturing processes (P4)

3.5Mercury use in Artisanal and Small-scale Gold Mining (ASGM) (P5)

3.6Use of dental amalgam (P6)

3.7Summary

3.8Legal instrument

4.Analysis of Impacts

4.0 Baseline - “No EU Action”

4.1Import of mercury (P1)

4.2Export of certain mercury-added products (P2)

4.3Use of mercury in new products/processes (P3)

4.4Mercury use in the manufacturing processes listed in MC Annex B (P4)

4.5Mercury use in Artisanal and Small-scale Gold Mining (ASGM) (P5)

4.6Use of dental amalgam (P6)

5.Comparing the Options

5.1Definition of scenarios

5.2Comparison of scenarios against the baseline

6.Monitoring and Evaluation

7. Annexes

Annex 1 – Procedural information

Appendix - List of Sources and Evidence

Annex 2 – Stakeholder Consultation

Appendix A – Stakeholder Workshop of 7 July 2014

Appendix B – Results of the Public Consultation

Annex 3 – Who is Affected by the Initiative and How

Annex 4A – Mercury as A Global Issue

Annex 4B – Major Mercury Pathways

Annex 5 – The Minamata Convention on Mercury

Annex 6 – Current EU Law on Mercury and Mercury Compounds

Annex 7 – Regulatory Gap Analysis of EU Law

Annex 8 – Assessment of the Mercury Export Ban Regulation

Appendix 8.1 – Member State responses

Appendix 8.2 – Other Stakeholder Responses

Annex 9A – Detailed Impact Assessment of P2 (Products)

Annex 9B – Detailed Impact Assessment of P4O2 (Processes)

Annex 10A – Dental Amalgam Summary

Annex 10B – Emissions From Dental Amalgam

Annex 10C – Use of Separators in Dental Practices

Annex 10D – Environmental Cost of Dental Amalgam Use

Acronyms and Abbreviations

Introduction

Mercury is a global pollutant that poses significant threats to human health and the environment. The general population is exposed to mercury mainly through their diet, especially the consumption of fresh water and marine fish and seafood.

The European Union (EU) has a well-developed policy and legislative framework to control the risks posed by mercury. The overall policy framework is the EU Mercury Strategy adopted by the European Commission (“Commission”) in 2005, with the objective to reduce mercury levels in the environment and associated human exposure. The 2010 evaluation and review of the EU Mercury Strategy concluded that it had delivered on most of its actions. However, as EU action alone proved not to be sufficient to address the mercury problem, the Commission considered the negotiation of a legally binding instrument on mercury under the auspices of the United Nations Environment Programme (UNEP) as a priority for further work. The European Parliament and the Council have also emphasised the importance of the international dimension of mercury policy.

The EU played an instrumental role in the international negotiations on mercury launched by the Governing Council of UNEP in February 2009 and concluded successfully in January 2013. The Minamata Convention on Mercury 1 (MC) adopted in October 2013 in Japan has been signed by 128 parties (including the EU and 26 MS) and it has already 2 been ratified by 19 countries 3 . As the entry into force of the Convention requires 50 ratifications, an early ratification by the EU and its Member States (MS) could trigger its entry into force and an early implementation, which is an objective supported by all MS.

The MC has been inspired to a great extent by existing EU legislation. As a consequence, the vast majority of its provisions mirror EU law on mercury and thereby contribute to levelling the international playing field regarding mercury use and emission controls.

Yet, the comparative analysis 4 of the Convention text vis-à-vis the EU acquis shows that ratification of the MC would necessitate limited adjustments to EU legislation in certain areas, including imports of metallic mercury; exports of mercury-added products 5 ; use of mercury in industrial processes; new mercury uses in products and processes; artisanal and small-scale gold mining; and use of dental amalgam.

Hence, this impact assessment focuses on the adaptations of the EU mercury legislation required to comply with the Convention and enable the EU to ratify it, as a means to trigger regulatory action at global level that would significantly complement existing EU action on mercury.

The present report provides an in-depth assessment on how best to address the identified issues.

1.Policy context, Problem Definition and Subsidiarity

1.1.Policy context

Mercury is recognised as a global threat to human health and the environment and there is broad consensus internationally on the need to phase it out. Annex 4 provides a general description of the mercury issue and its global dimension.

The EU has made considerable progress in addressing domestically the challenges posed by mercury since it launched the EU Mercury Strategy 6 in 2005, which was supported by an impact assessment 7 addressing the mercury issue and areas for possible action. The Mercury Strategy was welcomed by Council Conclusions on 24 June 2005 8 and a European Parliament Resolution on 14 March 2006 9 . It is a comprehensive plan consisting of 20 measures aiming at reducing mercury emissions, cutting mercury supply and demand and at protecting individuals against exposure, especially to methylmercury found in fish. 

The Mercury Strategy recognises the global character of the mercury issue and hence the imperative need for action at global level. Thus, seven of its actions (actions 14 to 20) support and promote international activities.

As described in Annex 6, the existing EU acquis covers the whole mercury lifecycle (supply, demand, products, trade, emissions, waste, etc.) via a broad range of policy areas (e.g. environment, energy, health and trade). One of the key measures in implementing the EU Mercury Strategy was the adoption of the Mercury Export Ban Regulation 10 , which set an export ban on mercury and certain mercury compounds and mixtures that entered into effect on 15 March 2011.

The Commission evaluated the EU Mercury Strategy in 2010 11 , examining in particular:

progress made in implementing the Strategy and each of its 20 actions;

areas where implementation was lagging behind and the need for complementary measures;

amendments, as needed, as well as additional actions, taking into account new studies, best practices, and policy initiatives at the EU and international levels.

On the basis of this evaluation, in December 2010, the Commission adopted a Communication on the review of the Community Strategy concerning Mercury 12 , which concluded the following:

While the EU Mercury Strategy has resulted in significant progress in some areas, such as the establishment of a ban on EU exports of mercury from March 2011 and the ban on mercury use in some measuring devices, its implementation, however, has been lagging behind in other areas, e.g. the industrial emissions of mercury, the issue of dental amalgam use and waste management.

Internal EU legislation alone could not guarantee effective protection of the European citizens and the negotiation of a global legally binding instrument on mercury, under the auspices of UNEP, was therefore identified as priority for further action.

The EU contributed to a great extent to the adoption in 2009 of a UNEP decision on the start of such negotiations. The EU actively participated in and influenced the outcome of these international negotiations. The Minamata Convention on Mercury, adopted in October 2013 in Japan, seeks "to protect the human health and the environment from anthropogenic emissions and releases of mercury and mercury compounds". This objective is fully in line with the EU Mercury Strategy, as well as with the European Parliament's 13 and the Council’s 14 statements on this issue. Some key provisions of the MC are described in Annex 5. The EU has an advanced legislative framework regarding mercury and the vast majority of the binding provisions of the MC are already covered by the EU acquis, including in particular:

not allowing primary mining of mercury;

banning the export of mercury;

not allowing the marketing and import of the mercury containing products listed in Annex A to the MC;

not allowing the use of mercury in chlor-alkali plants after 2017;

establishing inventories of industrial emissions of mercury to air, soil and water from the sectors listed in Annex B to the MC;

preventing and reducing the industrial emissions of mercury to air, soil and water from the sectors listed in Annex B to the MC by the application of Best Available Techniques (BAT);

environmentally sound management of mercury waste.

Given the instrumental role played by the EU in concluding the Convention, the important benefits expected at global and EU levels from its implementation, including in terms of levelling the global playing field regarding the use of mercury in products and processes and the controls of mercury emissions to the environment, it is in the interest of the EU to ratify it as soon as possible.

The Convention has been signed by 128 parties 15 and it has been ratified by 19 parties so far2. It will enter into force once it is ratified by at least 50 parties.

The EU and 26 of its MS 16 have signed the MC and thereby committed themselves to work towards its ratification and implementation. As the MC's provisions have been inspired to a great extent by EU legislation, full compliance with the Convention requires only few additional measures or amendments.

This impact assessment complements previous work by focusing on the measures needed to ensure that the international action called for by the EU Mercury Strategy materialises. It assesses options for the ratification of the MC and examines how these contribute to the overall objective of reducing exposure to mercury, taking into particular account the global dimension of the issue.

1.2.Problem definition

Exposure to high levels of mercury can cause harm to the brain, lungs, kidneys and immune system of people of all ages. Human exposure through eating of contaminated fish is due to the increased levels of mercury in the environment. The EU has already taken action to tackle the problem by reducing mercury emissions and use domestically. However, the global character of the mercury problem implies that the EU cannot provide sufficient protection to its citizens on its own, as exposure in the EU to mercury is largely due to emissions originating in other parts of the world.

Hence, the EU actively supported the international negotiations for a global treaty on mercury and signed the Minamata Convention on Mercury.

However, as long as the MC is not ratified by at least 50 Parties, it does not enter into force and therefore the above problem is not being tackled at a global scale.

Given the significant extent of the EU mercury acquis and as the Convention is to a large extent modelled after the EU acquis, ratification would require only a limited number of adjustments to the EU acquis. Following a detailed analysis of the Convention text vis-à-vis the EU acquis presented in tabular form in Annex 7, existing gaps have been identified where EU legislation does not cover the requirements of the MC Convention:

1.imports of metallic mercury: imports into the EU of mercury from countries not party to the Convention are not controlled with a view to ensure that the mercury does not come from certain sources;

2.exports of certain mercury-added products: the export from the EU of a number of mercury containing products listed in the MC is not prohibited under EU law;

3.mercury use in new products and processes: putting on the market of new products or processes using mercury that do not currently exist is not sufficiently discouraged;

4.use of mercury in certain manufacturing processes: two industrial processes using mercury and prohibited under the MC are still allowed in the EU and certain restrictions applicable under the MC to three other processes, e.g. concerning the use of mercury and the reduction of mercury emissions, are not applied within the EU;

5.mercury use in Artisanal and Small-scale Gold Mining (ASGM): no steps are taken in EU law to reduce and were feasible eliminate the use of mercury in ASGM;

6.use of dental amalgam: there are no special measures for the phase down of the use of dental amalgam.

1.3.What are the underlying causes of the problem?

Mercury can enter our environment (and subsequently the food chain) in many different ways. Emissions of mercury can travel through air and water and end up thousands of kilometers away from their source. Unless it is properly disposed of, mercury produced, used or discarded adds up to the global mercury pool, persists in the environment, and is concentrated mainly in predatory fish that may be consumed by humans. Additionally, significant quantities reach the environment as unintentional emissions, e.g. through the burning of fossil fuels and biomass.

Global mercury emissions from human activity have been estimated at 1960t/y. This represents about 30% of annual mercury emissions to air. Another 10% comes from natural sources (e.g. volcanoes), and the remaining 60% is caused by re-emission, which again is largely due to mercury accumulated in the environment due to human activity over several centuries. Figure 1-a indicates the origin of these emissions on a global basis. It is clear that EU's contribution is rather limited (4,5%), while almost half of global emissions (931t) originate in Asia.

The origin of atmospheric mercury deposition can differ substantially in different areas in the EU. Emission models predict currently that atmospheric deposition originating in Europe is up to 60% in certain industrialised areas, while in other areas, such as the Mediterranean, European emissions contribute only 20% or less to the total deposition. It is thus obvious, that the transboundary component of mercury pollution is very significant and addressing the problem requires not only local or regional, but global action.

The underlying cause of the problem of the exposure of EU citizens to mercury is therefore significantly linked to the transboundary character of mercury pollution and to the fact that only the EU and a few other countries (e.g. Norway, Switzerland, the USA, Canada and Japan) have implemented advanced policies addressing mercury emissions and use, minimising their contribution to the global mercury pool in the last two decades, while there was an opposite trend with significant increases of mercury emissions (currently contributing almost 50% of the global total) by countries in Asia due to their industrialization.

Figure 1a 17 Anthropogenic mercury emissions in 2010 on a regional basis

Figure 1b17 Long-range mercury transport

1.4.How will the problem evolve?

Figure 1-c shows clearly the increase of mercury deposition since the industrial age. While emissions may have been slightly reduced after reaching a peak during the 1970s mainly due to control measures in Europe and North America, there are nowadays indications that this trend is reversed due to the exponential industrialisation in East and South-East Asia. As a result, concentrations in marine animals have increased substantially (in some areas, e.g. the Arctic, up to 10-12 times) compared to pre-industrial times.

Given the size of the global mercury pool (estimated at 350 000t), it will take decades before reductions in atmospheric emissions can have a visible impact on mercury levels in the environment and fish. Delaying the ratification of the MC would thus have long-term consequences both for Europe and the rest of the world leading to unacceptably high contamination of marine and freshwater foods.

Figure 1c    Atmospheric mercury deposition during the last three centuries (UpperFremont Glacier, Wyoming, USA 1991&1998)

1.5.Who is affected and how?

Citizens:

All individuals will be exposed to mercury through fish consumption to some extent. However, certain groups (toddlers, women in childbearing age and high fish consumers) are particularly vulnerable. The level of exposure can obviously vary greatly depending on dietary habits, contamination levels and the species consumed. Everybody is affected to some extent, but indigenous people in the Arctic and citizens in Southern Europe are at higher disk due to dietary habits and the availability of large fish species from the Mediterranean.

In its scientific opinion on the risk for public health related to the presence of mercury and methylmercury in food 18 , the EFSA Panel on contaminants in the food chain (CONTAM) concluded that high fish consumers, which might include pregnant women, may exceed the Tolerable Weekly Intake (TWI) for methylmercury by up to approximately six-fold. While dietary inorganic mercury exposure in Europe does not exceed the TWI 19 in most cases, parallel inhalation exposure of elemental mercury from dental amalgam is likely to increase the internal inorganic mercury exposure; thus the TWI might be exceeded.

Unborn children constitute the most vulnerable group. Due to the critical effect of methylmercury exposure to the brain of the embryo, exposures of pregnant women are of major concern. The DEMOCOPHES project 20 has analysed exposure levels on the basis of mercury concentrations in the hair of women of reproductive age in different countries. It was found that parts of the European population exceed the tolerated level (0,58 μg/g hair). The percentage of the population exceeding this level differs between the 17 participating European countries, with some exhibiting levels higher than 0,58 μg/g hair in over 50% of the population, while in others less than 5% of the population exceeded the tolerated level.

Economic operators:

This includes mainly importers and exporters of mercury and/or mercury containing products, manufacturers of products containing mercury, industries using or emitting mercury, waste handlers and recyclers. Mercury is still used in several sectors, such as the chlor-alkali industry 21 , dental amalgam fillings, light sources, batteries, measuring equipment, switches and relays, chemicals, etc. However, since mercury use is heavily regulated within the EU (while this is not the case in most other countries), non-EU companies producing goods containing mercury enjoy a competitive advantage. A study report 22 carried for the Commission in 2008 provides detailed information on all remaining uses of mercury, sectors involved and EU companies concerned.

Member States:

Twenty six MS16 have signed the MC and they would also need to ratify and implement it. Lack of global action makes it extremely difficult, if not impossible, for MS to guarantee to their citizens the required level of protection from the risks posed by mercury. MS will obviously share the burden of implementation, but will also reap the environmental and health benefits.

Third countries:

Given the lack of strict regulatory control, populations in third countries are at even higher risk of exposure to mercury. ASGM is one of the major sources of anthropogenic emissions of mercury, in more than 70 countries, mainly in Latin America, Africa, and Southeast Asia. Around 10-15 million people are directly involved (among those 4-5 million women and children) and are exposed to dangerous levels of elemental mercury.

1.6.The EU's right to act and justification

The MC is a multilateral environmental agreement addressing the mercury problem on a global scale. It establishes a legally-binding framework providing for trade-related measures (import and export restrictions on mercury, mercury compounds and mercury-added products) falling under the exclusive competence of the EU in accordance with Art. 3(1)(e) of the Treaty on the Functioning of the European Union ("TFEU") and for environmental protection measures (e.g. reduction of mercury emissions from certain manufacturing processes) regarding which competence is shared between the EU and the MS by virtue of Art. 4(2)(e) TFEU.

Hence, this Convention is a so-called "mixed agreement", as not all the matters covered by it fall exclusively within the competence of the EU or of its MS. As such, the MC is an agreement to which both the EU and the MS are signatories and which can be ratified by the EU and the MS.

The EU's legal right to act regarding the MC is based on the external competences of the EU, as defined in Art. 216 TFEU, on the basis of which the EU may conclude international agreements, where the conclusion of an agreement is necessary to achieve one of the objectives of the EU, including the establishment of a common commercial policy and the protection of the environment.

To control and reduce mercury use and pollution fits clearly with the EU environmental objectives established in Art. 191(1) and (2) TFEU that are concerned with e.g. the preservation, protection and improvement of the quality of the environment, the protection of human health and the promotion of measures at international level to deal with regional or worldwide environmental problems. The transposition into EU law of the trade-related measures provided for in the MC and aiming at restricting imports and/or exports of mercury and mercury-added products fits also with the objectives of the EU common commercial policy. The proposed EU mercury regulation has therefore a twofold legal basis, namely Art. 192 and 207 TFEU that entitle the EU to regulate in the field of the environment and of common commercial policy.

The legal right of the EU to act regarding the MC is also based on the mere fact that EU competence in the fields of mercury trade and environmental protection from mercury is already widely exercised, as demonstrated by the significant EU acquis on mercury described in Annex 6. In fact, the EU acquis covers already most of the issues addressed by the MC, including mercury export restrictions, the placing on the market of mercury-added products, the use of mercury and mercury compounds in industrial processes, the control of mercury emissions from large point sources and the management of mercury waste. It is also worth noting that the negotiating positions, and subsequently the content of the MC, were developed in close cooperation between the Commission and the MS, in accordance with Art. 218(3) and (4) TFEU.

Not only has the EU the right to act vis-à-vis the MC, but EU action is clearly justified given the significant transboundary component of mercury emissions, which therefore requires action at EU level.

EU action is also necessary as MS would not be entitled to ratify the MC in the absence of EU transposing legislation. Indeed, as specified above, since the MC trade-related measures are to be addressed within the context of the establishment of an EU common commercial policy, only the EU is competent to set out trade restrictions on mercury and mercury-added products. Furthermore, the EU acquis covers MC provisions relevant for the EU internal market. Hence, the ratification of the MC and its implementation within the EU requires beforehand the enacting of EU transposing legislation.

1.7.Issues identified in the assessment of the Mercury Export Ban Regulation

The Commission contracted COWI A/S in 2014 to carry out an ex-post assessment of the Mercury Export Ban Regulation. Such assessment was limited, given the short time period for implementation of the Export Ban (2011-2015) and concomitantly, the limited evidence base available. Therefore, this assessment was also limited in scope as it covered 3 evaluation criteria: effectiveness, efficiency and coherence. Yet, COWI’s study 23 , based on stakeholder consultation and available statistical data, provides important information on the performance of the Mercury Export Ban Regulation so far and guidance on potential improvements 24 .

Overall, the export ban seems to be effective in reducing the global mercury supply:

As a result of the export ban, it is estimated that approximately 650t of mercury are prevented annually from reaching the global market, corresponding to approximately 20% of the global mercury supply.

Available data indicates that the decrease in mercury supply may not have been replaced by increased mine production outside the EU and that the threefold increase in the price of mercury can most probably be attributed to the decreased supply of mercury from the EU and the USA.

However, the effectiveness of the Mercury Export Ban Regulation has not been entirely met regarding the safe storage of mercury as waste.

Whilst Art. 4(3) of that Regulation foresees the adoption of criteria for the admissibility of such waste in landfills, only criteria for the temporary storage, for a period up to 5 years, have so far been enacted by Council Directive 2011/97/EU 25 , as there was so far no majority amongst MS enabling the adoption of criteria for permanent storage of metallic mercury which is liquid 26 . The issue of the lack of criteria for the permanent safe storage of mercury as waste has been identified as a concern by stakeholders consulted, since there may be stocks in 2016 of mercury waste that would have been stored for 5 years. However, as other forms of environmentally sound storage exist (i.e. in solidified form), the lack of permanent storage criteria for mercury in liquid form is considered as a minor issue not leading to significant impacts. Therefore, this issue is not pursued further in this Impact Assessment.

As regards the efficiency of the Mercury Export Ban Regulation, it is likely that the health benefits significantly outweigh the costs associated with the export ban. On the one hand the cost to the chlor-alkali industry of storage of surplus mercury is estimated at an average of 0,6-2 million EUR/y, while the lost revenue from sale of mercury is estimated at 3-5 million EUR/y. The most affected industry group is that of recyclers and exporters of mercury. The total lost revenues are estimated at an average of 5-7 million EUR/y i.e. of the same size as the lost revenue to the chlor-alkali sector from sale of mercury to the recyclers and exporters. On the other hand, the total benefits of preventing the 650 t/y in reaching the global mercury market cannot be fully assessed. As an illustrative example: assuming that the reduced export of mercury from the EU would result in a 10% decrease in the expected impacts from lost IQ due to ingestion and inhalation of mercury (one of the environmental and health impacts of mercury), and using available estimates of the costs of mercury impacts, the total benefits can be estimated to be at least 400 million EUR/y at global level and likely significantly higher.

Concerning the coherence of the Mercury Export Ban Regulation, the assessment carried out by COWI and the analysis undertaken by DG ENV services, have identified the following two opportunities for simplification24:

Art. 3 of the Mercury Export Ban Regulation foresees the application of the Seveso Directive 27 for all mercury waste above-ground temporary storage facilities. However, following the adoption of Council Decision 2011/97/EU, this obligation could now be considered as disproportionate in view of the limited added-value of the application of the Seveso Directive to facilities that are regulated by the Landfill Directive 28 .

Certain reporting obligations established under Art. 5 and 6 of the Mercury Export Ban Regulation are now outdated as they refer for instance to information that had to be communicated to the Commission and to the competent authorities of the MS by 1st July 2012.

Considering that those two issues are very minor and will not significantly affect existing EU legislation, they are not pursued any further in this impact assessment.

2.    Objectives

The general objective of this initiative is to enable a significant reduction of global mercury pollution by international action complementing EU efforts. This objective has been identified as a priority following the 2010 review of the EU Strategy concerning mercury.

Given the current international developments and the global context, the general objective can best be achieved by narrowing it down to the following specific objective.

The specific objective is an early ratification of the MC by the EU and its MS, its early entry into force and implementation on the global scale.

The operational objectives are to adapt the EU acquis to the points required by the MC and not yet reflected in the EU acquis, by addressing the legislative gaps in the areas listed below in an effective and efficient manner:

import of metallic mercury;

export of certain mercury-added products;

mercury use in new products and processes;

use of mercury in certain manufacturing processes;

mercury use in Artisanal and Small-scale Gold Mining (ASGM);

use of dental amalgam.

3.    Policy Options

It should be noted that other approaches were initially considered despite calls from the EU and other countries for a legally binding instrument on mercury. In 2005, UNEP Governing Council decision 23/9 launched global mercury partnerships between governments and other stakeholders. Such partnerships still exist today and cover a number of areas (coal combustion, cement production, chlor-alkali, mercury in products, supply and storage, mercury waste, ASGM and air transport). However, they were not successful in addressing the global mercury problem as only few (less than 30) governments were involved, not including major polluters such as Asian countries contributing nearly 50% of the global mercury anthropogenic emissions. Partnership projects could be continued on a voluntary basis or be encompassed by the MC framework, however, there is no obligation even for participating countries to implement or even take into account the outcome of the process. The limited success of voluntary approaches (e.g. partnerships) so far, confirms the necessity of a legally-binding instrument to address the mercury problem on a global scale, which was already called for in the EU Mercury Strategy.

Different policy options for the ratification of the MC have been examined and are presented below. As the majority of the provisions in the Minamata Convention are binding, for those provisions only legally binding policy options would serve the objective of future ratification of the Convention. The options considered hereunder are based on:

1.the minimum actions required to fulfil the obligations set-out in the MC;

2.more stringent measures in the cases where they have been suggested by stakeholders and which would allow to further tackle the mercury problem. These options go beyond what is strictly required by the MC, and represent another way to address the operational objectives.

It should be noted that the MC allows the Parties to take additional domestic measures that are consistent with its provisions (as indicated in the preamble).

The measures foreseen under the different policy options would address the existing gaps in the EU legislation and would allow the ratification of the MC, which in turn foresees the appropriate measures to tackle the mercury issue on a global scale.

3.0    Baseline - “No EU Action”

Under the baseline, the EU would not take any additional measures. This would correspond to an option O0 for each of the various provisions described below.

Under the baseline, the MS would not be able to ratify the MC, as certain provisions in the MC (e.g. trade or internal market related) are exclusive EU competence or would have an impact on the EU acquis.

3.1    Import of mercury (P1)

The export of metallic mercury and certain mercury compounds is already banned under existing EU legislation. The export ban is intended to reduce the global mercury supply and prevents the EU's mercury surplus from entering the global market and (particularly) being diverted to polluting activities, such as ASGM.

No import restrictions for metallic mercury currently exist under EU law. The MC establishes a Prior Informed Consent (PIC) procedure for imports from non-Parties. In particular, Art. 3(8) of the Convention restricts imports of metallic mercury and certain mercury compounds and mixtures from non-Parties, when such mercury is derived from sources not allowed under the Convention (e.g. primary mining or excess mercury from the decommissioning of chlor-alkali facilities).

When considering implementation of Art. 3(8) of the Convention, the EU has the option of restricting imports only from non-Parties, as foreseen by the Convention (P1O1), or adopting a stricter approach (P1O2) by legislating a prohibition on imports from all non-EU countries.

3.2    Export of certain mercury-added products (P2)

In many parts of the world, mercury is still used in products quite extensively. Art. 4(1) of the MC foresees a prohibition on the manufacture, import and export of nine major mercury-containing product categories: batteries, switches and relays, compact fluorescent lamps, linear fluorescent lamps, high pressure mercury vapour lamps, electronic displays, cosmetics, pesticides/biocides/topical antiseptics and non-electronic measuring devices such as barometers, hygrometers, manometers, thermometers, sphygmomanometers, after the phase-out date of 2020, as specified in Annex A, Part I of the Convention.

Under EU law, products in the above categories containing mercury are already regulated under various regimes (e.g. RoHS Directive 29 , Batteries Directive 30 , REACH Regulation 31 ), making it illegal to place them on the EU market (or indeed to import them). However, no export restrictions currently exist.

The internal market restrictions under EU law are in some cases stricter than those under the MC 32 . An EU export prohibition could thus apply either to all products already prohibited on the internal EU market (P2O2) or only to those prohibited for export under the Convention (P2O1).

3.3    Mercury use in new products/processes (P3)

The MC obliges Parties to take measures discouraging mercury use in new (i.e. not yet placed on the market at global level) products and processes, unless an assessment of the risks and benefits demonstrates environmental or human health benefits (Art. 4(6) and 5(7) of the Convention). There is currently no provision in EU law that would reflect this obligation.

One option to implement this would be to establish an obligation for operators and MS to notify the use of mercury in new products and processes. This would enable an assessment to be made by the Commission in consultation with MS experts of potential risks and benefits (P3O1) and could lead to a notification to the MC Secretariat for inclusion in the list of products or processes prohibited by the Convention. An alternative approach would be to enact an a priori prohibition of mercury use in new products and processes (P3O2), while it would remain possible to grant future derogations in case an assessment of the risks and benefits demonstrates environmental or human health benefits.

3.4    Use of mercury in certain manufacturing processes (P4)

The MC covers five manufacturing processes in which mercury or mercury compounds are used, namely the production of:

chlor-alkali;

acetaldehyde;

vinyl chloride;

sodium (or potassium) methylate (or ethylate);

polyurethane.

