Proposal for a Council Decision on the signature and conclusion of the Agreement between the European Community and the Government of the People's Republic of China on drug precursors and substances frequently used in the illicit manufacture of narcotic drugs or psychotropic substances
Date: 2008-07-08
Institutions: European Commission
Subjects: China, disclosure of information, drug traffic, export monitoring, international agreement, psychotropic substance, signature of an agreement, surveillance concerning imports

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 8.7.2008 
COM(2008) 437 final 

2008/0134 (ACC) 

Proposal for a 

COUNCIL DECISION 

on the signature and conclusion of the Agreement between the European Community 
and the Government of the People's Republic of China on drug precursors and 
substances frequently used in the illicit manufacture of narcotic drugs or psychotropic 
substances 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

Grounds for and objectives of the proposal 

By its decision of 27 June 2006, the Council authorised the Commission to negotiate 
with  the  Government  of  the  People's  Republic  of  China  an  Agreement  on  drug 
precursors and substances frequently used in the illicit manufacture of narcotic drugs 
or psychotropic substances, and adopted the necessary negotiating directives. 

There have been several exchanges of proposals with the Government of the People's 
Republic  of  China.  Following  the  negotiations,  the  text  of  the  Agreement  was 
accepted on 13 March 2008. The Agreement is now being presented to the Council to 
be signed and concluded. 

The  Commission  considers  that  the  text  is  in  accordance  with  the  negotiating 
directives adopted by the Council on 27 June 2006. 

In order to enable the Agreement on drug precursors and substances frequently used 
in the illicit manufacture of narcotic drugs or psychotropic substances to be signed, 
the  Commission  proposes  that  the  Council  approve  the  attached  proposal  for  a 
decision on the signing and conclusion of the Agreement 

1.2. 

General context 

The  Community  continues  to  be  reported  as  a  world's  major  source  of  synthetic 
drugs,  e.  g.  amphetamine  and  MDMA  (commonly  referred  to  as  ecstasy).  The 
synthetic drug precursors required to produce those drugs are not easily available in 
the Community and must be sourced outside. China is the world's major supplier for 
these  synthetic  drugs  precurors.  The  proposed  measure  will  help  to  prevent  the 
diversion of these substances from the legal trade and their misuse in the illicit drug 
manufacture in the Community. 

1.3. 

Existing provisions in the area of the proposal 

This  proposal  builds  upon  existing  Community  provisions  aimed  at  monitoring  the 
legal trade in drug precursors preventing their diversion from the legal trade for the 
misuse in the illicit drug manufacture. 

The rules for the monitoring of trade in drug precursors are laid down in Regulation 
(EC) No 273/2004 of the European Parliament and of the Council on drug precursors 
and Council Regulation (EC) No 111/2005 laying down rules for the monitoring of 
trade  between  the  Community  and  third  countries  and  and  Commission  Regulation 
(EC)  No  1277/2005  laying  down  rules  implementing  rules  for  Regulation  (EC)  No 
273/2004 of the European Parliament and of the Council on drug precursors and for 
Council Regulation (EC) No 111/2005 laying down rules for the monitoring of trade 
between the Commuity and third countries on drug precursors. 

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1.4. 

Consistency with the other policies and objectives of the Union 

The proposal is consistent with the EU Action Plan on Drugs (2005 - 2008) and the 
overall EU Drugs strategy. 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

2.1. 

Consultation of interested parties 

Not relevant 

2.2. 

Collection and use of expertise 

There was no need for external expertise. 

2.3. 

Impact assessment 

The main aim of the proposed measure is to increase the ability to prevent diversion 
of drug precursors from the legal trade and to subsequently prevent their misuse in 
the illicit drug manufacture. 

The  proposed  increased  monitoring  of  the  legal  trade  through  existing  mecanisms 
and  tools  are  expected  to  reduce  the  illicit  manufacture  of  synthetic  drugs  in  the 
Community. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

3.1. 

