Proposal for a COUNCIL DECISION on the position to be taken, on behalf of the European Union, in the sixty-fifth 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: 2022-02-08
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, 8.2.2022  COM(2022) 41 final 2022/0029 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken, on behalf of the European Union, in the sixty-fifth 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. 12 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 CND 

On  14  to  18  March  2022,  during  its  sixty-fifth  session,  the  CND  is  to  adopt  a  scheduling 
decision on the addition of three substances in the Tables of the Convention (‘the envisaged 
acts’) namely 4-AP, boc-4-AP and norfentanyl. 

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: 

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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,  France,  Germany,  Hungary,  Italy,  Lithuania,  the  Netherlands,  Poland,  Slovenia, 
Spain, Sweden. 
Article 12(7) of the 1988 UN Convention. 

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‘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 2 February 2022 that the INCB recommends to add 
three substances, namely 4-AP, boc-4-AP and norfentanyl in Table I of the Convention. 

According  to  the  assessment  of  the  INCB,  4-AP,  boc-4-AP  and  norfentanyl  are  frequently 
used  in  the  illicit  manufacture  of  fentanyl  and  fentanyl  analogues  (i.e.  synthetic  opioids). 
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  the  substance  under  international  control.  In  addition  there  is  no  known 
legitimate  use  of  4-AP,  boc-4-AP  and  norfentanyl  except  in  small  amounts  for  research, 
development and laboratory analysis. 

Illegal  manufacture  of  fentanyl  and  fentanyl  analogues  is  a  problem  in  the  Union.  These 
illegally  manufactured  narcotic  drugs  and  psychotropic  substances  cause  significant  public 
health and social problems in the Union.  

The  Member  States  of  the  Union  should  thus  express  the  position  in  the  CND  in  favour  of 
adding 4-AP, boc-4-AP and norfentanyl 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  law4.  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 

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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). 

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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 
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  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.  

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.  

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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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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. 

Subsidiarity (for non-exclusive competence)  

Not applicable. 

• 

Proportionality 

The  proposal  is  proportionate  and  does  not  go  beyond  what  is  necessary  to  achieve  the 
objectives as it addresses new drug precursors that are of concern for the Union. 

• 

Choice of the instrument 

The use of a Council Decision is  required by Article 218(9) TFEU in  order to  establish the 
position to be adopted on the Union's behalf in a body set up by an international agreement. 

5. 

PUBLICATION OF THE ENVISAGED ACT 

None 

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2022/0029 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken, on behalf of the European Union, in the sixty-fifth 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')  was  concluded  by  the  Union  by 
Council Decision 90/611/EEC and entered into force on 11 November 1990. 

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, during its sixty-fifth session from 14 to 18 March 
2022 in Vienna, is to adopt a decision on the addition of three new substances to Table 
I of that 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 of that Commission 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 precursors8. 

According  to  the  assessment  of  the  International  Narcotics  Control  Board,  three 
substances, namely 4-AP, boc-4-AP  and norfentanyl  are frequently used in  the illicit 
manufacture of fentanyl and are highly suitable for the illicit manufacture of fentanyl 
and a number of fentanyl analogues, which are highly potent synthetic opioids. There 
is  evidence  that  the  volume  and  extent  of  the  illicit  manufacture  of  fentanyl  and 
fentanyl analogues poses serious public health or social problems so as to warrant the 
placing of these substances under international control. 

(6) 

Accordingly,  on  2  February  2022  the  International  Narcotics  Control  Board 
recommended  to  the  Commission  on  Narcotic  Drugs  to  add  4-AP,  boc-4-AP  and 
norfentanyl to Table I of the Convention. 

7 
8 

(OJ L 22, 26.1.2005, p. 1) 
(OJ L 47, 18.2.2004, p. 1) 

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(7) 

(8) 

(9) 

Illicitly manufactured fentanyl  and fentanyl analogues have caused significant public 
health and social problems in certain Member States. 

The decision on the addition of substances to Table I of the Convention fall under the 
exclusive competence of the Union. The Union has observer status in the Commission 
on  Narcotic  Drugs  of  which  currently  12  Member  States  of  the  Union  are  members 
with the right to vote.  

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

(10)  The  Member  States  of  the  Union  should  take  the  position  in  the  Commission  on 

Narcotic Drugs to add 4-AP, boc-4-AP and norfentanyl to Table I of the Convention, 

HAS ADOPTED THIS DECISION:  

Article 1 

The  position  to  be  taken  on  behalf  of  the  Union  by  the  Member  States  in  the  sixty-fifth 
session  of  the  Commission  on  Narcotic  Drugs  from  14  to  18  March  2022  shall  be  the 
following: 

4-AP, boc-4-AP and norfentanyl are 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, acting jointly in  the interest of the 
Union.  

Article 2 

This Decision is addressed to the Member States. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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