Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the marketing and use of explosives precursors
Date: 2010-09-20
Institutions: European Commission
Subjects: consumer protection, explosive, harmonisation of standards, leisure, marketing, product safety, technical standard

EN 

EN 

   EN 

 
EUROPEAN COMMISSION 

Brussels, 20.9.2010 
COM(2010) 473 final 

2010/0246 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

on the marketing and use of explosives precursors 

(Text with EEA relevance) 

SEC(2010) 1041 
 SEC(2010) 1040 

EN 

   EN 

 
 
  
 
 
EXPLANATORY MEMORANDUM 

1. 

110 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

The  proposed  regulation  addresses  the  problem  of  the  misuse  of  certain  chemicals, 
which are widely available to the general public on the market, as precursors to home-
made  explosives.  Home-made  explosives,  in  turn,  are  the  tool  most  preferred  by 
terrorists  and  other  criminals  to  perpetrate  attacks.  The  main  aim  of  the  measures 
proposed  is  to  reduce  this  risk  by  preventing  access  to  selected  highly  concentrated 
chemicals by the members of the general public.  

120 

•  General context 

Home-made  explosives,  fabricated  from  certain  easily  accessible  chemical  precursors, 
are  a  preferred  tool  for  perpetrators  of  terrorist  attacks,  from  which  the  EU,  as 
documented in the Europol TE-SAT reports, is not spared. Currently, the general public 
has relatively easy access to these chemicals even when in concentrations sufficient to 
produce a powerful explosive device. The scale of the problem is amplified by the fact 
that the chemical market in the EU is large and diversified, with multiple end-users. The 
supply chain for precursors, and in particular the last segment (sales to end users), is in 
general  insufficiently  aware  of  the  risks  posed  by  individuals  involved  in  serious 
criminal  activities  and  terrorism  attempting  to  obtain  precursors.  Some  supply  chain 
actors,  in  particular  at  the  end  of  the  chain,  have  sold  precursors  to  terrorists  or  other 
criminals in quantities  that  should have raised  suspicion.  While  several legislative and 
non-legislative  measures  exist  at  international,  EU  and  national  level,  these  are  either 
not specifically focused on the security risks associated with certain chemicals or do not 
cover the entire EU. This implies that precursors that may be restricted or controlled in 
one country can be easily obtained in another. This causes not only a security problem 
but also a problem for the smooth functioning of the internal market.  

130 

•  Existing provisions in the area of the proposal 

Regulation  (EC)  No  1907/20061  (REACH)  —  this  covers  chemicals  from  the  safety 
perspective  but  —  with  one  exception  —  does  not  address  the  concerns  of  security 
related to chemical precursors to explosives.  

Annex XVII of REACH2 includes a ban on the sale to the general public of ammonium 
nitrate (one of the precursors of concern) containing 16 % or more nitrogen. However, 
this  instrument  does  not  provide  for  licensing  schemes  or  reporting  of  suspicious 
transactions,  and  only  concerns  one  of  the  precursors  identified  as  high-risk  in  the 
Action Plan on Enhancing the Security of Explosives.  

Council  Directive  91/414/EEC3  —  this  phases  out  the  sale  of  weed-killers  containing 
chlorates, but addresses only one particular use of these chemicals, and only one group 
of chemical precursors to explosives of concern. 

1 

OJ L 396, 30.12.2006, p.1. 

EN 

2 

   EN 

                                                 
140 

•  Consistency with the other policies and objectives of the Union 

The proposal is in line with the policy objectives set out in the European Union Counter-
terrorism Strategy4, the Action Plan on Enhancing the Security of  Explosives5 and the 
Stockholm  Programme  —  An  open  and  secure  Europe  serving  and  protecting  the 
citizens.6  

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

211 

Consultation methods, main sectors targeted and general profile of respondents 

The  proposed  policy  builds  on  the  work  and  recommendations  of  the  Standing 
Committee  on  Precursors  (SCP).  This  Committee  is  an  ad  hoc  advisory  Committee 
composed of experts from the EU Member State authorities and representatives of the 
private sector, and is chaired by the Commission. It so far has met ten times in order to 
advise  the  Commission  on  the  substances  covered  by  this  Regulation  and  other 
measures  aimed  at  explosives  precursors.  On  13  February  2009,  the  SCP  adopted  its 
annual  report  for  2008  which  contained  concrete  recommendations  for  enhancing  the 
security of precursors.  

These  recommendations  served  as  the  basis  for  an  impact  assessment  study.  The  SCP 
was  closely  involved  in  the  development  of  this  study  —  its  members  (from  both  the 
public  and  private  sector)  were  consulted  on  a  regular  basis.  In  addition,  an  online 
business  survey  and  two  stakeholder  workshops  were  organised  to  validate  the 
assessment  of  the  policy  options  proposed  in  the  draft  study.  The  consultations  in  the 
course of the development of the preparatory study also included consultation of some 
SMEs  that  would  be  most  affected  by  possible  measures  on  precursors,  in  particular 
hexamine producers. 

212 

Summary of responses and how they have been taken into account 

This consultation process with external and internal stakeholders resulted in a high level 
of consensus on the preferred policy option and a practical and realistic balance between 
security concerns on the one hand, and industry, retail and consumer welfare concerns 
on the other. Concerns on the part of industry and the SMEs most affected (in particular 
producers  of  hexamine  fuel  tablets)  have  been  accommodated  in  the  final  text  of  the 
proposal.  

