CELEX: 51992PC0123
Language: en
Date: 1992-04-13
Title: Proposal for a COUNCIL DIRECTIVE on the supervision and placing on the market of explosives for civil uses and the mutual recognition of authorizations and approvals relating to such explosives

13 . 5 . 92                          Official Journal of the European Communities                             No C 121 / 19
                                                              II
                                                      (Preparatory Acts)
                                                COMMISSION
              Proposal for a Council Directive on the supervision and placing on the market of explosives for
              civil uses and the mutual recognition of authorizations and approvals relating to such explosives
                                                       (92 /C 121 /24)
                                              COM(92) 123 final — SYN 409
                                     (Submitted by the Commission on 13 April 1992)
THE COUNCIL OF THE EUROPEAN COMMUNITIES ,                         whereas, in order to avoid repetitive checks each
                                                                  amounting to barriers to trade, it is advisable to provide
                                                                  initially for mutual recognition of authorizations granted
Having regard to the Treaty establishing the European             by the Member States to place explosives for civil uses
Economic Community, and in particular Article 100a                on the market ;
thereof,
                                                                  Whereas harmonization of provisions governing the
Having regard to the proposal from the Commission,                placing of such explosives on the market presupposes
                                                                  that divergent national rules relating to approval and
                                                                  authorization procedures will be harmonized in order to
In cooperation with the European Parliament,                      ensure the free movement of these products without
                                                                  lowering existing and justified levels of safety and
                                                                  security in the Member States ;
Having regard to the opinion of the Economic and
Social Committee,
                                                                  Whereas this Directive defines only the essential
                                                                  requirements which must be met by explosives
Whereas Article 8a provides that the internal market              conformity tests ; whereas, in order to facilitate the
must be established not later than 31 December 1992 ;             process of demonstrating compliance with the essential
whereas the internal market must comprise an area                 requirements, it would be very useful to possess
without internal frontiers in which the free movement of          standards harmonized at European level, concerning,
goods, persons, services and capital is ensured in                inter alia, methods for testing explosives ; whereas such
accordance with the provisions of the Treaty;                     standards do not exist at present ;
                                                                  Whereas standards harmonized at European level are
Whereas the free movement of goods presupposes that               drawn up by private bodies and must retain their status
certain basic conditions are fulfilled ; whereas, in              as non-mandatory (voluntary) standards ; whereas , in this
particular, the free movement of explosives presupposes,          connection, the European Committee for Standard­
inter alia, mutual recognition of approvals and auth­             ization (CEN) has been recognized as one of the two
orizations as a prelude to harmonization of laws on               bodies competent to adopt harmonized standards in
explosives ;                                                      accordance with the general guidelines for cooperation
                                                                  between the Commission and CEN and Cenelec, ratified
                                                                  on 13 November 1984 ; whereas, for the purposes of this
Whereas explosives for civil uses are covered by detailed         Directive, 'harmonized standard' means a text setting out
national regulations, mainly in respect of safety and             technical specifications adopted by CEN under a
security requirements ; whereas such national regulations         mandate conferred by the Commission, in accordance
provide, in particular, that marketing authorizations be          with Council Directive 83 / 189 / EEC of 28 March 1983
granted only where explosives have satisfactorily                 laying down a procedure for the provision of infor­
undergone a series of tests ;                                     mation in the field of technical standards and regu­
                                                                  lations ('), as last amended by Commission Decision
                                                                  90 /230 /EEC (2), and in keeping with the abovemen­
Whereas the existing supervision procedures are directed          tioned general guidelines ;
towards ensuring that such products meet safety and
security requirements ; whereas such supervision
procedures may differ appreciably from one Member
State to another without, however, adversely affecting            0) OJ No L 109 , 26 . 4 . 1983 , p . 8 .
compliance with safety and security requirements ;                O OJ No L 128 , 18 . 5 . 1990 , p . 15 .
