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
Date: 1998-01-23
Institutions: European Commission
Subjects: chemical product, drug surveillance, marketing, narcotic, psychotropic substance

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels,  23.01.1998 
COM(1998)22fmal 

98/0016 (ACC) 
98/0017 (COD) 

Proposal for a 
COUNC1L REGULATION  (EC) 
amending Regulation (EEC) No 3677/90 laying down measures to be taken to  discourage 
the diversion of certain substances to the illicit manufacture of narcotic drugs 
and psychotropic  substances 

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 

(presented  by the Commission) 

EXPLANATORY MEMORANDUM 

1. 
The growing development of synthetic drugs has become an acute problem in the 
European Community and the rest of the world.  Scientists  and the media have reported 
on the  dangers involving  the consumption of these  drugs.  Against  this  background,  the 
social  perception  of the  so-called  "designer  drugs"  has  not  been  commensurate  to  their 
risks. 

2. 
At international  and Community level, there has already been  an  important  effort 
of  information  awareness  as  a flrst  step  before  launching  major  initiatives  to  tackle  the 
problem.  Under  the  aegis  of  the  United  Nations,  there  have  been  the  conferences  of 
Vienna  and  Shanghai  in  1996,  along  with  that  held  in  Vienna  in  July  1997  on 
Amphetamine-type  stimulants  and  their  precursors  in  preparation  for  the  UN  Special 
Assembly  on  drugs  (UNGASS).  At  Community  level,  the  Dublin  European  Council 
the 
identified 
Communication from  the  Commission to the Council and  the European  Parliament  on 
the  control  on  new synthetic  drugs,  COM (97) 249 final,  of  23.5.1997,  committed  the 
Commission  to  present  proposals  on  chemical  precursors  of  synthetic  drugs  by  early 
Autumm.  These  proposals  imply  an  amendment  to  the  current  Community  legal 
instruments dealing with the control of precursors. 

issue  of  synthetic  drugs  as  needing  priority  attention,  and 

the 

At present,  the diversion  of precursors  into the illicit manufacture  of narcotics  or 
3. 
psychotropic  substances is tackled by Council Directive 92/109/EEC as to  the placing  of 
precursors  on  the  EC  market,  while  Council  Regulation  3677/90  deals  with  the  trade 
between  the  Community  and third  countries.  In line with  the UN  Vienna  Convention  of 
1988,  the  placing  on  the  Community  market  or  the  external  trade  in  22  substances  are 
submitted  to  a  stringent  system  of  control;  on  a  general  basis,  such  a  system  requests 
operators  to  register,  and  consignments  to  be  licensed;  more  specifically,  individual 
export  authorizations  are  compulsory  for  a  given  number  of  substances  (Category  1), 
and whenever  other  precursors (Category 2 and  3) are exported  to  "sensitive  countries", 
where  it is suspected  that  diversion  of precursors  into the illicit  manufacture  of  narcotic 
drugs  or  psychotropic  substances  takes  place.  The  above  system  has  proved  to  be 
effective  for  as to the 22 scheduled  precursors since any restrictive  system can only work 
if it is targeted  and duly takes into account the needs of licit trade. 

No  agreement  exists  at  Community  or  international  level  about  the  specific 
4. 
precursors  to  be  targeted  to  prevent  their  diversion  into  the  illicit  manufacture  of 
synthetic  drugs,  it  is,  however,  a  general  assumption  that  there  is  a  large  number  of 
precursors  for  synthetic  drugs  on  the  market.  Furthermore,  these  may  be  easily 
substituted,  mixed  or  swapped  for  others  while  yielding  similar  effects;  this  makes  it 
unrealistic to  establish  a control  mechanism  similar to that  imposed  on the  22  scheduled 
substances  since  additional  constraints  on  more  substances  could  only  result  in 
weakening  the  global  efFiciency  of  the  system  while  hampering  the  very  productive  co-
operation between operators  and the authorities  in the Community.  In order to  reconcile 
the  needs  of  fair  trade  and  the  imperatives  of  a  coherent  action  at  Community  level  to 
properly  address the  problem,  the  amendments to  both  the Directive  and the  Regulation 
aim  at  the  establishment  of  a  surveillance  mechanism  whereby  close  co-operation  is 
sought  between  authorities  and operators; this co-operation  entails a voluntary  system  of 
reporting  from  the  industry  to  the  authorities  of  suspected  consignments  of  non-
scheduled  substances (new Article 3a in the Regulation  and 5a in the Directive). 

2 

5. 
A second paragraph is added to Article 6. Under the new wording, the powers of 
the  competent  authorities  concerning  the  possibility  of  intervening  on  suspicious 
shipments, as provided  for  scheduled  substances under the existing wording  of Directive 
92/109/EEC  and  Regulation  3677/90,  shall  also  apply  to  non-scheduled  substances, 
provided there are reasonable grounds for suspecting their diversion. 

