Revision of Regulation (EU) 2019/1148 of the European Parliament and of the Council of 20 June 2019 on the marketing and use of explosives precursors, amending Regulation (EC) No 1907/2006 and repealing Regulation (EU) No 98/2013
Date: 2024-07-23
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: area of freedom, security and justice



IMMC.Ares%282024%295334534.ENG.xhtml.PART-2024-664215V1.docx











CALL FOR EVIDENCE 


FOR AN EVALUATION AND IMPACT ASSESSMENT RUN IN PARALLEL






This document aims to inform the public and stakeholders about the Commission's work so they can provide feedback on the intended initiative and participate effectively in consultation activities. 


We ask these groups to provide views on the Commission's understanding of the problem and possible solutions, and to give us any relevant information they may have, including on the possible impacts of the different options.







Title of the initiative




Explosives precursors – evaluation of the EU legislation






Lead DG – responsible unit 




DG HOME – Unit D2






Likely type of initiative




Proposal for a revision of Regulation (EU) 2019/1148 on the marketing and use of explosives precursors






Indicative planning




Q4 2025






Additional information




https://home-affairs.ec.europa.eu/policies/internal-security/counter-terrorism-and-radicalisation/protection/legislation-chemicals-used-home-made-explosives_en






This document is for information purposes only. It has no bearing on the final decision of the Commission on whether this initiative will be pursued or on its final content. All aspects of the initiative described by this document, including its timing, are subject to change.







A. Political context, evaluation, problem definition and subsidiarity check  






Political context 






Regulation (EU) 2019/1148 on the marketing and use of explosives precursors (the ‘Regulation’) aims to prevent terrorists and other criminals from acquiring and using certain chemicals (‘explosives precursors’) to produce home-made explosives (HMEs) to stage attacks. According to Europol’s 2022 EU terrorism situation and trend report, evidence – in particular from foiled right-wing and jihadist attacks – confirms the intent and capabilities of terrorists to carry out attacks using explosives and improvised explosive devices. Additionally, HMEs remain the preferred weapon for jihadist terrorists.


Against this background, control and monitoring of explosives precursors is key to prevent attacks with HMEs by terrorists and other criminals in the EU. 


Article 21 of the Regulation requires the Commission to evaluate this Regulation and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee by 2 February 2026.  


Additionally, the Commission has already expressed its intention (https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13426-Preventing-terrorism-new-rules-on-the-marketing-and-use-of-high-risk-chemicals_en) to propose measures on the control and monitoring of certain chemicals that can be used to manufacture devices that can spread lethal or poisonous gases (‘high-risk chemicals’) through completing its impact assessment in 2024. This impact assessment will be linked to the revision of the EU explosives precursors legislation. 






Evaluation 






The evaluation will look at all aspects of the Regulation and whether it is still fit for purpose in the light of indications that terrorists and other criminals are trying to circumvent the current control and monitoring measures by using alternative explosives precursors. The evaluation will assess the period from the entry into application of the Regulation (1 February 2021) until the start of the evaluation procedure. It will cover the EU Member States and the European Free Trade Association countries that form part of the European Economic Area. It will look into the following evaluation criteria: effectiveness, efficiency, relevance, coherence, EU added value and the impact on fundamental rights and freedoms. The efficiency analysis will consider costs and benefits and assess whether potential unnecessary burdens can be removed.






Problem the initiative aims to tackle 






The initiative aims to address the below problems.


Problem 1: Since the entry into application of the Regulation on 1 February 2021, and – before this – the entry into application of its predecessor
1
, the main and best-known explosives precursors that can be used to manufacture HMEs are controlled and monitored in the European Economic Area. However, for some time now, there have been indications that terrorists and other criminals are trying to circumvent the current control and monitoring measures by using alternative explosives precursors and chemicals to manufacture HMEs.


Problem 2: There have been indications that the aim of the Regulation to create a level playing field for businesses to produce, distribute and supply explosives precursors and for people to acquire explosives precursors in compliance with the restrictions of the Regulation (in particular the licensing system applicable to certain substances listed in Annex I to the Regulation) has not been fully achieved, for example due to uneven application of the Regulation and divergent interpretation of some of its provisions.  


