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 (Text with EEA relevance)

Article 1

Subject matter

This Regulation establishes harmonised rules concerning the making available, introduction, possession and use of substances or mixtures that could be misused for the illicit manufacture of explosives, with a view to limiting the availability of those substances or mixtures to members of the general public, and with a view to ensuring the appropriate reporting of suspicious transactions throughout the supply chain.

This Regulation is without prejudice to other more stringent provisions of Union law concerning the substances listed in Annexes I and II.

Article 2

Scope

This Regulation does not apply to:

(a) articles as defined in point (3) of Article 3 of Regulation (EC) No 1907/2006;

(b) pyrotechnic articles as defined in point (1) of Article 3 of Directive 2013/29/EU of the European Parliament and of the Council (¹);

(c) pyrotechnic articles intended for non-commercial use in accordance with national law by the armed forces, law enforcement authorities or fire services;

(d) pyrotechnic equipment falling within the scope of Directive 2014/90/EU of the European Parliament and of the Council (²);

(e) pyrotechnic articles intended for use in the aerospace industry;

(f) percussion caps intended for toys;

(g) medicinal products that have been legitimately made available to a member of the general public on the basis of a medical prescription in accordance with the applicable national law.

Article 3

Definitions

For the purposes of this Regulation, the following definitions apply:

(1) ‘substance’ means a substance as defined in point (1) of Article 3 of Regulation (EC) No 1907/2006;

(2) ‘mixture’ means a mixture as defined in point (2) of Article 3 of Regulation (EC) No 1907/2006;

(3) ‘article’ means an article as defined in point (3) of Article 3 of Regulation (EC) No 1907/2006;

(4) ‘making available’ means any supply, whether in return for payment or free of charge;

(5) ‘introduction’ means the act of bringing a substance into the territory of a Member State, irrespective of its destination within the Union, whether from another Member State or from a third country, under any customs procedure, as defined in Regulation (EU) No 952/2013 of the European Parliament and of the Council (³) including transit;

(6) ‘use’ means use as defined in point (24) of Article 3 of Regulation (EC) No 1907/2006;

(7) ‘suspicious transaction’ means any transaction concerning regulated explosives precursors for which there are reasonable grounds, after taking account of all relevant factors, for suspecting that the substance or mixture concerned is intended for the illicit manufacture of explosives;

(8) ‘member of the general public’ means any natural or legal person who is acting for purposes not connected with that person’s trade, business, or profession;

(9) ‘professional user’ means any natural or legal person or public entity or group of such persons or entities that has a demonstrable need for a restricted explosives precursor for purposes connected with its trade, business, or profession, including agricultural activity, conducted either on a full-time or part-time basis and not necessarily related to the size of the area of land on which that agricultural activity is conducted, provided that such purposes do not include making that restricted explosives precursor available to another person;

(10) ‘economic operator’ means any natural or legal person or public entity or group of such persons or entities which make regulated explosives precursors available on the market, either offline or online, including on online marketplaces;

(11) ‘online marketplace’ means a provider of an intermediary service that allows economic operators on the one side, and members of the general public, professional users, or other economic operators, on the other side, to conclude transactions regarding regulated explosives precursors via online sales or service contracts, either on the online marketplace’s website or on an economic operator’s website that uses computing services provided by the online marketplace;

(12) ‘restricted explosives precursor’ means a substance listed in Annex I that is at a concentration higher than the corresponding limit value set out in column 2 of the table in Annex I, including a mixture or another substance in which a substance listed in that Annex is present at a concentration higher than the corresponding limit value;

(13) ‘regulated explosives precursor’ means a substance listed in Annex I or II including a mixture or another substance in which a substance listed in those Annexes is present, excluding homogeneous mixtures of more than 5 ingredients in which the concentration of each substance listed in Annex I or II is below 1 % w/w;

(14) ‘agricultural activity’ means the production, rearing or growing of agricultural products including harvesting, milking, breeding animals and keeping animals for farming purposes, or maintaining the agricultural area in good agricultural and environmental condition as established under Article 94 of Regulation (EU) No 1306/2013 of the European Parliament and of the Council (⁴).

Article 4

Free movement

Unless otherwise provided for in this Regulation or in other legal acts of the Union, Member States shall not prohibit, restrict or impede the making available of a regulated explosives precursor on grounds related to the prevention of the illicit manufacture of explosives.

Article 5

Making available, introduction, possession and use

Under such licensing regimes, a member of the general public shall obtain, and, if requested, present a licence for acquiring, introducing, possessing or using restricted explosives precursors. Such licences shall be issued in accordance with Article 6 by a competent authority of the Member State where that restricted explosives precursor is intended to be acquired, introduced, possessed or used.

