Source: NRC International

3 May 2010

By Paul van der Steen in Luxembourg

A Dutch city has banned foreigners from its cannabis selling coffee shops. A European court will now decide whether this is legal.

The continuing struggle of Dutch border towns against drug tourism could soon take a new turn, as the European Court of Justice (ECJ) prepares to hand down a ruling regarding one of the most severe measures employed in this battle so far.

Last Thursday, the ECJ heard arguments in Josemans v. Maastricht. The case dates back to 2006, when authorities found two foreign nationals on the premises of Easy Going, a coffee shop of the kind that sells cannabis in addition to coffee. Maastricht is the largest city in the far south of the Netherlands; right on the Belgian border and only a 30 minute drive from Germany. The Easy Going coffee shop there is owned by Marc Josemans, who is also the chairman of a branch association unifying the city’s coffee shop owners.

Dutch tolerance

The use, possession or sale of cannabis has never been legalised in the Netherlands.

# Possession and production for personal use are considered misdemeanours. However, possession of cannabis for personal use is not prosecuted up to five grammes or five cannabis plants.

# Coffee shops are allowed to stock a maximum of 500 grammes of cannabis.

# Large-scale production, export or import of cannabis is illegal, and should always be prosecuted.

# In other words: coffee shop owners can legally sell cannabis but they cannot legally buy it.

Free market for drugs?

Law enforcement officers found the two shortly after a municipal regulation had come into effect prohibiting the presence of foreigners in coffee shops. It remains the only time they acted on the new rule so far, because Maastricht is awaiting the outcome of this test case. In the Netherlands, the case has made its way up to the Council of State, the highest Dutch court in these matters. Before it gives a ruling, the council has requested the advice from the ECJ. It has asked the European court whether distinguishing between local and foreign cannabis customers isn’t at odds with principles underlying the European Union’s internal market.

In a weird legal twist, the case seems to have led to a clash between the EU’s laws governing free trade on the continent and Dutch soft drug policy. For decades, the Netherlands has had a unique policy governing soft drugs, effectively decriminalising – though not legalising – the use of cannabis. The sale of soft drugs through coffee shops is strictly regulated: advertising is not allowed, nor is selling to underage customers for instance.

On the other hand, the European Union guarantees a free, unified market of goods and services amongst its members. Whether or not this should apply to the semi-legal parts of the Netherlands’ cannabis industry, is the question now up for debate.

André Beckers, Joseman’s legal counsel, has argued it should. He claims cannabis is an economic commodity like any other. Beckers has shown that Easy Going, one of Maastricht’s 14 coffee shops, expects to sell ten million euros worth of cannabis this year, in addition to the 500,000 euros it stands to make from ‘normal’ activities, like selling coffee. Because of the illegal nature of some of its business, it is under no obligation to pay sales tax on the cannabis it sells, but Easy Going is required to pay income tax, employee benefits, corporate tax and value added tax on its legal revenues. The lawyer also cited a recent study which found coffee shops indirectly added 140 million euros and 1,370 jobs to the Dutch economy.

Sander Lely, a lawyer for the city of Maastricht, countered that trade in contraband could never be covered by regulations governing the common market. “That some of its revenue is generated through the sale of legal products is irrelevant,” Lely said. He was supported in his argument by representatives of both the Dutch and Belgian state.

Hubert van Vliet, a representative of the European Commission, pointed out the possible consequences if the ECJ found coffee shops were not covered by EU laws . “Everything pertaining to coffee shops would then be exempt,” he argued. “What will that mean for the border workers employed there? The free flow of capital would also be affected, which means only Dutch nationals would be allowed to own coffee shops.”

The city of Maastricht’s lawyer and the representative of the Dutch state argued that the exclusion of foreign nationals from coffee shops was not merely a matter of Dutch self interest, but also important for the maintenance of public order in other EU member states. “The Netherlands is subject to international pressure in this respect,” said Corina Wissels, the representative for the Dutch state. Approximately 70 percent of the two million people who visit a Maastricht coffee shop every year are from foreign countries, mainly Germany, France and Belgium. The Belgian representative asked the court to consider the nuisance caused by French drug users travelling through Belgium, drug runners, and users returning home driving under the influence.

Customer card system

Van der Vliet, arguing for the European Commission referred to an earlier ruling by the ECJ concerning Polish prostitutes in the Netherlands. The court then found that a member state could not let its own residents go about their business unhindered while impeding other EU nationals from doing the same. “The European Commission does not oppose a test case in itself,” he said. “But why haven’t less far-reaching measures been tried first, such as a customer-card system, reducing the maximum amount available to single customers (from 5 to 3 grammes for instance) or requiring customers to consume purchased wares on the spot?”

The judges expressed surprise over the Dutch drug policy [see box] through their questions. They asked what the coffee shop’s permit was for exactly, if the sale of cannabis was technically illegal in the Netherlands. The court also wondered who supplied the drugs on sale to the coffee shop. The state perhaps?

The ECJ declined to schedule a specific date for its ruling. It did, however, promise to process the case quickly. A definitive ruling by the Dutch Council of State is expected before the end of this year. The case will play an important part in the formation of new Dutch soft drug policy. Mayors of Dutch border municipalities have also said they would await a ruling by the Council of State before experimenting with customer cards for cannabis users.

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