EN

Brussels, 6.11.2007

SEC(2007) 1421

COMMISSION STAFF WORKING DOCUMENT

Accompanying document to the

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL

on enhancing the security of explosives

IMPACT ASSESSMENT

{COM(2007) 651 final}

{SEC(2007) 1423}

TABLE OF CONTENTS

Executive Summary (...)5

1. Procedural issues and consultation of interested parties (...)7

1.1. Organisation and timing (...)7

1.2. Consultation and expertise (...)7

1.3. The Impact Assessment Board (...)8

2. Problem definition (...)10

2.1. What are the issues or problems that may require action? (...)10

2.1.1. General problem (...)10

2.1.2. Key concerns (...)10

2.1.2.1. Public Security Aspects (...)10

2.1.2.2. The use of precursors (...)11

2.1.2.3. Supply Chain (storage, transport, traceability) (...)11

2.1.2.4. Detection (...)11

2.2. Analysis of specific problems, their causes and existing situation (...)12

2.2.1. Public Security Aspects (...)12

2.2.1.1. Specific problems (...)12

2.2.1.2. Scale of the problems and existing action (...)13

2.2.2. The use of precursors (...)14

2.2.2.1. Specific problems (...)14

2.2.2.2. Scale of the problems and existing action (...)14

2.2.3. Supply Chain (storage, transport, traceability) (...)17

2.2.3.1. Specific problems (...)17

2.2.3.2. Scale of the problems and existing action (...)17

2.2.4. Detection (...)21

2.2.4.1. Specific problems (...)21

2.2.4.2. Scale of the problems and existing action (...)22

2.3. Who is affected, in what ways, and to what extent? (...)24

2.4. How would the problem evolve, all things being equal? (...)24

2.5. Does the EU have the right to act? (...)25

2.5.1. General considerations (...)25

2.5.2. The added value of the European Union (...)26

2.5.2.1. The EU as a catalyst for cooperation (...)26

2.5.2.2. The EU as a provider of funding for actions (...)27

2.5.2.3. EU legislation (...)27

2.5.3. Proportionality (...)28

2.5.4. Subsidiarity (...)28

3. Objectives (...)30

4. Policy options (...)31

4.1. Policy Option 1 – Status Quo (...)32

4.2. Policy Option 2 – Minimum Option (...)33

4.3. Policy Option 3 – Intermediate Option (...)35

4.4. Policy Option 4 – Maximum Option (...)37

5. Analysis of impacts (...)39

5.1. Introduction (...)39

5.2. Policy option 1 – The status quo (...)40

5.2.1. Assessment by action (...)40

5.2.1.1. Horizontal measures (...)40

5.2.1.2. Prevention measures (...)40

5.2.1.3. Detection measures (...)40

5.2.2. Overall assessment of Policy Option 1 (...)40

5.3. Policy option 2 – Minimum option (...)40

5.3.1. Assessment by action (...)40

5.3.1.1. Horizontal measures (...)41

5.3.1.2. Prevention measures (...)42

5.3.1.3. Detection Measures (...)43

5.3.1.4. Preparedness and response measures (...)45

5.3.2. Overall assessment of Policy Option 2 (...)45

5.4. Policy option 3 – Intermediate option (...)46

5.4.1. Assessment by action (...)46

5.4.1.1. Horizontal measures (...)46

5.4.1.2. Prevention Measures (...)47

5.4.1.3. Detection Measures (...)49

5.4.1.4. Preparedness and response measures (...)50

5.4.2. Overall assessment of Policy Option 3 (...)51

5.5. Policy option 4 – Maximum option (...)51

5.5.1. Assessment by action (...)51

5.5.1.1. Prevention Measures (...)51

5.5.1.2. Detection measures (...)54

5.5.2. Overall assessment of Policy Option 4 (...)55

5.6. Overall assessment (...)56

6. The preferred Policy option (...)57

6.1. Challenges in identifying the preferred option (...)57

6.2. The preferred option (...)58

7. Monitoring and evaluation (...)64

ANNEX 1 – DETAILED ASSESSMENT OF POLICY OPTIONS (...)67

ANNEX 2 – LIST OF ESETF RECOMMENDATIONS (...)67

ANNEX 3 – SUMMARY ASSESSMENT TABLE (...)120

Executive Summary

Explosive devices remain the most used vector in terrorist attacks. They were responsible for the vast majority of the victims of terrorist attacks over the last 50 years. Consequently, enhancing the security of explosives and making the production of explosive devices for terrorists more difficult has been and continues to be a priority for the European Union.

On 25 March 2004, in the immediate aftermath of the Madrid attacks, the European Council, in its Declaration on Combating Terrorism, established as a priority the need "to ensure terrorist organisations and groups are starved of the components of their trade". The European Council noted in particular on this occasion that “there is a need to ensure greater security of firearms, explosives, bomb-making equipment and technologies".

In response, the Commission began to develop a policy on enhancing the security of explosives.

One of the key measures undertaken by the Commission was the setting up of an Explosives Security Experts Task Force (ESETF), composed of private and public sector representatives, with a view to preparing recommendations for actions in the explosives security field. The ESETF completed its work in June 2007 with the identification of 50 recommendations for actions.

The general objective of an EU Action Plan on Enhancing the Security of Explosives would be to reduce the number and potency of terrorist incidents in the EU using explosives. The underlying goal would therefore be to protect society from the threat of attacks using explosive devices while taking into full consideration the multiple areas of economic activity in which explosives and their precursors are used for the benefit of all.

The EU Action Plan would be based on the recommendations made by the ESETF and would be organized under four headings:

· Horizontal Measures – aimed at improving exchanges of information, the development of threat assessments and research.

· Prevention Measures – focusing on awareness raising, control and regulation of precursors, increased control on the market of explosives and pyrotechnic articles, vetting and security measures in explosives facilities and transport and internet-related actions.

· Detection Measures – proposing scenarios, minimum standards, exchanges of information and EU-wide certification, testing and trialling schemes for detection tools.

· Preparedness and Response Measures – including the establishment of an EOD network and liaison with mobile telephone providers on the shutting down of antennas.

Four policy options have been identified concerning the establishment of an EU Action Plan on Enhancing the Security of Explosives. These options have been elaborated based on the recommendations for specific actions set fourth in the ESETF report and group together the various ESETF recommendations depending on their impact:

· Policy Option 1 – Status Quo

· Policy Option 2 – Minimum Option

· Policy Option 3 – Intermediate Option

· Policy Option 4 – Maximum Option

A detailed assessment of the four policy options lead to conclusion that in general terms, Policy Option 4 is the preferred option with the stipulation however that further feasibility studies and consultations need to be taken forward concerning some of the actions identified in Option 4.

1. Procedural issues and consultation of interested parties

1.1. Organisation and timing

Reference number: 2007/JLS/008

Following the Madrid terrorist attacks of March 2004, the Commission started intensive work on the issue of the security of explosives. Since several services have an interest in the field of the security of explosives, an explosives inter-service group was setup. The group was chaired by DG JLS and included the following services: DG TREN, DG ENTR, DG ENV, JRC and SG.

The inter-service group played a pivotal role in developing the explosives action plan.

The Commission Legislative and Work Programme 2007 states that in the preparation of the Explosives Security Action Plan, the Commission's objective is to stimulate debate and dialogue with all actors involved in the security of explosives. This expertise will be taken into account in the preparation of an EU Action Plan for the enhancement of the security of explosives and firearms.

A significant amount of data-gathering needed for the preparation of this report was undertaken through an external study. The external study constitutes an important basis for this report. The problems, objectives and the assessment of the various policy options were based to a large extent on the final report from the contractor prepared in close consultation with the Commission and on the basis of a desk analysis of appropriate methods and applicable legal documents. The external study and this report have been drafted on the basis of numerous contacts between the Directorate-General for Justice, Freedom and Security and the contractor as well as meetings of an inter-service steering group. The report will be made public on the DG JLS website subject to scrutiny of certain parts for reasons of confidentiality.

A roadmap for this initiative was produced and is publicly available at http://ec.europa.eu/atwork/programmes/docs/clwp2007_roadmap_priority_initiatives.pdf

1.2. Consultation and expertise

All relevant stakeholders have participated and been consulted concerning the development of the Explosives Action Plan. This has been done through the following measures:

· In July 2005, the Commission adopted a Communication on the Security of Explosives which launched a broader debate in the field. The Communication put forward several ideas for action which were undertaken in subsequent years. This included the creation of the Explosives Security Experts Task Force (ESETF).

· The 1st EU Conference on the Security of Explosives has held in October 2006 in Brussels. The event started the implementation of the public-private dialogue as announced in the Commission Communication on enhancing the security of explosives of July 2005.

· The Explosives Security Experts Tasks Force was set up in 2007 to assist the Commission in the preparation of the Action Plan. The ESETF was composed of public and private sector representatives – over 100 in total. The Task Force was divided into four Working Groups, looking at Precursors, Supply Chain, Detection and Public Security Aspects. The first version of the Task Force report, comprising the recommendations prepared by all Working Groups, was submitted to the Commission beginning of May 2007. Following consultation with the Task Force members, a second version was submitted one month later. The work of the Task Force culminated in June 2007 with the submission of a report identifying 50 recommendations for actions designed to strengthen the security of explosives in the EU. This Impact Assessment report analyses all of the measures identified by way of the Task Force recommendations reorganized under three strategic pillars: prevention, detection and response; and one overarching set of measures having a horizontal application. With a view to making the draft Action Plan as clear as possible, some of the original 50 ESETF recommendations were merged into single actions.