•  Collection and use of expertise 

221 

Scientific/expertise domains concerned 

2 
3 
4 
5 
6 

As amended by Commission Regulation (EC) No 552/2009; OJ L 164, 26.6.2009, p. 7 
OJ L 230, 19.8.1991, p.1 
14469/3/05 REV 3 
8109/08 
OJ C 115, 4.5.2010, p.1 

EN 

3 

   EN 

 
 
                                                                                                                                                         
The  proposal  is  based  to  a  large  extent  on  security  research  and  tests  conducted  by 
several  EU  Member  States.  Expertise  on  the  market  for  chemicals  and  the  use  of 
chemical products was provided by industry representatives. 

222 

Methodology used 

The  results  of  the  security  research  and  tests  were  reflected  in  the  development  of 
recommendations  to  the  European  Commission  by  the  Standing  Committee  on 
Precursors, and were included in the assessment of impacts and evaluation of individual 
policy options in the course of the impact assessment study carried out by an external 
contractor.  

223 

Main organisations/experts consulted 

CEFIC,  FECC,  experts  from  the  relevant  authorities  of  the  Member  States,  as  well  as 
consultancy firms — GHK, Rand Europe, Comstratos. 

2249 

225 

Summary of advice received and used 

While the risk of the potential misuse of certain chemical precursors to produce home-
made  explosives  cannot  be  completely  excluded,  it  can  be  considerably  reduced  by 
limiting the availability of such chemicals above certain concentration thresholds to the 
general  public.  The  thresholds  proposed  are  based  on  the  security  research  and  test 
results  and  on  an  analysis  of  the  use  of  the  chemical  substances  in  question  by  the 
general public.  

226 

Means used to make the expert advice publicly available 

The  ‘Preparatory  Study  to  Inform  an  Impact  Assessment  of  Potential  Legislative  and 
Non-Legislative  Restrictions  on  Chemical  Precursors  to  Explosives’  has  been  shared 
with  the  members  of  the  Standing  Committee  on  Precursors  (and  via  them  with  the 
Member  State  authorities  and  industrial  stakeholders),  and  can  be  obtained  from  the 
Commission upon request.  

230 

•  Impact assessment 

The options considered included voluntary measures by the private sector (industry and 
retail),  regulatory  action  carried  out  by  the  Member  States  individually,  legislative 
measures at the European Union level, and a combination of these.  

Voluntary  measures  by  industry  and  the  retail  sector  would  entail  reporting  of 
suspicious  transactions,  awareness  raising  campaigns  among  employees  about  the 
security  risks  related  to  the  chemicals  of  concern,  and  enhancing  the  security  of  the 
entire  supply  chain  for  these  chemicals.  Efforts  undertaken  by  the  European 
Commission  with  several  European-level  associations  in  2008  have  shown  that,  while 
desirable,  such  measures  cannot  in  themselves  achieve  the  desired  goal  of  enhanced 
security because uniform enforcement and outreach to all relevant stakeholders EU-wide 
cannot be ensured.  

Some  Member  States  have  already  adopted  either  voluntary  or  legislative  measures  to 
reduce  the  availability  of  the  chemical  precursors  to  explosives,  or  a  combination  of 

EN 

4 

   EN 

both. Some Member States are considering such measures but are waiting for the EU to 
provide  leadership.  This  diversity  shows  that  a  harmonised  EU-level  approach  is 
desirable in order to prevent different levels of regulation resulting in security gaps an 
internal market with free movement of goods and persons.  

Several  policy  options  for  legislative  action  at  EU  level  have  undergone  a  thorough 
impact assessment and consultation process. While having no known negative impacts 
on  the  environment,  the  preferred  policy  option  has  positive  impacts  in  terms  of 
security, but also some negative economic impacts in particular on the retail sector and 
on  public  authorities  of  the  Member  States  in  terms  of  costs  of  implementation. 
However,  these  economic  impacts  and  negative  impacts  on  consumers  are  relatively 
minor as non-professional consumption of the precursors only accounts for about 1.5% 
of total EU consumption of the chemicals concerned, and substitutes are in most cases 
available.  The  purchase  of  chemicals  above  the  concentration  thresholds  will  still  be 
possible, albeit upon presentation of a licence. Industry and retail organisations selling 
to  the  general  public  will  thus  be  most  affected  by  compliance  costs,  as  well  as 
government authorities responsible for the licensing scheme.  

The Commission carried out an impact assessment listed in the Work Programme. The 
at 
impact 
http://ec.europa.eu/governance/impact/ia_carried_out/cia_2010_en.htm#homaf. 

assessment 

accessible 

report 

is 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The key aim of the proposed action is to reduce access by the general public to high-risk 
chemicals in concentration levels that make these chemicals suitable for easy misuse to 
produce  home-made  explosives.  This  will  be  done  by  prohibiting  the  sales  of  certain 
chemicals  above  concentration  thresholds  to  members  of  the  general  public.  Sales  of 
higher  concentrations  would  only  be  allowed  to  users  who  can  document  a  legitimate 
need to use the chemical — these users can obtain a licence to purchase the chemical. 
The  sales  of  these  chemicals  and  their  mixtures  as  well  as  the  sales  of  products 
containing  chemicals  of  concern  for  which  concentration  thresholds  cannot  be  set  will 
also  be  subject  to  reporting  of  suspicious  transactions.  The  proposed  legislative  action 
will be accompanied by voluntary measures by industry and the retail sector to enhance 
security and raise awareness in the entire supply chain.  