A  new  sub-paragraph  is  added  in  Article  10,  paragraph  1.  This  new  sub-
6. 
paragraph  aims at  ensuring  a coherent  approach  across the  Community  to  benefit  from 
the  experiences  of  national  voluntary  monitoring  systems  on  precursors  for  synthetic 
drugs.  Accordingly,  the  Precursor's  Committee  under  Directive  92/109/EEC  and 
Regulation  3677/90  shall  be  responsible  for  drawing  up  a  list  of  those  non-scheduled 
substances which are known to be used frequently in illicit manufacture;  out of this broad 
list,  the  Committee  shall establish  a "core Iist" of  substances  which  should  be  submitted 
to  monitoring and,  eventually, notification  under  Article 3 a in all Member  states. As the 
Committee  is  an  expert  body,  it  shall  be  the  appropriate  forum  to  discuss  on  current 
developments  on  precursors  for  new  synthetic  drugs,  and  up-date  the  relevant  lists  or 
knowledge of diversion mechanisms relating to drugs precursors. 

3 

COUNCIL REGULATION (EC) No ..../98 
of....l998 

9 S ) o O A G C ^ C c^ 

amending Regulation (EEC) No 3677/90 laying down measures to be taken to 
discourage the diversion of certain substances to the illicit manufacture  of narcotic drugs 
and psychotropic  substances 

THE COUNCIL  OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Article  113 thereof, 

Having regard to the proposal  from the  Commission1, 

Whereas  Regulation  (EEC)  No  3677/902  of  13  December  1990  imposes  stringent 
controls  on the  export,  import  and  transit  of 22  substances  which  may  be  diverted  into 
the illicit manufacture  of narcotic drugs or psychotropic  substances; 

Whereas a significant  number of other  substances, many of them traded  legally  in large 
quantities,  have  been  identified  as  precursors  to  the  illicit  manufacture  of  synthetic 
designer drugs; 

Whereas  the  extension  of the  existing  control  mechanisms  under  the  Regulation  to  the 
non-scheduled  substances  would  considerably  entail  additional  obstacles  to  the  licit 
trade, thus putting at risk the efficiency  of the monitoring system in place; 

Whereas  it is therefore  necessary  to establish at Community  level a voluntary  system  of 
monitoring  those  non-scheduled  substances  which  would  be  based  on the  co-operation 
between  the  authorities  and  the  industry,  so  that  operators  notify  authorities  in  the 
Member States of suspected transactions in the non-scheduled  substances. 

Whereas  it  is  necessary  to  give  the  possibility  to  the  competent  authorities  of  taking 
appropriate  action  when  it  appears  that  non-scheduled  substances  could  be  diverted  for 
the illicit manufacture  of drugs; 

Whereas  in order to ensure a coherent monitoring  system  on chemical precursors  within 
the  whole  territory  of  the  Community  it  is  necessary  to  share  experience  and 
information  in  the  Committee  established  by  Article  10  of  Regulation  (FEC)  No 
3677/90; 

Wliereas, in particular, this Committec  will have to establish  and update the list of non-
scheduled  substances  to be monitored  under this Regulation  in all the Member  States of 
the Community 

HAS ADOPTED THIS  REGULATION: 

I 
2  OJ No  L 357, 20.12.1990, p.l.  Regulation  as last amended by Regulation  (F.EC) No 900/92 (OJ 
L96,  10.4.1992, p.l). 

U 

Article 1 

Council ReguJatiun CEEC) No 3677/90 is hereby modified  as follows: 

1. 

The title of Article 3 is amendedto read as follows: 

Cooperation  regarding scheduled  substances 

2. 

After  Article 3, new Article 3a is inserted  as follows: 

Article 3 a 

Cooperation regarding non-scheduled  substances 

Member  States  shall  take  appropriate  measures  to  establish  close  cooperation  between 
the  competent  authorities  and  operators,  so  that  operators,  on  a voluntary  basis,  notify 
the competent  authorities  immediately  of any circumstances,  such  as unusual  orders  and 
transactions  involving  any non-scheduled  substances, which suggest that  such  substances 
intended  for  import,  export  or  transit  may  be  diverted  for  the  illicit  manufacture  of 
narcotic drugs or psychotropic substances. 

3 

In Article 6, the following  is inserted  as second  sub-paragraph in paragraph 2: 

With  a vievv of pursuing the objectives  of this regulation  as described  in Article  1(1), the 
provisions  of  the  first  sub-paragraph  apply  mutatis  mutandis  as  regards  any  other 
chemical  substances  if there  are  reasonable grounds  for  suspecting  that  these  substances 
are intended  for  the illicit manufacture  of narcotic drugs or psychotropic  substances. 

