Opinion of the Economic and Social Committee on the 'Proposal for a European Parliament and Council Directive amending Council Directive 92/109/EEC relating to the manufacturing and placing on the market of certain substances used in the illicit manufacture of narcotic drugs and psychotropic substances'
10. 7. 98 EN Official Journal of the European Communities C 214/11 Opinion of the Economic and Social Committee on the ‘Proposal for a European Parliament and Council Directive amending Council Directive 92/109/EEC relating to the manufacturing and placing on the market of certain substances used in the illicit manufacture of narcotic drugs and psychotropic substances’ (98/C 214/04) On 10 February 1998 the Council decided to consult the Economic and Social Committee, under Article 100a of the Treaty establishing the European Community, on the above-mentioned proposal. The Section for Protection of the Environment, Public Health and Consumer Affairs, which was responsible for preparing the Committee’s work on the subject, adopted its opinion on 31 March 1998. The rapporteur, working without a study group, was Mr Fuchs. At its 354th plenary session held on 29 and 30 April 1998 (meeting of 29 April), the Economic and Social Committee adopted the following opinion by 117 votes in favour with three abstentions. 1. Introduction 1. 1. In the global drive to combat drug abuse more effectively, measures designed to prevent the illicit (illegal) manufacture of narcotics (1) and psychotropic substances (2) are critically important. A key factor here is that the (illicit) production of these internationally controlled semi-synthetic (3) or fully synthetic (4) sub- stances (drugs), and, where applicable, of other such substances controlled at national level, is impossible without the (improper) use of chemicals. 1. 2. Criminals and criminal organizations employ a variety of tactics to divert the specific chemicals needed for the manufacture of drugs (end-products) from the sometimes highly diversified range of uses to which they are legally put. In practical terms, the global problem of pre- 1. 3. venting the diversion of chemicals for drugs manufacture was tackled under the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (5) — particularly Article 12 thereof. Pro- visions include strict monitoring and control obligations, (1) 1961 Single Convention on Narcotic Drugs (UN, Treaty Series, vol. 520, No 7515). (2) The term ‘psychotropic substances’ subsumes all substan- ces which have an effect on the psyche. (Source: Goodman and Gilman: The Pharmacological Basis of Therapeutics, 8th edition, Volume I, p. 383) — For list of psychotropic substances see: 1971 Convention on Psychotropic Substan- ces (UN Treaty Series, vol. 1019, No 14956). (3) e. g. heroin, cocaine. (4) e. g. meth-/amphetamine, LSD, methaqualone, tryptamine, phencyclidine, fentanyle, phetidine. a) forthe 22 precursors (6) listed in the annex to the convention and used improperly in the illegal manufac- ture of semi-synthetic and fully synthetic drugs, and b) with regard to economic operators involved in trade in these precursors. The arrangements cover, for example, registration, licensing and export permits, as well as the need for cooperation among the signatory parties; they also include measures to encourage economic operators to cooperate with national authorities. 1. 4. The provisions of Article 12 of the 1988 UN Convention were then transposed into Community legislation in order to cover intra-Community traffic (7) in these 22 precursors. The relevant Community instru- ment is Council Directive 92/109/EEC of 14 December 1992 on the manufacture and the placing on the market of certain substances used in the illicit manufacture of narcotic drugs and psychotropic substances (8). 1. 5. In December 1996, the Dublin European Council clearly stressed that the indigenous production of, and illegal trade in, synthetic drugs in the Member States had to be stopped. It also noted that the problem had now assumed global proportions, as evidenced by the increasing involvement of the relevant international organizations within the ambit of the United Nations. (6) The word ‘precursor’ is used as the collective term for all 22 of the substances listed in the annexes to the 1988 UN convention and in Council Directive 92/109/EEC which are frequently improperly used in the illegal manufacture of narcotics and psychotropic substances. This is in line with general practice although the term is not technically correct for all the substances mentioned in the annexes to this convention and in the directive. In this opinion, the term ‘chemicals’ is used as distinct from ‘precursors’. The ‘chemicals’ do not feature in the annexes to the 1988 UN convention or in Council Directive 92/109/EEC. (7) With regard to trade with third countries, Article 12 of the 1988 UN Convention was transposed into Community legislation by Regulation EEC No 3677/90 (OJ L 357, 20. 12. 1990), and subsequent amendments. (5) United Nations publication, Sales No E. 94. XI. 5. (8) OJ L 370, 19. 12. 1992. C 214/12 EN Official Journal of the European Communities 10. 7. 98 1. 6. In the wake of the Dublin European Council, the Commission published a Communication to the Council and the European Parliament on the control of new synthetic drugs (1). This communication (2) analyses the existing raft of measures to combat the problem at Community and international level. It also clarifies some of the different national approaches to the issue, and the components of a Community-level examines response. 1. 7. On precursors and chemicals used improperly in the manufacture of these new synthetic drugs, the above-mentioned Commission communication has this to say: ‘Compared with other types of drugs and psycho- tropic substances, the emergence and development of new synthetic drugs (NSDs) poses a special problem because their chemical structure changes frequently and because many types of precursors (themselves very variable) can be used for making them. Since almost all of these chemical substances are used for legal purposes, action is needed to prevent them from being diverted to the illicit manufacture of synthetic drugs. This could be done by drawing up suitable monitoring measures that would reconcile the legitimate interests of business with the imperatives of action to combat synthetic drugs. ’ 1. 