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Governance in EU illicit drugs policy
Accepted Manuscript Title: Governance in EU illicit drugs policy Author: Carel Edwards Maurice Galla PII: DOI: Reference:
S0955-3959(14)00085-1 http://dx.doi.org/doi:10.1016/j.drugpo.2014.04.009 DRUPOL 1369
To appear in:
International Journal of Drug Policy
Please cite this article as: Edwards, C., & EU illicit drugs policy, International Journal http://dx.doi.org/10.1016/j.drugpo.2014.04.009
Galla, M.,Governance in of Drug Policy (2014),
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Commentary
Title:
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Governance in EU illicit drugs policy
Contact details:
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Carel Edwards & Maurice Galla
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Authors:
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Maurice Galla ([email protected]) (corresponding author) Tweede Jacob van Campenstraat 155D
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NL-1073 XS Amsterdam The Netherlands
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Tel: +31.653.811.495
Carel Edwards ([email protected])
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Avenue Reine Astrid 215 B-1950 Kraainem Belgium Tel: +32.476.312.134
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Governance in EU illicit drugs policy
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Abstract
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Governance in EU illicit drugs policy From the 1960s onward, the permissive attitude to cannabis that existed in many western countries began to be tempered by a popular feeling that more resources and harsher
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measures were needed to deal with drug-related crime and “hard” drugs, mostly heroin and cocaine in those days. By the 1990’s, however, evidence was building up that “tough on
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drugs” policies were at best not working and at worst causing perverse side effects such as a growth in organised crime and the destabilisation of production- and transit countries.
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The problem was that the political and moral investment in this war on drugs - and the cost in terms of human suffering and money - had now risen to a point where a fundamental rethink
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in terms of strategy and tactics had become very difficult to contemplate for political decision makers without compromising their credibility (and their careers). This explains at least in
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part the upbeat publicity that surrounded the Political Declaration adopted by the 20th UN General Assembly Special Session on narcotic drugs (UNGASS, 1998), which was aimed to
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effort. 1
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rid the world of the “scourge” of illicit drugs within ten years with one supreme international
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At the same time the world was moving on in other ways: the European Union was preparing to take on new members as communism disintegrated, but it was also acquiring new powers. The Treaty of Maastricht (TEU) expanded the authority of the EU into the field of justice and home affairs, until then the ultimate prerogative of the nation state.2 On drugs, the Treaty (Title IV art. K1) provided for “combating drug addiction” and “unlawful drug trafficking”. It also included a number of provisions on the role of Europol. By 2009, the Maastricht Treaty was merged into the overall treaty framework also known as the Treaty of Lisbon. This consists of the Treaty on European Union (TEU) and the Treaty on
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See General Assembly resolutions A/Res/S-20/2, A/Res/S-20/3 and A/Res/S-20/4 A to E; Retrieved 15 March 2014 from http://www.un.org/depts/dhl/resguide/rspec_en.shtml. 2 Official Journal C 191, 29.7.1992.
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the Functioning of the European Union (TFEU).3 The latter gives the EU a clear role in the field of public health: article 168 (ex-Art. 152 TEU) calls for complementarity between national systems, which enables the Commission to take initiatives in this area. Since this article also states that “The Union and the Member States shall foster cooperation with third
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countries and competent international organisations in the sphere of health”, the legal toolkit for an EU-supported (if not an EU-led) drug policy is more complete today than it has ever
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been.
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The governance of EU illicit drug policy
With the new treaty framework back in 1992, the stage was set for the European
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Commission and the Council to play a role in coordinating the Member States’ drug policies. The Commission had a small drug policy unit working within its Secretariat General, which, in
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1999, became part of the new Directorate General for Justice and Home Affairs. It was to work closely with the EMCDDA (European Monitoring Centre on Drugs and Drug Addiction),
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an EU-Agency that had become operational in 1995. The purpose of the monitoring Centre is
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to gather objective information and analysis from all Member States in order to build up a broader picture and assist EU governments and institutions in developing evidence-based
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policies on drugs.
EU drug policy nevertheless has a very narrow legal basis in the EU Treaties. As a result, much of it is developed and implemented through the so-called ‘Open Method of Coordination’ (OMC) and is non-binding. Policies developed under OMC are initiated by the Commission and subsequently negotiated and adopted or endorsed by the Council (e.g. in the form of Council Recommendations). The main policy instruments are eight-year EU Drug Strategies, drafted by the Member States with the support of the Commission.4 Since 2000 these have been underpinned by four-year Action Plans drafted by the Commission, which set out specific objectives at national, EU or international level, complete with timetables,
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Official Journal C 115, 9.5.2008. E.g. the EU Drugs Strategy (2005-2012). 15074/04; CORDROGUE 77, 22.11.2004.
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output-indicators, who does what, etc.5,6,7 If this doesn’t sound very exciting, we shall try to demonstrate that that is one of its greatest qualities. The origins of EU drug policy go back to the early nineteen nineties. In the beginning it
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focused on drug supply reduction. It was rooted in police and judicial cooperation and belongs – in the post-Lisbon era – to the area of shared competence. The development of
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drug demand reduction, which aims at preventing drug use, reducing drug-related harm and providing treatment to (dependent) drug users, gained importance with the spread of drug-
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related blood-borne diseases such as HIV/ AIDS among injecting drug users across Europe. Drug demand reduction is part of EU health policy, where the EU has complementary
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competence. EU action in this field focuses primarily on preventing drug-related health damage through cooperation, coordination and the exchange of best-practices (Art. 168 (1)
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(4) TFEU).
A third important area in EU drug policy is international cooperation, which takes various
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forms, including EU political cooperation with (and within) international organizations such as
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the UN and its specialized bodies and agencies8, the OSCE, etc. On a more practical level cooperation includes technical assistance to third countries in order to support alternative
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development, drug supply and demand reduction, as well as more general goals such as strengthening the rule of law and human rights.
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OJ C 326, 20.12.2008, p. 7-25; OJ 168, 8.7.2005, p. 1-18. With the arrival of the 2010-2014 Justice Commissioner, Ms. Reding, this situation has changed. Where the EU Drug Strategy 2005-2012 tasked the European Commission to develop a new EU Drug Strategy and Action Plan(s) for the following period, the Justice Commissioner decided to prioritize an overhaul of the existing legislative framework in the field of drugs (new psychoactive substances and drug trafficking) rather than to draft non-binding policy documents. As a result, the Strategy covering the period 2013-2020 and the EU Drugs Action Plan 2013-2016 were drafted under the auspices of the Cypriot and Irish Presidencies, be it with important support of the European Commission. This new approach of the Commission in placing less emphasis on ‘softlaw’ instruments in the field of drugs may turn out to be detrimental to its position as an impartial, expert intermediary vis-à-vis the Member States (see also: COM(2011) 689 final, 25.10.2011). 7 In 2012, the Council adopted a recommendation on the EU Drugs Strategy 2013-2020 (Official Journal C 402, 29.12.2012, p. 1-10); in 2013 the first of its two implementing Drug Action Plans (2013-2016) was adopted as a Council notice (Official Journal C 351, 30.11.2013, p. 1-23). 8 This includes – inter alia - the United Nations Commission on Narcotic Drugs (CND), the World Health Organization (WHO), the United Nations Office for Drugs and Crime (UNODC) and the International Narcotics Control Board (INCB). 6
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A fourth key area is information, monitoring, research and evaluation. This takes the form of cooperation between Member States and EU-level initiatives on drug related research, data collection, etc.
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The assessment made of the EU Drug Strategy and Action Plans over 2005-2012 shows that drug policies of EU Member States are gradually converging.9 However, as often with non-
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binding EU initiatives, it is difficult to establish a causal link between EU policy on the one hand and changes in national drug policies on the other.
