Opinion of the European Economic and Social Committee on the Proposal for a regulation of the European Parliament and of the Council on the marketing and use of explosives precursors, amending Annex XVII to Regulation (EC) No 1907/2006 and repealing Regulation (EU) No 98/2013 on the marketing and use of explosives precursors [COM(2018) 209 final — 2018/0103 (COD)]
Date: 2018-07-11
Institutions: European Economic and Social Committee
Subjects: approximation of laws, chemical product, civil defence, dangerous substance, explosive, illicit trade, market approval, marketing standard, terrorism, trade restriction








C_2018367EN.01003501.xml










10.10.2018   


EN


Official Journal of the European Union


C 367/35






Opinion of the European Economic and Social Committee on the Proposal for a regulation of the European Parliament and of the Council on the marketing and use of explosives precursors, amending Annex XVII to Regulation (EC) No 1907/2006 and repealing Regulation (EU) No 98/2013 on the marketing and use of explosives precursors
[COM(2018) 209 final — 2018/0103 (COD)]
(2018/C 367/07)






Rapporteur:



David SEARS











Referral


European Parliament, 28.5.2018
Council, 31.5.2018




Legal Basis


Article 114 of the TFEU




Section responsible


Single Market, Production and Consumption




Adopted in section


7.6.2018




Adopted at plenary


11.7.2018




Plenary session No


536




Outcome of vote
(for/against/abstentions)


128/0/1




1.   Conclusions and recommendations









1.1.


The EESC welcomes the proposed Regulation. It builds on and replaces the existing Regulation, on which the EESC commented in January 2011 (1), and tries to learn from experiences at national and EU level since it came into force in 2013 and into (intended) full effect by September 2014.












1.2.


The EESC notes that the time allowed for preparation of the new Regulation has been limited by procedural factors, including the short time now available before the end of the current term of office of both the Commission and European Parliament. Given the rather short life and slow implementation of the existing Regulation and the need for serious support and buy-in from Member States and all the supply chain actors for its replacement, this is to be regretted. The reasons for this slow implementation, in particular by major countries experiencing terrorist acts against their own populations, need to be examined more closely.












1.3.


The EESC notes a number of areas where greater clarity on the scope and implementation of the Regulation should be considered; these will also need to be discussed in greater detail with Member States in the months ahead. The provisions with respect to sales via the internet require further work if they are to have any real effect; it is difficult to see how these can be effective solely at Member State level.












1.4.


Finally, and once again, the EESC questions the effectiveness of grouping such widely disparate substances under a single regulatory regime. This makes the legislation hard to draft and even harder to implement or comprehend as a professional user or member of the general public. A different substance-specific approach is therefore recommended. EU legislation in respect of drug precursors provides a useful model for this (2).




2.   Introduction









2.1.


Improvised explosive devices (IEDs) incorporating a variety of home-made explosives (HMEs) are used by terrorists and other non-state actors to carry out static, vehicle-borne (VB) or person-borne (PB) attacks on military and economic targets, primarily to instil terror in civilian populations, in pursuit of political or religious ideals.












2.2.


The knowledge required to build, store and deliver such devices is readily available on the internet. Raw materials may be in general use (flour, sugar, diesel oil, fertilisers). More powerful explosives and detonators (TATP, PETN, HMTD) require chemical synthesis from other substances available on the retail market for legitimate purposes. Commercial explosives (including dynamite, black powder and TNT) are already tightly controlled and are now rarely used, at least in the developed world.












2.3.


The majority of terrorist incidents take place, often on a daily basis and not always fully recorded, in the less developed world. These account for close to 99 % of all terrorist-related deaths. However, the richer — and more stable and better protected — countries are also targets and when attacks succeed, their effects can be devastating, as citizens in a number of major cities of the EU (and US) can now testify.












2.4.


Despite this, the actual daily risk remains low (at least compared to other natural or generally accepted hazards) — and the responses from governments tend to vary according to their local experience and national practice. Naturally authoritarian regimes may not (yet) have been seen as targets; more liberal legislatures may be more frequently attacked but are also concerned over the preservation of human rights. As ever there are no easy answers.












2.5.


