Legal provisions of COM(2018)209 - Marketing and use of explosives precursors

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dossier COM(2018)209 - Marketing and use of explosives precursors.
document COM(2018)209 EN
date June 20, 2019

Contents

Article 1 - Subject matter

This Regulation establishes harmonised rules concerning the making available, introduction, possession and use of substances or mixtures that could be misused for the illicit manufacture of explosives, with a view to limiting the availability of those substances or mixtures to members of the general public, and with a view to ensuring the appropriate reporting of suspicious transactions throughout the supply chain.

This Regulation is without prejudice to other more stringent provisions of Union law concerning the substances listed in Annexes I and II.

Article 2 - Scope

1. This Regulation applies to the substances listed in Annexes I and II and to mixtures and substances that contain those substances.

2. This Regulation does not apply to:

(a)articles as defined in point (3) of Article 3 of Regulation (EC) No 1907/2006;

(b)pyrotechnic articles as defined in point (1) of Article 3 of Directive 2013/29/EU of the European Parliament and of the Council (8);

(c)pyrotechnic articles intended for non-commercial use in accordance with national law by the armed forces, law enforcement authorities or fire services;

(d)pyrotechnic equipment falling within the scope of Directive 2014/90/EU of the European Parliament and of the Council (9);

(e)pyrotechnic articles intended for use in the aerospace industry;

(f)percussion caps intended for toys;

(g)medicinal products that have been legitimately made available to a member of the general public on the basis of a medical prescription in accordance with the applicable national law.

Article 3 - Definitions

For the purposes of this Regulation, the following definitions apply:

(1)‘substance’ means a substance as defined in point (1) of Article 3 of Regulation (EC) No 1907/2006;

(2)‘mixture’ means a mixture as defined in point (2) of Article 3 of Regulation (EC) No 1907/2006;

(3)‘article’ means an article as defined in point (3) of Article 3 of Regulation (EC) No 1907/2006;

(4)‘making available’ means any supply, whether in return for payment or free of charge;

(5)‘introduction’ means the act of bringing a substance into the territory of a Member State, irrespective of its destination within the Union, whether from another Member State or from a third country, under any customs procedure, as defined in Regulation (EU) No 952/2013 of the European Parliament and of the Council (10) including transit;

(6)‘use’ means use as defined in point (24) of Article 3 of Regulation (EC) No 1907/2006;

(7)‘suspicious transaction’ means any transaction concerning regulated explosives precursors for which there are reasonable grounds, after taking account of all relevant factors, for suspecting that the substance or mixture concerned is intended for the illicit manufacture of explosives;

(8)‘member of the general public’ means any natural or legal person who is acting for purposes not connected with that person’s trade, business, or profession;

(9)‘professional user’ means any natural or legal person or public entity or group of such persons or entities that has a demonstrable need for a restricted explosives precursor for purposes connected with its trade, business, or profession, including agricultural activity, conducted either on a full-time or part-time basis and not necessarily related to the size of the area of land on which that agricultural activity is conducted, provided that such purposes do not include making that restricted explosives precursor available to another person;

(10)‘economic operator’ means any natural or legal person or public entity or group of such persons or entities which make regulated explosives precursors available on the market, either offline or online, including on online marketplaces;

(11)‘online marketplace’ means a provider of an intermediary service that allows economic operators on the one side, and members of the general public, professional users, or other economic operators, on the other side, to conclude transactions regarding regulated explosives precursors via online sales or service contracts, either on the online marketplace’s website or on an economic operator’s website that uses computing services provided by the online marketplace;

(12)‘restricted explosives precursor’ means a substance listed in Annex I that is at a concentration higher than the corresponding limit value set out in column 2 of the table in Annex I, including a mixture or another substance in which a substance listed in that Annex is present at a concentration higher than the corresponding limit value;

(13)‘regulated explosives precursor’ means a substance listed in Annex I or II including a mixture or another substance in which a substance listed in those Annexes is present, excluding homogeneous mixtures of more than 5 ingredients in which the concentration of each substance listed in Annex I or II is below 1 % w/w;

(14)‘agricultural activity’ means the production, rearing or growing of agricultural products including harvesting, milking, breeding animals and keeping animals for farming purposes, or maintaining the agricultural area in good agricultural and environmental condition as established under Article 94 of Regulation (EU) No 1306/2013 of the European Parliament and of the Council (11).