Summary of the proposed action 

The  bilateral  agreement  with  China  will  allow  to  set  up  co-ordinated  controls 
between  the  competent  authorities  of  the  Member  States  and  the  competent 
authorities  of  China  on  the  basis  of  the  control  instruments  set  up  by  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. 

In the context of the implementation of the United Nation's Convention against illicit 
traffic of narcotic drugs and psychotropic substances of 1988 the Community has set 
up measures to monitor the trade between the Community and third countries in drug 
precursors. Among the seizures of drug precursors, in particular ATS precursors, the 
majority is found to originate in China. 

Control  of  international  trade  in  drug  precursors  directly  affects  the  availability  of 
chemicals  for  the  unlawful  manufacture  of  drugs.  Improving  international  co-
operation  makes  it  harder  to  supply  unlawful  drugs  and  so  services  public  health 
objectives by reducing the quantity of illegal drugs on the market. 

3.2. 

Legal basis 

Article 133 and first sentence of Article 300 (2) EC Treaty 

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3.3. 

Subsidiarity principle 

The  proposal  falls  under  the  exclusive  competence  of  the  Community.  The 
subsidiarity principle therefore does not apply. 

3.4. 

Proportionality principle 

The proposal complies with the proportionality principle for the following reason: 

This proposal builds upon existing Community provisions aimed at the monitoring of 
trade in drug precursors to prevent their diversion from the legal trade for the misuse 
in the illicit drug manufacture. 

Improving  the  capacity  to  detect  high  risk  precursor  consignments  and  preventing 
their misuse in the illicit drug production can be achieved through minimal increase 
of  level  of  surveillance  of  trade  movements  by  making  use  of  existing  mecanisms 
(including IT tools in place). 

3.5. 

Choice of instruments 

Proposed instruments: Council decision 

Other means would not be adequate for the following reason: 

Memoranda  of  Understanding  could  be  considered  to  address  strengthened  co-
operation with China in this area on a voluntary basis. However, such option would 
not suffice, e.g. it would not provide a legal basis for denying the suspicious export 
or import consignments. 

4. 

BUDGETARY IMPLICATIONS 

There  are  marginal  budgetary  implications  (e.  g.  with  regard  to  the  posts  currently 
allocated and use of existing resources). 

5. 

ADDITIONAL INFORMATION 

5.1. 

Review/revision/sunset clause 

The proposal includes a sunset clause. 

5.2. 

Detailed explanation of the proposal 

The proposal suggests trade monitoring, the possibility to suspend shipments, mutual 
administrative  assistance,  information  exchange  and  technical  and  scientific  co-
operation.  It  also  provides  the  possibility  for  meetings  of  a  joint  follow-up  group, 
where necessary. 

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2008/0134 (ACC) 

Proposal for a 

COUNCIL DECISION 

on the signature and conclusion of the Agreement between the European Community 
and the Government of the People's Republic of China on drug precursors and 
substances frequently used in the illicit manufacture of narcotic drugs or psychotropic 
substances 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
133 thereof, together with the first sentence of Article 300(2), 

Having regard to the proposal from the Commission, 

Whereas: 

(1) 

(2) 

(3) 

On  27  June  2006,  the  Council  authorised  the  Commission  to  negotiate  with  the 
Government of the People's Republic of China an Agreement on drug precursors and 
substances frequently used in the illicit manufacture of narcotic drugs or psychotropic 
substances. 

The  Community  must  strengthen  controls  on  shipments  of  precursors  from  the 
People's Republic of China, given the risk of their diversion for the purposes of illicit 
manufacture of synthetic drugs in the Community 

It is necessary to approve  the Agreement between the European Community and the 
Government  of  the  People's  Republic  of  China  on  drug  precursors  and  substances 
frequently used in the illicit manufacture of narcotic drugs or psychotropic substances 

HAS DECIDED AS FOLLOWS: 

Article 1 

The  Agreement  between  the  European  Community  and  the  Government  of  the  People's 
Republic  of  China  on  drug  precursors  and  substances  frequently  used  in  the  illicit 
manufacture of narcotic drugs or psychotropic substances is hereby approved on behalf of the 
European Community. 