231 

3. 

305 

310 

Legal basis 

Article 114 of the Treaty on the Functioning of the European Union. 

320 

•  Subsidiarity principle 

The  subsidiarity  principle  applies  insofar  as  the  proposal  does  not  fall  under  the 
exclusive competence of the European Union. 

The objectives of the proposal cannot be sufficiently achieved by the Member States for 
the following reason(s). 

EN 

5 

   EN 

 
321 

323 

324 

325 

327 

While  several  legislative  and  non-legislative  measures  exist  at  international,  EU  and 
national level, these either do not specifically focus on the security risks associated with 
certain chemicals or do not cover the entire EU. This implies that precursors that may be 
restricted or controlled in one country can be easily obtained in another. In addition to 
the consequences for security, such a situation may give rise to market distortions that 
prevent a level EU playing field in this area. 

There  have  been  indications  that  terrorist  groups  take  the  different  approaches  in 
different  Member  States  into  consideration.  The  clearest  cases  have  concerned  ETA, 
which has hidden large quantities of explosives precursors outside Spain, in particular in 
France and Portugal. At the same time, there is no clear evidence to date that terrorists 
have changed their purchasing behaviour on the basis of differences in regulation in the 
different  Member  States.  The  lack  of  such  indications  may  also  be  because  currently 
these chemicals are still easily available across most of the Member States 

EU action will better achieve the objectives of the proposal for the following reason(s). 

The current differences among the regimes applied to chemical precursors to explosives 
not only have a negative effect on security but also distort the functioning of the internal 
market.  They  negatively  affect  cross-border  trade  and  other  economic  activities  of 
producers and other supply chain stakeholders active in more than one country. Action 
at EU level would help eliminate these negative effects. 

Recent  attacks  and  failed  or  prevented  attacks  have  shown  that  terrorism  is  going 
beyond  the  Member  States  that  have  traditionally  suffered  from  terrorist  attacks  (e.g. 
Spain,  the  UK,  France)  and  is  spreading  to  other  EU  countries.  The  nature  of  these 
incidents also shows that terrorists may prepare in one country for an attack in another. 
The EU can only be as secure as its weakest link. Consequently, activities at EU level 
and a co-ordinated EU approach are needed, and will benefit all relevant stakeholders. 

The  Member  States,  by  way  of  their  representatives  in  the  Standing  Committee  on 
Precursors (SCP), have indicated that they prefer an EU approach to this issue in order 
to create a level playing field. This approach is also supported by the EU associations 
representing the chemical industry, which have been extensively consulted in the course 
of the SCP's work and the work on the impact assessment. Some Member States have 
indicated  that  they  have  not  yet  taken  action  because  they  are  waiting  for  an  EU 
initiative.  

These actions will result in a more harmonised security environment for chemicals used 
to produce home-made explosives. 

The  scope  of  the  proposal  is  limited  to  a  short  list  of  chemical  substances  and  their 
mixtures, and to the sales of these to the general public (i.e. not to professional users or 
in  business-to-business  operations).  Moreover,  for  some  of  the  substances,  their 
availability to the general public is limited only if they are above certain concentration 
levels, and can still be obtained upon presentation of a licence from a public authority 
(documenting  legitimate  use).  The  substances  and  concentration  thresholds  are  clearly 
set  out  in  the  Annex  to  the  Regulation.  The  current  situation  shows  that  national 
regulation  in  this  area  is  leading  to  diversity  rather  than  convergence,  which  is 
detrimental to security. Such regulatory diversity enables the purchase of chemicals of 
concern  in  one  Member  State  and  its  easy  transport  and  potential  misuse  for  the 

EN 

6 

   EN 

 
331 

332 

production of home-made explosives in another Member State.  

The proposal therefore complies with the subsidiarity principle. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reason(s). 

The proposed legislative instrument has a clearly delimited scope. It leaves wide scope 
for  the  Member  States  to  develop  a  consumer  licensing  scheme  in  line  with  their 
existing structures and to introduce appropriate penalties. All economic operators would 
be subject to the same rules. The instrument can be flexibly adjusted to the evolution of 
the  threat  and  knowledge  about  the  chemical  substances  (in  terms  of  e.g.  research 
results) by adding or removing substances from the Annexes by means of a delegation 
procedure.  The  form  of  a  Regulation  was  chosen  in  order  to  prevent  the  need  for 
national transposition measures in 27 Member States with each potential modification of 
the Annexes.  

The  financial  burden  on  the  European  Union  and  the  national  governments  will  be 
minimised  by  using  existing  structures  to  implement  the  Regulation.  Moreover,  the 
scope  of  the  Regulation  is  limited  to  certain  chemical  precursors  posing  the  greatest 
concern, for most of which alternatives exist which can satisfy consumer needs. This is 
likely  to  keep  the  number  of  licence  requests  at  a  low  level.  In  order  to  achieve  a 
practical  balance  between  security  concerns  and  the  capacities  of  industry,  the  retail 
sector  and  law  enforcement  for  reporting  suspicious  transactions,  guidance  will  be 
developed with the involvement of all these stakeholders. Negative economic effects on 
industry  and  the  retail  sector  will  be  minimised  given  the  overall  low  consumption  of 
the  chemicals  of  concern  above  the  stated  concentration  thresholds  (1.5 %  of  total  EU 
consumption  of  the  chemicals  concerned),  the  possibility  to  purchase  these  chemicals 
upon presentation of a licence, and the likely increase in the use of substitute chemicals 
by  the  general  public.  In  order  to  prevent  an  excessive  initial  burden  on  public 
authorities and the supply chain for the chemicals of concern, the Regulation will have a 
transitional phase for implementation. This is also necessary in order to allow businesses 
and consumers to continue using their old supplies of the chemicals in question in order 
to minimise their economic loss, but also to allow national authorities to put in place the 
licensing scheme forming part of the preferred policy option. 

