Trade in drug precursors is subject to strict controls at both international and EU level. Illicit drug producers manage however to “divert” these substances from legal trade, or replace them with substitutes, not yet controlled. Legislators try to keep pace with these developments, as illustrated by the recent Commission proposals to amend the 2004 and 2005 Regulations on drug precursors, due to be voted in plenary in October.
Between legitimate and illicit use
The term “drug precursor” is widely, though imprecisely, used for a range of substances which, besides applications in the chemicals industry, are also components of illicit drugs. BMK, ephedrine and pseudo-ephedrine (used for amphetamine and methamphetamine) and PMK (ecstasy) are among the most sought-after substances of this kind.
Traffickers use various means to divert these substances from licit trade, including setting up “front” companies and colluding with precursor producers or traders. Given the primary purpose of drug precursors, the legislator’s response needs to strike a balance between preventing their illicit use and the commercial needs of legitimate operators.
The 1988 United Nations Convention is one of three major UN drug-related conventions. The Convention and in particular its Article 12 is the centre-piece of the international framework for drug-precursor control. Two tables listing substances frequently used in the manufacture of illicit drugs are annexed to it.
Article 12 provides for international cooperation in preventing the diversion of drug precursors. It sets out actions required of governments, including controlling producers and distributors, as well as monitoring international trade in precursors. To this end, importing countries may require exporting states to inform them in advance of planned precursor shipments (pre-export notifications).
The International Narcotics Control Board (INCB) is the independent, quasi-judicial expert body monitoring implementation of the three UN conventions. This includes drafting annual reports on the implementation of Article 12. In this respect, governments effecting seizures are obliged to report annually on substances frequently used in the illicit manufacture of drugs. On this basis the INCB identifies regional and global patterns and trends.
The EU’s laws and polices
The current regulatory framework
The EU is party to the 1988 UN Convention and participates in the relevant policy-making and operational activities of the UN bodies. The Convention was first implemented by directives, later replaced by two regulations:
- The 2004 Regulation on intra-EU trade in precursors, and
- The 2005 Regulation governing trade between the EU and third countries.
The Regulations provide for registration and licensing of businesses involved, and set up documentation and labelling requirements. Operators are under the obligation to notify the competent authorities of any suspicious transactions. The system is supposed to operate in a spirit of cooperation between authorities and industry.
|The EU Drugs Strategy 2005-12 and the resulting EU Drugs Action Plan for 2009-12 set out the objective of reducing the diversion and trafficking in the EU of drug precursors. The problem has again been addressed in the new EU Drugs Strategy (2013-20).|
In 2010, the Commission adopted a report on the implementation and functioning of the EU legislation on drug precursors. Whereas its conclusions were for the most part positive, it did identify some deficiencies in the system.
A major concern was the diversion of large quantities of acetic anhydride (AA, the main heroin precursor), from intra-EU trade (in 2008, 75% of global AA seizures were in the EU).
Moreover, the Commission pointed to problems with ephedrine and pseudoephedrine, substances primarily used for manufacturing cold and allergy medicines. These substances can, however, be extracted easily to produce methamphetamine (a drug widely used in North America and Eastern Asia, but not popular among EU illicit drug users).
In its series of annual reports the INCB has encouraged the European Commission and Member States (MS) to enhance controls on trade in AA. It also made a general recommendation to the parties to the 1988 Convention to control pharmaceutical preparations containing ephedrine and pseudoephedrine in the same way as they control the “scheduled substances” listed in the annex to the Convention.
Pharmaceuticals are excluded from the scope of drug precursor legislation and, in cases when they are not placed on the EU market, also from EU pharmaceuticals legislation. This means that they cannot be stopped or seized by Member States’ authorities even if the shipment in question is highly suspicious (e.g. sent to one of the leading methamphetamine producing countries, such as Mexico).
In order to address these problems, in 2012, the Commission made proposals to amend both the 2004 (2012/0261(COD)) and 2005 (2012/0250(COD)) Regulations. In order to ensure consistency between internal and external EU policies in this area, a number of provisions are common to the two proposals.
In the report on the external trade proposal (rapporteur Franck Proust, EPP, France), adopted by the Committee on International Trade, MS’ authorities have been granted the possibility to stop and seize shipments of medicinal products where there are suspicions that they are being used to illicitly manufacture narcotic drugs. Moreover, the report introduces a rapid response mechanism whereby MS and the Commission could monitor new diversion trends with a view to being able to react effectively. Information on stopped shipments and seizures would be shared by means of a European database, with strict provisions on data protection to ensure that the information is solely used for the intended purpose, namely to prevent diversion onto the illegal market. In addition, the report proposed to include pharmaceuticals containing ephedrine and pseudoephedrine in the definition of “scheduled substances” covered by EU drug precursor legislation, thus going further than the original proposal.
The Civil Liberties Committee report on the proposal concerning intra-EU trade (rapporteur Anna Hedh, S&D, Sweden) provides for registration of end-users of AA (this requirement is currently limited to operators placing it on the market). Moreover, some general modifications of the system have been proposed. These include establishing a European database on drug precursors, as well as a list of EU licensed or registered operators and users legally trading in or using drug precursors.