· A 2nd EU Conference on the Security of Explosives was held in Braga (Portugal) on 16-17 July 2007 with the participation of around 150 private and public sector representatives. The event was organized jointly by the Commission and the Portuguese EU Presidency. The aim of the conference was to discuss the ESETF recommendations and the draft EU Action Plan. The conference demonstrated strong support for the Commission's activities in the explosives security field.

1.3. The Impact Assessment Board

On 3 September 2007, the Impact Assessment Board of the European Commission delivered an opinion regarding a preliminary version of this Impact Assessment report. In the opinion, the Board in brief stated that the IA report would gain robustness and clarity if the assessment would be focused on the measures with most significant impacts, if the EU value added and right to act are explained for each measure separately, and if the choice of which options to carry forward and which options to hold back for further study is better explained. The Impact Assessment Board further gave the following comments:

(1) The conclusion on which measures to carry forward and which to refer back for further assessment should be made more transparent.

(2) The EU right to act and value added should be demonstrated for every measure.

(3) Measures with significant impacts should be assessed in more detail than measures with minor impacts.

The present version of the Impact Assessment report has been significantly redrafted, with a view to taking these recommendations fully into account. Additional information and modifications to take account of some more detailed comments have also been introduced.

2. Problem definition

2.1. What are the issues or problems that may require action?

2.1.1. General problem

The main problem which needs to be addressed is the use of explosives and explosives precursors to commit terrorist acts. Explosive devices remain the most used vector in terrorist attacks. They were responsible for the vast majority of victims of terrorist attacks over the last 50 years.

2.1.2. Key concerns

The general problem identified above can further be described by identifying top level issues of concern in four areas:

(1) public security

(2) precursors

(3) supply chain

(4) detection.

These four fields correspond to the specific areas of work within the ESETF. The main problems identified in these areas are set out below. The specific problems falling under these four areas are identified and analyzed in the next section.

2.1.2.1. Public Security Aspects

This area addresses issues relevant to the overall security of the EU and its citizens. It can be, in a sense, considered to have a horizontal ‘umbrella’ function for the three more specific sectors discussed above.

The two overall problems identified are:

(1) Some Member States have better measures in place to enhance the security of explosives than others. Due the absence or reduction of borders in the EU, terrorists and criminals may engage in ‘explosives shopping’ or transport explosives from third countries where border control and detection is at a relatively lower level.

(2) Information sharing and cooperation between Member States exists in multilateral and bilateral forms, but seems to be scattered and not covering all countries of the EU. This may lead to important information gaps and a lack of early warning opportunities.

2.1.2.2. The use of precursors

The area of precursors is highly complex, as it not only comprises a high number of substances but also issues in relation to their storage, transport and illicit use to manufacture improvised explosive devices (IEDs). The two overall problems identified are:

(3) Explosives manufactured from precursors have been used in at least eight major terrorist attacks in the past 15 years (including Bali, Oklahoma and London), killing over 500 persons.

(4) There are masses of materials and substances available that can be used to make explosives. There are legitimate reasons for having these in our societies and insufficient knowledge on the availability of materials or substances to substitute these or to make them safer. Some of the alternatives may be very expensive.

2.1.2.3. Supply Chain (storage, transport, traceability)

Supply Chain covers the production of explosives from the beginning to their end use. It thus includes the manufacturing process, storage in the production plant, transactions, transport, storage at the ‘customer’s’ end and the end use of explosives. The process also includes aspects of accounting, record-keeping, licensing and staff vetting. The two overall problems identified are:

(5) Legally produced explosives have been misappropriated from production, storage, distribution and end user sites or purchased unauthorised. Several major thefts of explosives have occurred during the last 10 years.

(6) Manufactured explosives are stored in and moved to many different places, with many different users and providers. Legislation in this area (i.e. the Explosives Directive) is aimed at harmonising safety standards. Security legislation and measures at national level however vary a great deal.

2.1.2.4. Detection

When the prevention activities described above have failed or have been circumvented, it is up to detection tools and practices to limit the risk of terrorist attempts to use explosives. Detection technologies and devices have however substantial limits and will not, at least on the short-medium term, be able to detect all explosives and substances that can be turned into explosives. The five overall problems identified are:

(7) The present likelihood that terrorists illicitly handling and using explosives and precursors are detected may not be sufficient in all locations and even in locations where detection equipment is already deployed.

(8) Purchasers of detection technologies and devices are insufficiently aware and sometimes ‘misinformed’ about the performance of the equipment and systems and about the best way to deploy and operate these in an efficient and effective way. Producers of such equipment and systems are experiencing difficulties to develop systems that match the needs of their clients.

(9) There is a lack of single market integration with regard to detection technologies. This makes them more costly and not as efficient as they could be.

(10) There are duplications and overlaps in Member States’ activities to determine the quality of detection equipment. In addition, there is limited exchange of information among relevant public authorities across the EU on these matters.

(11) Difficulties exist with regard to the rolling out of new solutions and technologies stemming from research onto the market. There is an overall lack of mechanisms which could bring the research results closer to the end user, considering cost-benefits of the solution, operational requirements, etc.

2.2. Analysis of specific problems, their causes and existing situation

2.2.1. Public Security Aspects

2.2.1.1. Specific problems

The following specific problems can be identified:

· There is a lack of an overall EU system coordinating and providing information to relevant national authorities on explosives and explosive incidents.

· There is a lack of networking and coordination in the area of explosives including all Member States.

· Existing information sharing and cooperation activities do not always involve and inform all relevant national departments.

· The EU does not have an Early Warning System in place to inform Member States of imminent threats, thefts, suspicious transactions and other terrorist activity

· There is a lot of information freely available on the Internet on bomb-making

· There is an overall lack of research in the area of explosives, explosive precursors and detection.

2.2.1.2. Scale of the problems and existing action

International and EU level

Since the early nineties, thousands of people across the world have died because of both small and large-scale terrorist bombings. Many more persons were injured. In the EU in that same period, the use of explosives for terrorist purposes accounted for at least 300 deaths and around 2,000 people injured. The TE-SAT [1] report estimates that in 2006 alone, a total of 498 terrorist attacks (overall, not necessarily using explosives) were carried out in the EU. Whilst the majority resulted in limited material damage and were not intended to kill, the failed attack in Cologne (DE) and the foiled London plot demonstrates that terrorists still aim at mass casualties. The report further concludes that a large number of various types of terrorist organisations have an active presence in the EU, some of them directly targeting Member States or Third States interests’ in Member States.

One of the factors making it relatively ‘easier’ for terrorists to strike or prepare attacks is the fact that despite the common EU legislation and action to combat terrorism, in practical security terms some Member States have better measures in place to enhance the security of explosives than others. This has for example led to several cases of ‘explosives shopping’, such as ETA avoiding the very severe and tight Spanish regulatory and institutional framework by obtaining explosives from another EU country in the Schengen area. However, even the Spanish system was not watertight as the explosives used on the 11 March 2004 bombings originated from a mine in northern Spain. The use of explosives originating outside the EU for terrorist bombings in one of the Member States also shows that despite all external border controls it is still difficult to detect the illegal import of explosives.

There are several mechanisms in place that focus on practical cooperation and information sharing. The most recent and relevant one is the Explosives Security Experts Tasks Force, set up in 2007 as a result of the July 2005 Communication on “Measures to ensure greater security in explosives, detonators, bomb-making equipment and firearms”. The Task Force assisted in the preparation of the EU Action Plan for the enhancement of the security of explosives, subject of this impact assessment. The multi-stakeholder Task Force including both the public and private sectors concentrated, through four separate working groups, on the issues of precursors, supply chain, detection and public security.

National level

Domestic agencies responsible for general security, safety and internal issues vary greatly between the Member States. Agencies broadly include a combination of Ministries for supply chain matters (e.g. Ministries of Interior, Justice, Industry / Enterprise and Transport), the Ministries of Defence, Interior, Justice and Economy for safety issues and the Ministries of Foreign Affairs, Justice and Interior for international issues. The police, often in the form of specialised bomb squads / centres, are in most Member States involved in detection, general security and safety matters. A number of countries have established inter-agency working groups and / or committees to cooperate and exchange information. Some have joint access to database and other information tools, while others organise regular meetings to coordinate actions.

2.2.2. The use of precursors

2.2.2.1. Specific problems

The following specific problems can be identified:

· Insufficient awareness of staff handling precursors (in the widest sense) in terms of detecting illicit activities and suspicious actions

· Insufficient knowledge on how to modify or restrict the nature of precursors to make their use in manufacturing explosives more difficult.

· Lack of systems to monitor and report on suspicious transactions in B2B (business to business or upstream transactions) and B2C (business to consumer) relations.

· Existing legislation and voluntary actions concerning the storage and transport of precursors does not sufficiently address security issues.

2.2.2.2. Scale of the problems and existing action

A worrying share of terrorist bombings since the beginning of the nineties included the use of precursors turned into explosives. A non-exhaustive list of large-scale terrorist bombings across the globe shows that this use has been stable, if not increasing, over the last 15 years. Together, these eight major incidents listed in the table below caused nearly 500 deaths and more than 3,000 injured.