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Decisions on EU drug policy are taken by the Council, except in cases of legislation where the European Parliament has the right of co-decision. The Commission generally prepares
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policy documents, but Member States – and in particular some of the rotating EU Presidencies – often take initiatives too. EU drug policy is discussed, negotiated and
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prepared (by consensus) in the Council’s Horizontal Working Party on Drugs (HDG), which was set up by the Committee of Permanent Correspondents (COREPER) in 1997 and which
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meets on a monthly basis. It brings together over 80 civil servants from various backgrounds
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Council.10
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(health, justice, foreign affairs) from all Members States, the European Commission and the
The EU approach to the drugs problem The approach that guides the Commission and the Council on drug policy to this day is a ‘balanced approach’, involving a mix of demand- and harm reduction policies designed to satisfy the need to protect public health and human rights on the one hand, and a steady flow of initiatives in the field of law enforcement and international cooperation on the other. This remarkably restrained approach to drug issues reflects the fact that very few Member States have either the socio-political culture or the resources to consistently apply the punitive sanctions foreseen by the UN conventions. To do so would require a degree of judicial and
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Rand Europe (2012). Assessment of the implementation of the EU Drugs Strategy 2005—2012 and its Action Plans - technical report. Brussels: Rand Corporation. 10 For an historical analysis of EU decision-making in the field of drugs, refer to: Boekhout van Solinge, T. (2002). Drugs and decision-making in the European Union. Amsterdam: CEDRO/ Met & Schilt.
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social interference that is unacceptable to most European societies. This makes the general European attitude to the drugs issue very different from the approach taken by countries like the US, the Russian Federation, or China. The extent to which this feeds through into the
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EU’s position in the UN we shall see later. Coordination as policy
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The authors’ experience in drug policy coordination at EU level over up to seven years was that we had to squeeze the last drop of legitimacy out of the narrow EU legal basis. We were
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working in a field where few Member States have a coherent or robust policy beyond the next elections. Yet it was partly the very reluctance of national politicians to get involved in
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this high risk issue that produced an unusually consensual climate among the Member States, which were generally prepared to give the Commission a role as honest broker as
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long as it didn’t rock the boat. The Commission moreover has the advantage that it commands considerable resources to finance projects and programmes relevant to drug
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policy (in areas such as alternative development, public health, enlargement, scientific
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from these resources.
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research, police cooperation, etc.). Member States and third countries are eager to benefit
The EU Drug strategy and Action Plans provide the working agenda for the monthly meetings of the Horizontal Drugs Group. The HDG is a body that is sometimes maligned for its soporific proceedings but it has gradually developed the great merit of defusing overambitious gesture politics. It also is the one platform that exists to prepare common and multidisciplinary EU positions in other fora. One of the interesting features of this system is that policy in an extremely sensitive area is left to a large extent to civil servants. As much of drug policy in the EU is prepared and implemented at national level, the discussions at EU level concentrate on cross-border and international aspects, common approaches to specific issues such as the challenges posed by new psychoactive substances, etc. In the interest of effective policy making the Commission publishes regular evaluations of the implementation
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of the EU Drug Strategies and Action Plans.11 In reality, this is less scientific than it seems, because political pressure is such that the country that has the rotating presidency in the year when the Action Plan is up for renewal has hardly ever accepted a pause for analysis
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and reflection. The involvement of civil society in EU drug policy
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Since the early nineteen nineties, the Commission has encouraged cooperation between national and even local civil society groups in Europe in the field of drugs. Many EU-funded
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projects have promoted innovation and cooperation in the field of drug demand reduction,
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even in countries with traditionally supply reduction oriented drug policies.
As part of the accession process to the EU, candidate countries have had to incorporate the
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EU acquis, which also includes soft law in matters such as drug policy. For many years the EU encouraged good practices on drugs in accession countries by supporting non-state actors such as NGOs. It did so through programs such as PHARE Twinning & PHARE
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Democracy, TACIS and IPA, often through projects aimed at developing supply reduction
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capacity, national drug policies, and the establishment of a national drug monitoring centre.
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In many of these projects civil society involvement components were included.12 Today, the promotion of civil society continues in programs such as the Eastern Partnership Program and the European Neighborhood Program, be it to a lesser extent than in the past. The European Commission also actively promotes the involvement of NGOs in international development programs, including large scale projects in drug producing countries to promote alternative development. Such “activation” of civil society in these countries is designed to develop local empowerment through e.g. education, investment, and demand reduction programs. Other activities include the funding of international NGOs working in the field of
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For example: Report of the final evaluation of the EU drugs action plan (2005-2008); SEC(2008) 2456, 18.9.2008. 12 For example: a PHARE Twinning project implemented between 2002-2004 aimed at the development of a drug strategy and infrastructure in Hungary, included the development of local drug forums in over 100 cities, bringing together professionals, citizens, civil servants, drug users, educators, psychologists, the police, church, etc. to develop and implement local drug action plans.
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human rights, drawing attention to the rights and dignity of dependent drug users or even low level dealers who may have been arrested, marginalized or forced into treatment. Civil society involvement as presented above mostly concerns practical cooperation and
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involvement at national or local level. However, in 2007, the Commission decided to establish a Civil Society Forum on Drugs at EU level which could provide civil society input to
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EU drug policy.13
The Forum is appointed for a 2 year term and consists of 30 to 40 member organizations
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with diverse backgrounds, including NGO’s pro and against legalisation of drugs, European networks of prevention and treatment professionals, harm reduction cooperation networks,
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and user organisations. Members of the Forum are selected by the Commission through an
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open call for membership. The Forum meets once or twice a year.14 After a rocky start in its first years of existence, during which the diversity of views, values and types of organisation had to be reconciled in order to find common ground for
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discussion, the Forum managed to reach consensus in 2012 on a position paper with
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recommendations for the new EU Drug Strategy 2013-2020. Representatives from the
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Forum were subsequently given the opportunity to present these recommendations to the HDG. In both the current EU Drug Strategy and Action Plan, consultation of the Forum has been given a place in the EU policy debate.15 Important questions remain however regarding civil society’s role in formal EU drug policy making. The membership of the Forum is not representative enough to speak on behalf of civil society in the field of drugs as a whole, but it can speak on behalf of its members, their experiences, views and perceptions. The Forum has asked for observer status within the HDG, but the institutional framework does not allow for such a position. It is somewhat 13
The thematic areas of input are mainly defined by the EU Action Plan, although other themes of general interest in the field of drugs should not be excluded. The Forum should not replace or duplicate the existing debate between civil society and national or local governments. See also: COM(2006) 316 final, 26.6.2006. 14 th Civil Society Forum on Drugs. Retrieved 15 March 2014 from: http://ec.europa.eu/justice/anti-drugs/civilsociety/index_en.htm. 15 EU Drug Strategy 2013-202, objective 24.5 (Official Journal C 402, 29.12.2012); EU Drug Action Plan 20132016, Action 9 (Official Journal C 351, 30.11.2013).
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debatable whether the HDG is the right place for civil society input, since the formulation of the positions of the delegates start at their own national level. Nevertheless, there is clear merit in accommodating the voice of civil society in EU drug policy making as civil society organisations increasingly work across borders and can provide valuable input from grass
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roots level.
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As for the involvement of civil society active in the drug field at UN level, the Vienna NGO Committee on Drugs (VNOGC) is gaining influence. Within the CND, the EU has traditionally
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been an important advocate for a stronger position of civil society organizations in the international illicit drugs debate, while the European Commission has provided funding for its
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activities Today, government delegations of all UN Member States that meet for the CND at the UN headquarters in Vienna find a vigorous civil society presence from all over the world.
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The level of involvement and possibilities for ‘activism’ of these NGOs is a matter of annual negotiations with the UNODC, which runs the secretariat of the CND, but which is not overly
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and organizations.
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enthusiastic and supportive towards NGO partnership compared to most other UN bodies
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The EU and the rest of the world
The EU is one of the world’s biggest international financial aid donors. In the field of illicit drugs, in the period from 2005 to 2012, between 800 million and 1 billion Euros were given to programs, projects and (international) organizations in third countries supporting alternative development and supply reduction, and to a lesser extent demand reduction, harm reduction and the protection of human rights. However, this position as major donor does not translate into clear political clout for the EU when it comes to global drugs policy. The general meeting of the United Nations Commission on Narcotic Drugs (CND) in Vienna is the annual baptism of fire of this arrangement. Despite the European Union being a key donor to the UN System, it is classed (incorrectly) as an international organisation and thus does not have the same status as the UN member states.
