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'
Date: 1998-04-29
Institutions: European Economic and Social Committee
Subjects: chemical product, drug surveillance, marketing, narcotic, psychotropic substance

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.

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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).

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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.

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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