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Document 62021CJ0806
Judgment of the Court (Seventh Chamber) of 2 February 2023.#Criminal proceedings against TF.#Request for a preliminary ruling from the Hoge Raad der Nederlanden.#Reference for a preliminary ruling – Drug precursors – Framework Decision 2004/757/JHA – Article 2(1)(d) – Person involved in the transport and distribution of precursors used for the illicit production or manufacture of drugs – Regulation (EC) No 273/2004 – Scheduled substances – Article 2 – Concept of ‘operator’ – Article 8(1) – Circumstances suggesting that scheduled substances might be diverted for the illicit manufacture of narcotic drugs or psychotropic substances – Obligation to notify those circumstances – Concept of ‘circumstance’ – Scope.#Case C-806/21.
Judgment of the Court (Seventh Chamber) of 2 February 2023.
Criminal proceedings against TF.
Request for a preliminary ruling from the Hoge Raad der Nederlanden.
Reference for a preliminary ruling – Drug precursors – Framework Decision 2004/757/JHA – Article 2(1)(d) – Person involved in the transport and distribution of precursors used for the illicit production or manufacture of drugs – Regulation (EC) No 273/2004 – Scheduled substances – Article 2 – Concept of ‘operator’ – Article 8(1) – Circumstances suggesting that scheduled substances might be diverted for the illicit manufacture of narcotic drugs or psychotropic substances – Obligation to notify those circumstances – Concept of ‘circumstance’ – Scope.
Case C-806/21.
Judgment of the Court (Seventh Chamber) of 2 February 2023.
Criminal proceedings against TF.
Request for a preliminary ruling from the Hoge Raad der Nederlanden.
Reference for a preliminary ruling – Drug precursors – Framework Decision 2004/757/JHA – Article 2(1)(d) – Person involved in the transport and distribution of precursors used for the illicit production or manufacture of drugs – Regulation (EC) No 273/2004 – Scheduled substances – Article 2 – Concept of ‘operator’ – Article 8(1) – Circumstances suggesting that scheduled substances might be diverted for the illicit manufacture of narcotic drugs or psychotropic substances – Obligation to notify those circumstances – Concept of ‘circumstance’ – Scope.
Case C-806/21.
Court reports – general
ECLI identifier: ECLI:EU:C:2023:61
JUDGMENT OF THE COURT (Seventh Chamber)
2 February 2023 ( *1 )
(Reference for a preliminary ruling – Drug precursors – Framework Decision 2004/757/JHA – Article 2(1)(d) – Person involved in the transport and distribution of precursors used for the illicit production or manufacture of drugs – Regulation (EC) No 273/2004 – Scheduled substances – Article 2 – Concept of ‘operator’ – Article 8(1) – Circumstances suggesting that scheduled substances might be diverted for the illicit manufacture of narcotic drugs or psychotropic substances – Obligation to notify those circumstances – Concept of ‘circumstance’ – Scope)
In Case C‑806/21,
REQUEST for a preliminary ruling under Article 267 TFEU from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), made by decision of 14 December 2021, received at the Court on 21 December 2021, in the criminal proceedings against
TF
other party to the proceedings:
Openbaar Ministerie,
THE COURT (Seventh Chamber),
composed of M.L. Arastey Sahún, President of the Chamber, F. Biltgen (Rapporteur) and J. Passer, Judges,
Advocate General: P. Pikamäe,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– |
the Netherlands Government, by M.K. Bulterman and J. Langer, acting as Agents, |
– |
the European Commission, by L. Haasbeek and R. Lindenthal, acting as Agents, |
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 |
This request for a preliminary ruling concerns the interpretation of Regulation (EC) No 273/2004 of the European Parliament and of the Council of 11 February 2004 on drug precursors (OJ 2004 L 47, p. 1), as amended by Regulation (EU) No 1258/2013 of the European Parliament and of the Council of 20 November 2013 (OJ 2013 L 330, p. 21; ‘Regulation No 273/2004’). |
2 |
The request has been made in criminal proceedings brought in the Netherlands against TF, who is accused of having transported scheduled substances used for the illicit manufacture of narcotic drugs or psychotropic substances. |
Legal context
International law
3 |
Article 3 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, concluded in Vienna on 20 December 1988 (United Nations Treaty Series, Vol. 1582, p. 95), and approved by the European Economic Community by Council Decision 90/611/EEC of 22 October 1990 (OJ 1990 L 326, p. 56; ‘the Vienna Convention against Illicit Traffic’), entitled ‘Offences and sanctions’, provides, in paragraph 1 thereof: ‘Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally:
…
…’ |
4 |
Article 12 of that convention, entitled ‘Substances frequently used in the illicit manufacture of narcotic drugs or psychotropic substances’, states: ‘1. The Parties shall take the measures they deem appropriate to prevent diversion of substances in Table I and Table II used for the purpose of illicit manufacture of narcotic drugs or psychotropic substances, and shall co-operate with one another to this end. … 8.
