Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, in the sixty-second session of the Commission on Narcotic Drugs on the addition to the list of substances in the Tables of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
Date: 2019-02-12
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: UN convention, UN technical commission, drug addiction, illicit trade, narcotic, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 12.2.2019  COM(2019) 77 final 2019/0037 (NLE)  Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, in the sixty-second session of the Commission on Narcotic Drugs on the addition to the list of substances in the Tables of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances  
 
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the decision establishing the position to be taken on the Union's behalf 
in  the Commission  on Narcotic  Drugs (CND)  in  connection with  the envisaged adoption of 
changes  to  the  Tables  of  the  United  Nations  (UN)  Convention  on  Illicit  Traffic  in  Narcotic 
Drugs  and  Psychotropic  Substances  of  1988  on  the  basis  of  recommendations  of  the 
International Narcotics Control Board (INCB). 

2. 

2.1. 

CONTEXT OF THE PROPOSAL 

The  United  Nations  (UN)  Convention  on  Illicit  Traffic  in  Narcotic  Drugs  and 
Psychotropic Substances of 1988 

The  United  Nations  (UN)  Convention  on  Illicit  Traffic  in  Narcotic  Drugs  and  Psychotropic 
Substances of 1988 (‘the Convention’) aims to promote cooperation among the Parties so that 
they may address  more  effectively the various  aspects  of illicit traffic in narcotic drugs  and 
psychotropic substances  having  an international  dimension.  In  carrying out  their obligations 
under  the  Convention,  the  Parties  take  necessary  measures,  including  legislative  and 
administrative  measures,  in  conformity  with  the  fundamental  provisions  of  their  respective 
domestic legislative systems.  

The Convention entered into force on 11 November 1990. 

The EU1 and its Member States are parties to the Convention. 

2.2. 

The Commission on Narcotic Drugs (CND) 

The  CND  is  a  commission  of  the  UN  Economic  and  Social  Council  (ECOSOC)  and  its 
functions and powers are inter alia set out in the Convention. It is made up of 53 UN Member 
States  elected by ECOSOC. 11 Member States  are  currently  members of the CND with  the 
right to vote. The Union has an observer status in the CND.  

The CND, taking into account the comments submitted by the Parties and the comments and 
recommendations  of  the  INCB,  whose  assessment  shall  be  determinative  as  to  scientific 
matters,  and  also  taking  into  due  consideration  any  other  relevant  factors,  may  decide  by  a 
two-thirds majority of its members to place a substance in the Tables of the Convention. 

2.3. 

The envisaged acts of the CND 

On  14  to  22  March  2019,  during  its  sixty-second  session,  the  CND  is  to  adopt  scheduling-
decisions on the addition of four substances in the Tables of the Convention (‘the envisaged 
acts’)  namely  3,4-MDP-2-P  methyl  glycidate  (“PMK  glycidate"),  3,4-MDP-2-P  methyl 
glycidic acid (“PMK glycidic acid”) and alpha-phenylacetoacetamide (APAA) and hydriodic 
acid. 

According  to  the  Convention  decisions  of  the  CND  become  binding,  unless  a  Party  has 
submitted  the  decision  for  review  to  ECOSOC  within  the  applicable  time-limit2.  The 
decisions of ECOSOC on the matter are final. The envisaged acts will become binding on the 

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Council Decision of 22 October 1990 concerning the conclusion, on behalf of the European Economic 
Community,  of  the  United  Nations  Convention  against  Illicit  Traffic  in  Narcotic  Drugs  and 
Psychotropic Substances (OJ L 326 of 24/11/1990, p.56). 
Article 12(7) of the 1988 UN Convention 

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Parties  in  accordance  with  Article  12  of  the  Convention,  which  provides  as  follows  in  its 
relevant parts:  

Any decision of the Commission taken pursuant to this article shall be communicated by the 
Secretary-General to all States and other entities which are, or which are entitled to become, 
Parties to this Convention, and to the Board. Such decision shall become fully effective with 
respect to each Party one hundred and eighty days after the date of such communication.  

The  decisions  of  the  Commission  taken  under  this  article  shall  be  subject  to  review  by  the 
Council upon the request of any Party filed within one hundred and eighty days after the date 
of notification of the decision. The request for review shall be sent to the Secretary General, 
together with all relevant information upon which the request for review is based.  

The  Secretary-General  shall  transmit  copies  of  the  request  for  review  and  the  relevant 
information  to  the Commission, to  the Board  and to  all the Parties, inviting them to  submit 
their comments within ninety days. All comments received shall be submitted to the Council 
for consideration.  

