Explanatory Memorandum to COM(2017)72 - EU position in the sixtieth session of the Commission on Narcotic Drugs on the scheduling of substances under the Single Convention on Narcotic Drugs of 1961 - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2017)72 - EU position in the sixtieth session of the Commission on Narcotic Drugs on the scheduling of substances under the Single ... |
|---|---|
| source | COM(2017)72  |
| date | 06-02-2017 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
The Commission on Narcotic Drugs (CND) regularly amends the list of substances that are annexed to the United Nations (UN) Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol (the 1961 UN Convention) 1 and to the UN Convention on Psychotropic Substances of 1971 (the 1971 UN Convention) 2 on the basis of recommendations of the World Health Organisation (WHO) which is advised by its Expert Committee on Drug Dependence.
All EU Member States are signatories of the 1961 UN Convention and to the 1971 UN Convention. The Union is not a signatory of the conventions.
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 1961 UN Convention and in the 1971 UN Convention. It is made up of 53 UN Member States elected by ECOSOC. 12 Member States are currently members of the CND with the right to vote. 3 The Union has an observer status in the CND.
The WHO recommended on 2 December 2016 to the Secretary General of the UN 4 to add ten new substances to the schedules of the conventions. Only one of these substances, MDMB-CHMICA is already in the process to be submitted to control measures at EU level. Based on a risk assessment report of the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) conducted in compliance with the provisions of Article 6(2), (3) and i of Council Decision 2005/387/JHA on the information exchange, risk-assessment and control of new psychoactive substances, 5 the Commission tabled on 31 August 2016 a proposal to subjecting MDMB-CHMICA to EU-wide control measures. 6
Changes to the schedules of the 1961 UN Convention and the 1971 UN Convention have direct repercussions for the scope of application of Union law in the area of drug control for all Member States. Article 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 7 states that, for the purposes of the Framework Decision, 'drugs' shall mean any of the substances covered by either the 1961 UN Convention or by the 1971 UN Convention. Framework Decision 2004/757/JHA therefore applies to substances listed in the Schedules to the 1961 UN Convention and the 1971 UN Convention. Thus any change to the schedules annexed to these conventions directly affects common EU rules and alters their scope, within the meaning of Article 3(2) TFEU. This is irrespective of whether the substance in question is already placed under control at EU level on the basis of Council Decision 2005/387/JHA on information exchange, risk assessment and control of new psychoactive substances.
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 in the Union within the CND. The Union, who is not a party to the 1961 UN Convention and to the 1971 UN Convention would not vote in the CND.
To this end, the Commission is proposing a position to be adopted, on behalf of the European Union, in the sixtieth session of the CND taking place in Vienna from 13 to 17 March 2017 on the scheduling of substances under the 1961 UN Convention and the 1971 UN Convention.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis for this proposal is Article 83(1) in conjunction with Article 218(9) of the Treaty on the Functioning of the European Union (TFEU).
Article 83(1) TFUE 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.
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 body that has been given specific tasks under the 1961 UN Convention and the 1971 UN Convention.
The CND's scheduling-decisions are "acts having legal effects'' within the meaning of Article 218(9) TFEU. According to the 1961 UN Convention and the 1971 UN Convention, decisions of the CND automatically become binding, unless a party has submitted the decision for review to ECOSOC within the applicable time-limit. 8 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 Framework Decision 2004/757/JHA. Changes to the schedules of the 1961 UN Convention and the 1971 UN Convention have direct repercussions for the scope of application of this EU legal instrument.
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, Framework Decision 2004/757 JHA and Council Decision 2005/387/JHA have ceased to apply to the United Kingdom as from 1 December 2014. 9
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, that Member State 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.
• Subsidiarity
Not applicable.
• Proportionality
The proposal is proportionate and does not go beyond what is necessary to achieve the objectives as it addresses new psychoactive substances that are of concern for the Union.
• Choice of the instrument
The use of a Council Decision is required by Article 218(9) TFEU in order to establish the position to be adopted on the Union's behalf in a body set up by an international agreement.