•  Impact on fundamental rights 

This proposal was subject to an in-depth scrutiny to ensure that its provisions are fully 
compatible with fundamental rights and principles enshrined in particular in the Charter 
of  Fundamental  Rights  of  the  European  Union,  and  notably  the  protection  of  personal 
data, the freedom to conduct a business, the right to property and the principle of non-
discrimination. Reporting  suspicious  transactions and the licensing  scheme  foreseen  in 
the  Regulation  require  processing  of  personal  data.  This  implies  a  serious  interference 
with private life and the right to the protection of personal data. In order to be lawful this 
interference has to comply with the criteria required by EU law: this entails that it must 
be in accordance with the law, must seek to attain a legitimate public interest necessary 
in  a  democratic  society;  the  interference  must  furthermore  be  necessary  to  attain  this 
objective and proportionate to the objective pursued, i.e. the objective cannot be attained 
by  less  restrictive  measures.  The  proposal  explicitly  requires  that  the  processing  of 

EN 

7 

   EN 

 
 
personal data under this Regulation must always be carried out in accordance with EU 
data  protection  laws,  namely  Directive  95/46/EC7  and  national  data  protection  laws 
implementing this Directive. 

As  far  as  the  right  to  conduct  a  business  and  the  right  to  property  are  concerned,  the 
proposal  constitutes  a  proportionate  answer  to  the  objectives  it  seeks  to  attain,  in 
particular in light of other policy options scrutinised in the Impact Assessment, such as, 
for  instance,  a  total  ban  on  sales  of  the  substances  to  members  of  the  general  public 
irrespective of concentration levels. Other, potentially less intrusive policy options were 
considered  to  be  less  effective.  The  Regulation  defines  the  scope  of  application  of  the 
licensing schemes by listing the chemicals of concern in Annex I and by stating clearly 
the  concentrations  above  which  a  license  would  be  required  for  the  purchase  of  the 
respective chemical. Reporting of suspicious transactions applies only to the chemicals 
listed in the Annexes and will be based on a risk assessment carried out by the economic 
operators.  The  proposal  foresees  the  elaboration  of  concrete  and  clear  guidelines  to 
assist  economic  operators  in  assessing  the  suspicious  nature  of  a  transaction.  These 
guidelines will ensure that a too broad interpretation of the concept is avoided so as to 
minimize  the  transmissions  of  personal  data  to  law  enforcement  authorities  and  to 
prevent  any  potential  arbitrary  or  discriminatory  practices.  At  the  same  time,  the 
licensing  scheme  and  the  obligation  to  report  suspicious  transactions  will  allow 
economic operators to continue trading all precursors, thereby limiting the impact on the 
freedom to conduct a business. The right to property will not be affected as businesses 
and members of the general public will continue to be able to use their lawfully acquired 
possessions.  Finally,  reasonably  long  transitional  periods  are  foreseen  so  as  to  allow 
members of the general public and economic operators to adapt to the new requirements, 
thereby further limiting the impact on the right to property and the freedom to conduct a 
business.  

341 

342 

•  Choice of instruments 

Proposed instruments: Regulation. 

Other means would not be adequate for the following reason(s). 

Article 114 of the Treaty on the Functioning of the European Union, which is the most 
appropriate  legal  basis  given  the  scope  of  the  action,  gives  a  choice  between  a 
Regulation  and  a  Directive.  In  order  to  achieve  maximum  harmonisation  for  the 
chemicals covered by the legal instrument, and also, where applicable, concentrations of 
these chemicals, a Regulation is more appropriate. A harmonised approach is desirable 
not only from the security perspective but also from the perspective of unified rules for 
economic  operators.  Moreover,  the  form  of  a  Regulation  will  prevent  the  need  for 
national  transposition  measures  every  time  changes  are  made  to  the  list  of  chemical 
substances in the Annexes (in line with the development of the threat).  

7 

OJ L 281, 23.11.1995, p. 31 

EN 

8 

   EN 

 
 
                                                 
4. 

BUDGETARY IMPLICATIONS 

The proposal has no implications for the European Union budget. 

5. 

ADDITIONAL INFORMATION 

•  Simulation, pilot phase and transitional period 

507 

There will be a transitional period for the proposed act. 

•  Review/revision/sunset clause 

The proposal includes a review clause. 

•  European Economic Area 

531 

560 

The proposed act concerns an EEA matter and should therefore extend to the European 
Economic Area. 

EN 

9 

   EN 

 
 
 
 
2010/0246 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

on the marketing and use of explosives precursors 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the opinion of the European Economic and Social Committee8, 

Having regard to the opinion of the Committee of the Regions9, 

After consulting the European Data Protection Supervisor10 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

8 
9 
10 
11 

The Action Plan on Enhancing the Security of Explosives, adopted by the Council on 
18  April  200811,  called  on  the  Commission  to  establish  a  Standing  Committee  on 
Precursors  to  consider  measures  and  prepare  recommendations  concerning  the 
regulation of explosives precursors available on the market, taking into account their 
cost-benefit effects. 

