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Communication from the Commission - TRIS/(2024) 2496
Directive (EU) 2015/1535
Notification: 2024/0519/DE
Notification of a draft text from a Member State
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MSG: 20242496.EN
1. MSG 001 IND 2024 0519 DE EN 18-09-2024 DE NOTIF
2. Germany
3A. Bundesministerium für Wirtschaft und Klimaschutz, Nationale Kontaktstelle im Referat EB3
3B. Bundesministerium des Innern und für Heimat, Referat KM 5
4. 2024/0519/DE - C00C - CHEMICALS
5. Draft Act amending the Explosives Act and other Acts
6. Explosive substances (explosives, pyrotechnic compositions, pyrotechnic articles, other explosive substances and explosives accessories), explosives precursors
7.
8. In order to effectively punish and prevent criminal offences in connection with explosive substances, the Explosives Act, the Precursors Act and other (non-notifiable regulations) are being amended.
1. Amendment to the Explosives Act (SprengG)
In future, the attempted unauthorised handling of and the attempted unauthorised trade in explosive substances as well as the attempted acquisition (Section 40(1) subparagraphs 1 to 3 SprengG) and the attempted unauthorised import, transit or movement (Section 40(2) subparagraph 1) of explosive substances will be punishable (Section 40(3b) (new) SprengG).
Section 40(3a) (new) SprengG introduces a new aggravating element, attracting a higher penalty, to offences committed under Section 40(1) or (2) SprengG, namely commission on a commercial or gang-related basis.
Criminal liability for the unauthorised operation of a warehouse of explosive substances, which has been expressly laid down to date only in the commercial sphere, is being extended to the non-commercial sphere, since it makes no difference to the hazardous nature of the unauthorised storage of these substances whether it is carried out for commercial or non-commercial purposes (Section 40(2) subparagraph 2 SprengG). For the same reason, the regulatory offence of the unauthorised establishment of a warehouse under Section 41(1) subparagraph 7 is also being extended to the non-commercial sphere.
In future, criminal liability for import, transit and movement under Section 40(2) subparagraph 1 SprengG will be linked to the lack of authorisation to handle or acquire explosive substances and will no longer be linked to the breach of the obligation to prove such authorisation. Criminal liability for the unauthorised import, transit and movement of explosive substances is being extended to the non-commercial sphere (Section 40(2) subparagraph 1 point (b) (new) SprengG). However, in order to avoid contradictions with cases of unauthorised non-commercial handling and acquisition (Section 40(1) subparagraph 3 SprengG), this is only to apply to explosives, category F4 fireworks and pyrotechnic articles that are not conformity-assessed or otherwise approved. The unauthorised non-commercial movement of conformity-assessed pyrotechnic articles (except category F4) will in future be penalised as a regulatory offence in tandem with unauthorised non-commercial handling or acquisition (Section 41(1a) SprengG in conjunction with Section 40(5) SprengG). Breaches of the obligation to prove, to the competent body, authorisation for the movement of explosive substances prior to the movement operation will in future be punished as a regulatory offence (Section 41(1) subparagraph 4a SprengG).
Criminal liability for the unauthorised provision of explosive substances to unauthorised persons is also being extended to the non-commercial sphere (Section 40(2) subparagraph 3 points (a), (c) and (d) SprengG).
Section 5(1) clarifies that only persons who are authorised to handle explosive substances or to acquire them may import, transit or move explosive substances or arrange for their import, transit or movement by someone else (first half-sentence) and that such persons must prove this authorisation at the request of the authority designated in accordance with paragraph (5) (second half-sentence).
Section 17 clarifies that the authorisation requirement relates to the establishment and operation of warehouses in which explosive substances are to be stored either for commercial purposes or as part of an economic enterprise, an agricultural or forestry operation or in the employment of workers. The wording now matches Section 7(1) of the Act (that provision being in relation to permission to handle and trade in explosive substances).
The addition of Section 15(4) SprengG to the first sentence of Section 28 removes an existing ambiguity in the law to date: as the law stands, the reference provision in the first sentence of Section 28 SprengG, stipulating that certain provisions from the section on the commercial handling and trade in explosive substances are also applicable to the non-commercial sphere, cites Section 15(1) and Section 15(3) SprengG. This means that the proof and notification obligations and the competence of the authorities designated in Section 15(5) also apply in the non-commercial sphere. However, under the law as it stands, there is no reference to the corresponding control powers of the competent authorities under Section 15(4) SprengG in order to check whether the provisions applicable to the non-commercial import, transit and movement (including dangerous goods regulations) have been complied with. By adding Section 15(4) to Section 28, the powers of the authorities designated under paragraph (5) are now clarified.
