OPINION OF ADVOCATE GENERAL
Bot
delivered on 15 July 2010 (1)
Case C‑137/09
Marc Michel Josemans
v
Burgemeester van Maastricht
(Reference for a preliminary ruling from the Raad van State (Netherlands))
(Area of freedom, security and justice – Freedom to provide services – Scope ratione materiae – Sale of narcotic drugs – Measure adopted by a local public authority which restricts access to coffee shops only to Netherlands residents – Fight against drug tourism – Obligations incumbent on the Member States under Article 4 TEU and Article 72 TFEU – Schengen Implementing Convention – Article 71(5) – Protection of national public order and European public order)
I – Introduction
A – General presentation of the case
1. Is the principle of freedom to provide services guaranteed by the Treaty on the Functioning of the European Union applicable to the sale of a narcotic product? In other words, may the manager of a coffee shop rely on that principle in order to legitimise its activity and may a national of one Member State rely on that freedom to go and take drugs in another Member State?
2. Behind these straightforward questions there are other more sensitive questions. Are we seeking to build a Europe within which producers, forwarders or consignees are free to rely on the freedoms of movement guaranteed by the Treaty to cultivate, transport, supply or consume drugs? Is the area of freedom, security and justice which we are now building intended to serve the interests of the drug trade?
3. These are essentially the questions raised by the present reference for a preliminary ruling.
4. The background to this case is the hardening of the policy of tolerance adopted by the Kingdom of the Netherlands with regard to the sale of cannabis in coffee shops. Aware of the cross-border repercussions of that policy and the numerous public order problems caused by the growing large numbers of people frequenting such establishments, the Burgemeester van Maastricht (Mayor of the Municipality of Maastricht) decided to restrict access to those establishments only to Netherlands residents (‘the contested measure’). Such a measure would constitute a manifest obstacle to the freedoms of movement guaranteed by the Treaty if it applied to a public catering establishment in which only lawful consumer products were sold. However, that is not the situation in the present case since, in stark contrast to snack bars and other fast-food establishments which sell fizzy beverages and sandwiches to take away, the main activity of coffee shops is the sale of a narcotic product the marketing of which is prohibited by all the Member States.
5. The Raad van State (Council of State, Netherlands) therefore asks the Court to clarify whether such a measure falls within the scope ratione materiae of European Union (‘EU law’) law and, in particular, the principles and fundamental freedoms guaranteed by the Treaty. It asks the Court, if relevant, whether that measure may be justified on grounds that it is intended to combat drug tourism and the nuisances which accompany it.
6. In this Opinion, I will submit, first of all, that local authority rules which restrict access to coffee shops only to Netherlands residents do not fall within the scope of the Treaty and, in particular, freedom to provide services. In this respect, I will explain that the freedom mentioned in Article 56 TFEU cannot under any circumstances legitimise the trade in a narcotic product which, even though it is tolerated by one of the Member States of the Union, cannot benefit from the advantages derived from the common market.
7. Secondly, I will suggest that the Court examine the conformity of the contested measure from an additional perspective, in a spirit of cooperation with the national court. In view of the subject-matter of the dispute and all the information provided by the national court, I consider that it is essential to interpret the provisions of EU law which relate specifically to the protection of public order and the fight against unlawful demand for narcotics.
8. After conducting that examination, I will show that such a measure, which is intended to combat drug tourism and the criminal activities which accompany it, represents the expression for the State not only of the right conferred on it to maintain internal public order under Article 4 TEU and Article 72 TFEU, but also its duty to contribute to the maintenance of European public order under Article 71(5) TFEU.
B – Cannabis
9. At present, around 4 million European young people use cannabis each day and 19 Member States are affected by the cultivation of that narcotic. In so far as its consumption model changes or new forms of cannabis appear on the market, it is important to bear in mind the nature of this drug and its effects on the health of users.
1. A wide range of cannabis
10. Marijuana, or ‘weed’, is the name given to cannabis leaves and fruits which, chopped or ground, are smoked pure or with tobacco. Hashish, on the other hand, is the resin secreted by the leaves and the ripe heads of the plant. It is four to eight times more active than marijuana. The psychotropic substances contained in hashish are cannaboids, the most significant of which is delta-9-tetrahydrocannabinol (‘THC’). Cannabis has detectable effects at a dose of 0.05mg/kg of THC absorbed and, by way of illustration, a cigarette or joint of marijuana contains 2 to 5mg of THC.
11. The THC content varies markedly depending on the origin of the products, the season and the method of production. Thus, going beyond the traditional forms from northern Africa (in particular Morocco), Asia and the Middle East, sellers and dealers are now offering new cannabis preparations to users who are still rarely aware of their increased toxicity. (2) According to the studies conducted, whilst the average THC concentration of imported marijuana and hashish is 7% and 18.2% respectively, the concentration for marijuana from the Netherlands (nederwiet or hennep) is in the order of 20.4% and for hashish derived from Dutch marijuana (nederhasj) in the order of 39.3%. (3)
12. Similarly, new marijuana-based products have appeared on the market to which have been added cannaboids which are synthetically produced or cut with such harmful substances as lead, polish, powdered glass, medicines or even sand. (4) This increases the weight for sale and strengthens the intoxication effects.
2. Consumption which causes risks to human health
13. Whilst, as will be explained, the policy of tolerance adopted by the Netherlands Government is based on a distinction between the consumption and the respective dangers of ‘soft drugs’ and ‘hard drugs’, in my view this comparison has lost all pertinence in view of the new forms of cannabis present on the market and the risks to human health entailed by their consumption.
