Provisional text

JUDGMENT OF THE COURT (Seventh Chamber)

2 February 2023 ( * )

(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:

(a) …

(iv) The manufacture, transport or distribution of equipment, materials or of substances listed in Table I and Table II, knowing that they are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances;

…

(c) Subject to its constitutional principles and the basic concepts of its legal system:

…

(ii) The possession of equipment or materials or substances listed in Table I and Table II, knowing that they are being or are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances;

…’

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. (a) Without prejudice to the generality of the provisions contained in paragraph 1 of this article and the provisions of the 1961 Convention, the 1961 Convention as amended and the 1971 Convention, the Parties shall take the measures they deem appropriate to monitor the manufacture and distribution of substances in Table I and Table II which are carried out within their territory.

(b) To this end, the Parties may:

(i) Control all persons and enterprises engaged in the manufacture and distribution of such substances;

…

(iii) Require that licensees obtain a permit for conducting the aforesaid operations;

…

9. Each Party shall, with respect to substances in Table I and Table II, take the following measures:

(a) Establish and maintain a system to monitor international trade in substances in Table I and Table II in order to facilitate the identification of suspicious transactions. Such monitoring systems shall be applied in close co-operation with manufacturers, importers, exporters, wholesalers and retailers, who shall inform the competent authorities of suspicious orders and transactions.

(b) Provide for the seizure of any substance in Table I or Table II if there is sufficient evidence that it is for use in the illicit manufacture of a narcotic drug or psychotropic substance.

(c) Notify, as soon as possible, the competent authorities and services of the Parties concerned if there is reason to believe that the import, export or transit of a substance in Table I or Table II is destined for the illicit manufacture of narcotic drugs or psychotropic substances, including in particular information about the means of payment and any other essential elements which led to that belief.

(d) Require that imports and exports be properly labelled and documented. Commercial documents such as invoices, cargo manifests, customs, transport and other shipping documents shall include the names, as stated in Table I or Table II, of the substances being imported or exported, the quantity being imported or exported, and the name and address of the exporter, the importer and, when available, the consignee.

…

…’

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:

‘(1) Illicit drug trafficking poses a threat to health, safety and the quality of life of citizens of the European Union, and to the legal economy, stability and security of the Member States.

(2) The need for legislative action to tackle illicit drug trafficking has been recognised in particular in the Action Plan of the Council [of the European Union] and the [European] Commission on how best to implement the provisions of the Amsterdam Treaty on an area of freedom, security and justice [(OJ 1999 C 19, p. 1)], adopted by the Justice and Home Affairs Council in Vienna on 3 December 1998, the conclusions of the Tampere European Council of 15 and 16 October 1999, in particular point 48 thereof, the European Union's Drugs Strategy (2000-2004) endorsed by the Helsinki European Council from 10 to 12 December 1999 and the European Union's Action Plan on Drugs (2000-2004) endorsed by the European Council in Santa Maria da Feira on 19 and 20 June 2000.

(3) It is necessary to adopt minimum rules relating to the constituent elements of the offences of illicit trafficking in drugs and precursors which will allow a common approach at European Union level to the fight against such trafficking.’

6 Article 1 of that framework decision, entitled ‘Definitions’, provides:

‘For the purposes of this Framework Decision:

…

2. “precursors”: shall mean any substance scheduled in the Community legislation giving effect to the obligations deriving from Article 12 of the [Vienna Convention against Illicit Traffic];

…’

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:

…

(d) the manufacture, transport or distribution of precursors, knowing that they are to be used in or for the illicit production or manufacture of drugs.’

Regulation No 273/2004

8 Recitals 2 to 6, 8, 11 to 13 and 17 of Regulation No 273/2004 state:

‘(2) The requirements of Article 12 of the United Nations Convention in respect of trade in drug precursors (i.e. substances frequently used in the illicit manufacture of narcotic drugs and psychotropic substances) have been implemented, as far as trade between the Community and third countries is concerned, by Council Regulation (EEC) No 3677/90 of 13 December 1990 laying down measures to be taken to discourage the diversion of certain substances to the illicit manufacture of narcotic drugs and psychotropic substances [(OJ 1990 L 357, p. 1)].

(3) Article 12 of the [Vienna Convention against Illicit Traffic] envisages adoption of appropriate measures to monitor the manufacture and distribution of precursors. This requires the adoption of measures relating to the trade in precursors among Member States. Such measures were introduced by Council Directive 92/109/EEC of 14 December 1992 on the manufacture and the placing on the market of certain substances used in the illicit manufacture of narcotic drugs and psychotropic substances [(OJ 1992 L 370, p. 76)]. To better ensure that harmonised rules are applied at the same time in all Member States, a regulation is considered to be more adequate than the current Directive.

(4) In the context of the enlargement of the European Union, it is important to replace Directive 92/109/EEC by a regulation, as each modification of that Directive and its Annexes would trigger national implementation measures in 25 Member States.

(5) By decisions taken at its 35th session in 1992, the United Nations Commission on Narcotic Drugs included additional substances in the tables of the Annex to the [Vienna Convention against Illicit Traffic]. Corresponding provisions should be laid down in this Regulation in order to detect possible cases of illicit diversion of drug precursors in the Community and to ensure that common monitoring rules are applied in the Community market.