 ---pagebreak--- No C 121 / 20                                Official Journal of the European Communities                                 13 . 5 . 92
Whereas the rules concerning the transport of explosives               3.     This Directive shall not apply to :
are covered by international conventions and
agreements ; whereas, at international level, there are                — explosives used under military control or under the
United Nations Recommendations on the transport of                          control of police forces,
dangerous goods (including explosives), the scope of
which extends beyond the Community alone ; whereas, in                 — pyrotechnical articles used for purposes of display or
consequence, this Directive does not concern the                            entertainment.
transport rules ;
                                                                       4.     For the purposes of this Directive :
Whereas pyrotechnical articles for display or enter­
tainment purposes require special measures to ensure the               — 'United      Nations    Recommendations '    means       the
protection of consumers and the safety of the general                      recommendations drawn up by the UN Committee of
public; whereas, in consequence, this Directive does not                   Experts on the transport of dangerous goods
concern such products ;                                                     (Orange Book), as published by the United Nations
                                                                            and as amended on the date of this Directive's
Whereas the definition of the products covered by this                      adoption,
Directive should be identical with the definition of such
products as set out in the abovementioned United                       — 'undertaking in the explosives sector' means any
Nations Recommendations ;                                                   natural or legal person possessing a licence or auth­
                                                                           orization which entitles him to engage in the manu­
Whereas the health and safety of workers producing or                      facture, storage, use and transfer of explosives or in
using explosives must also be protected ; whereas a                        trade in explosives,
Directive is to be prepared covering, inter alia, the health
and safety of workers engaged in activities relating to the            — 'placing on the market' means any disposal against
manufacture, storage and use of explosives ;                               payment or free of charge to third parties of
                                                                           explosives or the release of explosives for circulation
Whereas       it is  essential     to    establish  administrative
                                                                           in the Community.
cooperation mechanisms ; whereas it is appropriate in this
connection for the competent authorities to base their                 5 . This Directive shall be without prejudice to the
approach on Council Regulation (EEC) No 1468 / 81 of                   definitions of explosives set out in the national regu­
                                                                       lations .
19 May 1981 on mutual assistance between the adminis­
trative authorities of the Member States and cooperation
between the latter and the Commission to ensure the                                               Article 2
correct application of the law on customs or agricultural
matters ('), as amended by Regulation (EEC) No                         Member States shall take all measures necessary to
945 / 87 (2),                                                          ensure that supervision of transfers within                the
                                                                       Community, the approval of explosives and                  the
                                                                       provisions governing the placing of explosives on          the
HAS ADOPTED THIS DIRECTIVE :                                           market are subject to the requirements laid down in       this
                                                                       Directive .
                           CHAPTER 1
                                                                                                CHAPTER 2
                    GENERAL PROVISIONS
                                                                       HARMONIZATION            OF      LAWS    RELATING         TO
                                                                                               EXPLOSIVES
                             Article 1
                            Definitions                                                           Article 3
                                                                                          Approval of explosives
1 . This Directive shall apply to explosives as defined
in paragraph 2 .                                                       Member States shall ensure that the placing of explosives
                                                                       on the market is subject to approval of the product,
2.     For the purposes of this Directive, 'explosives'                substances or preparations . Such approval shall be
means the materials and articles considered to be such in              granted only where the explosive has satisfactorily
the United Nations Recommendations on the transport                    undergone a series of tests intended to demonstrate its
of dangerous goods and falling within Category 1 of                    compliance with requirements concerning the security,
those Recommendations .                                                safety and health of persons and the protection of
                                                                       property. Such tests shall be carried out in a laboratory
                                                                       approved by the competent authority or, failing this, in
                                                                       accordance with procedures providing guarantees similar
( l) OJ No L 144 , 2 . 6 . 1981 , p. 1 .                               to those that would be provided by an approved
O OJ No L 90 , 2 . 4 . 1987 , p . 3 .                                  laboratory.
 ---pagebreak--- 13 . 5 . 92                           Official Journal of the European Communities                            No C 121 / 21
                           Article 4                                                    CHAPTER 3
            Mutual recognition of authorizations                PROVISIONS RELATING TO THE MOVEMENT AND
                                                                SUPERVISION OF EXPLOSIVES IN THE COMMUNITY
Approvals of explosives and authorizations to place
explosives on the market which have been granted in a                                     Article 7
Member State pursuant to this Directive shall be
accepted by the other Member States as approvals of                        Supervision of transfers of explosives
explosives and marketing authorizations which are valid
within their territories .                                      1 . Checks carried out under Community law or
                                                                national law in the event of transfers of explosives shall
                                                                no longer take the form of controls at frontiers, but shall
                           Article 5                            be conducted solely within the context of routine checks
                                                                performed in a non-discriminatory manner throughout
                   Essential requirements                       the territory of a Member State .
