Your Explanatory Memorandum on the above proposal was considered by Sub-Committee D at its meeting of 2 April 2008.

We concur with your assessment of the circumstances in which it would, and would not, be appropriate for the Commission to represent the Member States in international negotiations on a legally-binding instrument on mercury—namely that the Commission should lead in areas where the Community has exclusive competence, but that it should not lead in areas where the Member States retain exclusive competence.

  However, we are not clear on your position with respect to areas of shared competence. We would be grateful if you could clarify whether the Commission is seeking to take the lead in negotiations affecting areas of shared competence, and if so, whether you object to this. We are particularly interested to hear whether your stance in this respect applies to all relevant areas of shared competence or only to a sub-set thereof.

  You mention that it is not yet certain that the process launched by UNEP will lead to international negotiations on a legally-binding instrument on mercury, nor is it clear that the nature of the deliberations in the working group will come to resemble those of an international negotiating committee. Could you clarify whether the UK Government is participating in the relevant working group, and whether these assessments are therefore based on first-hand experience?

  You note that although you do not support the Commission's recommendations, you would be prepared to acquiesce if they attract sufficient backing from other Member States. We would be grateful for your assessment of the likelihood of the proposal attracting the necessary support from other Member States, and for an indication of the reason why you would be content to waive your reservations in these circumstances.

  In light of the uncertainties raised above, we will hold this Recommendation under scrutiny.

2 April 2008

  Thank you for your letter of 2 April 2008, regarding the consideration by Sub-Committee D of the Explanatory Memorandum on the above proposal. You requested clarification of three points.

Firstly, you ask whether the Commission is seeking to take the lead in negotiations affecting areas of shared competence. At present the recommendation appears to be limited to areas where the Community has exclusive competence i.e. the international trade in mercury. Such exclusive competence stems from a trade legal base (article 133 of the EC Treaty) attaching to the provision of the proposed mercury Regulation currently undergoing second reading by the European Parliament that seeks to ban the export of mercury from the Community. Other aspects of the Regulation, essentially concerning safe storage and disposal of mercury, are governed by an environmental legal base (under article 175 of the EC Treaty). Consequently, if the scope of the issues covered in the recommendation are extended to cover negotiations on questions of environmental protection, such as storage conditions, in addition to trade—as we believe to be appropriate—the Community will acquire competence in a field of shared competence. In such circumstances the UK would want to limit the Commission's negotiating role under the proposed mandate to matters falling within the field of Community competence, essentially those covered by the Regulation. Other issues falling under shared competence for which the Community had not introduced or proposed internal rules would remain within the competence of Member States and therefore outside the scope of the mandate.

  In terms of the actual conduct of negotiations, the UK favours a so-called "team EU" approach whereby both Commission and Member States act collectively, deploying the most qualified people from both to lead for the EU on particular topics under discussion. This ensures that the EU punches its weight and uses its considerable resources effectively and efficiently before mixed competence forums.

  Of course any negotiations on the content of a mandate should occur only at a stage when actual discussions before an intergovernmental negotiating committee are anticipated. This will only be the case following any decision of the UNEP Governing Council at its twenty fifth session next February. As has been explained, the UK's general policy is that negotiating mandates are to be granted only where the forthcoming discussions will have legally-binding consequences. As we consider it premature to expect the current UNEP procedures to lead towards a legally binding instrument, we do not therefore support the Commission's recommendation at this stage.

  Secondly, I can confirm that the UK Government is actively participating in the UNEP Open-Ended Working Group (OEWG) on Mercury. Three officials from my Department attended the first meeting last November, with one elected as Chair. So our assessment of the process launched by UNEP is based on first-hand experience.

  Finally, you asked about the likelihood of the Commission's proposal attracting sufficient support. From informal contact at official level, we are aware that at least four other Member States take a similar view to the UK and it is foreseeable that other Member States might support that position. However, we have as yet no estimate of likely support for the Commission. We would acquiesce to the Commission's recommendation if we were in danger of becoming isolated, or part of a very small minority as negotiating mandate decisions in these areas are subject to adoption by qualified majority voting.

22 April 2008