REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL pursuant to Article 18 of Regulation (EU) No 98/2013 of the European Parliament and of the Council of 15 January 2013 on the marketing and use of explosives precursors, examining the possibilities to transfer relevant provisions on ammonium nitrate from Regulation (EC) No 1907/2006
Date: 2015-03-12
Institutions: European Commission
Subjects: chemical salt, dangerous substance, explosive, marketing standard, product safety, public health, trade restriction













EUR-Lex - 52015DC0122 - EN











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52015DC0122

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL pursuant to Article 18 of Regulation (EU) No 98/2013 of the European Parliament and of the Council of 15 January 2013 on the marketing and use of explosives precursors, examining the possibilities to transfer relevant provisions on ammonium nitrate from Regulation (EC) No 1907/2006 /* COM/2015/0122 final */









1.         INTRODUCTION
Article
18(2) of Regulation (EU) No 98/2013 of the European Parliament and of the
Council of 15 January 2013 on the marketing and use of explosives precursors[1] states
that: ‘By 2 March 2015, the Commission shall present a report to the European
Parliament and to the Council examining the possibilities to transfer relevant
provisions on ammonium nitrate from Regulation (EC) No 1907/2006 into this
Regulation.’
Ammonium
nitrate (CAS RN 6484-52-2) is a chemical substance widely used as a fertiliser
in the European Union. It can act as an oxidising agent and explodes when mixed
with certain other chemicals. For this reason, ammonium nitrate fertilisers
with a high nitrogen content are subject to technical requirements.[2]
Because of these properties, ammonium nitrate fertilisers have
been misused for the illicit manufacture of explosives. To protect against such
misuse, access by members of the general public to ammonium nitrate as a
substance or in mixtures is restricted and controlled.
At
present, there are provisions on ammonium nitrate in both Regulation (EC)
No 1907/2006 concerning the Registration, Evaluation, Authorisation and
Restriction of Chemicals (REACH)[3]
and Regulation
(EU) No 98/2013 on the marketing and use of explosives precursors (Regulation
on Explosives Precursors). REACH restricts the supply of ammonium nitrate as a
substance (or in mixtures containing 16 % or more by weight of nitrogen in
relation to ammonium nitrate) to users and distributors licensed under Council
Directive 93/15/EEC, farmers, and professional users. The Regulation on
Explosives Precursors subjects the supply of ammonium nitrate to a mechanism
for reporting suspicious transactions, and also enables Member States, via a
safeguard clause, to put in place further restrictions if there are reasonable
grounds for doing so.
The
Regulation on Explosives Precursors aims to enhance public security by making
it more difficult to illicitly manufacture explosives, whereas the main focus
of REACH is on ensuring substances are used safely, based on their intrinsic
properties, and on balancing the free circulation of chemicals in the internal
market with a high level of protection for human health and the environment
from the risks posed by chemicals.
The
Commission therefore considers that the provisions on ammonium nitrate belong
in the Regulation on Explosives Precursors. This report will present the
findings of the Commission’s examination of the feasibility of transferring the
provisions from REACH to the Regulation on Explosives Precursors.
2.         BACKGROUND
2.1.      Inclusion
of ammonium nitrate in REACH
Entry
58 of Annex XVII to REACH prohibits the supply of ammonium nitrate, in
concentrations above a specific threshold, to members of the general public.
The restriction was transferred to REACH from Directive 76/769/EEC,[4] which
was repealed by REACH with effect from 1 June 2009.
The
entry in Annex XVII reads as follows:
‘58.
Ammonium nitrate (AN)
CAS
No 6484-52-2
EC
No 229-347-8
1.
