REPORT on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 273/2004 on drug precursors
15.5.2013 - (COM(2012)0548 – C7‑0319/2012 – 2012/0261(COD)) - ***I
Committee on Civil Liberties, Justice and Home Affairs
Rapporteur: Anna Hedh
DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 273/2004 on drug precursors
(COM(2012)0548 – C7‑0319/2012 – 2012/0261(COD))
(Ordinary legislative procedure: first reading)
The European Parliament,
– having regard to the Commission proposal to Parliament and the Council (COM(2012)0548),
– having regard to Article 294(2) and Article 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7‑0319/2012),
– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,
– having regard to Rules 55 of its Rules of Procedure,
– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A7-0153/2013),
1. Adopts its position at first reading hereinafter set out;
2. Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;
3. Instructs its President to forward its position to the Council, the Commission and the national parliaments;
Amendment 1 Proposal for a regulation Recital 10 | ||||||||||||||||||||||||||||
Text proposed by the Commission |
Amendment | |||||||||||||||||||||||||||
(10) A European database on drug precursors should be created to simplify the reporting by Member States with regard to seizures and stopped shipments, to create a European register of operators and users holding a license or a registration which will facilitate verification of the legitimacy of commercial transactions involving scheduled substances, and to enable operators to provide the competent authorities with information about their legal transactions involving scheduled substances. |
(10) A European database on drug precursors should be created to simplify the reporting by Member States with regard to seizures and stopped shipments, where possible in an aggregated and anonymised manner and in the least intrusive way as regards the processing of personal data, taking into account the principle of data limitation and state of the art of privacy-enhancing technologies, to create a European register of operators and users holding a license or a registration which will facilitate verification of the legitimacy of commercial transactions involving scheduled substances, and to enable operators to provide the competent authorities with information about their legal transactions involving scheduled substances. | |||||||||||||||||||||||||||
Justification | ||||||||||||||||||||||||||||
To ensure adequate data protection, data on seizures and stopped shipments should, where possible, be reported to the Commission and to the UN should in aggregated and anonymised manner. | ||||||||||||||||||||||||||||
Amendment 2 Proposal for a regulation Recital 11 | ||||||||||||||||||||||||||||
Text proposed by the Commission |
Amendment | |||||||||||||||||||||||||||
(11) Regulation (EC) No 273/2004 envisages the processing of data. Such processing of data may also cover personal data which should be carried out in accordance with Union Law. |
(11) Regulation (EC) No 273/2004 envisages the processing of information, including the processing of personal data, for the purposes of enabling the competent authorities to monitor the placing on the market of drug precursors and to prevent the diversion of scheduled substances. The processing of personal data should be carried out in accordance with Union law on data protection and, in particular, with requirements relating to data quality, proportionality, purpose limitation, and rights to information, access, rectification of data, erasure and blocking, organisational and technical measures and international transfers of personal data. Data should be adequate, accurate, relevant and not excessive in relation to the purpose for which it is collected. It should not be processed for longer than necessary in relation to the purpose for which it is collected and its accuracy should be regularly reviewed. Processing of data should be carried out under the supervision of the Member States' competent authorities, in particular the public independent authorities designated by the Member States, as regards processing of personal data carried out in the Member States. It should also be carried out under the supervision of the European Data Protection Supervisor, as regards the processing of personal data carried out by the Commission within the framework of Regulation (EC) No 273/2004. In order to enable law enforcement authorities to detect, prevent, investigate or prosecute drug trafficking criminal offences, Member States should be allowed to adopt legislative measures to grant their competent authorities access to personal data processed pursuant to Regulation (EC) No 273/2004 for those purposes and in so far as is necessary, proportionate and subject to adequate safeguards. Since such processing constitutes a restriction of the fundamental right to the protection of personal data, it should be interpreted restrictively and in accordance with the Charter of Fundamental Rights of the European Union and the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such processing should only take place on a case-by-case basis and provided that the competent law enforcement authorities have reasonable grounds for believing that it will substantially assist them in preventing, detecting, or investigating drug trafficking criminal offences. | |||||||||||||||||||||||||||
