Explanatory Memorandum to COM(2010)473 - Marketing and use of explosives precursors - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)473 - Marketing and use of explosives precursors. |
|---|---|
| source | COM(2010)473  |
| date | 20-09-2010 |
Grounds for and objectives of the proposal The proposed regulation addresses the problem of the misuse of certain chemicals, which are widely available to the general public on the market, as precursors to home-made explosives. Home-made explosives, in turn, are the tool most preferred by terrorists and other criminals to perpetrate attacks. The main aim of the measures proposed is to reduce this risk by preventing access to selected highly concentrated chemicals by the members of the general public.
General context Home-made explosives, fabricated from certain easily accessible chemical precursors, are a preferred tool for perpetrators of terrorist attacks, from which the EU, as documented in the Europol TE-SAT reports, is not spared. Currently, the general public has relatively easy access to these chemicals even when in concentrations sufficient to produce a powerful explosive device. The scale of the problem is amplified by the fact that the chemical market in the EU is large and diversified, with multiple end-users. The supply chain for precursors, and in particular the last segment (sales to end users), is in general insufficiently aware of the risks posed by individuals involved in serious criminal activities and terrorism attempting to obtain precursors. Some supply chain actors, in particular at the end of the chain, have sold precursors to terrorists or other criminals in quantities that should have raised suspicion. While several legislative and non-legislative measures exist at international, EU and national level, these are either not specifically focused on the security risks associated with certain chemicals or do not cover the entire EU. This implies that precursors that may be restricted or controlled in one country can be easily obtained in another. This causes not only a security problem but also a problem for the smooth functioning of the internal market.
Existing provisions in the area of the proposal Regulation (EC) No 1907/2006 i (REACH) — this covers chemicals from the safety perspective but — with one exception — does not address the concerns of security related to chemical precursors to explosives. Annex XVII of REACH i includes a ban on the sale to the general public of ammonium nitrate (one of the precursors of concern) containing 16 % or more nitrogen. However, this instrument does not provide for licensing schemes or reporting of suspicious transactions, and only concerns one of the precursors identified as high-risk in the Action Plan on Enhancing the Security of Explosives. Council Directive 91/414/EEC i — this phases out the sale of weed-killers containing chlorates, but addresses only one particular use of these chemicals, and only one group of chemical precursors to explosives of concern.
Consistency with the other policies and objectives of the Union The proposal is in line with the policy objectives set out in the European Union Counter-terrorism Strategy i, the Action Plan on Enhancing the Security of Explosives i and the Stockholm Programme — An open and secure Europe serving and protecting the citizens.[6]
Consultation of interested parties
Consultation methods, main sectors targeted and general profile of respondents The proposed policy builds on the work and recommendations of the Standing Committee on Precursors (SCP). This Committee is an ad hoc advisory Committee composed of experts from the EU Member State authorities and representatives of the private sector, and is chaired by the Commission. It so far has met ten times in order to advise the Commission on the substances covered by this Regulation and other measures aimed at explosives precursors. On 13 February 2009, the SCP adopted its annual report for 2008 which contained concrete recommendations for enhancing the security of precursors. These recommendations served as the basis for an impact assessment study. The SCP was closely involved in the development of this study — its members (from both the public and private sector) were consulted on a regular basis. In addition, an online business survey and two stakeholder workshops were organised to validate the assessment of the policy options proposed in the draft study. The consultations in the course of the development of the preparatory study also included consultation of some SMEs that would be most affected by possible measures on precursors, in particular hexamine producers.
Summary of responses and how they have been taken into account This consultation process with external and internal stakeholders resulted in a high level of consensus on the preferred policy option and a practical and realistic balance between security concerns on the one hand, and industry, retail and consumer welfare concerns on the other. Concerns on the part of industry and the SMEs most affected (in particular producers of hexamine fuel tablets) have been accommodated in the final text of the proposal.
Scientific/expertise domains concerned The proposal is based to a large extent on security research and tests conducted by several EU Member States. Expertise on the market for chemicals and the use of chemical products was provided by industry representatives.
Methodology used The results of the security research and tests were reflected in the development of recommendations to the European Commission by the Standing Committee on Precursors, and were included in the assessment of impacts and evaluation of individual policy options in the course of the impact assessment study carried out by an external contractor.
Main organisations/experts consulted CEFIC, FECC, experts from the relevant authorities of the Member States, as well as consultancy firms — GHK, Rand Europe, Comstratos.
While the risk of the potential misuse of certain chemical precursors to produce home-made explosives cannot be completely excluded, it can be considerably reduced by limiting the availability of such chemicals above certain concentration thresholds to the general public. The thresholds proposed are based on the security research and test results and on an analysis of the use of the chemical substances in question by the general public.
Means used to make the expert advice publicly available The ‘Preparatory Study to Inform an Impact Assessment of Potential Legislative and Non-Legislative Restrictions on Chemical Precursors to Explosives’ has been shared with the members of the Standing Committee on Precursors (and via them with the Member State authorities and industrial stakeholders), and can be obtained from the Commission upon request.