Table 2.2 – Overview of terrorist bombings using precursors

Year | Location | Death | Injured |

1992 | St Mary’s Axe / Docklands, London, UK | 3 | 0 |

1993 | WTC, New York, USA | 6 | 1000 |

1993 | Bishops Gate, London, UK | 1 | 40 |

1995 | Oklahoma City, USA | 168 | 1000 |

1996 | Canary Wharf / Docklands, UK | 0 | 39 |

1996 | Manchester, UK | 0 | 200 |

1998 | Omagh, Northern Ireland | 29 | 200 |

2002 | Bali nightclubs, Indonesia | 202 | 209 |

2005 | London subway. UK | 56 | 700 |

It is also important to consider the number of attacks that were unsuccessful (e.g. London both in July 2005 and June 2007) involving Improvised Explosive Devices (IEDs), as well as the high amount of seizures of substances, especially ammonium nitrate fertilizer destined to that end. Little evidence is available but this may well amount to many tons over the past 30 years.

Precursors to explosives

There are hundreds of precursors with explosive potential and thousands that can have an explosive reaction when put together. Many of these are legal to purchase and widely used in everyday life. Many Member States have the ability to identify explosive precursors before and after detonation, but this is often very difficult due to the small samples available post blast and the fact that some precursors cannot be identified when working with samples only.

By the nature of their choice of tactic, many terrorists are most likely interested in chemicals that are high impact (able to cause substantial damage and serious injury to a significant number of people) and feasible to use (easy to deploy / manufacture, difficult to detect and readily accessible). However, especially suicide bombers are known to have used IEDs with a smaller destruction potential, containing only small amounts of dangerous chemicals, which are even more difficult to detect. Such explosive devices can be produced without using any specific equipment, following bomb recipes on the Internet, and their components are easy to obtain. Contrary to drugs precursors for which the demand and production is constant, the demand of terrorists is usually ‘one-off', as attacks only require the ‘right’ (i.e. a relatively small) quantity of chemicals to be used in a single attack. This makes it even more difficult to identify transactions or any other activity aimed at manufacturing explosives from precursors.

There are additives that can reduce the explosive properties of some of the most dangerous chemicals. Other chemicals could, to some extent, be replaced by less explosive alternatives. There is insufficient knowledge and research in this area to come forward with solutions which are effective and cost-efficient.

Overall, the chemical industry is rather sceptical about the possible application of inhibitors and additives, especially for the upstream market (other industrial producers using the chemicals). As the effect of inhibitors is basically a neutralising one – especially in the case of acids – this would have a strong adverse impact on the utility of the chemical in question as a commodity/intermediate product.

With the high number of chemicals that are being produced and sold throughout the EU, staff working in the industry is not sufficiently aware of which precursors are most dangerous and which transactions should be considered suspicious. Without this knowledge, there is a danger that such transactions, or also, for example thefts, are not reported to the appropriate authorities.

Only a limited number of Member States have put in place systems or activities to monitor B2B and B2C transactions in precursors which may be suspicious. These include policy advice, cooperation with end users, the publication of guidelines and the establishment of a monitoring system. The UK, for example, recently launched the ‘Know your Customer’ campaign which encourages retailers to consider, on the basis of a series of targeted questions, whether a certain transaction should be reported to the authorities. The campaign refers to a number of very specific chemicals. Similarly, the chemical industry in the UK (“upstream”: producers of components and intermediate products) also have a Code of Conduct in place linked to the identification and reporting of suspicious transactions. Substances used predominantly for chemical weapons or drugs (such as acetones), are on the industry’s monitoring list.

Relevant EU legislation in the area mainly focuses on safety rather than on the security of the products and installations. Instruments such as the Fertilizers Regulation (EC) No 2003/2003, the Reach Regulation (No 1907/2006) and the Seveso II Directive (96/82/EC) all include extensive safety requirements, as well as provisions to improve the protection of human health and the environment, whilst insufficient attention is paid to security issues.

2.2.3. Supply Chain (storage, transport, traceability)

2.2.3.1. Specific problems

The following specific problems can be identified:

· There are great differences in the extent to which Member States have regulated and are enforcing security measures concerning the storage and sales of commercial explosives. This includes raw materials used in the manufacture of explosives.

· Despite the Directive on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil use and ADR legislative instruments, surveillance, protection and tracking systems for the transport of explosives may not go far enough for security purposes.

· Whilst nearly all Member States have measures in place to vet personnel working with explosives, the level and coverage of the screening varies greatly (from merely checking vocational competences and criminal records to psychological tests and in-depth background checks).

· The labelling of explosives is not undertaken by all Member States and is not carried out in a harmonised way, except in specific relation to intra-community transfers.

· Not all Member States have systems in place to alert producers, distributors and transport companies of regional threats.

2.2.3.2. Scale of the problems and existing action

A high share of terrorist bombings since the beginning of the nineties included the use of commercial explosives (as opposed to IEDs). The origin of most of these explosives is unclear in most cases (i.e. it is not public whether these were explosives legally produced in the relevant geographical zone or whether they were smuggled illegally into the territory). The following, non-exhaustive list of large-scale terrorist bombings across the globe shows that the use of such explosives has been stable over the past 15 years, together causing around 1300 deaths and nearly 5,000 injured.

Table 2.5 – Overview of terrorist bombings using commercial explosives

Year | Location | Death | Injured |

1993 | Bombay car and scooter bombs, India | 317 | 1200 |

1996 | Khobar Towers, Saudi Arabia | 19 | 372 |

1998 | Kenya & Tanzania | 224 | 1000 |

1999 | Moscow flats, Russia | 272 | 400 |

2000 | USS Cole, Yemen | 17 | 39 |

2002 | Limburg oil tanker | 1 | 12 |

2003 | Istanbul, Turkey | 28 | 450 |

2003 | Casablanca suicide bombings, Morocco | 41 | 100 |

2004 | Madrid railway, Spain | 191 | 600 |

2006 | Mumbai railroad, India | 190 | 625 |

Major incidents or alarm to the general public concerning legal explosives manufactured, transported and stored in the EU are rare. The safety record of the explosives industry is considerably better than most other industries of a similar nature. However, there have been several major thefts of explosives, including the huge amounts of Semtex seized from the ship Claudia in the seventies and several ETA thefts of commercial explosives from quarries and other locations in France.

Explosives industry

The Federation of European Explosive Manufacturers (FEEM) estimates that close to one million tonnes of explosives are detonated every year in Europe for civil purposes. The main clients are:

· The mining industry;

· The quarrying industry;

· Construction and civil engineering, mainly for demolition, land clearance and tunnelling;

· Other industrial uses, such as metal fabrication and activities where rapid force is required (such as air bags).

In terms of scale, the mining and quarrying industries consume the majority of explosives. The market for civil explosives in Europe is relatively small by international standards (see Figure 2.6 below). In 2001 North America consumed around 2.5 million tonnes of explosives (39% of the global total), and Asia a further 1.3 million tonnes (21% of the global total). The mining and quarrying industries in the EU27 countries accounted for just 8% of global consumption (0.5 million tonnes).

On the basis of the information available, the production of explosives seems to be a relatively stable industrial sector in the EU in the last three years. Ten years ago, the volume produced was substantially lower than in 2005, whilst the total value was relatively higher. According to the impact assessment on the Traceability Directive [2], the European industrial explosives business environment is highly competitive. Overcapacity exists and consumption is not growing. Manufacturers have been and will continue to be forced to rationalize and concentrate their businesses. Further efforts to expand business across national boundaries, especially by larger participants purchasing smaller ones, can be expected.

Transport and storage

With the exception of explosives that are mixed onsite, a great deal of explosives are moved for national and Intra-community trade and for export outside the EU. Whilst it is impossible to find data on internal movements, in 2006 nearly 30,000 tonnes of explosives were transported from one Member State to another and nearly 14,000 tonnes were transported to third countries.

Whilst all Member States have to some extent regulated and made practical arrangements for the storage and transport of explosives, these vary greatly between each other despite EU and national regulatory requirements.

Overall, very few of the measures in place in the EU Member States are based on in-depth risk assessments of the actual storage / production plant. With regard to storage, measures range from special requirements on construction, alarms, record-keeping and fencing to monitoring by guards or surveillance systems and police control. In addition, whilst security requirements may be very strict and regularly monitored in sites where explosives are manufactured, stored and distributed, there seems to be less control on end user sites, such as quarries and construction sites. For example, the explosives used in the Madrid bombings were stolen explosives from a quarry in the northern town of Tineo (Spain) with the help of a Spanish quarryman.

With regard to transport, measures include police escorts, inspections, GPS surveillance, notification to the police, licensing of movements, the use of armed forces (in case of military transports), alerts to border guards in case of cross-border movements, the use of armed private security guards, permanent radio contact and the use of blocking systems. Based on the numbers of EX/II and EX/III vehicles [3] in Sweden (40) and the Czech Republic (50), it is estimated that the total number of vehicles transporting civil explosives is around 450 in the EU. Mobile Explosive Manufacturing Units, used for onsite production of explosives, are less prone to thefts. Based on their numbers in the Czech Republic (5) and Sweden (10), their total number is estimated to be relatively low, around 100 in total in the EU.

