Subject: Meeting of the Explosives Working Group, 25 October 2012

EUROPEAN COMMISSION ENTERPRISE AND INDUSTRY DIRECTORATE-GENERAL

Resources Based, Manufacturing and Consumer Goods Industries Chemicals Industry

Brussels, 21 November 2012

Draft Minutes

All Member States except Bulgaria, Cyprus, Hungary, Latvia, Luxembourg, Malta and Slovenia attended the meeting. Observers from Switzerland, Norway, and the federations representing the European explosives industry (FEEM), explosives engineers (EFEE), mining industries (Euromines), automotive supplier industry (CLEPA), aggregates industry (UEPG) and shippers (ESC) were also present.

1. Approval of the draft agenda The draft agenda was adopted subject to the addition of the following items under Any Other Business: Draft Q and A on pyrotechnic single ignition units (moved from agenda point 8: Technical issues); FEEM question about naming manufacturing sites on conformity certificates; a paper from the Netherlands on the intra-EU transfer of explosives document; and a paper from the UK on marking of explosives under Directives 2008/43/EC and 2012/4/EU.

2. Approval of the report of the last meeting (Explo Doc 2.1)

The report of the last meeting was adopted subject to mentioning the French Association of Pyrotechnics, Fireworks and Explosive Devices Manufacturers as one of the participants.

3. Update on the implementation of the Action Plan on Enhancing the Security of Explosives

The Commission (DG HOME) gave an overview of progress in the implementation of the action plan, highlighting the key actions as regards prevention, preparedness and detection. The Commission would be producing a progress report by the end of 2012, which would contribute towards a review of the plan. In parallel a review of the CBRN action plan was ongoing with a view to developing a more coherent and streamlined approach with greater synergies between CBRN and explosives security policies at EU level in a future combined CBRNE strategy. This had been discussed at a strategic EU level conference on 2-3 October in Malmo, the outcome of which would inform Council conclusions on a new CBRNE agenda later this year, leading to a Commission communication around mid 2013.

4. Update on SCEPYLT, the Pan-European Information System on Explosives Control to Prevent and Fight against Terrorism, and its future

Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11. Office: BREY 11/248. Telephone: direct line (32-2) 296.55.47. Fax: (32-2) 295.02.81.

E-mail: [email protected] The SCEPYLT coordinator presented the current status of implementation of the system, which had been operational since October 2011. Since then various functional, technical and documentary improvements had been introduced. Currently 11 Member States were connected to the system. However it was being used by only 3 Member States. In August a questionnaire was sent to all project participants regarding the current state of implementation and possible problems, but only nine Member States responded, some indicating that they hoped to be ready to use the system, some others indicating that although they were ready they would not do so until their neighbours did. This made it very difficult to provide an evaluation and decide how best to take forward the project, the grant for which would expire at the end of 2012. Spain was unable to use the system since its neighbours were not doing so. Unless the system were more widely used, it would be difficult for Spain to continue to coordinate the project. The ten other Member States that were connected to the latest version should use it so that any outstanding technical problems could be resolved. However, in the meantime the future funding and leadership of the project remained uncertain. Only 6 participating Member States had expressed views, with only three agreeing that a fresh grant application for the period 2013/14 should be made and none being interested in taking over coordination of the project. Spain also mentioned that it would like to see SCEPYLT linked with the unique identification and traceability required by Directive 2008/43/EC.

The chair explained that the Commission had intended that the system eventually be made mandatory, but before that the system needed to be seen to be operating well and being more widely used than currently. The Commission had invested over 2 million euros in the project and there was a danger that all this would be wasted if the project could not be taken further forward after the end of this year. There seemed to be three possible options: (1) a further grant if a Member State was willing to assume responsibility for future project coordination; (2) a contract between the system provider and individual user Member States covering software maintenance and a help-desk function; (3) in the longer term, the Commission taking over responsibility for the system. DG HOME confirmed that a general call for tender would be issued towards the end of this year and that any application for a further grant would be considered favourably. Alternatively, an extension of the time-limit for the current grant to use up unspent funds could also be considered.

