Marketing and use of explosive precursors (from 31 January 2021)

KEY POINTS

The regulation:

• identifies 2 distinct categories within the regulated explosives precursors⁴:
  • restricted explosives precursors, such as nitric acid, hydrogen peroxide and ammonium nitrate, set out in Annex I. These are not to be made available to, introduced, possessed or used by members of the general public unless their concentration is below specific limits;
  • reportable explosives precursors, such as acetone, sodium nitrate and magnesium powders, listed in Annex II;
• requires any suspicious transactions, significant disappearances and thefts in either category to be reported to the relevant authorities (the national contact points) in EU Member States within 24 hours.

Member States:

• may issue licences for certain restricted explosives precursors to members of the general public who have a legitimate interest in obtaining restricted explosives precursors;
• should establish one or more national contact points operating 24/7 to receive reports of suspicious transactions, significant disappearances and thefts;
• provide adequate resources for training law enforcement, customs authorities and emergency services (‘first responders’) to recognise regulated explosives precursors and react to any suspicious activity;
• ensure authorities are in place to inspect and control application of the legislation;
• introduce effective, proportionate and dissuasive penalties for any violations of the regulation;
• may restrict or prohibit the making available, introduction, possession and use of a substance they consider could be used to make homemade explosives, even if it does not feature in the legislation (in which case the European Commission examines the provisional measure, and may require the country to revoke or change the provisional measure);
• provide the Commission by 2 February 2022, and subsequently, annually, information on:
  • reported suspicious transactions, significant disappearances and thefts;
  • licence applications received, issued and the most common reasons for their refusal;
  • awareness-raising activities;
  • inspections carried out and economic operators covered.

National authorities, when considering whether to issue a licence:

• should take account of the:
  • need for the explosive and legitimacy of its intended use;
  • availability of alternatives with lower concentrations;
  • applicant’s background, including information on any previous criminal convictions;
  • security of the storage arrangements to be used;
• refuse to issue a licence if they have reasonable grounds to doubt the legitimacy of the intended use;
• may limit the validity of a licence below the maximum 3 years, and suspend or revoke it if the original conditions are no longer respected;
• may charge applicants a processing fee.

Economic operators⁵ must:

• inform an economic operator to whom they provide regulated explosives precursors that the explosives precursor is subject to a restriction or to reporting obligations;
• when providing regulated explosives precursors to professional users or members of the general public, ensure that its personnel are aware of which products contain regulated explosives precursors, and are instructed on the obligations of the regulation;
• check, each time they supply restricted explosives precursors to a member of the public, proof of the individual’s identity and licence;
• check, each time they supply restricted explosives precursors to a professional user or another economic operator, information on the prospective customer and the intended use of the precursors (Annex IV provides a template for the customer statement);
• keep information on purchases for 18 months;
• may refuse to make precursors available if they believe the transaction is suspicious;
• report significant disappearances and thefts within 24 hours to the national contact point.

Economic operators and online marketplaces:

• report suspicious transactions, especially if the prospective purchaser of regulated explosives precursors:
  • appears unclear or unfamiliar about their intended use;
  • wishes to buy them in quantities, combinations or concentrations unlikely for normal use;
  • is unwilling to provide proof of identity, place of residence or, where appropriate, status as professional user or economic operator;
  • insists on using unusual forms of payment, including large cash sums;
• have in place appropriate, reasonable and proportionate procedures to detect suspicious transactions;
• may refuse suspicious transactions and must report these within 24 hours to the national contact point.

The European Commission:

• provides regular guidelines in all official EU languages to assist all actors concerned, and to facilitate cooperation between economic operators;
• may adopt delegated acts to modify the limit values in Annex I, and to add substances to Annex II of the legislation;
• reports, by 2 February 2026, to the European Parliament, the Council and the European Economic and Social Committee on the application of the regulation, through an evaluation.

The legislation does not apply to certain types of pyrotechnic⁶ articles and equipment — notably those used by the armed forces, law enforcement services, fire services, in farming, placed on board ships or in the aerospace industry — percussion caps for toys or medicinal products on the basis of a medical prescription.

The regulation amends Regulation (EC) No 1907/2006 on Registration, Evaluation, Authorisation and Restriction of Chemicals and also repeals Regulation (EU) No 98/2013 (see summary) from 1 February 2021, although:

• licences issued under Regulation (EU) No 98/2013 are valid until they expire or until 2 February 2022, whichever is the sooner;
• members of the general public with restricted explosives precursors legally acquired before 1 February 2021 are allowed to possess, introduce or use them until 2 February 2022.