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Document 02004F0757-20220818
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 trafficking
Consolidated text: 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 trafficking
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 trafficking
ELI: http://data.europa.eu/eli/dec_framw/2004/757/2022-08-18
02004F0757 — EN — 18.08.2022 — 005.001
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COUNCIL FRAMEWORK DECISION 2004/757/JHA of 25 october 2004 (OJ L 335 11.11.2004, p. 8) |
Amended by:
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Official Journal |
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No |
page |
date |
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DIRECTIVE (EU) 2017/2103 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 November 2017 |
L 305 |
12 |
21.11.2017 |
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COMMISSION DELEGATED DIRECTIVE (EU) 2019/369 of 13 December 2018 |
L 66 |
3 |
7.3.2019 |
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COMMISSION DELEGATED DIRECTIVE (EU) 2020/1687 of 2 September 2020 |
L 379 |
55 |
13.11.2020 |
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COMMISSION DELEGATED DIRECTIVE (EU) 2021/802 of 12 March 2021 |
L 178 |
1 |
20.5.2021 |
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COMMISSION DELEGATED DIRECTIVE (EU) 2022/1326 of 18 March 2022 |
L 200 |
148 |
29.7.2022 |
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 trafficking
Article 1
Definitions
For the purposes of this Framework Decision:
‘drug’: means any of the following:
a substance covered by the 1961 United Nations Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, or by the 1971 United Nations Convention on Psychotropic Substances;
any of the substances listed in the Annex;
‘precursors’: shall mean any substance scheduled in the Community legislation giving effect to the obligations deriving from Article 12 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 20 December 1988;
‘legal person’: shall mean any legal entity having such status under the applicable national law, except for States or other public bodies acting in the exercise of their sovereign rights and for public international organisations;
‘new psychoactive substance’: means a substance in pure form or in a preparation that is not covered by the 1961 United Nations Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, or by the 1971 United Nations Convention on Psychotropic Substances but may pose health or social risks similar to those posed by the substances covered by those Conventions;
‘preparation’: means a mixture containing one or more new psychoactive substances.
Article 1a
Procedure for including new psychoactive substances in the definition of ‘drug’
In addition, the Commission shall take into account whether the social harm caused by the new psychoactive substance to individuals and to society is severe, and, in particular, whether the impact of the new psychoactive substance on social functioning and public order is such as to disrupt public order, or cause violent or anti-social behaviour, resulting in harm to the user or to other persons or damage to property, or whether criminal activities, including organised crime, associated with the new psychoactive substance are systematic, involve significant illicit profits or entail significant economic costs.
When Member States adopt those measures, they shall contain a reference to this Framework Decision or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
Article 1b
National control measures
Without prejudice to the obligations imposed on the Member States under this Framework Decision, Member States may maintain or introduce in their territories, with regard to new psychoactive substances, any national control measures that they consider appropriate.
Article 2
Crimes linked to trafficking in drugs and precursors
Each Member State shall take the necessary measures to ensure that the following intentional conduct when committed without right is punishable:
the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of drugs;
the cultivation of opium poppy, coca bush or cannabis plant;
the possession or purchase of drugs with a view to conducting one of the activities listed in (a);
the manufacture, transport or distribution of precursors, knowing that they are to be used in or for the illicit production or manufacture of drugs.
Article 3
Incitement, aiding and abetting and attempt
Article 4
Penalties
Each Member State shall take the necessary measures to ensure that the offences referred to in Article 2 are punishable by criminal penalties of a maximum of at least between one and three years of imprisonment.
Each Member State shall take the necessary measures to ensure that the offences referred to in Article 2(1)(a), (b) and (c) are punishable by criminal penalties of a maximum of at least between 5 and 10 years of imprisonment in each of the following circumstances:
the offence involves large quantities of drugs;
the offence either involves those drugs which cause the most harm to health, or has resulted in significant damage to the health of a number of persons.
The terms ‘confiscation’, ‘instrumentalities’, ‘proceeds’ and ‘property’ shall have the same meaning as in Article 1 of the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime.