… 9. Each Party shall, with respect to substances in Table I and Table II, take the following measures:
… …’ |
European Union law
Framework Decision 2004/757/JHA
5 |
Recitals 1 to 3 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 trafficking (OJ 2004 L 335, p. 8) state:
|
6 |
Article 1 of that framework decision, entitled ‘Definitions’, provides: ‘For the purposes of this Framework Decision: …
…’ |
7 |
Article 2 of the said framework decision, entitled ‘Crimes linked to trafficking in drugs and precursors’, provides, in paragraph 1 thereof: ‘Each Member State shall take the necessary measures to ensure that the following intentional conduct when committed without right is punishable: …
|
Regulation No 273/2004
8 |
Recitals 2 to 6, 8, 11 to 13 and 17 of Regulation No 273/2004 state:
…
…
…
|
9 |
Article 1 of Regulation No 273/2004 provides: ‘This Regulation establishes harmonised measures for the intra-Union control and monitoring of certain substances frequently used for the illicit manufacture of narcotic drugs or psychotropic substances with a view to preventing the diversion of such substances.’ |
10 |
Article 2 of that regulation provides: ‘For the purposes of this Regulation the following definitions shall apply:
…
…’ |
11 |
Article 8 of the said regulation, entitled ‘Notification of the competent authorities’, provides, in paragraph 1 thereof: ‘Operators shall notify the competent authorities immediately of any circumstances, such as unusual orders or transactions involving scheduled substances to be placed on the market, which suggest that such substances might be diverted for the illicit manufacture of narcotic drugs or psychotropic substances. To that end, operators shall provide any available information allowing the competent authorities to verify the legitimacy of the relevant order or transaction.’ |
12 |
According to Article 10(1) of the same regulation: ‘In order to ensure the correct application of Articles 3 to 8, each Member State shall adopt the measures necessary to enable its competent authorities to perform their control and monitoring duties, and in particular:
|
13 |
Annex I to Regulation No 273/2004 lists the ‘scheduled substances’ within the meaning of Article 2(a) of the said regulation. Hydrochloric acid and sulphuric acid are listed in that annex as scheduled substances of category 3. |
Regulation No 111/2005
14 |
Article 1 of 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 2005 L 22, p. 1), as amended by Regulation (EU) No 1259/2013 of the European Parliament and of the Council of 20 November 2013 (OJ 2013 L 330, p. 30; ‘Regulation No 111/2005’), is worded as follows: ‘This Regulation lays down rules for the monitoring of trade between the Union and third countries in certain substances frequently used for the illicit manufacture of narcotic drugs and psychotropic substances (hereinafter referred to as drug precursors) for the purpose of preventing the diversion of such substances. It applies to imports, exports and intermediary activities.’ |
Netherlands law
The Law on the prevention of the diversion of chemical substances
15 |
Article 2(a) of the Wet voorkoming misbruik chemicaliën (Law on the prevention of the diversion of chemical substances), in the version applicable to the facts in the main proceedings (Stb. 2008, No 112), provides: ‘It shall be prohibited to act contrary to the rules laid down by or pursuant to:
…’ |
The Law on economic offences
16 |
Article 1(1) of the Wet op de economische delicten (Law on economic offences), as amended on 14 October 2015 (Stb. 2015, No 399), is worded as follows: ‘Economic offences shall include:
|
17 |
Article 2(1) of the Law on economic offences, as amended on 14 October 2015, provides: ‘The economic offences referred to in Article 1(1°) and (2°) and Article 1a(1°) and (2°) are crimes, in so far as they are committed intentionally; in so far as those economic offences are not crimes, they are infringements.’ |
18 |
Article 6(1)(1°) of the said law states: ‘1. Anyone who commits an economic offence shall be punished:
|
The Law on opium
19 |
Article 2 of the Opiumwet (Law laying down provisions on opium and other narcotic drugs) of 12 May 1928, in the version applicable to the facts in the main proceedings (Stb. 2015, No 429) (‘the Law on opium’), provides: ‘It is prohibited, in the case of a substance or preparation referred to in List I annexed to this Law or designated under Article 3a(5):
|
20 |
Article 10 of that law is worded as follows: ‘1. Anyone who acts contrary to:
… shall be punished by a custodial sentence not exceeding six months or by a fine in the fourth category. … 3. Anyone who intentionally violates the prohibition laid down in Article 2(C) shall be punished by a custodial sentence of six years or more or by a fine in the fifth category. 4. Anyone who intentionally violates the prohibition laid down in Article 2(B) or (D) shall be punished by a custodial sentence not exceeding eight years or by a fine in the fifth category. 5. Anyone who intentionally violates a prohibition laid down in Article 2(A) shall be punished by a custodial sentence not exceeding 12 years or by a fine in the fifth category. …’ |
