EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

Council Decision 2005/387/JHA on the information exchange, risk-assessment and control of new psychoactive substances provides for a three-step procedure that may lead to the submission of a new psychoactive substance to control measures across the Union.

On 4 July 2017, a joint report of the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) and Europol drawn up in accordance with Article 5 of Council Decision 2005/387/JHA was issued. On 15 September 2017, following the request made by the Commission and seven Member States and pursuant to Article 6(1) of the above-mentioned Council Decision, the Council requested an assessment of the risks caused by the use, manufacture and trafficking of the new psychoactive substance methyl 2-{[1-(5-fluoropentyl)-1H-indazole-3-carbonyl]amino}-3,3-dimethylbutanoate (5F-MDMB-PINACA, 5F-ADB) the involvement of organised crime and the possible consequences of control measures introduced on this substance.

The risks of 5F-MDMB-PINACA were assessed by the Scientific Committee of the EMCDDA, acting in compliance with the provisions of Article 6(2), (3) and (4) of the Council Decision. The risk assessment report was submitted to the Commission and to the Council on 14 November 2017. The main results of the risk assessment are the following:

·5F-MDMB-PINACA is a synthetic cannabinoid. It shows similar effects to THC, which is responsible for the major psychoactive effects of cannabis, but with additional life-threatening toxicity. The high potency of 5F-MDMB-PINACA and the large and variable content of the substance in smoking mixtures constitute a high risk of poisoning.

·5F-MDMB-PINACA has been available in the European Union since at least September 2014 and has been detected in 25 Member States. 28 deaths associated with 5F-MDMB-PINACA have been reported by two Member States. In at least 20 deaths 5F-MDMB-PINACA was the cause of death or is likely to have contributed to the death.

Pursuant to Article 8(1) of Council Decision 2005/387/JHA, within six weeks from the date of receipt of the risk assessment report, the Commission shall present to the Council either an initiative to subject the new psychoactive substances to control measures across the Union, or a report explaining its views on why such an initiative is not deemed necessary. According to the judgment of the Court of Justice of 16 April 2015 in Joined Cases C-317/13 and C-679/13, the European Parliament must be consulted before an act based on Article 8(1) of Council Decision 2005/387/JHA is adopted.

Based on the findings of the risk assessment report, the Commission considers that there are grounds for subjecting this substance to control measures across the Union. According to the risk assessment report, the acute toxicity of 5F-MDMB-PINACA is such that it can cause severe harms to the health of individuals.

2. OBJECTIVE OF THE PROPOSAL

The objective of this proposal for a Council Implementing Decision is to call upon the Member States to subject 5F-MDMB-PINACA to control measures and criminal penalties as provided under their legislation by virtue of their obligations under the 1971 United Nations Convention on Psychotropic Substances.

2017/0346 (NLE)

Proposal for a

COUNCIL IMPLEMENTING DECISION

on subjecting the new psychoactive substance methyl 2-{[1-(5-fluoropentyl)-1H-indazole-3-carbonyl]amino}-3,3-dimethylbutanoate (5F-MDMB-PINACA) to control measures

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Decision 2005/387/JHA of 10 May 2005 on information exchange, risk-assessment and control of new psychoactive substances, and in particular Article 8(3) thereof,

Having regard to the proposal from the European Commission,