(1)

Mercury releases are recognised as a global threat that warrants action at local, regional, national and global level.

(2)

In accordance with the Communication from the Commission to the Council and the European Parliament entitled ‘Community Strategy Concerning Mercury’, the Council conclusions of 24 June 2005 and the European Parliament's resolution of 14 March 2006 (3) on the aforementioned strategy, it is necessary to reduce the risk of exposure to mercury for humans and the environment.

(3)

Measures taken at Community level must be seen as part of a global effort to reduce the risk of exposure to mercury, in particular in the framework of the Mercury Programme under the United Nations Environment Programme.

(4)

Environmental and social problems arise from the closure of mercury mines in the Community. The support of projects and other initiatives from the available funding mechanism should continue in order to allow the areas affected to find viable solutions for local environment, employment and economic activities.

(5)

The export of metallic mercury, cinnabar ore, mercury (I) chloride, mercury (II) oxide and mixtures of metallic mercury with other substances, including alloys of mercury, with a mercury concentration of at least 95 % weight by weight from the Community should be banned in order to significantly reduce the global mercury supply.

(6)

The export ban will result in considerable amounts of surplus mercury in the Community that should be prevented from re-entering the market. Therefore, the safe storage within the Community of this mercury should be ensured.

(7)

In order to provide for possibilities of safe storage of metallic mercury that is considered as waste, it is appropriate to derogate from Article 5(3)(a) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (4) for certain types of landfill, and to declare the criteria set out in section 2.4 of the Annex to Council Decision 2003/33/EC of 19 December 2002 establishing criteria and procedures for the acceptance of waste at landfills pursuant to Article 16 of and Annex II to Directive 1999/31/EC (5) inapplicable for retrievable temporary storage of metallic mercury for more than one year in above-ground facilities dedicated to and equipped for this purpose.

(8)

The other provisions of Directive 1999/31/EC should apply to all storage facilities for metallic mercury that is considered as waste. This includes the requirement, set out in Article 8(a)(iv) of that Directive, that the applicant for a permit make adequate provision, by way of a financial security or any other equivalent, to ensure that the obligations (including after-care provision) arising under the permit are discharged and that the closure procedures are followed. Furthermore, Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (6) applies to such storage facilities.

(9)

For temporary storage of metallic mercury for more than one year in above-ground facilities dedicated to and equipped for this purpose, Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (7) should apply.

(10)

This Regulation should be without prejudice to Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (8). Nevertheless, in order to allow appropriate disposal of metallic mercury in the Community, the competent authorities of destination and dispatch are encouraged to avoid raising objections to shipments of metallic mercury that is considered as waste based on Article 11(1)(a) of that Regulation. It is noted that, according to Article 11(3) thereof, in the case of hazardous waste produced in a Member State of dispatch in such a small quantity overall per year that the provision of new specialised disposal installations within that Member State would be uneconomic, Article 11(1)(a) thereof shall not apply.

(11)

In order to ensure storage that is safe for human health and the environment, the safety assessment required for underground storage under Decision 2003/33/EC should be complemented by specific requirements and should also be made applicable to non-underground storage. No final disposal operation should be permitted until the special requirements and acceptance criteria are adopted. The storage conditions in a salt mine or in deep underground, hard rock formations, adapted for the disposal of metallic mercury, should notably meet the principles of protection of groundwater against mercury, prevention of vapour emissions of mercury, impermeability to gas and liquids of the surroundings and — in case of permanent storage — of firmly encapsulating the wastes at the end of the mines' deformation process. Those criteria should be introduced in the annexes to Directive 1999/31/EC, when they are amended for the purpose of this Regulation.

(12)

The above-ground storage conditions should notably meet the principles of reversibility of storage, protection of mercury against meteoric water, impermeability towards soils and prevention of vapour emissions of mercury. Those criteria should be introduced in the annexes to Directive 1999/31/EC when they are amended for the purpose of this Regulation. The above-ground storage of metallic mercury should be considered as a temporary solution.

(13)

The chlor-alkali industry should send all relevant data related to the decommissioning of mercury cells in their plants to the Commission and the competent authorities of the Member States concerned to facilitate enforcement of this Regulation. The industry sectors that gain mercury from the cleaning of natural gas or as a by-product from non-ferrous mining and smelting operations should also provide the Commission and the competent authorities of the Member States concerned with relevant data. The Commission should make this information publicly available.

(14)

Member States should submit information on permits issued for storage facilities as well as on the application and the market effects of this Regulation, in order to allow for an assessment thereof in due time. Importers, exporters and operators should submit information on movements and use of metallic mercury, cinnabar ore, mercury (I) chloride, mercury (II) oxide and mixtures of metallic mercury with other substances, including alloys of mercury, with a mercury concentration of at least 95 % weight by weight.

(15)

Member States should determine the penalties applicable to infringements of the provisions of this Regulation to be imposed on natural and legal persons. Those penalties should be effective, proportionate and dissuasive.

(16)

It is appropriate to organise an exchange of information with relevant stakeholders in order to assess the potential need for supplementary measures related to export, import and storage of mercury and to mercury compounds and products containing mercury without prejudice to the competition rules of the Treaty, in particular Article 81 thereof.

(17)

The Commission and the Member States should encourage the provision of technical assistance to developing countries and countries with economies in transition, especially assistance which facilitates the shift towards alternative mercury-free technologies and the eventual phase-out of uses and releases of mercury and mercury compounds.

(18)

Research is ongoing on the safe disposal of mercury, including the different techniques for stabilisation or other ways of immobilising mercury. The Commission should, as a matter of priority, keep this research under review and submit a report as soon as possible. This information is important as it will provide a sound basis for a review of this Regulation in order to achieve its objective.

(19)

The Commission should take this information into account when submitting an assessment report in order to identify possible needs for amending this Regulation.

(20)

The Commission should also follow international developments concerning mercury supply and demand, in particular multilateral negotiations, and report on these in order to enable the consistency of the overall approach to be assessed.

(21)

The measures necessary for the application of this Regulation concerning temporary storage of metallic mercury in certain facilities referred to herein should be adopted in accordance with Directive 1999/31/EC taking into account the direct link between this Regulation and that Directive.

(22)

Since the objective of this Regulation, namely to reduce of exposure to mercury by means of an export ban and a storage obligation, cannot be sufficiently achieved by the Member States, and can therefore, by reason of the impact on the movement of goods and the functioning of the internal market as well as the trans-boundary nature of mercury pollution, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective,

(a)

metallic mercury that is no longer used in the chlor-alkali industry;

(b)

metallic mercury gained from the cleaning of natural gas;

(c)

metallic mercury gained from non-ferrous mining and smelting operations; and

(d)

metallic mercury extracted from cinnabar ore in the Community as from 15 March 2011.