Thirty-ninth Report of Session 2012-13 - European Scrutiny Committee Contents

17   Cooperation with the Russian Federation on the trade in drug precursors




COM(13) 4




COM(13) 3

Draft Council Decision on the conclusion of the Agreement between the European Union and the Russian Federation on drug precursors

Draft Council Decision on the signing, on behalf of the European Union, of the Agreement between the European Union and the Russian Federation on drug precursors

Legal base(a) Articles 207(4) and 218(6)(a) TFEU; QMV; EP consent

(b) Articles 207(4) and 218(5) TFEU; QMV

DepartmentHome Office
Basis of considerationMinister's letter of 11 April 2013
Previous Committee ReportHC 86-xxxii (2012-13), chapter 5 (13 February 2013)
Discussion in CouncilNo date set
Committee's assessmentLegally important
Committee's decisionCleared

Background and previous scrutiny

17.1  The United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, agreed in 1988, establishes a framework for international cooperation to prevent certain chemical substances, commonly used in a variety of industrial processes to manufacture pharmaceuticals and household goods, being "diverted" into illicit drug production. These substances are often referred to as "drug precursors". The Convention requires Contracting Parties (which include the EU and all Member States as well as Russia) to implement a series of measures to control the manufacture and distribution of drug precursors, monitor international trade, report suspicious orders and transactions, and ensure appropriate labelling and documentation.

17.2  The purpose of the draft Council Decisions is to authorise the signature and conclusion of an Agreement between the EU and the Russian Federation to strengthen cooperation in preventing the diversion of drug precursors into illicit drug production. Both draft Decisions cite Article 207(4) of the Treaty on the Functioning of the European Union (TFEU) as their legal base — a provision empowering the Council to conclude international agreements in areas covered by the EU's common commercial policy. Our Thirty-second Report of 13 February 2013 summarises the content of the proposed Agreement and the Government's position.

17.3  The Minister of State for Crime Prevention (Mr Jeremy Browne), told us that there was little direct trade in drug precursors between the UK and the Russian Federation and so the provisions of the Agreement requiring Member States to exchange information would not entail extensive obligations for the UK. He indicated, however, that the Government intended to clarify with the Commission what personal data might be exchanged under the agreement and expressed a more general concern about the potential impact of the EU concluding agreements with third countries which involve an element of data or information exchange. He added that the Government was considering whether, notwithstanding the absence of a Title V legal base, the draft Decisions were subject to the UK's Title V opt-in.

17.4  We questioned the basis on which the Minister considered that the UK's Title V opt-in might apply in this case, since the Government had already accepted that changes proposed recently to a 2005 Regulation establishing harmonised internal rules on the trade in drug precursors between the EU and third countries do fall entirely within the scope of the EU's common commercial policy and, as a result, are not subject to the UK's opt-in.[53] We asked him to identify those provisions of the Agreement which the Government believes impose obligations derived from Title V of Part Three of the TFEU (on Justice and Home Affairs matters) and to indicate which legal base or bases should be cited. We also asked the Minister to elaborate on the Government's concerns regarding the data or information exchange provisions contained in the Agreement.

The Minister's letter of 11 April 2013

17.5  The Minister informs us that the Government has concluded that the draft Council Decisions cite the correct legal bases and are not subject to the UK's Title V opt-in for the following reasons:

"The scope of the Agreement between the Parties is to strengthen co-operation between them to prevent diversion from the legitimate trade in precursors, and Article 1(2) mentions, in particular, monitoring of trade and providing mutual assistance. There are no express references for law enforcement agencies to use information collected for law enforcement or other JHA purposes. If we were to say that the opt-in applied to the type of information exchange contemplated in this Agreement, on the basis that it could potentially be used for law enforcement purposes, the same could be said in respect of any information exchange which is generally subject to criminal law measures in the Member States."

17.6  The Minister refers specifically to Article 3(1) of the Agreement, which requires Member States' competent authorities to exchange information where there are reasonable grounds for believing that drugs precursors traded legitimately may be diverted into illicit drug production, and says,

"[...] it is far from established from the text of the provisions that the police would be caught within the types of competent authorities to which Article 3 relates. This provision concerns the competent authorities of the Parties (i.e. EU and the Russian Federation) and passing on information about trade monitoring, so it is not clear why the police forces of individual Member States would be considered to be covered by this."

17.7  The Minister also alludes to Article 4 of the Agreement which requires the Parties to provide mutual assistance through the exchange of information referred to in Article 12(1)(a) of the 1988 UN Convention concerning the exportation of drug precursors in order to prevent their diversion into illicit drug production. He continues:

"It is also relevant that data sharing in this Agreement is constrained by the EU's level of participation in the 1988 UN Convention. Currently there is a strong argument that the reporting and monitoring obligations undertaken by the EU in respect of its obligations under the 1988 Convention are limited to Article 12 of the Convention: there is no suggestion that the monitoring and reporting extends to law enforcement purposes. This also points away from any binding legal content that may trigger the opt-in."

17.8  The Minister adds that the Government's broader concerns regarding the inclusion in the Agreement of provisions on the exchange of information have been allayed. The Commission has confirmed that the only time personal data might be exchanged is when the name or business address of a company trading in drug precursor chemicals is also that of a natural person. He says that the Irish Presidency will wish to establish a date for signature of the Agreement once the UK has lifted its scrutiny reserve.


17.9  We thank the Minister for his letter and note his conclusion that the draft Council Decisions fall within the scope of the EU's common commercial policy and are not subject to the UK's Title V opt-in. We are content to clear them from scrutiny.

53   See (34288) 14394/12: HC 86-xviii (2012-13), chapter 5 (31 October 2012) and HC 86-xx (2012-13), chapter 25 (21 November 2012). Back

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