Judgment of the Court (Seventh Chamber) of 2 February 2023

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:

1. …

   1. 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;

…

1. Subject to its constitutional principles and the basic concepts of its legal system:

   …

   1. 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.

1. 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.

2. To this end, the Parties may:

   1. Control all persons and enterprises engaged in the manufacture and distribution of such substances;

   …

   1. 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:

1. 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.

2. 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.

3. 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.

4. 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

Netherlands law

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.