14. The danger and harmfulness of cannabis to users and to the social fabric need no further proof. Whilst the psychological effects linked to cannabis consumption are, in principle, temporary and reversible in the case of an occasional users, they are nevertheless apparent from the first joint, they potentiate the effects of alcohol and tobacco, and they are likely to give rise to a cannabis intoxication which, when combined with driving a vehicle, has dramatic consequences. This was expressly recognised by the four Netherlands ministers with responsibility for drugs policy in their letter to the Netherlands Parliament of 11 September 2009. (5)
15. As numerous scientific studies have shown, (6) intensive and prolonged use of cannabis may have even more damaging physical and psychological effects. Containing seven times more tar and carbon monoxide than tobacco, chronic cannabis use exposes the smoker to higher risks of pulmonary toxicity and upper aerodigestive cancer. (7) Cannabis consumption results in physical and mental fatigue which diminishes concentration, memory and learning capacities and produces a deficit in professional or educational work. Regular cannabis consumption can thus lead to social breakdown which, in adults, may make it more difficult to hold down a regular and stable job and, in young people, result in school absenteeism which causes marginalisation and depression in some cases. Furthermore, cannabis use may give rise to psychiatric symptoms such as hallucinations. It has also been implicated in the appearance of certain forms of schizophrenia. In such cases, the association of schizophrenia with cannabis abuse is characterised by earlier and more frequent problems, greater social exclusion, risks of depression and more marked suicidal tendencies. It is clear that such risks increase with the method of consumption, the length of use, the personal vulnerability of the user, and the quantity of the product inhaled.
16. Lastly, cannabis consumption exposes users to more potent drugs. Whilst the ‘gateway’ or ‘escalation’ theory is criticised in some quarters, the fact remains that a person who has already experienced the hallucinogenic effects of cannabis will be more readily disposed to try drugs with stronger properties.
17. In view of the danger and harmfulness of cannabis, it is now condemned in numerous international and European conventions.
II – The legislative framework
A – Union law
1. The fight against drugs
a) The Treaty on European Union and the Treaty on the Functioning of the European Union
18. Under Article 3(1) TEU, ‘the Union’s aim is to promote peace, its values and the well-being of its peoples’.
19. Article 3(2) TEU provides that ‘the Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime’.
20. Under Article 4(2) TEU, the Union ‘shall respect (the Member States’) essential State functions, including ... maintaining law and order.’
21. Well-being, social cohesion, and the health and safety of people are all objectives which guide the action taken by the European Union in combating drugs and in building the area of freedom, security and justice referred to in Article 67 TFEU.
22. In this context, the EU’s action focuses mainly on reducing supply and demand, combining measures to prevent and combat illegal trafficking of drugs and organised crime and drug prevention measures.
i) The fight against illegal trafficking of narcotic drugs and organised crime
23. Under Article 67(3) TFEU, measures to combat illegal trafficking of narcotic drugs and organised crime result in greater coordination and cooperation between the Member States’ police and judicial authorities and in approximation of the Member States’ criminal laws.
24. However, in accordance with Article 72 TFEU, the Member States retain responsibility for the maintenance of law and order and the safeguarding of internal security in their territory.
25. Illicit drug trafficking and organised crime are expressly included in the ‘Eurocrimes’ mentioned in Article 83(1) TFEU. That provision permits the European Parliament and the Council to establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
ii) Drug prevention
26. Drug prevention comes under Article 168(1) TFEU and Article 35 of the Charter of Fundamental Rights of the European Union, (8) which provide that a high level of human health protection must be ensured in the definition and implementation of all Union policies and activities.
27. Under Article 168 TFEU, those actions must, in particular, complement national policies to reduce drugs-related health damage, including information and prevention.
b) Schengen acquis
28. Article 71 of the Schengen Implementing Convention (9) provides as follows:
‘1. The Contracting Parties undertake as regards the direct or indirect sale of narcotic drugs and psychotropic substances of whatever type, including cannabis, and the possession of such products and substances for sale or export, to adopt in accordance with the existing United Nations Conventions …, all necessary measures to prevent and punish the illicit trafficking in narcotic drugs and psychotropic substances.
2. The Contracting Parties undertake to prevent and punish by administrative and penal measures the illegal export of narcotic drugs and psychotropic substances, including cannabis, as well as the sale, supply and handing over of such products and substances …
3. To combat the illegal import of narcotic drugs and psychotropic substances, including cannabis, the Contracting Parties shall step up their checks on the movement of persons, goods and means of transport at their external borders. …
4. To ensure compliance with this Article, the Contracting Parties shall specifically carry out surveillance of places known to be used for drug trafficking.
5. The Contracting Parties shall do their utmost to prevent and combat the negative effects arising from the illicit demand for narcotic drugs and psychotropic substances of whatever type, including cannabis. Each Contracting Party shall be responsible for the measures adopted to this end.’
29. A Joint Declaration on Article 71(2) of the Schengen Implementing Convention was annexed to the Final Act for that Convention. That declaration reads as follows:
‘In so far as a Contracting Party departs from the principle referred to in Article 71(2) in connection with its national policy on the prevention and treatment of addiction to narcotic drugs and psychotropic substances, all Contracting Parties shall adopt the necessary administrative measures and penal measures to prevent and punish the illicit import and export of such products and substances, particularly towards the territories of the other Contracting Parties.’
c) Secondary law
30. The Council Resolution of 29 November 1996 (10) clearly identified the drug tourism problem within the European Union and laid down the first measures to address that phenomenon.
31. Subsequently, under a Joint Action of 17 December 1996, (11) the Member States reaffirmed their common determination to put an end to illegal drug trafficking, in particular the illegal demand for drugs and the enormous profits from the illegal trade and drug tourism. (12) They also undertook to make it an offence publicly and intentionally to incite or induce others, by any means, to commit offences of illicit use or production of narcotic drugs and, in this regard, they undertook to be especially vigilant as regards the use made of the Internet. (13)
32. Then, under Article 2(1)(a) of Council Framework Decision 2004/757/JHA of 25 October 2004, (14) each Member State undertook to take the necessary measures to punish the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of drugs, where such conduct is intentional and is committed without right. (15)
33. The Stockholm Programme, adopted by the Council on 2 December 2009, (16) provides with regard to the Union’s Internal Security Strategy that the enhancement of actions at European level, combined with better coordination with actions at regional and national level, are essential for protection from trans-national threats. It also states that organised crime and drug trafficking continue to challenge the internal security of the Union and cross-border crime has become an urgent challenge which requires a clear and comprehensive response. (17)
34. Lastly, the framework for the Union’s action is formed by various plans implementing the Union’s drugs strategy for the period 2005-2012. The current action plan (18) defines five priority objectives, namely coordination policies in the drug field at European and national level, (19) reducing the demand for drugs, reducing and countering the supply of drugs, international cooperation, and improving research in that field.