The arrangements described above have two things in common: a) their focus is often on safety and less on security; and b) difficulties are encountered in the case of small quantities (e.g. up to 10 kilo). The differences between national arrangements have, in a few cases, had a ‘displacement’ effect. For example, Spain has one of the strictest systems to ensure the security of explosives, due to the presence of E.T.A on its territory. However, in a Europe without borders, it has been relatively 'easy' for this terrorist organisation to steal and / or illegally purchase explosives in other Member States with a less tight regulatory framework and systems of control. Finally, whilst some countries have some form of alert system in place in case of thefts or to retrace lost or stolen explosives, these systems often do not comprise early warnings in case of threats in particular regions or areas.

Persons handling explosives

Personnel handling or having access to explosives have to undergo a background check in all Member States. However, the level of screening seems to vary. Some countries only check whether the person has the appropriate professional competences to safely handle explosives. Others include a check of criminal records and more far-reaching background checks (mental and physical health, use of substances, etc). Cyprus, for example, mentions the checking of the person’s character, which may refer to the use of psychological testing.

Traceability

With regard to the labelling of explosives, it appears that nine countries mark explosives for licensing and record-keeping requirements. Three Member States are operating databases to improve tracking, tracing and record-keeping systems of all explosives. Several countries are considering developing such databases. When asked about marking explosives, many refer to the CE sign for safety standards, as well as to other forms of marking through barcodes, batch numbers, etc. However, existing conventions and regulations covering the transport of dangerous goods such as explosives, allow packages containing these goods, but not the goods themselves, to be traced rapidly. If the original packaging is changed, it is unlikely that the contents can be identified.

In line with the Montreal Convention, all Member States are obliged to use chemical agents to market plastic explosives. Other types of commercial high explosives are not tagged. At the same time, tagging or marking of the actual explosives has its limits, as traces of such taggants remain permanently in the material that exploded. For example, limestone which is first blasted and then turned into concrete will include the taggant of the first explosive used. If this concrete, at a later stage, is blasted again with another marked explosive, it seems that it is no longer possible to identify which explosives were used when. This would imply that in time, traces of different taggants can be found practically everywhere. Some industrial stakeholders also claim that it is highly expensive.

The vast majority of Member States have the ability to identify certain explosives and explosive materials found before and after detonation. Problems highlighted include the difficulties of identifying the type of detonator or explosive used due to the CE instead of national marking and the small samples available post blast.

Legislation

When looking at legislation in place, the most relevant instruments are the Council Directive 93/15/EEC on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil uses, which imposes a uniform set of manufacturing and quality assurance standards which must be met if a product is to be sold on the European market, and the related Commission Decision of 15 April 2004 on an Intra-Community transfer of explosives document, which contains a number of requirements for the transportation of explosives as well as an online document which must be completed by firms wishing to transfer explosives.

Other relevant legislation includes the draft Directive on the identification and traceability of explosives and the legislation related to ADR which includes specific provisions on explosives. At national level, all EU Member States have transposed the Directives related to explosives for civil use. The majority of Member States have elaborated legal and practical arrangements regarding the licensing or explosives and record-keeping requirements, requiring registration, applications for approval and introduction of security measures onsite.

2.2.4. Detection

2.2.4.1. Specific problems

The following specific problems can be identified:

· Detection technologies and devices cannot detect all explosives and explosives precursors.

· Detection technologies and devices do not always perform in line with the indications given by their manufacturers.

· People purchasing and working with detection technologies and devices are not sufficiently aware of the possibilities and limitations of these instruments.

· Detection technologies and devices are not always used in a strategic, targeted manner.

· Member States exchange little information on the quality and performance of detection equipment and undertake testing, trialling and certification in ‘isolation’.

· There are weaknesses in the EU knowledge triangle. Research ideas may not become innovations and it is difficult, at best, to get new products to market.

2.2.4.2. Scale of the problems and existing action

Detection is, in a sense, the last remedy where prevention activities have failed or have been circumvented. Detection tools should help to minimise the risks of terrorists using explosives. Efficient and accurate explosive detection tools are therefore necessary to increase the chances that explosives and substances that can be used to become explosives are identified. Important issues to be addressed in this regard are: overall improvement of detection technologies and their use by operators; the identification of priority areas to improve the strategic and targeted use of detection tools; and lack of EU cooperation / coordination leading to single market obstacles; and difficulties to roll out new solutions and technologies stemming from research onto the market.

The main groups of end-users on the market are:

· Airports, ports, railway stations and railway operators (passengers)

· Freight transporters, warehouses and logistic centres

· Government and public agencies: government buildings, courthouses, public stadiums, border crossings

· Financial institutions

· Operators of critical infrastructure (electricity, oil & gas networks, refineries)

A great number of European public and private actors are purchasing explosives detection equipment they did not have in the past, but there is also a necessity to replace and/or upgrade equipment regularly. The turnover time of such equipment is considered to be on average 3-5 years.

Improvement of detection technologies and their use

Knowledge on the performance of existing equipment and their use should be further improved. Detection technologies and devices may never be able to detect all explosives and all explosives precursors imaginable. Especially the use of the latter to make IEDs is a relatively new phenomenon. Further, operators can miss suspicious objects even if they had been correctly screened. The effective use of screening tools require overall very high skill levels and expertise of the operators.

Finally, end-users do not always employ updated, combined detection equipment. The detection of explosives is more effective if the technologies are combined. This is sometimes not done appropriately. Private operators of freight and/or passenger transport infrastructure, lacking the necessary funds, are not always able to install combined systems that can be further upgraded over time.

The identification of priority areas to improve the strategic and targeted use of detection tools

In addition to the issues related to the reliability and performance of detection tools, there is the challenge of placing the right equipment at the right place. Detection systems in the EU range from relatively ‘common’ types like X-ray machines and sniff dogs to more sophisticated technologies such as EDS machines, vapour detection, robots and biological detection systems. Most use these technologies at (Schengen) airports and harbours. Some countries have mobile detection units and can therefore make tactical use of their equipment. Especially those Member States with external borders refer to the use of detection technologies at border control posts. Member States are increasingly considering extending the coverage of these technologies to new locations, such as conference venues, railway and underground stations and other public facilities.

The demand for detection systems, as discussed above, has risen substantially in all areas /for all groups of end users. The costs of the equipment are considerable. For example, automated baggage control screening devices at airports can cost up to €1 million each (with a bags throughput of 900-1200 pieces per hour (slower machines are less costly, but have a much lower throughput). Smaller trace detection equipment may cost from €30,000 to 50,000, with a throughput of 30-60 bags per hour. Some personal detection tools that are considered relatively reliable (e.g. CAT) are slower, and do not allow for a quick trespassing of passengers. As already mentioned, detection is most effective when using a combination of solutions, thus making it necessary for users to purchase several tools.

From the above it is clear that, simply from a cost perspective, there is a limit to the amount of detection tools that can be purchased and installed. It is important to map and assess the detection needs and prioritise the placement of detection equipment. At present, often public and private users seem to have adopted a rather ad-hoc approach, placing equipment where the need seemed highest in order to, for example, comply with new legislation, address detection gaps and respond to (perceived) threats or real incidents.

Lack of EU cooperation / coordination leading to Single Market obstacles

The development and acquisition of detection solutions is a complicated and highly expensive endeavour. With the exception of some good practice in the aviation sector Member States' authorities that are purchasing detection equipment often have to rely entirely on the information provided by the producers and on the views of those few other actors, perhaps in other countries or other sectors, that have used the same or similar equipment. Each detection solution has to go through some form of nationally carried out testing and certification procedure, which is often lengthy and complex. Suppliers of detection solutions also face various obstacles. New demands for the detection of an ever increasing number of explosives and specific substances in ever smaller quantities require substantial research and innovation. In an industrial sector reigned by confidentiality (if criminals or terrorist would know what substances detection tools can identify this would defeat the purpose of the tool) producers find it difficult to meet the specific needs of their clients. In order to sell their solutions, they have to go through testing and certification procedures which vary from country to country.

This ambiguity in the results sheds light on the problems in the market of such devices: a major problem with detection equipment is that there is no common and reliable certification and testing in place in Europe. With the exception of detection for aviation purposes, there are no minimum requirements at EU level on the core features of the systems, e.g. what explosives should trace detection equipment identify, or what is the allowed probability of false signals? This unclear situation constitutes an obstacle to the functioning of the Single Market.

2.3. Who is affected, in what ways, and to what extent?

The entire EU society is affected by the identified high level problem as terrorists may strike anywhere and at any time. The availability of explosives and explosives precursors, and the open nature of internal EU borders mean that any EU Member States can be the subject of a terrorist threat.

The problem potentially affects all European citizens, inhabitants of the European Union, the Member State governments and the European Union as a whole. Effects can be both direct (e.g. casualties following a terrorist attack) and indirect (e.g. the disruption of certain services following, psychological damage).

2.4. How would the problem evolve, all things being equal?

The situation within the EU would continue evolving based on trends applicable today:

· Certain Member States would address the explosives security issue comprehensively because of a history of terrorist attacks or because of a perceived threat;

· Certain Member States would address the explosives security issue only to a certain limited degree due to the fact that they would not feel threatened by the possibility of terrorist attacks;

· Information exchange would take place on an ad hoc basis;

· Informal networks would continue to be built.

The above trends would generally improve the explosives security situation within the EU only marginally. Due to the free movement of goods and people within the EU and open internal borders there would continue to be a high risk that dangerous materials could be acquired and used with malicious intent. The lack of a detailed strategy and action plan at EU level would constitute a lost chance in combating terrorism.