Impact assessment The options considered included voluntary measures by the private sector (industry and retail), regulatory action carried out by the Member States individually, legislative measures at the European Union level, and a combination of these. Voluntary measures by industry and the retail sector would entail reporting of suspicious transactions, awareness raising campaigns among employees about the security risks related to the chemicals of concern, and enhancing the security of the entire supply chain for these chemicals. Efforts undertaken by the European Commission with several European-level associations in 2008 have shown that, while desirable, such measures cannot in themselves achieve the desired goal of enhanced security because uniform enforcement and outreach to all relevant stakeholders EU-wide cannot be ensured. Some Member States have already adopted either voluntary or legislative measures to reduce the availability of the chemical precursors to explosives, or a combination of both. Some Member States are considering such measures but are waiting for the EU to provide leadership. This diversity shows that a harmonised EU-level approach is desirable in order to prevent different levels of regulation resulting in security gaps an internal market with free movement of goods and persons. Several policy options for legislative action at EU level have undergone a thorough impact assessment and consultation process. While having no known negative impacts on the environment, the preferred policy option has positive impacts in terms of security, but also some negative economic impacts in particular on the retail sector and on public authorities of the Member States in terms of costs of implementation. However, these economic impacts and negative impacts on consumers are relatively minor as non-professional consumption of the precursors only accounts for about 1.5% of total EU consumption of the chemicals concerned, and substitutes are in most cases available. The purchase of chemicals above the concentration thresholds will still be possible, albeit upon presentation of a licence. Industry and retail organisations selling to the general public will thus be most affected by compliance costs, as well as government authorities responsible for the licensing scheme.
The Commission carried out an impact assessment listed in the Work Programme. The impact assessment report is accessible at ec.europa.eu/governance/impact/ia_carried_out
Contents
Summary of the proposed action The key aim of the proposed action is to reduce access by the general public to high-risk chemicals in concentration levels that make these chemicals suitable for easy misuse to produce home-made explosives. This will be done by prohibiting the sales of certain chemicals above concentration thresholds to members of the general public. Sales of higher concentrations would only be allowed to users who can document a legitimate need to use the chemical — these users can obtain a licence to purchase the chemical. The sales of these chemicals and their mixtures as well as the sales of products containing chemicals of concern for which concentration thresholds cannot be set will also be subject to reporting of suspicious transactions. The proposed legislative action will be accompanied by voluntary measures by industry and the retail sector to enhance security and raise awareness in the entire supply chain.
Legal basis Article 114 of the Treaty on the Functioning of the European Union.
Subsidiarity principle The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the European Union.
The objectives of the proposal cannot be sufficiently achieved by the Member States for the following reason(s).
While several legislative and non-legislative measures exist at international, EU and national level, these either do not specifically focus on the security risks associated with certain chemicals or do not cover the entire EU. This implies that precursors that may be restricted or controlled in one country can be easily obtained in another. In addition to the consequences for security, such a situation may give rise to market distortions that prevent a level EU playing field in this area.
There have been indications that terrorist groups take the different approaches in different Member States into consideration. The clearest cases have concerned ETA, which has hidden large quantities of explosives precursors outside Spain, in particular in France and Portugal. At the same time, there is no clear evidence to date that terrorists have changed their purchasing behaviour on the basis of differences in regulation in the different Member States. The lack of such indications may also be because currently these chemicals are still easily available across most of the Member States
EU action will better achieve the objectives of the proposal for the following reason(s).
The current differences among the regimes applied to chemical precursors to explosives not only have a negative effect on security but also distort the functioning of the internal market. They negatively affect cross-border trade and other economic activities of producers and other supply chain stakeholders active in more than one country. Action at EU level would help eliminate these negative effects. Recent attacks and failed or prevented attacks have shown that terrorism is going beyond the Member States that have traditionally suffered from terrorist attacks (e.g. Spain, the UK, France) and is spreading to other EU countries. The nature of these incidents also shows that terrorists may prepare in one country for an attack in another. The EU can only be as secure as its weakest link. Consequently, activities at EU level and a co-ordinated EU approach are needed, and will benefit all relevant stakeholders. The Member States, by way of their representatives in the Standing Committee on Precursors (SCP), have indicated that they prefer an EU approach to this issue in order to create a level playing field. This approach is also supported by the EU associations representing the chemical industry, which have been extensively consulted in the course of the SCP's work and the work on the impact assessment. Some Member States have indicated that they have not yet taken action because they are waiting for an EU initiative.
These actions will result in a more harmonised security environment for chemicals used to produce home-made explosives.
The scope of the proposal is limited to a short list of chemical substances and their mixtures, and to the sales of these to the general public (i.e. not to professional users or in business-to-business operations). Moreover, for some of the substances, their availability to the general public is limited only if they are above certain concentration levels, and can still be obtained upon presentation of a licence from a public authority (documenting legitimate use). The substances and concentration thresholds are clearly set out in the Annex to the Regulation. The current situation shows that national regulation in this area is leading to diversity rather than convergence, which is detrimental to security. Such regulatory diversity enables the purchase of chemicals of concern in one Member State and its easy transport and potential misuse for the production of home-made explosives in another Member State.
