COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the position of the Council on the adoption of a Directive of the European Parliament and of the Council amending Council Framework Decision 2004/757/JHA in order to include new psychoactive substances in the definition of 'drug' and repealing Council Decision 2005/387/JHA
Date: 2017-09-27
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: drug traffic, market approval, penalty, psychotropic substance, public health

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   EUROPEAN COMMISSION  Brussels, 27.9.2017  COM(2017) 560 final 2013/0304 (COD)   COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT  pursuant to Article 294(6) of the Treaty on the Functioning of the European Union  concerning the position of the Council on the adoption of a Directive of the European Parliament and of the Council amending Council Framework Decision 2004/757/JHA in order to include new psychoactive substances in the definition of 'drug' and repealing Council Decision 2005/387/JHA  
 
 
2013/0304 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council on the adoption of a Directive of the European Parliament and of 
the Council amending Council Framework Decision 2004/757/JHA in order to include 
new psychoactive substances in the definition of 'drug' and repealing Council Decision 
2005/387/JHA 

1. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
to the Council 
(document COM(2013) 618 final - 2013/0304 (COD): 

17.9.2013. 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee (OJ C 177, 11.6.2014, p. 52). 

21.1.2014. 

Date of the position of the European Parliament, first reading: 

17.4.2014. 

Date of transmission of the amended proposal 

Date of the adoption of the position of the Council 

N/A. 

25.9.2017. 

2. 

OBJECTIVE OF THE PROPOSAL FROM THE COMMISSION 

The  Directive  is  part  of  a  package  of  two  legislative  proposals  on  new  psychoactive 
substances  put  forward  by  the  Commission  on  17  September  2013:  a  proposal  for  a 
Regulation  on  new  psychoactive  substances1  and  a  Directive  amending  Council  Framework 
Decision  2004/757/JHA  of  25  October  2004  laying  down  minimum  provisions  on  the 
constituent  elements  of  criminal  acts  and  penalties  in  the  field  of  illicit  drug  trafficking,  as 
regards the definition of drug2.  

The objective of the package was to reduce the availability of new psychoactive substances 
that pose risk through swifter, more effective action on Union level compared to the currently 
applicable  system  based  on  Council  Decision  2005/387/JHA  of  10  May  2005  on  the 
information exchange, risk assessment and control of new psychoactive substances3. 

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2 
3 

COM(2013) 619 final. 
COM(2013) 618 final. 
OJ L 127, 10.5.2005, p. 32. The different policy options have been analysed in the impact assessment 
accompanying both proposals, SWD(2013) 319 final. 

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3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

Negotiations  of  this  legislative  package  have  been  ongoing  for  more  than  four  years.  In  the 
Council,  during  the  examination  of  the  proposals,  Member  States  expressed  doubts 
concerning the choice of Article 114 of the Treaty on the Functioning of the European Union 
(TFEU)  as  the  legal  basis  for  the  proposed  Regulation.  To  achieve  the  same  objective  of  a 
swifter,  more  effective  EU  action  on  new  psychoactive  substances,  the  Permanent 
Representatives Committee (COREPER) therefore agreed on 6 April 20164 to a new approach 
proposed by the Presidency.  

In  the  context  of  this  new  approach,  the  concept  of  the  2013  Commission  proposal  for  a 
Regulation on new psychoactive substances based on Article 114 TFEU was abandoned. The 
provisions  of  the  2013  Commission  proposal  for  a  Regulation  on  new  psychoactive 
substances  were  included  on  the  one  hand  into  the  text  of  the  Directive  amending  Council 
Framework  Decision  2004/757/JHA,  and  on  the  other  hand  into  the  text  of  a  new  proposal 
amending  the  founding  Regulation  of  the  European  Monitoring  Centre  for  Drugs  and  Drug 
Addiction (EMCDDA), Regulation 1920/2006, which the Commission was invited to present. 
The  Commission  adopted  the  proposal  amending  Regulation  1920/2006  as  regards 
information  exchange,  early  warning  system  and  risk  assessment  procedure  on  new 
psychoactive  substances  on  29  August  20165.  The  2013  proposal  on  a  Regulation  on  new 
psychoactive substances was withdrawn in the context of the Commission's Work Programme 
for 2017. 

Political agreement on the package was reached between co-legislators at the trilogue meeting 
of  29  May  2017,  and  was  endorsed  by  COREPER  on  31  May  2017  and  by  the  LIBE 
Committee on 8 June 2017. 

In  line  with  the  new  approach  outlined  above,  the  text  of  the  Directive  includes  significant 
amendments to the 2013 Commission proposal for a Directive amending Council Framework 
Decision  2004/757/JHA  of  25  October  2004.  The  Directive  in  particular  now  contains  also 
provisions on the definition of new psychoactive substances and on swift EU-level decision 
making  on  new  psychoactive  substances.  Substances  which  qualify  as  new  psychoactive 
substances  are  listed  in  a  new  Annex  to  Framework  Decision  2004/757/JHA  which  the 
Commission  is  empowered  to  amend  by  means  of  delegated  acts  in  order  to  include  new 
psychoactive  substances  in  the  definition  of  'drug'.  All  substances  listed  in  the  Annex  are 
covered by the criminal law provisions laid down in the Framework Decision, in line with its 
legal basis, Article 83(1) TFEU. The package, however, still meets the Commission's original 
objective  to  reduce  the  availability  of  new  psychoactive  substances  that  pose  risk  through 
swifter, more effective action on Union level compared to the currently applicable system. 

4. 

CONCLUSION 

The Commission fully supports the position of the Council as it still meets the Commission's 
original objective. 

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5 

Summary record, Council document 7908/1/16 REV 1 of 27 May 2016. 
COM(2016) 547 final. 

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