2.5. Does the EU have the right to act?

2.5.1. General considerations

The use of explosives to harm innocent citizens has been the most common method used by terrorists to instil fear in populations accustomed to living in democratic, free and open societies. In October 2003 the JHA Council had concluded there was no need to introduce new measures on storage and transport of explosives. However, in the aftermath of the terrorist bombings in Madrid on 11 March 2004 a consensus started to emerge within EU Member States for the need to explore a more harmonised system that would prevent explosives, detonators, bomb-making equipment and fire-arms from falling into the hands of terrorists. In its 25 March 2004 Declaration, the European Council recognised the “need to ensure terrorist organisations and groups are starved of the components of their trade”. In particular it recognised “the need to ensure greater security of firearms, explosives, bomb-making equipment and the technologies that contribute to the perpetration of terrorist outrages”. Furthermore, the revised Plan of Action on Combating Terrorism of June 2004 called upon the Council and the Commission to examine the scope for measures to ensure greater security of explosives (Action 3.6.1).

The Commission, in its October 2004 Communication on Prevention, preparedness and response to terrorist attacks [4] signalled its intention to present proposals if necessary to ensure the highest possible security level in Europe. Indeed, the “Hague Program - Strengthening freedom, security and justice in the EU”, endorsed by the European Council in November 2004, explicitly invites the Commission to make proposals aimed at improving the storage and transport of explosives as well as at ensuring traceability of industrial and chemical precursors.

Nevertheless, for each of the measures proposed by the ESETF, considerations of subsidiarity and proportionality need to be considered separately – in other words, no action should be taken forward at the EU level unless there are good reasons for doing so. Although within the context of the Impact Assessment Report it would go too far to explicitly deal with this issue for all of the proposed actions, the following sections aim at clarifying this point for the main groups of proposed actions.

2.5.2. The added value of the European Union

The European Union is an area of increasing openness and an area in which the internal and external aspects of security are intimately linked. It is an area of increasing interdependence, allowing for the free movement of people, ideas, technology and resources. As a result it is also an area which terrorists may abuse to pursue their objectives and which has already been abused for this purpose. The foiled attacks in London and Glasgow on the 29th and 30th of June were a reminder of the threat. In this context concerted and collective European action, in the spirit of solidarity, is indispensable to combat terrorism.

The added value of the European Union in the explosives security field stems from the role of the EU in facilitating cooperation, funding and legislation.

2.5.2.1. The EU as a catalyst for cooperation

There is a clear need for cooperation at the EU level to co-operate to combat terrorism. Terrorism is international in character, the EU has shared borders and some terrorists can move freely within the EU. There is a strong emphasis in the proposed Action Plan on measures involving cooperation between Member State authorities and other stakeholders. The EU is well placed to lead and to act as a catalyst for this cooperation. In some cases the cooperation concerns the exchange of experience and good practice and in others it involves the exchange of intelligence that could have operational significance. These actions could themselves help reinforce channels for bilateral and multilateral cooperation between Member States. Member States are not all equally affected by the problems of terrorism. In some instances cooperation may only need to involve clusters of Member States facing similar challenges. At the same time international cooperation needs to co-operate extend beyond the EU and some of the actions will involve EU level agencies in this cooperation. Examples of actions involving cooperation at EU level include:

· The early warning system; the detection related scenarios and matrix;

· The bomb data system;

· The database on explosives;

· The conferences/events on the security of explosives;

· The network of experts on detection of explosives;

· The EOD network; and

· The dissemination of research results.

For all of these measures the added value of EU action is clearly demonstrated – in fact the international character of these measures is the core of what makes them effective. Co-operation between law enforcement authorities and exchange of relevant information are all covered under Title VI of the Treaty on European Union. The process of the development of the Action Plan has itself been a cooperative process involving a blend of Member State experts and stakeholders.

Another example of enhanced co-operation which does not immediately require legislative action can be found in the area of detection. Here the rationale for EU involvement is particularly clear – if agreement can be found on the standards and testing and certification schemes for detection equipment, this will benefit all suppliers of such equipment, since they will no longer have to ensure that their equipment meets different standards imposed by different Member States. For the public authorities, the benefits will be that they can be assured that detection levels can be evaluated and compared much better, thus increasing possibilities for comparison and exchange of best practices.

2.5.2.2. The EU as a provider of funding for actions

Some of the actions in the Action Plan involve EU expenditure. The cooperation activities will require EU funding. The actions concerning EU level research will require EU funding (FP7 and Crime Prevention Programme) but normally on a co-funded basis. These programmes have all been adopted on a separate legal basis and they pursue EU wide goals established together with the Member States. Some financial support is likely to be required to stimulate the testing and trialling of detection equipment and systems. Normally such costs would be met by the producers of such equipment. However, there is a strong public policy interest in ensuring that detection equipment and systems work in practice. There may be circumstances in which valid conditions for trialling and testing can only be created by the public sector. There may also be a strong case for keeping performance data on detection equipment and systems confidential to the public sector, in which case it would be unreasonable for manufacturers and suppliers to fund the testing and trialling. The advantage of co-funding from the EU is that the results could inform the strategies and tactics of security agencies across Europe.

2.5.2.3. EU legislation

Twelve of the actions potentially involve the use of EU legislation. Where this is the case, such actions will themselves have to be subject to Impact Assessment, which will have to provide further information on the EU's right to act and the legal basis for doing so. Without going into the detail, it is clear that in some cases the ‘normal’ rationales for EU legislation will apply. For example, there is a ‘single market’ rationale for the adoption of EU wide security measures for explosives manufacturers as well as a security rationale (the EU safety standards for explosives have in large part a single market rationale). Similarly, the harmonisation of EU requirements for the licensing and handling of large amounts of pyrotechnic articles could have, in part, a single market rationale. Other actions are closely linked to existing legislation for example, regulation concerning the transport of explosives and EX/II and EX/III vehicles. It should be emphasised here that many of these topics are already regulated to some extent by EU legislation, as mentioned above in Section 2.2.3.2. (such as Council Directive 93/15/EEC on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil uses, Commission Decision of 15 April 2004 on an Intra-Community transfer of explosives document, the draft Directive on the identification and traceability of explosives, the legislation related to ADR which includes specific provisions on explosives and the recent EU directive on pyrotechnic articles, which was adopted by Council on 16 April 2007 [5]. There are other actions where legislation may be required but where the rationale is principally to improve security. In these cases, careful account will need to be taken of the potential economic costs that could accrue and the challenges of enforcement. In addition, further simplification of legislation should be pursued whenever possible.

2.5.3. Proportionality

The assessment of proportionality of public policy to combat terrorism is extremely difficult. The arbitrary and apparently irrational nature of terrorism means that its threat and consequences have a disproportionate effect on EU citizens. The fear generated is strong and induces indirect damage to wellbeing way beyond the direct costs of loss of life, injury and property. The reactions of security agencies to terrorism can themselves induce massive costs and inconvenience on EU citizens. In these circumstances the vast majority of the actions in the preferred option are considered to be proportionate. The cautious approach recommended towards those actions where the benefits are uncertain and could potentially be outweighed by the indirect costs they could induce, will ensure that the preferred option is proportionate.

2.5.4. Subsidiarity

The development of the Action Plan has been undertaken in cooperation with Member States and the actions are anticipated to command strong support from them. Most of the actions either require action at the EU level or involve the encouragement and facilitation of approaches where there would be benefit in implementation following a similar path throughout the EU. Responsibility for security will continue to reside at Member State level but there is a strong recognition amongst Member States that where they have developed effective means to address the problems of explosives, they too would benefit from other Member States learning from this experience and where appropriate cooperating and adhering to common approaches.

The subsidiarity principle is satisfied as the measures being undertaken through the EU Action Plan cannot be achieved by any single EU Member State and must therefore be addressed at EU level.

Fundamental rights are not affected by the EU Action Plan. Any potential interplay will however be analysed in detail when taking up concrete actions under the Action Plan.

3. Objectives

The objective of an EU Action Plan on Enhancing the Security of Explosives would be to identify and prioritise actions that should be undertaken at EU level and actions that should be taken forward jointly by Member States, in order to combat the use of explosives by terrorists within the EU.

Such an EU Action Plan would cover explosives that are manufactured legitimately and illicitly. It would include measures organized under four strategic pillars:

· Horizontal Measures – aimed at improving exchanges of information, the development of threat assessments and research.

· Prevention Measures – focusing on awareness raising, control and regulation of precursors, increased control on the market of explosives and pyrotechnic articles, vetting and security measures in explosives facilities and transport and internet-related actions.

· Detection Measures – proposing scenarios, minimum standards, exchanges of information and EU-wide certification, testing and trialling schemes for detection tools.

· Preparedness and Response Measures – including the establishment of an EOD network and liaison with mobile telephone providers on the shutting down of antennas.

The following general, specific and operational objectives can be set for the Action Plan.

· General objective:

GO To reduce the number and potency of terrorist and other criminal incidents in the EU using explosives.

· Specific objectives:

SO1 To prevent the use of legitimately and illicitly manufactured explosives by terrorists and other criminals;

SO2 To increase the constraints on the illicit manufacture of explosives by terrorists and other criminals;

SO3 To reduce the reliability and potency of ‘home made’ explosives or components manufactured by terrorists and other criminals;

SO4 To increase the probability of detection of terrorists and other criminals illicitly handling and using explosives and precursors;

SO5 To reduce the smuggling of explosives into the EU destined for illicit use by terrorists and other criminals;

SO6 To increase the chances of prevention and intervention opportunities by law enforcement bodies.

