Non-residents in the Netherlands and access to coffee-shops
Under the 1976 Law on opium (Opiumwet 1976), the possession, dealing, cultivation, transportation, production, import and export of narcotic drugs, including cannabis and its derivatives, are prohibited in the Netherlands. That Member State applies a policy of tolerance with regard to cannabis. That policy is reflected inter alia in the establishment of coffee-shops, the main activities of which are the sale and consumption of that ‘soft’ drug. The local authorities may authorise such establishments in compliance with certain criteria. In a number of coffee-shops, non-alcoholic beverages and food are also sold.
In an effort to reduce drug tourism, and even to prevent it, the Municipal Council of Maastricht, by decision of 20 December 2005, inserted a residence criterion in the General Maastricht Municipal Regulation and thus prohibited any coffee-shop owner from admitting to his establishment persons who do not have their actual place of residence in the Netherlands.
Mr Josemans runs the ‘Easy Going’ coffee-shop in Maastricht. Following two reports attesting that persons who are not resident in the Netherlands had been admitted to it, the Burgemeester van Maastricht (Mayor of Maastricht), by decision of 7 September 2006, temporarily closed that establishment.
Mr Josemans lodged an objection against that decision. He submits that the legislation at issue in the main proceedings constitutes unjustified unequal treatment of citizens of the European Union and that, more specifically, people who are not resident in the Netherlands are denied the possibility of buying non-alcoholic beverages and food in coffee-shops, which is contrary to European Union law. It is against that background that the Raad van State (Council of State), before which the dispute was brought, has made a reference for a preliminary ruling to the Court of Justice.
First of all, the Court states that the harmfulness of narcotic drugs, including those derived from hemp, such as cannabis, is generally recognised and that there is a prohibition in all the Member States on marketing them, with the exception of strictly controlled trade for use for medical and scientific purposes. That legal position complies with various international instruments, in particular with a number of United Nations Conventions, which the Member States have cooperated on or acceded to, and with EU law.
As the release of narcotic drugs into the economic and commercial channels of the European Union is prohibited, a coffee-shop proprietor cannot rely on the freedoms of movement or the principle of non-discrimination in so far as concerns the marketing of cannabis.
The Court does not accept that argument and holds that the freedoms of movement may validly be relied on by such a proprietor in those circumstances.
The Court states that there is a restriction on the exercise of that freedom in so far as the proprietors of coffee-shops are not entitled to market lawful goods to persons residing in other Member States and those persons are precluded from enjoying such services. That restriction is however justified by the objective of combating drug tourism and the accompanying public nuisance.
December 16, 2010
Court of Justice of the European Union