The text of the Agreement is attached to this decision. 

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Article 2 

1. 
The Commission, assisted by representatives of the Member States, shall represent the 
European Community on the Joint Follow-up Group set up under Article 9 of the Agreement. 

The Commission is authorised to approve, on behalf of the Community, amendments 
2. 
to the Annexes to the Agreement adopted by the Joint Follow-up Group under the procedure 
laid down in Article 10 of the Agreement. 

The Commission shall be assisted in carrying out this task by a special committee appointed 
by the Council with instructions to establish a common position. 

The authorisation referred to in paragraph 2 shall be limited to those substances which 

3. 
are already covered by the relevant Community legislation on drug precursors. 

The President of the Council is hereby authorised to designate the persons empowered to sign 
the Agreement. 

Article 3 

The  President  of  the  Council  shall  effect  the  notification  provided  for  in  Article  12  of  the 
Agreement on behalf of the European Community1. 

Article 4 

Article 5 

This decision shall be published in the Official Journal of the European Communities. 

Done at Brussels,  

For the Council 
The President 

1 

The date of entry into force of the Agreement will be published in the Official Journal of the European 
Communities by the General Secretariat of the Council. 

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ANNEX  

AGREEMENT BETWEEN THE EUROPEAN COMMUNITY AND THE 

GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA ON DRUG 

PRECURSORS AND SUBSTANCES FREQUENTLY USED IN THE ILLICIT 

MANUFACTURE OF NARCOTIC DRUGS 

OR PSYCHOTROPIC SUBSTANCES 

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AGREEMENT  

between the European Community and the Government of the People's Republic of China 

on drug precursors and substances frequently used in the illicit manufacture of narcotic 

drugs or psychotropic substances 

THE EUROPEAN COMMUNITY, 

hereinafter referred to as “the Community”, on the one part, and 

THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA 

hereinafter referred to as “The Chinese government”, on the other part, 

hereinafter referred to as the “The Parties”  

WITHIN THE FRAMEWORK of the United Nations Convention of 1988 against Illicit Traffic 

in  Narcotic  Drugs  and  Psychotropic  Substances,  signed  on  20  December  1988  in  Vienna, 

hereinafter  referred  to  as  the  "Convention  of  1988”  and  in  accordance  with  legal  provision  in 

force in the People's Republic of China and in the Member States of the Community; 

DETERMINED  to  prevent  and  to  combat  the  illicit  manufacture  of  narcotic  drugs  and 

psychotropic  substances  by  preventing  the  diversion  of  drug  precursors  and  substances 

frequently used for such purposes (hereinafter referred to as "drug precursors"); 

ACKNOWLEDGING Article 12 of the Convention of 1988; 

CONVINCED that international trade may be used for the diversion of drug precursors, and that 

it  is  necessary  to  conclude  and  implement  agreements  between  the  regions  concerned, 

establishing wide co-operation and, in particular linking export and import controls; 

RECOGNIZING that drug precursors are also mainly and widely used for legitimate purposes 

and that international trade must not be hindered by excessive monitoring procedures; 

HAVE DECIDED to conclude an Agreement on the prevention of diversion of drug precursors 
and  substances  frequently  used  in  the  illicit  manufacture  of  narcotic  drugs  or  psychotropic 
substances; 

HAVE AGREED AS FOLLOWS: 

Article 1 

Scope of the Agreement 

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1. 

2. 

This Agreement sets out measures to strengthen administrative co-operation between 
the Parties to prevent the diversion of drug precursors and substances frequently used 
in  the  illicit  manufacture  of  narcotic  drugs  and  psychotropic  substances,  without 
prejudice to  the normal  activities  of  trade and the due recognition of the legitimate 
interests of industry. 

For  this  purpose,  the  Parties  shall  assist  each  other,  as  set  out  in  this  Agreement,  in 
particular by: 

-  monitoring  the  trade  between  them  in  the  drug  precursors  referred  to  in 
paragraph 3, with the aim of preventing their diversion to illicit purposes, 

-  providing  mutual  administrative  assistance  ensuring  that  their  respective  drug 
precursors trade control legislation is correctly applied. 