Problem 3: High-risk chemicals are substances for which there are no harmonised EU rules and which can be used to manufacture devices that can spread lethal or poisonous gases. These devices can be used to carry out deadly or major terrorist attacks. The Commission has already analysed this matter.  






Basis for EU action 











Legal basis






The legal basis for the Regulation is Article 114 of the Treaty on the Functioning of the European Union on the EU single market. The same legal basis will be used for a revision of the Regulation, possibly integrating the new aspects on high-risk chemicals.


Furthermore, the evaluation of the Regulation is a legal obligation under Article 21 of this Regulation. 






Practical need for EU action






Without a periodic evaluation of existing legislation and consideration of possible new measures on alternative explosives precursors and chemicals, the capacity of authorities to prevent attacks with HMEs and chemical devices will be seriously reduced. Against a background of continued high-level terrorist threat, people in the EU expect the authorities to take appropriate and proportionate measures to continue to protect them from terrorist attacks. This policy is fully in line with the European Security Strategy and with the Counter-Terrorism Agenda for the EU: Anticipate, Prevent, Protect, Respond. 






B. Objectives and policy options       







The main aim of this initiative is to provide the authorities in the EU with the legal framework to effectively prevent (terrorist) attacks with HMEs and lethal chemical devices – by preventing criminals and terrorists from having access to the materials or substances they need to manufacture such HMEs and lethal chemical devices. At the same time, the proper functioning of the single market needs to be ensured by harmonising controls and access restrictions on explosives precursors and high-risk chemicals in the EU.


The impact assessment will consider the below options.


Option 1: Baseline scenario (‘status quo’)


Under this option, rules will not change. This means that the focus of authorities will remain on the substances that are currently covered by the Regulation. There will thus be a risk that terrorists and other criminals who are trying to manufacture HMEs and lethal/poisonous chemical devices with other substances will not be detected and thus not prevented from carrying out their plans.


Option 2: Strengthen awareness-raising and research 


This option could encompass a range of measures such as: (i) raising the awareness of authorities, including law enforcement authorities, and all parties in the supply chain of the fact that not only the substances that are covered by the Regulation should be monitored but also certain alternative substances; and (ii) allocating EU funding to testing substances that are not covered by the Regulation for their potential use in manufacturing HMEs and lethal chemical devices. 


Option 3: Introduce new measures on alternative chemicals, among other things, and regulate high-risk chemicals under the Regulation


The Regulation could be changed in such a way that: (i) high-risk chemicals would become restricted and reportable substances under the Regulation (‘restricted’ means that they would not be available to members of the general public and ‘reportable’ means that there is an obligation to notify suspicious transactions to the authorities); (ii) substances that are currently not covered by the Regulation and that can be misused to manufacture HMEs and lethal/poisonous chemical devices can be quickly added as restricted and reportable substances under the Regulation; (iii) certain obligations apply to substances that are currently not covered by the Regulation; and (iv) certain aspects of the Regulation that repeatedly led to doubts about its correct interpretation, such as the verification upon sale, are clarified. This option could be supplemented with certain non-legislative measures. 






C. Preliminary assessment of the expected impacts






Likely impact on security 


This initiative is expected to have a positive impact on the capacity of authorities in the EU to effectively prevent attacks with HMEs and lethal/poisonous chemical devices. This will increase the level of protection and security for the general public in the EU.  


Likely economic impact


The economic costs of a (successful) terrorist attack are extremely high and can run into millions of euro
2
 and more. Every attack that is prevented via this initiative thus helps avoid these huge costs for society. The measures will also have some impact on economic activity and consumer choice. Additionally, this initiative will help improve the functioning of the single market for explosives precursors (and the mixtures that contain them) in the European Economic Area.


Likely social impact


This initiative is expected to have a limited positive social impact (in terms of employment, workers’ safety, attractiveness of the EU as a place for investments, etc.).