Article 5
Particular circumstances
Notwithstanding Article 4, each Member State may take the necessary measures to ensure that the penalties referred to in Article 4 may be reduced if the offender:
renounces criminal activity relating to trafficking in drugs and precursors, and
provides the administrative or judicial authorities with information which they would not otherwise have been able to obtain, helping them to:
prevent or mitigate the effects of the offence,
identify or bring to justice the other offenders,
find evidence, or
prevent further offences referred to in Articles 2 and 3.
Article 6
Liability of legal persons
Each Member State shall take the necessary measures to ensure that legal persons can be held liable for any of the criminal offences referred to in Articles 2 and 3 committed for their benefit by any person, acting either individually or as a member of an organ of the legal person in question, who has a leading position within the legal person, based on one of the following:
a power of representation of the legal person;
an authority to take decisions on behalf of the legal person;
an authority to exercise control within the legal person.
Article 7
Sanctions for legal persons
Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 6(1) is punishable by effective, proportionate and dissuasive sanctions, which shall include criminal or non-criminal fines and may include other sanctions, such as:
exclusion from entitlement to tax relief or other benefits or public aid;
temporary or permanent disqualification from the pursuit of commercial activities;
placing under judicial supervision;
a judicial winding-up order;
temporary or permanent closure of establishments used for committing the offence;
in accordance with Article 4(5), the confiscation of substances which are the object of offences referred to in Articles 2 and 3, instrumentalities used or intended to be used for these offences and proceeds from these offences or the confiscation of property the value of which corresponds to that of such proceeds, substances or instrumentalities.
Article 8
Jurisdiction and prosecution
Each Member State shall take the necessary measures to establish its jurisdiction over the offences referred to in Articles 2 and 3 where:
the offence is committed in whole or in part within its territory;
the offender is one of its nationals; or
the offence is committed for the benefit of a legal person established in the territory of that Member State.
Article 8a
Exercise of the delegation
Article 9
Implementation and reports
Article 10
Territorial application
This Framework Decision shall apply to Gibraltar.
Article 11
Entry into force
This Framework Decision shall enter into force on the day following its publication in the Official Journal of the European Union.
ANNEX
List of substances referred to in point (b) of point 1 of Article 1
P-Methylthioamphetamine or 4-Methylthioamphetamine, as referred to in Council Decision 1999/615/JHA ( 4 ).
Paramethoxymethylamphetamine or N-methyl-1-(4-methoxyphenyl)-2-aminopropane, as referred to in Council Decision 2002/188/JHA ( 5 ).
2,5-dimethoxy-4-iodophenethylamine, 2,5-dimethoxy-4-ethylthiophenethylamine, 2,5-dimethoxy-4-(n)-propylthiophenethylamine and 2,4,5-trimethoxyamphetamine, as referred to in Council Decision 2003/847/JHA ( 6 ).
1-benzylpiperazine or 1-benzyl-1,4-diazacyclohexane or N-benzylpiperazine or benzylpiperazine, as referred to in Council Decision 2008/206/JHA ( 7 ).
4-methylmethcathinone, as referred to in Council Decision 2010/759/EU ( 8 ).
4-methyl-5-(4-methylphenyl)-4,5-dihydrooxazol-2-amine (4,4′-DMAR) and 1-cyclohexyl-4-(1,2-diphenylethyl)piperazine (MT-45), as referred to in Council Implementing Decision (EU) 2015/1873 ( 9 ).
4-methylamphetamine, as referred to in Council Implementing Decision (EU) 2015/1874 ( 10 ).
4-iodo-2,5-dimethoxy-N-(2-methoxybenzyl)phenethylamine (25I-NBOMe), 3,4-dichloro-N-[[1-(dimethylamino)cyclohexyl]methyl]benzamide (AH-7921), 3,4-methylenedioxypyrovalerone (MDPV) and 2-(3-methoxyphenyl)-2-(ethylamino)cyclohexanone (methoxetamine), as referred to in Council Implementing Decision (EU) 2015/1875 ( 11 ).