The  Standing  Committee  on  Precursors,  established  by  the  Commission  in  2008, 
identified  various  explosives precursors that are susceptible to being used  to commit 
terrorist attacks and recommended appropriate action at Union level. 

Some  Member  States  have  already  adopted  laws,  regulations  and  administrative 
provisions  regarding  the  placing  on  the  market,  making  available  and  possession  of 
certain chemical substances and mixtures that can be used as explosives precursors. 

These laws, regulations and administrative provisions, which are divergent and liable 
to cause barriers to trade within the European Union, should be harmonised in order to 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
Opinion of …..OJ C ….. 
8311/08 

EN 

10 

   EN 

                                                 
guarantee the free movement of chemical substances and mixtures within the internal 
market while ensuring a high level of protection of the health and safety of the general 
public. 

As  each  modification  of  a  Directive  and  its  Annexes  would  require  national 
transposition  measures  in  27  Member  States  and  all  economic  operators  should  be 
subject  to  the  same  rules,  it  is  more  appropriate  to  use  a  Regulation  as  the  legal 
instrument to regulate the marketing and use of explosives precursors. 

The  reliability  and  potency  of  home-made  explosives  should  be  reduced  by  setting 
concentration limits for certain substances. Members of the general public should only 
be able to use those substances at concentrations above the specified thresholds where 
they  hold  a  licence  to  do  so.  Such  substances  should  only  be  supplied  to  holders  of 
such a licence. 

As  it  would  be  disproportionate  to  prohibit  the  use  of  explosives  precursors  in 
professional  activities,  the  measures  relating  to  import,  marketing  and  use  of  these 
explosive precursors should apply to the general public only. 

Concentration limits on hexamine in fuel tablets are technically not feasible. Measures 
should  be  adopted  to  facilitate  the  reporting  of  suspicious  transactions  at  the  retail 
stage for hexamine fuel tablets and other precursors that do not have safe and suitable 
alternatives. 

Given  that  the  trade  in  explosives  precursors  may  lead  to  the  illicit  manufacture  of 
improvised explosive devices, the Member States should lay down rules on penalties 
applicable to infringements of the provisions of this Regulation. Those penalties must 
be effective, proportionate and dissuasive.  

(5) 

(6) 

(7) 

(8) 

(9) 

(10)  For simplification purposes, existing provisions related to ammonium nitrate should be 
included in the present Regulation and paragraphs 2 and 3 of entry 58 to Annex XVII 
to  Regulation  (EC)  No  1907/2006  of  European  Parliament  and  of  the  Council 
concerning  the  Registration,  Evaluation,  Authorisation  and  Restriction  of  Chemicals 
(REACH)12 should be deleted.  

(11)  This Regulation requires the processing of personal data and their further disclosure to 
third  parties  in  case  of  suspicious  transactions.  This  processing  implies  a  serious 
interference with the fundamental rights to private life and the right to the protection 
of personal data. Directive 95/46/EC of the European Parliament and of the Council of 
24  October  1995  on  the  protection  of  individuals  with  regard  to  the  processing  of 
personal  data  and  on  the  free  movement  of  such  data13  governs  the  processing  of 
personal data carried out in the framework of this Regulation. Accordingly it should be 
ensured  that  the  fundamental  right  to  the  protection  of  personal  data  of  individuals 
whose personal data are processed in application of the provisions of this Regulation 
are duly protected, in particular the processing of personal data that the granting of a 
licence and the reporting of transactions considered suspicious should entail.  

12 
13 

OJ L 396, 30.12.2006, p.1 
OJ L 281, 23.11.1995, p.31 

EN 

11 

   EN 

                                                 
(12)  Given  that  the  chemical  substances  used  by  terrorists  and  other  criminals  to  make 
home-made  explosives  can  change  rapidly,  it  should  be  possible  to  bring  other 
substances  under  the  regime  provided  by  this  Regulation,  sometimes  as  a  matter  of 
urgency. 

(13)  The  Commission  should  therefore  be  empowered  to  adopt  delegated  acts  in 
accordance with Article 290 of the Treaty on the Functioning of the European Union 
for the purpose of amending the Annexes to this Regulation. 

(14)  Since the objective of this Regulation, namely limiting access by the general public to 
chemicals  that  may  be  used  to  make  home-made  explosives,  can  not  be  sufficiently 
achieved by the Member States and can therefore, by reason of the scale of the action, 
be  better  achieved  at  Union  level,  the  European  Union  may  adopt  measures  in 
accordance  with  the  principle  of  subsidiarity.  In  accordance  with  the  principle  of 
proportionality,  this  Regulation  does  not  go  beyond  what  is  necessary  in  order  to 
achieve those objectives. 

(15)  This Regulation respects the fundamental rights and observes the principles recognised 
in particular by the Charter of Fundamental Rights of the European Union, notably the 
protection  of  personal  data,  the  freedom  to  conduct  a  business,  the  right  to  property 
and  the  principle  of  non-discrimination.  This  Regulation  should  be  applied  by  the 
Member States in accordance with these rights and principles. 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Subject matter 

This Regulation establishes harmonised rules concerning the making available on the market 
of substances or mixtures that could be misused for the illicit manufacture of explosives, with 
a view to limiting their availability to the general public.  

Article 2 

Scope 

1.  This  Regulation  applies  to  the  substances  listed  in  the  Annexes  and  mixtures  containing 
such substances.  

