Case C‑369/13

N.F. Gielen and Others

(Request for a preliminary ruling from the Rechtbank Oost-Brabant ’s-Hertogenbosch)

‛Reference for a preliminary ruling — Drug precursors — Monitoring of trade between the Member States — Regulation (EC) No 273/2004 — Monitoring of trade between the European Union and third countries — Regulation (EC) No 111/2005 — Concept of ‘scheduled substance’ — Substance ‘alpha-phenylacetoacetonitrile’ (APAAN) — Scheduled substance ‘1-phenyl-2-propanone’ (BMK)’

Summary — Judgment of the Court (Fifth Chamber), 12 February 2015

Approximation of laws — Monitoring of trade in drug precursors — Regulations No 273/2004 and No 111/2005 — Scope — Scheduled substances — Concept — Substances set out in the list in the Annexes to the regulations — Exhaustive nature

(European Parliament and Council Regulation No 273/2004, Art. 2(a) and Annex I; Council Regulation No 111/2005, Art. 2(a) and Annex)

Article 2(a) of Regulation No 273/2004 on drug precursors and Article 2(a) of Regulation No 111/2005 laying down rules for the monitoring of trade between the Community and third countries in drug precursors must be interpreted as meaning that the classification of ‘scheduled substance’, within the meaning of those provisions, does not apply to a substance, such as alpha-phenylacetoacetonitrile, which is not referred to in Annex I to Regulation No 273/2004 or the Annex to Regulation No 111/2005, even if it may, by readily applicable or economically viable means, within the meaning of those regulations, easily be converted into a substance referred to in those annexes. The list of substances in the Annexes to those regulations is exhaustive and, consequently, only the substances which are expressly included on the list may be classified as scheduled substances for the purposes of those regulations, to the exclusion of any substance which is equivalent to a scheduled substance.

Furthermore, although it is true that the objective of Regulations No 273/2004 and No 111/2005 is to combat the diversion of substances commonly used in the illicit manufacture of narcotic drugs and psychotropic substances by establishing a system to monitor trade in those substances together with effective, proportionate and dissuasive penalties, the fact remains that the penalising objective of those regulations cannot have any effect on the definition of the concept of scheduled substance or on any classification of the substance concerned as a scheduled substance on the basis of that definition.

(see paras 27, 36, 38, operative part)

Case C‑369/13

N.F. Gielen and Others

(Request for a preliminary ruling from the Rechtbank Oost-Brabant ’s-Hertogenbosch)

‛Reference for a preliminary ruling — Drug precursors — Monitoring of trade between the Member States — Regulation (EC) No 273/2004 — Monitoring of trade between the European Union and third countries — Regulation (EC) No 111/2005 — Concept of ‘scheduled substance’ — Substance ‘alpha-phenylacetoacetonitrile’ (APAAN) — Scheduled substance ‘1-phenyl-2-propanone’ (BMK)’

Summary — Judgment of the Court (Fifth Chamber), 12 February 2015

Approximation of laws — Monitoring of trade in drug precursors — Regulations No 273/2004 and No 111/2005 — Scope — Scheduled substances — Concept — Substances set out in the list in the Annexes to the regulations — Exhaustive nature

(European Parliament and Council Regulation No 273/2004, Art. 2(a) and Annex I; Council Regulation No 111/2005, Art. 2(a) and Annex)

Article 2(a) of Regulation No 273/2004 on drug precursors and Article 2(a) of Regulation No 111/2005 laying down rules for the monitoring of trade between the Community and third countries in drug precursors must be interpreted as meaning that the classification of ‘scheduled substance’, within the meaning of those provisions, does not apply to a substance, such as alpha-phenylacetoacetonitrile, which is not referred to in Annex I to Regulation No 273/2004 or the Annex to Regulation No 111/2005, even if it may, by readily applicable or economically viable means, within the meaning of those regulations, easily be converted into a substance referred to in those annexes. The list of substances in the Annexes to those regulations is exhaustive and, consequently, only the substances which are expressly included on the list may be classified as scheduled substances for the purposes of those regulations, to the exclusion of any substance which is equivalent to a scheduled substance.

Furthermore, although it is true that the objective of Regulations No 273/2004 and No 111/2005 is to combat the diversion of substances commonly used in the illicit manufacture of narcotic drugs and psychotropic substances by establishing a system to monitor trade in those substances together with effective, proportionate and dissuasive penalties, the fact remains that the penalising objective of those regulations cannot have any effect on the definition of the concept of scheduled substance or on any classification of the substance concerned as a scheduled substance on the basis of that definition.

(see paras 27, 36, 38, operative part)