Academic journal article Nottingham Law Journal

The Court of Justice of the European Union Rules That Non-Dutch Residents Should Get a Proper Cup of Coffee, but No Pot!

Academic journal article Nottingham Law Journal

The Court of Justice of the European Union Rules That Non-Dutch Residents Should Get a Proper Cup of Coffee, but No Pot!

Article excerpt

M.M. Josemans and the Burgemeester of Maastricht v Rechtbank Maastricht, Reference for a preliminary ruling from the Raad van State (Netherlands) Case C-137/09 (J.N. Cunha Rodrigues, A. Arabdjiev, A. Rosas (Rapporteur), A.O. Caoimh and P. Lindh, Judges. Advocate-General: Y Bot.)

INTRODUCTION

For non-Dutch nationals visiting the Netherlands, it has been customary in the past 30 years to pay a visit to, or at least observe, the famous Dutch "coffee shops" which are often decorated in flamboyant psychedelic colours and bear memorable names such as "Funky Monkey" or "Mellow Yellow." The coffee shops are, of course, less famous for their beverages than for selling soft drugs such as cannabis, either on its own or in products such as "cookies" or "rainbow cakes."

Although the number of these establishments has dropped significantly during the last 16 years, there are still nearly 700 such coffee shops in the Netherlands with over half of these in the main cities of Amsterdam, Rotterdam and The Hague. The "Easy Going" cafe in Maastricht is such an establishment, and one to which the Court of Justice of the European Union (CJEU) recently gave its attention. (1)

To understand the role of the CJEU in this case, its ruling and consequent implications, a further explanation of relevant Dutch administrative organisation and law is required.

LEGAL AND ADMINISTRATIVE BACKGROUND

Contrary to popular belief, the selling of all narcotics is illegal in the Netherlands. (2) The Opiumwet 1976 is the main legal provision on drugs in the Netherlands and regulates the production, distribution and use of "psychoactive" substances. The revision in 1976 came about after the Working Group on Narcotic Drugs 1972 (the Baan Committee), published a report which proposed a "risk scale" of specific substances, based on the overall potential for harm. This report was addressed in the 1976 revision of the Act and since then there has been a distinction made between "soft drugs" e.g. cannabis and its derivatives, and "hard drugs" namely heroin and cocaine.

A key theme of the original policy was to help overcome risks that both individuals and society as a whole faced as a result of drug use. Consequently, for the last 30 years, there has been a policy of "turning a blind eye" to the sale of soft drugs, via a policy of "non-enforcement" in specific circumstances. Although the possession of cannabis up to the amount of 30 grams is potentially punishable by up to one month's imprisonment and/or a fine of 2,250 Euros, small quantities of cannabis products for personal use are exempt from punishment.

The Opium Act is assisted by the Opium Directive which states that the prosecution of possession of up to 5 g of cannabis on a person has the lowest priority for judicial action. Consequently sales of such quantities of cannabis from cafes to customers has not generally been investigated provided the establishment adheres to the AHOJ-G criteria (3) A breach of one of the AHOJ-G rules can lead to prosecution, and should another breach occur, the cafe is likely to be closed down.

In addition to the national laws, each municipality is able to devise its own policies to regulate the establishments. The majority of Dutch municipalities have a zero policy, i.e. no such establishments have been allowed at all. In municipalities that do allow these cafes, the majority will have policies to ensure cafes are not established near to schools or, if appropriate, to national borders.

Therefore, although cannabis remains a controlled substance and its sale and use is illegal, in certain circumstances the practice is tolerated. However with an increase in drugs tourism, several hundred visitors flocking across the Dutch-German, and Dutch-Belgium borders on a regular basis, coupled with a general increase in drugs related crimes, it is not hard to see why "coffee-shops" have become increasingly prosecuted, in an attempt to eliminate them. …

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