1 . Member States shall take all appropriate measures
to ensure that explosives are placed on the market only if      2. Where special safety requirements such as those
they comply with the essential requirements set out in          referred to in paragraph 3 are unnecessary or in the case
Annex I.                                                        of regular customers, explosives can be transferred
                                                                without prior provision of information within the
                                                                meaning of paragraph 3 . The competent authorities shall
2. Member States shall presume as complying with the            then grant an approval valid for a maximum period of
essential requirements explosives which meet the relevant       one year and liable to suspension or withdrawal at any
                                                                time on the basis of a reasoned decision . The document
national standards adopted pursuant to harmonized
standards of which the reference numbers have been              referred to in paragraph 4 shall refer solely to such
published in the Official Journal of the European               approval and must accompany the explosives until they
                                                                arrive at their destination .
Communities; Member States shall publish the reference
numbers of the said national standards .
                                                                3 . Where transfers of explosives must be specially
                                                                supervised in order to comply with special safety
3.      Where   a  Member      State or   the  Commission       requirements in the territory or part of the territory of a
considers that harmonized standards do not fully comply         Member State, the following information shall be
with the essential requirements, the Commission or the          imparted by the operator in question to the competent
Member State concerned shall place the matter before            authorities in the Member State to which the explosives
the Standing Committee set up under Directive                   are to be transferred or through which the shipment is to
83 / 189/ EEC .                                                 transit :
                                                                — the name and address of the vendor or consignor, the
That Committee shall deliver an opinion as soon as                  purchaser or consignee or, where appropriate, the
possible. In the light of that opinion, the Commission              owner; these particulars must be detailed enough to
shall notify the Member States of the measures to be                enable the operators to be contacted and confir­
taken with regard to the standards and the publication              mation to be obtained that the persons in question
thereof.
                                                                    hold the requisite approvals or authorizations,
                           Article 6                            — the number and quantity of explosives being trans­
                                                                    ferred,
                  Declaration of conformity
1 . Member States shall presume as complying with the           — a full description of the explosive in question and of
                                                                    the means of identification,
essential requirements referred to in Article 5 all
explosives in respect of which the manufacturer or the
agent responsible for placing them on the market can            — particulars of the approval referred to in Article 3,
produce on request the declaration of conformity
described in Annex II .
                                                                — the means of transfer,
2 . Where an explosive does not comply with the                 — the dates of departure and of arrival.
requirements set out in Annex I, Member States shall
take appropriate measures in respect of the person
responsible for the declaration of conformity. They shall       The competent authorities shall examine the conditions
inform the Commission and the other Member States               under which the transfer is to take place, in particular
thereof.                                                        with regard to special safety and security requirements.
 ---pagebreak--- No C 121 / 22                         Official Journal of the European Communities                                 13 . 5 . 92
In the event of transit through the territory of a third        The opinion shall be recorded in the minutes ; in
Member State, that State shall likewise examine the             addition, each Member State shall have the right to ask
transfer conditions .                                           to have its position recorded in the minutes .
4.     Where a Member State authorizes a transfer, it
shall issue a document which includes all the information       The Commission shall take the utmost account of the
referred to in paragraph 3. Such a document must                opinion delivered by the committee. It shall inform the
accompany the explosives until they arrive at their desti­      committee of the manner in which its opinion has been
nation. It must be produced for perusal by the competent        taken into account.
authorities whenever they so request.
5.     Each Member State shall forward all relevant infor­                               Article 11
mation at its disposal on the subject of definitive                                     Documents
transfers of explosives to Member States from which
explosives are to be transferred, through the territory of      Member States shall compile a register of all under­
which they are to transit or to which they are to be            takings in the explosives sector which hold approvals or
transferred .
                                                                authorizations .