· Operational objectives:

– To reduce theft by and the sale of explosives to (potential) terrorists and other criminals;

– To reduce the supply and quality of information on how to illicitly manufacture explosives;

– To better monitor the illicit use of explosives and the precursors and components of explosives;

– To label explosives and the precursors and components of explosives to generate evidence that would lead to the conviction of terrorists and other criminals;

– To improve the quality of detection and enforce detection standards;

– To ensure that new detection solutions and technologies from research are rolled out on the market;

– To increase the application of good practices that improve the security of explosives.

4. Policy options

Four policy options have been identified concerning the establishment of an EU Action Plan on Enhancing the Security of Explosives. These options have been elaborated based on the recommendations for specific actions set fourth in the Explosives Security Experts Task Force (ESETF) report and group together the various ESETF recommendations depending on their impact:

· Policy Option 1 – Status Quo

· Policy Option 2 – Minimum Option

· Policy Option 3 – Intermediate Option

· Policy Option 4 – Maximum Option

The ESETF report identified specific recommendations for actions which were meant to be the basis for the EU Action Plan [6]. These measures were reorganised, and in certain cases merged for the purpose of clarity, under:

· An overarching heading containing measures applicable horizontally;

· Three strategic headings:

– Prevention

– Detection

– Preparedness and response

This organisation is kept throughout this impact assessment.

At this point it should be clarified that the different policy options and the packages of measures contained within them have been structured in this way in order to allow discussion of a limited number of options only, and also to focus the discussion on those issues which are likely to have the most impact. The different options are cumulative – in the sense that each higher numbered option also contains the actions in the lower numbered option(s). This approach was taken to avoid the need to discuss as many options as proposed actions in the action plan. The packages of possible actions which have been included in the different options have been construed on the basis of a prima facie assessment of their possible impact – in order to ensure that the measures which can be implemented easily and quickly would in any case be included in the Action Plan, and proposals on which more discussion could be expected would feature in the more elaborate options.

4.1. Policy Option 1 – Status Quo

The first Policy Option implies that no changes are made to the current situation. All actions included are already underway or are planned to happen even in the absence of the Action Plan. The Status Quo is a combination of existing organisations responsible for the provision of strategic assessments on counter-terrorism matters, a research package which includes allocations related to the security of explosives, a legislative acquis concerning aviation security, transport of dangerous goods and the development of the single market of civil explosives and draft legislation in the area of the traceability of explosives for civil use and harmonisation of criminal sanctions on distributing bomb-making experience on the internet.

It should be mentioned that measures also exist at national level. These relate to all aspects of explosives security, ranging from public security aspects, precursors, supply chain and detection. However, as mentioned in section 2 – problem definition, the approaches vary greatly across the EU, with some Member States applying high explosives security standards in nearly all areas and others having relatively underdeveloped security systems and mechanisms.

OPTION 1 – STATUS QUO

Horizontal measures

Improve the exchange of timely information and best practice

Europol and Eurojust

Strengthen explosives related research

Current FP7 research with regard to detection and public security (e.g. Security Research Call, 1 of Dec 2006)

Prevention measures

Improve the control over explosives available on the market and pyrotechnic articles

Implementation of the Traceability Directive (recommendation 22 [7])

Directive on explosives for civil use

Reduce the supply and quality of information on how to illicitly manufacture explosives

Harmonize criminal sanctions for distributing bomb-making experience over the Internet (recommendation 41.)

Improve the security of transport of explosives

ADR legislation and working group on transport

Detection Measures

EU legislation in the area of aviation security

4.2. Policy Option 2 – Minimum Option

The second Policy Option includes a variety of measures which together form a ‘package’ combining horizontal measures, prevention initiatives, detection measures and actions to increase preparedness and readiness to respond. Based on broad consultations, it is anticipated that a majority of stakeholders would consider these actions ‘acceptable’ and beneficial, with relatively low costs and risks. The Policy Option has a strong focus on:

· Exchanging information, knowledge and experience, both vertically and horizontally

The option includes several proposals for the establishment of cooperation and coordination mechanisms in the shape of databases, events, expert groups and networks. Together these would form the knowledge and intelligence base of the Action Plan. The actions proposed do not only concern the horizontal, EU level, but also affect the national level.

· Further existing and launching new research

Several of the actions include research into new areas and expanding research in already existing areas. Most have a very practical focus, linking the themes to other concrete actions. For example, the research proposed with regard to the detection of IEDs at airports will feed into the actions aimed at improving detection technologies overall.

· Awareness-raising and alerting options in the precursors supply chain

Recent events have once more showed the importance of making all actors in the supply chain of precursors and explosives more aware of the potential risks and suspicious transactions. The option includes several actions that relate to campaigns and the development of alert mechanisms.

· Assessments and feasibility studies whether further measures should be undertaken

The option also includes several actions aimed at assessing the feasibility and launching debates on some of the more ‘challenging’ initiatives which would be included in the Action Plan. As for the actions that focus on research, they are meant to feed into actions with a more ‘operational’ focus.

· Some additional security and detection measures

Finally, the option includes a limited number of actions with an ‘operational’ focus, covering the security of facilities and detection.

OPTION 2 - MINIMUM OPTION

Horizontal measures

Improve the exchange of timely information and best practice

Establish an Early Warning System (recommendation 39. and 40.)

Regularly organise an event on the security of explosives (recommendation 50.)

Develop threat assessments

Consider developing specialised threat assessments (no number in ESETF report)

Strengthen explosives related research

Improve the aggregation and spread of research results (recommendation 49.)

Perform further research on: 1 – IEDs; 2 - Chemicals found at an investigation scene; 3 - Detection of explosives and precursors; and 4 - Mobile explosives kits (recommendation 47.)

Perform further research concerning the detection of Improvised Explosive Devices at airports, land and maritime locations (recommendation 31.)

Perform further research to find inhibitors which could be added to precursors (recommendation 48.)

Support further research to find technical solutions to jam mobile phones (recommendation 45.)

Prevention measures

Improve staff awareness and alerting concerning precursors

Public authorities to provide security information to the entire precursor supply chain (recommendation 1.)

Simple means within supply chain to alert national authority (recommendation 2.)

Campaigns to raise staff-awareness all along supply chain (recommendation 3.)

Improve the control over transactions involving precursors

Assessing benefits of creating a scheme for each precursor handled by retail sector, under which all packaging would be labelled with a code specifying subject of registration (recommendation 9.)

Improve the control over explosives available on the market and pyrotechnic articles

Launch debate on the need to review the classification of "desensitized" explosives (recommendation 19.)

Improve the security of explosive facilities

Effective Security Plans/Security Management Systems at all facilities (recommendations 12. and 14.)

Detection Measures

Establish scenario based approach to identifying work priorities

Setup of a working group to develop scenarios and to identify technology requirements (recommendation 23.)

Create matrix of what is desired and currently possible in each scenario (recommendation 24.)

Developing minimum detection standards

Develop mechanisms for the identification and dissemination of good practice in detection systems and use of detection equipment (part of recommendation 25.)

Improving the exchange of information

Ensure that security staff are provided with up-to-date information on new terrorist modi operandi (recommendation 42.)

Assess and improve where necessary the situation as regards the availability of training data and other information/feedback for manufacturers of detection solutions (recommendation 30.)

Create an end-user focused handbook concerning detection (recommendation 33.)

Create a network of experts on the detection of explosives (recommendation 34.)

Establish EU-wide certification, testing and trialling schemes

Develop mechanisms for the identification and dissemination of good practice in detection systems and the use of detection equipment (part of recommendation 27.)

Assess the need for the development of standards concerning certification, testing and trialling processes (recommendation 29.)

Improve the usage of detection technologies in specific locations

Improve and support the use of detection technologies at airports, railway stations and other public facilities (recommendation 31.)

Preparedness and response measures

Improve the exchange of information and best-practices among relevant Member State authorities

Establish a European EOD Network (recommendation 38.)

4.3. Policy Option 3 – Intermediate Option

The third Policy Option is again a mix of horizontal measures, prevention initiatives, detection measures and actions to increase preparedness and readiness to respond. There is, however, a relatively higher focus on actions in the area of prevention. This option includes all actions under Policy Option 2 with the addition of additional actions deemed to be more sensitive in nature and requiring bigger efforts for implementation.

The overall focus of Policy Option 3 is more operational, with a set of measures built around:

· Regulation of new areas and updating regulatory arrangements in others

· Several actions focus on addressing areas which are currently insufficiently covered or not addressed at all, such as vetting of staff working with explosives, the precursors market and raw materials used to manufacture explosives. Other actions may not result in legislation but constitute otherwise binding requirements, such as the obligation for Member States to keep explosives manufacturers and distributors informed of regional threats.

· Introducing EU schemes and standards

· In the area of detection, the option proposes the development of new, EU-wide schemes to certify and test detection solutions. In addition to increasing the performance of detection systems, these are also aimed at further removing single market obstacles.

· Concrete security interventions

· The option also presents several actions with a practical focus on improving existing standards, such as the initiative to improve the security of Mobile Explosive Manufacturing Units (MEMUs) and of EX/II and EX/III vehicles carrying explosives. Others focus on mobile phone networks and the Internet.