The  Council  may  confirm  or  reverse  the  decision  of  the  Commission.  Notification  of  the 
Council’s decision shall be transmitted to all States and other entities which are, or which are 
entitled to become, Parties to this Convention, to the Commission and to the Board.’ 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The Commission has been informed on 19 December 2018 that the INCB recommends to add 
three  substances,  namely  3,4-MDP-2-P  methyl  glycidate  (“PMK  glycidate"),  3,4-MDP-2-P 
methyl  glycidic  acid  (“PMK  glycidic  acid”)  and  alpha-phenylacetoacetamide  (APAA)  in 
Table  I  of  the  Convention.  As  to  a  fourth  substance,  namely  hydriodic  acid,  the  INCB 
recommends to not place it under control of the Convention. 

According  to  the  assessment  of  the  INCB,  three  substances,  3,4-MDP-2-P  methyl  glycidate 
(“PMK  glycidate”),  3,4-MDP-2-P  methyl  glycidic  acid  (“PMK  glycidic  acid”)  and  alpha-
phenylacetoacetamide (APAA) are frequently used in the illicit manufacture of, respectively, 
MDMA  and  related  substances;  of  3,4-MDP-2-P  and  subsequently  MDMA  and  related 
substances; and amphetamine and methamphetamine. There is evidence that the volume and 
extent  of  the  illicit  manufacture  of  these  narcotic  drugs  and  psychotropic  substances  poses 
serious public health or social problems so as to warrant the placing of these substances under 
international  control.  As to  the fourth substance, namely hydriodic acid,  the  INCB is  of the 
view that international  control would not  be effective in  reducing the availability of illicitly 
manufactured methamphetamine and amphetamine.  

Illegal  manufacture  of  MDMA  -  and  related  substances  -  and  methamphetamine  and 
amphetamine is a serious problem in the Union. These illegally manufactured narcotic drugs 
and psychotropic substances cause significant public health and social problems in the Union. 
Additionally, organised crime groups in the Union are also illegally exporting these narcotic 
drugs and psychotropic substances to third countries.  

The  Member  States  of  the  Union  should  thus  express  the  position  in  the  CND  in  favour  of 
adding 3,4-MDP-2-P methyl glycidate (“PMK glycidate”), 3,4-MDP-2-P methyl glycidic acid 
(“PMK glycidic acid”) and alpha-phenylacetoacetamide (APAA) to Table I of the Convention  
and to not place hydriodic acid under control of the Convention. 

Changes  to  the  Tables  of  the  Convention  have  direct  repercussions  for  the  scope  of 
application  of  Union  law  in  the  area  of  drug  precursor  control  as  substances  added  to  the 

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Tables  of  the  Convention  are  to  be  incorporated  into  the  Union  law3.  The  Commission  has 
been empowered to adopt delegated acts in order to ensure this. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

Article 218(9) TFEU applies regardless of whether the Union is a member of the body or a 
party to the agreement4. 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’5. 

4.1.2.  Application to the present case 

The  Commission  on  Narcotic  Drugs  is  a  body  set  up  by  an  agreement,  namely  the  United 
Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. 

The  acts  which  the  Commission  on  Narcotic  Drugs  is  called  upon  to  adopt  constitute  acts 
having legal effects. The envisaged acts will be binding under international law in accordance 
with Article 12 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and 
Psychotropic  Substances  and  are  capable  of  decisively  influencing  the  content  of  EU 
legislation namely Council Regulation (EC) No 111/2005 of 22 December 2004 laying down 
rules for the monitoring of trade between the Union and third countries in drug precursors and 
Regulation (EC) No 273/2004 of the European Parliament and of the Council of 11 February 
2004 on drug precursors. This  is  because  the changes to  the Tables  of the Convention have 
direct  repercussions  for the scope of application  of Union law in  the area of drug precursor 
control  as substances added to  the Tables of the Convention are to  be incorporated into the 
Union law. 

The envisaged acts do not supplement or amend the institutional framework of the agreement. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged acts in respect of which a position is taken on the 
Union's behalf. If the envisaged acts pursue two aims or have two components and if one of 

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COUNCIL  REGULATION  (EC)  No  111/2005  of  22  December  2004  laying  down  rules  for  the 
monitoring of trade between the Union and third countries in drug precursors (OJ L 22, 26.1.2005, p. 1) 
and Regulation (EC) No 273/2004 of the European Parliament and of the Council of 11 February 2004 
on drug precursors (OJ L 47, 18.2.2004, p. 1). 
Judgment  of  the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  Case  C-399/12, 
ECLI:EU:C:2014:2258, paragraph 64.  
Judgment  of  the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  Case  C-399/12, 
ECLI:EU:C:2014:2258, paragraphs 61to 64.  

