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Export and Import of Dangerous Chemicals

Since the late 1970s the provision of sufficient information on exported chemicals to importing countries in order to enable them to efficiently protect human health and the environment has been subject to international debate. Initially such [1]

export was governed by non-binding instruments, but since 1998 the export of certain hazardous chemicals has been regulated by the Rotterdam Convention on the prior informed consent procedure for certain hazardous chemicals and pesticides in international traded7 The Convention establishes a system for making hazardous chemicals subject to a requirement for prior informed consent (PIC). Only chemicals listed in an Annex to the Convention are subject to the PIC requirement. Eligible for listing are chemicals that meet certain criteria, including having been banned or severely restricted in order to protect human health or the environment by at least two Parties to the Convention located in different regions of the world. There must also be a consensus at the Conference of the Parties in favour of listing the chemical. For severely hazardous pesticide formulations, the inclusion requirements are somewhat different. Once a chemical has been listed the Parties shall inform the Convention secretariat whether they consent to future import, do not consent, or consent only subject to specified conditions. It is not allowed for a Party to export a listed chemical to another Party that has indicated that it does not consent to import. A chemical that is banned or severely restricted domestically by a Party of export but not included in the PIC procedure is instead subject to a requirement to send an export notification to the importing Party before the first export in any calendar year.58

The EU adopted its first Regulation pertaining to export of chemicals in 1988.59 Shortly after the EU ratified the Rotterdam Convention the 1988 regulation was replaced by Regulation 304/2003, drafted to implement the Convention in EU law. In 2006, however, this Regulation was annulled by the Court of Justice on the ground that it had been based on the wrong article in the then EC Treaty.[2] [3] [4] [5] [6] This necessitated the adoption of a new act, which became Regulation 689/2008 concerning the export and import of dangerous chemicals.61 This, in turn, was recast in 2012 as Regulation (EU) No 649/2012.62 It is based on both Article 192(1) TFEU, that is, environment, and Article 207 TFEU, that is, the common commercial policy, without indicating that some articles are based on one legal base and others on the other.

The Regulation has three objectives: to implement the Rotterdam Convention; to promote shared responsibility and cooperative efforts in the international movement of hazardous chemicals in order to protect human health and the environment from potential harm; and to contribute to the environmentally sound use of hazardous chemicals. It shall also ensure that the EU rules on classification, labelling, and packaging (ie Regulation (EC) No 1272/2008) apply to all chemicals when they are exported.

The Regulation applies to the hazardous chemicals that are subject to the PIC procedure under the Convention and to hazardous chemicals that are banned or severely restricted within the Union or a Member State. It further applies to exported chemicals in general in so far as their classification, labelling, and packaging are concerned. Several categories of substances, including radioactive materials and food and food additives, are exempted to the extent that they are covered by other EU legislation. (Arts 1 and 2.)

Chemicals subject to export notification, those qualifying for PIC notification, and those subject to the PIC procedure are all listed in different parts of Annex I.

Those listed in Part 1 are subject to the export notification procedure. These are chemicals banned or severely restricted in the EU within one or more use categories or subcategories,[7] and chemicals subject to the PIC procedure. Before such a chemical may be exported, the exporter must notify its competent national authority, which, after having checked the completeness of the notification, forwards it to the European Chemicals Agency (ECHA), which in turn transmits the notification to the appropriate authority of the country of import. ECHA shall take the measures necessary to ensure that the notification is received no later than fifteen days before the first intended export of the chemical in any calendar year. Under certain circumstances the obligation to make an export notification can cease or be waived by the importing country.

Mixtures containing a listed substance in a concentration that triggers labelling obligations under Regulation (EC) No 1272/2008 are also subject to notification. Even some articles require an export notification. This is the case with articles that either contain substances listed in Part 2 or 3 of Annex I in unreacted form, or mixtures containing such substances in a concentration that triggers labelling obligations under Regulation (EC) No 1272/2008.

As for import to the EU, ECHA is to receive export notifications from other Parties to the Convention and shall send a copy to the Member State receiving that import. (Arts 7, 8, 9, and 15.)

The chemicals listed in Part 2 of Annex I are subject to the export notification procedure but also qualify for the PIC notification procedure, that is, they shall be notified by the Commission to the Convention Secretariat for possible listing as PIC chemicals. They are also covered by a PIC requirement under EU law even though the Convention does not provide for that. (Arts 7 and 11.)

The chemicals listed in Part 3 of Annex I are subject to the PIC procedure as provided for by the Convention. The operation of this procedure is more complex than that of the export notification. The core obligation is, however, that substances listed in Part 2 or 3 of Annex I or mixtures containing such substances in a concentration that triggers labelling obligations may not be exported unless either of two conditions is fulfilled. Either explicit consent to import has been sought and received by the exporter through the designated national authority of the exporter’s Member State from the appropriate authority in the importing State; or, in the case of chemicals subject to a PIC obligation under the Convention (ie those listed in Part 3 of Annex I) the importing Party has given consent to import as indicated in the latest circular issued by the Convention Secretariat. If, after all reasonable efforts have been made, no response to a request for explicit consent has been received within sixty days, a chemical may nevertheless be allowed, on a case-by-case basis, to be exported if certain conditions are met. With respect to chemicals listed in Part 3, additional conditions apply. With respect to the PIC procedure, the Commission acts as a common designated authority on behalf of the national authorities of the Member States. (Arts 5 and 14.)

An important difference between the Regulation and the Convention is that under EU law both the export notification requirement and the PIC procedure apply with respect to all countries, not only Parties to the Convention.

The list of chemicals in Annex I shall be reviewed by the Commission at least every year, on the basis of developments in Union law and under the Convention (Art 23).

Unlike the Convention, the Regulation also includes a general ban on export. The ban covers a number of persistent organic pollutants, including DDT and PCB. These are all substances that are regulated by the Stockholm Convention on Persistent Organic Pollutants.[8] [9] With some exceptions, the Regulation also prohibits export of metallic mercury, mixtures of metallic mercury with other substances, mercury compounds, and cosmetic soaps containing mercury. (Art 15 and Annex V.)

  • [1] [2012] OJ L 167/1.
  • [2] Rotterdam Convention on the Prior Informed Consent Procedure for Certain HazardousChemicals and Pesticides in International Trade (Rotterdam, 10 September 1998) 2244 UNTS 337.
  • [3] For a detailed discussion on the drafting and operation of the Rotterdam Convention see DLanglet Prior Informed Consent and Hazardous Trade: Regulating Trade in Hazardous Goods at theIntersection of Sovereignty, Free Trade and Environmental Protection (2nd edn, Kluwer Law International,2009) Chap 6.
  • [4] Council Regulation (EEC) No 1734/88 concerning export from and import into the Communityof certain dangerous chemicals [1988] OJ L 155/2.
  • [5] CaseC-178/03 Commission v Parliament and Council ECLI:EU:C:2006:4.
  • [6] [2008] OJ L 204/1. 62 [2012] OJ L 201/60.
  • [7] The categories are pesticides and industrial chemicals. Pesticides are in turn divided into twosubcategories: plant protection products and other chemicals. See further Arts 3 (1) and (5).
  • [8] Convention on Persistent Organic Pollutants (Stockholm Convention) (Stockholm, 22 May2001) (2006) 40214 UNTS 119.
  • [9] [2003] OJ L 37/19. 66
 
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