Criminalization of trade and trafficking in doping substances in the European Union.

• Author: Kedzoir, Magdelena

Introduction

Although the answer to the question whether criminal or administrative sanctions shall be applied against trade and trafficking in doping substances, especially for personal use, remains a matter of political and personal approach (1), there have been clear regulatory steps taken on European level towards criminalization. (2) In the White Book on Sport (2007), under point 2.2., the European Commission clearly called member states to treat trade and trafficking in doping substances as illegal, same like trade and trafficking in illicit drugs. (3) When holding EU presidency Slovenian sport Minister Miran Zwer announced very clearly: "We need to develop one rule for the whole of the EU, so every country treats the issue the same. It cannot be illegal in one country and then not in another because the offenders are clever and exploit this". On the European Council summit in Athens in May 2009 the Commission once again called member states (which have not done it so far) to criminalize trade and trafficking in doping substances. What is more, the Commission urged member states to criminalize the possession of doping substances with the intention to spread them on the market. (4) Such intention raises crucial questions about EU competence in the field of harmonization and criminalization of trade and trafficking in doping as well as regards the possible legal grounds for common action of the European Union in this field.

These abstract attempts to deliver answers to the question whether the process of criminalization of trade and trafficking in doping substances on the EU level is legally feasible and if so, to what extent. It depicts reasons for the EU involvement in the area of trade and trafficking in doping and analyses the position of the EU Commission on the problem of trade and trafficking in doping substances. Moreover, it shows the outline of legal situation in the different member states of the EU. Finally respective Treaty provisions will be shortly analyzed in order to find possible legal grounds for criminalization of trade and trafficking in doping on the EU level. It is argued that such a common approach is currently possible only in certain aspects of the aforementioned problem.

Reasons for the EU interference

One may wonder why the EU shall interfere with the question of trade and trafficking in doping substances if some international organizations such as Council of Europe or UNESCO have already been involved. Numerous overlaps between the problem of drug trafficking for doping purposes and EU policies shall be mentioned in this context.

The general use and accessibility of drugs enhancing performance in recreational sports create a serious public health threat, especially to younger sportsmen (a subject of the EU policy laid down in article 168 of the Treaty on the Functioning of the EU - consolidated version). Anabolic steroids and other doping substances are relatively easy and cheap to obtain. In this context, the following figures are more than expressive: As much as 51% of Polish 17 years-olds claim that it is easy to purchase anabolic steroids (the most frequently used doping substance) and 39 % of them think, they could buy them if they only wished so. In France the same is claimed by 10% of teenagers and in Italy by 16 %. Once on the market, performance enhancing drugs are used in both professional and recreational sport. (5) The 2011 Eurobarometer shows that young people can easily obtain even most harmful drugs within 24 hours. (6)

Moreover, trade, production and trafficking of illicit drugs represent (in some countries) forms of organized crime (also a subject of EU policy - article 67 TFEU), which the international community doesn't seem to have under control. The past few years have brought significant changes: the rapid emergence of new drugs as well as innovative distribution channels. Interpol believes that the traffic in performance-enhancing drugs, such as anabolic steroids, is bigger than that of marijuana, heroin and cocaine combined. (7) Interestingly the routes doping substances are being trafficked from seem to follow these of "normal" drugs. (8) Already in its Hardop (Harmonization of Methods and Measurements in the Fight against Doping) research project, in 1999, the European Commission identified these challenges in the combat of doping; one of them explicitly, was the lack of cooperation between different bodies: e.g. medical/laboratorial and prosecutorial. (9) Such need for cooperation was confirmed, meanwhile, in the Commission's Communication to the European Parliament and the Council (2011).

Finally trade and trafficking in doping affects the common market of the European Union where the principle of free movement of goods and services is applied. Goods once placed on the market can circulate freely between all 27 member states of the EU. And in spite of the fact that the EU as a whole must be seen on a worldwide scale as an importer and consumer rather than as an exporter of doping substances it has apparently not developed - until now - a common strategy on the limitation of imports of substances that have a performance enhancing effect in sport.

The other overlaps between anti-doping policy and the EU law - like the fact that doping contravenes the principle of fairness in sport (another subject of the EU policy), will not be analyzed further here, as it goes beyond the scope of this abstract.

Position of the EU Commission on trade and trafficking in doping substances

In the light of the described phenomena, the EC Commission, urged by the European Parliament, published on the 11th July, 2007 a White Book on Sport, (10) and its accompanying document, Pierre du Cubertin Action Plan, (11) setting more concrete goals in EU anti-doping policy. The Commission proposed - under Sec. 2.2 - to join forces in the fight against doping, precising the role of the EU itself in this process and the means to be undertaken on the EU level.

First of all it must be stressed that the European Commission is not striving for criminalization of the use of doping by an athlete himself/herself. Also the problem of possession for the personal use is not the subject of interest for the Commission. Therefore the Commission focuses on the criminalization of acts prevailing to the doping use, like production, distribution and the widely understood traffic.

What is more, the European Commission assumes that the problem of doping in sport must be treated in a way similar to regular drug abuse. (12) Limitation of supply in forbidden substances can be achieved through several means. One of them is, according to the White Book provisions, strengthening of collaboration between law enforcement agencies: border guards, customs, national and local police etc. on national and international level for the purpose of exchanging information on trade and trafficking in doping. (13) This kind of collaboration is legally regulated only in some countries, like Spain, Italy, and France but on international level there is a significant lack of any kind of such regulation. In the Communication published in October 2011 the European Commission pointed out that drug trafficking was one of the biggest cross-border law enforcement challenges in the EU. (14)

In order to fill this gap, the EC Commission proposed to involve Interpol for cross-border doping cases. Such involvement should rely on the collection and analysis of existing information on anabolic agents abuse and trafficking. Interpol, the oldest International Police Office, has...