Phase-out dates are foreseen in the Convention for mercury use in chlor-alkali production and acetaldehyde production (2025 and 2018, respectively), while a number of measures to be taken by the Parties are specified for each of the other processes.

Processes subject to a phase out date

Emissions from industrial installations are currently regulated under EU law by the Industrial Emissions Directive 2010/75/EU (IED) . The IED imposes the use of Best Available Techniques (BAT) aiming at reducing the environmental impact of industrial activities, and covers to a great extent the requirements concerning the manufacturing processes undertaken by the EU in view of ratifying the Convention. As an example, Commission Implementing Decision 2013/732/EU , concerning the chlor-alkali industry, concludes that the mercury cell technique cannot be considered BAT under any circumstances and hence, this process will have to be phased out in the EU by end 2017, much earlier than the 2025 deadline specified in the Convention.

There is no acetaldehyde production using mercury catalysts in the EU.

Processes for which the Convention foresees certain restrictions

The manufacturing, placing on the market or use of five phenylmercury compounds, known to be used especially as catalysts in polyurethane systems, as well as the placing on the market of articles containing these substances above a certain concentration limit is restricted by EU law under REACH as from 10 October 2017.

There is only one plant in the EU that is using catalysts containing mercury in the production of vinyl chloride as an ancillary activity. Ongoing work on the review of the reference document on best available techniques on large volume organic chemicals includes conclusion that use of such mercury-based catalysts would not qualify as BAT, which means that such use should not be allowed under the Industrial Emissions Directive.

There are two plants in the EU that use a mercury process for the production of sodium or potassium methylate or ethylate.

The measures listed in the Convention differ depending on the process and fall in the following categories:

prohibiting the use of mercury from primary mining and reducing the use of mercury from other sources;

reducing emissions and releases of mercury;

supporting research and development in respect of mercury-free processes.

In practice, given the measures already taken by the EU and the activities that take place within the EU, as described above, and as EU policy on research allows for supporting research in these fields, the mandatory measures to be taken are:

for the three processes concerned, the duty not to use mercury from primary mining;

for the production of sodium or potassium methylate or ethylate, the obligation to reduce mercury emissions and releases to air and water by 50% by 2020 compared to 2010.

In transposing and implementing this Article, the EU could opt for the following option which restricts such processes (P4O1):

prohibit by 2018 the use of mercury in the production of acetaldehyde and vinyl chloride;

impose the measures listed above to other processes;

encourage through dialogue Germany and the concerned companies to find solution for conversion of the two installations producing alcoholates into non-mercury technologies.

The other option would consist in establishing a stricter approach by simply prohibiting mercury use in these processes (P4O2).

3.5    Mercury use in Artisanal and Small-scale Gold Mining (ASGM) (P5)

ASGM is an important source of mercury emissions on a global scale with an estimated 37% contribution to the global anthropogenic mercury emissions in 201017. However, the only part of the EU concerned is the overseas department of French Guiana.

Art. 7 of the Convention (in conjunction with Annex C) foresees measures to reduce (and where feasible, eliminate) both the use and the emissions of mercury from ASGM and requires a national action plan from the Parties in case such activity on their territories is “more than insignificant”.

Given the limited scope of this activity in the EU and the existence of relevant legislation at Member State level (France), transposition of this provision into EU law would have limited consequences from the practical point of view.

However, there are again two options: transpose all requirements as they are set out in Art. 7 (and Annex C) of the Convention (P5O1) or adopt a stricter approach by prohibiting mercury use in ASGM altogether (P5O2).

3.6    Use of dental amalgam (P6)

Dental amalgam has been used for over 150 years in the treatment of dental cavities and is still used, in particular in large cavities due to its excellent mechanical properties and durability. Dental amalgam is a combination of alloy particles and mercury that contains about 50% of mercury in the elemental form. Overall, the use of alternatives is increasing either due to their aesthetic properties or alleged health concerns related to the use of dental amalgam.

Mercury vapour is released from dental amalgam and absorbed in a variety of tissues; however the clinical significance of mercury toxicity and its potential health impacts have remained a matter of debate for more than a century. Improperly managed dental amalgam waste can pose a risk for the environment. If it ends up in a landfill, mercury may be released into the groundwater or air; if it is incinerated, mercury may be released to the atmosphere; even mercury in fillings may eventually end up in the environment as a consequence of cremation or burial.

Dental amalgam and its substitutes are regulated under the Medical Devices Directive 33 , according to which they must comply with the essential requirements laid out in the Directive, in particular in relation to the health and safety of the patients.

In 2008, the Commission consulted two independent scientific committees, the Scientific Committee for Health and Environmental Risks (SCHER) and the Scientific Committee for Emerging and Newly Identified Health Risks (SCENIHR), on the health and environmental risks posed by mercury in dental amalgam. Whilst SCENIHR concluded that dental amalgam was safe to use and that there was no evidence of systemic disease caused by its use, SCHER concluded that on the basis of the information available, it was not possible to "comprehensively assess the environmental risks and indirect health effects from use of dental amalgam", and identified a number of gaps that would have to be addressed.

In reviewing the Community Strategy Concerning Mercury in 2010, the Commission identified dental amalgam as one the biggest remaining use of mercury in the EU and undertook a comprehensive study. The study focuses mainly on the environmental impacts of dental amalgam use and seeks also to address, to the extent possible, the gaps identified in the SCHER 2008 opinion. It concluded that a prohibition on the use of mercury in dentistry in combination with better enforcement of EU waste legislation would reduce the environmental impact of dental amalgam use. The main conclusions of the study are summarised below, while a detailed summary of the study report is provided in Annex 10A:

Mercury demand for dentistry in the EU was estimated at around 75 t/y representing 24% of total mercury use (ca. 320 t/y). Despite its decline in the last few years, dental use of mercury remains a significant contributor to overall mercury releases to water in the EU.

In some MS (e.g. SE, DK, IT, EE) the use of dental amalgam is very limited due to policy measures in place, while in others (e.g. FR, PL) it is still rather widespread.

Around 46 t/y of mercury from EU dental practices end up in chair side effluents, with only part of it being captured and treated as hazardous waste.

Only 14 MS adopted national legislation obliging dental practices to use separators (to capture mercury in the waste stream), while around 25% of EU dental facilities were still not equipped with separators.

The total stock of mercury in European citizens’ mouths has been estimated at 1000 t. Given the longevity of amalgam fillings (10-15 years), this means that the environmental problem cannot be addressed only by measures restricting future use of mercury in fillings.

Alternative mercury-free filling materials are available and gain momentum (mainly on aesthetic grounds); they comprise ca. 66% of tooth restorations in the EU.

There are significant differences among MS regarding the cost of dental amalgam restorations born by the patients, mainly due to differences in labour costs and insurance reimbursement schemes. A major component of the cost is the time required for the placement of the filling, which is linked to some extent with the training of the dentists. The WHO has pointed out that staff training is a major component for success in using mercury-free alternatives.

In Annex A, Part II, the MC requires Parties to take at least two out of a list of measures covering the following areas:

national health care policies and systems;

education and research;

best environmental practices;

restrictions on the form of dental amalgam used by dentists.

Most of these measures would be best addressed by MS.

As promotion of research at EU level is covered by EU research programme Horizon2020, it is considered that the EU is already taking one of the measures listed in the Minamata Convention. Hence, at the minimum the EU would have to take at least one more measure out of the following measures listed in the Convention:

restrict the use of dental amalgam to its encapsulated form;

promote best environmental practices at dental clinics by imposing the use of separators in dental practices.

In implementing this article, the EU could seek to meet the minimum requirement of the Convention by taking only one additional measure. This could be either restricting the use of dental amalgam to its encapsulated form (P6O1a) or imposing the use of separators in dental practices (P601b). As the Minamata Convention encourages Parties to take more than two measures, the EU could also opt for taking both P601a and P601b, which are independent from each other.

Alternatively, the EU could legislate with the aim of prohibiting the use of dental amalgam (P6O2).

3.7    Summary

The information above is presented in a summary form in the following tables. Table 3-a lists the MC provisions not covered by EU law that would have to be transposed before ratification.

Table 3a Summary of Minamata Convention provisions to be transposed in EU law

In identifying options for each of the provisions listed in Table 3-b, O1 corresponds to the requirements of the MC, while O2 goes beyond that:

Table 3b Summary of options

Various combinations of these options are obviously possible, such combinations (consisting of 6 options each) are defined and examined as scenarios in Section 6.

3.8    Legal instrument

As mentioned earlier, certain provisions of the MC are not covered by the existing EU acquis and they would need to be introduced into EU legislation before the ratification of the Convention by the EU and by the MS. Such provisions concern different areas including trade, products, chemicals, environment, etc. A number of legislative options were examined for each provision (whatever the level of its ambition), including amending already existing EU legislation specific to the area under consideration.

In line with the principles of better law making, an approach with a single legislative proposal addressing all necessary provisions appears to be more appropriate, in terms of both legal clarity and workload/time needed in the inter-institutional process, than proceeding with amendments of various regulations and directives. This single legislative proposal could complement the internal market ban by an international trade ban of mercury-added products which are so far regulated, in terms of restricting their placing on the market, under several pieces of waste legislation (WEEE/RoHS, Batteries, End-of-Life Vehicles) as well as under REACH, and cosmetics legislation.

Regulation (EC) No 1102/2008 on the banning of exports of metallic mercury forms a good basis for adding provisions needed to ensure compliance with the MC. It already contains trade measures and provisions for the storage of waste mercury and it has a double legal base (environment and trade).

However, given that:

the amendments (additions) to be made are numerous and outweigh the existing text,

the scope of the instrument will be extended, which should also be reflected in its title,

in the interest of legal clarity and readability, a proposal for a new Regulation, integrating the new elements and the existing provisions of Regulation (EC) No 1102/2008, as well as repealing the latter, would appear as the most straightforward way.

4.    Analysis of Impacts 34

4.0    Baseline - “No EU Action”

At the time of drafting this report, the entry into force of the Convention requires 31 additional ratifications (19 parties have ratified so far). On the basis of available information, a few other countries (e.g. Japan, Switzerland, Peru, Bolivia, Brazil) intend to ratify very soon and the number of ratifications is expected to reach 25 early in 2016. Therefore, ratification of the Convention by the EU and its MS (planned for 2016) would most likely trigger its entry into force in 2016.

In view of the leading role the EU played in the negotiations and the expressed political will, both at the EU and MS level, to address the mercury problem globally, the international community is aware of EU’s strong commitment to ratify the Convention. Most important countries in terms of mercury pollution 35 have signed the Convention and there are reasonable expectations they will also ratify it 36 .

Non-ratification by the EU would not only have a negative impact on EU’s reputation and credibility on the international scene but would additionally send a strong negative signal that would discourage ratification by other countries. In particular, it could be expected that several key developing countries would probably not ratify unless a critical mass of developed countries (such as the EU, Japan and USA) have ratified first. Ratification by many developing countries could also be delayed or even deterred by an EU decision not to ratify, as many of them look forward to the EU in particular for capacity-building, technical assistance and technology transfer (Article 14 of the MC) for implementing the Convention.

Based on these considerations, with a strong commitment by the EU, entry into force of the Convention would likely take place in 2016, otherwise entry into force will probably be delayed substantially, most likely to a date not earlier than 2020. In such a case, the Convention would also be significantly weakened as its Parties would be limited in terms of number (ca. 50-60) and impact (e.g. due to non-participation of major polluters). As explained earlier, given the long-range transboundary character of the mercury pollution, in such a case, the environmental and health impacts would be experienced both on the global scale and within the EU and the overall objective would not be met. Models conclude that without measures to control mercury pollution on the global scale, mercury emissions are likely to be substantially higher in 2050 than they are today.

37 38 Furthermore, early ratification of the MC by the EU and its MS is essential as only then can they participate as a Party in the first meetings of the COP that will elaborate (among others) the rules of procedure of the Implementation and Compliance Committee and adopt guidance on best available techniques used to reduce and/or prevent emissions of mercury from industrial activities. It is very difficult to quantify either the cost of inaction or expected benefits of a ratification by the EU, as these depend on actions undertaken by the rest of the world to reduce emissions. Bellanger et al estimated the annual benefits of removing mercury exposure to be approximately €9 billion in Europe. A comprehensive study on the socio-economic costs of continuing the status-quo of mercury pollution undertaken by the Nordic Council estimated at 2 439 tonnes the global emissions of mercury to the atmosphere in 2020 for a Status Quo scenario (no further actions to control mercury) and the corresponding annual damage costs due to loss of IQ at 8 billion USD, acknowledging that the total cost to society of mercury pollution would be considerably higher in view of the additional costs not taken into account in the analysis.

While one can safely conclude that the cost of inaction would be very high, such costs can neither be estimated accurately nor easily monetised and the authors themselves acknowledge that such estimates are highly influenced by uncertainties. Most studies so far analysed neurotoxic impacts, but they have not taken into account a significant body of evidence on potential elevated risk for cardiovascular diseases, especially myocardial infarction. A thorough analysis of societal costs and benefits would require the consideration of certain other aspects, e.g. co-benefits. Moreover, regional aspects may be quite important, therefore extrapolation to a global scale is very difficult.

In order to demonstrate the impact of a ratification/non-ratification of the MC to the competitiveness of the European businesses, a few illustrative examples are presented below:

Most of the mercury-added products listed in Annex A of the MC have already been phased out within the EU. By way of example, mercury thermometers and sphygmomanometers are illegal to place on the EU market since 10 April 2014 39 , thus the European businesses concerned have already undergone the transition to alternative, mercury-free products (i.e. electronic thermometers and electronic or anaerobic sphygmomanometers). Provided the MC enters into force, a phase out obligation would be imposed to all Parties by 2020. China, one of the main players in this business sector, has a production capacity of 183 million mercury thermometers and 4,18 million mercury sphygmomanometers and an employment of 5 500 40 . Production capacity for both products has been increasing in recent years and this trend will certainly continue in the coming years due to rapid economic growth unless these products are regulated. Provided China becomes Party to the MC, this whole business sector would face the need of a transition that would entail significant costs (e.g. due to technology introduction, investment in alternative equipment). It should be mentioned that there is no available mature technology for the production of electronic thermometers and sphygmomanometers in China and thus basic electronic components would have to be imported from other countries (e.g. Germany) creating potential business opportunities for European companies in this field. As an additional example, battery producers within the EU are already subject to a prohibition on placing on the EU market of batteries containing mercury 41 , a restriction that MC would impose on Parties by 2020. In fact, all mercury-added products listed in Annex A of the MC are already restricted within the EU, thus the Convention would establish a level playing field in these sectors.

Certain provisions of the MC on processes using mercury (Article 6 in conjunction with Annex B) would have minimal impact on European industry, as such processes are either practically non-existent in Europe (e.g. acetaldehyde production, vinyl-cloride monomer production) or are already regulated beyond the requirements of the Convention (e.g. chlor-alkali production, where mercury technology will be phased-out by 2017 within the EU, while the phase-out date foreseen by the Convention is 2025). For example, while PVC in Europe is produced almost exclusively from oil or natural gas, China, one of the major producers of PVC globally, uses an alternative process with coal as a raw material, utilising a mercury-containing catalyst. In fact, PVC production is the largest intentional use of mercury in China with an annual consumption of ca. 1000 t of mercury in recent years and with a forecast of significant growth in the future. As a Party to the Convention, China would have to reduce the use of mercury in this sector by 50% by the year 2020 or even eliminate such use once alternative mercury-free catalysts become technically and economically viable. Such a transition would entail costs for Chinese PVC producers, while there is no economic impact on the European industry. In fact, there are business opportunities, as a European company (Johnson Matthey) reported promising results from a pilot-scale test of a mercury-free catalyst carried out in China. 42

Industrial emissions of mercury have been regulated within the EU since long. The Industrial Emissions Directive (IED) currently into force requires the application of Best Available Techniques (BAT) and Best Environmental Practices (BEP) that cover all major industrial sectors 43 . The MC will impose similar obligations to Parties with regard to the industrial sectors listed in Annex D (Coal-fired power plants; coal-fired industrial boilers; smelting and roasting processes used in the production of non-ferrous metals; waste incineration facilities; and cement clinker production facilities). Guidance will be adopted at the first meeting of the Conference of the Parties on the basis of documents currently developed by an expert group on emissions, where the Commission is actively participating. Adoption of stricter emission standards by industry in other countries will entail for them a compliance cost, the EU industry is already facing. It would thus establish a level playing field and have a positive impact on the competitiveness of the sectors concerned.

It should be noted, that given the high number of signatory countries (128) and the restrictions imposed by the Convention to non-Parties, the risk of potential competition by non-acceding countries is minimal.

4.1    Import of mercury (P1)

Mercury supply in the EU is currently estimated at around 200 t/y, of which 100 t/y represents imports, while another 100 t/y is mercury originating from recycling activities within the EU. Mercury demand at the moment is estimated at 260-400 t/y, but projected consumption in 2025-2030 is estimated at 40-220 t/y (see Table 4-e for details). The expected decline is justified mainly by the phase-out of the use of mercury in the chlor-alkali industry by 2017, which accounts for ca. 40% of current mercury consumption within the EU.

Table 4a Current and projected mercury (Hg) EU consumption (t/y)

On the basis of historical data, mercury prices could be expected to fluctuate significantly based on the relative decrease of supply and demand in 2025-2030, when the MC would have been implemented. It would be reasonable to assume that such fluctuation would range from 50% to +100% of current mercury prices, hence (after rounding) between 19 000 €/t and 78 000 €/t.

Table 4b Current and projected mercury (Hg) market prices (€/t)

Given the high number of signatories (128) of the MC and the fact that most of the major EU trading partners are currently working on its ratification, it is reasonable to assume that about 90% of mercury imports to the EU would originate from future Parties, while only 10% (hence about 10 t/y) may originate from countries that will not become Parties to the Convention.

Option P1O1 (import restrictions at EU level for metallic mercury from non-Parties) would result in annual import loss = 10t/y, of a total value of 10t/y*€38 900/t 44 = €389 000/y.

Option P1O2 (general import prohibition of metallic mercury) would result in annual import loss = 100 t/y, of a total value of 100 t/y*€38 900/t= €3 890 000/y.

Depending on mercury demand, imports from allowed sources and for allowed uses may increase and outweigh or even overcompensate the possible losses of revenue under option P1O1. Option P1O1 is not expected to impose additional costs on industry, while option P1O2 may do so, but much depends on how the demand for mercury will change in the years ahead.

Both options will potentially lead to a lower supply of mercury. Option P1O1 could lead to a small decrease in mercury supply (under an assumption that import restrictions from non-Parties will reduce supply imports from 100 to 90 t/y; and the remaining supply will be about 190 t/y). Option P1O2 could lead to a significant decrease in mercury supply; the remaining supply would be about 100 t/y. Yet demand is also expected to drop as a consequence of the MC (to 40-220 t/y). Decreasing supply and decreasing demand have inverse effects on mercury prices.

No mercury shortage is expected under the option P1O1, while some shortage may occur under option P1O2, if demand for mercury remains high (see Table 4-c below).

Table 4c Expected supply, demand and balance of supply and demand

If EU demand for mercury remains high (up to 220 t/y) it may lead to higher prices and additional costs to industry. If demand falls to the lower range of the estimate (down to 40 t/y) then prices may fall, with commensurate cost savings to industry.

If prices increase, substitution is expected first to occur in those areas where it is most economically feasible and costs of mercury-free alternatives are not significantly higher than those of the mercury use. Substitution costs cannot however be estimated at this stage. If prices fall, additional costs of substitution would not become relevant (at least not due to increased mercury prices). Based on these considerations, any actual costs of substitution will be similar to the costs of the corresponding mercury use, unless the alternatives provide added functional benefits (which represent an added value).

In a foreseeable future (2025-2030), industry would need, as per projections of demand above, to purchase between 40 and 220 t /y of mercury at an average price of €38 900/t 45 , equalling a value of €1,6 to €8,6 million/y (average €5,1 million/y).  In case of an average demand of 130 t/y, the incremental costs of option P1O2 would thus correspond to 0 – 5,1 million EUR/y. If demand would be in the lower end of the projected interval, cost savings for industry could be possible.  If demand would be at the top of the interval, estimated cost increases (compared to business as usual) would be between 9-16 million EUR/y 46 . Therefore, across the whole range of possible developments, the incremental costs interval would be 0-16 million EUR/y.

Under both options, extra administrative costs for importers and competent authorities would arise, however they are expected to be low. As the option P1O1 requires a procedure for checking imports from non-Parties to the MC, its administrative burden (for industry and authorities) would be expected to be higher than that of option P1O2, where only regular import (border) control is required.

As indicated above, option P1O1 will practically not reduce mercury imports in the EU, while they would fall from current levels of 100 t/y to 0 t/y under option P2O2. A reduction in mercury supply within the EU under a general import prohibition would have a positive environmental impact at local level. However, in the global context, this would probably be more than counterbalanced by the negative impact expected due to increased supply in the rest of the world (following reduced use in the EU) and particularly in the areas and activities (such as ASGM), where environmental management is markedly worse than in the EU. It should be noted that while mercury use has significantly decreased in the OECD countries in the last 20-30 years, mercury consumption increased in many developing countries, particularly in South East Asia and Central and South America. The main reasons are a general shift of mercury product manufacturing operations from OECD to developing countries, as well as ASGM activities. Global mercury flows have been extensively analysed in a dedicated study 47 contracted by the Commission in preparation of the Mercury Export ban legislation.

Social impacts (e.g. job losses) are difficult to assess in detail, but are deemed to be minimal, based on the relatively low cost.

The table below compares the impacts of options P1O1 and P1O2.

Table 4d Overview of impacts of option P1O1 vs. option P1O2

Stakeholder consultation

The vast majority of stakeholders responding to the relevant question in the public consultation favoured option P1O2 (43%), with only 7% preferring option P1O1. Another 50% of the participants did not submit a response. Individual respondents are in favour of a strict approach concerning import restrictions. When it comes to organisations, NGOs are clearly in favour of a strict approach, while private sector and other organisations have a split view concerning this issue. However, among the participants in the public consultation, even organisations that opted for option P1O1 would mostly not reject a stricter approach, provided their worries concerning the effects of P1O2 on the global mercury market were addressed. A strict approach (preference for option P1O2) was favoured by Dragon Recycling Solutions Ltd, a private company in the UK, who argued that mercury supply within Europe would be more than sufficient to cover potential demand.

Conclusions

The expected economic impacts under option P1O2 are 0-20 million EUR, significantly higher than those of option P1O1.

Concerning environmental impacts, the general objective of the MC to reduce mercury supply and use would be better achieved within the EU by implementing Option P1O2, i.e. prohibiting the import from all countries. However, on a global scale, this option may have negative environmental impacts as the reduction of mercury demand in the EU may well result in an increased availability of mercury on the worldwide market and potentially increased mercury consumption elsewhere, in particular in areas and activities, such as ASGM, where supply restrictions are most needed. Option P1O2 would probably be less effective than P1O1 and it goes further than necessary, it could thus be considered disproportionate.

Social impacts (e.g. job losses) are difficult to assess in detail but are expected to be minimal based on the relatively low cost.

Keeping in mind the general objective of achieving a reduction of mercury pollution on the global level, P1O1 would score higher than P1O2 in terms of effectiveness, efficiency and coherence. As an additional consideration, given that there are no clear environmental advantages of option P1O2 in relation to option P1O1, import restrictions going beyond the MC would be difficult to defend in view of relevant WTO provisions.

Therefore, P1O2 is not retained and P1O1 is the preferred option.

4.2    Export of certain mercury-added products (P2)

A comprehensive study on the use of mercury in products and applications within the EU had been carried out by DG ENV in 2008 48 . The consumption of mercury (and its distribution across different uses) back in 2007, along with an update for 2014-2015 and a projection for 2025-2030 are shown in Table 4-e 49 . As the information in the table is based on the MC and EU legislation requirements, as well as background knowledge of trends and technical considerations, ranges have been used in certain cases, where the lower and upper end limits represent correspondingly the best and the worst case scenario.

For the majority of mercury-added products controlled under the MC export prohibition (e.g. batteries, switches and relays, cosmetics, pesticides, non-electronic measuring devices, etc.) mercury use is minimal due to already existing EU restrictions; lamps is the only product category within the EU, where substantial amounts of mercury are still used. The analysis of options will thus focus on this, however, all other products categories are discussed in Annex 9A.

Table 4e Mercury consumption within the EU

Under the baseline scenario (i.e. EU does not ratify the Minamata Convention), EU exports might be negatively affected by import restrictions imposed by the Parties to the Convention.

Under option P2O1, the export of mercury-added products that do meet the MC specifications would not be affected and manufacturing and export could continue. On the other hand, the manufacturing and export of mercury-added products that do not meet the MC specifications would have to cease; which may lead to a loss of associated production jobs. This impact is considered insignificant as industry reported that there are no such exports.

Under option P2O2, the EU exports would be regulated by stricter standards than those applicable to similar production outside the EU (where the MC standards would likely dominate). Therefore, any such production currently existing inside the EU and intended for export may simply be relocated outside the EU, with consequent losses of EU revenues and jobs.

When examining the environmental impact, under option P2O1, mercury input and emissions/releases will remain unchanged. Under option P2O2, mercury use and releases inside the EU will be reduced, but if production of the targeted products is relocated out of the EU to the countries with lower environment and health standards than in the EU, the global negative impact of mercury emissions/releases on the environment and health may increase.

Lamps

Mercury-containing non-electronic measuring devices are regulated within the EU by the RoHS Directive 51 that has prohibited the placing on the EU market of electrical and electronic equipment containing mercury, with certain exemptions.

LightingEurope (2014) has advised that, of the lamps concerned by the MC, only fluorescent lamps of the halophosphate type would be affected under option P2O2, but not under option P2O1. LightingEurope estimates that around 143 million pieces of halophosphate lamps per year are manufactured in the EU for export, which comply with the standard set by the MC (maximum 10 mg mercury per lamp) but do not comply with the standard applicable for marketing within the EU (0,1% of mercury by weight, which is in practice lower than 10 mg mercury per lamp). Assuming an average consumer price of 5 EUR/piece (within a range of between 2 and 8 EUR) the consumer market value of these lamps is estimated at 715 million EUR/y.

The actual export revenue from this production was not reported, but would probably not exceed one third to half of this amount, or approximately 240–360 million EUR/y. As these lamps are reported to have mercury content below 10 mg/piece, their export would not be affected under option P2O1, but could be eliminated under the option P2O2, meaning loss of export revenues of maximum 240–360 million EUR/y. The number of jobs at risk was not reported.

No specific quantitative information on mercury emissions and releases from production of lamps for export was provided, but these are assumed to be minimal in EU production. Conservatively assuming that the lamps exported contain an average of 10 mg of mercury per lamp, the total mercury in these lamps would be 1,4 t/y. This defines the maximum potential mercury emissions/releases in the life cycle of the lamps under option P2O2. While some lamps may be recycled and mercury therein reused or deposited as waste, most of this mercury is expected to end up in the environment. Under option P2O1, no environmental impacts are expected.

Table 4f Overview of impacts of option P2O1 vs option P2O2

Table 4-f above presents the impacts generated by the two options. The types of impacts are the same for both options, but the scale of impact will be higher under option P2O2 for the stakeholders involved in production and export of products which are targeted by EU marketing restrictions but not by MC marketing restrictions. Table 4-g below provides an overview of the stakeholders affected and the impacts expected.