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EU Member States’ diplomats in the UN are often reluctant to use the lever of EU funding, preferring to draw attention to their own countries’ contributions, however modest. As long as the EU’s status is not changed, it can take part in statutory meetings only as observer. This means that the practice continues whereby the country holding the rotating presidency of the
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EU tends to speak on its behalf in the UN.
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At the CND, the European Commission and the EU Delegation in Vienna, in a rather vigorous supporting role behind the country that holds the EU presidency, do what they can
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technically and diplomatically to keep all the Member States singing from the same hymn sheet, to ensure consistency between positions decided on in Brussels, but often ‘lost in
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translation’ upon arrival in Vienna. Daily meetings are organised before the proceedings begin, to coordinate all positions and to plan interventions from the floor in the assembly.
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Such interventions can be a problem when national diplomats who know the UN better than they know Brussels feel they have to make their own statements.
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From 2005 the EU’s horizontal Drug Group (HDG) began to prepare for the tenth anniversary
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of the Political Declaration adopted during the UNGASS on narcotic drugs in 1998. There was a strong suspicion in Brussels that any serious attempt to assess whether the goals of
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UNGASS had been reached would be politically smothered at birth, and that any assessment that might take place would be unlikely to be objective. The EU called on the CND to have an evaluation carried out by UNODC of the achievement of the UNGASS 1998 objectives, with the input of an independent expert group, which was funded by the Commission. The UNODC presented its UNGASS 1998 assessment report at the CND in 2008. During the deliberations on this report, the EU and likeminded countries insisted that a thorough debate on the assessment was necessary before any new political declaration on drug policy could be negotiated. This debate took place through a number of informal, open ended working groups bringing together experts and diplomats from UN Member States. The conclusions served as a basis for formal negotiations to adopt a new Political Declaration on the world drug problem during a High Level Meeting (HLM) in 2009. On this occasion, the EU did its
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homework. Under the French EU Presidency in 2008, the HDG adopted an EU joint position paper with a number of ‘red lines’ for the future negotiations at UN level. This joint position fully reflected existing policy as set out in the EU Drug Strategy and Action Plans. The actual negotiations on the new Political Declaration that followed, between October 2008 and March
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2009, were challenging for the EU, in particular when it came to the ‘controversial’ themes of protecting human rights, the promotion of harm reduction policies, and the strong differences
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between the EU and the US on alternative development policies (eradication vs. sequential,
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non-conditional assistance). The Commission, without a formal seat at the negotiation table, provided important input to the drafting of the joint EU position, arranged for almost daily
during its negotiations on behalf of the EU.
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support for EU coordination in Brussels and Vienna, and supported the Czech Presidency
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These negotiations went well initially, with a united EU position, but complications arose as the deadline for the negotiations came closer. Sweden - and in particular Italy - now had real
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issues with the concept of harm reduction, and with using the term in official documents other
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than the EU Drugs Strategy and Action Plans. As official US state department cables that came available through Wiki-leaks revealed some years later, during these negotiations the
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US was concerned about the EU’s attitude in general and actually tried to undermine the joint EU position by strongly lobbying ‘friendly’ countries. ‘Stockholm’ and ‘Rome’ are mentioned. The Italian government went furthest in its persistence and ultimately broke the EU consensus, brushing aside the negotiation strategy that had endured relatively successfully for several months under the Czech EU Presidency. As a result, compromises had to be found and the term harm reduction did not make it to the Political Declaration but was replaced by the phrase ‘related support services’. The High Level Meeting ended with an implosion of EU cooperation. On one or two occasions, Berlusconi’s minister responsible for drugs had turned up, gave a statement entirely at odds with the European position, then returned to Rome without further contact with his fellow Europeans.
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During the closing session of the High Level Meeting, seventeen EU Member States aired their frustration at the defection of other EU countries from a policy model which had achieved consensus in Brussels some considerable time before by issuing a so called interpretative statement which was added to the report of the meeting. 16 After the 2009 CND,
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Italy continued to oppose the term harm reduction, also in EU policy documents, despite the fact that many harm reduction measures are common practice in various regions in the
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country.
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The EU’s efforts for the 2009 Political Declaration were not however in vain. The final document did include a considerable number of elements from the joint EU position.
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Furthermore, despite internal differences, the negotiations made clear that in the field of drugs policy the EU Member States are closer to each other than they are to most other
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countries. In the years following 2009, the CND seemed to return to business as usual. There is nevertheless a widening gap between the prohibitionist community (championed by
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Russia) on the one hand, and the majority of EU countries, and an increasing number of
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Latin-American and some Asian countries, on the other. In the end, the EU helped to prevent the adoption of a UN conclusion that UNGASS 1998
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had been a great success and that the global illicit drug problem had been ‘contained’. The rather limp report that was published by UNODC fooled no one.17 The European Commission had anticipated this outcome. While the High Level Meeting was taking place it published an independent report produced on its behalf by the Trimbos Institute and Rand Corporation.18 The report was presented at a press conference at the office of the EU Delegation in Vienna and was disseminated to all national delegations in the HLM/ CND. It was in fact an analysis
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The statement read: «These States declare that they will interpret the term “related support services” used in the Political Declaration and the Plan of Action as including measures which a number of States, International organizations and Non Governmental Organizations call “harm reduction measures”». 17 At the same time, even within UNODC, critical notes could be heard about the undesirable effects of UN drug policy. In 2008, the UNODC published a report titled ‘Fit for purpose’, which reflected on some of the important th unexpected consequences of the UN illicit drug policy framework. Retrieved 15 March 2014 from http://www.unodc.org/documents/commissions/CND-Session51/CND-UNGASS-CRPs/ECN72008CRP17.pdf. 18 Trautmann, F. and P. Reuter (2009). A report on Global Illicit Drug Markets 1998-2007 - Full Report. Brussels: European Commission.
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of the world drug markets between 1998 and 2007, based on a rigorous analysis of what was known and what could reasonably be deducted, inferred, or assumed on the basis of evidence alone.
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The effectiveness of EU governance
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From reading any of the EMCDDA’s Annual Reports on the state of the drug problem in Europe, it is quite clear that the EU has neither solved the drug problem in Europe, nor has it
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created a completely consistent ‘European’ drug policy. Europe’s fragmented police and customs services (a minimum of 56 national departments, often competing with each other)
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are no match for the traffickers. Between 2003 and 2012 the authors were involved in a vast number of initiatives to improve cooperation in this area. These initiatives rarely got beyond
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political gesturing, with the exception of MAOC-N.19 Europol has been an underused instrument throughout much of its existence. Any objective evaluation of the impact of law
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enforcement on drug crime anywhere is in any event extremely problematical due to the
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reluctance of national authorities to cooperate in such matters. In terms of demand reduction the countries of the EU are not doing much better, mostly
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because demand is determined by social, cultural and economic factors that are largely beyond the control of public authorities. Levels of drug use within the EU seem to have levelled out after a period of steady increase. Other initiatives, such as information or education campaigns have been evaluated and their usefulness is in doubt. Harm reduction (in the broad sense of the term), including measures to prevent drug-related deaths and infectious diseases, is in fact the cornerstone of the EU approach, even if some countries have issues with the term and some of the practices covered by it. In spite of the political and cultural differences between certain EU countries mentioned earlier, the scale on which we practice harm reduction is what sets EU drug policies apart from much of the rest of the
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Maritime Analysis and Operations Centre-Narcotics, a law enforcement cooperation mechanism between seven EU countries and the US, aimed at interdicting illicit drug trafficking across the Atlantic.
