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CHAPTER 6 UNION MARKET SURVEILLANCE, CONTROL OF EXPLOSIVES ENTERING THE UNION MARKET AND UNION SAFEGUARD PROCEDURE

Article 41Union market surveillance and control of explosives entering the Union market

Articles 16 to 29 of Regulation (EC) No 765/2008 shall apply to explosives.

Member States shall take all appropriate measures to ensure that explosives may be placed on the market only if, when properly stored and used for their intended purpose, they do not endanger the health or safety of persons.

Article 42Procedure for dealing with explosives presenting a risk at national level

1.Where the market surveillance authorities of one Member State have sufficient reason to believe that an explosive presents a risk to the health or safety of persons, or to property or the environment, they shall carry out an evaluation in relation to the explosive concerned covering all relevant requirements laid down in this Directive. The relevant economic operators shall cooperate as necessary with the market surveillance authorities for that purpose.

Where, in the course of the evaluation referred to in the first subparagraph, the market surveillance authorities find that the explosive does not comply with the requirements laid down in this Directive, they shall without delay require the relevant economic operator to take all appropriate corrective actions to bring the explosive into compliance with those requirements, to withdraw the explosive from the market, or to recall it within a reasonable period, commensurate with the nature of the risk, as they may prescribe.

The market surveillance authorities shall inform the relevant notified body accordingly.

Article 21 of Regulation (EC) No 765/2008 shall apply to the measures referred to in the second subparagraph of this paragraph.

2.Where the market surveillance authorities consider that non-compliance is not restricted to their national territory, they shall inform the Commission and the other Member States of the results of the evaluation and of the actions which they have required the economic operator to take.

3.The economic operator shall ensure that all appropriate corrective action is taken in respect of all the explosives concerned that it has made available on the market throughout the Union.

4.Where the relevant economic operator does not take adequate corrective action within the period referred to in the second subparagraph of paragraph 1, the market surveillance authorities shall take all appropriate provisional measures to prohibit or restrict the explosive’s being made available on their national market, to withdraw the explosive from that market or to recall it.

The market surveillance authorities shall inform the Commission and the other Member States, without delay, of those measures.

5.The information referred to in the second subparagraph of paragraph 4 shall include all available details, in particular the data necessary for the identification of the non-compliant explosive, the origin of the explosive, the nature of the non-compliance alleged and the risk involved, the nature and duration of the national measures taken and the arguments put forward by the relevant economic operator. In particular, the market surveillance authorities shall indicate whether the non-compliance is due to either of the following:

(a)

failure of the explosive to meet requirements relating to the health or safety of persons, or to the protection of property or the environment; or

(b)

shortcomings in the harmonised standards referred to in Article 19 conferring a presumption of conformity.

6.Member States other than the Member State initiating the procedure under this Article shall without delay inform the Commission and the other Member States of any measures adopted and of any additional information at their disposal relating to the non-compliance of the explosive concerned, and, in the event of disagreement with the adopted national measure, of their objections.

7.Where, within three months of receipt of the information referred to in the second subparagraph of paragraph 4, no objection has been raised by either a Member State or the Commission in respect of a provisional measure taken by a Member State, that measure shall be deemed justified.

8.Member States shall ensure that appropriate restrictive measures, such as withdrawal of the explosive from the market are taken in respect of the explosive concerned without delay.

Article 43Union safeguard procedure

1.Where, on completion of the procedure set out in Article 42(3) and (4), objections are raised against a measure taken by a Member State, or where the Commission considers a national measure to be contrary to Union legislation, the Commission shall without delay enter into consultation with the Member States and the relevant economic operator or operators and shall evaluate the national measure. On the basis of the results of that evaluation, the Commission shall adopt an implementing act determining whether the national measure is justified or not.

The Commission shall address its decision to all Member States and shall immediately communicate it to them and the relevant economic operator or operators.

2.If the national measure is considered justified, all Member States shall take the necessary measures to ensure that the non-compliant explosive is withdrawn from their market, and shall inform the Commission accordingly. If the national measure is considered unjustified, the Member State concerned shall withdraw that measure.

3.Where the national measure is considered justified and the non-compliance of the explosive is attributed to shortcomings in the harmonised standards referred to in point (b) of Article 42(5) of this Directive, the Commission shall apply the procedure provided for in Article 11 of Regulation (EU) No 1025/2012.

Article 44Compliant explosives which present a risk

1.Where, having carried out an evaluation under Article 42(1), a Member State finds that although an explosive is in compliance with this Directive, it presents a risk to the health or safety of persons, or to property or the environment, it shall require the relevant economic operator to take all appropriate measures to ensure that the explosive concerned, when placed on the market, no longer presents that risk, to withdraw the explosive from the market or to recall it within a reasonable period, commensurate with the nature of the risk, as it may prescribe.

2.The economic operator shall ensure that corrective action is taken in respect of all the explosives concerned that he has made available on the market throughout the Union.

3.The Member State shall immediately inform the Commission and the other Member States. That information shall include all available details, in particular the data necessary for the identification of the explosive concerned, the origin and the supply chain of the explosive, the nature of the risk involved and the nature and duration of the national measures taken.

4.The Commission shall without delay enter into consultation with the Member States and the relevant economic operator or operators and shall evaluate the national measures taken. On the basis of the results of that evaluation, the Commission shall decide by means of implementing acts whether the national measure is justified or not, and where necessary, propose appropriate measures.

The implementing acts referred to in the first subparagraph of this paragraph shall be adopted in accordance with the examination procedure referred to in Article 49(3).

On duly justified imperative grounds of urgency relating to the protection of health and safety of persons, or to the protection of property or the environment, the Commission shall adopt immediately applicable implementing acts in accordance with the procedure referred to in Article 49(4).

5.The Commission shall address its decision to all Member States and shall immediately communicate it to them and the relevant economic operator or operators.

Article 45Formal non-compliance

1.Without prejudice to Article 42, where a Member State makes one of the following findings, it shall require the relevant economic operator to put an end to the non-compliance concerned:

(a)

the CE marking has been affixed in violation of Article 30 of Regulation (EC) No 765/2008 or of Article 23 of this Directive;

(b)

the CE marking has not been affixed;

(c)

the identification number of the notified body, where that body is involved in the production control phase, has been affixed in violation of Article 23 or has not been affixed;

(d)

the EU declaration of conformity has not been drawn up;

(e)

the EU declaration of conformity has not been drawn up correctly;

(f)

technical documentation is either not available or not complete;

(g)

the information referred to in Article 5(5) or Article 7(3) is absent, false or incomplete;

(h)

any other administrative requirement provided for in Article 5 or Article 7 is not fulfilled.

2.Where the non-compliance referred to in paragraph 1 persists, the Member State concerned shall take all appropriate measures to restrict or prohibit the explosive being made available on the market or ensure that it is recalled or withdrawn from the market.