21 |
Article 10a(1) of the said law states: ‘Anyone who, in order to prepare or facilitate an offence referred to in Article 10(4) or (5):
shall be punished by a custodial sentence not exceeding six years or by a fine in the fifth category.’ |
The dispute in the main proceedings and the questions referred for a preliminary ruling
22 |
TF was charged with hiring a vehicle that he then used to travel to a chemical company in Liège (Belgium) on or around 12 January 2016 where he took delivery, on several occasions, of large quantities of chemicals, including sulphuric acid, hydrochloric acid, formic acid and caustic soda. He then transported those products to a garage and a car park in the Netherlands, for the purposes of delivering them. While on his way to Waalre (Netherlands) to make an additional delivery, TF and the person accompanying him in another vehicle were arrested by the police. |
23 |
The chemicals at issue were not labelled for the most part nor did TF have the required transport documents. |
24 |
The hydrochloric acid and sulphuric acid transported and delivered by TF (‘the products at issue’) are listed in category 3 of Annex I to Regulation No 273/2004 and are therefore ‘scheduled substances’ within the meaning of Article 2(a) of that regulation. Consequently, the Openbaar Ministerie (public prosecution service, Netherlands) instituted criminal proceedings against TF comprising two charges, namely (i) preparing or facilitating the preparation, treatment, processing, sale, delivery, supply, transport, manufacture, import and export of MDMA and/or amphetamine, acts punishable under Article 10a(1), (1°) and (3°) of the Law on opium and (ii) non-compliance with the obligation to notify laid down in Article 8(1) of Regulation No 273/2004. |
25 |
By judgment of 11 June 2020, the Gerechtshof ’s-Hertogenbosch (Court of Appeal, ’s-Hertogenbosch, Netherlands) found TF guilty of the first of those charges. TF maintained that he was not unaware of the nature of the products at issue, but that he had transported them without payment. That court nevertheless found that, to the extent that it was common knowledge that such products could be used for the large-scale production of synthetic drugs, in particular amphetamine or MDMA, and that TF had transported them for the purpose of delivering them to unusual places, he could not have been unaware that those products had an illicit or criminal purpose. By his substantial contribution to the transport and delivery of those products, the said court held that TF had accepted the risk that the goods in question would be used for the production of synthetic drugs. By contrast, the same court acquitted TF of the second of those charges, holding that, even though TF may be classified as an ‘operator’ for the purposes of Article 2(d) of Regulation No 273/2004, the offences with which he is charged, namely transporting, receiving, storing or holding scheduled substances, do not constitute ‘circumstances’ that must be notified pursuant to Article 8(1) of that regulation. |
26 |
The public prosecution service filed an appeal on a point of law against that judgment before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands). |
27 |
That court is uncertain as to the interpretation of those provisions. In particular, it notes that Article 10a(1)(3°) of the Law on opium implements Article 2(1)(d) of Framework Decision 2004/757, which requires each Member State to ensure that the manufacture, transport or distribution of precursors, knowing that they are to be used in or for the illicit production or manufacture of drugs, is punishable. It therefore asks whether a person may, where he or she has manufactured, transported or distributed precursors knowing that they were going to be used in or for the production or manufacture of drugs, be found guilty simultaneously of a violation of the national legislation implementing Framework Decision 2004/757 and of non-compliance with the obligation to notify laid down in Article 8(1) of Regulation No 273/2004. |
28 |
The referring court questions, in particular, whether such an overlap is in conformity with the principle nemo tenetur se ipsum accusare enshrined in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union and in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. After all, the person concerned could not, in such a case, prevent the notification of his or her own criminal conduct pursuant to Article 8(1) of Regulation No 273/2004 from giving rise to prosecutions and possibly penalties for violation of the national legislation implementing Article 2(1) of Framework Decision 2004/757. |