Table 4g Stakeholders affected by options in question and impacts in summary.

Stakeholder consultation

The majority of respondents (39%) in the public consultation favoured option P2O2, while 10% expressed a preference for option P2O1. The rest of the participants (51%) did not respond to the relevant question in the public consultation. The percentage of supporters of a strict approach (option P2O2) is higher (51%) among participating organisations than among individual participants (39%). Certain business sectors (e.g. button cell batteries) expressed clear support for the option going beyond the requirements of the MC (EPBA position paper of 14/8/2015), while others such as LightingEurope (the industry association representing the European Lighting manufacturers preferred the simple transposition option as certain types of lamps for which EU law sets stricter standards than those established in the MC could still be exported after the entry into force of the Convention. All stakeholders’ views, included the ones referred to earlier have been published and are available on our mercury webpage 52 .

Conclusions

The main economic impact is expected from the potential loss of exports of 143 million pieces of halophosphate lamps per year, corresponding to an estimated loss of revenues of about 240-360 million EUR/y under option P2O2. The number of jobs at risk is not known. No specific quantitative information for the mercury emissions and releases from production of lamps for export was received but these are assumed to be minimal. While this option could have a positive environmental impact due to the elimination of up to 1,4 t of mercury input to society, this would probably not materialise if production is moved outside the EU. Even worse, increases of emissions/releases from manufacturing and waste disposal may occur, thus leading to a negative environmental impact, which would be contradictory to the general objective. P2O2 is thus less effective than P2O1 and it goes further than necessary, it could thus be considered disproportionate. P2O1 is therefore preferable to P2O2 in terms of effectiveness, efficiency and coherence. For this reason P2O2 is not retained.

Under option P2O1, no environmental impacts are expected and therefore P2O1 is the preferred option. While preference to P2O1 means that the standards foreseen in Annex A of the MC will be applied, care will be taken to maintain stricter provisions where relevant (e.g. those foreseen by the batteries directive, given especially the support expressed by EPBA, main representative of the business sector concerned).

4.3    Use of mercury in new products/processes (P3)

These provisions of the MC relate to future products and processes which are unknown today, so a specific impact assessment is not possible. It is only possible to outline the type of impacts that may occur.

Impacts of the two considered options on stakeholders are summarised in Table 4-h below:

Table 4h Stakeholders affected by options in question and impacts in summary

Mercury is being phased out in most of its former uses in commercial products and manufacturing processes. The probability that new mercury related commercial products and manufacturing processes will achieve significant market scale is considered as very low, but the possibility cannot be entirely excluded. A conditional restriction would be an effective means of discouraging such applications. However, R&D activities are exempted from the MC and would thus still be possible.

Introduction of authorisation requirements would impose new cost barriers to bringing new products and processes to market and provide additional protection against the health and environmental impacts of mercury use in circumstances where there are no significant social benefits. Such requirements would discourage new uses of mercury and impose no significant direct costs on business if no new products are developed (i.e. there is no need for requests for authorisation).

If a "soft" discouragement, as in option P3O1 is chosen, it could be considered to establish a reporting obligation (e.g. to the Commission through MS authorities) on new types of mercury products and processes, in order to monitor development and demonstrate conformity. Given the limited number of potential new developments, the associated administrative cost would be negligible.

An explicit prohibition (option P3O2) will have a stronger signal value both internally in the EU and towards other Parties of the MC, thereby reducing the likelihood that economic operators would engage in potentially very costly development of products or processes that would not meet the environmental and health benefits condition and thus reduce any related wastage of human and financial resources.

On the basis of experience with similar procedures under REACH, industry could face additional costs in the 100-450 kEUR 53 range for authorisation costs and fees.

Table 4-i below compares the impacts of option P3O1 vs option P3O2. 

Table 4i Overview of impacts of option P3O1 vs option P3O2

Stakeholder consultation

The majority of respondents in the public consultation (47%) favoured option P3O2, while only 6% expressed a preference for option P3O1. Again, 47% of the participants did not respond to the relevant question. Among individual participants, only 5% are in favour of P3O1, 47% were in favour of P3O2, while 48% did not respond to the relevant question. Among participating organisations, the corresponding figures are 21% for P3O1, 54% for P3O2 and 25% not responding.

Conclusions

Economic and social impacts: The discouragement of mercury uses in new products or processes can eliminate potential risks. The mercury applications used today are based on technology invented 50 or more years ago (though some variants are more recent). There are currently no indications of new products or processes involving mercury being brought to the market at any significant scale. The probability that such products and processes will be developed is considered low, but it cannot be ruled out completely. However, R&D activities are exempted from the scope of the MC, as well as under existing EU law relevant to mercury, therefore, the development of new products and processes would still be possible.

The main impact of the considered options is their signal value. The stronger the signal, the more unlikely it would be that operators would waste substantial resources in developing new uses of mercury that do not have significant environmental and health benefits.

Under option P3O2, determination of whether the MC conditions for significant environmental or human health benefits are fulfilled would be necessary before a product was placed on the market or a process deployed. This has a significantly stronger signal value than monitoring of the market and possible prohibition of a new use after an assessment process under option P301.

Environmental impacts: The choice of option could result in anything between “no effect” (but conformity with the MC) and virtually full elimination of mercury input to society via novel mercury uses.

P3O2 would better achieve the objectives set and at a lower cost, it could thus be considered both more effective and efficient than P3O1, while both options seem to score equally well in terms of coherence. P3O2 is therefore the preferred option.

4.4    Mercury use in the manufacturing processes listed in MC Annex B (P4)

Prohibition of the use of mercury from primary mining

Currently, the main industrial activities using mercury in their processes are plants producing chlor-alkali or alcoholates. Any mercury replenishment need for these plants comes from stocks of mercury the operators already have. Therefore, a prohibition of the use of mercury from primary mining would not induce any additional costs.

Reduction of emissions to air

The cost of 50% reduction of emissions of mercury to air per unit production by 2020 compared to 2010, from production of alcoholates, is estimated at 0,6-1 million EUR/y.

Prohibition of using the mercury process

The acetylene mercury catalyst-based process for production of vinyl chloride monomer (VCM) is only used in the EU by Fortischem in the Slovak Republic, in parallel to the mercury-free ethylene process. It is used for approximately 25% of the total VCM production. The main reason of still using this process is reportedly the availability of certain quantities of low quality (off-specifications) calcium carbide, which is easily converted to acetylene and subsequently used for VCM/PVC production. Approximately 20t of catalyst containing 10% by weight of mercury chloride (2t) is consumed annually. Used catalyst at the end of its life span is sent for recovery. While there is no information on the intentions of the company regarding phase out of the acetylene process, the dependence on this process is limited, as the company uses in parallel the mercury-free ethylene process. The concerned company has not expressed any objections to the prohibition of the use of mercury catalysts. To comply with the prohibition the company would either have to use mercury-free catalysts that are available on the market at a higher cost or discontinue this ancillary activity.

Existing alternative catalysts (based on palladium/platinum) that could be used as a replacement for mercuric chloride are relatively more expensive. However, two European companies (Johnson Matthew catalysts in the UK and Aker Solutions from NO) have developed a catalyst for the acetylene process that would easily (with no need for changes to process) substitute mercuric chloride. This would have an even higher yield compared to the mercury catalyst and would have a low impact on the process cost. Higher catalyst costs (5-15EUR per ton of PVC) would be compensated to a great extent by achieving a higher yield. Given the minimal production cost increase expected in relation to the PVC production cost (400EUR/t) and market price (900EUR/t), the new catalyst could provide a sustainable solution from an environmental and economic point of view. The additional cost of using the mercury-free catalyst was estimated at less than 1% of the total PVC production cost.

Four alcoholates - substances used as catalysts in biodiesel production and in several other syntheses of organic chemicals – are produced in the EU in two plants using a mercury process. The main chemical concerned, by far the economically most important, is sodium methylate. However, the companies concerned consider the production of the four alcoholates as economically mutually dependent and therefore state that they may have to terminate the production of all four substances, should the use of the mercury-based process be prohibited in the EU.

Two German companies (Evonic and BASF) are the world leaders in production of these substances. While they use the mercury-based process in their EU production, they make use of a non-mercury alternative process in their facilities located in North and South America for sodium methylate. All other global production is based on non-mercury technology. In the EU, the non-mercury production method is used by a French company, EnviroCat, which accounts for 10% of the total EU-based production of sodium methylate.

Non-mercury technologies are also commercially available for the production of sodium ethylate and potassium methylate, although they seem not to allow the production of potassium methylate in the quantities and quality required by the market.

The production of potassium ethylate with non-mercury technology appears to be possible at laboratory scale, but the EU producers using mercury do not consider it technically and economically feasible on an industrial scale. The substance is currently not registered under REACH, meaning that (if used) EU consumption is less than 100 t/y. The substance is reported by a stakeholder to be produced without mercury in India, but this has not been confirmed by other sources. The producers argued that cessation of production of potassium ethylate would make downstream users suffer from scarcity of the substance. This argument could not be verified based on available information.

The total costs for the industry of substitution for all four alcoholates is estimated at between 60 and 76 million EUR/y 54 , of which about half are investments annualised over a 10 year period and the other half are operational costs. Research costs cannot be quantified precisely, but it is expected that a reasonable research activity would generate costs of 2 million EUR/y. Therefore, the substitution costs could range between 2 and 76 million EUR/y.

Summary of impacts of the options

The costs of reducing emissions under option P4O1 are estimated at 0,6-1 million EUR/y. As these measures would be taken in a context of discouragement of the use of this process, depending on the measures taken by Germany or voluntarily by industry, costs of research and/or substitution may be also incurred bringing the potential costs range to 3-77 million EUR/y.

For option P4O2, the costs of prohibition of the mercury process for alcoholates production the costs could range from 61 to 77 million EUR/y.

Social impacts of option P4O2: While the numbers available are considered uncertain and not necessarily consistent with the lower production costs of the mercury-based process, they could indicate that the mercury-based production technology is more labour-intensive, and the loss of 80-200 jobs cannot be ruled out. Under option P4O1, such impacts may be also observed depending on the measures taken by Germany or voluntarily by industry, the transition will come more slowly, or not at all (in case adequate alternatives are not developed for all four alcoholates), and consequently potential job losses would range between 0 and 200.

Environmental benefits under both options are moderate in the EU context. For option P4O2, the reduction in air emissions is estimated at about 190 kg/y and reductions of the mercury input at about 0,3-1,0 t/y. The reductions potentially achieved under option P4O1 can also not be quantified more precisely than up to 0,3-1,0 t/y, while in the short term emission reductions should drop by 95kg/y.

Table 4j Overview of impacts of option P4O1 vs option P4O2

Stakeholder consultation

The majority of respondents in the public consultation (45%) favoured option P4O2, while 7% expressed a preference for option P4O1, with 48% of the respondents not responding to the relevant question. Among individuals, 45% favoured option P4O2, against 7% favouring option P4O1 and 48% not responding. Among organisations, the corresponding figures are 54% for P4O2, 27% for P4O1 and 19% for no response. However, while the overwhelming majority of NGOs are in favour of P4O2, most private sector organisations (9 out of 14) favour P4O1, i.e. an implementation as foreseen in the MC. The business sector concerned is divided, as mentioned above, as the companies using the mercury technology clearly favour P4O1, while their competitors support an outright ban (option P4O2).

Conclusions

Phase-out of the use of mercury in VCM production does not have significant impacts, as the company concerned could easily switch to the ethylene process or alternatively use a mercury-free catalyst that would have a minimal impact on the process cost.

Whilst there is a clear non-mercury alternative for the production of sodium methylate, the companies using the mercury-based production process state that they would have to terminate the production of all four substances if the use of the mercury-based process is prohibited for sodium methylate as the activity would not be economically viable anymore. There remains uncertainty on the potential negative impacts that such cessation would imply for downstream users of two of the four chemicals.

P4O2 is associated with an economic impact of 61-77 million EUR/y corresponding to a reduction of mercury emissions of about 190 kg/y and potential losses of 80-200 jobs. On the other hand, P4O1 could achieve similar environmental benefits over time with potentially much lower cost, as the economic impact was estimated between 3-77 million EUR/y depending on the measures taken by Germany or voluntarily by industry. While P4O2 is more effective than P4O1, the latter would probably be slightly more efficient. P4O2 would score better in terms of coherence as the mercury process used will be phased out in the chlor-alkali industry within the EU by 2017.

P4O1 is thus the preferred option.

4.5    Mercury use in Artisanal and Small-scale Gold Mining (ASGM) (P5)

Artisanal and small-scale gold mining (ASGM) activity is defined by Art. 2(1) MC as “mining and processing in which mercury amalgamation is used to extract gold from ore.”

Art. 7(2) of the MC requires the Parties for which such activity is relevant to take steps “to reduce, and where feasible eliminate, the use of mercury and mercury compounds in, and the releases to the environment of mercury from, such mining and processing.”

ASGM is not prohibited under the MC, but where a Party determines that ASGM and processing in its territory is “more than insignificant”, it is required to develop a National Action Plan (Art. 7(3) MC), in line with the requirements of Annex C to the MC. Such plans have to be submitted to the Secretariat of the Convention within three years after its entry into force with a review every three years.

ASGM activities are very widespread in developing countries, particularly in South America, Africa and South-East Asia. Within the EU, the only Member State concerned is France (as ASGM takes place in the overseas department of French Guiana), resulting in mercury pollution despite the prohibition under French law to use mercury for such an activity.

The incremental impact of the transposition into EU law of a general obligation to restrict the use of mercury for ASGM would therefore be minimal since France has already taken measures and, as a Party to the Convention, would have to provide a National Action Plan, which would also serve as the EU’s contribution to this issue.

Given that ASGM activity is informal and often takes place illegally, there would practically be little difference between options P5O1 and P5O2 in terms of effectiveness and efficiency, while both would score equally well in terms of coherence. However, as France has already prohibited ASGM, there is no need for legislation beyond the requirements of the Convention at EU level and therefore option P5O2 is discarded.

Option P5O1 is thus the preferred option for transposing this provision of the Convention.

4.6    Use of dental amalgam (P6)

Contextual information

The following analysis of options P6O1a and P601b is based on data collected in the Bio Intelligence Service (2012) study. Annexes 10B, 10C and 10D reproduce information on the environmental impact due to mercury emissions from dental amalgam, the use of separators in MS, and the environmental cost of dental amalgam use respectively.

As can be seen from Figure 4-a, dental amalgam use varies greatly among MS. The solid line indicates the estimated demand, while the light line indicates the uncertainty of the estimate. Mercury consumption for this use has been estimated at 55 to 95 t/y in 2010, with an average value of 75 t/y. This corresponds to approximately 125 million restorations, while another 245 million are carried out by using mercury-free materials (ca. 66% of the total number of 370 million restorations). There has been a downward trend in the use of dental amalgam over the last years, the greatest decreases being observed in the countries that have imposed restrictions on its use.

In future, the use of dental amalgam may continue to decline in the EU, mainly as a result of growing aesthetic concerns. The Bio Intelligence (2012) study provides an estimate of a potential drop in demand for dental amalgam if no further EU action is undertaken by classifying MS in three groups as depicted in Table 4-k.

On the basis of the information presented above, at least a 5% reduction of dental amalgam use is expected annually, leading to a projected overall use in 2025 ca.50% lower than in 2010.

Figure 4-a Demand for dental mercury in EU Member States (t Hg/year)

Source: Data provided by national dental associations and/or health authorities via the study questionnaire, taken from previous studies or estimated by BIO using available data.

*Estimated by BIO

Table 4-k Projected demand for mercury in dental amalgam

Option P6O1a – restrict the use of dental amalgam to its encapsulated form

There are two main ways to prepare dental amalgam: by using pre-dosed capsules containing the substances to be mixed in an apparatus (amalgamator) or by mixing dental alloy and mercury, purchased as separate products.

The use of pre-dosed capsules (instead of bulk mercury) contributes to reducing emissions occurring during amalgam storage and preparation, and the exposure of dental personnel to these mercury vapours. There is thus a clear positive impact to the occupational health and safety of dental workers, including dental assistants, dental nurses, and hygienists, in particular when they are women of childbearing age, which makes them particularly susceptible to the occupational hazards caused by mercury vapours. Additionally, there is a risk of mercury overdose in amalgams made from metal alloys and mercury in bulk form, a risk practically eliminated when using pre-dosed capsules.

Out of 62 companies producing dental filling materials in the EU, 38 produce exclusively mercury-free materials and would not be affected at all by any measure restricting the use of dental amalgam to its encapsulated form. There are 20 companies producing both dental amalgam and mercury-free fillings, half of them located in Germany. Only 3 companies had been identified as producing solely mercury for dental restoration applications, two of them 55 trading solely mercury for dental amalgam in bulk form either directly to dental practices or to the manufacturers of dental amalgam capsules. One company produces solely dental amalgam alloys (silver/copper/tin) and precious metals alloys for crown and bridge work 56 . While enforcing a restriction on the use of dental amalgam to its encapsulated form would have a negative economic impact for these companies, it would probably be compensated by increased supply of mercury to manufacturers of capsules, rather than directly to dental practices.

Pre-dosed capsules use in dentistry was estimated by COWI and Concorde East/West (2008) at approximately 70%, the rest being prepared by using bulk mercury. A recent survey by CED carried in 26 European countries suggests that in 12 countries the use of dental amalgam in encapsulated form is required by law, in another two it is highly recommended, in two countries dental amalgam use is prohibited, while in 9 countries it is not regulated. In terms of use, seventeen European countries reported 100% use of pre-dosed capsules, another four reported very high percentages (65-95%), while another four provided no estimates.

For dental amalgam, whether in bulk or in encapsulated form, the average cost 57 of the filling material is very low (1 EUR) in comparison to the total cost of dental restoration (36 EUR on average for an amalgam restoration) 58 . Given that mercury-free dental filling materials are used more often than dental amalgam (66% of restorations in 2012), and the fact that pre-dosed capsules are used in 70% of dental amalgam restorations, the use of bulk mercury concerns a very small percentage (ca. 10%) of the total number of fillings. The number of dentists concerned would probably be much less than 10% of the total number of dentists 59 i.e. less than 31 050 dentists.

Implementing this option would also imply that all dental practices using dental amalgam would need to get equipped with amalgamators, if this this not currently the case. Amalgamators are relatively cheap equipment, available on the market at a cost as low as 100 EUR.

Hence, implementation of this restriction would impact only a small percentage of dentists (less than 10%) using exclusively dental amalgam in non-encapsulated form and not currently owning an amalgamator, and they would face only very low costs.

Option P6O1b –impose the use of separators in dental practices

There are three main pathways for the release of mercury from dental amalgam to the environment:

discharges from dental clinics to wastewater systems;

as solid waste;

through cremation or burial of bodies containing dental amalgam fillings.

Most dental practices are equipped with filters (called amalgam separators) aiming to minimise the quantity of mercury escaping to the sewage system. Amalgam separators are designed with an efficiency of 95% (percentage of mercury captured in dental effluents) however, this presupposes appropriate regular maintenance. On the basis of responses received from 23 MS, at least 14 MS have a legal requirement for the installation of amalgam separators. Annex 10C presents detailed information from which it can be seen that the share of dental practices equipped with amalgam separators vary widely across MS.

An estimate of the share of dental facilities equipped with amalgam separators is available for 16 MS (see Annex 10C and Table 4-l below).

Table 4-l: Share of dental facilities equipped with dental amalgam separators

On the assumption that in the MS where no concrete information is available only 20% of dental facilities are equipped with separators, the average EU-wide figure 60 for dental practices equipped with amalgam separators is around 75%.

Bio Intelligence Service (2012) estimated that the actual average efficiency was around 70%, as a number of the existing separators were not adequately maintained. On the basis of the analysis presented in Annex 10B, the installation of properly functioning (95% efficiency) amalgam separators in all dental facilities would result in approximately 7 t/y of avoided mercury releases to urban Waste Water Treatment Plants (WWTP).

The impact of imposing the use of separators in dental practices would be more significant in those MS where only a small proportion of dental facilities are already equipped with separators.

A co-benefit of this option would be to increase the capture of other metals present in amalgam and released from dental chairs (e.g. Ag, Sn, Cu, and Zn).

It would also increase the quantity of mercury-containing waste sent to hazardous waste treatment facilities (assuming 100% of the mercury waste generated will follow this route) and will avoid the presence of mercury in the municipal and biomedical waste streams. With all mercury-containing waste treated as hazardous waste, emissions of mercury to air and water resulting from inadequate waste handling and treatment will be avoided, which corresponds to approximately 7 t/y of avoided Hg emissions to air, 2 t/y of avoided mercury emissions to water and 11 t/y of avoided Hg emissions to soil and groundwater (based on the environmental assessment presented in Annex 10B). All mercury from dental waste will be either recycled or sequestered for long-term, essentially removing it from the global mercury pool where it could potentially become bioavailable and accumulate in the food chain.

In case this option is implemented, the number of additional dental clinics that would have to install a separator had been estimated at 34 200. The cost of an amalgam separator had been estimated by COWI/Concorde (2007) to be in the range of 400-500 EUR/y including installation, servicing, in-situ evaluation of filter efficiency and accreditation, while Bio Intelligence (2008) considered a wider range of 150 to 750 EUR/y as more appropriate, given the small size of European dental clinics (2,1 practising dentists per dental clinic). The installation of amalgam separators in 34 200 dental clinics would therefore represent a total cost of 5 to 26 million EUR/y (including amalgam sludge treatment). An additional cost of 5 to 32 million EUR/y had been estimated by Bio Intelligence Service (2008) with regard to the improved maintenance and waste management of clinics already equipped with a separator but not yet reaching the expected 95% efficiency target.

The cost of this sub-option for dentists would be counter-balanced by additional revenues for waste management companies involved in the maintenance of amalgam separators and/or in the collection and treatment of dental amalgam waste.

The implementation of sub-option P6O1b would result in a lower mercury content of dental effluents entering WWTPs. This may reduce the need for municipalities to invest in expensive mercury abatement devices in sewage sludge incineration plants. In certain cases, it may also increase the possibilities of using sewage sludge for agricultural purposes, a cheaper management option for sewage sludge. Overall, this will have a positive economic impact on municipalities, and consequently on local taxpayers, as it will reduce the environmental costs associated with the management of mercury pollution from dental amalgam.

Finally, the administrative costs of P6O1b for public authorities mainly correspond to increased awareness raising activities towards dental clinics and/or a higher frequency of inspections of dental clinics in order to ensure compliance. It is difficult to quantify these costs in the absence of adequate data. Assuming that each inspection (including a visit and follow-up reporting) would take approximately 4 hours and that 10% of EU dental clinics would be inspected each year, this would result in approximately 35 000 h annually, corresponding to a labour cost of approximately 1 million EUR/y for public authorities 61 . However, the actual administrative burden across the EU would probably be lower since effective inspection schemes are reportedly already in place in some MS (e.g. Germany, Sweden) and the above calculation represents a rather conservative upper limit estimate. If MS impose financial penalties as a tool to enforce compliance, some revenues might also be generated through the collection of fines, which may partly offset the labour costs dedicated to inspection.

The impact of option P6O1b is expected to be positive with regard to employment. Job creation is to be expected in companies involved in the manufacturing, installation and maintenance of amalgam separators and in companies specialising in the collection and treatment of mercury-containing waste. Properly functioning dental effluents’ treatment devices (chairside traps and amalgam separators) will reduce exposure of dental personnel to mercury vapours and would hence have a positive impact to the health and safety of dental workers.

Option P6O1b would contribute significantly to the reduction of releases to urban WWTPs and corresponding releases to environmental media, particularly sewage sludge. A positive impact to public health and safety can thus be expected by the implementation of option P6O1b.

Option P602 – prohibition of the use of dental amalgam

62 The economic impacts of a ban on dental amalgam had been examined by the Bio Intelligence Service study in 2012. When replacing 762 million dental amalgam restorations with mercury-free restorations in a fifteen year reference period (2010-2025), the additional costs to be borne by patients had been estimated at 3,9 to 27 billion EUR (or 8-54EUR per capita) calculated on the assumption that the average cost difference between mercury-free restorations and dental amalgam would remain stable over the reference period. On the assumption that the average cost difference between mercury-free restorations and dental amalgam would decrease by 3% annually the corresponding figures would be 2,9 to 20 billion EUR (or 6-40 EUR per capita).

Detailed estimates for the countries where additional costs are expected are shown in the table below copied from the above-mentioned study:

Table 4m Additional costs borne by patients in case of a ban on the use of dental amalgam for the period 2010-2025

* Estimated values. For these MS the average cost difference is assumed to be equal to the average value for the group of MS they belong to.

NB: The average restoration costs take into account possible amounts reimbursed by national health insurance schemes, where they exist.

Given the clear disagreement between stakeholders on the nature of potential environmental and health impacts of the use of dental amalgam, the Commission requested SCHER and SCENIHR to update their 2008 opinions on the basis of the latest scientific information. SCHER published an updated opinion in 2014, while SCENIHR’s opinion was published in May 2015.

SCHER concluded 63 that the information available is not sufficient for a comprehensive risk assessment for the environment, in particular for soil and air. For the aquatic environment, mercury from dental amalgam does not represent a risk for European surface waters in general. However, a risk for the aquatic ecosystem cannot be completely excluded, as under exceptional local conditions, the amount of mercury released could be exceed the relevant environmental quality standards.

The SCENIHR opinion 64 issued in April 2015:

concluded that current evidence does not preclude the use of either amalgam or alternative materials in dental restorative treatment. However, the choice of material should be based on patient characteristics such as primary or permanent teeth, pregnancy, the presence of allergies to mercury or other components of restorative materials, and the presence of impaired renal clearance;

recognised a need for further research, particularly relating to (i) evaluation of the potential neurotoxicity of mercury from dental amalgam and the effect of genetic polymorphisms on mercury toxicity and (ii) to expand knowledge of the toxicity profile of alternative dental restorative materials; and

recommended that for primary teeth, and for pregnant patients, alternative materials to amalgam should be the first choice. 

The opinions of the scientific committees thus clearly indicate that significant negative impacts of dental amalgam on health are not proven, but there may be situations where the release of dental amalgam to water induces increased pollution endangering the quality of water. Furthermore, there is a clear declining trend of the use of dental amalgam mainly for aesthetic reasons.

Therefore, P6O2 would not be a proportionate measure and it is not retained for further assessment. P6O1a and P6O1b would score equally well in terms of coherence. While P6O1b would score higher in terms of effectiveness, both P6O1a and P6O1b are considered equally efficient.

Therefore, option P6O2 would not be a proportionate measure and it is not retained for further assessment.

Stakeholder consultation

The majority of respondents in the public consultaion (85%) favoured option P6O2, while only 12% expressed a preference for option P6O1. Only 3% of the participants did not respond to this question, indicating the strong interest this issue raised among participants. Among individuals, 86% favoured option P6O2, against 11% favouring option P6O1 and 3% not responding. Among organisations, the corresponding figures are 61% for P6O2, 23% for P6O1 and 16% for no response. Concerning sub-options P6O1a,b, 47% of the respondents gave the highest ranking (5) to option P6O1a, while acceptance was even higher (69% gave the highest ranking) for option P6O1b. It should be noted that the issue of dental amalgam is the most controversial as certain dentists are very much in favour of an immediate prohibition (option P6O2), while the Council of European Dentists (CED) rather support softer measures aiming at the gradual phase down of this use (option P6O1).

