Araceli Turmo , 23 décembre 2010

The Court’s ruling in the Josemans Case seems to put into question the traditional approach towards justifications for restrictive measures based on public policy, which had been set out in cases such as Adoui and Cornuaille. In the main proceedings, the owner of a coffee-shop in Maastricht tried to argue that the local policy, which prevented non-residents from being admitted to such establishments, was contrary to the free movement of goods, the freedom to provide services, and the general principle of non-discrimination, read in conjunction with Article 18 of the EC Treaty. The Dutch Raad van State referred questions to the Court of Justice in order to determine whether the local regulation fell within the scope of these provisions.

After distinguishing cannabis from the other products sold in coffee-shops, the Court went on to state that the prohibition of narcotic drugs which are not distributed for medical purposes, through strictly controlled channels, prevents them from benefiting from the freedoms provided for in the Treaty. Interestingly, the Court and the Advocate General cited numerous international conventions, and provisions of European Union law, which recognized the harmfulness of narcotic drugs such as cannabis. This allowed it to make a distinction between the prohibition of cannabis, which exists in all Member States, and the fact that coffee-shops are a form of illegal drug dealing, which is only tolerated.

The Court went on to consider that the other sales of products in coffee-shops fell within the scope of the freedom to provide services, and that the free movement of goods was secondary. Reference to Articles 12 and 18 of the EC Treaty was unnecessary, since they find a specific expression in Article 49 of the EC Treaty. The fact that only residents could access coffee-shops in Maastricht did constitute a covert form of discrimination, as is clear from previous case-law regarding similar residence criteria. However, the Court held that the will to prevent “drug tourism”, and the public nuisance caused by it, are legitimate justifications for such a restriction, and constitute a legitimate interest concerning both the maintenance of public order and the protection of public health. This conclusion was corroborated by the recognition of the need to fight against drugs in a number of international conventions and provisions of European Union law.

The Court then completed the “proportionality test”, and held that the local policy was suitable and proportionate to this aim. It examined other possible measures, such as admitting non-residents but refusing to sell them cannabis, and concluded that they would be insufficient. Answering the Commission, which referred to the judgment in Joined Cases Adoui and Cornuaille, the Court distinguished it from the situation at stake in the present case. Indeed, unlike drug dealing, prostitution is tolerated or regulated in most Member States. The decisive factor in the Court’s decision therefore seems to have been the specificity of the Dutch situation, because of the large numbers of “drug tourists” seeking to benefit from the marketing of products which are prohibited in other Member States.

Reproduction autorisée avec l’indication: Turmo Araceli, "The Fight against “drug tourism” justifies a residency criterion for access to coffee-shops", www.ceje.ch, actualité du 23 décembre 2010.