New EU rules on the marketing and use of explosive precursors

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On 1 February 2021, new EU rules on restricting access to explosive precursors entered into application across the Union. The Regulation aims to introduce stronger safeguards and controls on the marketing and sale of dangerous chemicals, which have been used to make homemade explosives in several terrorist attacks in Europe in the last years.

With the introduction of the new rules, economic operators, as well as online marketplaces, have to report suspicious transactions. In addition, economic operators have to verify their customers’ identity and their need for buying a restricted substance. Furthermore, they should only make restricted explosives precursors available to a member of the general public in Member States that maintain a licensing regime in accordance with the Regulation, and only after verifying that that member of the general public holds a valid licence. Member States have to carry out a security screening, including a criminal background check.

Specifically on online marketplaces, the Regulation states that although online marketplaces have to report suspicious transactions, the rules recognize that “online marketplaces act as mere intermediaries between economic operators on the one side, and members of the general public, professional users or other economic operators, on the other side.” Therefore, online marketplaces do not fall within the definition of economic operator, and do not have to comply with the same extensive safety procedures requiring economic operators to train the personnel involved in the sale of restricted explosives precursors or to verify the identity and licence of the prospective customer. However, they remain subject to the same detection and reporting obligations as economic operators. The obligations under this Regulation do not lead to a general monitoring obligation, nor can online marketplaces be held liable for transactions that were not detected despite having the appropriate procedures in place to detect such suspicious transactions.

To assist Member States and economic operators to implement the new rules, in June 2020, the Commission presented Guidelines together with a  monitoring programme  intended to track the outputs, results and impact of the new Regulation. The Regulation strengthens and updates the  existing rules  on explosive precursors, and contributes to denying terrorists the means to act and protecting the security of Europeans, in line with the priorities set out in the Counter-Terrorism Agenda  presented in December 2020. 

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