2. This Regulation does not apply to: 

(a)  articles  as  defined  in  Article  3  of  Regulation  (EC)  No  1907/2006  of  the  European 
Parliament and of the Council14;  

(b)  pyrotechnic  articles  as  defined  in  Council  Directive  2007/23/EC  of  the  European 
Parliament  and  of  the  Council15,  pyrotechnic  articles  intended  for  non-commercial  use,  in 

14 
15 

OJ L 396, 30.12.2006  
OJ L 154, 14.06. 2007  

EN 

12 

   EN 

                                                 
accordance with national law, by the armed forces, the law enforcement authorities or the fire 
department, equipment falling within the scope of Council Directive 96/98/EC16, pyrotechnic 
articles intended for use in the aerospace industry and percussion caps intended for toys;  

(c) substances listed in the Annexes and mixtures containing such substances which are used 
by the armed forces or law enforcement authorities. 

Article 3 

Definitions 

For the purposes of this Regulation the following definitions apply: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

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

‘use’ means any processing, formulation, storage, treatment, mixing, production of an 
article or any other utilisation; 

‘member of the general public’ means any natural person who is acting for purposes 
which are outside his trade, business or profession; 

‘suspicious transaction’ means any transaction concerning the substances listed in the 
Annexes, or mixtures containing those substances, where there are reasonable grounds 
for  suspecting  that  the  substance  or  mixture  is  intended  for  the  production  of  home-
made explosives; 

‘non-scheduled  substance’  means  any  substance  which,  although  not  listed  in  the 
Annexes,  is  identified  as  having  been  used  for  the  manufacture  of  home-made 
explosives; 

‘economic  operator’  means  any  natural  or  legal  person  or  public  entity  or  group  of 
such persons and/or bodies which delivers works, products or services on the market;  

‘farmer’  means  a  natural  or  legal  person,  or  a  group  of  natural  or  legal  persons, 
whatever legal status is granted to the group and its members by national law, whose 
holding  is  situated  within  Community  territory,  as  referred  to  in  Article  52  of  the 
Treaty on European Union, and who exercises an agricultural activity;  

‘agricultural  activity’  means  the  production,  rearing  or  growing  of  agricultural 
products  including  harvesting,  milking,  breeding  animals  and  keeping  animals  for 
farming  purposes,  or  maintaining  the  land  in  good  agricultural  and  environmental 
condition as established under Article 5 of Council Regulation (EC) No 1782/200317. 

16 
17 

OJ L 46, 17.2.1997 
OJ L 270, 21.10.2003 

EN 

13 

   EN 

                                                 
Article 4 

Import, making available, possession and use 

1.  Substances  listed  in  Annex  I,  or  mixtures  containing  those  substances,  shall  not  be  made 
available to, possessed or used by members of the general public except if the concentration 
of the substance in the form in which it is made available is lower than or equal to the limit 
laid down in Annex I. 

2. Notwithstanding paragraph 1, the substances listed in Annex I, or mixtures containing those 
substances, may be made available to, possessed and used by members of the general public, 
provided that the member of the general public presents a licence for acquiring the substance, 
or mixture containing the substance, issued by a competent authority of a Member State.  

3. Where a member of the general public intends to import the substances listed in Annex I, or 
mixtures containing those substances, into the Customs territory of the European Union, and 
the concentration of the substance or mixture in the form in which it is imported is higher than 
the limit laid down in Annex I, that person must present a licence as referred to in paragraph 2 
at the Customs office of entry. In case of doubts relating to the authenticity or correctness of 
the licence issued in accordance with paragraph 2 as well as when further advice is required, 
the  customs  authorities  shall  contact  the  competent  authorities  designated  by  the  Member 
State for issuing licences in accordance with Article 5. 

4.  Notwithstanding  paragraph  1,  ammonium  nitrate  and  mixtures  containing  ammonium 
nitrate  may  be  made  available  to  farmers  and  may  be  possessed  by  farmers,  for  use  as 
fertilisers in agricultural activities, in concentrations above the limit listed in Annex I. 

5. An economic operator which makes a substance or mixture available to a licensed member 
of the general public in accordance with paragraph 2 shall verify the licence and keep a record 
of the transaction. 

6. An economic operator which intends to make the substances listed in Annex I, or mixtures 
containing  those  substances,  available  to  the  general  public,  where  the  concentration  of  the 
substance in the form in which it is made available is higher than the limit laid down in Annex 
I, shall indicate clearly on the packaging that the purchase, possession or use of that substance 
or mixture is subject to a licence as referred to in paragraph 2.  

Article 5 

Licences 

1. Each Member State shall lay down the rules for granting the licence provided for in Article 
4 (2). When considering whether to grant a licence, the competent authority of the Member 
State shall take into account in particular the legitimacy of the intended use of the substance. 
The licence shall be refused if there are reasonable grounds for doubting the legitimacy of the 
intended use.  

2.  The  competent  authority  may  either  limit  the  validity  of  the  licence  to  a  period  not 
exceeding  three  years  or  may  oblige  the  licensee  to  demonstrate  at  intervals  not  exceeding 

EN 

14 

   EN 

three  years  that  the  conditions  under  which  the  licence  was  granted  are  still  fulfilled.  The 
licence shall mention the substances concerned. 

3.  The  competent  authorities  may  require  applicants  to  pay  a  fee  for  their  application  for  a 
licence. Such fees shall not exceed the cost of processing the application. 