OPTION 3 - INTERMEDIATE OPTION

Horizontal Measures

Improve the exchange of timely information and best practices

Create a European Bomb Data System (recommendations 35.,36. and 37.)

Prevention Measures

Improve the regulation of explosives precursors available on the market

The establishment of a system concerning the regulation of explosives precursors available on the market

(recommendation 4.)

Improve the control over explosives available on the market and pyrotechnic articles

Ensure that each Member States has formal systems for authorising, regulating and licensing the manufacture, storage, sale, use and possession of explosives including by private persons (recommendation 21.)

Improve the security of explosives facilities

Introduce an obligation for the relevant national authorities to keep explosives manufacturers and distributors informed as to the regional threat at all times (recommendation 13.)

Raw materials used in the manufacture of bulk explosives and finished product should be periodically accounted for and reconciled as approved by the National Authorities (recommendation 20.)

Improve the security of Mobile Explosive Manufacturing Units (MEMUs) (recommendation 15, 16, 17.)

Improve the security vetting of personnel

All personnel employed in the manufacturing, storage, distribution and use of explosives should be vetted and hold a formal authorisation to have access to explosives (recommendation 11.)

Improve the security of transport of explosives

All EX/II and EX/III vehicles carrying explosives should be equipped with certain security enhancement solutions

These security solutions include (recommendation 18.):

1) be fitted with 24 hour remote monitoring systems

2) be capable of immobilising the engine remotely if safe and applicable subject to the Vienna Convention

3) be fitted with an anti theft system.

4) have sufficiently secure compartments

5) be fitted with a means of communication

6) have a recognised marking affixed to the roof of the vehicle

Reduce the supply and quality of information on how to illicitly manufacture explosives

Part of 41: Limit the spread of bomb-making experience over the internet (recommendation)

Detection Measures

Improving the exchange of information

Create a database containing the specifications of explosives produced within the EU (recommendation 32.)

Establish EU-wide certification, testing and trialling schemes

Create a European wide certification scheme for detection solutions (recommendation 26.)

Create a European wide testing scheme for detection solutions (recommendation 27.)

Create a European wide trialling scheme for detection solutions (recommendation 28.)

Preparedness and response measures

Develop specific preparedness and response measures for terrorist threats using explosives

Create the possibility for relevant law enforcement authorities to request providers to shut down mobile phone antennas in the case of a threat of a terrorist attack (recommendations 44. and 46.)

4.4. Policy Option 4 – Maximum Option

The fourth Policy Option is a mix of prevention initiatives and detection measures, mainly addressing regulatory aspects, recording and reporting mechanisms and standardisation.

The option includes all actions under Policy Option 3 with the addition of measures identified in the ESETF report which can be described as being very ambitious and which require genuine commitment to the process.

Option 4 is ambitious, including a ‘package’ of measures focusing on:

· Regulation of new areas and updating regulatory arrangements in others

· Several new legislative instruments are included, such as the legal obligation to record the identity of buyers of certain quantities / concentrations of precursors, a ban on selling precursors to minors and harmonisation of legislation in the area of pyrotechnic articles.

· Introducing EU schemes and standards

· New schemes are proposed for the recording of the identity of the buyers of precursors, for reporting on suspicious transactions and for trialling detection solutions. Minimum standards are proposed concerning the security of storage of explosive precursors.

OPTION 4 - MAXIMUM OPTION

Prevention Measures

Improve the regulation of explosives precursors available on the market

Introduce a system for the recording of the identity of the buyer of precursors above certain quantities and/or concentrations (recommendation 7.)

A European minimum standard and industrial guidance by way of an appropriate code concerning the security of storage of explosives precursors (recommendation 8.)

Improve the control over transactions involving precursors

Establish a system of reporting suspicious transactions (recommendation 5.)

A binding system concerning the notification to the relevant national authority of any transactions involving the products on the list which can be considered suspicious (recommendation 6.)

Introduce a complete ban on selling precursors to minors (recommendation 10.)

Improve the control over explosives available on the market and pyrotechnic articles

Harmonise EU requirements for the licensing and handling of large amounts of pyrotechnic articles (recommendation 43.)

Detection measures

Developing minimum detection standards

Develop minimum detection standards (recommendation 25.)

5. Analysis of impacts

5.1. Introduction

The four Policy Options have been assessed by considering each of the ‘actions’ in terms of:

· The benefits that might accrue: their contribution to the general policy objective and the six specific objectives. The benefits have been summarised through allocating ratings (from 0 to 5) for the general and each of the specific objectives.

· The financial and economic effects of each action. These have been summarised by classifying them by scale and predictability. Six categories have been used: low costs, predicable (less than 500,000 Euro); medium costs, predictable (between 500,000 Euro and 2.0 million Euro); high costs, predicable (above 2.0 million); low costs but uncertain, (where the action needs to be more clearly defined and some further feasibility work will be required); medium costs but uncertain; and, high costs but uncertain. The costs may be both financial costs to public administrations and costs that may accrue to economic actors. The financial costs have been estimated by reference to analogous actions such as existing networks and databases operating at the EU level. The estimates are necessarily approximate.

· The dependence on other actors to ensure the implementation of the ‘actions’. Whilst this is an EU Action Plan, in order to realise the benefits of the actions many non EU level actors would need to be engaged in implementation. Arguably the need to engage others increases the uncertainty that benefits might be realised.

· The potential effects on fundamental rights. These effects are described for each action, where such an effect may exist.

· The potential environmental effects. As for fundamental rights, these effects are only described where they are likely to be significant.

· The need to change or develop EU legislation. As for the fundamental rights and the environmental effects, these are only mentioned where such need is anticipated. In a number of cases the need for EU legislation is a distinct possibility, but may not be required.

Each Policy Option and its individual actions are considered in turn. Given the high number of actions proposed, it is impossible within the scope of this report to provide individual assessments of all actions in the report – which focuses on the assessment of the most important actions. All of the individual actions are however considered in more detail in Annex 1.

5.2. Policy option 1 – The status quo

5.2.1. Assessment by action

There are 7 ‘actions’ in this Policy Option. Each of these is only mentioned briefly here – a more detailed assessment is provided in Annex 1.

5.2.1.1. Horizontal measures

Improve the exchange of timely information and best practices

Strengthen explosives related research

5.2.1.2. Prevention measures

Ensure the identification and tracing of explosives based on the system proposed in the Commission Directive on the identification and traceability of explosives for civil use (Traceability Directive).

Council Directive 93/15/EEC on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil uses

ADR legislation and working group on transport

Harmonise criminal sanctions for distributing bomb-making experience over the Internet

5.2.1.3. Detection measures

EU legislation in the area of aviation security

5.2.2. Overall assessment of Policy Option 1

The first policy option includes 7 actions which are likely to be implemented regardless of whether an EU Action Plan is developed. The 7 actions would most likely have a relatively small effect on the general objective of reducing the number and potency of terrorist incidents using explosives. This would be so because the measures would not address the core of the problem which is the availability and easy access to explosives and explosive precursors.

The fact that terrorist attacks using explosives have been committed in the EU in recent times confirms that existing measures and initiatives may be insufficient.

5.3. Policy option 2 – Minimum option

5.3.1. Assessment by action

There are 24 ‘actions’ in this Policy Option. Each of these is briefly considered in turn. A more detailed assessment is provided in Annex 1.

5.3.1.1. Horizontal measures

Establish an Early Warning System (recommendations 39. and 40.)

The system would mainly help to increase the chances of preventing the use of explosives as it would ensure direct and continuous exchanges of information and coordination between the Member States as to threats, thefts, suspicious transactions and new modi operandi.

Regularly organise an event on the security of explosives (recommendation 50.)

The events would help to increase the overall knowledge on the security of explosives and enable networking between all stakeholders in the field. There would be scope for involving other, more focused, networks (e.g. the detection experts, EOD units) that are active in the field.

Consider developing specialised threat assessments (no number in ESETF report)

It is difficult to identify the benefits or the potential financial and economic effects of this action without additional details as to what the action will cover. If its concerns specialised assessments on the threat of explosives, it would help to increase the chances of prevention and intervention and help to reduce the number and potency of terrorist and other criminal incidents in the EU using explosives.

Improve the aggregation and spread of research results (recommendation 49.)

The action would help to increase the overall knowledge in the field of explosives security and avoid overlaps and duplication of research efforts. This would have an overall positive impact on the objective to reduce the number and potency of terrorist and other criminal incidents in the EU using explosives.

Perform further research on: 1 – IEDs; 2 - Chemicals found at an investigation scene; 3 - Detection of explosives and precursors; and 4 - Mobile explosives kits (recommendation 47.)

Further research would have a positive impact if it is targeted at exploring and developing methods for testing and trialling practical solutions to reduce the use of explosives and explosives precursors by terrorists and other criminals. Research in the area of IEDs is very useful as there is little literature and research undertaken on this type of explosives which is being increasingly deployed. Research into chemicals found at an investigation scene is also necessary, as shown by the fact that after the 7/7 2005 attacks in London, it took more than two weeks to make the sites to be investigated safe to enter. Research into detection is useful, but what is equally important is to ensure the roll out of the results to the market. Finally, with regard to the mobile kits, some may already be in use and research should focus on their further development.

Perform further research to find inhibitors which could be added to precursors (recommendation 48.)