Conclusion

In the light of scientific advice, a measure prohibiting the use of dental amalgam would not be proportionate. Therefore option P602 is not assessed any further.

Options P601a and P601b would accelerate current trends to improved practices, i.e. the use of dental amalgam capsules rather than free mercury and the use of amalgam separators and sound management of the dental amalgam waste. To comply with the Convention, the EU would have to implement at least one of those options. The EU could also choose to take both measures as they are independent and both reinforce current trends that are favourable to protection of human health and the environment.

Therefore, taking both options P601a and P601b is preferred. It should be noted that the Council of European Dentists (CED), the main European professional association of dentists, has endorsed both the exclusive use of encapsulated amalgam and the use of amalgam separators in its resolution on responsible care 65 already since November 2011.

It should be noted, that although the majority of the businesses concerned would qualify as microenterprises, they would not be disproportionally affected by the proposed measures as:

1.given the type of activity they would not suffer from competition with larger undertakings,

2.the implementation cost of the measure is limited and would require only low investment, and

3.no jobs loss is expected in the dentistry sector.

However, as such undertakings would need time to adapt to the obligations set out in this Regulation, a transitional period could be granted before entry into force of the obligation. Finally, the requirement to use amalgam in an encapsulated form would not cause any additional burden to dentists who have opted out from using dental amalgam. 

5.    Comparing the Options

5.1    Definition of scenarios

For the purpose of comparing the impacts of options, it is helpful to define packages of options covering all of the legislative gaps that have to be filled in order to ratify the MC. Three policy scenarios have been defined as follows:

Scenario 1 is defined as the implementation of the measures identified in Section 4, which correspond to the strict minimum the EU would have to do in order to comply with the MC. For dental amalgam it includes option P6O1a which has a lower economic cost than option P6O1b.

Scenario 2 is the combination of the preferred options indicated in Section 4.

Scenario 3 corresponds to a more stringent implementation approach, going beyond the provisions foreseen in the MC and composed of the stringent options that have a clear environmental and health benefit at EU and global levels.

Scenario 1

Scenario 1 follows a “simple transposition” approach, meaning that EU law is amended only as necessary to comply with the provisions of the MC, without going beyond the minimum requirements.

This scenario would be a combination of all O1 options assessed in Sections 4.1 to 4.6. This is indicated in the following table:

Scenario 2

Scenario 2 combines all preferred options.

Scenario 3

Scenario 3 corresponds to a stringent implementation approach going beyond the provisions foreseen in the MC that would consist of the options retained after the analysis in Section 5 as they have a clear environmental and health benefit at EU and global levels. Options P1O2, P2O2 and P6O2 that have not been retained are not included in this scenario, which is thus a combination of options P3O2, P4O2 with options P1O1, P2O1 and P6O1.

5.2    Comparison of scenarios against the baseline

The combination of options in the defined scenarios is not expected to create synergies or interactions between the options and therefore it is considered that costs and benefits of the separate options add up within the scenarios.

The impacts of the ratification of the MC by the EU can be analysed from two perspectives: the direct impacts caused by measures taken within the EU and the indirect impacts resulting from ratification by third countries.

5.2.1 Indirect impacts

Once implemented, important provisions of the Convention, such as phase out of existing primary mining, prohibition of new primary mining, ASGM restrictions, or limitations of emissions from industrial activities, are expected to have a huge positive indirect environmental impact both globally and for the EU, while the additional cost for the EU is marginal, as such activities practically do not exist on the EU territory or are already regulated.

As it is expected that all major EU trading partners would adhere to the Convention, the indirect positive impacts on competitiveness resulting from ratification by third countries is likely to be significant:

The Convention foresees a number of measures that mirror existing EU legislation on products (restrictions on mercury use imposed by the batteries directive, RoHS, REACH etc). European companies have already developed products (e.g. low mercury content batteries, fluorescent lamps) needed to comply with existing legislation, their production therefore would practically need no adaptation due to the ratification of the MC. On the contrary, many non-EU countries would need to adapt considerably after the phase-out date foreseen by the Convention in order to reach the standards prescribed in Annex A of the MC.

As third countries implement the Convention, they will apply similar standards as those currently in force within the EU to many industrial activities. This will help address potential competitive advantages currently enjoyed by companies in third countries due to more relaxed (or even non-existing) environmental standards and possibly open new markets for EU companies specialising in environmental technology. For example, the Convention provisions on mercury emissions from certain industrial activities (in particular the production of cement, non-ferrous metals, iron and steel sectors as well as energy production using coal) will practically expand the use of Best Available Techniques and Best Environmental Practices (already applied by the EU industry) to numerous industrial facilities emitting mercury on the global scale. Thus, the entry into force of the Convention will improve the competitive position of EU companies in these sectors.

Following the entry into force of the MC, EU companies may also capitalise on their existing patent portfolios and know-how relating to non-mercury technologies by technology transfer and joint ventures with companies situated in third countries.

5.2.2 Direct impacts

Table 5-a below lists the identified impacts of the three scenarios against the baseline.

Table 5a Comparison against the baseline

Direct Economic Impacts

In all cases, the measures taken by the EU to comply with the Convention have limited direct economic impacts. As these impacts do not concern exporting sectors, but mainly other sectors (e.g. dentists), any negative impact on EU competitiveness is likely to be negligible, in contrast with the positive indirect impacts of entry into force of the Minamata Convention on competiveness.

The most significant economic impacts are expected in the chemicals production sector, where a mercury process is currently applied in two German plants for the production of alcoholates used for various catalytic processes.

Total cost of Scenario 1 is estimated at 3-77 million EUR/y mainly due to the provision on phase-out of mercury use in certain processes. The cost range is large as it uncertain whether two industrial plants will be converted to mercury-free processes. Some limited additional costs are expected that could not be quantified. This includes mainly the costs of equipping dental practices with the appropriate amalgamator to enable the use of pre-dosed capsules, which is expected to be low as recent information suggests that most dentists are already equipped with such devices.

Scenario 2 (preferred scenario) entails an additional cost of 10-58 million EUR/y in relation to Scenario 1 due to the extra cost of installing and maintaining amalgam separators. However, this Scenario would also result in avoided health damage costs in the range of 35-140 million EUR/y 66 , and an increased annual turnover for the EU waste management and recycling sector, linked also to a positive impact on EU employment, reflected in an improved environmental and social impact in relation to Scenarios 1a and 1b.

The lower end of the cost range for Scenario 3 is significantly higher than for the two other scenarios as it implies the conversion of two industrial plants to mercury-free processes.

Direct Environmental Impacts

Whilst, the measures taken within the EU to ratify the MC would deliver additional direct environmental benefits in terms of reduced use and emissions of mercury, this would be more modest that the indirect environmental benefits.

All three scenarios generate environmental benefits by reducing the trade of mercury and its use in products and processes, hence reducing the emissions of mercury to the environment within the EU and globally. These environmental benefits are however much less significant than the indirect environmental benefits that will be obtained from the entry into force of the Convention and its application by third countries, which will help solving the main remaining mercury problem, i.e. the transboundary transport of mercury pollution from third countries.

Scenarios 2 and 3 have more significant environmental benefits as they include a measure that will end the major release of mercury to water within the EU, i.e. installation of dental amalgam separators at dental clinics.

As the positive environmental impact of solving the mercury releases to water from dental clinics is significantly greater than the positive environmental impact of the options defined for the other areas addressed in this impact assessment, the difference in environmental benefits generated by scenarios 2 and 3 are very small.

Direct Social Impacts

Scenario 1 entails the loss of jobs due mainly to the restrictions imposed on products and processes and hence a negative social impact. However, reduced occupational health and safety risks for dental workers thanks to option P6O1a generate positive impacts.

Given the additional positive contribution of P6O1b compared to Scenario 1, Scenario 2 would be expected to have a positive social impact with some job creation in the sector involved in manufacturing of amalgam separators and the waste sector as well as improved safety for dental workers. Some job losses might occur due to restricting the use of mercury in products and processes, however there are less likely than under Scenario 3.

On top of the measures included in Scenario 2, Scenario 3 entails prohibitions of mercury use in certain processes generating limited job losses.

5.2.3 Effectiveness, efficiency and coherence

As the indirect impacts are the same for all three scenarios and are significantly bigger than the direct impacts, there is only a small difference in effectiveness, efficiency and coherence between these scenarios.

Scenario 2 gathers the individual options that come out most favourably in the analysis of effectiveness, efficiency and coherence presented in section 4 for the sub-options:

Effectiveness: Scenario 2 compares favourably to Scenario 1 as it enables the EU to drastically reduce the emissions of mercury to water that mainly originate from dental clinics not equipped with amalgam separators. Scenario 3 is slightly more effective than Scenario 2 as it reduces more the mercury emissions to air from two plants;

Efficiency: Scenario 2 has the highest efficiency as it includes measures with high emission reductions but excludes measures with high costs for very limited emissions;

Coherence: Scenarios 1 and 2 show good coherence; there is uncertainty on the coherence of Scenario 3 as it might affect the good functioning of certain downstream economic activities.

5.2.4 Preferred Scenario

As a result of the above analysis, the preferred scenario is Scenario 2.

6.    Monitoring and Evaluation

One of the main objectives of this action is early entry into force of the MC and its broad implementation globally. A key progress indicator is the number of ratifications of the MC. As the Convention will enter into force after 50 Parties have ratified, the EU (along with its MS) could actually trigger the entry into force once 22 ratifications have been reached.

Art. 19 of the MC includes provisions on monitoring, while Art. 21 of the MC summarises reporting obligations for all Parties, concerning trade, processes, ASGM, emissions and releases. The format of reporting will be decided by the Conference of the Parties at its first meeting (possibly in 2017).

Environmental performance of the measures on the European and global scale can be judged thanks to existing monitoring mechanisms.

Environmental impacts of mercury pollution have been monitored within certain projects funded by the Commission as early as 1998, e.g.:

 MAMCS    Mediterranean Atmospheric Mercury Cycle System

MOE    Mercury Over Europe

 MERCYMS    An Integrated Approach to Assess the Mercury Cycling in the            Mediterranean Basin

More recently (2010-2015), the Commission contributed 6,8 million EUR to a 9 million EUR project involving more than 20 partners and aiming to establish a worldwide observation system for the measurement of atmospheric mercury.

 GMOS    Global Mercury Observation System.

GMOS supported various international programmes (such as the UNEP mercury programme and the Arctic Monitoring and Assessment Programme - AMAP ) that helped build the case for global action and reach agreement on the MC in 2013.

Detailed information is available on the project website ( www.gmos.eu ), the project will be completed by the end of 2015, but the consortium envisages its extension to the developing countries, provided further financial support is available.

As the main source of human exposure is methylmercury in fish and seafood, achievement of the objectives would ultimately be judged by reductions in the concentration of methylmercury in fish and seafood products intended for human consumption.

The first Conference of the Parties will establish a monitoring system that will provide the information needed for the evaluation of the Convention’s performance. The Commission will coordinate implementation at EU level. Concerning dental amalgam, the main issue to monitor is the reduced impact of mercury releases on water quality and operation of urban waste water plants, which will be based on information gathered under existing EU water legislation.

Concerning products, imports surveillance would be based on existing systems operated by MS customs, while market surveillance would be based on existing national systems, whereby operators who wish to place a new product on the market must inform the competent national authorities.

Art. 22 of the MC foresees an effectiveness evaluation no later than six years after the entry into force of the Convention. As the global dimension would be a major aspect of any evaluation of EU mercury policy, the EU will undertake a full-fledged review and evaluation of its mercury policy in parallel to the Convention's effectiveness evaluation.

On the assumption that the Convention will enter into force in 2017, an effectiveness evaluation will take place by 2023 at Convention level. It is at this stage that the EU would undertake a full evaluation of mercury policy and legislation.

7. Annexes

Annex 1 – Procedural information

Organisation and timing

Work on this impact assessment started in September 2013, when DG ENV signed a contract with an external contractor to assess the impacts of potential measures envisaged in view of the ratification by the EU of the Minamata Convention on Mercury.

An Impact Assessment Steering Group (IASG) led by DG ENV was set up in December 2013 and met 4 times since then, between January 2014 and September 2015. Whilst the Directorates-General (DGs) of the Commission SG, SJ, ECFIN, GROW, EMPL, ENER, CLIMA, TAXUD, SANTE, TRADE and DEVCO were invited to participate in the work of this group, EMPL and CLIMA declined whereas ECFIN and ENER did not nominate any representative. GROW, TRADE and SG were the DGs that contributed the most actively to the work of the IASG. All nominated members of the group were regularly consulted and informed on progress.

Consultation of the Regulatory Scrutiny Board

The Regulatory Scrutiny Board issued a positive overall opinion with three main recommendations on potential further improvements.

1.To include information on the likelihood that the most important mercury emitters amond third countries would ratify the Convention and how the Convention would be enforced.

This was addressed by inserting a new subsection in Section 4, where the important role of certain third countries in terms of mercury pollution is highlighted and the role of an EU ratification in their decision to ratify is explained. The importance of an early ratification by the EU in influencing the compliance mechanism and consequently enforcement of the Convention is also made clear.

2.To assess the impact of the Convention on the competitive position of EU companies vis-à-vis companies of third countries.

The impact of the MC ratification on the competitiveness of EU companies was better explained, by providing specific examples (e.g. in relation to mercury-added products, Section 1.5), by better defining the baseline (Section 4) and by inserting additional explanation in Section 5.2 which compares impacts against the baseline.

3.To better explain the reasons for discarding a ban on dental amalgam.

Additional information on the economic impacts of option P6O2 was included in Section 4.6 

A number of other comments of more technical nature were also addressed by amending the corresponding sections, or providing additional information where needed.

External expertise and consultation of interested parties

This impact assessment draws on knowledge and expertise on mercury built up over several years both in the EU and internationally. A broad range of studies have been taken into consideration, notably those commissioned by DG ENV 67 , but also work done by UNEP within the framework of the international negotiations for a global mercury convention, and other organisations (e.g. WHO, EFSA). References to the most important background work are provided in the above list of sources and evidence.

The Commission assessed in detail the impacts of various options for filling the legislative gaps and was supported in this through a study contract signed with ICF International in September 2013. The current impact assessment is to a great extent based on the conclusions of this study 68 .

Sources used in the impact assessment

The main sources and evidence that have been used in the course of the elaboration of this Impact Assessment Report are listed in the appendix to this annex.

Whereas there was no single statistical and scientific model that could be used to assess the mercury issues addressed in this report, the robustness and quality of those sources and evidence has not been challenged by the experts and stakeholders who have been consulted throughout the IA process, including at the workshop organised on 7 July 2014 with MS authorities and stakeholders (see Appendix A to Annex 2).

Appendix - List of Sources and Evidence

BASF/EVONIK (2012): Factual Information on alcoholate specialties derived from amalgam process. Received from EVONIK 2014.

Biodiesel Magazine (2012): Catalyzing Biodiesel Growth - An analysis of conventional acid and base catalysts used in today’s biodiesel industry (by Brian Sims). Biodiesel Magazine, 2012, accessed March 2014 at http://www.biodieselmagazine.com/articles/8371/catalyzing-biodiesel-growth .

BIO IS (2010): Review of the Community Strategy Concerning Mercury. Bio Intelligence Service. Final report. European Commission, DG Environment. Available at http://ec.europa.eu/environment/chemicals/mercury/pdf/review_mercury_strategy2010.pdf

BIO IS (2012): Study on the potential for reducing mercury pollution from dental amalgam and batteries. Bio Intelligence Service. Final report. European Commission, DG Environment, 11 July 2012.

BiPRO (2010): Requirements for facilities and acceptance criteria for the disposal of metallic mercury. BiPRO on behalf of European Commission, DG Environment. Final report, 16 April 2010

CEMBUREAU (2014): Personal communication with Vagner Maringolo, CEMBUREAU, July 2014.

CEWEP (2014): Personal communication with Marta Gurin, CEWEP, Confederation of European Waste-to-Energy Plants, July 2014.

Concorde East/West (2006): Mercury flows and safe storage of surplus mercury. Available at http://ec.europa.eu/environment/chemicals/mercury/pdf/hg_flows_safe_storage.pdf

Concorde East/West (2004): Mercury flows in Europe and the world: - The impact of decommissioned chlor-alkali plants. Available at http://ec.europa.eu/environment/chemicals/mercury/pdf/report.pdf

COWI (2012): Cost effectiveness of options for a global legally binding instrument on mercury - in the perspective of the European Union. Available at http://ec.europa.eu/environment/chemicals/mercury/pdf/Report-Support-Hg-Negotiations.pdf

COWI (2014): Survey of mercury and mercury compounds. Part of the LOUS-review. Environmental Project No. 1544, 2014. COWI for the Danish EPA. Available at http://www2.mst.dk/Udgiv/publications/2014/01/978-87-93026-98-8.pdf

COWI and Concorde East/West (2008): Options for reducing mercury use in products and applications, and the fate of mercury already circulating in society. For the European Commission, DG Environment. Available January 2014 at http://ec.europa.eu/environment/chemicals/mercury/pdf/study_report2008.pdf .

EC (2014b): Proposal for a Directive of the European Parliament and of the Council on the limitation of the emission of certain pollutants in to the air from medium combustion plants – Information note. COM info note EC ST10056-EN14 on MCP Dir.

EC (2014c): Proposal for a Directive of the European Parliament and of the Council on the limitation of the emission of certain pollutants in to the air from medium combustion plants – Information note. COM memo ST10976-EN14 Cion aggregation rule.

ECHA (2014a). ECHA database on registered substances. European Chemicals Agency (ECHA). Accessed 14 April 2014 at: http://echa.europa.eu/web/guest/information-on-chemicals/registered-substances

EnviroCat (2014): Personal communication with E. Beaurepaire and B. Gastinne, March-May 2014.

Evonik (2014): Personal communication with Norbert Nimmerfroh, Evonik, and submitted material, April 2014.

EPBA (2014): Personal communication with Nicolas Fuentes Colomer, August 2014.

EPBA (2015): Personal communication with Hans Craen, January 2015.

Eurelectric (2014): Personal communication with Hélène Lavray, July 2014.

Eurometaux (2014): Personal communication with Director Guy Thiran. December 2014.

European Commission (2013). Best Available Techniques (BAT) Reference Document for Large Combustion Plants. Industrial Emissions Directive 2010/75/EU. Joint Research Centre. Draft 1 (June 2013).

European Commission (2013). JRC Reference Reports. Best Available Techniques (BAT) Reference Document for the Production of Cement, Lime, Magnesium Oxide. Industrial Emissions Directive 2010/75/EU. 2013.

GIMS (2011): «Mercury free» sodium methylate: A green alternative for biodiesel manufacturing. Sodium Methylate Importers Association (GIMS), June 2011. Received from Envirocat in personal communication with E. Beaurepaire, March 2014.

ICF, COWI, BiPRO, Garrrigues (2015). Study on EU Implementation of the Minamata Convention on Mercury (March 2015)

Jackson, S. (2006): Standard – for good reason. Biodiesel Magazine, 2006. Accessed March 2014 at http://www.biodieselmagazine.com/articles/715/standard-for-good-reason .

LightingEurope (2014): Personal communication with Attila Mórotz, LightingEurope, Brussels, August 2014.

UNECE (2012). Press Release. UNECE Air Convention Parties adopt more stringent controls of heavy metals emissions and measures to help Parties from Eastern Europe, the Caucasus and Central Asia to join in. Available at: http://www.unece.org/index.php?id=31845 [Accessed 30 May 2014]

UNEP (2010): Study on mercury sources and emissions, and analysis of cost and effectiveness of control measures “UNEP Paragraph 29 study”. UNEP, Division of Technology, Industry and Economics (DTIE), Chemicals Branch, Geneva, Switzerland, November, 2010

UNEP (2011): Technical guidelines for the environmentally sound management of wastes consisting of elemental mercury and wastes containing or contaminated with mercury. UNEP, Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal UNEP/CHW.10/6/Add.2/Rev.1, Unedited Advance, 31. October 2011.

UNEP, 2011a: Further comparative analysis of options for financial mechanisms to support the global legally binding instrument on mercury. UNEP(DTIE)/Hg/INC.3/4. UNEP, Aug 2011.

UNEP (2013): Toolkit for Identification and Quantification of Mercury Releases, Reference Report and Guideline for Inventory, Level 2, Version 1.2. UNEP, Division of Technology, Industry and Economics (DTIE), Chemicals Branch, Geneva, Switzerland, April, 2013.

USGS (2013): Mineral commodity summaries – Mercury.
Accessed at http://minerals.usgs.gov/minerals/pubs/commodity/mercury/  

Annex 2 – Stakeholder Consultation

MS authorities and stakeholders, including major players (e.g. BASF, Lightening Europe, Eurelectric, CED) and environmental non-governmental organisations (e.g. the European Environmental Bureau) were consulted at a workshop held in Brussels on 7 July 2014. The basis for the consultation was the draft study contracted by the Commission and carried out by ICF/COWI/BiPRO/Garrigues. The objective was to ask and obtain from participants views, data and information that would help to strengthen the collective understanding of the nature, scale and distribution of the impacts of the various measures considered in the study. In complement to opinions raised at the workshop, written comments were submitted by stakeholders and several MS to follow-up on their interventions at the workshop. Input received was taken into account in in the consultants' report. All written contributions received were made publicly available on the Commission's website.

A summary of the main issues discussed in of the workshop is provided in Appendix A to this Annex.

A broad on-line public consultation was run from 14 August 2014 until 14 November 2014 and publicised on the "Your voice in Europe" webpage 69 using a questionnaire 70 . The objective of this survey was to get a better understanding of the views of the public and stakeholders concerning the ratification of the MC and specific issues related to the transposition and implementation of the MC and in particular in relation to the key areas where EU legislation may need to be amended. The target groups were citizens, public authorities, research organisations, academia, non-profit/non-governmental organisations, consultancies and private companies and their representative organisations. DG ENV informed major stakeholders (e.g. MS, Euro Chlor, EPBA, CED, EEB and various NGOs) of this consultation.

The results of the on-line public consultation are summarised and presented in Appendix B to this Annex.

Appendix A – Stakeholder Workshop of 7 July 2014

This Appendix summarises the issues raised by stakeholders in the workshop of 7 July 2014 on the basis of an interim draft report made available by the consultant. Each topic was introduced through a presentation with slides that were made available to all participants.

Mercury supply & waste

The contractor presented key findings on the impacts of measures to implement the Minamata Convention’s provisions on the supply of mercury and environmentally sound management of mercury waste 71 , especially the requirement of MC Art. 3(8) to introduce a binding obligation for the Parties to restrict the import of mercury from new primary mining and excess mercury of chlor-alkali facilities from Non-Parties and Art. 11(3) relating to recycling of mercury (etc.). While a minimal implementation of these Articles were assessed to have no major impacts within the EU, the presentation noted that a combination of a mercury import prohibition and prohibition of mercury recycling - in a scenario where the EU goes beyond the requirements of the MC - would in effect eliminate the supply of mercury to the EU. It also discussed the balance of the measures, impacts within the EU and elsewhere in the world, and the associated uncertainties in predicting the response of the world market.

The subsequent discussion centred on:

the content, conclusions and availability of a study prepared for the German government on the environmental impacts of final storage of metallic mercury wastes above ground, in hard rock and in salt mines 72 ;

the signalling effect of the EU allowing storage of liquid mercury in salt mines for third countries that might not have similar storage possibilities;

the collaboration in progress on mercury waste management under the UNEP mercury storage partnership, which included a review of solidification technologies;

what activities are being captured in EU data on trade in mercury and mercury compounds (e.g. reported mercury exports in 2012 and 2013);

the challenges of making decisions in the face of the uncertainty about how EU action to restrict imports or impose restrictions on recycling would impact on the global mercury market;

the need for prior informed consent, documentation and traceability to support any system of regulated imports, including distinguishing between mercury from recycled and other sources;

the definition of high and low concentration mercury wastes;

the presence of implementation and enforcement challenges of new and existing legislation.

The Commission noted the uncertainty associated with the some of the measures and that the margin for improvement is comparatively modest compared to the progress already made in the EU in reducing the environmental and health risks associated with mercury.

Mercury use in processes

The contractor presented the analysis of the potential EU response to the Minamata Convention’s regulation of mercury use in processes. Relevant terms here are Art. 5(3 and 6) and Part II of Annex B which covers VCM, polyurethanes and alcoholates. The presentation focused on alcoholates production where the most significant impacts were expected to arise. It was noted that general, but not specific coverage, is provided by the IED. The MC would require the EU to make efforts to phase out of mercury-based alcoholates production; an alternative ‘beyond MC’ option would be to introduce a new regulation that banned alcoholates production using mercury cells.

The ensuing discussion covered:

The estimation of mercury releases avoided by cessation of such processes (as compared to the costs implicated);

The implications for the EU economy of a ban on mercury-based processes, the availability of alternative processes for production of different alcoholates and the costs of any transition to such processes;

The interpretation of the MC terms governing a phase-out of mercury in this production.

That regulation of polyurethanes and VCM would also be needed.

Participants were again asked to supply information on: available alternatives especially regarding potassium ethylate; impacts on downstream users of cessation of potassium ethylate production; costs of reduction of emissions and releases from the mercury process.

Emissions and releases

The presentation on the study’s findings in relation to mercury emissions and releases focused on MC Art. 8 and Annex D, noting also the option provided (Art. 8(2)) to “establish criteria to identify the sources covered within a source category listed in Annex D so long as those criteria for any category include at least 75 per cent of the emissions from that category”. The target source categories are coal-fired power plants; coal-fired industrial boilers; smelting and roasting processes used in the production of lead, zinc, copper and industrial gold; waste incineration facilities; and cement clinker production facilities. The presentation highlighted the coverage in the EU provided by the IED and the forthcoming MCP Directive, but also that there was still work to be done to define aspects of the MC requirements and that the outcomes of those negotiations could potentially have impacts for the EU. The contractor flagged the lack of data on how much of the mercury emissions are currently covered by the IED for certain source categories. The ensuing discussion provided:

Offers of data on mercury emissions and activity rates;

Information of participants that representatives of the cement industry are working to establish EU BAT conclusions as the basis for definition of global standards in current global industry discussions on reducing the air pollution associated with cement production.

Products and processes

Art. 4(6) and 5(7), respectively, require the discouragement of the manufacture and the distribution in commerce of new mercury-added products, and the introduction of new mercury-based processes. The presentation of the study’s work on regulation of mercury in products (for export and EU domestic consumption) looked in particular at the gaps between standards defined in the MC and EU law, and the absence of inventions and innovations dependent on mercury in recent decades. Meeting participants mentioned:

Offers of data on current export of mercury-added products restricted in the EU and the MC, respectively;

The EU’s role as a source of the mercury that is used in artisanal gold mining in South America and elsewhere;

The option of having a notification system for innovations that involved use of mercury;

The reported emergence of some products containing mercury in the US (e.g. “tennis elbow” arm band with mercury).

Dental amalgam

The Convention requires parties to phase down the use of dental amalgam, taking into account their domestic circumstances and relevant international guidance. The contractor explained that the study was not tasked with developing new analysis on dental amalgam given the previous studies and work of the scientific committees. The shape of potential options for compliance and going beyond compliance with the Minamata Convention (via a ban on amalgam) had, however, been outlined.

In the discussion, various views were presented on the further regulation of dental amalgam, the relative merits (and costs) of amalgam and its substitutes, and implications of providing exemptions from a general ban on use of amalgam. The Commission noted that two scientific committees have been considering the amalgam question; the SCHER opinion (which focuses mostly on environmental issues) was published in March 2014 and the SCENIHR opinion (on the health risks) is in preparation.