(6) The provisions of Article 12 of the [Vienna Convention against Illicit Traffic] are based on a system of monitoring trade in the substances in question. Most trade in these substances is entirely lawful. The documentation of consignments and labelling of these substances should be sufficiently explicit. It is furthermore important, whilst providing competent authorities with the necessary means, to develop, within the spirit of the [Vienna Convention against Illicit Traffic], mechanisms based on close cooperation with the operators concerned and on the development of intelligence gathering.

…

(8) Substances commonly used in the illicit manufacture of narcotic drugs or psychotropic substances should be listed in an Annex.

…

(11) Measures should be adopted in order to guarantee better control of intra-Community trade in scheduled substances listed in Annex I.

(12) All transactions leading to the placing on the market of scheduled substances of categories 1 and 2 of Annex I should be properly documented. Operators should notify the competent authorities of any suspect transactions involving the substances listed in Annex I. However, exemptions should apply to transactions involving substances of category 2 of Annex I where the quantities involved do not exceed those indicated in Annex II.

(13) A significant number of other substances, many of them traded legally in large quantities, have been identified as precursors to the illicit manufacture of synthetic drugs and psychotropic substances. To subject these substances to the same strict controls as those listed in Annex I would present an unnecessary obstacle to trade involving licences to operate and documentation of transactions. Therefore, a more flexible mechanism at Community level should be established whereby the competent authorities in the Member States are notified of such transactions.

…

(17) Since the objectives of this Regulation, namely the harmonised monitoring of the trade in drug precursors and the avoidance of its diversion to the illicit manufacture of synthetic drugs and psychotropic substances, cannot be sufficiently achieved by the Member States and can therefore, by reason of the international and changeable nature of such trade, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.’

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:

(a) “scheduled substance” means any substance listed in Annex I that can be used for the illicit manufacture of narcotic drugs or psychotropic substances, including mixtures and natural products containing such substances but excluding mixtures and natural products which contain scheduled substances and which are compounded in such a way that the scheduled substances cannot be easily used or extracted by readily applicable or economically viable means, medicinal products as defined in point 2 of Article 1 of Directive 2001/83/EC of the European Parliament and of the Council [of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67)] and veterinary medicinal products as defined in point 2 of Article 1 of Directive 2001/82/EC of the European Parliament and of the Council [of 6 November 2001 on the Community code relating to veterinary medicinal products (OJ 2001 L 311, p. 1)];

(b) “non-scheduled substance” means any substance which, although not listed in Annex I, is identified as having been used for the illicit manufacture of narcotic drugs or psychotropic substances;

(c) “placing on the market” means any supply, whether in return for payment or free of charge, of scheduled substances in the Union; or the storage, manufacture, production, processing, trade, distribution or brokering of these substances for the purpose of supply in the Union;

(d) “operator” means any natural or legal person engaged in the placing on the market of scheduled substances;

…

(f) “special licence” means a licence that is granted to a particular type of operator;

(g) “special registration” means a registration that is made for a particular type of operator;

…’

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:

(a) to obtain information on any orders for scheduled substances or operations involving scheduled substances;

(b) to enter operators’ and users’ business premises in order to obtain evidence of irregularities;

(c) where necessary, to detain and seize consignments that fail to comply with this Regulation.’

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:

a. Article 3(2) and (3) and Article 8 of Regulation No 273/2004.

…’

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:

1°. violations of the regulations issued by or pursuant to:

the Law on the prevention of the diversion of chemical substances, Article 2(a) and Article 4, second subparagraph.’

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:

1°. in the event of a crime, in so far as it is an economic offence as referred to in Article 1(1°) or Article 1a(1°), by a custodial sentence not exceeding six years, by community service or by a fine in the fifth category.’

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):

A. to bring it into or take it out of Netherlands territory;

B. to cultivate, prepare, treat, process, sell, deliver, supply or transport it;

C. to hold it;

D. to manufacture it.’

20 Article 10 of that law is worded as follows:

‘1. Anyone who acts contrary to:

a. a prohibition referred to in Article 2, …;

…

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):

1°. attempts to incite another person to commit that offence or have committed that offence, to participate therein or be the instigator thereof, or to assist or provide him or her with an opportunity, means or information to that end,

2°. seeks to procure for him or herself or for a third party the opportunity, means or information necessary for the commission of that offence,

3°. holds objects, means of transport, substances, funds or other payment instruments, which he or she knows or has good reason to suspect that they are intended for the commission of that offence,

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:

‘(1) Are natural and legal persons who are involved in the placing on the market of scheduled substances in such a way that that involvement constitutes an offence punishable under Article 2(1)(d) of Framework Decision 2004/757 to be regarded as “operators” for the purposes of Article 2(d) of Regulation No 273/2004?

(2) If the answer to this first question is in the affirmative:

(a) Does the conduct of the operator referred to in Question 1 constitute a “circumstance” for the purposes of Article 8(1) of Regulation No 273/2004?

(b) Does conduct such as the receipt, transport and storage of scheduled substances constitute a “circumstance” for the purposes of Article 8(1) of Regulation No 273/2004 if that conduct does not take place with the intention of supplying those substances to a third party?’

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]

* Language of the case: Dutch.