Explanatory Memorandum to COM(2018)862 - EU position in the Commission on Narcotic Drugs on the scheduling of substances under the Single Convention on Narcotic Drugs and the Convention on Psychotropic Substances

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dossier COM(2018)862 - EU position in the Commission on Narcotic Drugs on the scheduling of substances under the Single Convention on Narcotic ...
source COM(2018)862 EN
date 07-01-2019


1. SUBJECT MATTEROFTHE PROPOSAL

This proposal concerns the decision establishing the position to be taken on the Union's behalf in the 62nd session of the Commission on Narcotic Drugs on the scheduling of substances under the UN Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol, and the UN Convention on Psychotropic Substances of 1971.

2. CONTEXTOFTHE PROPOSAL

2.1. The UN Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol, and the UN Convention on Psychotropic Substances of 1971

The United Nations (UN) Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol, (the Convention on Narcotic Drugs)1 aims to combat drug abuse by coordinated international action. There are two forms of intervention and control that work together. First, it seeks to limit the possession, use, trade in, distribution, import, export, manufacture and production of drugs exclusively to medical and scientific purposes. Second, it combats drug trafficking through international cooperation to deter and discourage drug traffickers.

The UN Convention on Psychotropic Substances of 1971 (the Convention on Psychotropic Substances)2 establishes an international control system for psychotropic substances. It responded to the diversification and expansion of the spectrum of drugs of abuse and introduced controls over a number of synthetic drugs according to their abuse potential on the one hand and their therapeutic value on the other.

All EU Member States are parties to the Convention on Narcotic Drugs and to the Convention on Psychotropic Substances. The Union is not a party to the Conventions.

2.2. The Commission on Narcotic Drugs

The Commission on Narcotic Drugs (CND) is a commission of the UN Economic and Social Council (ECOSOC) and its functions and powers are inter alia set out in the Convention on Narcotic Drugs and in the Convention on Psychotropic Substances. It is made up of 53 UN Member States elected by ECOSOC. 11 Member States are currently members of the CND with the right to vote3. The Union has an observer status in the CND.

2.3. The envisaged act of the Commission on Narcotic Drugs

The CND regularly amends the list of substances that are annexed to the Convention on Narcotic Drugs and to the Convention on Psychotropic Substances on the basis of recommendations of the World Health Organisation (WHO) which is advised by its Expert Committee on Drug Dependence.

United Nations Treaty Series, vol. 978, No. 14152.

United Nations Treaty Series, vol. 1019, No. 14956.

Austria, Belgium, Croatia, Czech Republic, France, Germany, Hungary, Italy, Netherlands, Slovakia,

Spain.

The WHO recommended on 7 December 2018 to the Secretary General of the UN4 to add 10 of the substances which were critically reviewed by the WHO Expert Committee on Drug Dependence to the schedules of the Conventions. As regards the other substances reviewed by the WHO Expert Committee on Drug Dependence, no scheduling recommendations will be made.

The CND, in its sixty-second session taking place in Vienna from 18 to 22 March 2019, will adopt decisions on the scheduling of these 10 substances under the Convention on Narcotic Drugs and the Convention on Psychotropic Substances, respectively.

3. POSITIONTOBETAKENONTHE UNION'SBEHALF

Changes to the schedules of the Convention on Narcotic Drugs and of the Convention on Psychotropic Substances have direct repercussions for the scope of application of Union law in the area of drug control for all Member States. Article 1(1)(a) of Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking5 states that, for the purposes of the Framework Decision, 'drug' means a substance covered by either the Convention on Narcotic Drugs or the Convention on Psychotropic Substances and any of the substances listed in the Annex to the Framework Decision. Council Framework Decision 2004/757/JHA therefore applies to substances listed in the Schedules to the Convention on Narcotic Drugs and the Convention on Psychotropic Substances. Thus any change to the schedules annexed to these Conventions directly affects common EU rules and alters their scope, in accordance with Article 3(2) TFEU. This is irrespective of whether the substance in question was already placed under control across the Union on the basis of Council Decision

2005/387/JHA.6

From the 10 substances which were critically reviewed by the WHO Expert Committee on Drug Dependence and are recommended for scheduling, only four substances, ADB-CHMINACA7, CUMYL-4CN-BINACA8, methoxyacetylfentanyl and cyclopropylfentanyl9,

Oral statement at the reconvened 61st session of the Commission on Narcotic Drugs on 7 December 2018.

OJ L 335, 11.11.2004, p. 8, as amended by Directive (EU) 2017/2103 of the European Parliament and of the Council of 15 November 2017 amending Council Framework Decision 2004/757/JHA in order to include new psychoactive substances in the definition of ‘drug’ and repealing Council Decision 2005/387/JHA, OJ L 305, 21.11.2017, p. 12.

Council Decision 2005/387/JHA was repealed as of 23 November 2018 by Directive (EU) 2017/2103. All substances subjected to control measures and criminal penalties pursuant to Council Decision 2005/387/JHA by the date of adoption of Directive (EU) 2017/2103 were included in an Annex to the Directive, which became the Annex to the amended Council Framework Decision 2004/757/JHA. The substances which have been subjected to control measures and criminal penalties pursuant to Council Decision 2005/387/JHA between November 2017, when the new legislation was adopted, and 23 November 2018 will be added to the Annex of the Framework Decision through a delegated act which is currently subject to scrutiny by the European Parliament and the Council (C(2018) 8460). Council Implementing Decision (EU) 2018/747 of 14 May 2018 on subjecting the new psychoactive substance N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-(cyclohexylmethyl)-1H-indazole-3-

carboxamide (ADB-CHMINACA) to control measures, OJ L 125, 22.5.2018, p. 8.

2.

