(1)

Council Framework Decision 2004/757/JHA (2) provides a common approach to the fight against illicit drug trafficking, which poses a threat to the health, safety and quality of life of citizens of the Union, and to the legal economy, stability and security of the Member States. It sets out minimum common rules on the definition of drug trafficking offences and sanctions, to avoid that problems may arise in cooperation between the judicial authorities and law enforcement agencies of Member States, owing to the fact that the offence or offences in question are not punishable under the laws of both the requesting and the requested State.

(1a)

Setting out minimum common rules across the Union on the definition of drug trafficking offences and sanctions should ultimately contribute to the protection of public health and the reduction of harm related to drug trafficking and consumption. [Am. 1]

(2)

Framework Decision 2004/757/JHA applies to the substances covered by the 1961 United Nations Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, and the 1971 United Nations Convention on Psychotropic Substances (‘UN Conventions’), as well as to the synthetic drugs subjected to control across the Union pursuant to Joint Action 97/396/JHA (3), which pose public health risks comparable to those posed by the substances scheduled under the UN Conventions.

(3)

Framework Decision 2004/757/JHA should also apply to the substances subjected to control measures and criminal penalties pursuant to Council Decision 2005/387/JHA (4), which pose public health risks comparable to those posed by the substances scheduled under the UN Conventions.

(4)

New psychoactive substances such as products containing synthetic cannabinoid receptor agonists (CRAs) , which imitate the effects of substances scheduled under the UN Conventions, are emerging frequently and are spreading fast in the Union. Certain new psychoactive substances pose severe public health, social and safety risks, as ascertained by Regulation (EU) No …/… of the European Parliament and of the Council (5). Under that Regulation, measures may be taken to prohibit the production, manufacture, making available on the market, including importation to the Union, transport, and exportation from the Union of new psychoactive substances posing severe health, social and safety risks. To effectively reduce the availability of new psychoactive substances that pose severe risks to individuals and society, and to deter trafficking in those substances across the Union, as well as the involvement of criminal organisations , often generating considerable profit from illicit drug trafficking , permanent market restriction measures adopted under that Regulation should be underpinned by proportionate criminal law provisions , aimed solely at producers, suppliers and distributors rather than individual consumers . [Am. 2]

(4a)

To effectively reduce the demand for new psychoactive substances that pose severe health, social and safety risks, dissemination of evidence-based, public health information and early warnings to consumers should be an integral part of an inclusive and participatory strategy to prevent and reduce harm. [Am. 3]

(5)

The New psychoactive substances subjected to permanent market restriction pursuant to Regulation (EU) No …/… should, once they have been added to the Annex to Framework Decision 2004/757/JHA , therefore, be covered by Union criminal law provisions on illicit drug trafficking. This would also help streamline and clarify the Union legal framework, as the same criminal law provisions would apply to substances covered by the UN Conventions and to the most harmful new psychoactive substances. In order to add such substances to the Annex, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of amending the Annex and thereby the definition of ‘drug’ in Framework Decision 2004/757/JHA should, therefore, be amended. It is of particular importance that the Commission carries out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council. [Am. 4]

(6)

In order to swiftly address the emergence and spread of harmful new psychoactive substances in the Union, Member States should apply the provisions of Framework Decision 2004/757/JHA to new psychoactive substances posing severe health, social and safety risks within twelve months from their submission which have been subject to permanent market restriction under restrictions on account of the severe health, social and safety risks which they pose, pursuant to Regulation (EU) No …/… within 12 months of those new psychoactive substances being added to the Annex to that Framework Decision . [Am. 5]

(6a)

This Directive, in accordance with the provisions of Framework Decision 2004/757/JHA which it amends, does not make provision for the criminalisation of the possession of new psychoactive substances for personal use, without prejudice to the right of Member States to criminalise the possession of drugs for personal use at national level. [Am. 6]

(6b)

The Commission should assess the impact of Framework Decision 2004/757/JHA on drug supply, including on the basis of information provided by Member States. For that purpose, Member States should provide detailed information on the distribution channels for psychoactive substances in their territory used for the supply of psychoactive substances intended for distribution in other Member States, such as specialised shops and online retailers, as well as on other characteristics of their respective drug markets. The European Monitoring Centre for Drugs and Drug Addiction should support the Member States in collecting and sharing accurate, comparable and reliable information and data on drug supply. [Am. 7]

(6c)

Member States should provide the Commission with data on various indicators of national law enforcement interventions within their territory, including dismantled drug production facilities, drug supply offences, national retail drug prices and forensic analyses of drug seizures. [Am. 8]

(7)

Since the objective of this Directive, namely to extend the application of the Union criminal law provisions that apply to illicit drug trafficking to new psychoactive substances posing severe health, social and safety risks, cannot be sufficiently achieved by the Member States but can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(8)

This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, and notably the right to an effective remedy and to a fair trial, the presumption of innocence and the right of defence, the right not to be tried or punished twice in criminal proceedings for the same criminal offence and, the principles of legality and proportionality of criminal offences , the right of access to preventive healthcare and the right to benefit from medical treatment . [Am. 9]

(8a)

The Union and its Member States should further develop the Union approach based on fundamental rights, prevention, medical care and harm reduction, with the aim of helping drug users to overcome their addiction and at reducing the negative social, economic and public health impact of drugs. [Am. 10]

(9)

[In accordance with Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, the United Kingdom and Ireland have notified their wish to take part in the adoption and application of this Directive.]

AND/OR

(10)

[In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, the United Kingdom and Ireland are not taking part in the adoption of this Directive and are not bound by it or subject to its application.]

(11)

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.

(12)

Framework Decision 2004/757/JHA should therefore be amended accordingly,

(1)

In Article 1, point 1 is replaced by the following:

(1a)

Article 2 is amended as follows:

(1b)

The following Articles are inserted:

‘ Article 8a

Delegation of power

The Commission shall be empowered to adopt delegated acts to amend the Annex to this Framework Decision, in particular to add to the Annex new psychoactive substances subjected to permanent market restriction on the basis of Article 13(1) of Regulation (EU) No …/… of the European Parliament and of the Council  (*1) . [Am. 15]

Article 8b

Exercise of delegation

1.     The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2.     The power to adopt delegated acts referred to in Article 8a shall be conferred on the Commission for a period of ten years from …  (+) . The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the ten year period. The delegation of power shall be tacitly extended for a further period of ten years, unless the European Parliament or the Council opposes such extension not later than three months before the end of that period.

3.     The delegation of powers referred to in Article 8a may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4.     As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5.     A delegated act adopted pursuant to Article 8a shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council. [Am. 16]

(*1)   Regulation (EU) No …/… of the European Parliament and of the Council of … [on new psychoactive substances] (OJ L …). ’;"

(2)

In Article 9, the following paragraphs are added:

‘3.   In respect of new psychoactive substances subjected to permanent market restriction on the basis of [Article 13(1) of Regulation (EU) No …/… on new psychoactive substances] added to the Annex to this Framework Decision , Member States shall bring into force the laws, regulations and administrative provisions necessary to apply the provisions of this Framework Decision to these new psychoactive substances within twelve months after the entry into force of the permanent market restriction amendment to the Annex . They shall forthwith communicate to the Commission the text of those provisions. [Am. 14]

When Member States adopt those provisions, they shall contain a reference to this Framework Decision or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

4.   By … (+) and every five years thereafter, the Commission shall assess the extent to which the Member States have taken the necessary measures to comply with this Framework Decision and publish a report.’;

(3)

An Annex, as set out in the Annex to this Directive, is added.