Article 4 - Free movement

Unless otherwise provided for in this Regulation or in other legal acts of the Union, Member States shall not prohibit, restrict or impede the making available of a regulated explosives precursor on grounds related to the prevention of the illicit manufacture of explosives.

Article 5 - Making available, introduction, possession and use

1. Restricted explosives precursors shall not be made available to, or introduced, possessed or used by members of the general public.

2. The restriction under paragraph 1 also applies to mixtures containing chlorates or perchlorates listed in Annex I, where the overall concentration of those substances in the mixture exceeds the limit value for any of the substances set out in column 2 of the table in Annex I.

3. A Member State may maintain or establish a licensing regime allowing certain restricted explosives precursors to be made available to, or to be introduced, possessed or used by members of the general public at concentrations not higher than the corresponding upper limit values set out in column 3 of the table in Annex I.

Under such licensing regimes, a member of the general public shall obtain, and, if requested, present a licence for acquiring, introducing, possessing or using restricted explosives precursors. Such licences shall be issued in accordance with Article 6 by a competent authority of the Member State where that restricted explosives precursor is intended to be acquired, introduced, possessed or used.

4. Member States shall notify all measures that they take in order to implement the licensing regime provided for in paragraph 3 to the Commission without delay. The notification shall set out the restricted explosives precursors in respect of which the Member State provides for a licensing regime in accordance with paragraph 3.

5. The Commission shall make publicly available a list of measures notified by Member States in accordance with paragraph 4.

Article 6 - Licences

1. Each Member State which issues licences to members of the general public who have a legitimate interest in acquiring, introducing, possessing or using restricted explosives precursors shall lay down rules for issuing licences in accordance with Article 5(3). When considering whether to issue a licence, the competent authority of the Member State shall take into account all relevant circumstances, in particular:

(a)the demonstrable need for the restricted explosives precursor and the legitimacy of its intended use;

(b)the availability of the restricted explosives precursor at lower concentrations or alternative substances with a similar effect;

(c)the background of the applicant, including information on previous criminal convictions of the applicant anywhere within the Union;

(d)the storage arrangements that have been proposed to ensure that the restricted explosives precursor is securely stored.

2. The competent authority shall refuse to issue a licence if it has reasonable grounds for doubting the legitimacy of the intended use or the intention of the member of the general public to use the restricted explosives precursor for a legitimate purpose.

3. The competent authority may choose to limit the validity of the licence, through permitting single or multiple use. The period of the validity of the licence shall not exceed three years. Until the designated expiry of the licence, the competent authority may require the licence holder to demonstrate that the conditions under which the licence was issued continue to be fulfilled. The licence shall indicate the restricted explosives precursors in respect of which it is issued.

4. The competent authority may require applicants to pay a licence application fee. Such fees shall not exceed the cost of processing the application.

5. The competent authority may suspend or revoke the licence where it has reasonable grounds for believing that the conditions under which the licence was issued are no longer fulfilled. The competent authority shall inform licence holders of any suspension or revocation of their licences without delay, unless this would jeopardise ongoing investigations.

6. Appeals against any decision of the competent authority, and disputes concerning compliance with the conditions of the licence, shall be heard by an appropriate body that is responsible for such appeals and disputes under national law.

7. A Member State may recognise licences issued by other Member States under this Regulation.

8. Member States may use the format for a licence set out in Annex III.

9. The competent authority shall obtain the information on previous criminal convictions of the applicant in other Member States as referred to in point (c) of paragraph 1 of this Article, through the system established by Council Framework Decision 2009/315/JHA (12). The central authorities referred to in Article 3 of that Framework Decision shall provide replies to requests for such information within 10 working days from the date the request was received.

Article 7 - Informing the supply chain

1. An economic operator who makes available a restricted explosives precursor to another economic operator shall inform that economic operator that the acquisition, introduction, possession or use of that restricted explosives precursor by members of the general public is subject to a restriction as set out in Article 5(1) and (3).

An economic operator who makes available a regulated explosives precursor to another economic operator shall inform that economic operator that the acquisition, introduction, possession or use of that regulated explosives precursor by members of the general public is subject to reporting obligations as set out in Article 9.

2. An economic operator who makes available regulated explosives precursors to a professional user or to a member of the general public shall ensure and be able to demonstrate to the national inspection authorities referred to in Article 11 that its personnel involved in the sale of regulated explosives precursors are:

(a)aware which of the products it makes available contain regulated explosives precursors;

(b)instructed regarding the obligations pursuant to Articles 5 to 9.