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world, even though other countries are catching up fast. Half the 1.2 million opioid addicts in the EU are receiving some form of substitution treatment, although there are great differences in coverage between Member States. Other social and health schemes aim at
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limiting the spread of blood borne diseases such as hepatitis and HIV. Where the EU differs from most other drug markets is that it has the most advanced public
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health and social services in the world, which makes harm reduction on a meaningful scale possible. The EU also has a less apocalyptic view of the “evil” of drugs than, say, the US.
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Unlike countries like Russia - which rejects the idea of supporting dependent drug users and preventing drug-related harm - Europe is not in denial about its own drug problem. Without
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being complacent, this has made it possible for much of the EU to accommodate the problem rather than to “solve” what by all the evidence from the last 100 years appears to be
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insoluble, at least by means of criminalisation and prohibition.
Since the late 1990’s, the policy of the European Commission has been to build on this
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reality and to use it to construct a platform of consensus between the Member States, rather
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than push for an ambitious policy with unrealistic goals. The Commission has pursued a strategy to improve the management of the drug problem but without hiding uncomfortable
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truths. It has done so by trying to de-mystify and correct common misconceptions, and by adjusting political ambitions to a realistic level. This approach may not grab the headlines, but it produces a lot fewer unintended consequences than the war on drugs. However, the strains between some of the Member States during debates in the UN show that there is still work to be done. Is EU drug policy governance ready for the future? The big question is where EU drug policy is headed in the next few years. The interest in drugs as a major societal issue has diminished considerably against the backdrop of the global economic crisis. At the same time, problems re-emerge, such as a drug-related HIV epidemic in Greece due to the breakdown of its health care system.
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A new EU drug strategy has been adopted in 2013. And although it ticks all the pragmatic boxes of a sensible EU drug policy, it avoids addressing some of the major questions that lie ahead. The balanced approach, which has been the cornerstone of EU drug policy for more
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than a decade, is an important principle, but could become an excuse for inertia. The EU has been successful in averting the drug-related HIV/ AIDS epidemic that took place
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in many parts of the world and that is sweeping through the Russian Federation. In the richer EU countries, drug use has become to some extent integrated into users’ working lives and
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does not necessarily lead to social exclusion anymore. The picture of the marginalised heroin user is less common today than it was fifteen years ago. New substances emerge, for which
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the existing drug control system has no other response than doing more of the same. And yet, the HDG is increasingly dealing with routine topics, process rather than substance, and
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the symptoms of drug-related problems, rather than actually discussing drug policy. The cooperation and shared interest in the HDG between health and law enforcement officials is
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not what it used to be. In several Member States, politicians and drug policy experts have
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moved on, with the result that newcomers to the HDG try to find new approaches which are not seldom the flawed approaches of the past.
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In 2016 a UN debate on decriminalising drugs will take place, initiated by a number of LatinAmerican countries which are seriously affected by drug-related crime. Even though in many EU countries decriminalisation is a fact - either de jure or de facto - it is doubtful whether the EU Member States are willing or able to enter into a real debate, let alone reach prior agreement on a common position for the negotiations. At EU level, policy makers, also in the HDG, seem to be unwilling to move away from their comfort zone and accept that over the past decade the nature of drug use and drug-related problems has changed. It would be regrettable if preserving the status quo turned out to be the common position of the EU in 2016.
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Despite the investments20 made in data collection, evaluation and research into the drugs problem in the EU, lessons are still often not learned. Cannabis for example is easily available to users in almost all EU Member States.21 The substance has recognised medicinal properties, which is not reflected by its current scheduling in the 1961 UN
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Convention. It is not harmless, as is claimed by some advocates of full legalisation, but the health and social effects of regular use are moderate and generally speaking no more
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harmful than the use of tobacco or alcohol.
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Alternative approaches with cannabis decriminalisation and/ or regulation have been tested in various European countries.22 Even though many questions remain, the known risks to
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health and society caused by the use of cannabis simply do not justify a continuation of a full blown prohibitionist approach, with the burden this places on law enforcement agencies, and
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the unwanted and unintended consequences it has for individuals and society. Despite all this information, the data for which is collected through the EMCDDA and its reitox network
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of national focal points, a real debate on the consequences for cannabis policy does not take
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place at any politically meaningful level, at least not in Europe. Ironically, across the Atlantic, several States in the US are experimenting with the legalisation of the cultivation and use of
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(medicinal) cannabis.
Likewise, harm reduction policies, including medically assisted treatment, have considerably improved the health and social situation of (former) injecting heroin users in many Western EU countries. In fact, providing such treatment more than half of Europe’s dependent opioid users is very likely to have had a serious impact on the illicit heroin market, to some extent
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In the period covering the implementation of the EU drug strategy 2005-2012, an estimated € 150 million has been spent on monitoring, evaluation and research through the work of the EMCDDA, EU funding programmes such as the Drug Prevention and Information Programme, the Health Programme, the Programme for the Prevention and Reduction of Crime and the R&D Framework Programmes. 21 European Commission (2014). Flash Eurobarometer 330: Youth Attitudes on drugs. Brussels: European th Commission. Retrieved 15 March 2014 from: http://ec.europa.eu/public_opinion/flash/fl_330_en.pdf. 22 For example: the tolerated cannabis sales in ‘coffee shops’ in the Netherlands, the Cannabis Social Clubs in Spain, the toleration of small-scale domestic cultivation of cannabis in Belgium, the non-expediency of possession for personal use of cannabis in the Czech Republic, etc.
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regulating it.23 But in several Central and Eastern European Countries, such treatment and interventions are still the exception, and punitive drug policies are still strongly advocated. This creates ‘revolving doors’ for problem and dependent drug users, who get caught up in the criminal justice system, because these countries often lack the resources in terms of
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health and social security systems to provide long-term medical and psychosocial treatment. As a result, the criminal justice systems there continue to provide ‘treatment’ for chronically ill
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people.
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Conclusion
EU governance in the field of drugs has distinctive features that make the EU approach
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different from the ones followed by most other countries and regions in the world. The EU has managed to neutralise to some extent the divisive potential of drugs as a policy issue
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(even if there is still clearly some way to go). Over the years, national drug policies have converged. Despite some persistent ideological differences, most interventions related to the
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concept of harm reduction have been implemented in most Member States. The absence of
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one dominating view on drug policy, and the focus on data collection, exchange and mutual learning, and evidence-based policies have created the space for debate and for
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experiments at national level.
The way European integration works is a vast subject beyond the scope of this article. Yet one constant factor since the 1950’s is the way in which collective decision making in any given area starts with cautious or even reluctant bargaining by individual states. This ongoing process – largely ignored by the media and the general public - then gradually develops institutional reflexes, as the extent of consensus reached creates precedents that seep back into national policy making. To the extent that the policies that come out of this system are generally moderate and humane, we believe that it is serving our citizens well.
23
Recent case study in four EU countries conducted by the Trimbos Institute, RAND Corporation and ICPR, at the request of the European Commission, concluded that retention of dependent opioid users in Methadone th maintenance treatment may reduce total pure heroin consumption by around 30 percent. Retrieved 15 March 2014 from: http://www.trimbos.org/projects/research-monitoring-and-policies/further-insights-into-aspects-of-theeu-illicit-drugs-market.
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The EU has been relatively successful in promoting a realistic, cooperative and sciencebased drug policy in most of Europe, most of the time. It has promoted measures and practices that target real problems without too much unhelpful rhetoric. However, like all successful formulae this one also has a sell-by date. EU governance in the field of drugs
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cannot afford to stand still. It needs to find a second wind. The global economic crisis, with its widespread austerity measures, but also the growing assertiveness of drug producing and
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transit countries, are changing the landscape for drug policy making worldwide. The EU has
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a proven track record in finding pragmatic answers to complex drug problems. It could lead the way if it wanted to.
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Carel Edwards was head of unit of the European Commission’s Anti-Drug Policy Unit
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between 2003 and 2010.
Maurice Gallà was senior policy expert seconded to the European Commission’s Anti-Drug
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Policy Unit between 2007 and 2012.
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This article was written jointly by both authors and reflects their personal views.