Article 6

Licences

Each Member State which issues licences to members of the general public who have a legitimate interest in acquiring, introducing, possessing or using restricted explosives precursors shall lay down rules for issuing licences in accordance with Article 5(3). When considering whether to issue a licence, the competent authority of the Member State shall take into account all relevant circumstances, in particular:

(a) the demonstrable need for the restricted explosives precursor and the legitimacy of its intended use;

(b) the availability of the restricted explosives precursor at lower concentrations or alternative substances with a similar effect;

(c) the background of the applicant, including information on previous criminal convictions of the applicant anywhere within the Union;

(d) the storage arrangements that have been proposed to ensure that the restricted explosives precursor is securely stored.

Article 7

Informing the supply chain

An economic operator who makes available a regulated explosives precursor to another economic operator shall inform that economic operator that the acquisition, introduction, possession or use of that regulated explosives precursor by members of the general public is subject to reporting obligations as set out in Article 9.

An economic operator who makes available regulated explosives precursors to a professional user or to a member of the general public shall ensure and be able to demonstrate to the national inspection authorities referred to in Article 11 that its personnel involved in the sale of regulated explosives precursors are:

(a) aware which of the products it makes available contain regulated explosives precursors;

(b) instructed regarding the obligations pursuant to Articles 5 to 9.

Article 8

Verification upon sale

For the purpose of verifying that a prospective customer is a professional user or another economic operator, the economic operator who makes available a restricted explosives precursor to a professional user or another economic operator shall for each transaction request the following information, unless such a verification for that prospective customer has already occurred within a period of one year prior to the date of that transaction and the transaction does not significantly deviate from previous transactions:

(a) proof of identity of the individual entitled to represent the prospective customer;

(b) the trade, business, or profession together with the company name, address and the value added tax identification number or any other relevant company registration number, if any, of the prospective customer;

(c) the intended use of the restricted explosives precursors by the prospective customer.

Member States may use the template of the customer’s statement set out in Annex IV.

Article 9

Reporting of suspicious transactions, disappearances and thefts

For the purpose of preventing and detecting the illicit manufacture of explosives, economic operators and online marketplaces shall report suspicious transactions. Economic operators and online marketplaces shall do so after having regard to all the circumstances and, in particular, where the prospective customer acts in one or more of the following ways:

(a) appears unclear about the intended use of the regulated explosives precursors;

(b) appears unfamiliar with the intended use of the regulated explosives precursors or cannot plausibly explain it;

(c) intends to buy regulated explosives precursors in quantities, combinations or concentrations uncommon for legitimate use;

(d) is unwilling to provide proof of identity, place of residence or, where appropriate, status as professional user or economic operator;

(e) insists on using unusual methods of payment, including large amounts of cash.

Article 10

Training and awareness-raising

Article 11

National inspection authorities

Article 12

Guidelines

The Commission shall provide regularly updated guidelines to assist actors in the chemical supply chain and the competent authorities, and to facilitate cooperation between the competent authorities and economic operators. The Commission shall consult the Standing Committee on Explosives Precursors on any draft guidelines or updates thereof. The guidelines shall, in particular, provide:

(a) information on how to conduct inspections;

(b) information on how to apply the restrictions and controls under this Regulation to regulated explosives precursors ordered at a distance by members of the general public or professional users;

(c) information on possible measures to be adopted by online marketplaces to ensure compliance with this Regulation;

(d) information on how to exchange relevant information between the competent authorities and the national contact points and between Member States;

(e) information on how to recognise and report suspicious transactions;

(f) information on storage arrangements which ensure that a regulated explosives precursor is securely stored;

(g) other information, which may be deemed useful.

Article 13

Penalties

Member States shall lay down the rules on penalties applicable to infringements of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.

Article 14

Safeguard clause

Article 15

Amendments to the Annexes

The Commission shall adopt delegated acts in accordance with Article 16 amending this Regulation by:

(a) modifying the limit values in Annex I to the extent necessary to accommodate developments in the misuse of substances as explosives precursors, or on the basis of research and testing;

(b) adding substances to Annex II, where necessary to accommodate developments in the misuse of substances as explosives precursors.

The Commission shall, as part of its preparation of those delegated acts, consult relevant stakeholders, in particular those in the chemical industry and the retail sector.

Where there is a sudden change in the risk assessment as far as the misuse of substances for the illicit manufacture of explosives is concerned and imperative grounds of urgency so require, the procedure provided for in Article 17 shall apply to delegated acts adopted pursuant to this Article.

Article 16

Exercise of the delegation

Article 17

Urgency procedure

Article 18

Amendment of Regulation (EC) No 1907/2006

In Annex XVII to Regulation (EC) No 1907/2006, entry 58. (Ammonium nitrate (AN)), column 2, paragraphs 2 and 3 are deleted.

Article 19

Reporting

Member States shall provide to the Commission, by 2 February 2022 and subsequently on an annual basis, information on:

(a) the numbers of reported suspicious transactions, significant disappearances and thefts respectively;

(b) the number of licence applications received under any licensing regime that they have maintained or established pursuant to Article 5(3), as well as the number of licences issued, and the most common reasons for refusing to issue licences;

(c) awareness-raising actions as referred to in Article 10(2);

(d) inspections carried out as referred to in Article 11, including the number of inspections and economic operators covered.