Shall not be placed on the market for the first time after 27 June 2010 as
a substance, or in mixtures that contain more than 28 % by weight of
nitrogen in relation to ammonium nitrate, for use as a solid fertiliser,
straight or compound, unless the fertiliser complies with the technical
provisions for ammonium nitrate fertilisers of high nitrogen content set out in
Annex III to Regulation (EC) No 2003/2003 of the European Parliament and
of the Council (*).
2.
Shall not be placed on the market after 27 June 2010 as a substance, or in
mixtures that contain 16 % or more by weight of nitrogen in relation to
ammonium nitrate except for supply to:
(a)
downstream users and distributors, including natural or legal persons licensed
or authorised in accordance with Council Directive 93/15/EEC (**);
(b)
farmers for use in agricultural activities, either full time or part time and
not necessarily related to the size of the land area.
For the purposes of this subparagraph:
(i) ‘farmer’ shall mean 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 299 of the Treaty, and
who exercises an agricultural activity;
(ii) ‘agricultural activity’ shall mean 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 1782/2003 (***);
(c)
natural or legal persons engaged in professional activities such as
horticulture, plant growing in greenhouses, maintenance of parks, gardens or
sport pitches, forestry or other similar activities.
3.
However, for the restrictions in paragraph 2, Member States may until 1 July
2014, for socioeconomic reasons, apply a limit of up to 20 % by weight of
nitrogen in relation to ammonium nitrate for substances and mixtures placed on
the market within their territories. They shall inform the Commission and other
Member States thereof.
______________
(*)
OJ L 304, 21.11.2003, p. 1.
(**)
OJ L 121, 15.5.1993, p. 20.
(***)
OJ L 270, 21.10.2003, p. 1.’
Annex
XVII to REACH does not provide for licensing or registration regimes. Under
REACH, the supply of ammonium nitrate as a substance, or in mixtures that
contain 16 % or more by weight of nitrogen in relation to ammonium
nitrate, to members of the general public, is banned.
2.2.      Inclusion
of ammonium nitrate in the Regulation on Explosives Precursors
The
Commission’s 2010 proposal for a regulation on the marketing and use of
explosives precursors[5]
recommended that: ‘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 the
European Parliament and of the Council concerning the Registration, Evaluation,
Authorisation and Restriction of Chemicals (REACH) should be deleted.’
The
aim was to transfer the restrictions on ammonium nitrate from REACH to the
Regulation on Explosives Precursors. Consequently, ammonium nitrate
(CAS RN 6484‑52‑2) was included in the proposed Annex I
with a limit value of 16 % by weight of nitrogen in relation to ammonium
nitrate. The proposal explicitly exempted farmers from the restrictions on
ammonium nitrate and mixtures containing it. Including ammonium nitrate in the
proposed regulation would also make it automatically subject to the mechanism
for reporting suspicious transactions, which had no equivalent in REACH. The
proposed transfer, however, would have meant that, if Member States set up
licensing or registration regimes, they could supply the chemical to the
general public. As a result, the proposed transfer could potentially have been
less strict than the complete ban on supplying to the general public under
REACH.
The
proposed transfer was not approved by the Council’s Working Party on Technical
Harmonisation (Dangerous Substances). While some Member States supported the
Commission’s reasoning, others felt the transfer would weaken security, as
existing restrictions on ammonium nitrate would be relaxed.
It
was then suggested that the provisions be transferred with the same level of
restriction as in REACH. This alternative would have involved the creation of a
third regime in the proposed regulation exclusively for ammonium nitrate,
exempting the substance from the licensing and registration rules. It would
also have been necessary to add a specific article on ammonium nitrate
(containing paragraphs 2 and 3 of entry 58 to Annex XVII), and to include
ammonium nitrate in Annex II, to ensure the reporting of suspicious
transactions.
The
Council’s Working Party met on ten occasions between January and October 2011
to examine the Commission’s proposal, and concluded that the provisions
contained in REACH should not be amended but should be complemented by the
requirement to report suspicious transactions under the proposed regulation.