4. The licence may be suspended or revoked by the competent authority whenever there are 
reasonable grounds for believing that the conditions under which the licence was granted are 
no longer fulfilled.  

5.  Appeals  against  any  decision  of  the  competent  authority,  and  disputes  concerning 
compliance  with  the  conditions  of  the  licence,  shall  be  heard  by  the  appropriate  body 
responsible under national law. 

6.  Licences  granted  by  the  competent  authorities  of  a  Member  State  shall  be  valid  in  all 
Member  States.  The  Commission  may  draw  up  guidelines,  after  consulting  the  Standing 
Committee  on  Precursors,  on  the  technical  details  of  the  licences  to  assist  their  mutual 
recognition. 

Article 6 

Reporting of suspicious transactions and thefts 

1.  Suspicious  transactions  in  the  substances  listed  in  the  Annexes,  or  mixtures  containing 
those substances, shall be reported in accordance with this Article. 

2. Each Member State shall set up a national contact point with a clearly identified telephone 
number and e-mail address for the reporting of suspicious transactions. 

3. Economic operators which have reason to believe that a proposed transaction involving one 
or  more  substances  listed  in  the  Annexes,  or  mixtures  containing  those  substances,  is  a 
suspicious transaction, shall report this without delay, including if possible the identity of the 
client, to the national contact point of the Member State where the transaction was proposed. 

4.  Economic  operators  shall  report  any  other  suspicious  transactions  regarding  a  non-
scheduled substance, and mixtures containing such substances.  

5.  Economic  operators  shall  also  report  significant  thefts  of  the  substances  listed  in  the 
Annexes  and  mixtures  containing  those  substances  to  the  national  contact  point  of  the 
Member State where the theft has taken place.  

6.  In  order  to  facilitate  cooperation  between  the  competent  authorities  and  economic 
operators,  in  particular  as  regards  non-scheduled  substances,  the  Commission  shall,  after 
consulting the Standing Committee on Precursors, draw up and update guidelines to assist the 
chemical supply chain. The guidelines shall provide in particular: 

(a) information on how to recognise and notify suspicious transactions; 

(b) a regularly updated list of non-scheduled substances to enable the supply chain to monitor 
on a voluntary basis the trade in such substances; 

(c) other information which may be deemed useful. 

EN 

15 

   EN 

7. The competent authorities of the Member States shall ensure that the guidelines provided 
for  in  paragraph  6  and  the  list  of  non-scheduled  substances  are  regularly  disseminated  in  a 
manner deemed appropriate by the competent authorities in accordance with the objectives of 
the guidelines. 

Article 7 

Data protection 

Each Member State shall ensure that the processing of personal data carried out in application 
of  this  Regulation  shall  be  in  accordance  with  Directive  95/46/EC18.  In  particular,  each 
Member  State  shall  ensure  that  the  processing  of  personal  data  required  by  the  granting  of 
license  pursuant  to  Articles  4  and  5  of  this  Regulation,  and  the  reporting  of  suspicious 
transactions pursuant to Article 6 of this Regulation, shall comply with Directive 95/46/EC. 

Article 8 

Penalties 

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

Article 9 

Amendment of the Annexes 

In order to accommodate developments in the misuse of chemical substances as precursors to 
explosives, or on the basis of research and testing, the Commission may adopt amendments to 
the  Annexes  by  means  of  delegated  acts  in  accordance  with  Articles  10,  11  and  12.  Where 
imperative grounds of urgency so require, in particular where there is a sudden change in the 
risk assessment as far as the misuse of chemical substances to make home-made explosives is 
concerned, Article 13 shall apply. 

Article 10 

Exercise of the delegation 

1.  The  powers  to  adopt  the  delegated  acts  referred  to  in  Article  9  shall  be  conferred  on  the 
Commission for an indeterminate period of time. 

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

3.  The  powers  to  adopt  delegated  acts  are  conferred  on  the  Commission  subject  to  the 
conditions laid down in Articles 11 and 12.  

18 

OJ L 281, 23.11.1995, p. 31 

EN 

16 

   EN 

                                                 
Article 11 

Revocation of the delegation 

1.  The  delegation  of  power  referred  to  in  Article  9  may  be  revoked  at  any  time  by  the 
European Parliament or by the Council. 

2. The institution which has commenced an internal procedure for deciding whether to revoke 
the delegation of power shall endeavour to inform the other institution and the Commission 
within  a  reasonable  time  before  the  final  decision  is  taken,  indicating  the  delegated  powers 
which could be subject to revocation and possible reasons for a revocation. 

3. The decision of revocation shall put an end to the delegation of the powers specified in that 
decision. It shall take effect immediately or at a later date specified therein. It shall not affect 
the validity of the delegated acts already in force. It shall be published in the Official Journal 
of the European Union.  

Article 12 

Objections to delegated acts 

1. The European Parliament and the Council may object to the delegated act within a period 
of two months from the date of notification. At the initiative of the European Parliament or 
the Council, this period shall be extended by one month. 

2. If, on expiry of that period, neither the European Parliament nor the Council has objected to 
the delegated act, it shall be published in the Official Journal of the European Union and shall 
enter into force at the date stated therein. 

3. The delegated act may be published in the Official Journal of the European Union and enter 
into force before the expiry of that period if the European Parliament and the Council have 
both informed the Commission of their intention not to raise objections.  

4. If the European Parliament or the Council objects to a delegated act, it shall not enter into 
force. The institution which objects shall state the reasons for objecting to the delegated act. 