Appendix B – Results of the Public Consultation

Summary

The on-line public consultation on the EU ratification of the MC reached a significant level of participation. In total 3 702 responses from individuals and organisations were received, including 6 405 comments. The questionnaire included 8 thematic questions, 6 questions concerning specific MC provisions (such as import restrictions, product exports, use of mercury in new products/processes, restrictions on certain processes using mercury and dental amalgam) and 2 general questions seeking feedback on current EU legislation (and in particular the Mercury Export Ban Regulation) and general suggestions on the implementation of the Convention.

Individuals from 28 MS and organisations from 18 MS, as well as respondents from 14 non-EU countries participated in this survey. The United Kingdom (937 responses), Germany (825) and France (654) were the countries with the highest participation rates, whereas MS which joined the EU after 2004 had the lowest response rates (2 responses from Lithuania, up to 45 from Poland). Whilst most of the participants (98%) were individuals, contributions were also received from 81 organisations representing a wide variety of stakeholders.

The categories of respondents, individuals and organisations, have been analysed in more detail concerning number, distribution and content of the responses and the comments provided. Additionally, 81 participating organisations were analysed according to their type, stakeholder and interest group aspects and then grouped in clusters.

Participants included organisations representing the traditional green and environmental sectors, representatives of the medical and health sector, medical industry, labour unions and the private sector, including the chemicals, waste and mining sectors, as well as representatives of governments. Hence, a wide range of interests and points of view is reflected in the responses received.

Significant differences between the interests of individual respondents and organisations can be observed. While individual respondents mostly focused on dental amalgam and the corresponding health issues, participating organisations were rather interested in a broad range of mercury-related issues and delivered substantial contributions concerning regulatory amendments needed vis-à-vis the MC. In this context, it should be mentioned that a significant number of participants did not answer all of the questions (On average, 40% the questions remained unanswered).

There were no significant differences in the content of the responses given by individual respondents and organisations. Most of them (39-85%) opted for a stricter approach in transposing and implementing the MC and the respective amendments to EU law. A rather small number of respondents (2-12%) preferred a less strict approach, but then justified their decision with detailed arguments in the comments area and only very few demanded exemptions for mercury use in products and processes. Nevertheless, also these participants, who were in favour of a less strict approach, shared the opinion that the use of mercury in the EU and world-wide should be phased down.

The vast majority of respondents expressed their serious concerns about the effects of mercury on the environment and health and requested a strict and consistent approach, as well as a phase out of the use of mercury in the short term. A large number of participants mentioned that they were affected by mercury poisoning either themselves or their friends or relatives. A significant number of dentists and people of the medical sector reported their negative experiences with mercury, especially relating to dental amalgam. More than half of the representatives of the private sector were also in favour of an approach going further than the MC, while advocating for a consistent and well prepared regulatory implementation process.

1.Approach to the analysis of the survey

The information gathered through the online consultation was analysed and the results are presented in this report.

Regarding the quantitative representativeness of the responses, 3.702 responses from all over the EU and non-EU countries were received. Individuals from all 28 MS participated as well as organisations from 18 MS.

Answers that could be judged as biased (e.g. exactly the same responses and comments by several respondents) were studied, and their significance concerning the overall results of the survey was assessed. Certain obvious errors were corrected when analysing the results.

With regard to the representativeness of the stakeholder groups that took part to this consultation, the analysis of the data and comments differentiates between individual respondents and organisations while taking into consideration the type of organisation or sector. For questions 1 to 6 an analysis of the responses by organisations has been added concerning each of the following sectors: private (15), NGOs (43) and others (consultancy, research, educational, national government, regional/local authority and other; 26).

The only mandatory fields of the questionnaire were those related to identification, hence it was not compulsory to answer all of the 8 questions. The numbers or percentages of participants who did not answer to a question are indicated in the charts as N/A (No Answer).

Comments provided by the respondents, individuals and organisations were also examined. Hence, in addition to the quantitative results, comments to each of the questions were selected which explain, specify and/or reveal in more detail the individual motivation or points of view of the participants.

The selection criteria for comments retained were frequency, relevance concerning the specific question and range of opinions. Frequent and very frequent comments with similar content or expressing similar opinions where always taken into account. For each question only those comments were taken in consideration, which referred to the topic and content of this question. And in a final step, the selected comments to the respective question were revised under the aspect of the range of opinions expressed by the individuals and organisations, then classified on the base of topics and points of view and duplicates or very similar comments were reduced to one.

Less strict criteria were applied to feedback and comments to question 7 and 8, as the number of contributions was quite low and the quality of contributions high.

2.Descriptive analysis of the categories of respondents

A total of 3702 respondents from all over the EU (96%) and other countries (4%) participated in this public consultation. The distribution and number of respondents per country (see chart below) is uneven but correlates significantly with the total population of the MS. Respondents from all 28 EU MS participated. The United Kingdom (937), Germany (825), France (654), Italy (263) and Spain (171) show the highest participation numbers while Bulgaria (5), Croatia (5), Malta (5), Estonia (4) and Lithuania (2) the lowest.

Figure 1: Distribution of the public consultation responses by EU Member State (in alphabetic order)
and for other non-EU countries

Furthermore, individuals and organisations from all over the World and other European countries participated in this survey. A total of 138 responses from non-EU MS were received, including the USA (53), Switzerland (50), Canada (10), Australia (8), Norway (5), South Africa (3), Brazil (2) and Israel, Jordan, Lebanon, New Zealand, Pakistan, Singapore and Ukraine (1).

To organize the data of respondents by MS and according to the year of EU integration of each country (see chart below) shows a correlation with the respective dates of EU integration. Citizens and organizations from the founding and long life-time MS tend to participate more in public consultations launched by the EU while those from countries which joined the EU in 2004, 2007 and 2013 still have very low participation rates. Apart from a possibly different level of interest in the MS concerning EU issues and decisions in Brussels the significantly varying participation rates could also be based on the still existing regionally differing access to the internet and in consequence to the online public consultations itself. In addition to this, language barriers can also be a reason.

Figure 2: Distribution of the public consultation responses by EU Member State and year of EU integration

In the identification part of the questionnaire to this public consultation participants were asked, if they were responding on behalf of an organisation or as an individual. The chart below shows the participation due to these two categories of respondents. In total 3.621 individual respondents provided their opinion representing all 28 MS and 81 organisations from 18 MS as well as 138 individuals and organisations from other non-EU countries.

Figure 3: Distribution of the public consultation responses by categories of respondents

Representatives of organisations were additionally asked to specify their type of organisation and thereby the sector and group of interest they represent. As shown below non-profit and non-governmental organisations (51%) and the private sector (18%) are the most represented organisation types in this survey, while the participation rates of consultancy firms, regional / local authorities and national governments as well as organisations belonging to the educational / academic and research sector do not even exceed 5% of the total number of organisations (81). As in this survey individual respondents were not asked if they had expert knowledge or represent a sector or interest group, hence a sector analysis for individual respondents is not available.

Figure 4: Distribution of the public consultation responses by organisation types (% of total organisations)

Apart from the sector analysis based on the organisation types the participating organisations were additionally examined more in detail and then grouped in clusters according to their focus of interest and expertise. The following table shows the clusters/interest groups which were identified through the analysis and examples are given for each of them.

Table 1: Participation of organisations in the public consultation classified according to clusters / interest groups

Considering the results of the above stakeholder analysis, the Medical/Dental/Health cluster/interest group was predominating in terms of participation, followed by the clusters Green/Environmental and Medical/Dental Industry and Medical Technologies.

It has to be highlighted that organisations of very different sectors and interest groups participated in this survey and provided their opinion. This variety of contrasting points of view on mercury and the associated environmental and health impacts indicates that the survey results for organisations reflect the whole range of opinions and are representative.

3.Level of participation and focus of interest for question 1 to 6

Due to a significantly varying participation rate in the questions of this public consultation concerning the Ratification by the EU of the MC a more detailed analysis has been carried out for this survey differentiating between contributions of individual respondents and organisations. The number of responses to each of the questions has been compared with the contribution of comments per question and has been additionally compared with the total of participating individuals or organisations.

The results of the analysis for individual respondents can be seen in the chart below. Individual respondents obviously had a special interest in question 6 and the dental amalgam issue. Question 6 reached the highest scores of participation in this survey in terms of responses (3.518) as well as comments (2.117), which means that 97% of individuals participating in this survey answered to this question and additionally 2.117 of them contributed with individual comments. By contrast the participation ratio of individuals with respect to questions 1 to 5 was comparatively low. Just 1 out of 2 participating individuals responded to these questions and less than half of them provided comments. It is obvious that most of the individuals were not interested in mercury issues related to industry, industrial processes and products and the corresponding amendments under the MC. It has to be pointed out that individual respondents had a clear focus of interest on dental amalgam and mercury related health issues.

Figure 5: Comparison of the number of responses and comments for questions 1 to 6 for individual respondents

In contrast the results for organisations draw a completely different and more balanced picture as it can be seen in the chart below. About 80% of the participating organisations (81) responded to each of the six questions, a quite high participation ratio, and more than half of them (except question 6) additionally contributed with comments. Question 1, which related to the participants' support concerning the Ratification of the MC by the EU, received most of the responses from organisations and most of the comments as well. Organisations, which participated in this public consultation, obviously were interested in all of the questions and aspects on mercury and the MC revealed in this survey and additionally contributed with lots of comments reflecting the range of views of the participating stakeholder groups.

Figure 6: Comparison of the number of responses and comments for question 1 to 6 for organisations

4.Descriptive analysis by questions

Question 1. Ratification

The participants to the survey were asked their opinion concerning the intent of the EU to ratify the MC. As shown by the chart below a majority (57%) supports the intent of the EU to swiftly ratify the MC and voted with "Yes" whereas only a very small number (2%) of participants voted with "No".

Focussing on the categories of respondents the results differ significantly. Whereas 42% of the individuals did not answer this question, it is worth noting that 82% of the participating organisations, including the sectors of mining, chemical and medical industry expressed support for a swift EU ratification of the MC.

Figure 7: Distribution of the public consultation responses to question 1 by categories of respondents
(% of total)

In addition 1100 respondents (1050 individuals, 50 organisations) provided comments in relation to this question. The analysis of the comments provided along with question 1 shows how different they can be when submitted by individuals or by organisations.

Most individuals are seriously concerned about the adverse effects of mercury on the environment and health particularly with regard to dental amalgam.

Frequent statements provided by individuals in the comments section were the following.

Mercury is toxic and dangerous.

Mercury is a health threat.

We ALL have only ONE life and only ONE planet to live on!

Furthermore individual respondents requested EU leadership.

This leadership is needed by the EU to meaningfully address the global mercury problem. In particular related to supply, demand and use of mercury globally.

Moreover a significant number of comments were received from individuals who were affected personally and feel deeply concerned by the adverse effects of mercury on health and especially of dental amalgam.

It is time to restrict the use of mercury. I had all of my mercury fillings taken out around 10 years ago, and my health improved dramatically after that. Having mercury fillings is a health hazard.

I have struggled with chronic health problems for 30 years, and these all disappeared after removal of my amalgam fillings and a heavy metal detox. Mercury is pure poison.

I was poisoned after having mercury amalgam drilled out. My life has been ruined. I am unable to function in a normal way. I have severe cognitive, neurological and physical problems from mercury.

It has to be pointed out that in the comments to this question individual respondents clearly expressed their support for a ratification of the MC and a strict approach in all mercury related issues and frequently argued very emotionally. Nevertheless it has to be noted that whilst 56% of the individual respondents support the intention of the EU to speedily ratify the Convention, 42% did not even answer this question.

Figure 8: Distribution of the public consultation responses to question 1 by organisation types
(number of responses for private sector, NGOs and all other organisations, total 84, N/A 10)

Regarding the distribution of responses by organisation types (see chart above), it is worth noting that the overwhelming majority of all organisation types / sectors strongly supports a swift ratification by the EU. An extract of general and EU focused comments submitted by organisations is listed below.

The problems related to mercury are not going to vanish on their own. We have again the chance to lead with excellence.

Rapid ratification and implementation of the MC is essential to enable coordinated action worldwide to reduce mercury emissions and protect human health and the environment.

The convention is in line with the position of the World Dental Federation (FDI) to phase down the use of dental amalgam.

Furthermore specific comments from the industrial sector were received.

Mercury is a valuable commodity which would be better recovered from existing products and processes rather than mined and recovered from Cinnabar.

Environmentally sound management of mercury and mercury containing waste is one of the main concerns of the hazardous waste sector.

It is worth mentioning that organisations participating in this survey represented a very wide range of interest groups from the green, medical to the chemicals and mining sector. Nevertheless all these representatives mostly agreed in addressing all mercury related issues by a stricter approach than foreseen in the MC and especially for Question 1 the consensus is very high.

Question 2. Import restrictions

Under the EU acquis no import restrictions for metallic mercury exist. The MC establishes procedures for imports from non-Parties. In transposing and implementing the Convention, the EU can either restrict imports only from non-Parties as foreseen in the Convention or adopt a stricter approach consisting in a ban on imports from all non-EU countries.

As shown by the chart below, most respondents to Question 2 are in favour of such stricter approach. However, 26% of the organisations prefer to restrict import only from non-Parties but supported their decision with substantial arguments in the comments section.

Figure 9: Distribution of the public consultation responses to question 2 by categories of respondents
(% of total)

A total of 759 comments were received for Question 2, including 721 from individuals and 38 from organisations.

The predominating arguments and perceptions of individual respondents are reflected in the comments below.

Zero tolerance.

To force the world economy to search for healthy and thorough tested alternatives regarding mercury.

If there's no market for mercury in the EU, this will discourage its production in non-EU states.

There is no doubt that individual respondents are in favour of a strict approach concerning import restrictions. They argue that mercury is a poison, a threat for health and environment and want the EU to be a mercury-free market.

Figure 10: Distribution of the public consultation responses to question 2 by organisation types
(number of responses for private sector, NGOs and all other organisations, total 84, N/A 21)

Focussing on the responses provided by organisations (see chart above) it can be seen that NGOs are clearly in favour of a stricter approach concerning import restrictions meanwhile the private sector and other organisations have a split view on this issue. Two central arguments given by organisations are the following.

There will remain a demand for mercury for the next decades. It is very important to ensure that the demands are regulated at the international level.

EU is the largest user of dental mercury in the world, consuming 90 tons in 2010. This is an international embarrassment. Phasing out amalgam is the only way to stop mercury pollution.

The range of views regarding import restrictions is reflected in the comments area. Though a significant part of the organisations opted for import restrictions from non-Parties to the MC they mostly would not reject a stricter approach but worry about the effects an import restriction from all non-EU countries could have on the global mercury market.

Question 3. Product exports

Mercury is still used in many products all over the World. The MC foresees an export ban of the products containing mercury listed in Annex A of the Convention. Under the EU acquis, these products are regulated under several regimes, which forbid their placing on the EU market. Nevertheless no export restrictions exist.

An EU export ban could apply to all products already prohibited on the EU market or only to those banned for export under the MC. One notes, that the current restrictions under EU law are often tighter than they would be under the Convention. In Question 3 the participants were asked their point of view on an EU export ban of mercury-added products.

As in previous questions, the majority of respondents opted for the stricter approach and implementation as can be seen in the chart below. The percentage of supporters of a stricter approach is even higher (51%) in organisations than in individuals. Reasons for this were given by the organisations in the comments section and are listed further down.

Figure 11: Distribution of the public consultation responses to question 3 by categories of respondents
(% of total)

Additionally a total of 635 comments were given, 600 from individuals and 35 from organisations. The following main points of view concerning product exports were provided by individuals:

Stricter rules already applied in the EU should remain valid. If the MC is less strict the Minamata Rules are not acceptable.

Products which the EU does not allow in their own market should not be produced and exported to cause potential harm anyone in other countries!

Moreover some individuals mentioned that they would like to see the EU as a global leader.

Europe should lead by example, as consumers demand more technical advanced and environmentally products this would place Europe as global leaders.

It has to be pointed out that although individuals contributed with 635 comments, 51% of them did not even answer this question.

Figure 12: Distribution of the public consultation responses to question 3 by organisation types
(number of responses for private sector, NGOs and all other organisations, total 84, N/A 21)

Regarding the distribution of responses by organisation type (see chart above) it can be stated that the results differ significantly. The majority of NGOs supports a strict approach, other organisations have a split view concerning exports of mercury-added products and the private sector favours an implementation as foreseen in the MC. Some aspects put forward by organisations are represented in the following comments.

Given the fact that no export restrictions for mercury-added products currently exist, we are of the opinion that the EU should ban the export in all cases when they are not allowed in the EU market.

When elaborating the scope of the EU ban, a very careful examination, deeper assessment of the potential/practical effects is proposed to be carried out.

Nevertheless, the majority of organisations agree with a stricter approach regarding product exports but lots of them, especially those from the private sector are very concerned about the future legal situation and possibly contradictory regulations.

Question 4. Mercury use in new products/processes

Question 4 focusses on the use of mercury in new products and processes. The MC obliges parties to take initiatives discouraging mercury use in new products and processes with some defined exemptions. The current EU law does not include such an obligation as foreseen under the Convention.

Implementing the MC would oblige economic actors to notify any use of mercury in new products and processes and be submitted to an assessment procedure. An alternative and stricter approach would be a complete ban of mercury use in new products and processes.

Regarding the results of the survey concerning question 4 (see chart below), again the majority of respondents opted for the stricter alternative, i.e. a complete ban of mercury use in new products and processes not yet placed in the market. And again the ratio of acceptance for the stricter implementation alternative of the MC is higher in the category of organisations (54%) than in individuals (47%). The corresponding arguments can be found in the extract of comments below.

Figure 13: Distribution of the public consultation responses to question 4 by categories of respondents
(% of total)

Plenty of comments were added by the respondents to this question, 711 by individuals and 34 by organisations. The main points of view of individual respondents are reflected in the following comments.

We don't want toxic products anymore.

New use should not be permitted - it only prolongs the problem

Only products that have absolutely no alternative should be allowed, and only if they meet stringent safety criteria, and recyclability. If not, ban them outright.

Though individual respondents clearly support a strict approach concerning the use of mercury in new products and/or processes and only 5% are in favour of an approval by the EU following an assessment, it has to be taken into account that 48% of all participating individuals did not answer this question.

Figure 14: Distribution of the public consultation responses to question 4 by organisation types
(number of responses for private sector, NGOs and all other organisations, total 84, N/A 20)

With regard to the responses provided by organisations (see chart above) they differ according to the sectors / organisation types as seen in the previous questions. NGOs strongly support a stricter approach meanwhile the private sector and other organisations have a split view. The following extract of comments presents the range of opinions provided by organisations to this question.

Mercury use in new products and processes should be completely banned in order to achieve phase out soon and to implement the highest protection level.

By preventing the use of mercury in new products, processes and facilities the EU will help prevent any increase in the market for mercury and will help drive a transition to mercury-free technologies.

There may be applications with no feasible alternative to Hg/Hg compounds and where desired performance/properties are inherent to the physical/chemical properties of the material (see final section).

Authorization procedures often impede real efforts from the industrial to look for substitution. Better to have both authorization procedures and compulsory obligation to substitute with a deadline.

Though a significant number of organisations (21%) opted for a less strict approach and 25% did not answer the question, it has to be noted that the majority of organisations (54%) believe that the use of mercury in new products and/or processes should not be allowed in the EU.

Question 5. Restrictions on certain processes using mercury

The MC foresees phase-out dates for mercury use in chlor-alkali and acetaldehyde production as well as a number of measures to be taken by the parties concerning the processes of vinyl chloride, sodium methylate and polyurethane production.

Industrial emissions are currently regulated under the IED. The obligations under the Convention are covered to a great extent by the present EU legislation and include measures such as reducing mercury use and emissions to the environment as well as a ban on the mercury use from primary mining.

Implementing the corresponding article of the MC the EU could opt for the restrictions as foreseen in the Convention or pursue a stricter approach by banning mercury use in these processes. The chart below reveals that the majority of all respondents to this question, individuals and organisations, would appreciate a stricter approach of implementation concerning the use of mercury in facilities located in the EU for certain industrial processes. Nevertheless, 7% of the individuals but 27% of the organisations favour a less strict approach as foreseen in the Convention and pros and cons were given in the comments row.

Figure 15: Distribution of the public consultation responses to question 5 by categories of respondents
(% of total)

A total of 633 additional comments were received for this question, 594 from individuals and 39 from organisations. Individual respondents mainly expressed the following arguments in their comments and again demanded EU leadership.

Complete ban. Require full pressure on industries to make the effort to promptly implement new techniques.

Wherever alternative production processes are available, mercury should be banned.

As a highly developed group of countries, the EU must provide leadership for the rest of the world including developing countries in demonstrating that mercury can be eliminated from use.

Individual respondents clearly support by their comments a strict approach regarding the use of mercury in facilities located in the EU. Nevertheless, it has to be noted that 48% of the participating individuals did not answer this question.

Figure 16: Distribution of the public consultation responses to question 5 by organisation types
(number of responses for private sector, NGOs and all other organisations, total 84, N/A 15)

Focussing on the responses by organisation types / sector (see chart above) it can be recognized that the private sector rejects a strict approach and favours a restriction as foreseen in the MC meanwhile NGOs clearly support the stricter approach and other organisations have a similar share in pros and cons. The following comments express some points of view provided by organisations.

The use of mercury for processes in Annex B, Part I and II should be banned as alternatives exist. Such a ban will facilitate the promotion and transfer of mercury-free technologies globally.

The EU law is very strict and there is a possibility to affect the productivity of certain industrial plants

Despite the significant differences between the private sector, NGOs and other organisations concerning this question it has to be stated that still the majority of organisations is in favour of a stricter approach regarding the use of mercury in facilities located in the EU.

Question 6. Dental amalgam

There is an ongoing debate in the EU concerning dental amalgam as it is one of the main remaining uses of mercury in products. Dental amalgam features among the products targeted by the MC and the parties are supposed to take measures in order to phase down the use of mercury as for example setting national objectives for minimising the use of mercury, promoting the use of mercury-free alternatives, insurance policies that favour the use of these alternatives and training of dental professionals.

The participants of the survey were asked to give their opinion concerning the dental amalgam and if they would be in favour of a phase down in line with the MC or prefer a phase out maybe with certain justified exemptions. As can be seen in the chart below an overwhelming majority (86%) of the individual respondents want dental amalgam to be phased out. Among organisations, 61% agree with this stricter approach and 23% prefer a phase down according to the MC.

Figure 17: Distribution of the public consultation responses to question 6 by categories of respondents
(% of total)

Furthermore the participants of this survey were asked to give comments concerning the dental amalgam issue and a very large number (2.150) of respondents to this question expressed their concerns and provided explanation. Especially the individual respondents were highly motivated to express their views regarding dental amalgam and submitted 2.117 comments, the highest participation ratio concerning comments in this survey. An extract of the variety of opinions and perspectives given by individuals is reflected in the following comments.

I do not want amalgam in my teeth or my children’s teeth. Amalgam is a toxic, polluting mercury product with no place in modern dentistry. Alternatives are available, affordable and effective.

The health risks and costs and the environmental costs are already too high. We don't have time for a phase down. A phase out is long overdue.

As a dentist, I do not need amalgam. Mercury-free filling materials are superior because they make teeth stronger and preserve more tooth structure – which saves patients money in the long-run.

Dental amalgam is toxic to dentists and to patients. Alternative materials are available.

It has to be pointed out that in this public consultation an overwhelming majority (86%) of individuals supported the phase out of the use of dental amalgam, 11% were in favour of a phase down in line with the MC and only 3% did not answer the question.

Figure 19: Distribution of the public consultation responses to question 6 by organisation types
(number of responses for private sector, NGOs and all other organisations, total 84, N/A 13)

Regarding the results of the chart above showing the distribution of responses by organisation types it can be noted that all sectors private, NGOs and others support a stricter approach. The private sector is slightly in favour of a phase out of the use of dental amalgam and NGOs as well as all other organisations show a clear support for this stricter approach. Some arguments provided by organisations in the comments area (in total 33) are listed below.

Phase-out. Period. No exceptions.

Mercury-free dental restorations are available, affordable, effective and preferred by most EU citizens. Phase out is the most cost-effective way to prevent dental mercury pollution.

EU is the largest user of dental mercury in the world, consuming 90 tons in 2010. This is an international embarrassment. Phasing out amalgam is the only way to stop dental mercury pollution.

As far as there is a difference on costs between mercury fillings and mercury-free fillings, it is not fair to play on insurance policy because it will mainly impact the poorest population

Respondents to question 6 were additionally asked to provide their opinion regarding the proposed measures for a phase down of dental amalgam as mentioned in the MC and to give a ranking from 1 to 5 in terms of priority for each of the nine options.

Figure 18: Distribution of the public consultation responses to the options 1 to 9 referring to question 6
(1=lowest, 5=highest; % of total responses per question, total number respondents 394)

Figure 18 shows the results of this more detailed request concerning the implementation of the Convention with regard to dental amalgam. All nine options received high scores (47% to 82%) in the highest priority level. The option with the highest acceptance was number 3 "promoting the use of mercury-free alternatives", while option number 8 "restricting amalgam use only to its encapsulated form" received the lowest consent.

5.Additional comments, provided by the respondents

Question 7. Feedback on current legal framework

The Commission is committed to make EU legislation simpler and to reduce regulatory costs. An evaluation and review of the Mercury Strategy already took place and a complementary assessment of the Mercury Export Ban Regulation is currently carried out. As the forthcoming "Minamata ratification package" will substantially amend the Mercury Export Ban Regulation and the Commission would like to take the opportunity to introduce improvements, the participants of this public consultation were asked in question 7 to contribute with their suggestions. The distribution of responses can be seen in the chart below and an extract of the provided comments further below.

Figure 20: Distribution of the public consultation responses to question 7 by categories of respondents
(% of total)

A total of 224 comments were received to this question, 201 by individuals and 23 by organisations. Some selected contributions by individual respondents are listed below.

It is important in light of the findings and recommendations of the Minamata package to review and make the necessary changes to the legal framework to simplify and improve it so that objectives are met without unnecessary legal issues.

The simpler a regulation the better understood by all, and easier to apply. It is better to produce a list of all products that use mercury now and that should look for alternative substitutes.

MC related issues should come under one legal instrument. A legislative package should include the following in line with the convention:

1. Immediate ban on new mercury mining

2. Export ban all mercury compounds, and mixtures

3. Ban on mercury trade except for ESM (Environmentally Sound Management) of mercury waste

4. Mercury recycling for existing uses

5. Banning mercury use in Artisanal Small Scale Gold Mining

6. ESM (Environmentally Sound Management) and storage for mercury waste

7. Emissions standards for coal fired power stations

8. Request separate collection for non-electronic products/waste e.g. thermometers

9. Contaminated sites to be addressed

Make sure "opt out's" are very tight and very heavily policed.

The thrust of the EU legal framework should be removal of mercury discharges to the environment and a progressive decline in background levels e.g. in tuna fish and other marine organisms. Amendments should have this as their ultimate goal rather than appeasement of different political positions. The environment does not respond positively to political and or bottom line driven directives.

The following extracts of comments received by organisations provide a brief overview regarding the proposed amendments to the existing EU legal framework on mercury.

