EXPLANATORY MEMORANDUM
1.CONTEXT OF THE DELEGATED ACT
Explosives precursors are chemicals which may be used for the illicit manufacture of home-made explosives. Regulation (EU) No 98/2013 1 establishes harmonised rules on the making available, introduction, possession and use of substances or mixtures that could be misused for the illicit manufacture of explosives. The aim is to limit their availability to the general public and ensure the appropriate reporting of suspicious transactions throughout the supply chain.
The Regulation contains two Annexes listing a total of 15 chemical substances. Substances listed in Annex I are restricted explosives precursors and cannot be made available to, or introduced, possessed or used by, members of the general public. In addition, economic operators who place these chemical substances on the market must report suspicious transactions, significant disappearances and thefts to the designated national contact point(s) in each Member State. It follows that substances listed in Annex II are subject only to the reporting obligation, not to the restriction.
The empowerment to adopt delegated acts to add new substances to Annex II is laid down in Article 12. This provision enables the Commission to update the Regulation by means of a delegated act, so that it reflects developments in the misuse of substances as explosives precursors. Metal powders such as aluminium and magnesium are high-risk explosives precursor chemicals. Aluminium powder has been used in the production of homemade explosives in Europe, notably in Norway in 2011 and outside Europe. It is regularly seized from individuals who are found to be in possession of other explosives precursors that are banned.
Since 2010, the World Customs Organisation’s Programme Global Shield has been monitoring worldwide shipments of aluminium powder and flakes. In 2012 alone, it reported seizing 525 kg of this substance. Due to its misuse, aluminium powder needs to be added to Annex II. Magnesium powder and alloys of both substances are realistic alternatives to aluminium in this context. Therefore, the inclusion of magnesium powder in Annex II as a preventive measure would be both coherent with the aims and scope of Regulation 98/2013. The particle size threshold (< 200 μm) and percentage limit (70 % by weight or higher) follow those used in the Danish Government Order on Precursors to Explosives. Denmark already requires that only members of the general public who hold a licence can access magnesium powder.
Article 12(2) requires each delegated act to be based on an analysis showing that the burden of the amendment on economic operators or consumers is unlikely to be disproportionate to the objectives it is intended to achieve. Adding substances to Annex II allows increased control over the use of those substances, so as to prevent their diversion towards the illicit manufacturing of homemade explosives. This does not significantly increase the burden on economic operators or consumers.
Economic operators must take all measures necessary to ensure compliance with the obligation to report any suspicious transactions, disappearances and thefts to their national contact point. This represents some additional workload, but the economic impact from adding magnesium powder to Annex II is minimal.
The addition also represents some additional workload for the national competent authorities who must raise awareness among economic operators and take all measures necessary to ensure that rules on penalties applicable to infringements are implemented.
Overall, however, the delegated act does not add disproportionate burdens on any stakeholders and therefore, given the aim of seeking to reduce the use of chemical substances in the production of homemade explosives, adding magnesium powder to Annex II is justified.
2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT
In line with paragraph 4 of the Common Understanding on Delegated Acts between the European Parliament, the Council and the European Commission, appropriate and transparent consultations, including at expert level, have been carried out in the preparation of this delegated act. The relevant documents have been transmitted in a timely and appropriate manner to the European Parliament and to the Council.
Article 12(1) requires the Commission, as part of the preparation of the delegated acts, to 'endeavour to consult relevant stakeholders, in particular the chemical industry and the retail sector'. The Standing Committee on Precursors, a registered expert group of the Commission which brings together representatives of the national competent authorities and of the chemical industry and retail sector, was consulted in meetings held on 6-7 October 2015, 27-28 January 2016 and in writing between 2 June and 1 July 2016.
3.LEGAL ELEMENTS OF THE DELEGATED ACT
On the basis of Regulation (EU) No 98/2013 on the marketing and use of explosives precursors, the Commission is empowered to adopt delegated acts concerning the addition of substances to Annex II, where necessary to accommodate developments in the misuse of substances as explosives precursors.
Article 12(2) requires the Commission to adopt a separate delegated act in respect of each new substance added to Annex II.
COMMISSION DELEGATED REGULATION (EU) …/...
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amending Regulation (EU) No 98/2013 of the European Parliament and of the Council, as regards adding magnesium powder to the list of explosives precursors in Annex II