# C_2023035EN.01003701.xml

| 30.1.2023 | EN | Official Journal of the European Union | C 35/37 |
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30.1.2023

EN

Official Journal of the European Union

C 35/37

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Request for a preliminary ruling from the Apelativen sad Varna (Bulgaria) lodged on 14 November 2022 — Criminal proceedings against TP and OF

(Case C-698/22)

(2023/C 35/45)

Language of the case: Bulgarian

Referring court

Apelativen sad Varna

Criminal proceedings against

TP and OF

Questions referred

| I. | May substances which, although not set out in Annex I to Regulation (EC) No 111/2005 (1) of the European Parliament and of the Council of 22 December 2004, have been identified as being used for the illicit manufacture of narcotic drugs or psychotropic substances be the subject of the criminal offence of illegal trafficking across national borders for the purposes of Article 242(3) of the NK (as material), given that neither national law nor the applicable EU law requires a special import regime in respect of such substances? Article 242(3) of the NK is a blanket provision and refers to other special provisions that explicitly regulate the import of precursors. Is the national provision in Article 242(3) of the NK (whose content is analogous to that of the provision in the second sentence of Article 354a of the NK) compatible in that sense with Article 49 of the Charter of Fundamental Rights of the European Union and Article 7 of the European Convention on Human Rights, given that there is no legal requirement for a registration regime in respect of the import of such materials that could flesh out the blanket provisions under criminal law? |
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I.

May substances which, although not set out in Annex I to Regulation (EC) No 111/2005 (1) of the European Parliament and of the Council of 22 December 2004, have been identified as being used for the illicit manufacture of narcotic drugs or psychotropic substances be the subject of the criminal offence of illegal trafficking across national borders for the purposes of Article 242(3) of the NK (as material), given that neither national law nor the applicable EU law requires a special import regime in respect of such substances? Article 242(3) of the NK is a blanket provision and refers to other special provisions that explicitly regulate the import of precursors. Is the national provision in Article 242(3) of the NK (whose content is analogous to that of the provision in the second sentence of Article 354a of the NK) compatible in that sense with Article 49 of the Charter of Fundamental Rights of the European Union and Article 7 of the European Convention on Human Rights, given that there is no legal requirement for a registration regime in respect of the import of such materials that could flesh out the blanket provisions under criminal law?

| II. | If this question is answered in the affirmative:






  II.1. | What is meant by ‘use for the illicit manufacture of narcotic drugs or psychotropic substances’ for the purposes of Article 2(b) of Regulation (EC) No 111/2005: must it be interpreted as a mere mixing of substances for the creation of narcotic drugs or psychotropic substances or may the meaning also cover the involvement of the substances in chemical reactions for the synthesis of narcotic drugs or psychotropic substances? |
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II.

If this question is answered in the affirmative:

II.1.

What is meant by ‘use for the illicit manufacture of narcotic drugs or psychotropic substances’ for the purposes of Article 2(b) of Regulation (EC) No 111/2005: must it be interpreted as a mere mixing of substances for the creation of narcotic drugs or psychotropic substances or may the meaning also cover the involvement of the substances in chemical reactions for the synthesis of narcotic drugs or psychotropic substances?

| II.2. | The substance APAA was identified as an immediate amphetamine precursor by Commission Delegated Regulation (EU) 2020/1737 (2) of 14 July 2020 amending Regulation (EC) No 273/2004 of the European Parliament and of the Council and Council Regulation (EC) No 111/2005 as regards the inclusion of certain drug precursors in the list of scheduled substances and included in Category 1 of Annex I to Regulation No 273/2004 and in the Annex to Regulation No 111/2005. Prior to its inclusion therein, may APAA be considered a substance/material used for the illicit manufacture of narcotic drugs or psychotropic substances and, consequently, what import regime was it subject to? |
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II.2.

The substance APAA was identified as an immediate amphetamine precursor by Commission Delegated Regulation (EU) 2020/1737 (2) of 14 July 2020 amending Regulation (EC) No 273/2004 of the European Parliament and of the Council and Council Regulation (EC) No 111/2005 as regards the inclusion of certain drug precursors in the list of scheduled substances and included in Category 1 of Annex I to Regulation No 273/2004 and in the Annex to Regulation No 111/2005. Prior to its inclusion therein, may APAA be considered a substance/material used for the illicit manufacture of narcotic drugs or psychotropic substances and, consequently, what import regime was it subject to?

| III. | May activities and conduct relating to the financing, negotiating and organising of the import of substances for the purposes of Article 2(a) of Regulation (EC) No 111/2005 (APAAN and PMK), including via the engagement of other natural and/or legal persons who directly make the customs declaration and draw up the customs documents for the import, be regarded as ‘intermediary activities’, ‘operator’ or ‘importer’ within the meaning of Article 2(e), (f) and (h) of Regulation No 111/2005? |
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III.

May activities and conduct relating to the financing, negotiating and organising of the import of substances for the purposes of Article 2(a) of Regulation (EC) No 111/2005 (APAAN and PMK), including via the engagement of other natural and/or legal persons who directly make the customs declaration and draw up the customs documents for the import, be regarded as ‘intermediary activities’, ‘operator’ or ‘importer’ within the meaning of Article 2(e), (f) and (h) of Regulation No 111/2005?

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(1)  Council Regulation (EC) No 111/2005 of 22 December 2004 laying down rules for the monitoring of trade between the Community and third countries in drug precursors (OJ 2005 L 22, p. 1).

(2)  Commission Delegated Regulation (EU) 2020/1737 of 14 July 2020 amending Regulation (EC) No 273/2004 of the European Parliament and of the Council and Council Regulation (EC) No 111/2005 as regards the inclusion of certain drug precursors in the list of scheduled substances (OJ 2020 L 392, p. 1).

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