8. Action is therefore needed to combat a global trend which in some cases circumvents the stringent official monitoring and control measures for the 22 pre- cursors. Different chemicals are being substituted for the 22 precursors and used improperly to manufacture specific or other types of drugs (end-products). In the Community, this involves in particular the production of fully synthetic drugs. Practicable back-up measures are essential to maintain the efficiency of the stringent control measures imposed on the 22 precursors. 1. 9. At Community level, the main action against the misuse of chemical precursors proposed in the communication was to amend Council Directive 92/109/EEC (see 1. 4), in order to improve on existing monitoring mechanisms and to extend the type and number of substances subject to voluntary monitoring. (1) COM(97) 249 final, 23. 5. 1997. (2) The term ‘new synthetic drugs’ now comprises in particular amphetamine and its derivatives, which are often traded under the name Ecstasy. The collective term ‘amphetamine- type stimulants’ (ATS) is also used in this case. The term ‘designer drug’ means substances, particularly ATS, whose molecular structure has been changed for optimum effect compared with the original substances — e. g. amphetami- ne. They are, however, manufactured with the aim of circumventing narcotics legislation. 1. 10. Against the backdrop of the phenomenon of fully synthetic drugs, the explanatory memorandum (3) of the current Commission proposal to amend Council Directive 92/109/EEC looks at the problems arising from the wide variety of possible substitutes for the precursors covered under existing Community arrange- ments. It notes correctly that the application of restrictive control measures similar to those imposed on the 22 scheduled precursors, which are effective and which take adequate account of the needs of legal trade, would be unrealistic and counterproductive if applied to other chemicals. This would also hamper the extremely productive cooperation between economic operators and the Community authorities. 1. 11. In order to reconcile fair trading requirements with the need for a uniform Community-level approach to this problem, the following action should be taken: — a monitoring scheme should be set up for non- scheduled chemicals under which, in contrast to the arrangements for scheduled precursors, operators would notify the authorities of suspect deliveries exclusively on a voluntary basis; — grounds for suspicion should also be accepted as a reason for timely action by the authorities responsible under Directive 92/109/EEC to prevent the diversion of such chemicals. This approach also takes appropriate account 1. 11. 1. of the findings which have already led to the establish- ment of national voluntary schemes for non-scheduled chemicals, as an adjunct to existing Community arrange- ments or national legislation based on them. 1. 12. In line with this experience and in order to secure a uniform approach within the Community, the committee referred to in Article 10 of Directive 92/109/EEC should be instructed to draw up a list of non-scheduled chemicals known to be used frequently in the illicit manufacture of narcotics and psychotropic substances. From this comprehensive list, the committee mentioned above will select those chemicals to be subjected to Community-wide arrangements for volun- tary notification of suspicious circumstances to the authorities. Essentially, this amounts to the drawing-up of a second, albeit much scaled-down list (4). These lists do not impose any additional burdensome obligations on economic operators, such as permits or licences. (3) Cf. paragraph 4 of COM(98) 22 final. the explanatory memorandum, (4) The rest of this opinion assumes that there will, in principle, be two lists (one overall list and a scaled-down list to be applied Community-wide). 10. 7. 98 EN Official Journal of the European Communities C 214/13 They are merely designed as a guide to assist operators with voluntary notification. UN convention and, by the same token, the possible expansion of Annex I to Council Directive 92/109/EEC. 2. General comments 2. 1. The Economic and Social Committee welcomes amending Directive the Commission 92/109/EEC, which seeks to extend a number of its provisions to non-scheduled chemicals, as a step in the right direction. proposal 2. 1. 1. importance of consistent drug prevention (1). The Committee has repeatedly stressed the 2. 2. The Committee endorses the proposed drawing- up of two lists to include other chemicals which, in addition to, or instead of, the precursors specified in Annex I of Directive 92/109/EEC, are known to be improperly used in the manufacture of narcotics and psychotropic substances (cf. points 2. 2. 1-2. 2. 6). It does so for the following reasons: The arrangements do not 2. 2. 1. envisage any additional, burdensome administrative control measures for the chemicals set out in these lists; economic operators, for example, are not subjected to additional registration, permit or licensing obligations. 2. 2. 2. The lists also fulfil an important function as requisite standard guidelines for the Community’s economic operators in respect of voluntary notification of the authorities. They raise operators’ awareness of specific chemicals which may perhaps be improperly used in the illegal production of narcotics and, in particular, of fully synthetic drugs. 2. 2. 3. The proposed arrangements for drawing up the restricted list make for the quick and flexible inclusion of new chemicals with proven involvement in improper use, and also allow scaling-down in line with identifiable trends and prevailing conditions in drug abuse (manufacture, trafficking, consumption, health risks). The committee set up under Article 10 of 2. 