Explanatory Memorandum to COM(2020)659 - EU position in the Commission on Narcotic Drugs om adding substances under the Single Convention on Narcotic Drugs and the Convention on Psychotropic Substances

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dossier COM(2020)659 - EU position in the Commission on Narcotic Drugs om adding substances under the Single Convention on Narcotic Drugs and the ...
source COM(2020)659 EN
date 08-12-2020


1. Subject matter of the proposal

This proposal concerns the decision establishing the position to be taken on the Union's behalf in the reconvened 63rd 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. The reconvened 63rd session of the Commission on Narcotic Drugs is scheduled to take place on 3 and 4 December 2020.

2. Context of the 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 Conventions, whereas the Union is not.

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 two Conventions. It is made up of 53 UN Member States elected by ECOSOC. 12 Member States will be members of the CND with the right to vote in December 2020 3 . 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 Conventions on the basis of recommendations of the World Health Organisation (WHO) which is advised by its Expert Committee on Drug Dependence (ECDD).

The WHO submitted on 24 January 2019 to the Secretary General of the UN 4 six recommendations issued from the critical review carried out at the 41st meeting of the ECDD concerning cannabis and cannabis-related substances.

On 4 March 2020 5 , the CND decided to postpone the vote on the recommendations to its reconvened 63rd session, taking place in Vienna on 3 and 4 December 2020.

3. Position to be taken on the Union's behalf

Changes to the schedules of the Conventions 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 trafficking 6 (the ‘Framework Decision’) 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. The Framework Decision 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) of the Treaty on the Functioning of the European Union (TFEU). This is irrespective of whether the substance in question was already placed under control across the Union.

Cannabis and cannabis-related substances which were the object of the critical review of the 41st ECDD meeting and of the six WHO recommendation from 24 January 2019 are currently controlled at international level under either the Convention on Narcotic Drugs or the Convention on Psychotropic Substances:

–“Cannabis and cannabis resin” are included in Schedule I of the Convention on Narcotic Drugs. Moreover, “Cannabis and cannabis resin” are also included in Schedule IV of the Convention on Narcotic Drugs containing substances that are considered especially dangerous.

–Dronabinol (delta-9-tetrahydrocannabinol) is included in Schedule II of the Convention of Psychotropic Substances.

–Tetrahydrocannabinol (isomers of delta-9-tetrahydrocannabinol) is included in Schedule I of the Convention of Psychotropic Substances.

–“Extracts and tinctures of cannabis” are included in Schedule I of the Convention on Narcotic Drugs.

–“Cannabidiol preparations” are controlled under the entry “Extracts and tinctures of cannabis” in Schedule I of the Convention on Narcotic Drugs.

–“Pharmaceutical preparations of cannabis and dronabinol” are controlled as cannabis based preparations under Schedule I of the Single Convention on Narcotic Drugs or, as preparations using synthetic delta-9-tetrahydrocannabinol, under Schedule II of the Convention on Psychotropic Substances.

The Commission proposal for a Union position is evidence-based. It has been informed by the available documents for the meetings of the WHO Expert Committee on Drug Dependence, the answers provided at the 4th and 5th Intersessional Meeting of the CND on 24 June 2019 and 23 September 2019 by the WHO, the International Narcotics Control Board (INCB) and the United Nations Office on Drugs and Crime (UNODC), within their respective mandate 7 , the analysis of the impact of the WHO recommendations by INCB 8 , the topical discussions organised by the CND on 25-26 June and 24-25 August 9 . It also takes into account exchanges with the Member States in the Horizontal Drugs Group and the work of the European Monitoring Centre for Drugs and Drug Addictions (EMCDDA) in this field.

The Commission proposal for a Union position suggests supporting only some of the WHO recommendations, which reflect developments of the scientific knowledge in their regard and would not result in a significant change in the control of these substances.

Conversely, a number of the recommendations are characterised by a lack of clarity surrounding their legal and practical implications and consequences in terms of new control measures or lack thereof. The Commission proposal for a Union position suggests therefore opposing these recommendations.

It is necessary that the Union establishes its position for the meeting of the CND when it is called to decide on the scheduling of substance. Such position, due to the limitations intrinsic to the observer status of the Union, should be expressed by the Member States that will be members of the CND in December 2020, acting jointly in the interest of the Union within the CND. The Union is not a party to these Conventions, but has exclusive competence in this area.

To this end, the Commission is proposing a Union position to be expressed by the Member States that are members of the CND in December 2020, on behalf of the European Union, in the reconvened 63rd session of the CND on the scheduling of substances under the Convention on Narcotic Drugs and the Convention on Psychotropic Substances. This is the sixth time that the Commission presents such a draft proposal for a Union position. 10 The Council adopted the Union positions 11 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 line with the adopted Union position.

4. Legal basis

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 12 . 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’ 13 .

The CND is 'a body set up by an agreement' within the meaning of this Article, given that it is a body established by the ECOSOC, an organ of the United Nations and that it has been given specific tasks under the Convention on Narcotic Drugs and the Convention on Psychotropic Substances.

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-limit 14 . 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, given the fact that they are capable of decisively influencing the content of EU legislation, namely Council Framework Decision 2004/757/JHA. Changes to the schedules of the Conventions have direct repercussions for the scope of application of this EU legal instrument.

The envisaged act does not supplement or amend the institutional framework of the Agreement.

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU.

4.2.Substantive legal basis

The substantive legal basis for a decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the Union's behalf.

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) 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

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.

4.4.Conclusion

The legal basis for this proposal is Article 83(1) in conjunction with Article 218(9) TFEU.

5. BUDGETARY IMPLICATIONS

No budgetary implications.