2. The fundamental freedoms granted to citizens of the Union
35. Citizenship of the Union confers fundamental and individual rights on each national of the Member States. Any citizen of the Union may thus rely on Article 18 TFEU, which prohibits any discrimination on grounds of nationality, in all situations falling within the material scope of Union law. (20)
36. These situations include, first of all, those coming under Article 21 TFEU. (21)
37. That provision sets out generally the right of every citizen of the Union to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect. This is a fundamental freedom, confirmed in Article 45 of the Charter of Fundamental Rights of the European Union, which citizens of the Union may exercise independently of carrying on an economic activity. Thus, where a national of a Member State moves or resides within the territory of the Union, he may rely on the right not to suffer discrimination on grounds of his nationality, as enshrined in Article 18 TFEU.
38. These situations also include those coming under the exercise of freedom to provide services under Article 56 TFEU. (22)
39. It is settled case-law, first, that the right freely to provide services (23) may be relied on by an undertaking as against the State in which it is established if it provides services for persons established in another Member State. Second, that right includes the freedom for recipients of services, including tourists, to go to another Member State in order to receive a service there, without being obstructed by restrictions. (24) Under Article 52(1) TFEU, to which Article 62 TFEU refers, that freedom may nevertheless be subject to restrictions on grounds of public policy, public security or public health.
40. Lastly, the principle of non-discrimination laid down in Article 18 TFEU has been given specific expression and effect in the field of free movement of goods. Articles 34 and 35 TFEU prohibit respectively quantitative restrictions on imports and quantitative restrictions on exports and all measures having equivalent effect between Member States. Nevertheless, under Article 36 TFEU some restrictions may be justified on grounds of public policy, public security or protection of health and life of humans.
B – International commitments
41. The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, concluded at Vienna on 20 December 1988, (25) reinforces and supplements the measures laid down by the United Nations Single Convention on Narcotic Drugs, concluded at New York on 30 March 1961, (26) and by the United Nations Convention on Psychotropic Substances, concluded at Vienna on 21 February 1971. (27)
42. All the Member States and the Union are parties to the 1988 United Nations Convention. (28)
43. Article 3(1) of that Convention reads as follows:
‘Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally:
(a) (i) The production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention;
…
(c) (iii) Publicly inciting or inducing others, by any means, to commit any of the offences ... or to use narcotic drugs or psychotropic substances illicitly’.
44. The list of narcotic drugs mentioned in the 1988 United Nations Convention includes cannabis.
C – The Netherlands regulations
45. Under the 1976 Law on opium (Opiumwet, ‘the Law on opium’), possession, dealing, cultivation, transportation, production, importation and exportation of narcotic drugs are prohibited. Such acts are subject to criminal sanctions for all drugs, including cannabis and its derivatives, unless they are used for medical, scientific or educational purposes and prior authorisation has been given.
46. The policy of tolerance adopted by the Kingdom of the Netherlands with regard to the sale and consumption of ‘soft drugs’ is the result of a lengthy policy-making process, the broad lines of which were defined, in particular, in 1972 by the report of the Baan Commission (29) and in 1995 by the report entitled ‘Drugs policy in the Netherlands: Continuity and change’. (30)
47. That policy is based on a distinction between ‘hard’ drugs, which present an unacceptable risk to health, namely opiates, cocaine, codeine, heroin, ecstasy, hemp oil, amphetamines and LSD (list I), and ‘soft’ drugs, including cannabis and its derivatives, which do not raise the same concerns even though they are still deemed to be ‘risky’ (list II). (31)
48. In so far as the risks linked to consumption of ‘soft drugs’ are ‘acceptable’, the strategy adopted by the legislature is more differentiated than that for hard drugs. The possession of ‘soft drugs’ for personal use has been decriminalised and their sale, in strictly limited quantities and in controlled conditions, is tolerated. The legislature is thus seeking to avoid the stigmatisation and marginalisation of users of ‘soft drugs’ and also intends to keep the markets for ‘soft’ and ‘hard’ drugs separate, thus creating a social barrier to the transition from ‘soft’ to ‘hard’ drugs.
49. The policy of tolerance has been implemented inter alia within the framework of the directives issued by the college of public prosecutors. Those directives, which have force of law, set the priorities of the Public Prosecutor’s Office in relation to the investigations and criminal prosecution brought following an infringement of the Law on opium. (32) The judicial authorities have therefore relied on the principle of discretionary prosecution to pursue a policy of selective prosecution of offences and do not systematically bring criminal proceedings against small-scale dealing in such drugs, giving priority to prosecuting the trafficking of narcotic drugs and large-scale crime.
50. The Netherlands authorities have thus tolerated the sale of small quantities of hemp-based products in youth clubs by accredited sellers (huisdealer). They have subsequently extended that policy to coffee shops selling on a commercial basis (op commerciële basis) to adults.
51. Under the Netherlands regulations, coffee shops are establishments to which the public has access which are classified as fast-food establishments (horeca), like snack bars or friteries, in which food can be consumed, but in which the sale of alcoholic beverages is prohibited. The local authorities, namely the mayor, the public prosecutor and chief of police may authorise the establishment of such coffee shops subject to the following conditions.
