REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the exercise of the delegation conferred on the Commission pursuant to Council Framework Decision 2004/757/JHA on the addition of substances to the definition of ‘drug’
Date: 2022-06-01
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: European Commission, criminal procedure, delegated legislation, drug addiction, drug traffic, judicial cooperation in criminal matters in the EU, penalty, powers of the institutions (EU), psychotropic substance, transfer of competence

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  EN 

   EUROPEAN COMMISSION  Brussels, 1.6.2022  COM(2022) 251 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the exercise of the delegation conferred on the Commission pursuant to Council Framework Decision 2004/757/JHA on the addition of substances to the definition of ‘drug’  
 
 
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT 
AND THE COUNCIL 

on the exercise of the delegation conferred on the Commission pursuant to Council 
Framework Decision 2004/757/JHA on the addition of substances to the definition 
of ‘drug’ 

1. 

Introduction and legal basis 

Article 8a(1) of 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  trafficking1  (hereafter  ’Framework  Decision’)  empowers  the 
Commission to  adopt  delegated directives to  add substances to  the list  of substances in 
Annex I that form part of the definition of ‘drug’.  

Article  8a(2)  of  the  Framework  Decision  requires  the  Commission  to  report  to  the 
European Parliament and to  the Council on the  exercise of the delegation conferred on 
the  Commission  by  that  Framework  Decision.  The  present  report  aims  to  meet  the 
reporting obligation set for the Commission by Article 8a(2) of the Framework Decision. 

The  delegation  of  power  shall  be  tacitly  extended  for  periods  of  an  identical  duration, 
unless  the  European  Parliament  or  the  Council  opposes  such  extension  not  later  than  3 
months before the end of each period. 

Together with Regulation (EC) 1920/2006 on the European Monitoring Centre for Drugs 
and  Drug  Addiction2,  the  Framework  Decision  provides  for  a  three-step  procedure  that 
may lead to the inclusion of a new psychoactive substance in the definition of ‘drug’ and 
thereby covering it by the Union criminal law provisions on illicit drug trafficking. After 
(i) an initial report by the European Monitoring Centre for Drugs and Drug Addiction in 
accordance with Article 5b of Regulation (EC) 1920/2006 and  (ii)  a risk assessment by 
the  Extended  Scientific  Committee  of  the  European  Monitoring  Centre  for  Drugs  and 
Drug  Addiction  in  accordance  with  Article 5c  of  Regulation  (EC)  1920/2006,  (iii)  the 
Commission shall, without undue delay, adopt a delegated act in accordance with Article 
8a of the Framework Decision. 

2.  Exercise of the delegation 

The power to add substances to the definition of ‘drug’ has been used four times and the 
Commission has adopted the following delegated directives: 

(a)  2018:  Commission  Delegated  Directive  (EU)  2019/369  of  13  December  2018 
amending  the  Annex  to  Council  Framework  Decision  2004/757/JHA  as  regards 
the inclusion of new psychoactive substances in the definition of ‘drug’3.  

1  OJ L 335, 11.11.2004, p. 8. EUR-Lex - 02004F0757-20210609 - EN - EUR-Lex (europa.eu) 

2  OJ L 376, 27.12.2006, p. 1. EUR-Lex - 32006R1920 - EN - EUR-Lex (europa.eu) 

3  OJ L 66, 7.3.2019, p. 3–5. (Entry  into  force : 27.3.2019). EUR-Lex  - 32019L0369  - EN  - EUR-Lex 

(europa.eu) 

Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111 

 
 
 
                                                 
Directive (EU) 2017/2103 of the European Parliament and of the Council of 15 
November  20174  that  amended  Council  Framework  Decision  2004/757/JHA  in 
order to include new psychoactive substances in the definition of ‘drug’ through 
delegated acts also repealed Council Decision 2005/387/JHA with effect from 23 
November  2018.  From  the  adoption  of  Directive  (EU)  2017/2103  until  23 
November  2018,  five  new  psychoactive  substances  were  subjected  to  control 
measures  and  criminal  penalties  under  Decision  2005/387/JHA.  However,  those 
new psychoactive substances were not yet included into the Annex to Framework 
Decision  2004/757/JHA,  so  the  following  substances  were  added  to  the  Annex 
through Delegated Directive (EU) 2019/369: 

a.  N-phenyl-N-[1-(2-phenylethyl)piperidin-4-yl]furan-2-carboxamide 

(furanylfentanyl),  as  referred  to  in  Council  Implementing  Decision  (EU) 
2017/21705. 