3. 

Without prejudice to possible amendments which might be made pursuant to Article 10, 
this Agreement applies to the substances listed in the Annexes of this Agreement. 

Article 2 

Trade monitoring 

1. 

2. 

3. 

4. 

The Parties shall consult and inform each other on their own initiative whenever they 
have reasonable grounds to believe that drug precursors  may be diverted to the illicit 
manufacture of narcotic drugs or psychotropic substances, in particular when an import 
or export shipment occurs in unusual quantities or under unusual circumstances. 

With regard to the drug precursors listed in Annex A to this Agreement, the competent 
authority of the exporting Party shall forward a pre-export notification to the competent 
authority of the importing Party. The reply in writing by the importing Party shall be 
provided  within  15  working  days  after  the  receipt  of  the  message  from  the  exporting 
Party. The absence of a reply within this period shall be considered equivalent to a non-
objection  to  sending  the  shipment.  An  objection  shall  be  notified  in  writing  to  the 
exporting Party within this period, giving the reasons for refusal. 

With regard to the drug precursors listed in Annex B to this Agreement, the competent 
authority  of  the  exporting  Party  shall  forward  in  time  a  pre-export  notification  to  the 
competent authority of the importing Party under its domestic law. Specific information 
shall  be  provided  where  the  operator  benefits,  in  the  exporting  country,  from  a 
simplified export authorisation covering multiple export operations. 

The  Parties  undertake  to  reply  in  writing  as  soon  as  possible,  in  respect  of  any 
information provided or measure requested under this Article. 

Article 3 

Suspension of shipment 

1. 

Without prejudice to any possible implementation of technical enforcement measures, 
shipments  shall  be  suspended  if,  in  the  opinion  of  either  Party,  there  are  reasonable 

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grounds  to  believe  that  drug  precursors  may  be  diverted  to  the  illicit  manufacture  of 
narcotic  drugs  or  psychotropic  substances,  or  where,  in  the  cases  described  in  Article 
2(2),  the  importing  Party  requests  in  writing  the  suspension,  and  where  appropriate, 
provides documents of evidence and ensuring measures to be taken within 5 working 
days. 

The  Parties  shall  co-operate  in  supplying  each  other  with  any  information  relating  to 
suspected  diversion  operations  if  based  upon  a  request  for  mutual  administrative 
assistance. 

Article 4 

Mutual administrative assistance 

The Parties shall provide each other upon request for mutual administrative assistance 
with any information to prevent the diversion of drug precursors the illicit manufacture 
of  narcotic  drugs  or  psychotropic  substances  and  shall  investigate  cases  of  suspected 
diversion.  Where  necessary  they  shall  adopt  appropriate  precautionary  measures  to 
prevent diversion. 

Any request for information or precautionary measures shall be complied with in time. 

Requests for administrative assistance shall be executed in accordance with the legal or 
regulatory provisions of the requested Party. 

Duly  authorised  officials  of  a  Party  may,  with  the  agreement  of  the  other  Party  and 
subject to the conditions laid down by the latter, be present at the inquiries carried out in 
the territory of the other Party. 

The Parties shall assist each other to facilitate the provision of evidence if based upon a 
request for mutual administrative assistance. 

Administrative  assistance  provided  under  this  Article  shall  not  prejudice  the  rules 
governing  mutual  assistance  in  criminal  matters,  nor  shall  it  apply  to  information 
obtained  under  powers  exercised  at  the  request  of  a  judicial  authority,  except  where 
communication of such information is authorised by that authority. 

One Party may, on a case by case basis and through consultation, provide, on request by 
the other Party, information in respect of substances which are frequently used in the 
illicit  manufacture  of  narcotic  drugs  or  psychotropic  substances  but  which  are  not 
included in the scope of this Agreement. 