52. First of all, the establishment of coffee shops is subject to the obtaining of an operating licence. Coffee shops must satisfy the same conditions relating to management and hygiene as are applicable to catering establishments. On the other hand, as was stressed at the hearing, that licence does not cover the sale of cannabis which, it should be borne in mind, is still technically an offence.
53. Subsequently, the conditions under which the sale of cannabis in coffee shops may be tolerated are defined in the directives issued by the Public Prosecutor’s Office. Those conditions, commonly known as ‘AHOJ-G criteria’, are as follows:
– A (affichering): no advertising other than brief information in the relevant premises;
– H (harddrugs): prohibition on offering and/or selling hard drugs;
– O (overlast): the establishment must not create nuisances; nuisances mean those caused by traffic and parking in the area around the coffee shop, the ensuing noise and pollution, and the presence of customers, or even drugs addicts wandering around;
– J (jeugdigen): access to the coffee shop and the sale of drugs to minors (younger than 18) is prohibited,
– G (grote hoeveelheden): the operator may not sell more than 5g of cannabis per person per day, the quantity normally sold for personal use.
54. Lastly, the ‘stock’ of cannabis tolerated in a coffee shop may not under any circumstances exceed 500g.
55. It is for the local authorities to implement this policy. Using a system of tripartite consultation, the mayor, the public prosecutor and the chief of police set the town’s priorities with regard to the sale of ‘soft drugs’ in the municipality. The AHOJ-G criteria represent the basic minimum for that policy and the local authorities may enact stricter regulations by adding new conditions, as was the case in the main proceedings. Those regulations are subject to review by the administrative courts.
56. Article 13b of the Law on opium grants the municipal authorities numerous powers with a view to imposing sanctions for nuisances and problems caused in contravention of the provisions of that law. (33) The mayor may thus order the temporary or permanent closure of a coffee shop if its operator has failed to comply with the abovementioned criteria.
57. The Burgemeester van Maastricht thus decided to tolerate a limited number of coffee shops in his municipality, unlike other municipalities which do not set any limit or apply a policy of zero tolerance.
58. Since 2004, as the competent ministers stated in September 2009, the Kingdom of the Netherlands has sought to reinforce its legislation on the establishment of coffee shops and to toughen measures to combat organised crime. (34) The Kingdom of the Netherlands is also attempting to respond to the problems caused by the cross-border repercussions of its policy and to reduce the public order and security problems caused by the sizeable and growing influx of drug tourists in its territory, in cooperation with the affected municipalities. Aside from traffic and parking problems, the many complaints made by residents concern not only the noise and trouble caused by gatherings of cannabis users using drugs in public, but also the nuisances caused by organised criminal networks around coffee shops and resulting from the presence of dealers and drug addicts, some of whom may leave behind used syringes or work their way into the foyers of buildings. (35) These problems are concentrated in particular in the border areas with Germany, France and Belgium. Thus, according to information provided by the Burgemeester van Maastricht at the hearing, the 14 coffee shops in that municipality attract around 10 000 visitors each day, 74 000 each week and just over 3.9 million each year. Moreover, 70% of those visitors do not reside in the Netherlands.
59. According to the Netherlands Government, the proposed measures must make it possible to return to the original purpose of the coffee shops, which must be points of sale used by residents, in which they can purchase and possibly consume cannabis in a safe and peaceful environment. At the instigation of the Netherlands Government, local public authorities have therefore reinforced their regulations, limiting the number of coffee shops in their area or opting for a policy of extinction, as would appear to be the case in the Municipality of Maastricht. (36) Others have decided to limit the establishments’ opening hours (closed at weekends or in the evening) or the quantity of cannabis sold or stocked. Lastly, some have introduced a distance criterion, preventing a coffee shop being set up close to certain institutions such as schools or psychiatric hospitals. According to the Burgemeester van Maastricht, it seems that these measures have not substantially diminished drug tourism.
60. This is the background to the contested measure. By prohibiting access to coffee shops for non-residents, it is a pilot measure (37) by which the Municipality is attempting to reduce drug tourism and all the ensuing nuisances.
61. The contested measure, which is based on the criterion of residence, was adopted on 20 December 2005 by the Gemeenteraad (Municipal Council) of the Municipality of Maastricht, then entered into force on 13 January 2006. As the Burgemeester van Maastricht stated at the hearing, the application of that measure has been suspended in the light of the reference for a preliminary ruling made to the Court.
62. Pursuant to Article 2.3.1.3e(1) of the General Maastricht Municipal Regulations (Algemene plaatselijke verordening Maastricht), in its 2006 version (‘the APV’), the proprietor of an establishment as referred to in Article 2.3.1.1(1)(a)(3) of the APV is forbidden to admit persons other than residents to the establishment or to permit them to remain in or at the establishment. The notion of ‘establishment’ is defined by the latter provision as a space to which the public has access and where food and/or non-alcoholic beverages are provided commercially, whether or not by means of vending machines, which customers are not required to consume on the premises. (38) Under Article 2.3.1.1(1)(d) of the APV, ‘residents’ means persons who have their actual place of residence in the Netherlands.
63. Article 2.3.1.3e(2) of the APV provides that the Burgemeester may specify that the rules laid down in the first paragraph of that article do not apply to one or more types of establishment referred to in the APV throughout the municipality or in one or more parts of the municipality designated therein.
64. By decision of 13 July 2006, the Burgemeester van Maastricht exempted from the contested measure all establishments throughout the municipality referred to in Article 2.3.1.1(1)(a)(3) of the APV, with the exception of coffee shops, tea rooms and the like, by whatever designation they might be known.
65. Pursuant to Article 2.3.1.5a(f) of the APV, the Burgemeester may declare one of the establishments as referred to in Article 2.3.1.1(1)(a)(3) of the APV temporarily or permanently closed if the proprietor of the establishment acts in contravention of the contested measure.
III – The facts and the main proceedings
66. By decision of 7 April 1994, Mr Josemans obtained a licence to operate in Maastricht the ‘Easy Going’ coffee shop, an establishment in which not only non-alcoholic beverages and food but also ‘soft drugs’ are sold and consumed. That licence was issued subject to compliance with the conditions laid down in the APV.