5-(2-aminopropyl)indole, as referred to in Council Implementing Decision (EU) 2015/1876 ( 12 ).
1-phenyl-2-(pyrrolidin-1-yl)pentan-1-one (α-pyrrolidinovalerophenone, α-PVP), as referred to in Council Implementing Decision (EU) 2016/1070 ( 13 ).
Methyl 2-[[1-(cyclohexylmethyl)-1H-indole-3-carbonyl]amino]-3,3-dimethylbutanoate (MDMB-CHMICA), as referred to in Council Implementing Decision (EU) 2017/369 ( 14 ).
N-(1-phenethylpiperidin-4-yl)-N-phenylacrylamide (acryloylfentanyl), as referred to in Council Implementing Decision (EU) 2017/1774 ( 15 ).
N-phenyl-N-[1-(2-phenylethyl)piperidin-4-yl]furan-2-carboxamide (furanylfentanyl), as referred to in Council Implementing Decision (EU) 2017/2170 ( 16 ).
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) 2018/747 ( 17 ).
1-(4-cyanobutyl)-N-(2-phenylpropan-2-yl)-1H-indazole-3-carboxamide (CUMYL-4CN-BINACA), as referred to in Council Implementing Decision (EU) 2018/748 ( 18 ).
N-phenyl-N-[1-(2-phenylethyl)piperidin-4-yl]cyclopropanecarboxamide (cyclopropylfentanyl) and 2-methoxy-N-phenyl-N-[1-(2-phenylethyl)piperidin-4-yl]acetamide (methoxyacetylfentanyl), as referred to in Council Implementing Decision (EU) 2018/1463 ( 19 ).
N,N-diethyl-2-[[4-(1-methylethoxy)phenyl]methyl]-5-nitro-1H-benzimidazole-1-ethanamine (isotonitazene). ( 20 ).
Methyl 3,3-dimethyl-2-{[1-(pent-4-en-1-yl)-1H-indazole-3-carbonyl]amino}butanoate (MDMB-4en-PINACA) ( 21 ).
Methyl 2-{[1-(4-fluorobutyl)-1H-indole-3-carbonyl]amino}-3,3-dimethylbutanoate (4F-MDMB-BICA) (21) .
2-(methylamino)-1-(3-methylphenyl)propan-1-one (3-MMC) ( 22 ).
1-(3-chlorophenyl)-2-(methylamino)propan-1-one (3-CMC) (22) .
( 1 ) Regulation (EC) No 1920/2006 of the European Parliament and of the Council of 12 December 2006 on the European Monitoring Centre for Drugs and Drug Addiction (OJ L 376, 27.12.2006, p. 1).
( 2 ) OJ L 351, 29.12.1998, p. 1.
( 3 ) OJ L 123, 12.5.2016, p. 1.
( 4 ) Council Decision 1999/615/JHA of 13 September 1999 defining 4-MTA as a new synthetic drug which is to be made subject to control measures and criminal penalties (OJ L 244, 16.9.1999, p. 1).
( 5 ) Council Decision 2002/188/JHA of 28 February 2002 concerning control measures and criminal sanctions in respect of the new synthetic drug PMMA (OJ L 63, 6.3.2002, p. 14).
( 6 ) Council Decision 2003/847/JHA of 27 November 2003 concerning control measures and criminal sanctions in respect of the new synthetic drugs 2C-I, 2C-T-2, 2C-T-7 and TMA-2 (OJ L 321, 6.12.2003, p. 64).
( 7 ) Council Decision 2008/206/JHA of 3 March 2008 on defining 1-benzylpiperazine (BZP) as a new psychoactive substance which is to be made subject to control measures and criminal provisions (OJ L 63, 7.3.2008, p. 45).
( 8 ) Council Decision 2010/759/EU of 2 December 2010 on submitting 4-methylmethcathinone (mephedrone) to control measures (OJ L 322, 8.12.2010, p. 44).