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S0955-3959(14)00085-1 http://dx.doi.org/doi:10.1016/j.drugpo.2014.04.009 DRUPOL 1369
To appear in:
International Journal of Drug Policy
Please cite this article as: Edwards, C., & EU illicit drugs policy, International Journal http://dx.doi.org/10.1016/j.drugpo.2014.04.009
Galla, M.,Governance in of Drug Policy (2014),
This is a PDF file of an unedited manuscript that has been accepted for publication. As a service to our customers we are providing this early version of the manuscript. The manuscript will undergo copyediting, typesetting, and review of the resulting proof before it is published in its final form. Please note that during the production process errors may be discovered which could affect the content, and all legal disclaimers that apply to the journal pertain.
Commentary
Title:
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Governance in EU illicit drugs policy
Contact details:
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Carel Edwards & Maurice Galla
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Authors:
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Maurice Galla ([email protected]) (corresponding author) Tweede Jacob van Campenstraat 155D
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NL-1073 XS Amsterdam The Netherlands
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Tel: +31.653.811.495
Carel Edwards ([email protected])
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Avenue Reine Astrid 215 B-1950 Kraainem Belgium Tel: +32.476.312.134
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Governance in EU illicit drugs policy
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Abstract
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Governance in EU illicit drugs policy From the 1960s onward, the permissive attitude to cannabis that existed in many western countries began to be tempered by a popular feeling that more resources and harsher
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measures were needed to deal with drug-related crime and “hard” drugs, mostly heroin and cocaine in those days. By the 1990’s, however, evidence was building up that “tough on
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drugs” policies were at best not working and at worst causing perverse side effects such as a growth in organised crime and the destabilisation of production- and transit countries.
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The problem was that the political and moral investment in this war on drugs - and the cost in terms of human suffering and money - had now risen to a point where a fundamental rethink
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in terms of strategy and tactics had become very difficult to contemplate for political decision makers without compromising their credibility (and their careers). This explains at least in
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part the upbeat publicity that surrounded the Political Declaration adopted by the 20th UN General Assembly Special Session on narcotic drugs (UNGASS, 1998), which was aimed to
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effort. 1
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rid the world of the “scourge” of illicit drugs within ten years with one supreme international
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At the same time the world was moving on in other ways: the European Union was preparing to take on new members as communism disintegrated, but it was also acquiring new powers. The Treaty of Maastricht (TEU) expanded the authority of the EU into the field of justice and home affairs, until then the ultimate prerogative of the nation state.2 On drugs, the Treaty (Title IV art. K1) provided for “combating drug addiction” and “unlawful drug trafficking”. It also included a number of provisions on the role of Europol. By 2009, the Maastricht Treaty was merged into the overall treaty framework also known as the Treaty of Lisbon. This consists of the Treaty on European Union (TEU) and the Treaty on
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See General Assembly resolutions A/Res/S-20/2, A/Res/S-20/3 and A/Res/S-20/4 A to E; Retrieved 15 March 2014 from http://www.un.org/depts/dhl/resguide/rspec_en.shtml. 2 Official Journal C 191, 29.7.1992.
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the Functioning of the European Union (TFEU).3 The latter gives the EU a clear role in the field of public health: article 168 (ex-Art. 152 TEU) calls for complementarity between national systems, which enables the Commission to take initiatives in this area. Since this article also states that “The Union and the Member States shall foster cooperation with third
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countries and competent international organisations in the sphere of health”, the legal toolkit for an EU-supported (if not an EU-led) drug policy is more complete today than it has ever
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been.
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The governance of EU illicit drug policy
With the new treaty framework back in 1992, the stage was set for the European
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Commission and the Council to play a role in coordinating the Member States’ drug policies. The Commission had a small drug policy unit working within its Secretariat General, which, in
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1999, became part of the new Directorate General for Justice and Home Affairs. It was to work closely with the EMCDDA (European Monitoring Centre on Drugs and Drug Addiction),
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an EU-Agency that had become operational in 1995. The purpose of the monitoring Centre is
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to gather objective information and analysis from all Member States in order to build up a broader picture and assist EU governments and institutions in developing evidence-based
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policies on drugs.
EU drug policy nevertheless has a very narrow legal basis in the EU Treaties. As a result, much of it is developed and implemented through the so-called ‘Open Method of Coordination’ (OMC) and is non-binding. Policies developed under OMC are initiated by the Commission and subsequently negotiated and adopted or endorsed by the Council (e.g. in the form of Council Recommendations). The main policy instruments are eight-year EU Drug Strategies, drafted by the Member States with the support of the Commission.4 Since 2000 these have been underpinned by four-year Action Plans drafted by the Commission, which set out specific objectives at national, EU or international level, complete with timetables,
3 4
Official Journal C 115, 9.5.2008. E.g. the EU Drugs Strategy (2005-2012). 15074/04; CORDROGUE 77, 22.11.2004.
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output-indicators, who does what, etc.5,6,7 If this doesn’t sound very exciting, we shall try to demonstrate that that is one of its greatest qualities. The origins of EU drug policy go back to the early nineteen nineties. In the beginning it
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focused on drug supply reduction. It was rooted in police and judicial cooperation and belongs – in the post-Lisbon era – to the area of shared competence. The development of
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drug demand reduction, which aims at preventing drug use, reducing drug-related harm and providing treatment to (dependent) drug users, gained importance with the spread of drug-
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related blood-borne diseases such as HIV/ AIDS among injecting drug users across Europe. Drug demand reduction is part of EU health policy, where the EU has complementary
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competence. EU action in this field focuses primarily on preventing drug-related health damage through cooperation, coordination and the exchange of best-practices (Art. 168 (1)
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(4) TFEU).
A third important area in EU drug policy is international cooperation, which takes various
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forms, including EU political cooperation with (and within) international organizations such as
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the UN and its specialized bodies and agencies8, the OSCE, etc. On a more practical level cooperation includes technical assistance to third countries in order to support alternative
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development, drug supply and demand reduction, as well as more general goals such as strengthening the rule of law and human rights.
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OJ C 326, 20.12.2008, p. 7-25; OJ 168, 8.7.2005, p. 1-18. With the arrival of the 2010-2014 Justice Commissioner, Ms. Reding, this situation has changed. Where the EU Drug Strategy 2005-2012 tasked the European Commission to develop a new EU Drug Strategy and Action Plan(s) for the following period, the Justice Commissioner decided to prioritize an overhaul of the existing legislative framework in the field of drugs (new psychoactive substances and drug trafficking) rather than to draft non-binding policy documents. As a result, the Strategy covering the period 2013-2020 and the EU Drugs Action Plan 2013-2016 were drafted under the auspices of the Cypriot and Irish Presidencies, be it with important support of the European Commission. This new approach of the Commission in placing less emphasis on ‘softlaw’ instruments in the field of drugs may turn out to be detrimental to its position as an impartial, expert intermediary vis-à-vis the Member States (see also: COM(2011) 689 final, 25.10.2011). 7 In 2012, the Council adopted a recommendation on the EU Drugs Strategy 2013-2020 (Official Journal C 402, 29.12.2012, p. 1-10); in 2013 the first of its two implementing Drug Action Plans (2013-2016) was adopted as a Council notice (Official Journal C 351, 30.11.2013, p. 1-23). 8 This includes – inter alia - the United Nations Commission on Narcotic Drugs (CND), the World Health Organization (WHO), the United Nations Office for Drugs and Crime (UNODC) and the International Narcotics Control Board (INCB). 6
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A fourth key area is information, monitoring, research and evaluation. This takes the form of cooperation between Member States and EU-level initiatives on drug related research, data collection, etc.
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The assessment made of the EU Drug Strategy and Action Plans over 2005-2012 shows that drug policies of EU Member States are gradually converging.9 However, as often with non-
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binding EU initiatives, it is difficult to establish a causal link between EU policy on the one hand and changes in national drug policies on the other.