Likely environmental impact


This initiative is expected to have a limited positive environmental impact (reduced environmental damage due to reduced risk of terrorist attack, fewer industrial accidents with great environmental impact due to increased knowledge of potential risks of explosion or release of toxic gases along the supply chain, etc.).


Likely impact on fundamental rights and equality 


This initiative may have a limited negative impact on fundamental rights (right to privacy and protection of personal data, right to property, etc.) but this will be counterbalanced by increased security for the EU and its people.






D. Better regulation instruments 






Impact assessment and evaluation 






An external contractor will carry out the evaluation and the impact assessment study that will support the preparation of this initiative and feed into the Commission’s staff working document. The results of the study are expected in the first quarter of 2025. 


In relation to high-risk chemicals, the Commission already completed internal work in 2024. This will be incorporated into the evaluation of the Regulation and the impact assessment on its revision. 






Consultation strategy 






As part of the evaluation and impact assessment of the Regulation, an external contractor will carry out targeted consultations (with Member State authorities, businesses, EU agencies and bodies as well as other relevant stakeholders).


The aim of the targeted consultations will be to obtain the views of stakeholders on the implementation of the Regulation. 


In line with the Commission’s better regulation policy to develop initiatives informed by the best available knowledge, views will be sought from, among others, scientific researchers, academic organisations, and scientific associations with expertise in the manufacture of HMEs and chemical devices. They are invited to submit relevant published and pre-print scientific research, analyses and data. Submissions that summarise the current state of knowledge in relevant fields are of particular interest.


In addition, a public consultation will be published on the Commission’s ‘Have your say’ portal in the second half of 2024. A validation workshop will be organised where emerging findings will be presented and where experts will have the opportunity to give their views on the robustness of the analyses. A factual summary report will be published on the Commission’s consultation page once all consultation activities have been completed. A synopsis report compiling all consultation activities will be annexed to the impact assessment.











Why are we consulting?






The consultation will aim to gather views on: (i) the implementation of the Regulation, in particular its effectiveness, efficiency, EU added value, relevance, coherence and impact on fundamental rights and freedoms; (ii) the scale of the threat from alternative explosives precursors; (iii) ways of controlling alternative explosives precursors; and (iv) the functioning of the single market for explosives precursors. 






Target audience






National public authorities, including:
                              


•
                              national inspection authorities of the Member States in accordance with Article 11 of the Regulation; 


•
                              national contact points of the Member States in accordance with Article 9 of the Regulation; 


•
                              other relevant law enforcement authorities of the Member States; 


•
                              customs authorities of the Member States; and


•
                              relevant judicial authorities.


Representatives of businesses, professional users and online market places, including:


•
                              businesses and their federations and associations, in particular of the chemical industry and                         chemical distributors;


•
                              online market places and their federations and associations;  


•
                              professional users and their federations and associations (farmers, explosives manufacturers, etc.); and 


•
                              federations and associations that represent hobbyists who use the chemicals under consideration.


General public:


•
                              members of the general public.


EU agencies, bodies and initiatives, including:
                              


•
                              the European Union Agency for Law Enforcement Cooperation (Europol); 


•
                              the European Union Agency for Criminal Justice Cooperation (Eurojust); and


•
                              European Multidisciplinary Platform Against Criminal Threats (EMPACT) drivers and action leaders.  


Academia, including: 
                              


•
                              research institutes that have been or are involved in recent research projects on explosives precursors (e.g. the INHERIT, ODYSSEUS and EXERTER projects). 


Others, including:
                              


•
                              organisations that have been or are involved in Internal Security Fund projects on explosives precursors (e.g. the iTrace Plus 3 project).










(1)
 Regulation (EU) No 98/2013 on the marketing and use of explosives precursors, which entered into application in 2014.



(2)
 The terrorist attacks at Zaventem airport and Maelbeek metro station in Belgium in 2016 have led to about EUR 322.7 million in compensation payments to victims and material damage alone (Belgian Deputy Prime Minister Kris Peeters in answer to a question in the Belgian Chamber of Representatives).