2. Amendment to the Precursors Act (AusgStG)
In future, the AusgStG will criminalise not only the attempted commission of offences under Section 13(1), but include the attempted aggravating element, namely attempted commercial or gang-based commission of such offences. Furthermore, a provision on the confiscation of explosives precursors is being added (Section 15 (new) AusgStG).
9. Over the last ten years, cases of improper use of explosive substances causing an explosion (Section 308 of the Criminal Code – StGB) have more than doubled, from 871 cases in 2012 to 1 934 cases in 2023 (Police-recorded Crime Statistics 2023, T01 Basic table – Cases from 1987 (V1.0), available at https://www.bka.de/DE/AktuelleInformationen/StatistikenLagebilder/PolizeilicheKriminalstatistik/PKS2023/PKSTabellen/Zeitreihen/zeitreihen_node.html).
In particular, there has been a significant increase in the blowing up of ATMs. Nationwide, such cases rose by 26.5 % from 2021 to 2022 alone. This represents a new high since figures started to be recorded in 2005. Despite the security measures agreed with the German banking industry, which led to a slight decline in the number of cases in 2023, these remain at a high level. In recent years, cases of ATMs being blown up have largely involved solid explosives (e.g. pyrotechnic compositions and homemade explosives). The increased use of solid explosives poses an increased risk to passers-by in the immediate vicinity of ATMs, as perpetrators are often unable to fully control them. In addition, emergency services are put at significant risk in the event of attempted explosions, as the potential risk of explosion continues. The acts are also often characterised by reckless conduct during escape using high-powered vehicles. This, too, poses a significant risk to third parties (Federal Criminal Police Office, Attacks on ATMs, Bundeslagebild Report 2022, p. 5). At the same time, such explosions cause considerable losses to the finance and insurance industry. In 2022, total losses in Germany were well into nine figures (https://www.gdv.de/gdv/medien/medieninformationen/ueber-100-millionen-euro-schaeden-durch-gesprengte-geldautomaten--157758). In light of this, the penal provision in Section 308 of the Criminal Code as currently worded does not sufficiently reflect the degree of wrongdoing specifically involved in blowing up ATMs in order to commit theft by causing an explosion.
The (other) offences under the Explosives Act (Sections 40 and 42 SprengG) have also recently increased significantly again (from 4 012 cases in 2022 to 4 431 cases in 2023). At the same time, the ancillary criminal law provisions of the Explosives Act do not sufficiently cover certain cases of conduct that are worthy of and deserve punishment within the sphere of unauthorised handling of explosive substances and their acquisition. This applies, on the one hand, to the attempted unauthorised acquisition, attempted unauthorised import, transit or movement of, and attempted unauthorised handling of explosive substances, including the attempted production of explosives. Such conduct has not been punishable to date under the SprengG, as no criminal liability for attempt has been specified (see Section 23(1) of the Criminal Code in conjunction with Section 12(2) of the Criminal Code). This stands in contrast to the danger that is posed by unauthorised acts involving explosive substances.
There are also gaps in the criminal liability provisions with regard to organised crime and explosives. To date, there has been no commercial or gang-based aggravating element of offences under the SprengG, which would correspond to the comparable provisions of the Precursors Act or the Weapons Act.
Furthermore, criminal law in practice has shown that there are still appreciable gaps in the criminal liability provisions with regard to the unauthorised operation of a non-commercial warehouse of explosive substances and with regard to the unauthorised non-commercial movement of explosive substances.
In addition, under the law as it stands, the AusgStG lacks a specific confiscation provision within the meaning of Section 74(2) of the Criminal Code. This means that, where offences under Section 13 AusgStG are committed (prohibited provision, movement, possession or use of an explosives precursor restricted under the EU Explosives Precursors Regulation), the confiscation of such precursors is not possible if they are ‘mere’ objects of crime that were neither produced by the offence (products of crime) nor used or intended for its commission or preparation (means of crime).
In this respect, there is an urgent need to supplement the (ancillary) criminal law and criminal procedure provisions.
10. Reference to the basic texts: The basic texts were submitted as part of an earlier notification:
2009/0092/D
2004/0513/D
11. No
12.
13. No
14. No
15. No
16.
TBT aspects: No
SPS aspects: No
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European Commission
Contact point Directive (EU) 2015/1535
email: grow-dir2015-1535-central@ec.europa.eu