The proposal therefore complies with the subsidiarity principle.
Proportionality principle The proposal complies with the proportionality principle for the following reason(s).
The proposed legislative instrument has a clearly delimited scope. It leaves wide scope for the Member States to develop a consumer licensing scheme in line with their existing structures and to introduce appropriate penalties. All economic operators would be subject to the same rules. The instrument can be flexibly adjusted to the evolution of the threat and knowledge about the chemical substances (in terms of e.g. research results) by adding or removing substances from the Annexes by means of a delegation procedure. The form of a Regulation was chosen in order to prevent the need for national transposition measures in 27 Member States with each potential modification of the Annexes.
The financial burden on the European Union and the national governments will be minimised by using existing structures to implement the Regulation. Moreover, the scope of the Regulation is limited to certain chemical precursors posing the greatest concern, for most of which alternatives exist which can satisfy consumer needs. This is likely to keep the number of licence requests at a low level. In order to achieve a practical balance between security concerns and the capacities of industry, the retail sector and law enforcement for reporting suspicious transactions, guidance will be developed with the involvement of all these stakeholders. Negative economic effects on industry and the retail sector will be minimised given the overall low consumption of the chemicals of concern above the stated concentration thresholds (1.5 % of total EU consumption of the chemicals concerned), the possibility to purchase these chemicals upon presentation of a licence, and the likely increase in the use of substitute chemicals by the general public. In order to prevent an excessive initial burden on public authorities and the supply chain for the chemicals of concern, the Regulation will have a transitional phase for implementation. This is also necessary in order to allow businesses and consumers to continue using their old supplies of the chemicals in question in order to minimise their economic loss, but also to allow national authorities to put in place the licensing scheme forming part of the preferred policy option. Impact on fundamental rights This proposal was subject to an in-depth scrutiny to ensure that its provisions are fully compatible with fundamental rights and principles enshrined in particular in the Charter of Fundamental Rights of the European Union, and notably the protection of personal data, the freedom to conduct a business, the right to property and the principle of non-discrimination. Reporting suspicious transactions and the licensing scheme foreseen in the Regulation require processing of personal data. This implies a serious interference with private life and the right to the protection of personal data. In order to be lawful this interference has to comply with the criteria required by EU law: this entails that it must be in accordance with the law, must seek to attain a legitimate public interest necessary in a democratic society; the interference must furthermore be necessary to attain this objective and proportionate to the objective pursued, i.e. the objective cannot be attained by less restrictive measures. The proposal explicitly requires that the processing of personal data under this Regulation must always be carried out in accordance with EU data protection laws, namely Directive 95/46/EC i and national data protection laws implementing this Directive. As far as the right to conduct a business and the right to property are concerned, the proposal constitutes a proportionate answer to the objectives it seeks to attain, in particular in light of other policy options scrutinised in the Impact Assessment, such as, for instance, a total ban on sales of the substances to members of the general public irrespective of concentration levels. Other, potentially less intrusive policy options were considered to be less effective. The Regulation defines the scope of application of the licensing schemes by listing the chemicals of concern in Annex I and by stating clearly the concentrations above which a license would be required for the purchase of the respective chemical. Reporting of suspicious transactions applies only to the chemicals listed in the Annexes and will be based on a risk assessment carried out by the economic operators. The proposal foresees the elaboration of concrete and clear guidelines to assist economic operators in assessing the suspicious nature of a transaction. These guidelines will ensure that a too broad interpretation of the concept is avoided so as to minimize the transmissions of personal data to law enforcement authorities and to prevent any potential arbitrary or discriminatory practices. At the same time, the licensing scheme and the obligation to report suspicious transactions will allow economic operators to continue trading all precursors, thereby limiting the impact on the freedom to conduct a business. The right to property will not be affected as businesses and members of the general public will continue to be able to use their lawfully acquired possessions. Finally, reasonably long transitional periods are foreseen so as to allow members of the general public and economic operators to adapt to the new requirements, thereby further limiting the impact on the right to property and the freedom to conduct a business.
Proposed instruments: Regulation.
Other means would not be adequate for the following reason(s). Article 114 of the Treaty on the Functioning of the European Union, which is the most appropriate legal basis given the scope of the action, gives a choice between a Regulation and a Directive. In order to achieve maximum harmonisation for the chemicals covered by the legal instrument, and also, where applicable, concentrations of these chemicals, a Regulation is more appropriate. A harmonised approach is desirable not only from the security perspective but also from the perspective of unified rules for economic operators. Moreover, the form of a Regulation will prevent the need for national transposition measures every time changes are made to the list of chemical substances in the Annexes (in line with the development of the threat).
The proposal has no implications for the European Union budget.
Simulation, pilot phase and transitional period
There will be a transitional period for the proposed act.
The proposal includes a review clause.
European Economic Area The proposed act concerns an EEA matter and should therefore extend to the European Economic Area.