The Legal Landscape for Cannabis Social Clubs in Spain
This briefing is a preliminary sketch of the legal landscape for cannabis social clubs in Spain. Its author is presently conducting legal analysis and empirical research in Spain and her findings will be published in due course. The aim of this briefing is to provide an interim sketch of the relevant law for English speakers working in drug policy.
Introduction and Overview
The so-called ‘Spanish Cannabis Social Club model’ has generated a great deal of interest in drug policy circles. The model consists of a not for profit association, democratically operated by its members, officially registered as a legal entity, which collects and distributes cannabis to its members, on private premises licensed for the sole access of members. Several associations cultivate cannabis on behalf of their members. In order to be a member of a cannabis association a person must be an adult, a habitual user of cannabis, and the friend of a signed-up member.
Members put money into the association and are thereby entitled, in addition to use of its facilities, to a proportionate share of its products, including cannabis. The legal protection afforded to registered associations by the Constitution and national legislation means that they can only be dissolved by a court order. The licensing of private premises for the use of the association (social clubs) entails the adequate satisfaction of various municipal regulations and autonomous community laws concerned with matters such as health and safety, and the abatement of noise and noxious emissions.
The first cannabis association was formed in 1991 and the first club appears to have been opened in 2001. There was a dramatic proliferation of cannabis associations and clubs between 2007 and 2011. Official records suggest that there are now at least 500 cannabis associations operating in Spain, each with hundreds if not thousands of members. The majority is in Catalonia, followed by the Basque country, but they are in existence throughout the country (including in the autonomous communities of Madrid, Valencia, the Canaries, Andalusia, the Balearics, Navarra, Castile and León, and Galicia). In Catalonia the number of applications for licenses by cannabis associations has resulted in the administrative creation of a specific license for cannabis smoking clubs. A de facto legalisation of cannabis supply has arisen, not as a result of any legislative initiative, but from the persistent testing of Spain’s legal boundaries by civil society.
Whilst criminal proceedings have been and continue to be brought against cannabis associations for both the distribution and cultivation of cannabis, the overwhelming majority results in acquittals or in a stay of proceedings occasioned by judicial findings that the conduct proven is not in breach of the criminal law of Spain. Such rulings are not infrequently accompanied by judicial statements about the inequity of the prosecutions and the urgent need for government regulation to ensure law enforcement and prosecutions target only criminal supply, and not cannabis clubs.
Faced with the social reality of what are now several hundred cannabis associations and cannabis social clubs, two city councils (the province of Girona and the municipality of San Sebastian) and the parliament of one autonomous community (Navarra) have all introduced specific criteria for the local regulation and licensing of cannabis clubs. The Parliament of the autonomous communities of the Basque country has announced its intention to do likewise, as has the town council of Barcelona.
The Parliament of Catalonia has issued detailed recommendations for their regulation by local councils. The aforementioned councils and parliaments describe the cannabis social club as an opportunity for enhancing civil rights and promoting public health simultaneously. The aim of these regulations is harm-reduction and provision of legal security for cannabis associations. The central government opposes local regulation and claims that any regulation relating to prohibited substances is within the exclusive jurisdiction of the central government in accordance with its obligations under the International conventions.
District council licenses, coupled with the promulgation of local regulations have enhanced the social standing and perceived legitimacy of cannabis social clubs. Cannabis social clubs and cannabis associations adhere to increasingly elaborate self-regulation. Such regulations are far from identical. Both their uniformity and their diversity are a reflection of attempts to exert social pressure on the authorities whilst conforming to exigencies of planning regulations, a vast body of criminal case-law on ‘closed-circle use’ (see below) and in anticipation of the requirements of municipal regulations for cannabis clubs.
The Cannabis Social Club model has attracted international attention in drug policy circles for several reasons of which the primary appear to be:
(i) The proliferation of cannabis social clubs in Spain has not attracted criticism from either of the primary drug control bodies, the INCB or UNODC;
(ii) The model appears to conform with international obligations;
(iii) The democratic means by which associations must operate to conform to the administrative law on associations, offers consumer control over the product;
(iv) On account of the associations being not-for profit, the model safeguards against the perceived risk of over-commercialisation;
(v) The model offers a regulatory opportunity for quality-control of the cannabis distributed and for programmes of risk-prevention;
(vi) The model provides a means of separating cannabis supply from the black market and harder drugs;
(vii) The model facilitates research into cannabis consumption and therefore the design of appropriately targeted programmes of harm reduction.
Observatorio Civil de Drogas