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Decisions on EU drug policy are taken by the Council, except in cases of legislation where the European Parliament has the right of co-decision. The Commission generally prepares
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policy documents, but Member States – and in particular some of the rotating EU Presidencies – often take initiatives too. EU drug policy is discussed, negotiated and
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prepared (by consensus) in the Council’s Horizontal Working Party on Drugs (HDG), which was set up by the Committee of Permanent Correspondents (COREPER) in 1997 and which
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meets on a monthly basis. It brings together over 80 civil servants from various backgrounds
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Council.10
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(health, justice, foreign affairs) from all Members States, the European Commission and the
The EU approach to the drugs problem The approach that guides the Commission and the Council on drug policy to this day is a ‘balanced approach’, involving a mix of demand- and harm reduction policies designed to satisfy the need to protect public health and human rights on the one hand, and a steady flow of initiatives in the field of law enforcement and international cooperation on the other. This remarkably restrained approach to drug issues reflects the fact that very few Member States have either the socio-political culture or the resources to consistently apply the punitive sanctions foreseen by the UN conventions. To do so would require a degree of judicial and
9
Rand Europe (2012). Assessment of the implementation of the EU Drugs Strategy 2005—2012 and its Action Plans - technical report. Brussels: Rand Corporation. 10 For an historical analysis of EU decision-making in the field of drugs, refer to: Boekhout van Solinge, T. (2002). Drugs and decision-making in the European Union. Amsterdam: CEDRO/ Met & Schilt.
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social interference that is unacceptable to most European societies. This makes the general European attitude to the drugs issue very different from the approach taken by countries like the US, the Russian Federation, or China. The extent to which this feeds through into the
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EU’s position in the UN we shall see later. Coordination as policy
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The authors’ experience in drug policy coordination at EU level over up to seven years was that we had to squeeze the last drop of legitimacy out of the narrow EU legal basis. We were
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working in a field where few Member States have a coherent or robust policy beyond the next elections. Yet it was partly the very reluctance of national politicians to get involved in
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this high risk issue that produced an unusually consensual climate among the Member States, which were generally prepared to give the Commission a role as honest broker as
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long as it didn’t rock the boat. The Commission moreover has the advantage that it commands considerable resources to finance projects and programmes relevant to drug
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policy (in areas such as alternative development, public health, enlargement, scientific
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from these resources.
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research, police cooperation, etc.). Member States and third countries are eager to benefit
The EU Drug strategy and Action Plans provide the working agenda for the monthly meetings of the Horizontal Drugs Group. The HDG is a body that is sometimes maligned for its soporific proceedings but it has gradually developed the great merit of defusing overambitious gesture politics. It also is the one platform that exists to prepare common and multidisciplinary EU positions in other fora. One of the interesting features of this system is that policy in an extremely sensitive area is left to a large extent to civil servants. As much of drug policy in the EU is prepared and implemented at national level, the discussions at EU level concentrate on cross-border and international aspects, common approaches to specific issues such as the challenges posed by new psychoactive substances, etc. In the interest of effective policy making the Commission publishes regular evaluations of the implementation
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of the EU Drug Strategies and Action Plans.11 In reality, this is less scientific than it seems, because political pressure is such that the country that has the rotating presidency in the year when the Action Plan is up for renewal has hardly ever accepted a pause for analysis
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and reflection. The involvement of civil society in EU drug policy
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Since the early nineteen nineties, the Commission has encouraged cooperation between national and even local civil society groups in Europe in the field of drugs. Many EU-funded
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projects have promoted innovation and cooperation in the field of drug demand reduction,
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even in countries with traditionally supply reduction oriented drug policies.
As part of the accession process to the EU, candidate countries have had to incorporate the
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EU acquis, which also includes soft law in matters such as drug policy. For many years the EU encouraged good practices on drugs in accession countries by supporting non-state actors such as NGOs. It did so through programs such as PHARE Twinning & PHARE
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Democracy, TACIS and IPA, often through projects aimed at developing supply reduction
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capacity, national drug policies, and the establishment of a national drug monitoring centre.
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In many of these projects civil society involvement components were included.12 Today, the promotion of civil society continues in programs such as the Eastern Partnership Program and the European Neighborhood Program, be it to a lesser extent than in the past. The European Commission also actively promotes the involvement of NGOs in international development programs, including large scale projects in drug producing countries to promote alternative development. Such “activation” of civil society in these countries is designed to develop local empowerment through e.g. education, investment, and demand reduction programs. Other activities include the funding of international NGOs working in the field of
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For example: Report of the final evaluation of the EU drugs action plan (2005-2008); SEC(2008) 2456, 18.9.2008. 12 For example: a PHARE Twinning project implemented between 2002-2004 aimed at the development of a drug strategy and infrastructure in Hungary, included the development of local drug forums in over 100 cities, bringing together professionals, citizens, civil servants, drug users, educators, psychologists, the police, church, etc. to develop and implement local drug action plans.
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human rights, drawing attention to the rights and dignity of dependent drug users or even low level dealers who may have been arrested, marginalized or forced into treatment. Civil society involvement as presented above mostly concerns practical cooperation and
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involvement at national or local level. However, in 2007, the Commission decided to establish a Civil Society Forum on Drugs at EU level which could provide civil society input to
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EU drug policy.13
The Forum is appointed for a 2 year term and consists of 30 to 40 member organizations
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with diverse backgrounds, including NGO’s pro and against legalisation of drugs, European networks of prevention and treatment professionals, harm reduction cooperation networks,
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and user organisations. Members of the Forum are selected by the Commission through an
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open call for membership. The Forum meets once or twice a year.14 After a rocky start in its first years of existence, during which the diversity of views, values and types of organisation had to be reconciled in order to find common ground for
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discussion, the Forum managed to reach consensus in 2012 on a position paper with
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recommendations for the new EU Drug Strategy 2013-2020. Representatives from the
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Forum were subsequently given the opportunity to present these recommendations to the HDG. In both the current EU Drug Strategy and Action Plan, consultation of the Forum has been given a place in the EU policy debate.15 Important questions remain however regarding civil society’s role in formal EU drug policy making. The membership of the Forum is not representative enough to speak on behalf of civil society in the field of drugs as a whole, but it can speak on behalf of its members, their experiences, views and perceptions. The Forum has asked for observer status within the HDG, but the institutional framework does not allow for such a position. It is somewhat 13
The thematic areas of input are mainly defined by the EU Action Plan, although other themes of general interest in the field of drugs should not be excluded. The Forum should not replace or duplicate the existing debate between civil society and national or local governments. See also: COM(2006) 316 final, 26.6.2006. 14 th Civil Society Forum on Drugs. Retrieved 15 March 2014 from: http://ec.europa.eu/justice/anti-drugs/civilsociety/index_en.htm. 15 EU Drug Strategy 2013-202, objective 24.5 (Official Journal C 402, 29.12.2012); EU Drug Action Plan 20132016, Action 9 (Official Journal C 351, 30.11.2013).
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debatable whether the HDG is the right place for civil society input, since the formulation of the positions of the delegates start at their own national level. Nevertheless, there is clear merit in accommodating the voice of civil society in EU drug policy making as civil society organisations increasingly work across borders and can provide valuable input from grass
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roots level.
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As for the involvement of civil society active in the drug field at UN level, the Vienna NGO Committee on Drugs (VNOGC) is gaining influence. Within the CND, the EU has traditionally
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been an important advocate for a stronger position of civil society organizations in the international illicit drugs debate, while the European Commission has provided funding for its
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activities Today, government delegations of all UN Member States that meet for the CND at the UN headquarters in Vienna find a vigorous civil society presence from all over the world.
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The level of involvement and possibilities for ‘activism’ of these NGOs is a matter of annual negotiations with the UNODC, which runs the secretariat of the CND, but which is not overly
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and organizations.
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enthusiastic and supportive towards NGO partnership compared to most other UN bodies
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The EU and the rest of the world
The EU is one of the world’s biggest international financial aid donors. In the field of illicit drugs, in the period from 2005 to 2012, between 800 million and 1 billion Euros were given to programs, projects and (international) organizations in third countries supporting alternative development and supply reduction, and to a lesser extent demand reduction, harm reduction and the protection of human rights. However, this position as major donor does not translate into clear political clout for the EU when it comes to global drugs policy. The general meeting of the United Nations Commission on Narcotic Drugs (CND) in Vienna is the annual baptism of fire of this arrangement. Despite the European Union being a key donor to the UN System, it is classed (incorrectly) as an international organisation and thus does not have the same status as the UN member states.
