Legal Research

Is selling hash in Coffee Shops covered by free movement of goods rules under EU law?

By scott

Well it’s the funkalistic, / the blunt I twist it - Cypress Hill - ‘I wanna get High’

It’s not often that the right to go into a ‘coffee shop’ and spark up a joint comes before the courts, but at this very moment the judges at the European court of Justice are faced with just that question.

Advocate General (AG) Bot of the European Court of Justice has proposed the full court agree that the decision of the Dutch municipality of Maastricht to prohibit the admission to ?coffee shops? of anyone who is not a Dutch resident is legal. No, seriously, this is a real case.

Maastrict passed rules that reserved admission to the coffee shops to residents of the Netherlands only, and when one coffee shop owner, Mr Joseman got busted a couple of times for having non-residents in his shop ? partaking of his wares ? he was closed down ?albeit temporarily. Mr Joseman decided to appeal against the decision and the Raad van State (Council of State, the Netherlands) decided to refer the question of whether European Union law precludes rules which prohibits admission to coffee shops of persons not resident in the Netherlands to the ECJ.

Mr Joseman argued that the ban on non-dutch customers was in conflict with the guarantee under the EU treaty on the free movement of services (Article 56 TFEU). The freedom prohibits restrictions on free circulation of services within Member States. Services are defined in the negative, ?they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.? (Art. 57 TFEU) Services include those activities of “a commercial character.”

However, aaccording the AG Bot drugs, including cannabis, are not goods like others and their sale does not benefit from the freedoms of movement guaranteed by European Union law, in as much as their sale is unlawful (though tolerated by the authorities in the Netherlands. Possession is, however, lawful). As such, he decided that the measure adopted by the municipality of Maastricht does not fall within the scope of the freedom to provide services ? regardless of the fact that the coffee shop also sells coffee and cakes etc.

He also added that the Schengen Agreement between France, Germany, Belgium, Luxembourg and the Netherlands which aimed to eliminate border checks between the countries also did not preclude the measures, especially as EU law allows Member States to determine measures necessary for maintaining public order within their borders and drug tourism represents a genuine and sufficiently serious threat to public order in Maastricht, that the measure to exclude of non-residents from coffee shops is necessary to protect the residents of the municipality from trouble caused by that phenomenon.

This would be interesting if other dutch municipalities followed suit.

An Advocate General`s opinion is persuasive, but not binding on the ECJ, which will issue its judgment in due course.

There’s a stain on my notebook where your coffee cup was / And there’s ash in the pages - Squeeze ‘Coffee in Bed’

Full post as published by Information Overload on July 21, 2010 (boomark / email).