29 |
In order to determine whether such an overlap is possible, the referring court considers it necessary, first, to determine whether the concept of ‘operator’, as defined in Article 2(d) of Regulation No 273/2004, must be interpreted broadly, meaning that any person who places scheduled substances on the market would constitute an ‘operator’, or strictly, as referring only to persons who engage in the legal trade in such substances. Second, it is also necessary to determine whether the concept of ‘circumstance’, contained in Article 8(1) of that regulation, must be interpreted broadly, meaning that it covers all conduct, including that of the operator him or herself, or strictly, meaning that it refers only to the conduct of third parties, the conduct of the operator being governed, for its part, by Framework Decision 2004/757. |
30 |
In those circumstances the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
|
31 |
By decision of 2 December 2022, the President of the Court, pursuant to Article 53(3) of the Rules of Procedure of the Court, granted the present case priority treatment. |
Consideration of the questions referred
The first question
32 |
By its first question, the referring court asks, in essence, whether Article 2(d) of Regulation No 273/2004 must be interpreted as meaning that a person who participates, in the context of an illegal activity, in the placing on the market of scheduled substances in the European Union constitutes an ‘operator’ for the purposes of that provision. |
33 |
To that end, it is important, in particular, to determine whether ‘placing on the market’, within the meaning of the said provision, refers to any making available of scheduled substances in the European Union, regardless of whether it is carried out in the context of a legal or illegal activity, or whether it covers only the making available of such substances carried out in the context of a legal activity. |
34 |
In accordance with the Court’s settled case-law, the interpretation of a provision of EU law requires that account be taken not only of its wording, but also of its context, the objectives pursued by the rules of which it is part (judgment of 18 October 2022, IG Metall and ver.di, C‑677/20, EU:C:2022:800, paragraph 31 and the case-law cited). |
35 |
Article 2(d) of Regulation No 273/2004 defines ‘operator’ as ‘any natural or legal person engaged in the placing on the market of scheduled substances’. That provision, as worded, does not specify whether the placing on the market of such substances also includes the marketing of them in the context of an illegal activity. |
36 |
As for Article 8(1) of that regulation, it provides that ‘operators shall notify the competent authorities immediately of any circumstances, such as unusual orders or transactions involving scheduled substances to be placed on the market, which suggest that such substances might be diverted for the illicit manufacture of narcotic drugs or psychotropic substances’ and that, ‘to that end, operators shall provide any available information allowing the competent authorities to verify the legitimacy of the relevant order or transaction’. |
37 |
It follows from that provision that the obligation to notify laid down by the EU legislature relates to orders and transactions which seem unusual, namely those which might have been carried out with the aim of illegally diverting those scheduled substances from their normal purpose. |
38 |
It follows that Article 8(1) of Regulation No 273/2004 obliges ‘operators’, within the meaning of Article 2(d) thereof, to notify any circumstances which suggest that scheduled substances to be placed on the market might be illegitimately removed from the legal trade for the purpose of illicit manufacture of narcotic drugs or psychotropic substances. |
39 |
Consequently, only those persons involved in the placing on the market of scheduled substances within a legal framework may be regarded as ‘operators’ for the purposes of the latter provision. |
40 |
That literal interpretation is supported, in the first place, by the context in which the provision at issue was adopted. |
41 |
First of all, Regulation No 273/2004 repealed and replaced, inter alia, Directive 92/109 and Commission Regulation (EC) No 1485/96 of 26 July 1996 laying down detailed rules for the application of Council Directive 92/109/EEC, as regards customer declarations of specific use relating to certain substances used in the illicit manufacture of narcotic drugs and psychotropic substances (OJ 1996 L 188, p. 28). Those acts, however, concerned the legal trade in drug precursors. The first recital of Directive 92/109 made express reference to the necessity of establishing ‘common rules at Community level in anticipation of the completed internal market in order to avoid distortion of competition in lawful trading and to ensure uniform application of the rules adopted’. The second recital of Regulation No 1485/96 stated, for its part, that ‘the establishment of provisions on customer declarations will help ensure that, on the occasion of each transaction, the use to be made by the customer of scheduled substances is clearly identified; whereas such identification will contribute to avoiding the diversion of scheduled substances to illicit drugs manufacture’. |