67. In the course of two checks carried out on 16 February and 8 May 2006, the police authorities of the Municipality of Maastricht found that Union nationals not resident in the Netherlands had been admitted to the establishment, in contravention of the residence criterion laid down by the contested measure.
68. Pursuant to the APV, the Burgemeester van Maastricht therefore declared the establishment temporarily closed by decision of 7 September 2006.
IV – The reference for a preliminary ruling
69. The Raad van State has decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Does a regulation, such as that at issue in the main proceedings, concerning the access of non-residents to coffee shops, fall wholly or partly within the scope of the [TFEU], with particular reference to the free movement of goods and/or services, or of the prohibition of discrimination laid down in Article [18 TFEU] in conjunction with Article [21 TFEU]?
2. In so far as the provisions of the [TFEU] concerning the free movement of goods and/or services are applicable, does a prohibition of the admission of non-residents to coffee shops form a suitable and proportionate means of reducing drug tourism and the public nuisance which accompanies it?
3. Is the prohibition of discrimination against citizens on grounds of nationality, as laid down in Article [18 TFEU] in conjunction with Article [21 TFEU], applicable to the rules on the access of non-residents to coffee shops if and in so far as the provisions of the [TFEU] concerning the free movement of goods and services are not applicable?
4. If so, is the resulting indirect distinction between residents and non residents justified, and is the prohibition of the admission of non residents to coffee shops a suitable and proportionate means of reducing drug tourism and the public nuisance which accompanies it?’
V – Analysis
70. The questions asked by the referring court cover two points which will be examined in succession.
71. The first point is whether a measure adopted by a local public authority as part of its general police regulations, which restricts access to coffee shops only to Netherlands residents, falls within the scope ratione materiae of EU law and, in particular, the principle of non-discrimination, free movement of persons, freedom to provide services and free movement of goods within the meaning of Article 35 TFEU.
72. The second point is whether such a measure possibly constitutes a restriction of one of those fundamental principles which could be justified on grounds of combating drug tourism and the nuisances which accompany it.
A – Preliminary remarks
73. Before examining the questions asked by the referring court, I would like to make a preliminary remark on the Community provisions which, in my view, require interpretation.
74. In its decision, the referring court identifies four Treaty provisions which could, in its opinion, preclude the contested measure. In this regard it mentions the principle of non-discrimination set out in Article 18 TFEU, the principle of free movement of persons recognised in Article 21 TFEU, the principle of free movement of goods within the meaning of Article 35 TFEU and, lastly, the principle of freedom to provide services under Article 56 TFEU.
75. I consider that, of the four principles cited by the referring court, the conformity of the contested measure should, if relevant, be examined only having regard to freedom to provide services under Article 56 TFEU.
76. The measure concerns, first and foremost, the provision of services. Under the APV, coffee shops are catering establishments to which the public has access in which food and non-alcoholic beverages are sold, subject to the operating licence issued to them by the municipality. Those goods may be consumed on the premises or may be taken away. Whilst there are situations where customers export the purchased goods, that activity remains accessory to and indissociable from the sale and does not therefore justify an examination of the contested measure in the light of the principle of free movement of goods and, in particular, Article 35 TFEU. (39)
77. Furthermore, in so far as the principle of freedom to provide services is a specific expression of the principle of non-discrimination and also constitutes a specific application of the right for any citizen of the Union to move and reside within the territory of the Member States, it will not be necessary for the Court to give a ruling in the light of Articles 18 TFEU and 21 TFEU. (40)
78. On the other hand, I suggest that the Court interpret a set of rules which the referring court has not expressly mentioned in its questions.
79. The fact that the national court has, formally speaking, worded the question referred for a preliminary ruling with reference to certain provisions of EU law does not preclude the Court from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, even if those provisions are not expressly indicated in the questions referred to the Court. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject-matter of the dispute. (41)
80. In the present case, it should be noted, from the outset, that the question asked by the referring court does not concern so much the sale of lawful consumer products as the sale of a narcotic product. The main proceedings concern the consequences of such tolerance and, in particular, the measures which could be adopted with a view to preserving public order from the problems caused by drug tourism. However, such concerns fall expressly within the remit of Article 4 TEU and Article 72 TFEU and, in my opinion, specifically form the subject-matter of Article 71(5) of the Schengen Implementing Convention. I therefore suggest that the Court interpret those provisions in order to provide the national court with an answer which will be of use to it in assessing the conformity of the contested measure and enable it to determine the case before it.
B – The exclusion of the contested measure from the scope of Article 56 TFEU
81. In practice, in stark contrast with snack bars and other fast-food establishments in which customers purchase fizzy beverages and sandwiches to take away, the main activity of coffee shops is the sale and consumption of cannabis. That is their primary function and the approach adopted here must be credible and realistic.
82. Is the principle of freedom to provide services guaranteed by the Treaty applicable to the sale of a narcotic product? In other words, may the manager of a coffee shop rely on that principle in order to legitimise its activity and may a national of one Member State rely on that freedom to go and take drugs in another Member State?
83. I think that these questions must all be answered in the negative.
84. It is evident that the introduction of the internal market and the establishment of the relevant rules raise certain problems with respect to narcotic drugs. Whilst the international commitments are clear, it has nevertheless been necessary for the Court to act on several occasions to establish the principle that narcotic drugs, including cannabis, are not goods like others and are not subject to the rules intended to apply to the internal market where their marketing is unlawful. (42)
85. In the light of the internal market rules, narcotic drugs do not all come under the same category. This difference does not relate to the nature of the goods, but to their final use. Thus, it is settled case-law that narcotic drugs which have a medical or scientific application come under the internal market rules. (43)
86. However, that is not the case with narcotic drugs imported illegally or intended for illicit purposes. This principle was laid down by the Court after some Member States attempted to apply customs and tax rules to such products.