All issues relevant to the MC could come under one legal instrument. References to emissions and releases could also be included in this instrument to avoid delays from need for revision of separate laws. Beyond the issues raised above, a legislative package should include the following:

1.Explicitly ban existing and new mercury mining.

2.Extend export ban to other mercury compounds, mixtures with a lower mercury content.

3.Set up a trade tracking system to record information from exports and imports of elemental and compound mercury between MS and between EU and external countries and also within the industry sector.

4.Ensure mercury used in porosimetry - pycnometry is recycled and eventually phased out.

5.Banning mercury use in Artisanal Small Scale Gold Mining.

6.Conditions for environmentally safe disposal of metallic mercury should be adopted with preference for solidified/stabilized mercury disposal in underground facilities.

7.Ensure products containing mercury are collected separately (thermostats, thermometers, etc.) with better labelling of products to facilitate separate collection.

8.Request separate collection for non-electronic products/waste e.g. thermometers.

9.Contaminated sites (former mining sites and others) should be classified according to contamination and urgency of remediation to be restored to a reasonable condition.
10. The revised National Emissions Ceiling directive should also include mercury.
11. The Medium Combustion Plants (MCP) directive should also include specific mercury requirements ...

We propose amendments to the Mercury Export ban on the following issues: 1. permanent storage of metallic mercury, 2. extension of the export ban and 3. enforcement of traceability

1.Metallic mercury considered as waste regarding art 2 of regulation 1102/2008 should not be allowed to be stored permanently. This mercury can’t be re-used for allowed uses. Nevertheless, by keeping the mercury in metallic form, illegal traffic is eased. Consequently, by imposing transformation (solidification/stabilisation) of metallic mercury into more stable and less dangerous components, any illegal use is also more difficult or even impossible.
That is why we propose the deletion of all references to “permanent storage” in the regulation (see art 3.1.a, art 4.3, art 5.1, art 6.1.c and art 6.2.b).

2.We consider that extension of the export ban to other mercury containing waste will not be efficient but that appropriate and stringent regulation concerning needs and uses (regulated market, for instance) and also reinforcement of traceability requirements will have a much higher efficiency.

3.Traceability is one of the key issues in order to ensure environmentally sound management of mercury. For that purpose, we suggest to add 2 items in article 6. The first item will refer to the extension of the traceability requirement to the installations receiving mercury as waste and the second item will define an EU record/registration system which will allow tracing mercury from the producer to the final destination.

Question 8. Other issues

By implementing the MC the EU will have to amend its legislation and so the questions of this survey were focused on the needed amendments. Nevertheless in question 8 "other issues" the participants of this survey were asked to contribute with any other suggestion concerning the MC they would like to be considered by the EU in future. A total of 159 comments were received, 128 from individual respondents and 31 from organisations. The results to this question can be seen in the chart below and balanced extracts of the corresponding comments are presented further down.

Figure 21: Distribution of the public consultation responses to question 8 by categories of respondents
(% of total)

The following contributions concerning "other issues in relation to the implementation of the MC were provided by individual respondents.

Please enforce a ban on ALL mercury use, and make sure there can be NO opt outs by any member country

Do not forget medicines, which contain mercury as excipient named "Thiomersal", or "Thimerosal".

Remove mercury from all vaccinations

Sickness because of mercury should be acknowledged by health and other insurances. Universities should educate doctors about mercury diseases. Information about the danger of amalgam and mercury in certain products should be broadcasted more widely to everybody.

Mercury should be banned in mascara (used close to the brain); even extremely small doses of mercury should be declared at the ingredient/composition list of any product containing mercury.

What about crematoria - what is the current situation with this - especially for residents living close to such establishments - is this covered - are the risks available to be quantified. (Mercury in amalgams would presumably be vaporised during actual cremation.)

Furthermore organisations contributed with lots of suggestions and substantial input regarding "other issues". A selection of these contributions is listed below.

We would like to raise 5 other issues we consider essential for the success of the implementation of the Minamata Convention at the EU level:

1.    Action plans

The EU set of legislations should promote drawing up action plans at Member State level as proposed in the Minamata Convention particularly for the control of emissions of mercury and the development of strategy for the identification of contaminated sites.

2.    Emissions to air

The EU should strengthen the control of mercury air emission, particularly for relevant sources using BREFs and NEC Directive as tools to decrease the emissions of the main industrial contributors.

3.    Threshold of mercury in waste

EU should launch studies in order to define threshold above which it is necessary to consider that a waste is a mercury containing waste and needs to be treated under the specific requirements of the Minamata Convention (as for POPs (Persistant Organic Pollutants)).

4.    In relationship with the above remark, it is very important to ensure that mercury containing waste are permanently stored in specific dedicated areas either in aboveground storage or in underground storage. To avoid any risk of contamination, the total separation of the storage of mercury containing waste from other type of (hazardous) waste is essential.

5.    EU should ensure that the mercury used (for remaining allowed uses) only comes from recycling facilities with the most stringent traceability procedures ensuring that there is no possibility of illegal traffic.



1.    Restrict further the mercury use in light sources for certain categories.

2.    All Best Available Technique (BAT) Reference Documents (BREFs) for relevant industries should include measures to prevent mercury emissions and specific BAT Associated Emissions Limits (AELs) for mercury.

3.    Member States, European Parliament and the EC should ensure that consumers receive information about the presence of toxic mercury, and in particular concerning labelling of the mercury content of …

In general, we note that there are some important and life-saving technologies which continue to require the use of mercury such as use in reference standards, voltage reference sensors and sensor electrodes. The EU regulatory framework provides for exemptions under e.g. ‘RoHS’ Directive 2011/65/EU and such exemptions should be maintained. Use of mercury for the purpose of research and development should continue to be permitted. Manufacturing of permitted uses of mercury should likewise continue to be supported in the EU. …

The current provision of Regulation (EC) No 1102/2008 of the European Parliament and of the Council of 22 October 2008 (Mercury ban) excluding medicinal products from the export prohibition (Art. 1.2) shall be kept also in future.

Reason: Medicinal products containing mercury or mercury compounds in diluted form present a proven and essential part of the treasure of homeopathic and anthroposophic medicinal products. Due to the high dilution these products are safe which is evaluated during the official authorisation process by official authorities.

The core of worldwide homeopathic and anthroposophic pharmaceutical industry is EU-based. Therefore, in order to support worldwide availability of these products, exports of these medicines have to be possible also in future.



1.    Regarding dental amalgam: EU policy works best when it sets the challenge and allows Member States to decide how best to meet it.

2.    Regarding the Export Ban Regulation: the de-minimis threshold must be maintained to prevent disproportionate application of the ban in line with the Minamata Convention.

3.    Regarding ASGM: The EU has no competence to govern artisanal gold mining in the territory of individual Member States (e.g. France) - this aspect must therefore not be included in any EU instrument to ratify the Convention. All Member States must individually ratify the Minamata Convention to cover compliance with its provisions related to ASGM and any other matters related to Member State competence …

To protect human health and ecosystems, the treaty and EU legal framework (where appropriate) should:

Recognize particularly vulnerable populations such as children, women of child bearing age, indigenous peoples, Arctic communities, island and coastal dwellers, fisherfolk, small-scale gold miners, the poor, workers, and others

Have a broad scope and address the entire mercury life-cycle

Aim to control all anthropogenic mercury sources and all human activities that release significant quantities of mercury to the environment

Establish an adequately funded and predictable financial mechanism with new and additional resources sufficient to enable developing countries and countries with economies in transition to fulfil their treaty obligations without compromising their poverty reduction goals

Use elimination-based control measures subject to possible limited, time-bound exemptions to phase-out all products and processes that contain or use mercury, and in the interim, establish standards and controls for those products and processes that remain

Reduce and minimize global commercial demand for mercury

Reduce global mercury supply by banning primary mercury mining; mandating permanent, secure, monitored storage for existing mercury stockpiles and all mercury that is recovered from chlor-alkali plants

Establish effective controls on international trade in mercury and mercury-containing products

Mandate environmentally sound solutions for the management of mercury wastes including measures to prevent mercury from entering municipal, medical and industrial waste streams;

Expedite the phase-out of mercury use in the health sector

Prohibit new uses of mercury

Promote research and development on sustainable, non-toxic, alternatives to products and processes

Promote the use of renewable, alternative energy sources as a substitute for coal-fire power plants (release Hg)

6.Conclusions

This public consultation on the Ratification by the EU of the MC received responses from all over the world and showed a quite high participation rate. A total of 3 702 responses from individual persons and organisations were received and representatives of very different interest groups participated in the survey and contributed with an impressive number of comments. Thus the obtained results can be considered as representative in terms of numbers of responses, EU-wide contribution as well as concerning the variety of opinions expressed in this survey.

Taking into account the responses to the questions of this public consultation and the received answers and comments it can be concluded that a vast majority of the public, individual respondents as well as organisations, support a strict approach concerning the implementation of the Minamata Convention and all mercury related issues.

Nevertheless representatives of the private sector request to maintain exemptions for specific mercury-added products but at the same time are in favour of an improved monitoring on products containing mercury. Individuals and organisations hold the opinion that the EU legal framework should be in general as simple as possible, avoid overlap of regulations and be time- and cost-effective concerning the controls. Needed legal adjustments and improvements should be integrated in existing regulations as for example the IED and the corresponding BREFs before regulating under new legislation. With regard to the implementation of the Minamata Convention and needed amendments to the EU legal framework a consistent and well-prepared approach is requested especially by the organisations. Additionally it is criticised that the EU legal framework focuses on emissions of mercury and trade control but does not consider critical values for the environment and promotion of its continuous decline.

Participants expressed a strong support that mercury mining has to be stopped though there are different arguments supporting this position. Parts of the private sector argue that at present there is enough mercury in the market to satisfy the EU internal demand for years. It only has to be recycled. Most of the participants would also agree in extending the export and import ban on mercury, but some of them would even like to see a stricter approach and a total import and export ban, though others are concerned about the effects such a ban could have on the global mercury market and the illegal mercury traffic. Regarding the use of mercury in new products and processes not yet placed in the market most of the respondents to this survey consider that this should not be allowed.

Furthermore people agree that due to the high toxicity of mercury and environmental and health risks a strict monitoring of every mercury-added product or process is required, has to be improved and the implementation of a trade tracking system contributing to an enforced traceability of mercury is suggested. Respondents to this survey additionally recommended to the EC to revise the handling of mercury-added waste, to ensure separate collection and to adjust the regulations for permanent storage. Concerning transparency for consumers, some participants of this survey proposed an adequate labelling for all products containing mercury including those with very low concentrations of mercury.

It has to be pointed out that the majority of respondents to this survey had a clear focus on mercury related health issues and especially on the dental amalgam. There has been an extremely high motivation to respond to question 6 concerning the dental amalgam and to contribute additionally with comments. The majority of individual respondents including patients as well as dentists consider that the use of dental amalgam should be phased out on a short-term and that health and insurance politics should promote safe alternatives and acknowledgement of mercury related diseases. Furthermore they believe that adequate education and training for dentist is needed especially concerning the removal of amalgam fillings.

Experts from the health sector indicated that exemptions for the medical sector should continue whereas individuals tend to reject any exemption for mercury-added products. Some manufacturers of mercury based scientific instruments gave arguments to support the still existing exemptions for their products and other participants remarked that the use and handling of mercury-added devices generating light should be revised.

In this public consultation regarding the Ratification by the EU of the Minamata Convention on Mercury a total of 3.621 individuals and 81 organisations representing very different stakeholder groups participated, responded to the questions and expressed their opinion in more than 6.000 comments, which were revised, analysed and grouped according to topics and presented in this conclusions in brief.

As the comments represent a wide range of interests and stakeholder groups and additionally provide specific and expert recommendations and ideas for improvement concerning the implementation of the Minamata Convention by the EU these contributions by the European public are an excellent input basis for the EC regarding the implementation process of the Convention and the needed amendments to EU legal framework.

Annex 3 – Who is Affected by the Initiative and How

Import restrictions on mercury

Art. 3(8) of the MC provides that each Party is not allowed to import mercury from a non-Party to whom it will provide its written consent unless the non-Party has provided certification that the mercury is neither from primary mining nor from excess mercury from the decommissioning of chlor-alkali facilities.

As specified in Section 4.1 of this Report, the preferred option P1O1 consists in imposing import restrictions from non-Parties under the same conditions as those laid down in above-mentioned Art. 3(8). The implementation of this option would require making use of a prior informed procedure whereby the exporting country will have to provide the importing EU Member State with a relevant certification demonstrating the lawfulness of the export.

The practical implementation of this import restriction would rely upon existing EU rules on imports of chemicals, as laid down in Regulation (EU) No 649/2012, which regulates, inter alia, the export of certain mercury compounds. The applicability of Regulation (EU) No 649/2012 would imply that the national authorities designated by each Member State will ensure that imported mercury meets the applicable conditions. As to the relevant enterprises themselves, they would have to check that the imported mercury is accompanied by information certifying that it is neither from primary mining nor from excess mercury from the decommissioning of chlor-alkali facilities.

However, in practice, the probability that such imports take place is highly limited due to the combination of several factors, including the low number of countries that will not in fine be Parties to the MC, the decreasing of mercury use in the EU and the existence of sufficient stocks of mercury within the EU or available in countries that intend to ratify the MC.

The implementation of this import restriction would have to be ensured as from the date where the new EU legal instrument transposing and implementing the MC will become legally-binding upon MS.

The economic impact of implementing option P1O1 is minimal (0-0,4 EUR of foregone imports but may be compensated by imports from allowed sources and for allowed uses). Equally low, if any, would be the associated social impact (e.g. job losses), given the limited trade concerned. A positive environmental impact is expected thanks to reduced releases from primary mercury mining globally. Low administrative burden is expected in view of the use of existing structures.

Export prohibition of certain mercury-added products  

Under Art. 4(1) of the MC, Parties are not allowed to manufacture, import and export the mercury-added products listed in its Annex A (Part I) as from 1st January 2021.

As specified in Section 4.2 of this Report, the preferred option P2O1 consists in imposing an export prohibition for all mercury-added products not meeting the technical specifications laid down in above-cited Annex A (Part I).

The practical implementation of this export restriction would be handled by the competent authorities of the MS that will have to ensure that mercury-added products not meeting the requirements of the MC are not exported outside the EU. However, the need for such authorities to undertake specific additional implementing measures is extremely limited due to the mere fact that the mercury-added products listed in Annex A (Part I) of the MC that are manufactured in the EU and exported from the EU are already in compliance with the requirements set out in that Annex. In any case, MS will be able to rely upon the control and enforcement mechanisms they have established to implement above-mentioned Regulation (EU) No 649/2012, which already sets an export ban on cosmetic soaps containing mercury. As a matter of fact, in practice the risk of imports into the EU of products not allowed on the EU market is far bigger than the risk of export from the EU of products not complying with the MC standards, which implies that market surveillance will continue prioritising controls on imports.

The implementation of this export restriction will have to be ensured as from 1 January 2021.

Option P2O1 would have minor economic, environmental or social impacts, as the MC provisions are greatly covered by existing EU legislation on mercury-added products. Administrative burden is also minimal, as MS can rely on existing control and enforcement mechanisms.

Mercury use in new products and processes

Art. 4(6) and 5(7) of the MC provide that Parties shall discourage the manufacture and marketing of mercury-added products not listed in its Annex A (Part I) and the development of any facility/installation using a mercury-based process not listed in its Annex B, unless it is demonstrated that the concerned product or process will result in (significant) environmental or human health benefits.

As specified in Section 4.3 of this Report, the preferred option P3O2 consists in imposing an a priori prohibition of mercury in new products and processes while leaving the possibility for such a product or process to benefit from derogation in case where an assessment demonstrates environmental and/or human health benefits.

The practical implementation of this conditional prohibition would primarily be assured both by the concerned economic operators (e.g. importers/manufacturers of new mercury-added products, operators of new mercury-based manufacturing processes) who would have to decide on the opportunity of developing new products or processes using mercury. If they engaged successfully in such development, they would have to undertake and provide to their competent authorities an assessment of the environmental and health risks. MS would provide the information it will have received to the Commission who would then exchange information with experts of MS and stakeholders with a view to evaluating the information so submitted and to deciding whether the new product or process has significant environmental and/or health benefits. Should this be the case, a notification may be addressed to the Secretariat of the MC and the Commission may prepare a proposal to allow the product or process.

However, in practice, the probability that such products and processes will be developed is considered low, but it cannot be ruled out completely. Overall it is likely the above process may never take place.

The implementation of this import restriction would have to be ensured as from the date where the new EU legal instrument transposing and implementing the MC will become legally-binding upon MS.

There is a limited economic impact associated with P3O2 (due to authorisation costs and fees) but the probability of developing new uses of mercury in products and processes is minimal. Option P3O2 has a strong signal value and will result in a virtually full elimination of mercury input to society via novel mercury uses.

Restrictions on certain processes using mercury

In accordance with Art. 5(2) and (3) and Annex B of the MC, Parties shall take measures that ensure, inter alia, that no acetaldehyde production in which mercury or mercury compounds are used as catalyst takes place after 2018 (no production in the EU in 2015) and that the production of vinyl chloride monomer (VCM only one installation in the EU (Slovakia) in 2015) and sodium or potassium methylate or ethylate - also known as alcoholates production - (only two installations in the EU (Germany) in 2015) complies with the operational requirements set out in its Annex B (Part II).

As specified in Section 4.4 of this Report, the preferred option P4O1 consists firstly in prohibiting above-mentioned acetaldehyde and VCM production by 2018. In terms of practical implementation, this would imply that the Slovak installation using mercury in the production of VCM converts its mercury-based production line/unit to a mercury-free production line/unit and that this is verified by the concerned Slovakian authority. In this respect, the implementation of such an obligation should not raise particular difficulties nor should it result in significant costs. Indeed, as this is an installation covered by Directive 2010/75/EU, the control of its operating conditions will take place as part of the routine work performed by licencing and inspection authorities in the light, inter alia, of the monitoring data and information that must be provided on a regular basis by operators of installations covered by that Directive.

This preferred option consists secondly in prohibiting the use of mercury from primary mining and in requiring a reduction of mercury emissions per unit production of alcoholates by 50% by 2020 as compared to 2010. In terms of practical implementation, as primary mining is not used for such processes, this would imply only that the two German installations producing alcoholates reduce mercury emissions and releases to a sufficient degree and that this is verified by the concerned German authority. Alike the case of the above-mentioned Slovak installation producing VCM, the control of the correct implementation of those emission restrictions will be performed as part of the routine work carried out by the competent authorities in charge of regulating and monitoring installations falling under the scope of application of Directive 2010/75/EU. Furthermore, the Commission services would encourage Germany and the concerned companies to take further measures leading to the phase out of the mercury-based process in those two installations.

The preferred option P4O1 was associated with an economic impact of 3-77 million EUR depending on whether an alternative process (technically and economically feasible) for the last of the four alcoholates is identified and implemented. A positive environmental impact is expected due to the expected reductions in mercury emissions and use. Negative social impacts are mainly due to potential job losses (estimated at 0-200).

Artisanal and small-scale gold mining

Under Art. 7 of the MC, Parties that host more than insignificant artisanal and small-scale gold mining and processing (ASGM) shall for that purpose develop and implement a national action plan in accordance with Annex C of the MC so as to reduce and, if feasible, eliminate the use of mercury and mercury compounds in and mercury emissions and releases from such an activity. Such a plan must be submitted to the Secretariat of the MC while reviews of the progress achieved in this field must be included in the implementation reports each Party must submit to the Conference of the Parties of the MC.

As specified in Section 4.5 of this Report, the preferred option P5O1 consists simply in transposing the relevant requirements set out in the MC. This will only concern France. As France has already taken strict measures regarding ASGM and is committed to ratifying the Convention, France is expected to be in full compliance with the Convention at the time of entry into force of the new EU instrument. Hence, practical implementation would be limited to France communicating to the Commission information on the measures taken, which the Commission will include in its report to the Secretariat of the Convention.

The implementation of these restrictions will have to be ensured as from the date where the new EU legal instrument transposing and implementing the MC will become legally-binding upon MS.

No impacts associated to the implementation of option P5O1, as ASGM is hardly encountered within the EU.

Dental amalgam

Art. 4(3) and Annex A (Part II) of the MC provide that Parties shall take at least two measures listed in that Annex to phase down the use of dental amalgam.

As specified in Section 4.6 of this Report, the preferred options P6O1a and P6O1b consist in requiring the use of dental amalgam only in its encapsulated form and the use of amalgam separators. In terms of practical implementation (1) dentists not yet equipped with amalgamators and amalgam separators will have to acquire such devices. Dentists would have to ensure appropriate maintenance of the separators and deliver the waste amalgam to authorised collectors, (2) suppliers of bulk mercury would stop providing such mercury to dentists and would increase mercury supply to producers of encapsulated dental amalgam. As the use of mercury from several sources is already limited in the EU as a consequence of Regulation (EC) N° 1907/2006, the competent authorities of the MS in charge of surveillance of this market, would also be tasked with the surveillance of the obligations regarding marketing of mercury for the purpose of dentistry.

Implementation of the preferred options P6O1a and P6O1b entails an additional cost of 10-58 million EUR/y, mainly due to the installation and maintenance of amalgam separators by dental clinics. This will be counterbalanced to some extent by the expected positive economic impact to be enjoyed by the waste management and recycling sector. A positive environmental is expected due to the expected reduction of mercury pollution currently identified especially in urban wastewater treatment plants and associated to dental clinics. A positive social impact is expected mainly due to job creation in the waste treatment sector and the improved health and safety conditions for dental workers.

Annex 4A – Mercury as A Global Issue

This section aims at presenting a fairly brief overview of the mercury problem. Throughout the text the references will be made to the more detailed sources for the reader seeking a deeper understanding of the issues involved. A recent and comprehensive analysis of the problem can be found in the UNEP Global Mercury Assessment 2013 .

Mercury is a natural element, represented chemically by the symbol Hg 73 . Pure mercury is rarely found in nature. Mercury is extracted mainly from cinnabar, a sulphide ore containing 86% of mercury that has been used since prehistoric times to produce a bright orange pigment. Extraction of mercury from cinnabar has been described, as early as 4th century BC, by the Greek philosopher Theophrastus in his treatise "On stones". Before the industrial revolution, mercury's main use was in gold extraction, while in the last two centuries it has been used extensively in the chlor-alkali industry, but also in the manufacture of electrical instruments, in agricultural fungicides, in the production of plastics, as well as in pharmaceuticals among others. Annual production of mercury has dropped significantly from 5000-7000 t in the 1990s to around 1900t in recent years (2013 and 2014). China is currently its major producer with around 1200 t in 2012, while Kyrgyzstan is practically the only other country producing mercury from cinnabar ore nowadays with an estimated production of 150t in 2012. China holds 21000t of the world's estimated 94000t of cinnabar reserves. Within the EU, Spain, once a leading producer of mercury from its centuries-old Almaden mine, stopped mercury extraction in 2003.

Due to its unique properties (heavy, shiny metal that is liquid at room temperature), mercury has been used in a variety of applications. It has been used in a number of industrial processes (e.g. chlorine/sodium hydroxide production, plastics industry, etc.) and in a variety of products (e.g. thermometers, dental fillings, energy-saving fluorescent lamps, batteries, etc.). It is also released unintentionally through the burning of fossil fuels (particularly in coal-fired power plants), during cement production, or as a by-product during the production of other metals (such as copper, zinc and lead). Due to its presence in several products, waste (especially medical waste) incineration is another important pathway of mercury to the environment. Perhaps the most widespread use of mercury nowadays is in Artisanal and Small-scale Gold Miming (ASGM), where mercury is used to extract gold from ore by forming an amalgam (a mixture of mercury and gold), which is then heated to evaporate mercury (usually in the open air) and recover gold. Due to its simplicity and low cost, this method of gold extraction is still used widely worldwide, particularly in Asia, sub-Saharan Africa and South-America.

Mercury is a ubiquitous environmental toxin, encountered in three chemical forms (elemental, inorganic and organic), each with its own profile of toxicity. Elemental mercury in the atmosphere can undergo transformation into inorganic mercury forms soluble in water 74 , providing an important pathway for deposition through the rain. Elemental mercury released in the atmosphere can thus eventually be deposited in aquatic environments, where it can be converted through bacteria to methylmercury, its most toxic form. Global mercury emissions from human activity have been estimated at 1960t in 2010. This represents about 30% of annual mercury emissions to air. Another 10% comes from natural sources (e.g. volcanoes) and the rest 60% is from re-emissions, which again is largely due to mercury accumulated in the environment due to human activity over several centuries.

Depending on its form 75 , mercury can stay in the air up to a year and can be transported throughout the hemisphere before it is deposited; therefore the mercury issue is a global problem and cannot be addressed only at the national level. While mercury is mainly transported through the atmosphere, its environmental impact is not directly related to its atmospheric burden as it would be the case for several other major atmospheric pollutants. As mentioned, depending on its oxidation, deposition and conversion to methylmercury, mercury’s primary environmental and health impacts may be identified thousands of kilometres away from its original source. Mercury released in the environment due to human activity, particularly over the last couple of centuries, presents a major challenge as a threat to human health and the environment already now and in the future. Over the last fifty years, mercury toxicity 76 has been well documented and high mercury levels in fish worldwide are the most important issue of concern. Methylmercury bioaccumulates in fish and enters the food chain. As larger fish eat smaller ones, methylmercury is concentrated up the food chain, a process known as biomagnification. As a result, predators in aquatic systems can have levels of methylmercury that are 100 000 times higher than methylmercury levels in the waters where they live.

As mercury is globally distributed, due to its long residence time in the atmosphere, fish in remote regions may be impacted by regional and global sources. Fish in and downstream of mercury hotspots (small scale gold mining operations, mercury cell chlor-alkali plants, coal-fired power plants, etc.) can contain high mercury concentrations 77 , but fish in other regions (even in the Arctic where there is little or no local mercury pollution) are affected as well. Elevated mercury levels have been measured in many freshwater and marine species throughout the world. Factors that influence mercury levels in the fish include age, size, weight and length of the fish, as well the characteristics of the body of water (e.g. local contamination, pH, etc.). Mercury concentrations in fish generally range from about 0,005 to 1,4milligram of mercury per kilogram of tissue (mg/kg) depending on certain factors (e.g. type of fish, its age, origin, etc.). Smaller, younger or non-predatory fish will tend to have lower mercury levels than large, older, predatory fish. Large predatory fish are often migratory and thus fish from particular waters with high mercury contamination can be found anywhere. In fact, methylmercury concentration in fish can differ greatly even in adjacent water bodies (receiving practically the same deposition) due to ecosystem-specific factors affecting the bioavailability of inorganic mercury to methylating microbes (e.g. sulphide, dissolved organic carbon) or the activity of the microbes themselves (e.g. temperature, organic carbon, redox status).

Ingesting fish or aquatic/marine mammals that have built up high levels of methylmercury passes their toxic burden to those who consume them, including humans. More than 90% of the mercury/methylmercury in fish ingested is readily absorbed into the body through the gastrointestinal tract.