42 |
Next, recitals 3, 6 and 17 of Regulation No 273/2004 make reference to a system for monitoring the ‘trade’ in drug precursors and recitals 5 and 11 thereof state, respectively, the need ‘to detect possible cases of illicit diversion of drug precursors in the Community’ and that ‘measures should be adopted in order to guarantee better control of intra-Community trade in scheduled substances’. Recitals 6, 8 and 13 of that regulation draw a distinction between the lawful or legal trade in those substances and the illicit manufacture of them. |
43 |
Last, Article 3 of Regulation No 273/2004 on the requirements for the placing on the market of scheduled substances, provides, in paragraph 1 thereof, that ‘operators wishing to place on the market scheduled substances of categories 1 and 2 of Annex I shall be required to appoint an officer responsible for the trade in scheduled substances’, who ‘shall ensure that the trade in scheduled substances conducted by the operator takes place in compliance with [that regulation]’. Paragraphs 2 and 3 of that article also indicate, respectively, that ‘operators … shall obtain a licence from the competent authorities of the Member State in which they are established before they may possess or place on the market scheduled substances of category 1 of Annex I’ and that ‘any operator holding a licence shall supply scheduled substances of category 1 of Annex I only to operators … who also hold a licence and have signed a customer declaration as provided for in Article 4(1)’. In addition, paragraph 6 of that article requires operators to obtain registration from the competent authorities of the Member State in which they are established. It follows from the requirements relating to the placing on the market of scheduled substances, provided for in Article 3 of that regulation, that their purpose is to make the trade in scheduled substances subject to a legal framework. |
44 |
The same interpretation is required with regard to Articles 4 to 7 of Regulation No 273/2004, which lay down the formal rules to which trade in scheduled substances is subject, such as the need for the customer to declare the uses of those substances, the obligation on the operator to attach documentation to certain substances during transactions or indeed to mark certain substances by means of appropriate labelling. |
45 |
The same applies with regard to Article 10 of that regulation, which provides that ‘in order to ensure the correct application of Articles 3 to 8, each Member State shall adopt the measures necessary to enable its competent authorities to perform their control and monitoring duties, and in particular … to enter operators’ and users’ business premises in order to obtain evidence of irregularities’. |
46 |
It follows from all those provisions that their purpose is to make the trade in scheduled substances subject to a legal framework. |
47 |
The literal interpretation of the concept of ‘operator’, within the meaning of Article 2(d) of Regulation No 273/2004, set out in paragraph 39 above, is supported, in the second place, by the objectives pursued by the set of rules of which that provision forms part. |
48 |
As is apparent from Article 1 thereof, Regulation No 273/2004 establishes harmonised measures for the intra-Union control and monitoring of certain substances frequently used for the illicit manufacture of narcotic drugs or psychotropic substances with a view to preventing the diversion of such substances. That regulation was adopted, as the Court has already found, with a view to combating effectively the misuse of substances commonly used in the illicit manufacture of narcotic drugs or psychotropic substances by putting into place a monitoring system for the trade in those substances together with effective, proportionate and dissuasive penalties (judgments of 5 February 2015, M. and Others, C‑627/13 and C‑2/14, EU:C:2015:59, paragraph 53, and of 12 February 2015, Gielen and Others, C‑369/13, EU:C:2015:85, paragraph 36). |
49 |