3. An online marketplace shall take measures to ensure that its users, when making available regulated explosives precursors through its services, are informed of their obligations pursuant to this Regulation.

Article 8 - Verification upon sale

1. An economic operator who makes available a restricted explosives precursor to a member of the general public in accordance with Article 5(3) shall for each transaction verify the proof of identity and licence of that member of the general public in compliance with the licensing regime established by the Member State where the restricted explosives precursor is made available and record the amount of the restricted explosives precursor on the licence.

2. For the purpose of verifying that a prospective customer is a professional user or another economic operator, the economic operator who makes available a restricted explosives precursor to a professional user or another economic operator shall for each transaction request the following information, unless such a verification for that prospective customer has already occurred within a period of one year prior to the date of that transaction and the transaction does not significantly deviate from previous transactions:

(a)proof of identity of the individual entitled to represent the prospective customer;

(b)the trade, business, or profession together with the company name, address and the value added tax identification number or any other relevant company registration number, if any, of the prospective customer;

(c)the intended use of the restricted explosives precursors by the prospective customer.

Member States may use the template of the customer’s statement set out in Annex IV.

3. For the purpose of verifying the intended use of the restricted explosives precursor, the economic operator shall assess whether the intended use is consistent with the trade, business or profession of the prospective customer. The economic operator may refuse the transaction if it has reasonable grounds for doubting the legitimacy of the intended use or the intention of the prospective customer to use the restricted explosives precursor for a legitimate purpose. The economic operator shall report such transactions or such attempted transactions in accordance with Article 9.

4. For the purpose of verifying compliance with this Regulation and preventing and detecting the illicit manufacture of explosives, economic operators shall retain the information referred to in paragraphs 1 and 2 for 18 months from the date of transaction. During that period, the information shall be made available for inspection at the request of the national inspection authorities or law enforcement authorities.

5. An online marketplace shall take measures to help ensure that its users, when making available restricted explosives precursors through its service, comply with their obligations under this Article.

Article 9 - Reporting of suspicious transactions, disappearances and thefts

1. For the purpose of preventing and detecting the illicit manufacture of explosives, economic operators and online marketplaces shall report suspicious transactions. Economic operators and online marketplaces shall do so after having regard to all the circumstances and, in particular, where the prospective customer acts in one or more of the following ways:

(a)appears unclear about the intended use of the regulated explosives precursors;

(b)appears unfamiliar with the intended use of the regulated explosives precursors or cannot plausibly explain it;

(c)intends to buy regulated explosives precursors in quantities, combinations or concentrations uncommon for legitimate use;

(d)is unwilling to provide proof of identity, place of residence or, where appropriate, status as professional user or economic operator;

(e)insists on using unusual methods of payment, including large amounts of cash.

2. Economic operators and online marketplaces shall have in place appropriate, reasonable and proportionate procedures to detect suspicious transactions, adapted to the specific environment in which the regulated explosives precursors are made available.

3. Each Member State shall set up one or more national contact points with a clearly identified telephone number and e-mail address, web form or any other effective tool for the reporting of suspicious transactions and significant disappearances and thefts. The national contact points shall be available 24 hours a day, seven days a week.

4. Economic operators and online marketplaces may refuse the suspicious transaction. They shall report the suspicious transaction or attempted suspicious transaction within 24 hours of considering that it is suspicious. When reporting such transactions, they shall give the identity of the customer if possible and all the details which have led them to consider the transaction to be suspicious to the national contact point of the Member State where the suspicious transaction was concluded or attempted.

5. Economic operators and professional users shall report significant disappearances and thefts of regulated explosives precursors within 24 hours of detection to the national contact point of the Member State where the disappearance or theft took place. In deciding whether a disappearance or theft is significant, they shall take into account whether the amount is unusual considering all circumstances of the case.

6. Members of the general public that have acquired restricted explosives precursors in accordance with Article 5(3) shall report significant disappearances and thefts of restricted explosives precursors within 24 hours of detection to the national contact point of the Member State where the disappearance or theft took place.

Article 10 - Training and awareness-raising

1. Member States shall ensure adequate resources for and the provision of training for law enforcement authorities, first responders and customs authorities to recognise regulated explosives precursors in the course of their duties and to react in a timely and appropriate manner to a suspicious activity. Member States may request additional specific trainings from the European Union Agency for Law Enforcement Training (CEPOL) established by Regulation (EU) 2015/2219 of the European Parliament and of the Council (13).