As methylmercury in fish is bound to tissue proteins rather than fatty deposits, there is little one can do to reduce exposure when eating fish (trimming/skinning of the fish does not reduce the mercury content of the fillet portion and no cleaning or cooking methods can reduce the amounts of mercury intake either). Fish remains an important source of protein, vitamins and micronutrients and is an important constituent of a balanced diet. Mercury intake depends obviously not only on the level of mercury and the type of fish, but also on the amount consumed and the frequency of consumption. People on a high-fish diet, pregnant and breast-feeding women and young children are at a higher risk. Mercury is a potent neurotoxin and once in the human body it targets mainly the brain and the nervous system, however the kidneys and the cardiovascular system are also affected. Fetuses and children, with still developing brain and rapidly absorbing nutrients, can be particularly vulnerable. Even at low doses, mercury may hinder development, delaying walking and talking, impairing attention and causing learning disability. High prenatal or infant exposure may cause mental retardation, cerebral palsy, deafness and blindness. The best known incident of acute high exposure to methylmercury took place in Minamata, Japan, in the 1960s due to direct contamination of the Minamata bay by wastewaters from a local chemical factory. The up-to-then unknown ailment was named by the scientists Minamata disease and affected more than fifty thousand people in the area, some of them still suffering today from neurological symptoms, including tremors, dizziness, headaches, memory, vision and hearing loss, while most severe cases involve cognitive and motor dysfunction and physical abnormalities.

While acute exposure in Minamata and its devastating impacts drew the world's attention to the mercury problem, less severe mercury exposure is also problematic in the long term. The main source of mercury exposure for most people in developed countries is inhalation of mercury vapour due to the continuous release of elemental mercury from dental amalgam. Exposure to methylmercury mostly occurs via the diet.

Through their International Programme on Chemical Safety (IPCS), UNEP and WHO have classified mercury as one of ten chemicals of major public health concern.

The reference intake levels for methylmercury exposures range from 0,7 to 2 μg methylmercury per kilogram body weight (μg/kg body weight) per week. The EFSA Panel on contaminants in the food chain (CONTAM) has established tolerable weekly intakes (TWIs) 78 for inorganic mercury at 4 μg/kg body weight and for methylmercury at 1.3 μg/kg body weight.

EU legislation setting maximum levels for mercury in fishery products is already in place 79 . Limits are set at 0,50 or 1,00 mg/kg wet weight depending on the type of fish. In view of the actual levels of mercury detected in fish, there is very limited scope to reasonably reduce the limits. Alternative solutions for protecting vulnerable groups (e.g. targeted consumer advice) are necessary.

An information note 80 on methylmercury in fish and fishery products issued by the Commission in 2008 suggests that women who might become pregnant, women who are pregnant or breast-feeding and young children should not eat more than one small portion (<100g) per week of large predatory fish, such as swordfish, shark, marlin or pike. Also they should not eat tuna more than twice a week.

Detailed guidance on identifying populations at risk from mercury exposure has also been issued, in 2008, by UNEP Chemicals in cooperation with WHO 81 and by many national authorities.

While an accurate analysis of potential risks from fish consumption would require detailed information on fish species consumption patterns as well as methylmercury levels in the consumed fish, data on eating habits by the Food Agricultural Organisation (FAO) indicate that people in certain regions (e.g. islands) in Europe may be at particularly high risk of mercury exposure through fish consumption.

In its scientific opinion on the risk for public health related to the presence of mercury and methylmercury in food 82 , the EFSA Panel on contaminants in the food chain (CONTAM) concluded that high fish consumers, which might include pregnant women, may exceed the tolerable weekly intake (TWI) by up to approximately six-fold. Unborn children constitute the most vulnerable group. While dietary inorganic mercury exposure in Europe does not exceed the TWI in most cases, parallel inhalation exposure of elemental mercury from dental amalgam is likely to increase the internal inorganic mercury exposure; thus the TWI might be exceeded. However, the contribution of dental amalgam to the total body burden, when compared to methylmercury from food, is limited. In fact, elemental mercury is a major component (ca. 50%) of dental amalgam in the form of an alloy that is solid at room temperature. Elemental mercury released into the mouth can be oxidised to inorganic mercury which may be transformed by bacteria to methylmercury after it is released into saliva. On the contrary, after oral intake, methylmercury 83 is much more extensively and rapidly absorbed than elemental or ionic mercury and accumulated in hair, the fetus and the brain. While the benefits of fish in human nutrition should be kept in mind, eating mercury-contaminated fish can have significant negative health impacts in the long-run.

Recent research 84 quantified the monetary benefits from control of methylmercury (MeHg) toxicity in the EU at between €8 000 and €9 000 million per year. This estimate results from research findings, on the basis of population biomarker data, that 1,5 to 2,0 million EU children are born each year exceeding exposure limits associated with long term IQ deficits. Unfortunately, due to the complexity of the issue, there are currently no models available to quantify the link between anthropogenic mercury releases with human exposure. However, the long timescales of mercury cycling in the environment suggest that any anthropogenic mercury releases persist and can affect biological exposures for centuries to millennia.

Mercury can enter our environment (and subsequently the food chain) in many different ways. Emissions of mercury can travel through air and water and end up thousands of kilometers away. Unless it is properly disposed of, mercury produced, used or discarded adds up to the global mercury pool, persists in the environment. The origin of atmospheric mercury deposition can differ substantially in different areas in the EU. Emission models predict atmospheric deposition originating from Europe to up to 60% of the total European depositions in certain industrialised areas, while in other areas, such as the Mediterranean, European emissions contribute only 20% or less. It is thus obvious, that the transboundary component of mercury pollution is very significant and can only be addressed by a global action.

Global emissions of mercury to air from human activities in 2010 were estimated at 1 960t 85 , relatively stable since 1990. However, while emissions have been declining in Europe (and North America) thanks to legislation enacted, this is not the case in the rest of the world, as economic growth has resulted in increases of mercury emissions (e.g. through the burning of fossil fuels and biomass). On the basis of recent estimates, Europe contributed in 2010 around 5% to the global atmospheric mercury emissions, while Southern and Eastern Asia accounted for about half (50%) of the global mercury emissions to air. Given the ability of elemental mercury to travel long distances from the emission source, it is obvious that EU legislation alone cannot protect adequately the EU population and that a speedy and successful implementation of the MC is of paramount importance. Early ratification by the EU and its MS will contribute to an early entry into force of the Convention, complementing the effectiveness of EU legislation in tackling the mercury problem.

While EU legislation covers satisfactorily most aspects of the mercury issue, it cannot address the global dimension of the mercury problem. In fact, while mercury emissions declined in Europe, this has been counterbalanced by increase in emissions in other countries (particularly Southern and Eastern Asia) and as a result, global mercury emissions have remained stable during the last two decades. The international dimension is thus a key element of efforts to decrease exposure of humans and the environment to mercury.

Annex 4B – Major Mercury Pathways

Mercury is released to the environment from many different sources including: mining activities (whether dedicated to mercury or other metals); mercury-containing products (either during their production, use or disposal); industrial processes using mercury intentionally (e.g. in acetaldehyde production where mercury is used as a catalyst or in the chlor-alkali industry, where mercury is used as a cathode) or where mercury is emitted unintentionally (e.g. metal refining, cement kilns, coal combustion, etc.); waste dumps; contaminated sites; incinerators; crematoria and many others. Streets 86 has recently estimated historical mercury emission over all time to 350 000t, assessing that 61% of the emissions occurred after 1850.

It is thus obvious that in addressing the mercury problem, there are various possibilities in intervening at various points of the "mercury cycle".

For the intentional uses of mercury (e.g. in products and processes), measures should seek to reduce or even eliminate mercury use, by encouraging substitution with mercury-free alternatives. Products containing mercury (thermometers, barometers, batteries, electrical switches and many types of electronic equipment) are still widely produced and traded globally, although substitutes and alternatives are currently available for most of them. Mercury-use in products has declined dramatically in the last decade in most developed countries, including Europe. However, this may not be the case in the rest of the world and particularly in developing countries, as substitutes are often more expensive.

The main intentional industrial use of mercury in Europe is in the chlor-alkali industry, which uses an electrolysis cell with mercury serving as the cathode, a process that dates back to the 19th century. While alternative, cost effective mercury-free processes have been developed in the meantime, given the significant investment costs for converting, there are still more than 30 plants in the EU using the mercury process and employing around 7 000t of metallic mercury.

Global elemental mercury consumption in 2005 had been estimated by UNEP 87 at ca. 3800t annually, while the reported figure for EU25 was ca. 490t. In Europe, the chlor-alkali industry is the main consumer with 175t annually, with dental amalgam coming second with 95t/y on average 88 .

Measures to restrict production, supply and trade of mercury can help minimise the intentional use of mercury in products and processes. Within the EU, MAYASA (Miñas de Almadén y Arrayanes S.A.) that had reached a production of 2800t in the 1950s stopped production in 2003. The EU and the USA, two major exporters of mercury have banned exports since 2011 and 2013 respectively. As a result, international supply of mercury has been restricted, which is of particular importance in addressing the ASGM problem, an activity not easy to regulate due to its diffuse character.

The main source of unintentional emissions of mercury to air is the burning of coal. Despite the low concentrations of mercury in coal (usually less than 2mg/kg) given the significant quantities of coal used, in particular for energy production, this source contributes around 25% of the global anthropogenic mercury emissions to air87. Depending on the plant and the type of coal used, substantial reductions of mercury emissions can be achieved with conventional air pollution control devices (primarily intended for other pollutants), while is some cases mercury-specific technologies may prove necessary.

Cement production is another important source of mercury pollution (around 10% of global mercury emissions to air)87 due to mercury content in the fuel and the raw materials used. While there are only traces of mercury in the raw materials, research has shown that in most cases they contribute more to emissions than the fuel.

Mercury is also emitted by almost all metallurgical processes (e.g. during the extraction of copper, zinc or lead), as mercury present both in the coal (fuel source) and in the ore is released during the smelting process.

Other mercury emission sources include chemical industries, contaminated sites, waste incineration facilities and crematoria.

Annex 5 – The Minamata Convention on Mercury

Due to the long range transport properties of mercury, the exposure of people living in the EU, as well as the exposure of the EU's environment, cannot be reduced to an acceptable level through domestic policies alone. Co-ordinated international action is therefore needed to address the mercury problem in a globally effective manner. The EU Mercury Strategy had this in mind when focusing seven of its actions (actions 14 to 20) on supporting and promoting international activities. The EU repeatedly requested the UNEP Governing Council to take a decision on the opening of negotiations on a global legally binding instrument on mercury. The Governing Council of UNEP decided in February 2009 89 to establish an intergovernmental negotiating committee (INC) with the mandate to prepare a global legally binding instrument on mercury. The INC started its work in 2010 and completed it, as planned, in January 2013.

The Convention’s main objective, as stated in Art. 1, is “to protect human health and the environment from anthropogenic emissions and releases of mercury and mercury compounds”. The MC includes provisions to cover all major uses and releases of mercury at a global level, in particular:

to reduce the supply of mercury and enhance the capacity for its environmentally sound storage;

to reduce the demand for mercury in products and processes;

to address artisanal and small-scale gold mining;

to reduce international trade in mercury;

to reduce atmospheric emissions of mercury;

to address mercury-containing waste and the remediation of contaminated sites;

to increase knowledge through awareness-raising and scientific information exchange;

to specify arrangements for capacity-building and technical and financial assistance;

to address compliance.

The EU intended to become a Party to the MC along with its MS and signed the Convention in October 2013 in Japan. In view of its subsequent ratification by the EU, the Commission needs to propose an amendment to EU legislation accordingly.

The reader is referred to the Convention text 90 for a thorough understanding of its implications, however its key provisions are presented in this Annex.

Article 3 – Mercury supply sources and trade

Prohibition of primary mercury mining with a grace period of fifteen years after the date of entry into force of the Convention, for already existing mines, while imposing restrictions on mercury use for this source.

Excess mercury from the decommissioning of chlor-alkali facilities should be disposed of as waste.

Exports are only allowed subject to the prior informed consent of the receiver country, while non-Parties would additionally need to guarantee compliance with certain Convention’s provisions.

Imports from non-Parties are only allowed subject to guarantees that the mercury did not originate from primary mercury mining of from the decommissioning of chlor-alkali facilities.

Article 4 – Mercury-added products

Prohibition of the manufacture, import and export of certain categories of mercury-added products to be implemented by 2020 (possibility for an individual Party to postpone by 5 or exceptionally 10 years).

Measures to phase down the use of dental amalgam (flexibility to select at least two among a list of nine measure proposed).

Measures to discourage the manufacture and distribution of in new mercury-added products.

Article 5 – Manufacturing processes in which mercury or mercury compounds are used

Phase-out of mercury use in chlor-alkali production by 2025 and acetaldehyde production by 2018 (possibility for an individual party to postpone by 5 or exceptionally 10 years).

Restrictions on the use of mercury in vinyl-chloride monomer production.

Restrictions on the use of mercury in sodium/potassium methylate/ethylate production aiming at the phase out as fast as possible and within 10 years of the entry into force of the Convention.

Measures to discourage the development of new facilities using a mercury-based process.

Article 7 – Artisanal and small-scale gold mining

Measures to reduce and where feasible eliminate the use of mercury in/and the emissions of mercury from artisanal and small-scale gold mining (ASGM).

Obligation for Parties with more than insignificant ASGM activities on their territory to develop and implement a national action plan with specific measures to minimise the impact of this activity to mercury pollution and human health.

Article 8 – Emissions

Within five years of entry into force of the treaty, the obligation to apply best available techniques (BAT) and best environmental practices (BEP) to control and, where feasible, reduce emissions, to new point sources in the following categories:

coal-fired power plants;

coal-fired industrial boilers;

smelting and roasting processes used in the production of non-ferrous metals;

waste incineration facilities;

 cement clinker production facilities.

Within ten years of entry into force of the treaty, the obligation to control emissions from existing sources (within the categories indicated above) by employing one or more of the following measures:

a quantified reduction target;

 emission limit values;

BAT and BEP;

a multi-pollutant control strategy delivering co-benefits;

 or other alternatives.

Within five years of entry into force of the Convention, the obligation to establish an inventory of emissions from all sources (within the categories indicated above).

Article 9 – Releases

Obligation to control releases to water and land by employing one or more of the following measures:

release limit values;

BAT and BEP;

a multi-pollutant control strategy delivering co-benefits;

 or other alternatives.

Within five years of entry into force of the Convention, the obligation to establish an inventory of releases from all significant anthropogenic sources.

Article 10 – Environmentally sound interim storage of mercury, other than waste mercury

Obligation to take measures to ensure the environmentally sound interim storage in accordance with guidelines to be adopted by the Conference of the Parties.

Article 11 – Mercury wastes

Measures to ensure that mercury waste is managed in an environmentally sound manner, in accordance with requirements to be adopted by the Conference of the Parties and the relevant guidelines developed under the Basel Convention.

Annex 6 – Current EU Law on Mercury and Mercury Compounds

Current EU law addresses already the use of mercury (hereinafter "mercury" or "Hg") and mercury compounds (hereinafter "mercury compounds" or "Hg compounds") in a comprehensive manner. In particular, besides Regulation (EC) No 1102/2008 91 , several EU instruments contain provisions that regulate the Hg whole life cycle from supply to final disposal as waste. With a view to identifying the regulatory gaps affecting existing EU law vis-à-vis the MC (see Annex 7), this Annex provides a description of the provisions of the EU acquis that are relevant vis-à-vis the scope of application and the issues addressed in this Convention, i.e. mercury supply and trade, the interim storage of mercury and mercury compounds, the use of Hg and Hg compounds in mercury-added products and manufacturing processes and related mercury emissions and releases and the management of mercury waste.

Mercury supply and trade

Whereas the MC prohibits the establishment of new primary mining activities in the territories of the Parties and calls for existing ones to cease within 15 years after the date of entry into force of the Convention for the Party concerned, Regulation (EC) No 1102/2008 (Art. 2(d)) requires, since 15 March 2011, that metallic mercury extracted from cinnabar ore in the EU be disposed of as waste. Such mining activity in the EU is therefore considered as being deprived of any "raison d'être".

Regarding the export from the EU and the import into the EU of Hg, Hg compounds and of products containing Hg and/or Hg compounds (hereinafter "mercury-added products"), several EU instruments can be referred to. More specifically, whilst the MC sets restrictions on the international trade of mercury and of mixtures of mercury with other substances, the EU acquis, including notably Regulations (EC) No 1907/2006 92 , 1102/2008 and 649/2012 93 , regulates already the export and import of Hg, of certain Hg compounds and of specific mercury-added products. 94  

-Concerning exports, Regulations (EC) No 1102/2008 (Art. 1) and 649/2012 (Art. 15(2) and Annex V (Part 2)) ban the export of cosmetic soaps containing mercury, of mercury and of mixtures of mercury with other substances as well as the export of three Hg compounds (cinnabar ore, mercury chloride and mercury oxide), saved when they are exported for research and development, medical or analysis purposes. As to the exports of other Hg compounds, Regulation (EC) No 649/2012 (Art. 7, 8, 14 and Annex I (Parts 1 and 3)) makes them subject to an export notification procedure or, in case when used in pesticides, to a prior informed consent procedure.

-As to imports, Entries 18, 30 and 62 of Annex XVII to Regulation (EC) No 1907/2006 set, respectively, restrictions on the import: (i) of all Hg compounds when intended for some specified uses e.g. for the preservation of wood, (ii) of Hg as constituents of other substances or in mixtures, when destined for supply to the general public and when a given concentration limit is exceeded and (iii) of phenylmercury acetate, propionate, 2-ethyllexanoate, octanoate and neodecanoate with a mercury concentration equal or exceeding 0,01% by weight (as from 10 October 2017).

Entry 18a of Annex XVII to Regulation (EC) No 1907/2006 establishes also a restriction on the import, with some exemptions, of certain mercury-containing measuring devices for industrial, professional and non-professional uses, including inter alia fever thermometers, barometers, manometers and hygrometers.

Interim storage of mercury and mercury compounds

The MC requires that the interim storage of individual stocks exceeding 50t of mercury, of mixtures of mercury with other substances and of six mercury compounds (mercury chloride, oxide, nitrate, sulphate, sulphide and cinnabar) is undertaken in an environmentally-sound manner.

Directive 2012/18/EU 95 on the prevention of major accidents involving, for instance, the storage of dangerous substances such as mercury and on the limitation of their consequences sets relevant requirements. In particular, with a view to ensuring a high level of human health and environmental protection, the paramount objective of Directive 2012/18/EU (Art. 1), operators who store over 50t of Hg and/or Hg compounds must draw up a major-accident prevention policy to be implemented notably by a safety management system that must prescribe the adoption and implementation of procedures and instructions for safe operation (Art. 8(5) and Annex III). In case where an operator stores over 200t of Hg and/or Hg compounds, it must also establish a safety report and emergency plans (Art. 10 and 12).

In addition, operators of industrial installations covered by IED 96 who store mercury and/or mercury compounds have to make sure that storage takes place on the basis of appropriate preventive measures taken against pollution (Art. 11(a)) and without causing "significant pollution" (Art. 11(c)). In this regard, Art. 14(1) and (2) requires that permit conditions be set in such a way as to ensure compliance with the requirements set out in Art 11(a) and (c), including in terms of prevention of emissions to soil and groundwater.

Placing on the (EU) market and use of mercury and mercury compounds as substances

The MC provides that mercury from primary mining can only be used in manufacturing of mercury-added products listed in its Annex A, in accordance with the conditions set out in Art. 4 and in that Annex (e.g. to cease the manufacture, import and export of products listed in Part I of Annex A by 2020, to discourage the distribution in commerce of mercury-added products not covered by any known use prior to the entry into force of the Convention).

Moreover, as stated before, Regulation (EC) No 1102/2008 provides that metallic mercury extracted from cinnabar ore in the EU must be disposed of as waste.

In addition to imports, Entries 18, 30 and 62 of Annex XVII to Regulation (EC) No 1907/2006 restrict also the placing on the (EU) market and the use of: (i) all mercury compounds when intended for some specified uses, e.g. use to preserve wood or to prevent the fouling by micro-organisms, plants and animals of the hulls of boat, of the equipment and appliances used for fish and shellfish farming and of any totally or partly submerged appliances or equipment, (ii) mercury as substances, as constituents of other substances or in mixtures, when intended for supply to the general public and when a given concentration limit is exceeded, and (iii) phenylmercury acetate, propionate, 2-ethyllexanoate, octanoate and neodecanoate with a mercury concentration equal or exceeding 0,01% by weight (as from 10 October 2017). 97  

Placing on the (EU) market and use of mercury-added products

The MC provides that the manufacture, import and export of mercury-added products listed in its Annex A (Part I), including batteries, switches and relays, compact fluorescent lamps (CFLs), linear fluorescent lamps (LFLs), high pressure mercury vapour lamps (HPMV), cold cathode fluorescent and external electrode fluorescent lamps (CCFLs and EEFLs), cosmetics, pesticides, biocides, topical antiseptics and certain non-electronic measuring devices, must cease as from 2020. All relevant mercury-added products are already addressed in the EU acquis. 

Directive 2011/65/EU (Art. 4(1) and (2) and Annexes II, III and IV) 98 sets maximum mercury concentrations in compliance with those established in above-mentioned Annex A (Part I) and which must not to be exceeded notably in relevant switches and relays, CFLs, LFLs, CCFLs and EEFLs. Those restrictions do not only apply to the first placing on the (EU) market, but also to their manufacture (when placed on the EU market) and import into the EU market (Art. 7(a) and 9(a)).

Directive 2006/66/EC (Art. 4) 99  prohibits the placing on the (EU) market and the import of batteries, button cells and accumulators containing more than 0,0005% of mercury by weight.

Alongside above-mentioned export ban on cosmetic soaps containing mercury as set out in Regulation (EC) No 649/2012, Regulation (EC) No 1223/2009 (Art. 14(a) and (d)) and Annexes II and V) 100  bans the placing on the (EU) market of cosmetic products containing mercury and/or mercury compounds, save in respect of two eye products that can be used provided that they contain a mercury and mercury compounds concentration not exceeding 0,007%.

Concerning pesticides, Regulation (EC) No 396/2005 (Art. 18(a) and Annex II) 101  provides that fruits and nuts can only be placed on the (EU) market if they contain a maximum residue level of mercury compounds not exceeding 0,01 mg/kg. In addition, it results from Regulation (EC) No 1107/2009 102 read in combination with Regulation (EU) No 540/2011 103 that Hg and its compounds, as non-approved active substances to date for plant protection products ("PPPs"), cannot be placed in the EU market. Regarding biocides, 104 alike PPPs, it derives from Regulation (EC) No 528/2012/EC that the placing on the EU market and the use of biocidal products containing Hg and Hg compounds have not been approved to date. Concerning topical antiseptics, similarly to PPPs and biocides, it results from the implementation of Directive 2001/83/EC (Art. 6(1)) 105  read in combination with Regulation (EC) No 726/2004 (Art. 3) 106 that no mercury- and mercury compounds-containing antiseptics have so far been authorised to be placed on the EU market.

Entries 18a and 62 of Annex XVII to Regulation (EC) No 1907/2006 establish also a restriction on the placing on the EU market, with some exemptions, of certain mercury-containing measuring devices for industrial, professional and non-professional uses, including inter alia fever thermometers, barometers, manometers and hygrometers and, as from 10 October 2017, of articles or any parts thereof containing one or more of the five defined phenylmercury compounds if the mercury concentration is equal or greater than 0,01% by weight.

The MC provides also that Parties must phase down the use of dental amalgam and, for doing so, take at least two of the measures listed in its Annex A (Part II). One can argue that several of these measures lie primarily within the competence of the MS, including to set national objectives on the prevention of dental carries, to encourage professional organisations and dental schools to educate and train dental professionals and students to use mercury-free dental restoration alternatives and to discourage insurance policies and programmes that favour the dental amalgam. Other measures, including the promotion of the use of best environmental practices in dental facilities to reduce emissions of mercury and mercury compounds to water and land may be considered as measures whereby EU action would have an added-value particularly in terms of establishing a level-playing field among dentists.

The EU acquis contains several provisions that address indirectly the use of dental amalgam in dental facilities and the potential adverse environmental impacts caused by the emissions of mercury residues. As explained in further details below, since mercury qualifies under WFD 107 as a "priority hazardous substance", MS must ensure that mercury emissions generated by dental facilities using dental amalgam do not lead to mercury concentrations in surface water bodies exceeding the environmental quality standard – between 0,05 and 0,07 µg/l – as set out in Directive 2008/105/EC 108 . Regarding EU waste legislation, Art. 13 of Directive 2008/98/EC 109 requires MS to ensure that waste, including mercury waste from dental facilities, be handled without impacting human health and the environment.

Use of mercury and mercury compounds in manufacturing processes

The MC provides that the use of Hg or Hg compounds in the production of acetaldehyde in which mercury or mercury compounds are used as catalyst and of chlor-alkali must cease respectively in 2018 and 2025 and that measures must be undertaken to address emissions of mercury to air and water.

The case of the production of chlor-alkali is addressed in EU law under the IED read in combination with Commission Implementation Decision 2013/732 110 , which bans Hg use for producing chlor-alkali in new installations while allowing it in existing ones until December 2017. Regarding mercury emissions generated by existing chlor-alkali installations, the IED (Art. 11 and 14(1) and (2)) requests the national competent authorities to set out in relevant permits or via general binding rules mercury control measures, including emission limit values (ELVs) or equivalent parameters or technical measures ensuring an equivalent level of environmental protection with a view notably to preventing any significant pollution and risks of non-compliance with mercury concentrations limits established in particular in Directives 2004/107/EC 111 (mercury target value for air quality set at 5 mg/m3) and 2008/105/EC (mercury environmental quality standard for surface water quality set at 0,05-0,07 µg/l).

The MC establishes also mercury and mercury compounds-related production conditions applicable to three other manufacturing processes, including the production (i) of vinyl chloride monomer (hereinafter, "VCM"), (ii) of sodium or potassium methylate or ethylate and (iii) of polyurethane using mercury containing catalysts (hereinafter "polyurethane"). These conditions relate in particular to the duty to reduce the use of Hg, including mercury from primary mining and Hg emissions into air and water.

As an activity covered by the IED, operators of VCM production installations and national competent authorities must ensure that such installations operate on the basis of pollution prevention measures, including e.g. ELVs with a view to avoiding significant pollution (Art. 11 and 14(1) and (2)). Regarding polyurethane production, as highlighted above, Entry 62 of Annex XVII to REACH restricts, as from 10 October 2017, the placing on the EU market and use of the most common Hg compounds used for this type of production – phenylmercury acetate, propionate, 2-ethyllexanoate, octanoate and neodecanoate – with a mercury concentration equal or exceeding 0,01% by weight.

Emissions of mercury and mercury compounds to air, water and land

Art. 8 of the MC requests Parties to control and, where feasible, to reduce emissions into the air of Hg and of Hg compounds from the point sources falling within one of the five source categories listed in its Annex D (coal-fired power plants, industrial boilers, smelting and roasting processes used in the production of lead, zinc, copper and industrial gold, waste incineration and cement clinker production facilities). For doing so, the MC requires new installations to operate with the BAT and best environmental practice and existing installations to operate on the basis of ELVs and/or the BAT and/or other measures aimed at reducing emissions. The MC specifies that a Party may choose to apply these obligations only on a given set of installations within each source category, provided that the installations concerned account altogether for at least 75% of Hg and Hg compounds emissions generated by the relevant source category. Regarding emissions of mercury and mercury compounds to water and land, Art. 9 of the MC requires that those emitted from point sources that are not addressed in other provisions of the Convention be controlled and, if feasible, reduced via ELVs and/or the use of the BAT and/or alternative measures. At last, the MC calls for Parties to establish an inventory of Hg emissions to air, water and land from all concerned point sources.