                         Article 8
                                                                Member States shall determine whether such under­
1 . Member States shall set up information exchange
networks for the implementation of this Directive not           takings possess a system for keeping track of explosives
later than 31 December 1992 . They shall notify the other       such that those holding explosives can be identified at
Member States and the Commission of the national                any time.
authorities responsible for forwarding or receiving infor­
mation and for applying the procedures referred to in
Articles 3 and 7 .                                              Undertakings in the explosives sector shall keep such
                                                                records of their transactions as are necessary to fulfil the
2. For the purpose of implementing this Directive, the          obligations set out in this Article.
provisions of Regulation (EEC) No 1468 /81 , in
particular those relating to confidentiality, shall apply
mutatis mutandis.                                               The records must be kept for a period of not less than
                                                                three years from the end of the calendar year in which
                                                                the transaction recorded took place, even if the under­
                       CHAPTER 4
                                                                taking has ceased trading.
                   OTHER PROVISIONS
                         Article 9                              The records must be kept readily available for inspection
                                                                by the competent authorities at their request.
Any amendments necessary to adapt the Annexes to
scientific and technical progress in the fields covered by
this Directive and to take account of future amendments
to the United Nations Recommendations shall be                                           Article 12
adopted in accordance with the procedure laid down in
Article 10 .                                                                              Penalties
                                                                Each Member State shall take appropriate measures to
                         Article 10                             ensure proper implementation of all the provisions of this
                                                                Directive and, in particular, shall specify the penalties to
The Commission shall be assisted by a committee of an           be imposed in case of breach of the said measures ; such
advisory nature composed of the representatives of the          penalties must be effective, proportionate and dissuasive.
Member States and chaired by the representative of the
Commission .
                                                                                         Article 13
The representative of the Commission shall submit to the
committee a draft of the measures to be taken. The               1.   Member States shall adopt and publish the laws,
committee shall deliver its opinion on the draft, within a      regulations and administrative provisions necessary to
time limit which the chairman may lay down according            comply with this Directive before 31 December 1992.
to the urgency of the matter, if necessary by taking a          They shall forthwith inform the Commission thereof.
vote .                                                          They shall apply the provisions as from 1 January 1993.
 ---pagebreak--- 13 . 5 . 92                               Official Journal of the European Communities                                     No C 121 / 23
When Member States adopt these provisions, these shall                   law which they adopt in the field governed by this
contain a reference to this Directive or shall be accom-                 Directive .
panied by such reference at the time of their official
publication. The procedure for such reference shall be
adopted by Member States .
2. Member States shall communicate to the                                                           Article 14
Commission the texts of the provisions of national                       This Directive is addressed to the Member States .
                                                                ANNEX I
                                                    ESSENTIAL REQUIREMENTS
                                                         I. General requirements
             1 . Explosives must be so designed, manufactured and tested that their use does not compromise the safety,
                 security and health of persons or jeopardize property or the environment.
             2 . Explosives must attain the levels of effectiveness intended by their manufacturer without giving rise to
                 risks or other nuisance factors .
             3 . Explosives must be so designed, manufactured and packaged that their safety features and the effec­
                 tiveness thereof are not impaired under the conditions of storage, transfer or use to which the product is
                 likely to be exposed.
             4 . Risk levels and categories :
                 the optimum safety level to be taken into account during the design of the product shall be that beyond
                 which constraints arising during manufacture, transfer, storage or use would preclude the product's
                 being placed on the market or used.
                                    II. Additional requirements specific to the hazards to be averted
             1 . Stability in heat
                 Explosives must remain stable at temperatures to which they may be exposed during their storage,
                 transfer or use .
             2 . Sensitivity to impact andfriction
                 Explosives must meet minimum safety criteria in respect of impact and friction so that they can be
                 manufactured, stored, transferred and used without danger.
             3 . Detonation sensitivity
                 Explosives must be reliable detonated by the recommended detonator series. Where explosives are in the
                 form of cartridges, the detonation must be reliably transmitted through a set of cartridges .
             4 . Compatibility ofcomponents
                 Explosives must contain only chemically and physically compatible components and must not give rise to
                 any risk of chemical instability.
 ---pagebreak--- No C 121 / 24                          Official Journal of the European Communities                                    13 . 5 . 92
                                                              ANNEX II
            Contents of the declaration by the manufacturer or by the agent responsible for placing the product on the
                                                                market
            The declaration by the manufacturer or by the agent responsible for placing the product on the market,
            which is referred to in Article 6 ( 1 ), must contain the following information :
            — the name and address of the manufacturer or the agent,
            — a description of the tests undergone by the explosive,
            — the identity of the person responsible for the declaration.