87. In a case brought by German drugs traffickers on whom heavy customs penalties were imposed for narcotics (heroin) trafficking, in Horvath (44) the Court established the principle of the inapplicability of the common customs tariff to products which come under an total prohibition on importing and placing the products on the market in all Member States of the European Union. The Court stated that ‘the introduction of the common customs tariff no longer leaves a Member State the power to apply customs duties to drugs which have been smuggled in ... but does leave it full freedom to take criminal proceedings in respect of offences committed, with all the attendant consequences, including fines’. For the Court, the drugs smuggled in also do not justify the charging of customs duties, but only the adoption of strictly repressive national measures.
88. This ruling has been confirmed and clarified. In Wolf (45) and Einberger, (46) the Court stated that the prohibition on charging customs duties on narcotics stems from the fact that they may not be integrated into the economic channels of the Union. The Court pointed out that ‘no customs debt arises upon the importation of drugs otherwise than through economic channels strictly controlled by the competent authorities for use for medical and scientific purposes’. (47) It thus draws a distinction between narcotic drugs imported with a view to an authorised use for medical and scientific purposes and those imported illegally, by being smuggled in. Furthermore, the Court stated that imports of narcotic products within the Union fall wholly outside the scope of the objectives pursued by the customs rules. Those rules contribute to the objectives referred to in Article 3 TEU and must therefore contribute to the development of international trade and the lowering of barriers to trade. (48) Consequently, the customs rules are intended to apply to narcotic drugs only in so far as they form part of the economic channels of the European Union, that is to say where they are imported lawfully. For other narcotic drugs, since the activity is unlawful and does not enter into competition with a lawful activity, the common customs tariff, the legal basis for the valuation of goods, does not apply.
89. This approach would be applied by the Court a few years later to value-added tax (VAT). Whilst, in the view of the Court, the principle of fiscal neutrality on which the VAT directive is based does not allow any general distinction between lawful and unlawful transactions, there is an exception to that principle, namely the case where the prohibition imposed on an activity is so absolute that no competition can be established with a lawful activity.
90. Since the unlawful movement of narcotic drugs within the Union falls outside the scope of the objectives pursued by the common system of VAT and is subject to an absolute prohibition, it cannot enter into competition with any other lawful activity and cannot therefore give rise to the charging of taxes. (49) This approach would be applied on several occasions to different situations, such as the importation, within the Union, of morphine, followed by its resale in a third state (50) or the sale of amphetamines within the territory of the Union. (51) Lastly, in Vereniging Happy Family Rustenburgerstraat, (52) the Court stated that this reasoning also applies to the unlawful supply of hemp-based drugs, which, ‘although described in some Member States as “soft drugs”, are the subject of a total legal prohibition on importation and marketing in the [European Union]’. (53)
91. This case-law, which is based on the specific characteristics of narcotic drugs and on the objectives pursued by the European Union, would appear to be perfectly applicable to the present case.
92. Like the European customs or tax rules, the principle of freedom to provide services is an instrument which allows the Union to achieve the objectives which it has set itself. In particular, that principle must contribute to the creation of an area of freedom, security and justice based on the promotion of peace, the Union’s values and the well-being of its peoples. (54) To that end, freedom to provide services must make it possible to improve the quality of life of the citizens of the Union, giving them the opportunity to access a choice of better quality, lower-cost goods and services. It must also permit them to live in a society where economic and social progress which is balanced and sustainable is ensured. Furthermore, as is clear from Article 168 TFEU, freedom to provide services must be able to ensure a high level of human health protection and its exercise must, in particular, make it possible to reduce drugs-related health damage for citizens of the Union.
93. Accordingly, the activity of selling cannabis does not have any legitimacy. That activity, prohibited by all the Member States, makes more common the consumption of an increasingly wide range of products even though the laws have been strengthened. Where it is tolerated, that activity tends to ‘democratise’ the use of a narcotic product whose harmfulness to human health is recognised. This affects the vital social and cognitive functions of individuals, such as concentration and attention, exacerbates certain mental health problems, such as anxiety and depression, and therefore gives rise to a steady increase in cannabis-related demand for treatment.
94. In addition, such an activity, which was supposed to be kept within strictly defined limits, causes the public order problems which have been described. Those nuisances linked to drug tourism are threats to the security and well-being of the citizens of the Union and, in accordance with the directives issued by the Netherlands Public Prosecutor’s Office, would justify the outright closure of coffee shops.
95. Those nuisances are fuelled by other phenomena which are also contrary to those directives.
96. Thus, even though advertising is, in principle, prohibited in coffee shops, it has found a new, more dynamic and global medium through the Internet. Whilst this tool makes it possible to improve communications and the exchange of information, it also advertises this kind of establishment, thereby facilitating the sale and consumption of illicit drugs. Some coffee shops have their own website, which includes the ‘menu’ offered by the establishment, but which also offers a home delivery service for cannabis or cannabis seeds. The catalogue is specific, payment is secure and delivery is discreet. It is obvious that such advertising encourages not only cannabis consumption, but also its completely unlawful cultivation, which seems wholly contrary to the commitments made by the Member States under the 1988 United Nations Convention and Joint Action 96/750/JHA. (55)
97. In addition, although the sale of hard drugs in coffee shops is prohibited, coffee shops nevertheless constitute a centre of attraction for dealers and therefore encourage, rather than prevent, the transition from ‘soft drugs’ to ‘hard drugs’. In this regard, the question arises to what extent intensive and prolonged use of strong cannabis cut with such harmful substances as lead, polish or expired medicines is as serious a threat to the health and well-being of individuals as LSD consumption.
98. Lastly, whilst the operator may not, in principle, sell more than 5g of cannabis per person per day (according to the Netherlands Government, this is the quantity normally envisaged for personal use), it would appear that an individual is free to visit the 13 other coffee shops in the Municipality of Maastricht so as to purchase a much larger quantity than normally envisaged for personal use.