Belgium stated that it was using the system for transfers with the Netherlands and Germany. The system worked well, reducing the burdens for operators and authorities, speeding up the approval process and enhancing security. Maintaining a system of electronic and paper approvals was not onerous. The Netherlands confirmed that the system functioned well and encouraged others to use it.

Germany explained that it was not using the system regularly due to some problems (for example, the transfer document can only be printed by the competent authority of the country of origin). Member States had invested staff and other resources into the project and the results would need to be carefully assessed before deciding whether it was worth pursuing further. It did not support extending the system to include traceability.

France expected to start using the system by the end of 2012 and was arranging staff training with support from Belgium. Italy indicated that it had tested the system and that training of staff at prefecture level was ongoing. It remained committed to the project, but considered that in any further development the system should be linked to traceability.

2 Portugal said that it aimed to use the system soon once the latest version had been installed. It would favour making a link with traceability. Sweden asked about the costs of joining the project and the Spanish coordinator advised that currently this was 13.800 euros per participating Member State. Finland stated that it had yet to decide whether it would join the project. It had only a very limited number of transfers and the existing paper system works well.

Poland indicated that it was ready to use the system, but would not do so until its neighbours did. It doubted whether an electronic system would be much quicker than a paper system and considered that a dual system of paper and electronic systems would be unduly burdensome. To be effective, the system should be made mandatory for all Member States. A time-limit should be set for Member States to join the project.

The UK said that it hoped to be able to use the system shortly and wondered whether the current coordination arrangements could continue temporarily say for six months pending decisions on the longer-term future of the system. It saw the main advantage of the system as improved security as it was easier to check the validity of electronic documents. The UK did not see using SCEPYLT as an instrument for traceability at this time.

Ireland suggested that an impact assessment should be undertaken to assess the benefits compared with the existing approval system, before SCEPLYT was extended to all Member States.

Euromines expressed doubts about the financial benefits of the system since in its view the existing paper system did not cause undue delays. It did not see a case for linking this with traceability.

The chair welcomed the fact that several additional Member States would soon start to use the system and encouraged more Member States to do so. The issue of providing for traceability information for those Member States that require such information could be considered at a later stage, once the system is fully up and running. However for the time being, the priority should be to ensure the continuity of the current project after the end of this year, for example through a limited extension of the current grant to utilise the unused funds and ensuring software maintenance, etc, pending decisions on the project's further development. The Commission would reflect further on how to take this forward.

5. Implementation of Commission Directive 2008/43/EC, as amended by Directive 2012/4/EU setting up, pursuant to Council Directive 93/15/EEC, a system for the identification and traceability of explosives for civil uses a. Status of preparations by industry, including guidance FEEM presented a revised version of its guidance on small articles in the light of adoption of Directive 2012/4/EU (Explo Doc 5.a.1). In response to a question from the UK, FEEM explained that it was not possible to print or read/scan a matrix/bar code on cylindrical surfaces like detonating cords. In answer to a question from Sweden, FEEM clarified that plain detonators would include blasting caps and elemented detonators. It was agreed that the guidance should be put on CIRCA and published on the Commission's website.

3 FEEM also presented its proposal to exempt certain explosive intermediates/sub-systems, such as blasting caps, elemented detonators, delay elements, relays and similar articles that are exchanged between explosives manufacturers for subsequent processing and are not intended for distribution on the market, subject to the manufacturer providing a logistic system to safeguard security during transport such as sealed containers (Explo Doc 5.a.2).

The Netherlands expressed serious doubts about exempting products that should otherwise be marked when sold individually to end users and expressed concerns about the security implications if unmarked products were to go missing during transport. Belgium and Ireland echoed similar concerns, underlining that that there could be many unmarked items in a single consignment. The UK had similar objections. More details of the transport security measures to ensure that there was no risk of significant quantities of detonators going missing would be essential before any exemption could be considered. The UK also pointed out that the proposed wording, in particular 'such as' was very wide and could result in items such as jet perforating guns being exempted.

