This proposal concerns the decision establishing the position to be taken on behalf of the European Union (EU) in the 67th session of the United Nations (UN) Commission on Narcotic Drugs (CND) 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 67th session of the CND is scheduled to take place from 14 to 22 March 2024.
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 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 the EU Member States are parties to the Conventions, whereas the Union is not.
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2.2.The Commission on Narcotic Drugs
The 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 the ECOSOC. 13 EU Member States will be members of the CND with the right to vote in March 2024. 3 The Union has an observer status in the CND.
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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 recommended on 15 November to the UN Secretary General 4 to add five substances which were critically reviewed by the ECDD to the schedules of the Conventions.
The CND, in its 67th session taking place in Vienna 14 to 22 March 2024, is called upon to adopt decisions on the scheduling of these substances under the Conventions.
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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 (the ‘Framework Decision’) 5 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. 6
The ECDD critically reviewed six substances at its 46th meeting, namely two benzodiazepines – bromazolam and flubromazepam –, one novel synthetic opioid – butonitazene –, two cathinones/stimulants – 3-Chloromethcathinone (3-CMC) and dipentylone – and one dissociative-type substance – 2-fluorodeschloroketamine (2-FDCK).
All of the six substances are monitored by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA). In addition, one substance is already subject to control measures across the Union: 3-CMC has been added to the list of drugs of the Framework Decision in 2022. Furthermore, two of these substances – butonitazene and 2-FDCK – are under intensive monitoring by the EMCDDA. The ECDD decided to recommend five of these for scheduling: bromazolam, butonitazene, 3-CMC, dipentylone and 2-DFCK.
The Commission proposal for a Union position suggests supporting the WHO recommendations, the control of the above mentioned five substances, as these are in line with the current state of play of scientific knowledge. As regards these new psychoactive substances, their addition to the Schedules of the Conventions is supported also by information available from the European Database on New Drugs of the EMCDDA.
It is necessary that the Council establishes the Union’s position for the meeting of the CND 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 CND in March 2024, 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 will be members of the CND in March 2024, on behalf of the European Union, in the 67th session of the CND on the scheduling of substances under the Convention on Narcotic Drugs and the Convention on Psychotropic Substances. In the past, the Council adopted such Union positions and thus allowed the EU to speak with one voice at the previous CND meetings regarding the international scheduling, as the Member States participating in the CND voted in favour of the scheduling in line with the adopted Union position 7 .
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4.Legal basis
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4.1.Procedural legal basis
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4.1.1.Principles
Article 218(9) of the 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 8 .
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’ 9 .
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4.1.2.Application to the present case
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 United Nations Economic and Social Council (ECOSOC) 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 are binding. If a party submits a CND decision for review to the ECOSOC within the applicable time-limit, 10 the decisions of the 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.
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4.2.Substantive legal basis
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4.2.1.Principles
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.
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4.2.2.Application to the present case
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.
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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 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 taken on the Union’s behalf when such scheduling decisions are adopted.
Ireland is bound by the Framework Decision and is therefore taking part in the adoption of a Council Decision establishing the position to be taken on the Union’s behalf when such scheduling decisions are adopted.
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4.4.Conclusion
The legal basis of the proposed decision is Article 83(1) TFEU in conjunction with Article 218(9) TFEU.