Article 20

Monitoring programme

Article 21

Evaluation

Article 22

Repeal

Article 23

Entry into force and application

This Regulation shall be binding in its entirety and directly applicable in all Member States.

ANNEX I

RESTRICTED EXPLOSIVES PRECURSORS

List of substances which are not to be made available to, or introduced, possessed or used by, members of the general public, whether on their own or in mixtures or substances that include those substances, unless the concentration is equal to or lower than the limit values set out in column 2, and for which suspicious transactions and significant disappearances and thefts are to be reported within 24 hours:

1. Name of the substance and Chemical Abstracts Service Registry number (CAS RN)	2. Limit value	3. Upper limit value for the purpose of licensing under Article 5(3)	4. Combined Nomenclature (CN) code for a separate chemically defined compound meeting the requirements of Note 1 to Chapter 28 or 29 of the CN, respectively (1)	5. Combined Nomenclature (CN) code for a mixture without constituents (e.g. mercury, precious or rare-earth metals or radioactive substances) which would determine classification under another CN code (1)
Nitric acid (CAS RN 7697-37-2)	3 % w/w	10 % w/w	ex 2808 00 00	ex 3824 99 96
Hydrogen peroxide (CAS RN 7722-84-1)	12 % w/w	35 % w/w	2847 00 00	ex 3824 99 96
Sulphuric acid (CAS RN 7664-93-9)	15 % w/w	40 % w/w	ex 2807 00 00	ex 3824 99 96
Nitromethane (CAS RN 75-52-5)	16 % w/w	100 % w/w	ex 2904 20 00	ex 3824 99 92
Ammonium nitrate (CAS RN 6484-52-2)	16 % w/w of nitrogen in relation to ammonium nitrate (4)	No licensing permitted	3102 30 10 (in aqueous solution) 3102 30 90 (other)	ex 3824 99 96
Potassium chlorate (CAS RN 3811-04-9)	40 % w/w	No licensing permitted	ex 2829 19 00	ex 3824 99 96
Potassium perchlorate (CAS RN 7778-74-7)	40 % w/w	No licensing permitted	ex 2829 90 10	ex 3824 99 96
Sodium chlorate (CAS RN 7775-09-9)	40 % w/w	No licensing permitted	2829 11 00	ex 3824 99 96
Sodium perchlorate (CAS RN 7601-89-0)	40 % w/w	No licensing permitted	ex 2829 90 10	ex 3824 99 96
(1) Commission Implementing Regulation (EU) 2017/1925 (2). Subsequent amendments of Annex I to Council Regulation (EEC) No 2658/87 (3) should be consulted as regards updated CN codes. (2) Commission Implementing Regulation (EU) 2017/1925 of 12 October 2017 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ L 282, 31.10.2017, p. 1). (3) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ L 256, 7.9.1987, p. 1). (4) 16 % w/w of nitrogen in relation to ammonium nitrate corresponds to 45,7 % ammonium nitrate, discarding impurities.

ANNEX II

REPORTABLE EXPLOSIVES PRECURSORS

List of substances on their own or in mixtures or in substances for which suspicious transactions and significant disappearances and thefts are to be reported within 24 hours:

1. Name of the substance and Chemical Abstracts Service Registry number (CAS RN)	2. Combined Nomenclature (CN) code (1)	3. Combined Nomenclature (CN) code for mixtures without constituents (e.g. mercury, precious or rare-earth metals or radioactive substances) which would determine classification under another CN code (1)
Hexamine (CAS RN 100-97-0)	ex 2933 69 40	ex 3824 99 93
Acetone (CAS RN 67-64-1)	2914 11 00	ex 3824 99 92
Potassium nitrate (CAS RN 7757-79-1)	2834 21 00	ex 3824 99 96
Sodium nitrate (CAS RN 7631-99-4)	3102 50 00	ex 3824 99 96
Calcium nitrate (CAS RN 10124-37-5)	ex 2834 29 80	ex 3824 99 96
Calcium ammonium nitrate (CAS RN 15245-12-2)	ex 3102 60 00	ex 3824 99 96
Magnesium, powders (CAS RN 7439-95-4) (2) (3)	ex 8104 30 00
Magnesium nitrate hexahydrate (CAS RN 13446-18-9)	ex 2834 29 80	ex 3824 99 96
Aluminium, powders (CAS RN 7429-90-5) (2) (3)	7603 10 00 ex 7603 20 00
(1) Implementing Regulation (EU) 2017/1925. Subsequent amendments of Annex I to Regulation (EEC) No 2658/87 should be consulted as regards updated CN codes. (2) With a particle size less than 200 μm. (3) As a substance or in mixtures containing 70 % w/w or more of aluminium or magnesium.

ANNEX III

FORMAT FOR A LICENCE