CELEX: 
Language: en
Date: 2021-10-28
Title: COMMISSION DELEGATED REGULATION (EU) …/... amending Regulation (EC) No 273/2004 of the European Parliament and of the Council and Council Regulation (EC) No 111/2005 as regards the inclusion of certain drug precursors in the list of scheduled substances

EXPLANATORY MEMORANDUM
            
            
               1.CONTEXT OF THE DELEGATED ACT
            
            
               Drug precursors are chemicals which may be used for the illicit manufacture of narcotic drugs or psychotropic substances. Regulation (EC) No 273/2004 of the European Parliament and of the Council
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                lays down measures for monitoring trade in drug precursors within the EU, while Council Regulation (EC) No 111/2005
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                governs trade in drug precursors between the EU and third countries.
            
            
               The two Regulations jointly implement the measures envisaged by Article 12 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 19 December 1988
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                (the '1988 UN Convention').
            
            
               Drug precursors may be scheduled substances (listed in the Annexes of the two Regulations, with various legal obligations attached depending on their category - license, registration, export/import authorisation etc.). Drug precursors may also be non-scheduled substances, meaning they are not listed in the Annexes. Each Member State may adopt the measures necessary to enable its competent authorities to control and monitor suspicious transactions involving non-scheduled substances. 
            
            
               National competent authorities have indicated the seizure of ethyl alpha-phenylacetoacetate (EAPA) and methyl 3-oxo-2-(3,4-methylenedioxyphenyl)butanoate (MAMDPA). 
            
            
               EAPA is used to produce 1-Phenyl-2-propanone (P-2-P), also known as benzyl methyl ketone (BMK). BMK is a precursor of amphetamine and methamphetamine, two of the most common drugs illicitly produced in the EU. Both have severe consequences for the human health. 
            
            
               MAMDPA is a precursor of 3,4-Methylenedioxyphenylpropan-2-one (PMK), which, in its turn, is used to prodcue 3,4-methylenedioxymethamphetamine (MDMA), commonly known as ‘ecstasy’.
            
            
               BMK, as well as some of its other pre-precursors which are very similar to EAPA (such as methyl alpha-phenylacetoacetate (MAPA) or alpha-phenylacetoacetamide (APAA)), as well as PMK are already scheduled substances in the Regulations. 
            
            
               Following the strict control of the scheduled substances mentioned above, EAPA and MAMDPA have been designed by criminal organisations to avoid these controls. Therefore, EAPA and MAMDPA should also be scheduled at EU level to reinforce their control and monitoring. The scheduling will provide national authorities with the legal means to fight effectively against their use in the illicit production of narcotic drugs.  
            
            
               The Commission has discretion as regards the category in which to schedule a drug precursor. 
            
            
               Substances scheduled in Category 1 pose the greatest risk when diverted and usually become incorporated in full or in part into the molecule of the narcotic drug or psychotropic substance. The Regulations set out the strictest control and monitoring measures for such substances: they need to be stored in secured premises (e.g. locks, video-camera surveillance, etc.); each operator dealing with these substances needs a licence; they also require an import and export authorisation. 
            
            
               EAPA and MAMDPA should be scheduled as a Category 1 substances because they can be easily transformed to support the production of methanphetamine, amphetamine and MDMA and the subsequent social and public health problems related to the consumption of these narcotic drugs are important.  
            
            
               Based on the information available, EAPA and MAMDPA have no known licit uses, except research. Therefore, their scheduling in Category 1 will not create significant administrative burden for economic operators and competent authorities. 
            
            
               2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT
            
            
               In accordance with the Interinstitutional Agreement on Better Law-Making of 13 April 20164, appropriate and transparent consultations, including at expert level, have been carried out in the preparation of this delegated act. The Group of Experts on Drug Precursors has discussed the proposal in detail during its meeting on [26-27 October 2021]. [to add details on the comments received]. 
            
            
               The draft has been published for feedback on ‘Have-your-say’ portal. [add details on the contributions received, if any]. 
            
            
               The draft has been notified based on Article 2(9)(2) of the Agreement on Technical Barriers to Trade. No comments have been received [to be changed if needed]. 
            
            
               3.LEGAL ELEMENTS OF THE DELEGATED ACT
            
         
         
            
               Based on Article 15 of Regulation (EC) No 273/2004 and Article 30a of Regulation (EC) No 111/2005, the Commission is empowered to adopt delegated acts in order to adapt the Annexes to new trends in diversion of drug precursors.
            
            
               Regulation (EC) No 273/2004 and Regulation (EC) No 111/2005 are closely linked. They jointly implement the measures envisaged by Article 12 of the 1988 UN Convention. Therefore, the bundling of two empowerments based on different basic legislative acts into one single delegated act is justified by the close material link between the empowerments in question.
            
            
               COMMISSION DELEGATED REGULATION (EU) …/...
            
            
               of XXX
            
            
               amending Regulation (EC) No 273/2004 of the European Parliament and of the Council and Council Regulation (EC) No 111/2005 as regards the inclusion of certain drug precursors in the list of scheduled substances
               
            
               (Text with EEA relevance)
            
            
               THE EUROPEAN COMMISSION,
            
            
               Having regard to the Treaty on the Functioning of the European Union,
            
            
               Having regard to Regulation (EC) No 273/2004 of the European Parliament and of the Council of 11 February 2004 on drug precursors
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               , and in particular Article 15 thereof, 
            
            
               Having regard to 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
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               , and in particular Article 30a thereof,
            
            
               Whereas:
            
            
               (1)Regulation (EC) No 273/2004 lays down measures for monitoring trade in drug precursors within the Union, while Regulation (EC) No 111/2005 governs trade in drug precursors between the Union and third countries. Annex I to Regulation (EC) No 273/2004 and the Annex to Regulation (EC) No 111/2005 each contain a list of scheduled substances, which are subject to a number of harmonised control and monitoring measures provided for by those Regulations.
            