UEPG presented its action plan for implementing the Directive's requirements, highlighting in particular the need to disseminate the necessary information to the whole supply chain, including in particular SMEs, to use the FEEM voluntary code and guidance on small articles, to develop operational procedures and apply appropriate IT solutions, training, etc, and calling for support from the competent authorities in the Member States. The chair announced that the action plan would be made available via CIRCA and invited Member States to provide any feedback to UEPG.

In response to questions from Greece and Sweden, UEPG and FEEM together with the chairman clarified that the precise form of the manufacturer's code under point 1(b) (iii) of the Annex to the Directive was a matter for the manufacturer. The guidance note on the FEEM European Explosives Code Structure was intended to facilitate a harmonised approach to coding. FEEM pointed out that some manufacturers were already marking in line with the Directive and underlined the practical difficulties during the transitional period of doing that and also meeting any existing national requirements.

The Commission then presented a working document (Explo Doc 5.a.3) on how the term 'end-user' should be understood for the purposes of the Directive, in response to UEPG's request for guidance on the issue. It was agreed that the approach set out in the document should be included in a Q and A to be published on the Commission's website.

EFEE asked whether transport companies were obliged to comply with the Directive's obligations in relation to data collection and record keeping in chapter 3 of the Directive. The Commission took the view that while the product identification obligations under chapter 2 apply only to certain undertakings in the explosive sector such as manufacturers and importers, the chapter 3 obligations apply more widely to all undertakings in the explosives sector, which, in accordance with the definition for these in Directive 93/15/EEC, include undertakings involved in the transfer of explosives such as transport companies. Belgium, Sweden and the UK, supported by Switzerland, did not share this interpretation, maintaining that it was the owner of the explosives (consignor/consignee as appropriate) who should be responsible and that it was unnecessary for the transport company to keep records as well.

In the light of the differing views, the chair concluded that this was a matter of implementation for the Member States.

4 b. Manufacturing site codes The Commission explained that a number of overseas manufacturers and the US mission to the EU had expressed concern that non-EU manufacturers would be placed at a competitive disadvantage, if, in accordance with a very strict interpretation of Article 3(5) of the Directive, they were obliged to obtain multiple codes for the same non-EU manufacturing site from different Member States acting as points of entry into the EU. The Commission presented a working document (Explo Doc 5.b) on the issue, proposing that where a non-EU manufacturer has established a legal entity in the EU (as was the case for all the overseas manufacturers that had made representations so far), the manufacturer could contact the national authority of the Member State in which he is established or of first import and obtain a single code for the manufacturing site to be used for all imports into the EU. To further reduce the administrative burdens, and also in cases where the overseas manufacturer is not established in the EU, the imports need not physically go through the location of the importer or of the EU entity of the manufacturer, but may go through several points of entry in line with centralised customs clearance procedures, whereby the import paperwork is submitted in one Member State, but the products can be shipped directly to another Member State or States (with the customs authorities there not requiring additional paperwork). The Commission underlined that this would work on the condition that the manufacturer established in the EU or importer assumed full responsibility for compliance with the Directive for all related imports, including in particular those relating to data collection and record- keeping. The Commission also proposed that information about all site codes issued could be compiled in an Excel table and put on CIRCA.

The UK and the Netherlands welcomed the proposed approach, which would avoid a plethora of codes for the same site, and the proposal to list codes attributed on CIRCA. In response to a suggestion from the UK that a single importer should be allowed to act as a kind of authorised representative to obtain a single code for all imports, the Commission explained that this was currently not possible and also unnecessary since a non-EU manufacturer could easily establish a presence in the EU to fulfil this kind of role. An importer would however be able to use centralised customs clearance procedures to cover imports to different entry points. France indicated that the authorities that issue codes had some concerns and were still reflecting on the proposed approach. It therefore needed more time to give its views.