Justification | ||||||||||||||||||||||||||||
This amendment is linked to the change proposed in Art 13b. It is important to specify more in detail the essential elements of the data processing operations that are included in this Regulation. While most data processing will apply to companies or legal persons, in many cases natural persons will be also identifiable. This amendment takes into account recommendations made by the EDPS. | ||||||||||||||||||||||||||||
Amendment 3 Proposal for a regulation Recital 15 | ||||||||||||||||||||||||||||
Text proposed by the Commission |
Amendment | |||||||||||||||||||||||||||
(15) In order to achieve the objectives of Regulation (EC) No 273/2004, 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 to specify the requirements and conditions for the granting of the licence and registration, for obtaining and using customer declarations, for the documentation and labelling of mixtures, for provision of information by the operators on transactions involving scheduled substances, for listing operators and users having obtained a licence or registration in the European register and in order to amend the Annexes. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. |
(15) In order to achieve the objectives of Regulation (EC) No 273/2004, 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 to specify the requirements and conditions for the granting of the licence and registration, for obtaining and using customer declarations, for the documentation and labelling of mixtures, for provision of information by the operators on transactions involving scheduled substances, for listing operators and users having obtained a licence or registration in the European register and in order to amend the Annexes. Such delegated acts should also determine categories of personal data which can be processed by Member States and operators pursuant to Regulation (EC) No 273/2004, categories of personal data which can be stored in the European database, the procedures by which data subjects can exercise their rights to information, access, rectification, erasure or blocking of personal data processed in the European database, and the categories of personal data which are to be processed by operators for reporting unusual or suspected transactions. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that it seek the opinion of the European Data Protection Supervisor when preparing delegated acts relating to the processing of personal data pursuant to Regulation (EC) No 273/2004. | |||||||||||||||||||||||||||
Justification | ||||||||||||||||||||||||||||
It is important to specify more in detail the essential elements of the data processing operations that are included in this Regulation. While most data processing will apply to companies or legal persons, in many cases natural persons will be also identifiable. This amendment takes into account recommendations made by the EDPS. | ||||||||||||||||||||||||||||
Amendment 4 Proposal for a regulation Article 1 – point 1 – point b Regulation (EC) No 273/2004 Article 2 – point h | ||||||||||||||||||||||||||||
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Justification | ||||||||||||||||||||||||||||
From the opinion of the European Economic and Social Committee. | ||||||||||||||||||||||||||||
Amendment 5 Proposal for a regulation Article 1 – point 2 – point a Regulation (EC) No 273/2004 Article 3 – paragraph 2 | ||||||||||||||||||||||||||||
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Justification | ||||||||||||||||||||||||||||
Operators should be discouraged from "shopping around" in the EU for the competent authorities with the lightest licensing/registration regime. | ||||||||||||||||||||||||||||
Amendment 6 Proposal for a regulation Article 1 – point 2 – point c Regulation (EC) No 273/2004 Article 3 – paragraph 6 | ||||||||||||||||||||||||||||
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Justification | ||||||||||||||||||||||||||||
Operators should be discouraged from "shopping around" in the EU for the competent authorities with the lightest licensing/registration regime. | ||||||||||||||||||||||||||||
Amendment 7 Proposal for a regulation Article 1 – point 2 – point f Regulation (EC) No 273/2004 Article 3 – paragraph 9 | ||||||||||||||||||||||||||||
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Amendment 8 Proposal for a regulation Article 1 – point 6 Regulation (EC) No 273/2004 Article 8 – paragraph 3 | ||||||||||||||||||||||||||||
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Justification | ||||||||||||||||||||||||||||
The categories of personal data which will be processed for this purpose must be specified. Since the proposal does not specify those categories, this should be done by means of delegated acts. This amendment takes account of recommendations of the EDPS. | ||||||||||||||||||||||||||||