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those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The  main  objective  and  content  of  the  envisaged  acts  relate  to  the  common  commercial 
policy. 

Therefore, the substantive legal basis of the proposed decision is Article 207 of the Treaty on 
the Functioning of the European Union. 

4.3. 

Conclusion 

The  legal  basis  of  the  proposed  decision  should  be  Article  207,  in  conjunction  with  Article 
218(9) TFEU. 

5. 

PUBLICATION OF THE ENVISAGED ACTS 

As  the  acts  of  the  Commission  on  Narcotic  Drugs  will  amend  the  Tables  to  the  United 
Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, it is 
appropriate to publish them in the Official Journal of the European Union after their adoption. 

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2019/0037 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be adopted, on behalf of the European Union, in the sixty-second 
session of the Commission on Narcotic Drugs on the addition to the list of substances in 
the Tables of the United Nations Convention against Illicit Traffic in Narcotic Drugs and 
Psychotropic Substances 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 207, in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

The  United  Nations  Convention  against  Illicit  Traffic  in  Narcotic  Drugs  and 
Psychotropic  Substances  of  1988  ('the  Convention')  entered  into  force  on  11 
November 1990 and was concluded on behalf of the European Economic Community 
by Council Decision 90/611/EEC6.  

Pursuant  to  Article  12(2)  to  (7)  of  the  Convention,  substances  may  be  added  to  the 
Tables of the Convention in which drug precursors are listed. 

The Commission on Narcotic Drugs should, during its sixty-second session from 14 to 
22 March 2019 in Vienna, take a decision on the addition of four new substances to 
the Tables of the Convention.  

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
Commission on Narcotic Drugs should, during its sixty-second session from 14 to 22 
March 2019 in Vienna, as the decisions will be binding on the Union and capable of 
decisively influencing the content of Union law, namely Council Regulation (EC) No 
111/2005 of 22 December 2004 laying down rules for the monitoring of trade between 
the Union and third countries in drug precursors7 and Regulation (EC) No 273/2004 of 
the European Parliament and of the Council of 11 February 2004 on drug precursors.8  

According  to  the  assessment  of  the  International  Narcotics  Control  Board,  three 
substances,  3,4-MDP-2-P  methyl  glycidate  (“PMK  glycidate”),  3,4-MDP-2-P  methyl 
glycidic  acid  (“PMK  glycidic  acid”)  and  alpha-phenylacetoacetamide  (APAA)  are  
frequently  used  in  the  illicit  manufacture  of,  respectively,  MDMA  and  related 
substances;  of  3,4-MDP-2-P  and  subsequently  MDMA  and  related  substances;  and 
amphetamine and methamphetamine. There is evidence that the volume and extent of 
the  illicit  manufacture  of  these  narcotic  drugs  and  psychotropic  substances  poses 
serious  public  health  or  social  problems  so  as  to  warrant  the  placing  of  these 
substances  under  international  control.  As  to  the  fourth  substance,  namely  hydriodic 

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OJ L 326, 24.11.1990 p. 56 
OJ L 22, 26.1.2005, p. 1 
OJ L 47, 18.2.2004, p. 1 

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acid, the International Narcotics Control Board is of the view that international control 
would  not  be  effective  in  reducing  the  availability  of  illicitly  manufactured 
methamphetamine  and  amphetamine.  Illegal  manufacture  of  MDMA  -  and  related 
substances  -  and  methamphetamine  and  amphetamine  is  a  serious  problem  in  the 
Union. These illegally manufactured narcotic drugs and psychotropic substances cause 
significant  public  health  and  social  problems  in  the  Union.  Additionally,  organised 
crime  groups  in  the  Union  are  also  illegally  exporting  these  narcotic  drugs  and 
psychotropic substances to third countries. 

(6) 

The  Union's  position  is  to  be  expressed  by  the  Member  States  of  the  Union  that  are 
members of the Commission on Narcotic Drugs, 

HAS ADOPTED THIS DECISION: 

Article 1 

The position to be taken on the Union's behalf in the sixty-second session of the Commission 
on Narcotic Drugs shall be the following: 

-  3,4-MDP-2-P  methyl  glycidate  (“PMK  glycidate”),  3,4-MDP-2-P  methyl  glycidic  acid 
(“PMK glycidic acid”) and alpha-phenylacetoacetamide (APAA) are to be included in Table I 
of the Convention; 

- hydriodic acid is not to be placed under control of the Convention. 

The  position  referred  to  in  Article  1  shall  be  expressed  by  the  Member  States  of  the  Union 
that are members of the Commission on Narcotic Drugs. 

Article 2 

This Decision is addressed to the Member States. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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