The chair concluded that there was broad agreement on the proposed approach and that a draft Q and A should be circulated for agreement via written procedure. c. Status of preparations by public authorities, including transposition of Directive 2012/4/EU The Commission reported that to date only 14 Member States had communicated their national implementing measures to transpose the amending Directive; 4 Member States had provided partial communications and 9 Member States had yet to communicate their measures. The Commission strongly encouraged those Member States that had not yet transposed the Directive to do so urgently, otherwise formal infringement proceedings, which had so far been deferred, were likely to follow soon.

6. Report of the last meeting of the Forum of Explosives Notified Bodies

The chairman of the forum informed the meeting about the main outcomes of the forum meeting held in Buxton on 24 May 2012. In particular, he referred to this year's round robin tests on detonators organised by the Czech Republic's notified body and the

5 planned round robin testing for 2013 and 2014 (to be hosted by the German and Belgian notified bodies respectively), work on developing a glossary, and discussion relating to the status of rock crackers as pyrotechnic articles and the implications for articles already approved as explosives. He also mentioned the forum's discussion about the possible role for notified bodies in providing data to EDEX (European database on explosives), on which it was concluded that notified bodies were not in a position to input data but could make available their lists of approved explosives (a harmonised format for which was under development). DG JRC, responsible for the development of EDEX, explained that the database would be open, with data provided on a voluntary basis. Notified bodies would not be obliged to enter data directly. A feasibility study would be launched shortly and potential contributors and users would be consulted.

7. Adaptation of Directive 93/15/EEC to Decision No 768/2008/EC on a common framework for the marketing of products – progress report The Commission reported on the latest state of play on the proposed recast of the Directive, which was now subject to ordinary legislative procedure involving the Council and the European Parliament. Since the proposal was part of a package of nine Directives, discussion in the Council had been mainly based around cross-cutting horizontal themes, although a more sectoral discussion had taken place at a Council working group meeting in July. The Cypriot Presidency was now preparing revised texts of all Directives, which would be submitted shortly to the Committee of Permanent Representatives of the Member States (Coreper) to form the basis for a mandate to launch informal trilogues with the Parliament. In the European Parliament, the Committee for the internal market and consumer protection (IMCO) had given its opinion in July. Most of the IMCO amendments were horizontal in nature, but a few went beyond the NLF alignment exercise and were problematic (for example, the introduction of the concept of 'any use reasonably foreseen' in checking compliance with certain essential safety requirements, and the possibility of product checks under module C2). The plenary vote had been expected in December, but might have to be deferred until early 2013 pending the outcome of the informal trilogue process. In response to a question from Finland, the Commission confirmed that both the working group and the Committee would continue under the Directive, the latter being used to vote on certain measures to be adopted via implementing acts. As regards standardisation issues, under the new Standardisation Regulation mandates and objections to standards would continue to be voted on by the successor to the Committee under Directive 98/34/EC after the explosives working group had been informed so that its views could be taken into account. Sweden and Ireland commented on the difficulties of feeding technical comments into the Council discussion and expressed concern that substantive changes to the Directive were being introduced. The Commission recognised the difficulties, but underlined that the recast was essentially limited to aligning the Directive to the New Legislative Framework (NLF) and that no major changes were expected. In reply to a UK suggestion that in view of the number of technical comments submitted, a more fundamental revision of the Directive might be called for, the Commission pointed out that the review that preceded the proposed recast had not identified a need for any major changes and that further revision would be premature at this stage.

8. Technical issues a. Differentiation between civil and military explosives 6 The Commission presented a draft Q and A on how the exclusion in Article 1(3) first indent of Directive 93/15/EEC relating to explosives intended for use by the armed forces or the police should be interpreted in the context of intra-EU transfers (section 2 of Explo Doc 8.1). In response to a request for clarification from Belgium, the Commission confirmed that the key determining factor should be whether the immediate consignee is a commercial company or the armed forces / police. The UK asked whether a company subcontracted by its Ministry of Defence (MOD) to undertake testing of explosives under MOD control would fall within the exclusion. The Commission confirmed this.