2. 4. Directive 92/109/EEC is composed of representatives from all Member States. Thanks to that committee, and to Member States’ reporting commitments under Article 9 of the Directive, pertinent information coming to light either nationally or within the appropriate EU level body is directly available to help tackle the task in hand. Committee members are recruited both from health and licensing authorities and from the surveillance and law enforcement agencies (customs, police, econ- omic control services). This also ensures the transfer of information across the various ‘pillars’ (2). 2. 2. 5. The inclusion of chemicals in the supplemen- tary list mentioned above does not prejudice any subsequent incorporation into the annexes of the 1988 (1) OJ C 159, 17. 6. 1991; OJ C 223, 31. 8. 1992; OJ C 110, 2. 5. 1995. (2) First and third pillar. 2. 2. 6. There is no provision for penalties to be imposed by Member States on economic operators who fail to meet voluntary reporting commitments. Essentially, such a provision would be detrimental to the burgeoning trust and cooperation which has been established between operators and the authorities and which the amendment is seeking to widen. The Committee agrees that the lists to be drawn 2. 3. up are not suitable for widespread publication. This is to ensure that, as far as possible, criminals and criminal organizations are denied access to information on the chemicals which are subject to voluntary surveillance. Any escalation of possible substitutes for the scheduled precursors — which the proposed, extended measures are inter alia designed to combat — is to be avoided. Since, for practical reasons, the number of 2. 3. 1. chemicals to be placed under voluntary surveillance must be very limited, certain criteria have to be applied when compiling the list. These criteria should not, however, be included in the directive itself as this would entail their publication. The ESC presumes that, when selecting chemicals to be placed under voluntary surveil- lance across the Community, the committee for precur- sors referred to in Directive 92/109/EEC will apply clear criteria in order to ensure flexibility when incorporating chemicals into the list, while limiting the number of chemicals involved. The ESC would stress that acceptance of such 2. 4. preventive measures crucially depends on general social reprobation of drug-taking. 3. Specific comments 3. 1. Recitals, second clause beginning with ‘whereas’: The wording used is ‘Whereas Appendix I of the Directive contains a list of 22 substances commonly used in the illicit manufacture of drugs. ’ The Committee would point out that, 3. 1. 1. in accordance with the terms of the directive, the word ‘drugs’ should be replaced by ‘narcotics and psychotropic substances’. Article 1, paragraph 3 (addition of a paragraph 3. 2. to Article 6): Consideration should be given to the case for amending the present wording of this article, i. e. ‘. the competent authorities of each Member State may prohibit transactions of non-scheduled substances if there are reasonable grounds for suspecting that these substances are intended for the illicit manufacture of narcotic drugs or psychotropic substances’ to ‘. where there is cause to assume that the substances are intend- ed. ’ in order to take better account of the issue of official intervention. C 214/14 EN Official Journal of the European Communities 10. 7. 98 3. 2. 1. The current Commission wording is in line with the essentially preventive character of Directive 92/109/EEC under which the diversion of precursors suitable for the illicit manufacture of narcotics and psychotropic substances is to be prevented. Where, under the proposed Article 5a, ‘operators. notify the competent authorities. of. unusual orders. which suggest that such substances may be diverted for the illicit manufacture of narcotic drugs or psychotropic substances,’ or where, in certain circumstances, the authorities possibly become aware of such potential diversions from their own investigations or from other sources, it may be deemed necessary to take the action stipulated in the proposed new second paragraph of Article 6. This is a discretionary provision designed to prevent possible diversions of these substances for illicit drugs manufacture. 3. 2. 2. Directive 92/109/EEC seeks to provide opti- mum security when dealing with the 22 precursors listed in its Annex I and, under the terms of the proposed amendment, other chemicals which could be improperly used for illicit drugs manufacture; the aim is to ensure that these substances can legally remain within the commercial cycle. For this reason, the authorities should be able to take action at an early stage where ‘. there is cause to assume that the substances are intended for the illicit manufacture of narcotic drugs or psychotropic substances. ’ 3. 2. 3. The measures to be applied to this end should guarantee that these substances can be used legally. This means that, in specific cases, action has to be taken before the stage of ‘. reasonable grounds. ’ so as to allow further checking of possible legal use. This would, moreover, be in line with the provision set out in the proposed new Article 5a whereby operators are requested to notify the authorities, on a voluntary basis, of any circumstances ‘. which suggest that such substances may be diverted for the illicit manufacture of drugs or psychotropic substances. ’ Article 1, paragraph 4 (addition of a new subpara- 3. 3. graph to Article 10, paragraph 1). The wording here is ‘. used frequently in illicit manufacture’. 3. 3. 1. The ESC would point out that, in the interests of clarity, this should be rephrased as follows ‘. used frequently in the illicit manufacture of narcotics or psychotropic substances. ’ Brussels, 29 April 1998. The President of the Economic and Social Committee Tom JENKINS