Article 13 

Urgency procedure  

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

2. The European Parliament and the Council may within a period of six weeks from the date 
of notification object to the delegated act. In such a case, the act shall cease to be applicable. 
The institution which objects shall state the reasons for objecting to the delegated act. 

EN 

17 

   EN 

Article 14 

Amendment of Annex XVII to Regulation (EC) 1907/2006  

In  Annex  XVII  to  Regulation  (EC)  No  1907/200619,  in  entry  58  of  the  table  setting  out  the 
designation  of  the  substances,  groups  of  substances  and  mixtures  and  the  conditions  of 
restriction, in the column 2, paragraphs 2 and 3 are deleted. 

Article 15 

Transitional provision  

Possession and use by members of the general public of the substances listed in Annex I, or 
mixtures  of  those  substances,  above  the  concentration  limits  laid  down  in  Annex  I,  shall 
continue to be allowed until [36 months after adoption] 

Article 16 

Review 

A review of this Regulation shall be made [5 years after adoption]. 

Article 17 

Entry into force 

This Regulation shall enter into force on [18 months after adoption].  

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

Done at […], […] 

For the European Parliament 

For the Council 

The President 

[…] 

The President 

[…] 

19 

OJ L 396, 30.12.2006 

EN 

18 

   EN 

                                                 
ANNEX 1 

Substances which shall not be made available to members of the general public on their 
own, or in mixtures including them, except if the concentration is equal to or lower than 
the limits set out below 

Name  of  the  substance  and 
Chemical Abstracts Service 
Registry number (CAS RN) 

Minimum 
amount 
present 

Combined 
Nomenclature  (CN) 
code  for  a  separate 
chemically  defined 
compound  meeting 
the  requirements  of 
Note  1  to  Chapter 
28  or  29  of  the  CN, 
respectively 
{see 
Regulation  (EC)  No 
948/2009 
30 
September 2009, OJ 
L 287 of 31.10.2009} 

of 

Combined 
Nomenclature 
(CN) 
code  for  a  mixture  or 
without 
preparation 
constituents 
g. 
(e. 
mercury,  precious  or 
rare-earth  metals  or 
radioactive  substances) 
which  would  determine 
under 
classification 
another  CN  code  {see 
(EC)  No 
Regulation 
948/2009 
30 
of 
September  2009,  OJ  L 
287 of 31.10.2009}  

Hydrogen  peroxide 
RN 7722-84-1) 

(CAS 

12% w/w 

2847 00 00 

3824 90 97 

Nitromethane  (CAS  RN  75-
52-5) 

Nitric  acid  (CAS  RN  7697-
37-2) 

Potassium chlorate (CAS RN 
3811-04-9) 

Potassium  perchlorate  (CAS 
RN 7778-74-7) 

Sodium  chlorate  (CAS  RN 
7775-09-9) 

30 % w/w 

2904 20 00 

3824 90 97 

3 % w/w 

2808 00 00 

3824 90 97 

40 % w/w 

2829 19 00 

3824 90 97 

40 % w/w 

2829 90 10 

3824 90 97 

40 % w/w  

2829 11 00 

3824 90 97 

Sodium  perchlorate 
RN 7601-89-0) 

(CAS 

40 % w/w  

2829 90 10 

3824 90 97 

Ammonium nitrate (CAS RN 
6484-52-2) 

3102  30  10 
aqueous solution) 

(in 

3824 90 97 

3102 30 90 (other) 

by 
16% 
weight 
of 
nitrogen  in 
relation 
to 
ammonium 
nitrate 

EN 

19 

   EN 

 
ANNEX II 

Substances  on  their  own  or  in  mixtures  for  which  suspicious  transactions  shall  be 
reported 

Name of the substance and 
Chemical 
Abstracts 
Service  Registry  number 
(CAS RN) 

Combined 
Nomenclature  (CN) 
code  for  a  separate 
chemically  defined 
compound  meeting 
the  requirements  of 
Note  1  to  Chapter 
to 
28,  Note 
Chapter  29  or  Note 
1  (b)  to  Chapter  31 
CN, 
the 
of 
respectively 
{see 
Regulation  (EC)  No 
948/2009 
30 
September  2009,  OJ 
L 287 of 31.10.2009} 

of 

1 

(e. 

Combined 
Nomenclature 
(CN) 
code  for  mixtures  or 
preparations  without 
constituents 
g. 
mercury,  precious  or 
rare-earth  metals  or 
radioactive 
which 
substances) 
determine 
would 
under 
classification 
another  CN  code  {see 
Regulation  (EC)  No 
948/2009 
30 
September 2009, OJ L 
287 of 31.10.2009} 

of 

Hexamine  (CAS  RN  100-
97-0) 

Sulphuric  acid  (CAS  RN 
7664-93-9) 

2921 29 00 

3824 90 97 

2807 00 10 

3824 90 97 

Acetone (CAS RN 67-64-1)  2914 11 00 

3824 90 97 

Potassium  nitrate  (CAS  RN 
7757-79-1) 

Sodium  nitrate  (CAS  RN 
7631-99-4) 

Calcium  nitrate  (CAS  RN 
10124-37-5) 

Ammonium  calcium  nitrate 
(CAS RN 15245-12-2) 

2834 21 00 

3824 90 97 

3102 50 10 (natural) 

3824 90 97 

3102  50  90  (other 
than natural) 

3824 90 97 

2834 29 80 

3824 90 97 

3102 60 00 

3824 90 97 

EN 

20 

   EN