It was agreed that the draft Q and A would be circulated for comment within 2 weeks before being finalised and published.

b. Shock tubes The Commission presented a draft Q and A about the status of shock tubes under the Directive (section 3 of Explo Doc 8.1). In discussion it was clarified that Annex II to Directive 2004/57/EC did not confer responsibility exclusively on notified bodies for determining whether an item was a pyrotechnic article or an explosive. It was agreed that the Q and A should be adopted and published on the Commission's website.

9. Transparency and composition of Commission expert groups The Commission reminded all participants about the new rules relating to transparency of Commission expert working groups and explained how it proposed to apply these taking into account Article 4 of Regulation (EC) No 1049/2001 which provides for exceptions to disclosure where general publication could undermine public security. As a general rule, agendas would be made public, but where appropriate sensitive items that would raise public security concerns would not be listed. Working documents would also generally not be published unless it was clear that their publication would not undermine public security. General meeting reports in the form of a summary record would be published, with a more detailed, confidential version of the minutes made available only to the working group.

The Commission also referred to a call for expressions of interest to broaden the composition of a number of Commission expert groups, including the explosives working group, to provide a more balanced membership with greater participation from non-industry stakeholder interests. The explosives working group would be consulted about any organisations responding to this recent call.

10. Migration from CIRCA to CIRCABC The Commission informed the meeting that the migration was expected to take place before the end of the year. Any problems during or following the migration should be brought to its attention.

11. Any Other Business Pyrotechnic single ignition units combining several batteries

The Commission drew attention to a draft Q and A on whether single ignition units comprising connected batteries should be regarded as a new article for the purposes of Directive 2007/23/EC (Explo Doc 11.1), which had recently been circulated to the working group on pyrotechnic articles. The deadline for comments was the end of November.

7 Naming manufacturing sites on CE conformity certificates FEEM raised the question whether it was necessary to name the manufacturing sites on CE-certificates. In their view the name of the manufacturer assuming responsibility should suffice whether or not he has a site, or subcontracts, etc.

The chair commented that naming sites on the EC type examination certificate was not needed since quality control procedures under the Directive would ensure compliance at site level. Moreover in any case from 5 April 2013 the manufacturing site would be identified in the unique identification marked on each explosive.

The German notified body agreed that for the EC type examination certificate at the design phase (module B), the manufacturing site need not be named. However for declarations of conformity issued at the production control phase (for example, modules C, D and E), the manufacturing sites that are subject to audit should be named.

The chairman concluded that a Q and A should be developed on the issue.

Intra-EU transfer of explosives document The Netherlands briefly outlined its concerns regarding the insufficiency of information provided in most documents relating to approvals for multiple transfers (Explo Doc 11.2). It recognised that it was possible for additional information to be requested, but suggested that general guidelines be drawn up on necessary additional information that should be provided in order to make the document more useful and effective. In response, the UK and Sweden expressed reservations about the burdens on operators if additional information were to be required, the UK also voicing concerns about possible consequences for security classification of information when using SCEPLYT. Germany also questioned the need for additional information. Poland observed that only the information marked with an asterisk in the Annex to Commission Decision 2004/388/EC was obligatory. However, the Commission pointed out that this applied only in case where none of the competent authorities involved in the transaction considered that special security requirements were necessary. The chair concluded that there was no support from those present for the Netherlands' proposal.

Marking of explosives under Directives 2008/43/EC and 2012/4/EU The UK referred to the paper it had submitted (Explo Doc 11.3) outlining a number of points for a possible Q and A in relation to marking, including in particular on smallest packaging units and associated labels.

The chair announced that this would be distributed for comment within one month of the meeting report being circulated.

Julian Foley