( 9 ) Council Implementing Decision (EU) 2015/1873 of 8 October 2015 on subjecting 4-methyl-5-(4-methylphenyl)-4,5-dihydrooxazol-2-amine (4,4′-DMAR) and 1-cyclohexyl-4-(1,2-diphenylethyl)piperazine (MT-45) to control measures (OJ L 275, 20.10.2015, p. 32).
( 10 ) Council Implementing Decision (EU) 2015/1874 of 8 October 2015 on subjecting 4-methylamphetamine to control measures (OJ L 275, 20.10.2015, p. 35).
( 11 ) Council Implementing Decision (EU) 2015/1875 of 8 October 2015 on subjecting 4-iodo-2,5-dimethoxy-N-(2-methoxybenzyl)phenethylamine (25I-NBOMe), 3,4-dichloro-N-[[1-(dimethylamino)cyclohexyl]methyl]benzamide (AH-7921), 3,4-methylenedioxypyrovalerone (MDPV) and 2-(3-methoxyphenyl)-2-(ethylamino)cyclohexanone (methoxetamine) to control measures (OJ L 275, 20.10.2015, p. 38).
( 12 ) Council Implementing Decision (EU) 2015/1876 of 8 October 2015 on subjecting 5-(2-aminopropyl)indole to control measures (OJ L 275, 20.10.2015, p. 43).
( 13 ) Council Implementing Decision (EU) 2016/1070 of 27 June 2016 on subjecting 1-phenyl-2-(pyrrolidin-1-yl)pentan-1-one (α-pyrrolidinovalerophenone, α-PVP) to control measures (OJ L 178, 2.7.2016, p. 18).
( 14 ) Council Implementing Decision (EU) 2017/369 of 27 February 2017 on subjecting methyl 2-[[1-(cyclohexylmethyl)-1H-indole-3-carbonyl]amino]-3,3-dimethylbutanoate (MDMB-CHMICA) to control measures (OJ L 56, 3.3.2017, p. 210).
( 15 ) Council Implementing Decision (EU) 2017/1774 of 25 September 2017 on subjecting N-(1-phenethylpiperidin-4-yl)-N-phenylacrylamide (acryloylfentanyl) to control measures (OJ L 251, 29.9.2017, p. 21).
( 16 ) Council Implementing Decision (EU) 2017/2170 of 15 November 2017 on subjecting N-phenyl-N-[1-(2-phenylethyl)piperidin-4-yl]furan-2-carboxamide (furanylfentanyl) to control measures (OJ L 306, 22.11.2017, p. 19).
( 17 ) Council Implementing Decision (EU) 2018/747 of 14 May 2018 on subjecting the new psychoactive substance N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-(cyclohexylmethyl)-1H-indazole-3-carboxamide (ADB-CHMINACA) to control measures (OJ L 125, 22.5.2018, p. 8).
( 18 ) Council Implementing Decision (EU) 2018/748 of 14 May 2018 on subjecting the new psychoactive substance 1-(4-cyanobutyl)-N-(2-phenylpropan-2-yl)-1H-indazole-3-carboxamide (CUMYL-4CN-BINACA) to control measures (OJ L 125, 22.5.2018, p. 10).
( 19 ) Council Implementing Decision (EU) 2018/1463 of 28 September 2018 on subjecting the new psychoactive substances N-phenyl-N-[1-(2-phenylethyl)piperidin-4-yl]cyclopropanecarboxamide (cyclopropylfentanyl) and 2-methoxy-N-phenyl-N-[1-(2-phenylethyl)piperidin-4-yl]acetamide (methoxyacetylfentanyl) to control measures (OJ L 245, 1.10.2018, p. 9).
( 20 ) Commission Delegated Directive (EU) 2020/1687 of 2 September 2020 amending the Annex to Council Framework Decision 2004/757/JHA as regards the inclusion of 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’, OJ L 379, 13.11.2020, p. 55.
( 21 ) 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’ (OJ L 178, 20.05.2021, p. 1).
( 22 ) Commission Delegated Directive (EU) 2022/1326 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’ (OJ L 200, xx.xx.2022, p. 148).