Amendment 9 Proposal for a regulation Article 1 – point 6 Regulation (EC) No 273/2004 Article 8 – paragraph 3a (new) | ||||||||||||||||||||||||||||
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Amendment 10 Proposal for a regulation Article 1 – point 9 Regulation (EC) No 273/2004 Article 13a – introductory part | ||||||||||||||||||||||||||||
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Justification | ||||||||||||||||||||||||||||
It is very important first to establish the rules concerning requirements and conditions, including requirements on data protection, before establishing the Database. | ||||||||||||||||||||||||||||
Amendment 11 Proposal for a regulation Article 1 – point 9 Regulation (EC) No 273/2004 Article 13a – point a | ||||||||||||||||||||||||||||
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Justification | ||||||||||||||||||||||||||||
To ensure adequate data protection, data on seizures and stopped shipments should, where possible, be reported to the Commission and to the UN should in aggregated and anonymised manner. | ||||||||||||||||||||||||||||
Amendment 12 Proposal for a regulation Article 1 – point 9 Regulation (EC) No 273/2004 Article 13a – paragraphs 1a, 1b, 1c and 1d (new) | ||||||||||||||||||||||||||||
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Amendment 13 Proposal for a regulation Article 1 – point 10 Regulation (EC) No 273/2004 Article 13b – paragraph 1 | ||||||||||||||||||||||||||||
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Justification | ||||||||||||||||||||||||||||
This amendment clarifies that the data protection authorities shall ensure that the rights of data subjects are protected. The amendment takes into account recommendations made by the EDPS. The wording is similar to existing Community legislation (e.g. provisions in IMI Regulation (EC) No 1024/2012). | ||||||||||||||||||||||||||||
Amendment 14 Proposal for a regulation Article 1 – point 10 Regulation (EC) No 273/2004 Article 13b – paragraph 1a (new) | ||||||||||||||||||||||||||||
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Justification | ||||||||||||||||||||||||||||
In order to ensure adequate data protection it is important to establish the purpose for which personal data under this Regulation will be processed (purpose limitation). At the same time, the possibility currently available under the Data Protection Directive for national competent authorities to use - in duly justified and under national data protection rules - the data provided for the prevention, investigation or prosecution of criminal offences (to discover and dismantle drug trafficking networks) should be preserved. | ||||||||||||||||||||||||||||
Amendment 15 Proposal for a regulation Article 1 – point 10 Regulation (EC) No 273/2004 Article 13b – paragraph 2 | ||||||||||||||||||||||||||||
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Justification | ||||||||||||||||||||||||||||
This amendment clarifies that the data protection authorities shall ensure that the rights of data subjects are protected. The amendment takes into account recommendations made by the EDPS. The wording is similar to existing Community legislation (e.g. provisions in IMI Regulation (EC) No 1024/2012). | ||||||||||||||||||||||||||||
Amendment 16 Proposal for a regulation Article 1 – point 10 Regulation (EC) No 273/2004 Article 13b – paragraph 2a (new) | ||||||||||||||||||||||||||||
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Justification | ||||||||||||||||||||||||||||
This amendment aims at ensuring cooperation between the national data protection authorities and the EDPS for the proper monitoring of the processing activities carried out in the framework of the EU Database. The system of coordinated supervision has already been established in several EU legal instruments, namely IMI Regulation, Eurodac, VIS or SIS II. | ||||||||||||||||||||||||||||
Amendment 17 Proposal for a regulation Article 1 – point 10a Regulation (EC) No 273/2004 Article 13 c (new) | ||||||||||||||||||||||||||||
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Justification | ||||||||||||||||||||||||||||
Data protection law, the various elements of processing personal data, including the exercise of rights by data subjects, must be specified in delegated acts. This amendment takes into account recommendations made by the EDPS. | ||||||||||||||||||||||||||||
Amendment 18 Proposal for a regulation Article 1 – point 11 Regulation (EC) No 273/2004 Article 14 – paragraph 1 – point b a (new) | ||||||||||||||||||||||||||||
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Justification | ||||||||||||||||||||||||||||
Data protection law, the various elements of processing personal data, including the exercise of rights by data subjects, must be specified in delegated acts. This amendment takes into account recommendations made by the EDPS. | ||||||||||||||||||||||||||||