These questions have been addressed in previous opinions from the EESC, in 2008 (3), on the marketing and use of ‘certain dangerous substances’ including ammonium nitrate (AN) used in very large quantities as a nitrogen-based fertiliser and also as an effective low-cost component of commercial and home-made explosives, and in 2011 (4), on the first Regulation on the control of explosives precursors, now to be repealed and replaced in the light of experience. Precursors for illicit drugs and their diversion from legitimate use have also been addressed and the related legislation may provide a useful model to be followed here.




3.   The Commission’s proposals









3.1.


The proposed new Regulation on the control of explosives precursors (15 pp.) comes with an introduction (17 pp.), 3 Annexes (each 1 p.) and an impact assessment (IA) (188 pp.). It is based on Article 114 TFEU concerning the functioning of the internal market. It imposes new obligations on Member States and on all those concerned with trade in the substances listed in Annexes I (for ‘restricted’ precursors) and II (for ‘reportable’ precursors), and sets out the required format for a licence for ‘professional users’ in Annex III. The Regulation is intended to come into force 20 days after publication in the Official Journal and to apply one year after that date.












3.2.


The general approach therefore remains as before; a number of substances (nine) are listed as being restricted in terms of their concentration (and therefore their value and usability in the manufacture of HMEs) for sales to the general public. A further set of substances (again nine) may be sold freely but ‘suspicious’ transactions are reportable to nationally designated contact points.












3.3.


Within these lists, ammonium nitrate (AN) has been moved from the second to the first list (with a corresponding amendment to Annex XVII of the REACH Regulation on the registration of chemical substances) and three new substances or groups which had been added by delegated acts of the Commission in November 2016 have been included in the second list (aluminium powders, magnesium powders and magnesium nitrate hexahydrate). The other 14 substances already listed remain unchanged. The IA sets out the rationale for these changes (although the three additions are not discussed in detail and there is no information provided here or as part of the delegated acts on the supply chains affected, potential market impacts, or quantities likely to be purchased by either professional users or members of the general public).












3.4.


The Regulation also provides much-needed clarification of the different roles in the various supply chains, in particular providing clear definitions of ‘economic operators, ‘professional users’, ‘farmers’ and ‘members of the general public’.












3.5.


As the existing Regulation falls under the scope of the Commissions REFIT programme, the new proposal seeks to reduce costs and increase efficiency (and hopefully effectiveness) by reducing the number of options available to Member States. Members of the public (non-professional users) will be required to obtain a licence to use restricted precursors at certain concentrations above the limit values specified in Annex 1 and the existing less stringent process of self-registration will no longer suffice. Existing licences may be renewed only if they are deemed to meet the requirements of the new Regulation.












3.6.


The need to inform and to keep aware all those in the relevant physical and online supply chains of the new measures is recognised — although the actual mechanics of doing so remain unclear. Safety data sheets, for instance, are intended to keep workers and consumers safe when handling the substances, not to prevent their illegal use. The all-important limit values set out in Annex I are hard to interpret for some of the substances listed and may need revision, especially as each refers to a different supply chain and set of economic operators, if there are any best practices in this respect at Member State level, these should clearly be shared as widely as possible.












3.7.


Member States can propose more stringent controls (including lower levels of concentration or complete bans) and the Commission can add new substances to the Annexes should this prove necessary to control terrorism.












3.8.


Member States are required to provide to the Commission annual summaries of the number of suspicious transactions, licence applications and reasons for refusal, actions on awareness-raising, and details of inspections undertaken of on- and offline activities.












3.9.


Finally, the Commission will, no sooner than six years after the date of application, review and report on the effectiveness of the Regulation to the European Parliament, Council and EESC.




4.   General and specific comments









4.1.


The EESC welcomes the proposal for a new Regulation and strongly supports its objectives. The substances being controlled are broadly in line with priority lists in other parts of the developed world. The new definitions should bring clarity to those trying to follow it. There will be some additional costs for governments, but they seem to be proportional to the benefits of further minimising terrorist activity. A common regulatory regime across all Member States should benefit suppliers and other economic operators. The need to reduce risks to the general public (and others including high-profile individuals, police and military personnel) whilst allowing the free movement of goods for legitimate purposes seems to be reasonably balanced.












4.2.


The EESC also agrees that there is a need for urgent and coordinated action by Member States and shares the Commission’s concerns over the slow and non-uniform response to the existing Regulation.












4.3.