2. Member States shall organise, at least once a year, awareness-raising actions adapted to the specificities of each of the different sectors using regulated explosives precursors.

3. With a view to facilitating cooperation and ensuring that all stakeholders implement this Regulation effectively, Member States shall organise regular exchanges between law enforcement authorities, national supervisory authorities, economic operators, online marketplaces and representatives of the sectors that use regulated explosives precursors. Economic operators shall be responsible for providing information to their personnel on the manner in which explosives precursors are to be made available under this Regulation and for raising personnel awareness in this regard.

Article 11 - National inspection authorities

1. Each Member State shall ensure that competent authorities are in place for inspection and controls of the correct application of Articles 5 to 9 (‘national inspection authorities’).

2. Each Member State shall ensure that the national inspection authorities have the resources and investigative powers necessary to ensure the proper administration of their tasks under this Regulation.

Article 12 - Guidelines

1. The Commission shall provide regularly updated guidelines to assist actors in the chemical supply chain and the competent authorities, and to facilitate cooperation between the competent authorities and economic operators. The Commission shall consult the Standing Committee on Explosives Precursors on any draft guidelines or updates thereof. The guidelines shall, in particular, provide:

(a)information on how to conduct inspections;

(b)information on how to apply the restrictions and controls under this Regulation to regulated explosives precursors ordered at a distance by members of the general public or professional users;

(c)information on possible measures to be adopted by online marketplaces to ensure compliance with this Regulation;

(d)information on how to exchange relevant information between the competent authorities and the national contact points and between Member States;

(e)information on how to recognise and report suspicious transactions;

(f)information on storage arrangements which ensure that a regulated explosives precursor is securely stored;

(g)other information, which may be deemed useful.

2. The competent authorities shall ensure that the guidelines provided for in paragraph 1 are regularly disseminated in a manner deemed appropriate by the competent authorities in accordance with the objectives of the guidelines.

3. The Commission shall ensure that the guidelines referred to in paragraph 1 are available in all official languages of the Union.

Article 13 - Penalties

Member States shall lay down the rules on penalties applicable to infringements of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.

Article 14 - Safeguard clause

1. Where a Member State has reasonable grounds for believing that a specific substance that is not listed in Annex I or II could be used for the illicit manufacture of explosives, it may restrict or prohibit the making available, introduction, possession and use of that substance, or of any mixture or substance containing it, or provide that the substance be subject to reporting obligations in accordance with Article 9.

2. Where a Member State has reasonable grounds for believing that a specific substance listed in Annex I could be used for the illicit manufacture of explosives at a concentration equal to or lower than the limit values set out in column 2 or 3 of the table in Annex I, it may further restrict or prohibit the making available, introduction, possession and use of that substance by imposing a lower limit value.

3. Where a Member State has reasonable grounds for establishing a limit value above which a substance listed in Annex II is to be subject to the restrictions that otherwise apply to restricted explosives precursors, it may restrict or prohibit the making available, introduction, possession and use of that substance by imposing that limit value.

4. A Member State that restricts or prohibits substances in accordance with paragraph 1, 2 or 3 shall immediately inform the Commission and the other Member States of such restrictions or prohibitions, giving its reasons.

5. A Member State that restricts or prohibits substances in accordance with paragraph 1, 2 or 3 shall raise awareness of such restrictions or prohibitions among economic operators and online marketplaces on its territory.

6. Upon receiving the information referred to in paragraph 4, the Commission shall immediately examine whether to prepare amendments to the Annexes in accordance with Article 15(1) or to prepare a legislative proposal to amend the Annexes. Where appropriate, the Member State concerned shall amend or repeal its national measures to take account of any such amendments to those Annexes.

7. Without prejudice to paragraph 6, the Commission may, after consulting the Member State concerned and, if appropriate, third parties, take a decision that the measure taken by that Member State is not justified and require that Member State to revoke or amend the provisional measure. The Commission shall take such decisions within 60 days of receipt of the information referred to in paragraph 4. The Member State concerned shall raise awareness of such decisions among economic operators and online marketplaces on its territory.

8. Measures of which the Member States informed or notified the Commission prior to 1 February 2021 under Article 13 of Regulation (EU) No 98/2013 shall be unaffected by this Article.