Amendment 19 Proposal for a regulation Article 1 – point 12 Regulation (EC) No 273/2004 Article 16 – paragraph 3 | ||||||||||||||||||||||||||||
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Amendment 20 Proposal for a regulation Article 1 a (new) | ||||||||||||||||||||||||||||
Text proposed by the Commission |
Amendment | |||||||||||||||||||||||||||
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Article 1a | |||||||||||||||||||||||||||
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Review | |||||||||||||||||||||||||||
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By ...*, the Commission shall submit a report to the European Parliament and to the Council on the implementation and functioning of Regulation (EC) No 273/2004, and in particular on the possible need for additional action to monitor and control suspicious transactions with non-scheduled substances. | |||||||||||||||||||||||||||
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* OJ please insert date: 66 months after the date of entry into force of this Regulation. | |||||||||||||||||||||||||||
Amendment 21 Proposal for a regulation Article 2 | ||||||||||||||||||||||||||||
Text proposed by the Commission |
Amendment | |||||||||||||||||||||||||||
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. |
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall be consolidated with the Regulation it is amending. This Regulation shall be binding in its entirety and directly applicable in all Member States. |
EXPLANATORY STATEMENT
Drug precursors are chemicals which are widely used for different industrial processes (in the production of plastics, pharmaceuticals, cosmetics, perfumes or detergents), but which can also be misused for illegal drug production. Drug precursors are rarely produced by criminals who intend to use them for illegal drug production, since the manufacture of drug precursors requires substantial infrastructure. Instead, those criminals often try to divert the legal trade in drug precursors, either by theft or via purchase.
The existing regulatory framework has therefore set up a system of licensing and registration to monitor the trade in drug precursors in the EU, with specific obligations imposed on the companies involved (these include preventing theft, checking customers, and detecting suspicious transactions) and on public authorities (these include administrative procedures and on-site inspections). The level of control depends on the category of the substance in question. Based on global UN rules, 23 so-called "scheduled substances" are divided into 3 categories, from the most dangerous substances (category 1) to bulk chemicals (category 3). These categories are complemented by a voluntary monitoring scheme for "non-scheduled substances".
In the past few years, the EU has come under some international criticism for its allegedly soft control measures. The criticism has concentrated on one substance acetic anhydride ('AA'), which is currently contained in category 2. AA is used legally for the production of plastics, textiles, dyes, photochemistry, perfumes, explosives and aspirin, but can also be used illegally for the production of heroin, amphetamine and cocaine. It is the main drug precursor for heroin (which, in turn, accounts for the greatest share of mortality-related drug use in the EU).
In a recent "EU drug markets report", prepared out by the EMCDDA and EUROPOL, specific attention was drawn to the illicit diversion of AA in the EU by sophisticated criminal organisations.[1]
The Commission's proposal seeks to address the problem of illegal diversion of drug precursors in 3 ways:
* Better monitoring of the trade in AA:
The Commission proposes to create a new sub-category, with requirements that are more stringent than for category 2 substances, but not as stringent as those that apply for category 1 substances. Most importantly, end-users of AA will now have to register with the competent authorities, Up to now, only the manufacturers and operators handling AA had to register;
* Rules on registration are strengthened:
The Commission proposes to tighten up the definitions used, and to introduce more harmonised conditions/requirements for registration. It also proposes to create the necessary flexibility to adapt categories to changing circumstances;
* Establishment of European Database on Drug Precursors:
The Commission proposes to set up a new EU-wide database with information on seizures of drug precursors in the EU, and with a list of all licensed or registered operators and end-users of drug precursors in the EU.
Your Rapporteur broadly supports the proposal. Since only small quantities of drug precursors are required for the production of illegal drugs, and since such precursors are produced globally in vast quantities, great care is needed to ensure that those drug precursors are not diverted from the legal trade in the EU. EU action in this field will therefore force traffickers to move their activities to other parts of the world, and will hopefully encourage other regions in the world to follow the EU's example.