Article 5 

Information exchange and confidentiality 

Any information communicated in whatsoever form pursuant to this Agreement shall be 
of a confidential or restricted nature, depending on the rules applicable in each of the 
Parties and shall be covered by the obligation of official secrecy.  

2. 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

1. 

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2. 

3. 

4. 

Personal data may be exchanged only where the Party which may receive it undertakes 
to protect such data in at least an equivalent way to the one applicable to that particular 
case  in  the  Party  that  may  supply  it.  To  this  end,  Parties  communicate  each  other 
information on their applicable rules, including legal provisions in force in the Member 
States of the Community. 

Information obtained under this Agreement shall be used solely for the purposes of this 
Agreement. Where one of the Parties wishes to use such information for other purposes, 
it shall obtain the prior written consent of the authority which provided the information. 
Such use shall then be subject to any restrictions laid down by that authority. 

The  use  in  proceedings  instituted  for  failure  to  comply  with  legislation  on  drug 
precursors  referred  to  in  Article  3,  of  information  obtained  under  this  Agreement,  is 
considered to be solely for the purposes of this Agreement. Therefore, the Parties may 
in  proceedings  use  as  evidence  information  obtained  and  documents  consulted  in 
accordance with the provisions of this Agreement. The use of evidence is subject to the 
prior  permission  of  the  competent  authority  which  supplied  that  information  or  gave 
access to those documents. 

Article 6 

Exceptions to the obligation to provide assistance 

1. 

Assistance may be refused or may be subject to the satisfaction of certain conditions or 
requirements,  in  cases  where  a  Party  is  of  the  opinion  that  assistance  under  this 
Agreement would: 

(a) 
be likely to prejudice the sovereignty of the People's Republic of China or that 
of a Member State of the Community which has been requested to provide assistance 
under this Agreement; or 

(b)  be  likely  to  prejudice  public  policy,  security  or  other  essential  interests,  in 
particular in the cases referred to under Article 5 (2); or 

(c) 

violate an industrial, commercial or professional secret. 

2. 

3. 

4. 

Assistance  may  be  postponed  by  the  requested  authority  on  the  ground  that  it  will 
interfere with an ongoing investigation, prosecution or proceeding. In such a case, the 
requested authority shall consult with the applicant authority to determine if assistance 
can be given subject to such terms or conditions as the requested authority may require. 

Where  the  applicant  authority  seeks  assistance  which  it  would  itself  be  unable  to 
provide if so requested, it shall draw attention to that fact in its request. It shall then be 
for the requested authority to decide how to respond to such a request. 

For the cases referred to in this Article, the decision of the requested authority and the 
reasons  therefore  must  be  communicated  to  the  applicant  authority  as  promptly  as 
possible. 

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Article 7 

Technical and scientific co-operation 

The  Parties  shall  co-operate  in  the  identification  of  new  diversion  methods  as  well  as 
appropriate countermeasures, including technical co-operation and in particular, training and 
exchange  programmes  for  the  officials  concerned,  to  strengthen  administrative  and 
enforcement structures in this field and to promote co-operation with trade and industry.  

Article 8 

Implementation measures 

The Chinese side, the European Commission and each Member State of the Community 
shall  appoint  respectively  a  competent  authority  to  co-ordinate  the  implementation  of 
this Agreement. These authorities shall communicate directly with one another for the 
purposes of this Agreement. 

The Parties shall consult each other and subsequently keep each other informed of the 
detailed rules of implementation which are adopted in accordance with the provisions of 
this Agreement. 

Article 9 

Joint Follow-Up Group 

A  Joint  Follow-Up  Group  is  hereby  established,  hereinafter  referred  to  as  'the  Joint 
Follow-Up Group', in which the Parties shall be represented. 

The Joint Follow-Up Group shall act by mutual agreement. 

If necessary, the Joint Follow-Up Group shall meet, with the date, place and programme 
being fixed by mutual agreement. 

1. 

2. 

1. 

2. 

3. 

Extraordinary meetings of the Joint Follow-Up Group may be convened by mutual agreement 
of the Parties. 

