Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the sixty-third session of the Commission on Narcotic Drugs on the addition to the list of substances in Table I of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
Date: 2020-01-17
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: UN convention, UN technical commission, drug addiction, drug traffic, illicit trade, narcotic, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 17.1.2020  COM(2020) 17 final 2020/0007 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the sixty-third session of the Commission on Narcotic Drugs on the addition to the list of substances in Table I 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  against  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  against  Illicit  Traffic  in  Narcotic  Drugs 
and Psychotropic Substances of 1988 

The  United  Nations  (UN)  Convention  against  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. 13 Member States2 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 act of the Commission on Narcotic Drugs (CND) 

On  2  to  6  March  2020,  during  its  sixty-third  session,  the  CND  is  to  adopt  a  scheduling 
decision  on  the  addition  of  one  substance  in  the  Tables  of  the  Convention  (‘the  envisaged 
act’) namely methyl alpha-phenylacetoacetate (MAPA). 

The purpose of the envisaged act is to place methyl alpha-phenylacetoacetate (MAPA) in the 
list of scheduled substances in the Tables of the Convention in order to require that countries 
implement  measures  to  control  and  monitor  the  legitimate  trade  in  methyl  alpha-
phenylacetoacetate (MAPA) as an essential way to prevent their diversion. 

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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). 
Austria,  Belgium,  Croatia,  Czech  Republic,  France,  Germany,  Hungary,  Italy,  Netherlands,  Poland, 
Spain, Sweden and the United Kingdom. Membership of the United Kingdom of the EU is subject to 
change as a result of the request of the United Kingdom to withdraw from membership of the EU. 

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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-limit3.  The 
decisions of ECOSOC on the matter are final. The envisaged acts will become binding on the 
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 15 November 2019 that the INCB recommends to add 
one  substance,  namely  methyl  alpha-phenylacetoacetate  (MAPA)  in  Table  I  of  the 
Convention.  

According  to  the  assessment  of  the  INCB,  methyl  alpha-phenylacetoacetate  (MAPA)  is 
frequently  used  in  the  illicit  manufacture  of  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 to warrant the placing 
of the substance under international control.  In addition there is no known legitimate use of 
methyl alpha-phenylacetoacetate (MAPA) except in small amounts for research, development 
and laboratory analysis. 

Illegal manufacture of amphetamine and methamphetamine 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  illegally  exporting  these  narcotic  drugs  and  psychotropic  substances  to  third 
countries. 

It should be noted that the Commission is currently, in parallel, in the process of preparing a 
including  methyl  alpha-
Delegated  Regulation  adding  a  number  of  substances, 
phenylacetoacetate  (MAPA),  to  Annex  1  of  Regulation  (EC)  No  273/2004  of  the  European 
Parliament and of the Council of 11 February 2004 on drug precursors and to the Annex of 
Council  Regulation  (EC)  No  111/2005  of  22  December  2004  laying  down  rules  for  the 

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Article 12(7) of the 1988 UN Convention. 

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monitoring  of  trade  between  the  Union  and  third  countries  in  drug  precursors  further  to 
discussions at the EU Group of Experts on Drug Precursors in May 2019. 4 

The  Member  States  of  the  Union  should  thus  express  the  position  in  the  CND  in  favour  of 
adding methyl alpha-phenylacetoacetate (MAPA) to Table I 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 
Tables  of  the  Convention  are  to  be  incorporated  into  the  Union  law.  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 agreement5. 

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’6. 

4.1.2.  Application to the present case 

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

The act which the Commission on Narcotic Drugs (CND) is called upon to adopt constitutes 
an  act  having  legal  effects.  The  envisaged  act  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.  The  envisaged  act  has  legal  effects  and  is 
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. 

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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 
ECLI:EU:C:2014:2258, paragraph 64.  
Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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The  envisaged  act  does  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 act in respect of which a position is taken on the 
Union's behalf.  If the  envisaged act  pursues two  aims or has two components  and if one of 
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 act 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 ACT 

As the act 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 it in the Official Journal of the European Union after its adoption. 

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2020/0007 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the sixty-third session of 
the Commission on Narcotic Drugs on the addition to the list of substances in Table I 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/EEC7.  

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-third session from 2 to 6 
March  2020  in  Vienna,  take  a  decision  on  the  addition  of  one  new  substance  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  as  the  decision  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  precursors8  and 
Regulation  (EC)  No  273/2004  of  the  European  Parliament  and  of  the  Council  of  11 
February 2004 on drug precursors.9.. 

According  to  the  assessment  of  the  International  Narcotics  Control  Board,  the 
substance  methyl  alpha-phenylacetoacetate  (MAPA)  is  frequently  used  in  the  illicit 
manufacture  of  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 
illegal  manufacture  of 
amphetamine  and  methamphetamine  causes  significant  public  health  and  social 
problems  in  the  Union.  Incidents  relating  to  the  trafficking  of  methyl  alpha-
phenylacetoacetate (MAPA) are occurring with increasing amounts and frequency and 

international  control.  The 

these  substances  under 

7 
8 
9 

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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organised  crime  groups  in  the  Union  are  also  illegally  exporting  amphetamine  and 
methamphetamine 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-third session of the Commission on 
Narcotic Drugs shall be the following : 

- methyl alpha-phenylacetoacetate (MAPA) is to be included in Table I 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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