Council Implementing Decision (EU) 2018/748 of 14 May 2018 on subjecting the new psychoactive substance 1-(4-cyanobutyl)-N-(2-phenylpropan-2-yl)-1H-indazole-3-carboxamide (CUMYL-4CN-


BINACA) to control measures, OJ L 125, 22.5.2018, p. 10.

Council Implementing Decision (EU) 2018/1463 of 28 September 2018 on subjecting the new psychoactive substances N-phenyl-N-[1-(2-phenylethyl)piperidin-4-yl]cyclopropanecarboxamide

(cyclopropylfentanyl) and 2-methoxy-N-phenyl-N-[1-(2-phenylethyl)piperidin-4-yl]acetamide

(methoxyacetylfentanyl) to control measures, OJ L 245, 1.10.2018, p. 9.

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are already subject to control measures across the Union. The other substances are not subject to control measures across the Union yet.

The Commission proposal for the draft EU common position suggests supporting the WHO recommendations as these are in line with the current state of play of scientific knowledge. As regards the new psychoactive substances, the addition of these substances to the Schedules of the two Conventions is supported also by information available from the European Database on New Drugs of the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA).

It is necessary that Member States prepare the meeting of the CND when it is called to decide on the scheduling of substances by reaching a common position in the Council. Such position, due to the limitations intrinsic to the observer status of the Union, should be expressed by the Member States that are currently members of the CND, acting jointly in the interest of the Union within the CND. The Union, who is not a party to the Convention on Narcotic Drugs and to the Convention on Psychotropic Substances, does not have the right to vote in the CND.

To this end, the Commission is proposing a common position to be taken, on behalf of the European Union, in the sixty-second session of the CND on the scheduling of substances under the Convention on Narcotic Drugs and the Convention on Psychotropic Substances. This is the third time that the Commission presents such a draft proposal for a common EU position, after those adopted for the CND meeting in March 2017 and 2018.10 The Council adopted the common positions11 and this allowed the EU to speak with one voice at the previous CND meetings regarding the international scheduling, since the Member States participating in the CND voted in favour of the scheduling in line with the adopted common position.

4. LEGALBASIS

4.1. Procedural legal basis

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’

Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a party to the agreement at issue. The CND is 'a body set up by an agreement' within the meaning of this Article, given that it is a body that has been given specific tasks under the Convention on Narcotic Drugs and the Convention on Psychotropic Substances.

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the rules of international law governing the body in question. It also includes instruments that do not have a binding effect under international law, but that are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’12.

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COM(2017) 72 final and COM(2018) 31 final.

Adopted by the General Affairs Council on 7 March 2017 and on 27 February 2018, respectively. Judgment of the Court of Justice of 7 October 2014, Germany v Council, Case C-399/12, ECLI:EU:C:2014:2258, paragraphs 61 to 64.

The CND's scheduling-decisions are "acts having legal effects'' within the meaning of Article 218(9) TFEU. According to the Convention on Narcotic Drugs and the Convention on Psychotropic Substances, decisions of the CND automatically become binding, unless a party has submitted the decision for review to ECOSOC within the applicable time-limit13. The decisions of ECOSOC on the matter are final. The CND's scheduling decisions also have legal effects in the EU legal order by virtue of Union law, namely Council Framework Decision 2004/757/JHA. Changes to the schedules of the Convention on Narcotic Drugs and the Convention on Psychotropic Substances have direct repercussions for the scope of application of this EU legal instrument.

4.2. Substantive legal basis

The main objective and content of the envisaged act relate to illicit drug trafficking.

Therefore, the substantive legal basis of the proposed decision is Article 83(1) of the Treaty on the Functioning of the European Union (TFEU) which identifies illicit drug trafficking as one of the crimes with a particular cross-border dimension and empowers the European Parliament and the Council to establish minimum rules concerning the definition of offences and sanctions in the area of illicit drug trafficking.

4.3. Variable geometry

In accordance with Article 10 i of Protocol (No 36) on transitional provisions annexed to the Treaties, the United Kingdom notified that it does not accept the full powers of the Commission and the Court of Justice with regard to acts in the field of police and judicial cooperation in criminal matters adopted before the entry into force of the Lisbon Treaty. As a consequence, Council Framework Decision 2004/757 JHA has ceased to apply to the United Kingdom as from 1 December 201414.

Since the CND’s scheduling decisions do not affect common rules in the area of illicit drug trafficking by which the United Kingdom is bound, the United Kingdom does not take part in the adoption of a Council Decision establishing the position to be adopted on the Union’s behalf when such scheduling decisions are adopted.

Denmark is bound by Council Framework Decision 2004/757/JHA as applicable until 22 November 2018 which states in its Article 1 that “drugs” shall mean any of the substances covered by either the Convention on Narcotic Drugs or the Convention on Psychotropic Substances.

Since the CND’s scheduling decisions affect common rules in the area of illicit drug trafficking by which Denmark is bound, Denmark takes part in the adoption of a Council Decision establishing the position to be adopted on the Union’s behalf when such scheduling decisions are adopted.

3.

Article 3(7) of the Convention on Narcotic Drugs; Article 2(7) of the Convention on Psychotropic


Substances.

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See point 29 of the List of Union acts adopted before the entry into force of the Lisbon Treaty in the


field of police cooperation and judicial cooperation in criminal matters which cease to apply to the

United Kingdom as from 1 December 2014 pursuant to Article 10 i, second sentence, of Protocol (No

36) on transitional provisions (OJ C 430 of 1.12.2014, p. 17).

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4.4. Conclusion

The legal basis for this proposal is Article 83(1) in conjunction with Article 218(9) Treaty on the Functioning of the European Union (TFEU).

5. BUDGETARYIMPLICATIONS

No

Contents

1.

budgetary implications



of the