It is very important that a drug precursor such as AA, which is a critical component for heroin production, does not fall into the wrong hands. The quantities of AA seized in Europe in 2008 would have satisfied approximately half the yearly Afghan demand for AA, for use in heroin production. The Commission appears to have carefully considered the options open to it and to have chosen a practical and proportionate solution. The proposal allows for legal trade in, and lawful use of, acetic anhydride, without imposing unnecessary administrative burdens on enterprises. At the same time, it allows the competent authorities to more closely monitor trade flows to detect and stop illegal diversion.
Your rapporteur believes that the proposal contains valuable improvements on the current situation. The introduction of delegated acts will give the Commission the necessary flexibility to react quickly to changing circumstances and to tackle inventive drug-traffickers, while ensure proper parliamentary oversight of any changes. The streamlining and harmonisation of registration and licensing requirements across the EU is to be supported to prevent market fragmentation and to prevent criminals from targeting the "weakest link" within the EU internal market. Finally, the setting up of the European Database is to be welcomed, as it will create the necessary transparency and enhance the monitoring of all drug precursors in the EU.
While supporting the general line of the Commission's proposal, your rapporteur proposes to strengthen certain elements. In relation to the data protection issues, your rapporteur proposes to enhance and clarify the use and processing of data and to restrict access to the database. Your rapporteur seeks to discourage operators and users from "shopping around" in the EU for the lightest registration regime, and proposes that a close eye be kept on further developments of drug precursors, including non-scheduled substances.
- [1] EU drug markets report: a strategic analysis, EMCDDA/Europol, January 2013
PROCEDURE
Title |
Amending Regulation (EC) No 273/2004 on drug precursors |
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References |
COM(2012)0548 – C7-0319/2012 – 2012/0261(COD) |
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Date submitted to Parliament |
27.9.2012 |
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Committee responsible Date announced in plenary |
LIBE 22.10.2012 |
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Committee(s) asked for opinion(s) Date announced in plenary |
INTA 22.10.2012 |
ENVI 22.10.2012 |
IMCO 22.10.2012 |
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Not delivering opinions Date of decision |
INTA 10.10.2012 |
ENVI 29.11.2012 |
IMCO 10.10.2012 |
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Rapporteur(s) Date appointed |
Anna Hedh 10.12.2012 |
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Discussed in committee |
22.1.2013 |
20.2.2013 |
20.3.2013 |
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Date adopted |
24.4.2013 |
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Result of final vote |
+: –: 0: |
47 3 5 |
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Members present for the final vote |
Jan Philipp Albrecht, Roberta Angelilli, Edit Bauer, Rita Borsellino, Emine Bozkurt, Arkadiusz Tomasz Bratkowski, Carlos Coelho, Ioan Enciu, Cornelia Ernst, Monika Flašíková Beňová, Hélène Flautre, Kinga Gál, Kinga Göncz, Nathalie Griesbeck, Sylvie Guillaume, Anna Hedh, Salvatore Iacolino, Sophia in ‘t Veld, Lívia Járóka, Teresa Jiménez-Becerril Barrio, Timothy Kirkhope, Juan Fernando López Aguilar, Baroness Sarah Ludford, Monica Luisa Macovei, Svetoslav Hristov Malinov, Véronique Mathieu Houillon, Anthea McIntyre, Nuno Melo, Louis Michel, Claude Moraes, Antigoni Papadopoulou, Georgios Papanikolaou, Jacek Protasiewicz, Carmen Romero López, Judith Sargentini, Birgit Sippel, Csaba Sógor, Renate Sommer, Nils Torvalds, Wim van de Camp, Axel Voss, Cecilia Wikström, Tatjana Ždanoka, Auke Zijlstra |
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Substitute(s) present for the final vote |
Vilija Blinkevičiūtė, Anna Maria Corazza Bildt, Monika Hohlmeier, Siiri Oviir, Hubert Pirker, Raül Romeva i Rueda, Manfred Weber |
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Substitute(s) under Rule 187(2) present for the final vote |
Philip Bradbourn, Jörg Leichtfried, Sabine Lösing, Britta Reimers |
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Date tabled |
15.5.2013 |
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