Nonetheless, the Working Party noted that several Member States supported the
transfer, and therefore proposed that the Commission re‑examine this
issue at a later date, with a view to preparing a legislative proposal, if
appropriate.
In
preparation for the first ‘informal trialogue’ (discussions between the
Commission, the European Parliament and the Council), the Council accordingly
suggested the following amendments to the Commission’s proposal:
-       
amendment
of the recital to remove the transfer of the provisions on ammonium nitrate;
-       
inclusion
of ammonium nitrate in Annex II;
-       
addition
of a provision requiring an early review by the Commission of the feasibility
of transferring the provisions.
The
European Parliament’s position at first reading, as tabled for plenary on
11 September 2011,[6]
corresponded with the Council’s. The Commission subsequently agreed to maintain
the Council text relative to ammonium nitrate.
The
Regulation on Explosives Precursors was adopted on 15 January 2013 with the
following recital:
‘(24)     By
virtue of Annex XVII to Regulation (EC) No 1907/2006 of the European
Parliament and of the Council of 18 December 2006 concerning the Registration,
Evaluation, Authorisation and Restriction of Chemicals (REACH)(1)
the supply to members of the general public of ammonium nitrate that could be
readily misused as an explosive precursor is prohibited. However, the supply of
ammonium nitrate to certain professional users, in particular farmers, is
permitted. That supply should therefore be subject to the reporting mechanism
for suspicious transactions established by this Regulation, since there is no
equivalent requirement in Regulation (EC) No 1907/2006.’
Ammonium
nitrate (CAS RN 6484-52-2) [in concentrations of 16 % by weight of
nitrogen in relation to ammonium nitrate or higher] was included in Annex II,
listing ‘substances on their own or in mixtures or in substances for which
suspicious transactions shall be reported.’ In addition, Article 18(2) required
a review of the possibility of transferring the relevant provisions on ammonium
nitrate from Regulation (EC) No 1907/2006 to Regulation
(EU) No 98/2013 to be carried out by 2 March 2015.
3.         CONSULTATIONS
WITH MEMBER STATES
The
Standing Committee on Precursors (SCP), where all EU Member States are
represented, has played a leading role in drafting the proposal and assessing
the risk management measures for ammonium nitrate from the very beginning. This
expert group was created following recommendations in the 2008 EU Action Plan
on Enhancing the Security of Explosives, which called for restrictions on the
sale of ammonium nitrate fertilisers to the general public. In 2008, the SCP
carried out preparatory work for the inclusion of ammonium nitrate in Directive
76/769/EEC (repealed by REACH in 2009) in the absence of a regulation
specifically restricting substances posing a threat to public security. Later,
the SCP also carried out preparatory work for the Regulation on Explosives
Precursors.
The
Commission sent a questionnaire to the members of the SCP on 27 May 2014,
asking them to forward it to the authorities responsible for implementing the
Regulation on Explosives Precursors. Question 23 concerned Article 18 and
asked ‘Would your Member State support the transfer of relevant provisions
on ammonium nitrate from Regulation (EC) No 1907/2006 into this Regulation?’
A
total of 19 authorities out of 30 possible respondents[7]
replied to the questionnaire and to Question 23 in particular. The replies
showed that the positions of Member States were still widely divergent.
However, responders noted that they would welcome further discussions and a
draft legislative proposal before taking a definitive position.
The
replies to the questionnaire were discussed at the SCP meeting on
8 October 2014, but no consensus was reached on this particular point.
The
Commission also raised the transfer issue at the 16th Meeting of Competent
Authorities for REACH and the CLP[8]
(CARACAL) on 10 November 2014.
During
and after both meetings, Member States were invited to express their
consolidated positions. Opinions continued to diverge, and some Member States
were undecided.