Article  10 is modified  by the  insertion  of the  following  new  third  sub-paragraph 

4. 
in paragraph  1: 

In particular,  with  a view to  facilitating  cooperation  under  Article  3 a and  to  ensuring a 
coherent  approach  throughout  the  Community,  the  Committee  shall  establish  and 
regularly update a list of non-scheduled  substances which, according to the experience of 
competent  authorities in the Member  States or available at international  level,  are  known 
to be used frequently  in illicit manufacture.  It shall also establish for which  non-scheduled 
substances  in  this  list  Article  3  a  shall  apply  in  all  Member  States.  More  generally, 
information  shall be exchanged  within the Committee  on the current  situation  as  regards 
the use of new  substances  or new diversion methods, in order to facilitate  any adaptation 
of the relevant  Community provisions that may appear necessary. 

-i 

Article 2 

This Regulation  enters into force  on the 20th day following  its publication  in the  Official 
Journal of the European  Communities. 

This  Regulation  shall  be  binding  in  its  entirety  and  directly  applicable  in  all  Member 
States. 

Done at Brussels, 

For the Council 

The President 

£• 

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 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard  to the Treaty establishing the European  Community,  and in particular  Article 
lOOAthereof, 

Having regard to the proposal from the Commission1 

Having regard to the Opinion of the Economic and Social Committee2 

Acting in accordance with the procedure referred  to in Article  189B of the Treaty. 

Whereas  Council  Directive  92/109/EEC  of  14 December  1992  imposes  stringent  controls 
on the manufacture  and the placing  on the market  of 22  substances  which  may be  diverted 
into the illicit manufacture  of narcotic drugs or psychotropic substances (\ 

Whereas  Annex  I  of  the  Directive  contains  a  list  of  22  substances  commonly  used  in  the 
illicit manufacture  of drugs, 

Whereas  a  significant  number  of  other  substances,  many  of  them  traded  legally  in  large 
quantities,  have been identified  as precursors to the illicit  manufacture  of  synthetic  designer 
drugs, 

Whereas  to  subject  these  substances  to  the  same  strict  controls  as  those  listed  in  Annex  I 
would  present  an  unnecessary  obstacle  to  trade  involving  licences  to  operate  and 
documentation  of transactions; whereas  it is therefore  necessary  to  establish  a more  flexible 
mechanism  at  Community  level  whereby  the  competent  authorities  in  the  Member  States 
can be notified  of suspicious transactions in these substances and take appropriate action. 

3O J N o L 3 7 0.  19.12.1992. p.76. 

* 

11AVE ADOPTED  THIS  DIRECTIVE 

Article 1 

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 is hereby modified  as follows: 

1. 

The title of Article 5 is amended  to read as follows: 

Cooperation  regarding  scheduled  substances 

2. 

After  Article  5, new Article  5a is inserted as follows: 

Article 5a 

Cooperation  regarding  non-scheduled  substances 

Member  States  shall  take  appropriate  measures  to  establish  close  cooperation  between  the 
competent  authorities  and  operators,  so  that  operators,  on  a  voluntary  basis,  notify  the 
competent  authorities  immediately  of  any  circumstances,  such  as  unusual  orders  and 
transactions  involving  any  non-scheduled  substances,  which  suggest  that  such  substances 
may be diverted  for the illicit manufacture  of narcotic drugs or psychotropic  substances. 

3. 

In Article 6, the following  paragraph  is added: 

2  With a view lo pursuing the objectives  of tliis Directive as described  in Article  1(1). 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. 

4 

In Article  10, paragraph  1, the following  sub-paragraph  is added: 

In  particular,  with  a  view  to  facilitating  cooperation  under  Article  5a  and  to  ensuring  a 
coherent  approach  throughout  the  Community,  the  Committe  shall  establish  and  regularly 
update  a list  of  non-scheduled  substances  which.  according  to  the  experience  of  competent 
authorities  in  the  Member  States  or  available  at  international  level,  are  known  to  be  used 
frequently  in illicit manufacture.  It  shall also establish  for  which non-scheduled  substances in 
this  list  Article  5a  shall  apply  in  all  Member  States.  More  generally,  information  shall  be 
exchanged  within  the  Committee  on  the  current  situation  as  regards  the  use  of  new 
substances  or  new  diversion  methods,  in  order  to  facilitate  any  adaptation  of  the  relevant 
Community  provisions that  may appear  necessary. 

Article 2 

1. 
Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  before  30  June  1999.  They  shall 
forthwith  inform  the  Commission  thereof  They  shall  apply  these  provisions  as  from  1  July 
1999. 

% 

When  Member  States  adopt  these measures, they shall  contain  a reference  to  this  Directive 
or  shall  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official  publication. 
The methods of making such a reference  shall be determined by the Member States. 

This Directive  is addressed  to the Member  States. 

Article 3 

Done at  Brussels, 

3 

ISSN 0254-1475 

COM(98) 22 fmal 

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