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EU Member States’ diplomats in the UN are often reluctant to use the lever of EU funding, preferring to draw attention to their own countries’ contributions, however modest. As long as the EU’s status is not changed, it can take part in statutory meetings only as observer. This means that the practice continues whereby the country holding the rotating presidency of the
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EU tends to speak on its behalf in the UN.
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At the CND, the European Commission and the EU Delegation in Vienna, in a rather vigorous supporting role behind the country that holds the EU presidency, do what they can
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technically and diplomatically to keep all the Member States singing from the same hymn sheet, to ensure consistency between positions decided on in Brussels, but often ‘lost in
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translation’ upon arrival in Vienna. Daily meetings are organised before the proceedings begin, to coordinate all positions and to plan interventions from the floor in the assembly.
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Such interventions can be a problem when national diplomats who know the UN better than they know Brussels feel they have to make their own statements.
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From 2005 the EU’s horizontal Drug Group (HDG) began to prepare for the tenth anniversary
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of the Political Declaration adopted during the UNGASS on narcotic drugs in 1998. There was a strong suspicion in Brussels that any serious attempt to assess whether the goals of
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UNGASS had been reached would be politically smothered at birth, and that any assessment that might take place would be unlikely to be objective. The EU called on the CND to have an evaluation carried out by UNODC of the achievement of the UNGASS 1998 objectives, with the input of an independent expert group, which was funded by the Commission. The UNODC presented its UNGASS 1998 assessment report at the CND in 2008. During the deliberations on this report, the EU and likeminded countries insisted that a thorough debate on the assessment was necessary before any new political declaration on drug policy could be negotiated. This debate took place through a number of informal, open ended working groups bringing together experts and diplomats from UN Member States. The conclusions served as a basis for formal negotiations to adopt a new Political Declaration on the world drug problem during a High Level Meeting (HLM) in 2009. On this occasion, the EU did its
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homework. Under the French EU Presidency in 2008, the HDG adopted an EU joint position paper with a number of ‘red lines’ for the future negotiations at UN level. This joint position fully reflected existing policy as set out in the EU Drug Strategy and Action Plans. The actual negotiations on the new Political Declaration that followed, between October 2008 and March
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2009, were challenging for the EU, in particular when it came to the ‘controversial’ themes of protecting human rights, the promotion of harm reduction policies, and the strong differences
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between the EU and the US on alternative development policies (eradication vs. sequential,
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non-conditional assistance). The Commission, without a formal seat at the negotiation table, provided important input to the drafting of the joint EU position, arranged for almost daily
during its negotiations on behalf of the EU.
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support for EU coordination in Brussels and Vienna, and supported the Czech Presidency
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These negotiations went well initially, with a united EU position, but complications arose as the deadline for the negotiations came closer. Sweden - and in particular Italy - now had real
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issues with the concept of harm reduction, and with using the term in official documents other
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than the EU Drugs Strategy and Action Plans. As official US state department cables that came available through Wiki-leaks revealed some years later, during these negotiations the
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US was concerned about the EU’s attitude in general and actually tried to undermine the joint EU position by strongly lobbying ‘friendly’ countries. ‘Stockholm’ and ‘Rome’ are mentioned. The Italian government went furthest in its persistence and ultimately broke the EU consensus, brushing aside the negotiation strategy that had endured relatively successfully for several months under the Czech EU Presidency. As a result, compromises had to be found and the term harm reduction did not make it to the Political Declaration but was replaced by the phrase ‘related support services’. The High Level Meeting ended with an implosion of EU cooperation. On one or two occasions, Berlusconi’s minister responsible for drugs had turned up, gave a statement entirely at odds with the European position, then returned to Rome without further contact with his fellow Europeans.
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During the closing session of the High Level Meeting, seventeen EU Member States aired their frustration at the defection of other EU countries from a policy model which had achieved consensus in Brussels some considerable time before by issuing a so called interpretative statement which was added to the report of the meeting. 16 After the 2009 CND,
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Italy continued to oppose the term harm reduction, also in EU policy documents, despite the fact that many harm reduction measures are common practice in various regions in the
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country.
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The EU’s efforts for the 2009 Political Declaration were not however in vain. The final document did include a considerable number of elements from the joint EU position.
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Furthermore, despite internal differences, the negotiations made clear that in the field of drugs policy the EU Member States are closer to each other than they are to most other
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countries. In the years following 2009, the CND seemed to return to business as usual. There is nevertheless a widening gap between the prohibitionist community (championed by
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Russia) on the one hand, and the majority of EU countries, and an increasing number of
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Latin-American and some Asian countries, on the other. In the end, the EU helped to prevent the adoption of a UN conclusion that UNGASS 1998
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had been a great success and that the global illicit drug problem had been ‘contained’. The rather limp report that was published by UNODC fooled no one.17 The European Commission had anticipated this outcome. While the High Level Meeting was taking place it published an independent report produced on its behalf by the Trimbos Institute and Rand Corporation.18 The report was presented at a press conference at the office of the EU Delegation in Vienna and was disseminated to all national delegations in the HLM/ CND. It was in fact an analysis
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The statement read: «These States declare that they will interpret the term “related support services” used in the Political Declaration and the Plan of Action as including measures which a number of States, International organizations and Non Governmental Organizations call “harm reduction measures”». 17 At the same time, even within UNODC, critical notes could be heard about the undesirable effects of UN drug policy. In 2008, the UNODC published a report titled ‘Fit for purpose’, which reflected on some of the important th unexpected consequences of the UN illicit drug policy framework. Retrieved 15 March 2014 from http://www.unodc.org/documents/commissions/CND-Session51/CND-UNGASS-CRPs/ECN72008CRP17.pdf. 18 Trautmann, F. and P. Reuter (2009). A report on Global Illicit Drug Markets 1998-2007 - Full Report. Brussels: European Commission.
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of the world drug markets between 1998 and 2007, based on a rigorous analysis of what was known and what could reasonably be deducted, inferred, or assumed on the basis of evidence alone.
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The effectiveness of EU governance
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From reading any of the EMCDDA’s Annual Reports on the state of the drug problem in Europe, it is quite clear that the EU has neither solved the drug problem in Europe, nor has it
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created a completely consistent ‘European’ drug policy. Europe’s fragmented police and customs services (a minimum of 56 national departments, often competing with each other)
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are no match for the traffickers. Between 2003 and 2012 the authors were involved in a vast number of initiatives to improve cooperation in this area. These initiatives rarely got beyond
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political gesturing, with the exception of MAOC-N.19 Europol has been an underused instrument throughout much of its existence. Any objective evaluation of the impact of law
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enforcement on drug crime anywhere is in any event extremely problematical due to the
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reluctance of national authorities to cooperate in such matters. In terms of demand reduction the countries of the EU are not doing much better, mostly
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because demand is determined by social, cultural and economic factors that are largely beyond the control of public authorities. Levels of drug use within the EU seem to have levelled out after a period of steady increase. Other initiatives, such as information or education campaigns have been evaluated and their usefulness is in doubt. Harm reduction (in the broad sense of the term), including measures to prevent drug-related deaths and infectious diseases, is in fact the cornerstone of the EU approach, even if some countries have issues with the term and some of the practices covered by it. In spite of the political and cultural differences between certain EU countries mentioned earlier, the scale on which we practice harm reduction is what sets EU drug policies apart from much of the rest of the
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Maritime Analysis and Operations Centre-Narcotics, a law enforcement cooperation mechanism between seven EU countries and the US, aimed at interdicting illicit drug trafficking across the Atlantic.