Provided the action builds on ongoing and past research, it could help to increase constraints on illicit manufacture of explosives and prevent their use by terrorists and criminals, by reducing the number of precursors that can be used to produce IEDs. Various actors from the chemical industry have stressed that it is very difficult to identify inhibitors which would not affect the performance of the precursors especially in the case of precursors for industrial use.

Perform further research concerning the detection of Improvised Explosive Devices at airports, land and maritime sites (recommendation 31.)

Especially in the light of their increased use, research to enable a better detection of IEDs would certainly be beneficial to prevent the use of explosives by terrorists and criminals and to increase the probability of detection. It would be a very challenging task as it implies the identification of an extremely large number of substances.

Support further research to find technical solutions to jam mobile phones (recommendation 45.)

When considering that mobile phones have been used several times to set off explosives, research to better understand how to jam mobile phones in a safe and secure way would help to reduce the number of terrorist and other criminals using explosives in the EU and the potency of their attacks. It will also contribute to prevention and intervention opportunities. The precise scope of the actions should be identified in more detail.

5.3.1.2. Prevention measures

Public authorities to provide security information to the entire precursor supply chain (recommendation 1.)

National awareness-raising has already proved helpful in preventing the use of explosives by terrorists and other criminals, constraining the illicit manufacture of explosives, and increasing the probability of detection and of prevention and intervention.

Simple means within the supply chain to alert national authority (recommendation 2.)

The benefits of this action are high, as proven by ‘Operation Crevice’ where a staff member of a public self-storage facility realised, through a discussion with friends, that the 600 kg of ammonium nitrate fertilizer found could be used to develop an IED. The agricultural supplier who had sold the fertilizer said that the young man who had bought it had claimed it was for his garden, admitting however that he knew the quantity purchased was far in excess of the amount needed.

Campaigns to raise staff-awareness all along the supply chain (recommendation 3.)

It is essential that recommendations 2 and 3 are implemented together, as they depend on each other. The impact of recommendation 3 is the same as recommendation 2. As mentioned above, there have been instances where public and business awareness has been decisive in alerting the authorities to a potential conspiracy or intention to cause an explosion. This includes the failed suicide attacks in 2005 on the London Underground where a rubbish cleaner noted a large amount of empty acetone bottles which helped to identify the flat used by the bombers to make their IEDs.

Assessing benefits of creating a scheme for each precursor handled by retail sector, under which all packaging would be labelled with a code specifying the subject of registration (recommendation 9.)

The benefits of this action are not clear at this stage as the assessment may conclude that the creation of such a scheme would not have the desired effects. It seems that only if such labelling was carefully coordinated with the recording of the corresponding sales there might be a benefit. But it may prove difficult to ensure uniformity in the introduction and enforcement of such a system.

Launch debate on the need to review the classification of "desensitized" explosives (recommendation 19.)

The debate is useful to raise awareness and to increase knowledge. Excluding these types of explosives from the list of dangerous goods could have a very negative effect should terrorists and other criminals be able to reconvert such material into potentially dangerous compounds.

Effective Security Plans/Security Management Systems at all facilities (recommendation 12. and 14.)

Pre-emptive measures will help to prevent thefts and incidents at explosives facilities, which have indeed occurred in the recent past. It is stressed that measures are equally important in countries with lower threat levels as the theft of explosives is a cross-border issue (e.g. ETA stealing from quarries in France). The action would bring substantial benefits in terms of preventing the use of explosives by terrorists and increasing the chances of prevention and intervention opportunities by law enforcement bodies. As such it would help to reduce the number of terrorists and other criminals using explosives and the potency of their attacks.

5.3.1.3. Detection Measures

Setup of a working group to develop scenarios and to identify technology requirements (recommendation 23.)

This action is to consider at a strategic level the origin and nature of threats concerning IEDs, manufactured explosives, targets, perpetrators etc. The development of scenarios will be beneficial to ensure the targeted and strategic use of detection equipment systems, thus increasing the probability of detection and the chances of prevention and intervention opportunities.

Create a matrix of what is desired and currently possible in each scenario (recommendation 24.)

The assessment is the same as for action implementing recommendation 23 above. The actual content of the matrix would be a national responsibility, while it would be beneficial to discuss how to develop the matrixes and what items to include.

Develop mechanisms for the identification and dissemination of good practice in detection systems and use of detection equipment (part of recommendations 25 and 27.)

Whilst the industry may not be ready for minimum standards (which are proposed in the original recommendation 25), there would be scope in first identifying good practice and lessons learnt with regard to existing detection systems and standards, for example in the aviation sector. Such exchanges could contribute to increasing the probability of detection and the chances of prevention and intervention opportunities.

Ensure that security staff are provided with up-to-date information on new terrorist modi operandi (recommendation 42.)

Ensuring that security staff are immediately updated regarding any new terrorist TTPs (Tactics, Targets and Planning) is important and will have a positive impact in terms of increasing the chances of prevention and intervention opportunities, as shown by the liquid explosives precursors alert started in the UK. The EWS could be used as a source. Rather than re-creating what already exists, it would be beneficial to carry out an audit of Member States to establish exactly what communication structures are already in place for the sharing of such information.

Assess and improve where necessary the situation as regards the availability of training data and other information/feedback for manufacturers of detection solutions (recommendation 30.)

Feedback to manufactures is essential to enhance the quality of detection, thus increasing the probability of detection of terrorists and other criminals handling and using explosives and increasing the chances of prevention and intervention.

Create an end-user focused handbook concerning detection (recommendation 33.)

The handbook would provide advice to end users, in the form of a user manual on detection systems in general. It should not include information on the performance of the detection system that could be useful to anyone trying to avoid explosives material being detected. Regular updates would be required, and for this purpose it may be best to use a virtual tool.

Create a network of experts on the detection of explosives (recommendation 34.)

The network of experts would increase knowledge-sharing and exchanges of experiences in the area of detection, thus helping to increase the probability of detection of terrorists and other criminals and improving the chances of prevention and intervention. Any proposed networking activity should be based on existing cooperation initiatives, where these are in place.

Assess the need for the development of standards concerning certification, testing and trialling processes (recommendation 29.)

Especially in view of the actions that relate to the actual development of certification, testing and trialling schemes, this action is very useful as it would assess the need and the feasibility of such processes. There is little impact on the objectives through the needs assessment itself, but its consequences could contribute to an increase in the probability of detection of terrorists and other criminals handling and using explosives and explosives precursors.

Improve the use of detection technologies at airports, railway stations and other public facilities (recommendation 31.)

The precise scope of the measure should be further developed. Given the overall higher level of regulation and coordination, it is likely that lessons can be learned from the aviation sector. It is evident that overall security measures and the use of detection could be improved in other sectors, particularly in harbours and at ‘high-risk’ public facilities, as this would increase the probability of detection of terrorists and other criminals and improve the chances of prevention and intervention.

5.3.1.4. Preparedness and response measures

Establish a European EOD Network (recommendation 38.)

The EOD network would increase information and knowledge sharing, through the identification of best practices, the organisation of joint training and the dissemination of information relevant to all EOD units. Perhaps more importantly, it would help to build mutual trust. It should build on existing cooperation models. Positive impacts are expected on objectives related to the prevention of the use of explosives by terrorists and other criminals, the detection of terrorists illicitly handling and using explosives and explosives precursors and the prevention and intervention opportunities by law enforcement bodies.

5.3.2. Overall assessment of Policy Option 2

Of the 24 actions, the action judged to be most effective with respect to the overall objective is the introduction of security plans and management systems at all explosives facilities. There are five actions that are rated as ‘3’ with respect to their effectiveness in contributing to the general objective. They are: establishing an early warning system: establishing simple means within the precursors supply chain to alert national authorities of suspicious transactions; campaigns to raise awareness of staff all along the precursors supply chain; ensuring that security staff using detection equipment are provided with up to date information on terrorist modus operandi; and, establishing a European EOD network.

Two of the actions in this Policy Option are of a character that no contribution to the general objective ‘to reduce the number and potency of terrorist incidents using explosives’ is likely to accrue immediately. Both involve the assessment of needs and preliminary investigation.

Together, the combination of actions in this Policy Option would contribute positively to all of the specific objectives. The impact would be greatest with respect to specific objective 6, followed by specific objectives 1 and 4. The impact would be least with respect to specific objective 5.

The majority of the ‘actions’ in this Policy Option have low and predictable costs. Only 5 of the actions have uncertain costs and in only one case is the action anticipated to have high and uncertain costs. This particular action is the introduction of security plans and management systems at all explosives facilities which is considered to be likely to be the most effective. The costs are likely to accrue to in particular, users of explosives in countries where hitherto security standards have been relatively low. Other ‘actions’ where the costs are uncertain and likely to be medium are: consideration of developing specialised threat assessment; and, campaigns to raise staff awareness all along the supply chain. The latter is assessed as being one of the most effective of the actions in this option.

One action may require a change to EU legislation. Four actions may impact on fundamental rights. Finally, some environmental effects are anticipated as a result of 11 actions.

The majority of actions in this Policy Option have a low dependency on non EU actors hence implementation should be relatively straightforward and could take place in the short term.

5.4. Policy option 3 – Intermediate option

5.4.1. Assessment by action

There are 14 actions in this Policy Option over and above those in Policy Option 2. Each of these is briefly considered in turn. A more detailed assessment is provided in Annex 1.

5.4.1.1. Horizontal measures

Create a European Bomb Data System (recommendation 35, 36 and 37.)

The creation of a E