99. The supervision of this activity also raises contradictions.
100. Although the sale of cannabis is tolerated within the limits set by the directives issued by the Netherlands Public Prosecutor’s Office, cultivation, transportation, production, importation and exportation of narcotic drugs are activities prohibited by the Law on opium, and subject to criminal sanctions, so that, as the Netherlands Government explained at the hearing, the operator of a coffee shop supplies the product at his own risk, going as far as to agree, in response to the Court’s questions, that the system in question was ‘practically inexplicable ... from a legal point of view’. By failing to regulate any of these ‘operational chains’, this policy therefore facilitates misappropriation to illicit channels and increases the risk that the cannabis sold in coffee shops will be very poor quality and cut.
101. Lastly, under the APV, customers of coffee shops are not required to consume cannabis on the premises. (56) They may take it away. Whilst some purchase a small quantity of cannabis for their own personal use, others purchase larger quantities and, unlike a Netherlands resident, run the risk of criminal prosecution for the unlawful exportation or importation of narcotic drugs.
102. According to the statements made at the hearing, the limits of the policy of tolerance operated by the Kingdom of the Netherlands are illustrated perfectly by the proceedings initiated on 3 November 2009 by the Netherlands authorities against the ‘CheckPoint’ coffee shop, located in Terneuzen, on the Belgian border. With a stock of more than 200kg of cannabis, this coffee shop was visited by more than 3 000 customers each day, mainly from Belgium and France, who were served after taking a numbered ticket. Proceedings were brought against the 17 defendants for membership of an organised criminal group and for drugs trafficking, in particular for exporting cannabis, since they sold cannabis to foreign nationals.
103. This evidence shows, if it were needed, that the activity of selling cannabis does not in any way contribute to the well-being of the citizens of the Union, gives rise to serious public order problems and undermines a legitimate economy by allowing criminal organisations to penetrate the market. Anyone who cultivates, produces, transports, imports, exports, offers or sells narcotic products for whatever purpose is clearly operating so far outside the legal economic sphere of the internal market that, rather than benefiting from the advantages derived from the common market, he can only be subject to criminal prosecution.
104. This activity, even though it is tolerated by one Member State, can therefore absolutely not fall within the scope of freedom to provide services as guaranteed in Article 56 TFEU.
105. If we were to accept the contrary position and support the argument put forward by Mr Josemans, that would amount to saying that the freedoms of movement guaranteed by the Treaty are ultimately intended to cover all commodities which may be evaluated on the market and all services which may be offered on the market, irrespective of their lawfulness and the commitments made by the Member States. Thus, as a result of the exercise of the fundamental freedoms, the trade in a narcotic product would be given legitimacy. Such reasoning must be rejected, since it could apply equally to human trafficking, prostitution of minors or child pornography, and this would constitute an unacceptable breach in the construction of an area of freedom, security and justice based on the rule of law and respect for fundamental rights.
106. Consequently, I consider that the contested measure, which restricts access to coffee shops only to Netherlands residents, does not fall within the scope of freedom to provide services under Article 56 TFEU.
107. In my view, this conclusion cannot be called into question by the fact that coffee shops also sell lawful consumer products, such as food and non-alcoholic beverages.
108. The approach which must be adopted in this regard must be credible and realistic. The question asked by the referring court does not concern so much the sale of ancillary products as the sale of a narcotic product with a view to its personal consumption, in principle. The purpose of coffee shops is not to be a place for consumption like others where people come to have a fizzy drink or to buy a sandwich, but to be a very specific place where they are able to buy and consume cannabis. This specific nature, which cannot be ignored, becomes very clear when two observations are made.
109. The first concerns the nature of the problem arising in the present case. It really stems from a criminal policy based on the understanding of the principle of prosecution according to the law which, under the conditions laid down by the judicial authorities in the Kingdom of the Netherlands, justifies, at national level, the attitude of tolerance which has been adopted. That understanding concerns only the sale of cannabis, since the sale of tea has never caused crime and is not subject to criminal prosecution. The trade in lawful consumer products would therefore appear to be irrelevant and does not, in my view, constitute a real problem.
110. The second observation concerns the actual establishment of a coffee shop. Unlike other establishments in the small-scale catering sector, the opening of a coffee shop is not only subject to the obtaining of an operating licence, but above all must satisfy all the AHOJ-G criteria. Compliance with those criteria alone determines the opening and continued activity of this kind of establishment. Each of those criteria, taken in isolation, shows the specific nature of these establishments and suggests that, in practice, the activity of coffee shops is dedicated exclusively to the sale and consumption of cannabis. The financial results supplied by Mr Josemans bear witness to this fact. Whilst the turnover generated by the Easy Going coffee shop from the sale of cannabis for the first quarter of 2010 was EUR 10 million, that figure for the sale of small-scale catering products is EUR 552 400. (57) As the Netherlands Government confirmed at the hearing, the latter activity general represents between 2.5% and 7.1% of the total turnover of coffee shops in the Municipality of Maastricht (in this instance 5.5% for Easy Going), a relatively negligible proportion. It seems clear that after travelling tens or even hundreds of kilometres to Maastricht, a tourist will enter a coffee shop to purchase hashish or marijuana rather than to drink tea, since the Municipality of Maastricht has more than 500 fast food establishments. (58)
111. Therefore, in view of the very negligible and ancillary proportion of sales of lawful consumer products, I consider that it would be artificial to split up the examination of the conformity of the contested measure having regard to those two kinds of activity. On the pretext that such a measure would be liable to constitute a restriction of the freedom to provide an ancillary service, we would run the risk that the rules of the Treaty could ultimately serve the interests of the drug trade.
112. In the light of the abovementioned factors, I therefore suggest that the Court answer the question to the effect that a measure adopted by a local public authority as part of its general police regulations, which restricts access to coffee shops only to Netherlands residents, does not fall within the scope of freedom to provide services under Article 56 TFEU.