Article 10 

Role of the Joint Follow-Up Group 

1. 

- 

- 

- 

The  Joint  Follow-Up  Group  shall  administer  this  Agreement  and  ensure  its  proper 
implementation. For this purpose: 

It shall be informed by the Parties of their experience in applying this agreement, 

In cases provided for in Paragraph 2, it shall take decisions, 

It shall study and develop technical co-operation measures, 

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- 

2. 

3. 

(a) 

(b) 

It shall study and develop other possible forms of co-operation. 

The Joint Follow-Up Group may adopt by mutual consent decisions to amend Annexes 
A and B. Such decisions shall be implemented by the Parties in accordance with their 
own legislation. 

The Joint Follow-Up Group may recommend to the Parties: 

Other amendments to this Agreement; 

Measures required for the application of this Agreement. 

Article 11 

Other obligations imposed under other agreements 

1. 

Taking  into  account  the  respective  competencies  of  the  Community  and  its  Member 
States, the provisions of this Agreement shall: 

– 

– 

Not affect the obligations of the Parties under any other international agreement 
or convention; 

Not  affect  the  communication  between  the  competent  services  of  the  European 
Commission and the relevant services of the Member States of the Community of 
any information obtained under this Agreement which could be of interest to the 
Community. 

Notwithstanding the provisions of Paragraph 1, the provisions of this Agreement shall 
take precedence over the provisions of any bilateral agreement on drug precursors and 
other  substances  frequently  used  in  the  illicit  manufacture  of  narcotic  drugs  and 
psychotropic  substances  which  have  been  or  may  be  concluded  between  individual 
Member States and the People's Republic of China insofar as the provisions of the latter 
are incompatible with those of this Agreement.  

In respect of questions relating to the applicability of this Agreement, the Parties shall 
consult each other to resolve the matter in the framework of the Joint Follow-up Group. 

The Parties shall also notify each other of any measures on controlled substances taken 
with other countries. 

2. 

3. 

4. 

Article 12  

Entry into force 

Each party shall give written notification that it has completed its internal legal procedures for 
the entry into force of this Agreement to the other Party. This Agreement shall enter into force 
on the first day of the second month following the date on which the last written notification 
is received. 

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Article 13  

Duration and denunciation 

1. 

This Agreement shall be concluded for five years and, unless a Party notifies in writing 
the other Party of its intention to terminate the Agreement at least six months before the 
expiration  of  that  period,  it  will  be  tacitly  renewable  for  successive  periods  of  five 
years. 

2. 

This Agreement may be amended by mutual consent of the Parties. 

Article 14 

Authentic texts 

Done  in  duplicate  in  the  Chinese,  Bulgarian,  Czech,  Danish,  Dutch,  Estonian,  English, 
Finnish,  French,  German,  Greek,  Hungarian,  Irish,  Italian,  Latvian,  Lithuanian,  Maltese, 
Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, Swedish languages, all these texts 
being equally authentic. In case there is any divergence of interpretation of this Agreement; 
the English and the Chinese texts shall be determinative. 

Done at… 

For the European Community 

For the Government of the People's Republic of China 

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ANNEX A 

Substances subject to the measures referred to in Article 2(2) 

N-Acetylanthranilic Acid 

Acetic Anhydride 

Anthranilic Acid 

Ephedrine 

Ephedra 

Ergometrine 

Ergotamine 

Isosafrole 

Lysergic Acid 

3,4-Methylenedioxyphenyl-2-propanone 

Norephedrine 

Phenylacetic Acid 

1-Phenyl-2-propanone 

Piperonal 

Potassium Permanganate 

Pseudoephedrine 

Safrole 

Safrole rich oils 

Note: The list of substances must always include a reference to their salts, where appropriate. 

ANNEX B  

Substances subject to the measures referred to in Article 2(3) 

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Acetone 

Ethyl Ether 

Hydrochloric Acid 

Methyl Ethyl Ketone 

Piperidine 

Sulphuric Acid 

Toluene 

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