Following
the consultations with the Member States, the Commission notes the main
arguments for and against transferring the relevant provisions on ammonium
nitrate from REACH to the Regulation on Explosives Precursors:
-       
Member
States in favour of the transfer argue that the restrictions on ammonium
nitrate relate directly to public security, but only indirectly to the
protection of human health. They were included in REACH by default as there was
no other suitable regulatory tool available at the time. Now there is
tailor-made legislation, so the transfer would harmonise and simplify EU law in
line with the Commission’s ‘better regulation’ principle. It is also argued
that keeping the ammonium nitrate provisions in REACH causes confusion for
businesses, given the different nature of the risks involved.
-       
Member
States that object to the transfer argue that it would weaken security around
ammonium nitrate, as it may allow national competent authorities to make the
substance available to the general public via licensing or registration
regimes, which they are entitled to set up under Regulation (EU)
No 98/2013.
This
consultation did not touch on the possibility of creating a third regime for
ammonium nitrate under the Regulation on Explosives Precursors. Moreover, no
reference was made to the legal feasibility of the transfer, or to any
excessive costs potentially arising from it.
4.         SUMMARY
AND CONCLUSIONS
The
EU Action Plan on Enhancing the Security of Explosives called in 2008 for
restrictions on the sale of ammonium nitrate fertilisers to the general public.
There is thus a general agreement that the marketing and use of ammonium
nitrate poses serious security concerns.
The
Commission considers that as the risks relate to public security, the
restrictions on ammonium nitrate are better placed in the Regulation on
Explosives Precursors and would support the transfer of the relevant provisions
from REACH, as originally intended in its 2010 proposal. The main objective of
REACH remains to ensure public safety, health and protection of workers and
the Regulation does not refer to public security. With the transfer of ammonium
nitrate to the Regulation on Explosives Precursors, safety concerns of ammonium
nitrate would continue to be covered by the Regulation (EC) No. 2003/2003
relating to fertilisers. 
However,
given the continuing lack of consensus from one of the co-legislators, i.e. the
Council, on this issue, both in terms of the desirability of the transfer
itself and the exact form it would take (i.e. whether ammonium nitrate would
simply be transferred to Annex I, or whether separate arrangements would be
made), a legislative proposal to transfer the provisions would probably not
garner enough support in Council.
In
addition, the Commission notes that the competent authorities in Member States
have had little time to gather relevant experience from implementing the
Regulation on Explosives Precursors, as it only entered into force on 2 September
2014. It is therefore reasonable that Member States may want to examine the
costs and benefits of the transfer at a later date.
Consequently, the Commission does not at
present intend to propose legislation to transfer the relevant provisions on
ammonium nitrate from Regulation (EC) No 1907/2006 to Regulation (EU) No
98/2013. Instead, it will re-examine the possibility and the exact nature of
such a transfer as part of a larger review planned for 2017 under Article 18(1)
of the latter Regulation.
[1] OJ L 39,
9.2.2013, p.1.
[2] See Annexes III and
IV to Regulation (EC) No 2003/2003 of the European Parliament and of the
Council of 13 October 2003 relating to fertilisers, OJ L 304, 21.11.2003, p.1,
which detail characteristics of and limits for straight ammonium nitrate
fertilisers of high nitrogen content, describe resistance to detonation tests,
and list methods for checking compliance and other requirements related to
traceability and packaging.
[3] OJ L 396, 30.12.2006,
p.1.
[4] OJ L 262, 27.9.1976,
pp. 201–203 – Repealed by REACH on 31.5.2009.
[5] COM(2010) 473 final.
[6] Report: Jan Mulder
(A7-0269/2012), Report on the proposal for a regulation of the European
Parliament and of the Council on the marketing and use of explosives precursors
(COM(2010) 0473 – C7-0279/2010 – 2010/0246(COD)), Committee on Civil
Liberties, Justice and Home Affairs.
[7] The United Kingdom
appointed separate authorities for Great Britain and Northern Ireland; Norway
is also implementing the Regulation on Explosives Precursors.
[8] Regulation
(EC) No 1272/2008 on classification, labelling and packaging of substances and
mixtures.