EU law addresses already Hg and Hg compounds air emissions from the relevant installations as all source categories listed in Annex D of the MC fall within the scope of application of the IED. In this respect, whilst this Directive covers installations that reach a given threshold (e.g. combustion of fuels in installations with a total rated thermal input of 50 MW or more), it still applies to over 55 000 industrial installations, which account for the most polluting in the EU. Hence, the above-mentioned 75% level is met with regard to each concerned source category. Regarding operating conditions, the IED, read together with Commission Implementing Decision 2013/163/EU 112 and Directive 2004/107/EC, sets requirements that meet those set out in Art. 8 of the MC:

-    As a fundamental principle of action, all new and existing IED installations must make use of the BAT and operate according to BAT-based permit conditions, which must ensure that all appropriate preventive measures are taken against pollution and that "significant (air) pollution" is avoided (Art. 11(a), (b) and (c) and 14(1)(chapeau)).

-    To this effect, the competent authorities must include in the permits or via general binding rules ELVs applicable to mercury emissions into the air and/or equivalent parameters or technical measures ensuring an equivalent level of environmental protection (Art. 14(1)(a) and (2) and Annex II (AIR (5) IED).

Within this context, regarding waste incinerators and co-incinerators, the competent authorities must make sure that the ELVs that are set for Hg and Hg compounds comply with those established in Annex VI of the IED, i.e. 0,05 mg/m3. In the same vein, those authorities must ensure, as far as installations producing cement clinker are concerned, that ELVs they set comply with the BAT-associated emission level established in Commission Implementing Decision 2013/163/EU, i.e. emissions of mercury from the flue-gases of kiln firing processes must not exceed 0,05 mg/Nm3.

-    Such ELVs and/or equivalent parameters or technical measures ensuring an equivalent level of environmental protection may even have to be made stricter when competent authorities are of the opinion that this is necessary to ensure compliance or contribute to compliance with above-mentioned 5 mg/m3 mercury target value for ambient air established in Directive 2004/107/EC (Art. 18 IED).

As to the control and reduction of Hg and Hg compounds emissions to water and land, the IED, read in combination with the WFD and 2008/105/EC, is also the key applicable EU instrument that transposes Art. 9 of the MC, owning to its wide scope of application. In particular, requirements similar to those that are concerned with air emissions apply, including the duty to operate installations with BAT and according to BAT-based permit conditions or general binding rules with a view to avoiding "significant (water and soil) pollution" (Art. 11(a), (b) and (c) and 14(1)(chapeau)). Hence, the competent authorities must request from operators the implementation of appropriate requirements ensuring the protection of the soil (Art. 14(1)(b) and (e) IED) and set ELVs applicable to Hg and Hg compounds emissions into water and/or equivalent parameters or technical measures ensuring an equivalent level of environmental protection (Art. 14(1)(a) and (2) and Annex II (AIR (5) IED).

In establishing such ELVs, those authorities must take full account of the mercury-related requirements established in the WFD and in Directive 2008/105/EC on water protection and quality. More particularly, as "priority hazardous substances" (Annex X (21) WFD), MS must take appropriate measures that ensure the ceasing or phasing out of emissions, discharges and losses of Hg and Hg compounds into surface waters within 20 years at the latest (Art. 4(1)(a)(iv), 10, 11(3)(g) and (k), 16(6), (7) and (8) WFD and Art. 13 Directive 2008/105/EC). In the meantime, MS have to make sure that the concentration of Hg and Hg compounds in surface water does not exceed 0,07 µg/l (0,05 µ/l on annual average) or 20 µg/kg for Hg and Hg compound concentrations in sediment and/or biota (Art. 3(1) and (2)(a) and Annex I Directive 2008/105/EC).

EU law addresses also the obligation to establish and maintain an inventory of Hg and Hg compound emissions to air, water and land from all concerned point sources. In accordance with Regulation (EC) No 166/2006, operators of installations covered by the source categories listed in Annex D of the Minamata and that met a certain capacity threshold must report annually to their competent authorities emissions of Hg and Hg compounds to air (as from emissions exceeding 10 kg/year), water and land (as from emissions exceeding 1 kg/year). In addition, Directive 2008/105/EC requires MS to establish and regularly update an inventory of all emissions of Hg and Hg compounds to surface waters (Art. 5).

Management of mercury and mercury compounds as waste

The MC requires that mercury waste, i.e. substances or objects consisting of or containing or contaminated with Hg and Hg compounds in a quantity above relevant thresholds (to be defined by the Conference of the Parties) be managed in an environmental sound manner and, if this is the case, be recovered, recycled, reclaimed or re-used but only for a used allowed under the Convention. It calls also for mercury waste not to be transported from one country to another, save for environmentally sound disposal. The MC specifies that the definitions set out in the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal apply to mercury wastes.

EU law addresses already the management of mercury waste in accordance with the requirements set out in Art. 11 of the MC. Regarding the definition of mercury waste, it results from Decision 2000/532/EC 113 that substances or objects consisting of or containing or contaminated with Hg and Hg compounds qualify as "hazardous waste" under EU waste law. In addition, as Party to the above-mentioned Basel Convention, the EU has transposed the relevant definitions in the EU acquis, including via Directive 2008/98/EC 114 and Regulation (EC) No 1013/2006 115 . Concerning the management of mercury waste, Art. 13 of Directive 2008/98/EC sets the general principle and obligation according to which waste must be handled without endangering human health and without harming the environment, i.e. without risk to water, soil, plants or animals. Within this context, Regulation (EC) No 1102/2008 (Art. 2) specifies that metallic mercury originating from the four main mercury waste sources, i.e. metallic mercury that is no longer used in the EU chlor-alkali industry, that is gained from the cleaning of natural gas and from non-ferrous mining and smelting operations and that is extracted from cinnabar ore cannot be recovered, recycled, reclaimed or re-used, but must be disposed of. It adds (Art. 3) that MS are allowed to temporarily store for more than one year metallic mercury waste in underground (adapted salt mines, deep underground hard rock formations) and above-ground (dedicated and equipped) facilities. In this respect, Directive 1999/31/EC (Annexes I, II and III), as amended by Directive 2011/97/EU, sets specific requirements for the temporary storage for more than one year of metallic mercury with a view to ensuring that they are landfilled without causing any harm to human health nor to the environment (e.g. duty to store metallic mercury in corrosion, shock-resistant and liquid tight containers, to make use of storage sites that are provided with engineered or natural barriers that are adequate to protect the environment against mercury emissions). Concerning the international transport of mercury waste, the EU, as Party to the Basel Convention, complies with the obligation not to transport internationally such waste unless this is done for final disposal according to the above-mentioned general principle of no harm to be caused to human health and to the environment.

Annex 7 – Regulatory Gap Analysis of EU Law

The Commission's Proposal for an European Parliament and Council Regulation on restrictions concerning trade and certain uses of mercury, and repealing Regulation (EC) No 1102/2008 116 (hereinafter, “Commission’s Proposal”) aims at the full alignment of EU law with the MC and enabling the EU, once adopted, to ratify it.

The Commission has taken full account of the mercury provisions already set out in EU law, including in Regulations (EC) No 1907/2006 117  and 649/2012 118  and in Directives 2010/75/EC 119  and 2012/18/EU 120 . The objective is to prevent double regulation and inconsistencies across the acquis and to complement existing EU law requirements in a manner that ensures clarity, legal certainty and the achievement of all legally-binding requirements set out in the MC. For doing so, the Commission has carried out a regulatory gap analysis of EU law, which has identified two main types of MC provisions. The first category addressed in Section 7.1 consists of MC provisions that do not require transposition as they are concerned e.g. with the work to be carried out by the Conference of the Parties to the Convention and those that do not set legally binding obligations upon Parties and which have not been considered by the Commission as needed to meet the objectives of the Convention. The second category addressed in Section 7.2 is concerned with provisions of the MC that require transposition and which have already been transposed fully or partially into EU law or which have not yet been subject to transposition into the EU acquis.

7.1    The provisions of the MC that do not require transposition

7.1.1    MC provisions that do not have to be transposed by Parties

Art. 1 121 to the MC does not have to be transposed as it simply sets out the general objective being pursued. In addition, Art. 3(12), 8(8, 9, 10), 11(4), 15, 22, 23 and 24 to the MC do not need neither to be transposed as they are concerned with the tasks of the Convention's Conference of the Parties, of its Secretariat and of the Implementation and Compliance Committee in terms of evaluation of the effectiveness of Minamata, of the adoption of guidance and guidelines and of the cooperation with international organisations. The same conclusion has been drawn regarding Art. 13 to 19 and 25 to 35 and Annex E to the MC, which do not require transposition since they concern financial resources and mechanism, capacity-building, technical assistance and technology transfer, health aspects, information exchange, public awareness and education research, development and monitoring, the settlement of disputes, the adoption and entry into force of amendments to the Convention and its annexes and notably on the signature, ratification, acceptance, approval, accession and entry into force of Minamata.

7.1.2    MC non-legally binding provisions whose transposition is not needed to meet its objectives and requirements

The regulatory gap analysis of EU law has also identified the Minamata provisions that do not contain legally-binding obligations, but voluntary options ("may", "are encouraged", "endeavour") and whose transposition has not been considered as necessary to ensure compliance of EU law with the Convention. 122  

The provisions concerned include Art. 3(7, 9, 10), 4(2, 7), 5(9), 6, 7(4), 8(3), 11(5), 12 and 20 to the MC on the ability to rely upon a general notification by a mercury importing Party, to implement strategies to address mercury-added products others than the one set out in Art. 4(1), to submit to the Minamata Secretariat proposals for listing new mercury-added products and/or new manufacturing processes to Annexes A and/or B, to apply Annexes A and B at a later stage, to cooperate on artisanal and small-scale gold mining and mercury waste management, to set a plan on the measures to be taken to control air emissions of mercury and mercury compounds, to address contaminated sites and to draw up a Minamata implementation plan.

7.2.    The provisions of the MC that require transposition

The second phase of the regulatory gap analysis has focused on the MC provisions whose transposition into EU law is needed to ensure the meeting of the objectives and of requirements of the Convention.

7.2.1    MC provisions already transposed into EU law

As specified in Annex 6 of this document and in the table in Section 7.2.3, a significant range of the MC provisions are already fully covered by the EU acquis, including Regulations (EC) No 1102/2008 123 , 396/2005 124 and 1223/2009 125  and Directives 2006/66/EC 126  and 2011/65/EU 127 . It concerns Art. 3(3), (4)(1st sentence), (5)(a, b) and (6), 4(5), 5(5)(a, b), 8, 9, 10 and 11, as well as Annex D of the Convention regarding notably the production of mercury from primary mining, the identification of significant individual stocks of mercury and mercury compounds, the disposal of excess mercury from the chlor-alkali sector, the export of mercury from the EU, the prevention of the incorporation of mercury-added products into assembled products, the control and reduction of emissions and releases of mercury and mercury compounds into the air, water and land, the interim storage of mercury and mercury compounds, the handling of mercury waste and the provision to the public of relevant information.

7.2.2    MC provisions not or partially transposed into EU law

The regulatory gap analysis has concluded that the remaining Minamata provisions are either not transposed into EU law or only partially, which therefore requires regulatory action by the EU to ensure full compliance with the Convention. In addition to Art. 4(6) and 5(7), the concerned Minamata provisions are Art. 3(4)(2nd sentence) and (8), 4(1 and 3) (read in combination with Annex A) and (6), 5(2, 3, 6, 7) (read in combination with Annex B) and 7 on the use of mercury from primary mining, the import of mercury into the EU, the 2020 ban on the manufacture, import and export of mercury-added products listed in Annex A (Part I), the 2025 ban on the use of mercury and mercury compounds in the acetaldehyde production sector, the operating conditions relating to mercury use and emissions of the three manufacturing processes listed in Annex B (Part II), the obligation not to allow the use of mercury and mercury compounds by new facilities operating one the manufacturing processes listed in Annex B (Part II) and on artisanal and small-scale gold mining.

In addition, the Commission considers it appropriate to provide for its ability to adopt Implementing and Delegated Acts to transpose and implement the Decisions that may be adopted by the Conference of the Parties in accordance with Art. 3(13), 4(8-9), 5(10-11), 10(3), 11(2)(c) and (3)(a) of the Convention and which concern the possible amendment of Annexes A and B, the establishment of requirements on the interim storage of mercury and mercury compounds and on the management of mercury waste, the setting up of thresholds defining whether contaminated waste with mercury or mercury compounds are covered by Minamata.

7.2.3    Conclusions of the regulatory gap analysis of EU law vis-à-vis Minamata

Six regulatory gaps have been identified, which require EU transposing provisions. Those gaps are concerned with the following issues:

–Gap 1:    Import restrictions for metallic mercury from non-Parties

–Gap 2:    Export ban of certain mercury-added products

–Gap 3:    Mercury use in new products and processes

–Gap 4:    Mercury use in certain manufacturing processes

–Gap 5:    Mercury use in Artisanal and Small-Scale Gold Mining (ASGM)

–Gap 6:    Restrictions on the use of dental amalgam

Each time one of those regulatory gaps is addressed in the below table, a reference to the gap concerned is included. The below table provides a description of the gaps, including when they are concerned with several items.

Annex 8 – Assessment of the Mercury Export Ban Regulation

The Mercury Export Ban Regulation has been adopted in 2010 and in 2015 a limited assessment has been undertaken on its achievements and functioning so far. The assessment was limited due to the fact that the Regulation had a relatively short time period for implementation (2011-2015) and therefore not all impacts of the ban could have materialised so far. Moreover, the resulting evidence base is also limited. As a consequence a full-fledged evaluation wasn't feasible at this moment in time and the assessment concentrated on the aspects of effectiveness, efficiency and coherence and has not assessed the evaluation criteria relevance and EU added value in detail. Below the key findings are summarised. Detailed information is available in the final study report 137 .

Study methodology

For the assessment of the effectiveness and efficiency of the Mercury Export Ban Regulation, information from MS and relevant industry was collected using two questionnaires . Furthermore, Member State replies to the questionnaire undertaken as part of an assessment of the EU implementation of the MC have been included. The information collected by the questionnaires was combined with data from industry reporting under the Mercury Export Ban Regulation and international trade statistics from Eurostat and UN Comtrade, as well as export statistics reported as part of the implementation of the EU Waste Shipment Regulation and the EU PIC Regulation.

Effectiveness in reducing the global mercury supply

The Mercury Export Ban Regulation significantly reduces the global mercury supply. The total amount of mercury prevented from reaching the global market is estimated at approximately 650 t/y for at least the next ten years, corresponding to approximately 20% of the global mercury supply. The total prevented export of surplus mercury accumulated in the chlor-alkali sector is estimated at approximately 8000 t, as well as any prevented recovery of mercury from gas purification and non-ferrous mining and smelting operations (in total 33 t were reported as sent to storage during 2011-2013). Available data indicates that the decrease in supply may not have been replaced by increased mine production outside the EU, but the export of mercury from Switzerland has increased by an average of 100 t/y. The global prices of mercury have increased threefold over a few years, demonstrating the consequences of the decrease in the supply from the EU and later the USA (an export ban of mercury from the USA has been in effect since January 1, 2013).

The objective of preventing by-product mercury from gas purification and nonferrous mining and smelting to enter the global market has not been fully met, as the Mercury Export Ban Regulation does not prevent waste products from being exported for recovery of the mercury outside the EU. Waste statistics indicate that this takes place to some extent. Introduction of a ban on export of the waste products concerned could potentially improve the effectiveness of the Mercury Export Ban Regulation.

Only one incident of illegal export of mercury was reported in the stakeholder responses and there is an investigation related to infringement ongoing. Furthermore, the analysis of export data compared to import data of receiving countries indicate a few discrepancies.

Effectiveness in ensuring safe storage of surplus mercury within the EU

The responses to the study questionnaires indicate that the objective of the Mercury Export Ban Regulation to ensure safe storage of surplus mercury within the EU has still not been fully met. In 2013, the quantity reported as sent to off-site storage from the chlor-alkali industry was 655 t (about the same magnitude as the average prevented export), but it is not known whether the mercury was sent for temporary or permanent storage.

In general, representatives of the chlor-alkali industry consider storage capacities in the EU, both for temporary and permanent storage of mercury considered waste, as insufficient. Council Directive 2011/97/EU 138 foresees only temporary storage criteria 139 for metallic mercury considered as waste. In 2016 there may be stocks of metallic mercury considered as waste that will have reached the 5 years temporary storage limit. According to the stakeholders, specific conditions and criteria for environmentally safe permanent storage of metallic mercury have not been defined yet, even if this is required under the Mercury Export Ban Regulation. Due to the lack of clear definition of conditions for permanent storage no market has been created so far for solidifying and permanently storing excess mercury, which also negatively affected the mercury recycling companies.

Efficiency

The main cost elements for the implementation of the Mercury Export Ban Regulation are the costs of storage of mercury from the chlor-alkali sector and the lost revenues from sale and export of mercury from the sector. These had been analysed in the relevant impact assessment 140 when the Mercury Export Ban legislation was proposed. This study could not identify any ways for further reducing the costs caused by the restrictions on export.

The costs to the chlor-alkali industry of storage of surplus mercury is estimated at an average of 0,6-2,0 million EUR/y, while the lost revenue from sale of mercury is estimated at 3-5 million EUR/y. The industry stakeholders' responses indicate that they consider the costs of disposal ranking first and the lost revenue second. Some stakeholders pointed at the lack of common criteria for environmentally safe permanent storage of metallic mercury as a cause of disproportionate costs.

As per the requirements of Art. 3(3) of the Mercury Export Ban Regulation, criteria should be laid down in the Landfill Directive for the storage of metallic (liquid) mercury. Such criteria were agreed for temporary storage only as there was no majority of MS in favour of criteria for final storage. Until now mercury was disposed after solidification and no additional cost were incurred due to the lack of criteria for permanent storage. However, if mercury would need to be stored in liquid form, temporary storage would be more expensive than permanent storage in the long run. Therefore, introduction of clear criteria for permanent storage would be expected to improve the effectiveness (reducing costs for temporary storage) and efficiency of the Mercury Export Ban Regulation.

Following technological developments in two solidification processes of metallic mercury a solution now exists in Germany for its disposal and a further solution is expected in Spain. Furthermore, a review of recent studies has shown that permanent storage of metallic mercury in deep soft rock formations, such as salt mines, is also be environmentally sound subject to specific technical criteria that should now be adopted.

The most affected industry group is that of recyclers and exporters of mercury. The total lost revenues are estimated at an average of 5-7 million EUR/y i.e. of the same size as the lost revenue to the chlor-alkali sector from sale of mercury to the recyclers and exporters.

Compared to the direct costs, the administrative costs and costs for implementation and enforcement are estimated to be relatively small. MS estimated the time needed for the implementation of the Mercury Export Ban Regulation at, on average, one man-week per year per MS. It should be noted that much of the administration and enforcement is already done as part of the general procedures for export of hazardous substances and hazardous waste. Most stakeholders in the chlor-alkali industry stated that the administrative burden from the implementation of the Mercury Export Ban Regulation was small compared to the total administrative burden of the industry and estimated the time needed at, on average, of approximately one man-week per year per company. The responding recyclers indicated that the administrative burden from the implementation of the Mercury Export Ban Regulation was significant and estimated that, on average, more than two man-weeks per year per company was needed for administration.

The total benefits of preventing the 650 t/y in reaching the global mercury market cannot be estimated. In order to have a rough idea of the possible benefits an illustrative example can be given: assuming that the reduced export of mercury from the EU would result in a 10 % decrease in the expected impacts from lost IQ due to ingestion and inhalation of mercury (just one of the environmental and health impacts of mercury), and using available estimates of the costs of mercury impacts, the total benefits can be estimated to be at least 400 million EUR/y and more likely significantly higher. This indicates strongly that the mercury export reductions achieved with the Mercury Export Ban Regulation have been efficient.

Coherence

The Waste Shipment Regulation, the PIC Regulation and Council Directive 2011/97/EU amending the Landfill Directive (Directive 1999/31/EC) are all important instruments for the implementation and enforcement of the Mercury Export Ban Regulation. According to the MS' and stakeholders' feedback, overlaps or interfaces of the Mercury Export Ban Regulation exist with these instruments. The responses did, however, not specify any overlaps or contradictions with other EU legislation, and possible overlaps, e.g. in the reporting requirements, have not been identified.

The REACH Regulation restricts the manufacture, placing on the market and use of mercury and/or mercury compounds, as substance or in mixtures, or in articles containing them (Entries 18, 18a, 30 and 62 of Annex XVII to the REACH Regulation). Entry 62 restricts the manufacture, use and placing on the market of five phenylmercury compounds after 10 October 2017. As manufacture in the EU is restricted, in practice export will be restricted as well (apart from re-export). Entry 18 (restricting the placing on the market and use of mercury compounds) and entry 18a (restricting the placing on the market of various measuring devices containing mercury) do not restrict the manufacture and export of those compounds and articles. The objective of the restrictions is the protection of humans and the environment against mercury, and it seems to be incoherent with the objectives of the REACH Regulation and the Mercury Export Ban Regulation that these mercury compounds and articles can be exported and result in exposure of humans outside the EU and the global environment. In the context of the Mercury Export Ban Regulation, it is of particular significance that measuring devices with metallic mercury, both new and as waste, can be exported from the EU and thereby contribute to the global mercury supply.

Appendix 8.1 – Member State responses

A questionnaire focusing on the impacts of the Mercury Export Ban Regulation and elaborated for the sole purpose of this study was sent to all MS in order to draw conclusions on its effectiveness and efficiency, and to get a more complete picture on any exports of mercury. This appendix provides a summary of the responses.

1.Which countries responded to the survey?

17 MS have responded to the survey.

2.Statistical data on exports of mercury and mercury compounds

2.1 Data on exports of mercury and mercury compounds addressed under Regulation (EU) No 649/2012 (former: Regulation 689/2008)

We extracted the data related to exports of mercury compounds for the period 2011 to 2013 from the reports your country sent to the Commission pursuant to Art. 10 of Regulation (EU) No 649/2012. In case you have any additional data or information regarding exports of mercury or mercury compounds could you please provide them (you can also provide additional data as attachment)?

The majority of the responding countries did not provide any further information regarding exports of mercury or mercury compounds. Five countries included additional information, however mostly of rather general nature and referring to information already submitted. Bulgaria accentuated that no mercury has been exported from the country since 2011, and that there are no facilities or activities which might result in the generation of mercury as a product or by-product. Two countries (IE, NL) referred to the information already submitted in the context of their reporting obligations, whereas Austria pointed out that there are regular notifications by exporters concerning Art. 2 paragraph 3* of Regulation (EU) No. 649/2012. The United Kingdom stated that 2014 tonnages are not yet available.

2.2    Data on exports of metallic mercury considered as waste

According to Article 5 of Regulation 1102/2008 exporters with activities referred to in Article 2 (concerning specified mercury wastes) have to report volumes, originating country and destination country of metallic mercury considered as waste that is traded cross-border within the Community (an issue that was covered in the previous mercury questionnaire). Do you, in addition, have data on exports of metallic mercury considered as waste, which is exported outside the EU?

Only the United Kingdom provided further information on metallic mercury classified as waste being exported out of the EU. It indicated that in 2012, 135.1 tonnes and in 2011, 210.5 tonnes of waste containing metallic mercury were shipped to the United States. It was emphasized that these tonnages were for the total waste and did not necessarily equate to the tonnage of mercury.

2.3    Data on exports of waste containing mercury as required in the Basel Convention

We extracted the data related to exports of waste containing mercury reported by your country pursuant to Article 51(2) and Annex IX of Regulation 1013/2006 from the CIRCA webpage for the time period 2010 to 2012. In case you have any additional/newer data or information regarding exports of mercury or mercury compounds could you please provide them (you can also provide additional/newer data as attachment)?

About one third of MS responses to the questionnaire contained additional information regarding exports of mercury compounds under the Basel Convention.

Belgium indicated that exports of mercury containing waste from chlor-alkali installations in the Flemish region to other chlor-alkali plants and to DE for disposal took place and in the latter case will continue to take place in the future. Both Bulgaria and Hungary included data on mercury containing fluorescent tubes shipped to Germany and Romania. Moreover Finland, Germany and Ireland added information on other mercury-containing waste categories shipped from the respective country. All additional information provided refers to waste exported to other EU MS.

3.Complementary questions regarding the efficiency and effectiveness of Regulation 1102/2008

3.1 Has any illegal export of mercury and mercury compounds been observed?

The vast majority of the respondents have not observed any illegal exports of mercury or mercury compounds. The two MS reporting such cases (AT, DE) both referred to illegal shipments of mercury from Dela GmbH in Germany to companies in Switzerland, the Netherlands and Greece between 2011 and 2014.

3.2    Have you experienced that the exemptions for research and development, medical and analytical purposes have acted as a loophole for actual exports of regulated mercury and mercury compounds? 

So far, none of the MS have experienced that exemptions for research and development, medical and analytical purposes granted by the Mercury Export Ban Regulation served as loopholes for any actual exports of regulated mercury and mercury compounds. However, the Belgian response included recommendations on a supplementary obligation in case of an application for export for the uses exempted by the export ban for quantities below 10 kg per year and exporter, namely a ‘declaration of end-use’ required from the importer. For further information on these recommendations please refer to question 10 of this appendix.

3.3    Have you experienced that the allowed export of mercury and compounds (other than cinnabar ore, mercury (I) chloride, mercury (II) oxide and mixtures with at least 95 % mercury) has acted as loophole for actual exports of regulated mercury and mercury compounds?

So far, none of the MS have witnessed that the allowed export of mercury compounds has served as a loophole for the export of restricted mercury compounds. Again, Belgium included a comment indicating that no data on this issue is available and that there are no actual effective means to prove an intention to circumvent the export obligations (i.e. via transformation or mixture). Nonetheless the exclusion of mixtures containing less than 95 % mercury is regarded not proportionate and an exemption for mixtures with contents up to 5% of mercury is proposed instead. Moreover it is highlighted that there was no PIC specific entry for ‘mixtures with at least 95 % mercury’ until 2014, meaning that it is not clear, which code was used by industry before that time.

3.4    Have you experienced other loopholes regarding the exports of mercury and mercury compounds?

None of the responding MS has actually experienced any other loopholes for exports of mercury and mercury compounds in practice. However, Finland ticked ‘Yes’ in the questionnaire and indicated that for them a potential loophole in theory could be the export of mercury containing sludge. It was pointed out that operators could simply not purify the residues from non-ferrous mining and smelting operations to gain metallic mercury for disposal but to receive mercury containing sludge instead which might be exported as waste and could possibly end up on the market. Belgium justified its abstention with a lack of information on this point.

3.5. In case of illegal export activities, are any penalties foreseen in your national legislation (relating to the Mercury Export Ban Regulation's Article 7)?

   If yes, please specify the kind (and extent) of penalties foreseen.

More than half of the respondents indicated that penalties were foreseen in their national legislation for illegal export activities, including fines and imprisonment of different extents. Two countries (HU, MT) have no penalties foreseen, whereas Slovakia indicated that there were no penalties in direct relation with Art. 7 of the Regulation, but that other legislation covered the prosecution of threats or damages to human health and the environment. The Spanish response contained a reference to the Spanish Organic Law 12/1995 applying to the substances for which export has been banned by Regulations (EC) No 1102/2008 and No 649/2012. The penalties, if described, include fines from 1,500 up to 50,000 Euros or imprisonment from one month up to two years.

3.5.1 What kind of monitoring arrangements are established to ensure that illegal exports and storages are detected?