However, this in turn raises concerns over the processes followed in the preparation of its replacement, in particular in the content and quality of the supporting documents. The IA, prepared by the Commission based on work by consultants Ernst & Young, relies heavily on publically available EU-level statistics which may or may not be adequate or complete. The format, following internal guidelines, does not make for easy reading or clarity. The Open Public Consultation attracted only 83 responses of variable significance. Both were prepared over a short period including Christmas and New Year 2017-18, with little or no time to fill gaps in the evidence presented. The availability of products online was checked by searches of Amazon; no mention is made of more obscure sources on the dark web.












4.4.


The EESC understands that the key question of the scope of the Regulation, i.e., which products should be controlled, was reviewed by the Commission at an early stage but this is not spelled out in the IA. As already noted, there seems to be no market analysis for the three substances added in 2016 by delegated acts. The absence of controls on hydrochloric acid, which was included in the IA prepared for the current regulation but dropped at the last moment from the existing list without explanation. Other medium-priority precursors including potassium permanganate, sodium nitrite, urea and zinc powder which appear on other lists of potential dual-use products should at least be discussed. Progress toward a globally recognised list, at least for the developed world, would be a useful aim.












4.5.


The EESC agrees with the list of possible control measures which were discarded at an early stage. However there has to be some concern over the narrow range of controls now proposed. especially given the highly disparate nature of the products concerned. Package sizes, bar codes and insistence on payment by traceable cards or bank transfers from personal or corporate accounts can all play their part in limiting or tracking sales. Current practices in Member States may well differ, but this does not appear to be a compelling argument in the war against terror.












4.6.


Differences in application of the existing Regulation will however affect the costs for some Member States and for those involved in the lawful distribution and use of the restricted products. Given that a number of infringement orders were required to ensure action under the current regime, there may be some reluctance to accept the licence-only approach, whatever the long-term benefits. Controls on sales via the internet are mentioned but left without further analysis as being a national responsibility.












4.7.


The proposal includes a lengthy analysis of its compatibility with and legality under other EU legislation, including that on General Data Protection (GDPR) just now coming into full force. The limitations of the current system of CN codes which are used to identify cross-border movements of substances and mixtures are also discussed — as they were eight years ago when the previous opinion was written. Given that there are only 18 substances currently listed — and probably no more than 12 that could still be listed — it should be possible to develop appropriate customs codes specifically for use under this Regulation and to ensure that other EU legislation developed for other purposes does not conflict with the basic aims of the safety and security of EU citizens.












4.8.


The EESC also notes that the products listed differ widely in their production volumes, supply chains and legitimate end-uses for both professional users and the general public. The only thing they have in common is that they are potentially of value to terrorists — and the intent of the legislation is therefore to disrupt these unwanted supply chains using all available measures.












4.9.


These measures will not be the same for each product; force-fitting them into a single control system is unlikely to be as effective as it should be. A preferred approach would be a simple framework directive setting out the broad objectives, with specific consultations, analyses, IAs and Regulations applying to each of the listed substances. Overall this would save time and lives — and would certainly better meet the requirements of the REFIT programme.












4.10.


This would also allow closer long-term collaboration and information exchange with the manufacturers and others affected, all of whom support measures to reduce misuse of their products. The volumes diverted to illegal uses are trivial in comparison with any loss of reputation or the risk of wider restrictions. Global efforts to control the very small amounts of acetic anhydride required for the manufacture of illicit drugs including heroin provide a useful example of what can be achieved in this respect. The EESC published its opinion on this proposal with respect to drug precursors in January 2013 (5). Many of the ideas considered then apply equally to the explosives precursors subject to restriction or reporting under this proposal.












4.11.


Finally the EESC welcomes its continuing involvement in the development and application of this Regulation but, especially in light of the tight timetables in force during the development of the proposal, considers that any subsequent review by the Commission should be undertaken by no later than, rather than no sooner than, six years after its date of application.





Brussels, 11 July 2018.


The President of the European Economic and Social Committee

Luca JAHIER




(1)  OJ C 84, 17.3.2011, p. 25.

(2)  OJ C 76, 14.3.2013, p. 54.

(3)  OJ C 204, 9.8.2008, p. 13.

(4)  OJ C 84, 17.3.2011, p. 25.

(5)  OJ C 76, 14.3.2013, p. 54.