It follows from recitals 1 to 6 that Regulation No 273/2004 constitutes the implementation into the EU legal order of Article 12 of the Vienna Convention against Illicit Traffic (judgment of 5 February 2015, M. and Others, C‑627/13 and C‑2/14, EU:C:2015:59, paragraph 47), which provides that the Member States which are parties thereto are to take the measures they deem appropriate to prevent diversion of listed substances used for the purpose of illicit manufacture of narcotic drugs or psychotropic substances, and are to cooperate with one another to that end. The said States must, inter alia, take the measures necessary to establish and maintain a system to monitor international trade in substances in order to facilitate the identification of suspicious operations. |
50 |
It should also be added that, according to the case-law of the Court, by Regulations Nos 273/2004 and 111/2005, which pursue the same objective, the EU legislature gave a detailed definition of the scheme applicable to drug precursors (judgment of 5 February 2015, M. and Others, C‑627/13 and C‑2/14, EU:C:2015:59, paragraph 52). Thus, on the one hand, Regulation No 273/2004 establishes harmonised measures for the intra-Union control and monitoring of drug precursors with a view to preventing their diversion and, on the other hand, Regulation No 111/2005 lays down, in accordance with Article 1 thereof, rules for the monitoring of trade between the European Union and third countries in drug precursors. |
51 |
Regulation No 273/2004 is therefore part of a broader set of rules, of which Framework Decision 2004/757 is also part. |
52 |
It should however be pointed out that Framework Decision 2004/757 lays down minimum provisions relating to the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, allowing a common approach at EU level to the fight against drug trafficking. To that end, Article 2 thereof provides that each Member State is to take the necessary measures to ensure that the intentional conduct it lists is punishable when committed without right, inter alia the manufacture, transport or distribution of precursors, knowing that they are to be used in or for the illicit production or manufacture of drugs. Furthermore, Article 1(2) of that framework decision defines the term ‘precursors’ as any substance scheduled in the Community legislation giving effect to the obligations deriving from Article 12 of the Vienna Convention against Illicit Traffic. |
53 |
It follows that, although Framework Decision 2004/757, Regulation No 273/2004 and Regulation No 111/2005 pursue the same objective, those texts, although complementary, have a different scope. Framework Decision 2004/757 determines the constituent elements of criminal acts in the field of illicit drug trafficking, which therefore concerns drug precursors and thus scheduled substances, whereas the scope of Regulations Nos 273/2004 and 111/2005 is restricted to the legal trade in such substances. |
54 |
That distinction follows, moreover, from the legal bases of those different acts. Framework Decision 2004/757 is based on Article 31(e) and Article 34(2)(b) TEU, replaced by Articles 82, 83 and 85 TFEU, which fall within Title V of that Treaty, entitled ‘Area of freedom, security and justice’, and, more specifically, within Chapter 4 thereof, relating to judicial cooperation in criminal matters. By contrast, the legal basis of Regulation No 273/2004 is Article 95 EC, replaced by Article 114 TFEU, which falls within Title VII of that Treaty, entitled ‘Common rules on competition, taxation and approximation of laws’. Likewise, Regulation No 111/2005 is based on Article 133 TEC, replaced by Article 207 TFEU. The latter article falls within Part Five of the FEU Treaty, entitled ‘The Union’s external action’, and, more specifically, within Title II thereof, entitled ‘Common commercial policy’. |
55 |
In the light of the foregoing, it must be held that a situation in which a person participates, in the context of an illegal activity, in the placing on the market of scheduled substances in the European Union does not fall within the scope of Regulation No 273/2004. |
56 |
Consequently, the answer to the first question is that Article 2(d) of Regulation No 273/2004 must be interpreted as meaning that a person who participates, in the context of an illegal activity, in the placing on the market of scheduled substances in the European Union is not an ‘operator’ for the purposes of that provision. |
The second question
57 |
In the light of the answer given to the first question, there is no need to answer the second question. |
Costs
58 |
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. |
On those grounds, the Court (Seventh Chamber) hereby rules: |
Article 2(d) of Regulation (EC) No 273/2004 of the European Parliament and of the Council of 11 February 2004 on drug precursors, as amended by Regulation (EU) No 1258/2013 of the European Parliament and of the Council of 20 November 2013, |
must be interpreted as meaning that a person who participates, in the context of an illegal activity, in the placing on the market of scheduled substances in the European Union is not an ‘operator’ for the purposes of that provision. |
[Signatures] |
( *1 ) Language of the case: Dutch.