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world, even though other countries are catching up fast. Half the 1.2 million opioid addicts in the EU are receiving some form of substitution treatment, although there are great differences in coverage between Member States. Other social and health schemes aim at
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limiting the spread of blood borne diseases such as hepatitis and HIV. Where the EU differs from most other drug markets is that it has the most advanced public
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health and social services in the world, which makes harm reduction on a meaningful scale possible. The EU also has a less apocalyptic view of the “evil” of drugs than, say, the US.
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Unlike countries like Russia - which rejects the idea of supporting dependent drug users and preventing drug-related harm - Europe is not in denial about its own drug problem. Without
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being complacent, this has made it possible for much of the EU to accommodate the problem rather than to “solve” what by all the evidence from the last 100 years appears to be
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insoluble, at least by means of criminalisation and prohibition.
Since the late 1990’s, the policy of the European Commission has been to build on this
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reality and to use it to construct a platform of consensus between the Member States, rather
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than push for an ambitious policy with unrealistic goals. The Commission has pursued a strategy to improve the management of the drug problem but without hiding uncomfortable
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truths. It has done so by trying to de-mystify and correct common misconceptions, and by adjusting political ambitions to a realistic level. This approach may not grab the headlines, but it produces a lot fewer unintended consequences than the war on drugs. However, the strains between some of the Member States during debates in the UN show that there is still work to be done. Is EU drug policy governance ready for the future? The big question is where EU drug policy is headed in the next few years. The interest in drugs as a major societal issue has diminished considerably against the backdrop of the global economic crisis. At the same time, problems re-emerge, such as a drug-related HIV epidemic in Greece due to the breakdown of its health care system.
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A new EU drug strategy has been adopted in 2013. And although it ticks all the pragmatic boxes of a sensible EU drug policy, it avoids addressing some of the major questions that lie ahead. The balanced approach, which has been the cornerstone of EU drug policy for more
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than a decade, is an important principle, but could become an excuse for inertia. The EU has been successful in averting the drug-related HIV/ AIDS epidemic that took place
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in many parts of the world and that is sweeping through the Russian Federation. In the richer EU countries, drug use has become to some extent integrated into users’ working lives and
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does not necessarily lead to social exclusion anymore. The picture of the marginalised heroin user is less common today than it was fifteen years ago. New substances emerge, for which
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the existing drug control system has no other response than doing more of the same. And yet, the HDG is increasingly dealing with routine topics, process rather than substance, and
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the symptoms of drug-related problems, rather than actually discussing drug policy. The cooperation and shared interest in the HDG between health and law enforcement officials is
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not what it used to be. In several Member States, politicians and drug policy experts have
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moved on, with the result that newcomers to the HDG try to find new approaches which are not seldom the flawed approaches of the past.
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In 2016 a UN debate on decriminalising drugs will take place, initiated by a number of LatinAmerican countries which are seriously affected by drug-related crime. Even though in many EU countries decriminalisation is a fact - either de jure or de facto - it is doubtful whether the EU Member States are willing or able to enter into a real debate, let alone reach prior agreement on a common position for the negotiations. At EU level, policy makers, also in the HDG, seem to be unwilling to move away from their comfort zone and accept that over the past decade the nature of drug use and drug-related problems has changed. It would be regrettable if preserving the status quo turned out to be the common position of the EU in 2016.
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Despite the investments20 made in data collection, evaluation and research into the drugs problem in the EU, lessons are still often not learned. Cannabis for example is easily available to users in almost all EU Member States.21 The substance has recognised medicinal properties, which is not reflected by its current scheduling in the 1961 UN
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Convention. It is not harmless, as is claimed by some advocates of full legalisation, but the health and social effects of regular use are moderate and generally speaking no more
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harmful than the use of tobacco or alcohol.
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Alternative approaches with cannabis decriminalisation and/ or regulation have been tested in various European countries.22 Even though many questions remain, the known risks to
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health and society caused by the use of cannabis simply do not justify a continuation of a full blown prohibitionist approach, with the burden this places on law enforcement agencies, and
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the unwanted and unintended consequences it has for individuals and society. Despite all this information, the data for which is collected through the EMCDDA and its reitox network
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of national focal points, a real debate on the consequences for cannabis policy does not take
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place at any politically meaningful level, at least not in Europe. Ironically, across the Atlantic, several States in the US are experimenting with the legalisation of the cultivation and use of
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(medicinal) cannabis.
Likewise, harm reduction policies, including medically assisted treatment, have considerably improved the health and social situation of (former) injecting heroin users in many Western EU countries. In fact, providing such treatment more than half of Europe’s dependent opioid users is very likely to have had a serious impact on the illicit heroin market, to some extent
20
In the period covering the implementation of the EU drug strategy 2005-2012, an estimated € 150 million has been spent on monitoring, evaluation and research through the work of the EMCDDA, EU funding programmes such as the Drug Prevention and Information Programme, the Health Programme, the Programme for the Prevention and Reduction of Crime and the R&D Framework Programmes. 21 European Commission (2014). Flash Eurobarometer 330: Youth Attitudes on drugs. Brussels: European th Commission. Retrieved 15 March 2014 from: http://ec.europa.eu/public_opinion/flash/fl_330_en.pdf. 22 For example: the tolerated cannabis sales in ‘coffee shops’ in the Netherlands, the Cannabis Social Clubs in Spain, the toleration of small-scale domestic cultivation of cannabis in Belgium, the non-expediency of possession for personal use of cannabis in the Czech Republic, etc.
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regulating it.23 But in several Central and Eastern European Countries, such treatment and interventions are still the exception, and punitive drug policies are still strongly advocated. This creates ‘revolving doors’ for problem and dependent drug users, who get caught up in the criminal justice system, because these countries often lack the resources in terms of
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health and social security systems to provide long-term medical and psychosocial treatment. As a result, the criminal justice systems there continue to provide ‘treatment’ for chronically ill
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people.
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Conclusion
EU governance in the field of drugs has distinctive features that make the EU approach
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different from the ones followed by most other countries and regions in the world. The EU has managed to neutralise to some extent the divisive potential of drugs as a policy issue
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(even if there is still clearly some way to go). Over the years, national drug policies have converged. Despite some persistent ideological differences, most interventions related to the
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concept of harm reduction have been implemented in most Member States. The absence of
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one dominating view on drug policy, and the focus on data collection, exchange and mutual learning, and evidence-based policies have created the space for debate and for
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experiments at national level.
The way European integration works is a vast subject beyond the scope of this article. Yet one constant factor since the 1950’s is the way in which collective decision making in any given area starts with cautious or even reluctant bargaining by individual states. This ongoing process – largely ignored by the media and the general public - then gradually develops institutional reflexes, as the extent of consensus reached creates precedents that seep back into national policy making. To the extent that the policies that come out of this system are generally moderate and humane, we believe that it is serving our citizens well.
23
Recent case study in four EU countries conducted by the Trimbos Institute, RAND Corporation and ICPR, at the request of the European Commission, concluded that retention of dependent opioid users in Methadone th maintenance treatment may reduce total pure heroin consumption by around 30 percent. Retrieved 15 March 2014 from: http://www.trimbos.org/projects/research-monitoring-and-policies/further-insights-into-aspects-of-theeu-illicit-drugs-market.
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The EU has been relatively successful in promoting a realistic, cooperative and sciencebased drug policy in most of Europe, most of the time. It has promoted measures and practices that target real problems without too much unhelpful rhetoric. However, like all successful formulae this one also has a sell-by date. EU governance in the field of drugs
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cannot afford to stand still. It needs to find a second wind. The global economic crisis, with its widespread austerity measures, but also the growing assertiveness of drug producing and
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transit countries, are changing the landscape for drug policy making worldwide. The EU has
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a proven track record in finding pragmatic answers to complex drug problems. It could lead the way if it wanted to.
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Carel Edwards was head of unit of the European Commission’s Anti-Drug Policy Unit
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between 2003 and 2010.
Maurice Gallà was senior policy expert seconded to the European Commission’s Anti-Drug
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Policy Unit between 2007 and 2012.
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This article was written jointly by both authors and reflects their personal views.
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