b.  N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-(cyclohexylmethyl)-1H-

indazole-3-carboxamide  (ADB-CHMINACA),  as  referred  to  in  Council 
Implementing Decision (EU) 2018/7476. 

c.  1-(4-cyanobutyl)-N-(2-phenylpropan-2-yl)-1H-indazole-3-carboxamide 

(CUMYL-4CN-BINACA),  as  referred  to  in  Council  Implementing 
Decision (EU) 2018/7487. 

d.  N-phenyl-N-[1-(2-phenylethyl)piperidin-4-yl]cyclopropanecarboxamide 

2-methoxy-N-phenyl-N-[1-(2-
(cyclopropylfentanyl) 
phenylethyl)piperidin-4-yl]acetamide (methoxyacetylfentanyl), as referred 
to in Council Implementing Decision (EU) 2018/14638. 

and 

(b) 2020:  Commission  Delegated  Directive  (EU)  2020/1687  of  2  September  2020 
amending  the  Annex  to  Council  Framework  Decision  2004/757/JHA  as  regards 
the 
the  new  psychoactive  substance  N,N-diethyl-2-[[4-(1-
methylethoxy)phenyl]methyl]-5-nitro-1H-benzimidazole-1-ethanamine 
(isotonitazene) in the definition of ‘drug’9; 

inclusion  of 

(c)  2021:  Commission  Delegated  Directive  (EU)  2021/802  of  12  March  2021 
amending  the  Annex  to  Council  Framework  Decision  2004/757/JHA  as  regards 
the  inclusion  of  the  new  psychoactive  substances  methyl  3,3-dimethyl-2-{[1-
(pent-4-en-1-yl)-1H-indazole-3-carbonyl]amino}butanoate 
(MDMB-4en-
PINACA)  and  methyl  2-{[1-(4-fluorobutyl)-1H-indole-3-carbonyl]amino}-3,3-
dimethylbutanoate (4F-MDMB-BICA) in the definition of ‘drug’10; 

4  OJ L 305, 21.11.2017, p. 12–18. EUR-Lex - 32017L2103 - EN - EUR-Lex (europa.eu) 

5  OJ L 306, 22.11.2017, p. 19. EUR-Lex - 32017D2170 - EN - EUR-Lex (europa.eu) 

6  OJ L 125, 22.5.2018, p. 8. EUR-Lex - 32018D0747 - EN - EUR-Lex (europa.eu) 

7  OJ L 125, 22.5.2018, p. 10. EUR-Lex - 32018D0748 - EN - EUR-Lex (europa.eu) 

8  OJ L 245, 1.10.2018, p. 9. EUR-Lex - 32018D1463 - EN - EUR-Lex (europa.eu) 

9  OJ L 379, 13.11.2020, p. 55–57 (Entry into force: 23.11.2020) EUR-Lex - 32020L1687 - EN - EUR-

Lex (europa.eu) 

10  OJ  L  178,  20.5.2021,  p.  1–3  (Entry  into  force:  9.6.2021)  EUR-Lex  -  32021L0802  -  EN  -  EUR-Lex 

(europa.eu) 

2 

 
                                                 
(d) 2022:  Commission  Delegated  Directive  (EU)  2022/1552  of  18  March  2022 
amending  the  Annex  to  Council  Framework  Decision  2004/757/JHA  as  regards 
the inclusion of new psychoactive substances in the definition of 'drug'. This act 
added 
(3-
methylmethcathinone,  3-MMC)  and  1-(3-chlorophenyl)-2-(methylamino)propan-
1-one (3-chloromethcathinone, 3-CMC) to the list11. 

2-(methylamino)-1-(3-methylphenyl)propan-1-one 

The delegated directives were submitted for scrutiny to the European Parliament and the 
Council. The delegated acts have been published after the scrutiny period elapsed, as the 
Commission did not receive any objections or extension requests during that time. 

3.  Conclusion 

The  Commission  considers  that  it  has  exercised  its  delegated  powers  within  the  remit 
conferred to it by Council Framework Decision 2004/757/JHA. 

The  Commission  presents  this  report  pursuant  to  Article  8a(2)  of  Council  Framework 
Decision  2004/757/JHA  and  invites  the  European  Parliament  and  the  Council  to  take 
note of this report. The delegation of powers to adopt delegated acts conferred should be 
tacitly  extended  in  order  to  continue  ensuring  an  efficient  scheduling  of  new 
psychoactive substances at Union level. 

11  The  scrutiny  period  for  Commission  Delegated  Directive  (EU)  2022/1552  is  ongoing  at  time  of 

writing. 

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