            
               (2)National competent authorities have reported the seizure of ethyl alpha-phenylacetoacetate (EAPA) and methyl 3-oxo-2-(3,4-methylenedioxyphenyl)butanoate (MAMDPA) in the context of illicit manufacture of narcotic drugs. 
            
            
               (3)EAPA is used to produce 1-Phenyl-2-propanone (P-2-P), also known as benzyl methyl ketone (BMK). BMK is a precursor of amphetamine and methamphetamine. 
            
            
               (4)MAMDPA is a precursor of 3,4-Methylenedioxyphenylpropan-2-one  (PMK), which, in turn, is used to produce 3,4-methylenedioxymethamphetamine (MDMA), commonly known as ‘ecstasy’.
            
            
               (5)Amphetamine, methamphetamine and MDMA are some of the most common drugs illicitly produced in the Union. They have severe consequences for human health and are causing serious social and public health problems in some regions of the Union. 
            
            
               (6)Therefore, EAPA and MAMDPA should be scheduled at Union level to reinforce their control and monitoring. 
            
            
               (7)The scheduled substances listed in Annex I to Regulation (EC) No 273/2004 and in the Annex to Regulation (EC) No 111/2005 are divided into categories for which different measures apply, so as to achieve a proportionate balance between the level of threat posed by each specific substance and the burden on licit trade. The strictest control and monitoring measures apply to substances of Category 1. 
            
            
               (8) EAPA and MAMDPA, as precursors to amphetamine, methamphetamine and MDMA, pose a significant threat to social and public health in the Union. They have no known licit production, trade or use, except for research purposes. Therefore, including them in Category 1 in Annex I to Regulation (EC) No 273/2004 and in Category 1 in the Annex to Regulation (EC) No 111/2005 would be an adequate response to avoid their use in the illicit manufacture of narcotic drugs and, at the same time, would not entail any significant extra administrative burden for economic operators and competent authorities in the Union.
            
            
               (9)Regulations (EC) No 273/2004 and (EC) No 111/2005 should therefore be amended accordingly.
            
         
         
            
               (10)Regulations (EC) No 273/2004 and (EC) No 111/2005 jointly implement certain provisions of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna on 20 December 1988 and approved by Council Decision 90/611/EEC
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               . In view of the close substantive link between the empowerments contained in those Regulations, it is appropriate to adopt the amendments by way of one single delegated act,
            
            
               HAS ADOPTED THIS REGULATION:
            
            
               Article 1
               Amendments to Regulation (EC) No 273/2004
            
            
               Annex I to Regulation (EC) No 273/2004 is amended in accordance with Annex I to this Regulation.
            
            
               Article 2
               Amendments to Regulation (EC) No 111/2005
            
            
               The Annex to Regulation (EC) No 111/2005 is amended in accordance with Annex II to this Regulation.
            
            
               Article 3
            
            
               Entry into force 
            
            
               This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
            
            
               This Regulation shall be binding in its entirety and directly applicable in all Member States.
            
            
               Done at Brussels,
            
            
               
                     For the Commission
               
               
                     The President
                     Ursula VON DER LEYEN
               
               
                     
                  
            
            
         
      
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               ANNEX I 
            
            
            
               In Regulation (EC) No 273/2004, in Annex I, in the table for Category 1, the following entries are inserted in the list of substances in the appropriate place sequentially according to the CN Code: 
            
            
            
            
                     
                        Substance
                     
                  
                  
                     
                        CN designation (if different)
                     
                  
                  
                     
                        CN Code
                     
                  
                  
                     
                        CAS No
                     
                  
               
                     
                        ‘ethyl alpha-phenylacetoacetate (EAPA)
                     
                  
                  
                     
                         
                     
                  
                  
                     
                        2918 30 00
                     
                  
                  
                     
                        5413-05-8
                     
                  
               
                     
                        methyl 3-oxo-2-(3,4-methylenedioxyphenyl)butanoate (MAMDPA)
                     
                  
                  
                     
                         
                     
                  
                  
                     
                        2932 99 00
                     
                  
                  
                     
                        1369021-80-6’.
                     
                  
               
               ANNEX II 
            
            
            
               In Regulation (EC) No 111/2005, in the Annex, in the table for Category 1, the following entries are inserted in the list of substances in the appropriate place sequentially according to the CN Code: 
            
            
            
                     
                        Substance
                     
                  
                  
                     
                        CN designation (if different)
                     
                  
                  
                     
                        CN Code
                     
                  
                  
                     
                        CAS No
                     
                  
               
                     
                        ‘ethyl alpha-phenylacetoacetate (EAPA)
                     
                  
                  
                     
                         
                     
                  
                  
                     
                        2918 30 00
                     
                  
                  
                     
                        5413-05-8
                     
                  
               
                     
                        methyl 3-oxo-2-(3,4-methylenedioxyphenyl)butanoate (MAMDPA)
                     
                  
                  
                     
                         
                     
                  
                  
                     
                        2932 99 00
                     
                  
                  
                     
                        1369021-80-6’.