Jurisdiction: EU
Commencement: 31st July 2019 but will apply from the 1st February 2021
Amends: Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency
Repeals: Regulation (EU) No 98/2013 on the marketing and use of explosives precursors
This Regulation establishes rules around the making available, introduction, possession and use of mixtures with the intention of minimizing the illicit use of substances or mixtures and to establish a reporting system of suspicious activity throughout the supply chain.
Due to the amount of necessary changes made to Regulation (EU) No 98/2013 on the marketing and use of explosive precursors (Regulation 98/2013), this regulation repeals Regulation 98/2013.
Regulation 98/2013 established rules around 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 their availability to the general public and establishing a reporting system of suspicious activity throughout the supply chain.
Although Regulation 98/2013 has reduced the threat posed by explosive precursors*, it has not ensured sufficient levels of public security and it is therefore necessary to strengthen the system.The subsequent number of changes needed to strengthen the system, makes it necessary to replace Regulation 98/2013 with effect from 1st February 2021.
*Explosive precursors are chemical substances that can be used for legitimate purposes but can also be used for the illicit purpose of making homemade explosives.
The strengthening of the system should ensure the free movement of explosives precursors in the internal market and encourage innovation, including the development of safer chemicals to replace explosive precursors.
The amendments this Regulation makes to Regulation 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency (Regulation 1907/2006), are necessary to integrate the relevant security orientated restrictions from Regulation 1907/2006 into this regulation, specifically for making Ammonium Nitrate available. Subsequently paragraphs 2 and 3 of entry 58 in Annex XVII of Regulation 1907/2006, relating to the placement of Ammonium Nitrate (AN) on the market, under specific quantities and percentages, are deleted from the entry.
This Regulation applies to substances listed in Annexes I and II.
Annex I lists the restricted explosives precursors which cannot be made available to, introduced, possessed or used by the general public. Whether on their own or contained within a mixture / substance. Unless, the concentration is equal to or lower than the limit values (Column 2).
EU countries can allow for certain restricted explosive precursors to be made available to, possessed or used by the general public at the concentration listed in Column 3, through a licensing regime.
Suspicious transactions and significant disappearances and thefts must be reported within 24 hours.
Annex II lists the reportable explosive precursors which either on their own or in mixtures any suspicious transactions and significant disappearances and thefts must be reported within 24 hours.
This Regulation does not apply to:
- Articles, which are defined as objects which during production are given a special shape, surface or design which determines its function to a greater degree than does its chemical composition.
- Pyrotechnics articles, which are articles containing explosive substances or an explosive mixture of substances designed to produce heat, light, sound, gas or smoke or a combination of such effects through self-sustained exothermic chemical reactions this includes;
- Pyrotechnic articles for non-commercial use by the armed forces, law enforcement authorities or fire service;
- Pyrotechnic equipment on board EU ships; and
- Pyrotechnic articles for use in the aerospace industry
- Percussion caps for use in toys
- Medicinal products made available to a member of the public by a medical prescription.
Licences may be issued to members of the public who have a legitimate interest in possessing or using restricted explosive precursors. EU countries are required to implement rules for their licencing regime.
Licences can permit either multiple or single use, but must not remain valid for over 3 years. It must also indicate the restricted explosives precursors that it applies to.
An economic operator makes explosive precursors available to another person, whereas a professional user acquire or introduce an explosive precursor only for their own use. Economic operators include online marketplaces.
Where an economic operator sells / makes available a restricted explosive precursor to another economic operator they must inform them that its possession or use by the public is prohibited unless the member of the public holds the correct licence. As well as there being reporting obligations associated with a member of the public possessing or using a restricted explosive precursor.
An economic operator who makes available regulated explosives precursors to a professional user or to a member of the public must be able to demonstrate to the national inspection authority that staff involved with the sale are:
- Aware of which products it makes available that contain regulated explosive precursors; and
- Provided instruction on their obligations regards restricted explosive precursors.
Online market places must take measures to ensure that its users are informed of their obligations regards explosives precursors, when making them available.
This can be done by affixing an appropriate label to the packaging, by verifying that an appropriate label is affixed to the packaging, or by including that information in the safety data sheet.
An economic operator who makes available a restricted explosives precursor to a member of the general public must, for each transaction, verify the proof of identity and licence of the person and record the amount of the restricted explosive precursor on the licence.
An 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:
- Proof of identity of individual that represents the prospective customer
- The trade, business, or profession, company name, address and the VAT identification number or any other relevant company registration number, if any, of the prospective customer
- the intended use of the restricted explosives precursors by the prospective customer
A template for this customer statement is provided in Annex IV.
Unless this information has already been verified within 12 months of that transaction, and the transaction is not significantly different to the last.
The economic operator must then assess whether the intended use is consistent with the trade, business or profession of the prospective customer and may refuse the transaction if it doubts the legitimacy of the intended use. Where this occurs they must report the attempted transaction.
Information recorded must be retained for at least 18 months from the date of the transaction. This information must be made available for inspection by the national inspection authorities or law enforcement authorities if requested.
Online Marketplaces are also required to ensure they put steps in place to conform with this verification requirements.
Economic operators and online marketplaces shall report suspicious transactions within 24 hours. Particularly where the prospective customer acts in one of the following ways:
- appears unclear about the intended use of the regulated explosives precursors
- appears unfamiliar with the intended use of the regulated explosives precursors or cannot plausibly explain it
- intends to buy regulated explosives precursors in quantities, combinations or concentrations uncommon for legitimate use
- is unwilling to provide proof of identity, place of residence or, where appropriate, status as professional user or economic operator
- insists on using unusual methods of payment, including large amounts of cash.
They must have appropriate procedures in place to detect suspicious transactions.
A national contact point will be set up with a clearly identified telephone number, email or web form, available 24/7, for the reporting of suspicious transactions, significant disappearances or thefts.
The report should identify the customer if possible, and all the details that have caused them to believe the transaction is suspicious.
Economic operators are responsible for providing information to their personnel on the manner in which explosives precursors are made available under this Regulation and for raising staff awareness.
This Regulation should also apply to economic operators online. This means personnel should be trained and procedures should be put in place to detect suspicious transactions. Explosive precursors for online economic operators should only be made available to members of the general public who hold a licensing regime in accordance with this Regulation. Economic operators that operate online should also request end-use declarations of professional users.
Amendments are made to Annex XVII, by deleting paragraphs 2 and 3 relating to dates of market placement and limit applications, located within the second column of entry 58 Ammonium nitrate (AN). This removes the security restrictions on Ammonium nitrate within the REACH Regulations as they now sit within Regulation 2019/1148. There are no changes to duties for organisations.