Explanatory Memorandum to COM(2020)814 - Position of the EU in the Commission on Narcotic Drugs on the scheduling of substances under the Conventions on Narcotic Drugs and on Psychotropic Substances - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2020)814 - Position of the EU in the Commission on Narcotic Drugs on the scheduling of substances under the Conventions on Narcotic ... |
|---|---|
| source | COM(2020)814  |
| date | 17-12-2020 |
1. SUBJECT MATTER OF THE PROPOSAL
This proposal concerns the decision establishing the position to be expressed on the Union’s behalf in the 64th 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 64th session of the Commission on Narcotic Drugs is scheduled to take place from 12 to 16 April 2021.2.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 is a commission of the UN Economic and Social Council 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 UN Economic and Social Council. 12 Member States are members of the Commission on Narcotic Drugs with the right to vote in March 2021 3 . The Union has an observer status in the Commission on Narcotic Drugs.
2.3.The envisaged act of the Commission on Narcotic Drugs
The Commission on Narcotic Drugs 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.
The WHO recommended to the Secretary General of the UN to add eight out of the eleven substances, which were critically reviewed by the WHO Expert Committee on Drug Dependence, to the schedules of the Conventions.
The Commission on Narcotic Drugs, in its 64th session, taking place in Vienna from 12 to 16 April 2021, is called upon to adopt decisions on the scheduling of these substances under the Conventions.
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) 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 4 (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 is controlled in the Union. 5
One of the eleven substances, which have been reviewed by the Expert Committee on Drug Dependence, is subject to control measures across the Union. Isotonitazene was included in the definition of ‘drug’ in the Council Framework Decision 2004/757/JHA. 6 One substance, MDMB-4en-PINACA, is under intensive monitoring by the European Monitoring Centre for Drugs and Drug Addiction; it is also the subject of a risk assessment report. The other 9 substances are being monitored by the European Monitoring Centre for Drugs and Drug Addiction.
The Commission proposal for a Union 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 Conventions is supported also by information available from the European Database on New Drugs of the European Monitoring Centre for Drugs and Drug Addiction.
It is necessary that the Council establishes the Union’s position for the meeting of the Commission on Narcotic Drugs when it is called to decide on the scheduling of substances. 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 Commission on Narcotic Drugs in March 2021, acting jointly in the interest of the Union within the Commission on Narcotic Drugs. 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 will be members of the Commission on Narcotic Drugs in March 2021, on behalf of the European Union, in the 64th session of the Commission on Narcotic Drugs on the scheduling of substances under the Convention on Narcotic Drugs and the Convention on Psychotropic Substances. This is the fifth time that the Commission presents such a proposal for a Union position. 7 The Council adopted the Union positions 8 and this allowed the EU to speak with one voice at the previous Commission on Narcotic Drugs meetings regarding the international scheduling, since the Member States participating in the Commission on Narcotic Drugs voted in favour of the scheduling 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 9 . 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’ 10 .
The Commission on Narcotic Drugs is “a body set up by an agreement” within the meaning of this Article, given that it is a body established by UN Economic and Social Council – 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 Commission on Narcotic Drugs’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 Commission on Narcotic Drugs automatically become binding, unless a party has submitted the decision for review to UN Economic and Social Council within the applicable time-limit 11 . The decisions of UN Economic and Social Council on the matter are final. The Commission on Narcotic Drugs’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 21 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 Commission on Narcotic Drugs’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) TFEU in conjunction with Article 218(9) TFEU.
5. BUDGETARY IMPLICATIONS
No budgetary implications.