Article 15 - Amendments to the Annexes

1. The Commission shall adopt delegated acts in accordance with Article 16 amending this Regulation by:

(a)modifying the limit values in Annex I to the extent necessary to accommodate developments in the misuse of substances as explosives precursors, or on the basis of research and testing;

(b)adding substances to Annex II, where necessary to accommodate developments in the misuse of substances as explosives precursors.

The Commission shall, as part of its preparation of those delegated acts, consult relevant stakeholders, in particular those in the chemical industry and the retail sector.

Where there is a sudden change in the risk assessment as far as the misuse of substances for the illicit manufacture of explosives is concerned and imperative grounds of urgency so require, the procedure provided for in Article 17 shall apply to delegated acts adopted pursuant to this Article.

2. The Commission shall adopt a separate delegated act in respect of each modification of the limit values in Annex I and in respect of each new substance that is added to Annex II. Each delegated act shall be based on an analysis that demonstrates that the amendment is not likely to lead to disproportionate burdens on economic operators or consumers, having due regard to the objectives pursued.

Article 16 - Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission, subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 15 shall be conferred on the Commission for a period of five years from 31 July 2019. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3. The delegation of power referred to in Article 15 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

6. A delegated act adopted pursuant to Article 15 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

Article 17 - Urgency procedure

1. Delegated acts adopted under this Article shall enter into force without delay and shall apply as long as no objection is expressed in accordance with paragraph 2. The notification of a delegated act to the European Parliament and to the Council shall state the reasons for the use of the urgency procedure.

2. Either the European Parliament or the Council may object to a delegated act in accordance with the procedure referred to in Article 16(6). In such a case, the Commission shall repeal the act immediately following the notification of the decision to object by the European Parliament or by the Council.

Article 18 - Amendment of Regulation (EC) No 1907/2006

In Annex XVII to Regulation (EC) No 1907/2006, entry 58. (Ammonium nitrate (AN)), column 2, paragraphs 2 and 3 are deleted.

Article 19 - Reporting

1. Member States shall provide to the Commission, by 2 February 2022 and subsequently on an annual basis, information on:

(a)the numbers of reported suspicious transactions, significant disappearances and thefts respectively;

(b)the number of licence applications received under any licensing regime that they have maintained or established pursuant to Article 5(3), as well as the number of licences issued, and the most common reasons for refusing to issue licences;

(c)awareness-raising actions as referred to in Article 10(2);

(d)inspections carried out as referred to in Article 11, including the number of inspections and economic operators covered.

2. In transmitting the information referred to in points (a), (c) and (d) of paragraph 1 to the Commission, Member States shall distinguish between reports, actions and inspections which relate to online activities and those that relate to offline activities.

Article 20 - Monitoring programme

1. By 1 August 2020, the Commission shall establish a detailed programme for monitoring the outputs, results and impact of this Regulation.

2. The monitoring programme shall set out the means by which, and the intervals at which, data and other necessary evidence are to be collected. It shall specify the actions to be taken by the Commission and by the Member States in collecting and analysing those data and other evidence.

3. Member States shall provide the Commission with the data and other evidence necessary for the monitoring.

Article 21 - Evaluation

1. By 2 February 2026, the Commission shall carry out an evaluation of this Regulation and present a report on the main findings to the European Parliament, to the Council and to the European Economic and Social Committee. The evaluation shall be conducted according to the Commission’s better regulation Guidelines.

2. Member States shall provide the Commission with the information necessary for the preparation of that report.

Article 22 - Repeal

1. Regulation (EU) No 98/2013 is repealed with effect from 1 February 2021.

2. References to the repealed Regulation (EU) No 98/2013 shall be construed as references to this Regulation.

Article 23 - Entry into force and application

1. This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2. It shall apply from 1 February 2021.

3. Notwithstanding paragraph 2, licences that have been validly issued under Regulation (EU) No 98/2013 shall remain valid either until the date of validity originally stated on those licences or until 2 February 2022, whichever is the sooner.

4. Any applications for the renewal of the licences referred to in paragraph 3 that are made on or after 1 February 2021 shall be made in accordance with this Regulation.

5. Notwithstanding Article 5(1), the possession, introduction and use by members of the general public of restricted explosives precursors that were legally acquired before 1 February 2021 shall be allowed until 2 February 2022.

This Regulation shall be binding in its entirety and directly applicable in all Member States.