C – The conformity of the contested measure having regard to the obligations incumbent on a Member State relating to the maintenance of national public order and European public order
113. In view of the importance of this case with regard to the functioning of the European Union and in a spirit of cooperation with the referring court, I consider that it is now essential to interpret the provisions of EU law which relate specifically to the protection of public order and the fight to combat unlawful demand for narcotics.
114. The aim of the contested measure is to combat the sensitive phenomenon of drug tourism. This form of tourism has grown following the removal of intra-Community border checks and has increased as a result of the liberal policy practiced by the Kingdom of the Netherlands with regard to the use and sale of cannabis.
115. The phenomenon causes considerable problems in the Netherlands and, in particular, in its border regions, even constituting an ‘unacceptable encroachment on the residence and living situation’ of residents. (59) The contested measure thus seeks to limit traffic and parking problems and to reduce the noise and trouble caused by gatherings of smokers and their intrusion into the foyers of buildings. It is also intended to respond to the nuisances and urban violence likely to be caused by the presence of dealers, drug addicts and organised criminal groups. (60)
116. In this regard, the adoption of the contested measure is necessary under Article 4 TEU and Article 72 TFEU. It should be noted, that under those provisions, the Member States retain responsibility for maintaining public order in their territory and that, according to settled case-law, they retain the freedom to determine the measures capable of maintaining public order in accordance with their national needs. (61) Whilst it is established that the notion of public policy must be given a strict interpretation and may be relied upon only in the event of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society, there is no doubt that drug tourism, in view of the problems it causes, comes under that notion. (62)
117. However, drug tourism also causes serious problems for European Union public order. This misnomer actually conceals international trafficking in narcotic drugs and fuels organised crime activities which, as the Council recognises in the Stockholm Programme, challenges the European Union’s internal security. (63) These repercussions are all the more serious because they have an impact on the effectiveness of more repressive measures adopted by the neighbouring Member States. This phenomenon itself undoubtedly has a European and an international dimension and it is at that level that the Member States have undertaken to combat it.
118. Although, as the case-law shows, there is not a ‘uniform scale of values as regards the assessment of conduct which may be considered to be contrary to public policy’, (64) one of the Union’s objectives is nevertheless to establish an area of freedom, security and justice which, in accordance with Article 3(2) TEU, ensures a high level of security for citizens of the Union. To that end, the Member States have decided to combat drug tourism in all its dimensions and using a combination of approaches.
119. In addition to the conclusion of bilateral and multilateral agreements encouraged by the 1996 resolution (65) and the approximation of the practices of police and customs services referred to in Joint Action 96/750/JHA, (66) the Member States have undertaken to adopt all the necessary measures to prevent the illicit trafficking of narcotic drugs within the framework of the Schengen Implementing Convention.
120. In particular, under Article 71(5) of that Convention, the Member States are required to do their utmost to prevent and combat the illicit demand for narcotic drugs and the negative effects arising from that demand, cannabis being expressly mentioned. Under that provision, ‘each Contracting Party shall be responsible for the measures adopted to this end’. It must be stated that the contested measure is fully consistent with that commitment. (67)
121. In a context where drug tourism is constantly growing and is undermining the foundations of the area of freedom, security and justice, the contested measure is intended to limit the abovementioned consequences. It thus responds to the obligations with which the Member State must comply under Article 4 TEU and Article 72 TFEU and under Article 71(5) of the Schengen Implementing Convention. This and this alone is the legal reason for its required conformity.
122. It is undeniable that drug tourism generates and, in any case, encourages the illegal cross-border trafficking of narcotic drugs and also attracts other criminal activity. Consequently, the fight against these phenomena must represent both a major objective pursued by EU law and a common concern for each of the Member States. The EU legislature understood this and the entry into force of the Treaty of Amsterdam (68) followed by that of the Treaty of Lisbon finally gave another dimension to the fight against the illicit trafficking of narcotic drugs and organised crime. Recognising that these are areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis, the EU legislature recognises the need to ensure a minimum harmonisation of national laws concerning the definition of criminal offences and sanctions. (69) These provisions have added the illicit trafficking of narcotic drugs to what are now known as ‘Eurocrimes’ and under the Stockholm Programme such ‘Eurocrimes’, since they challenge the internal security of the European Union, are ‘an urgent challenge which requires a clear and comprehensive response’. (70) For that reason, in my view, the contested measure would be valid even in the absence of internal public order problems, solely on the basis of the obligation to contribute to the maintenance of European public order.
123. In the present case, since this measure represents the expression for the State not only of the right conferred on it to maintain its internal public order, but also its obligation vis-à-vis other Member States to contribute to the maintenance of European public order in accordance with the commitments made, it must therefore be valid under the abovementioned provisions.
124. In the light of the abovementioned factors, I therefore suggest that the Court inform the referring court that Article 4 TEU, Article 72 TFEU and Article 71(5) of the Schengen Implementing Convention do not preclude a measure adopted by a local public authority as part of its general police regulations which restricts access to coffee shops only to Netherlands residents where that measure represents the expression of the right conferred on it to preserve internal public order from the problems caused by drug tourism and/or the fulfilment of its duty to contribute to the maintenance of European public order.
VI – Conclusion
125. In the light of the foregoing, I suggest that the Court give the following answers to the questions referred by the Raad van State:
(1) A measure adopted by a local public authority as part of its general police regulations which restricts access to coffee shops only to Netherlands residents does not fall within the scope of freedom to provide services under Article 56 TFEU.
(2) Article 4 TEU, Article 72 TFEU and Article 71(5) of the Schengen Implementing Convention do not preclude a measure adopted by a local public authority as part of its general police regulations which restricts access to coffee shops only to Netherlands residents where that measure represents the expression of the right conferred on it to preserve internal public order from the problems caused by drug tourism and/or the fulfilment of its duty to contribute to the maintenance of European public order.