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Published: March 3rd 2010
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This is the only fitting photo..
Cannabis products are considered "soft drugs" under Dutch law. As dorky as this may be, I thought our criminal law moot court was fascinating this morning, so I'm going to share some nerdy law school stuff. To help hold your attention, I'll bring out now that it revolves around the selling of soft drugs in the Netherlands & Dutch drug culture in general...
The Netherlands is quite famous (or infamous) for its drug policy. While under the 1976 Opium Act, the selling of soft drugs is actually illegal, the practice of the Dutch prosecutors is to not prosecute individuals who buy or sell cannabis in small amounts for personal consumption. This is actually a de facto decriminalization based on prosecutorial discretion. (Sorry for the legal jargon for those of you who aren't law students, but it's the only way I know how to describe it). The Dutch law distinguishes between "hard" & "soft" drugs, so it takes a hard-line stance against the possession & use of hard drugs while its policy is very lenient on the possession & use of soft drugs.
Holland is known for its "coffeeshops" which are recognized institutions where one can buy soft drugs legally so long as certain criteria are met, including: (1) no more than five grams per person may be sold in any one transaction, (2) no hard drugs may be sold, (3) drugs may not be advertised, (4) the coffeeshop must not cause any nuisance, (5) coffeeshops are not allowed to sell alcoholic beverages, & (6) no drugs may be sold to minors (under the age of 18), nor may minors be admitted to the premises.
Currently, there is a case pending before the European Court of Justice (ECJ) between the owner of one of the coffeeshops in Maastricht & the mayor of Maastricht. The mayor instituted a policy in Maastricht whereby non-residents of Maastricht may NOT enter the premises of coffeeshops to purchase & consume soft drugs. The legal issue here is that under the European Union Treaties, all citizens of the EU are granted similar rights regardless of what country they are resident & what country they are visiting. The debate is whether the mayor's policy is "discrimination" based on the EU Treaties because it treats citizens from say Belgium or Germany differently than it treats citizens from the Netherlands. (There are a lot of legal arguments here about what constitutes "goods" & "services" under the Treaties & whether the coffeeshops fall under these categories, but trust me, I'll spare you the details).
In any case, our criminal law class put on a moot court this morning to discuss the legal issues of the ordinance. In attendance was the owner of the Good Going coffeeshop, Mr. Marc Josemans. After all the groups presented their arguments, Mr. Josemans gave a speech. He opened with, "Hello. My name is Marc Josemans, & I'm a professional drug dealer, & I'm proud of it." haha. For a "professional drug dealer", he was SUPER intelligent & really did enlighten us as to the legal issues of this case & what the ramifications will be for Dutch law in general & EU law in particular. He was blunt & straightforward with the fact that while Easy Going offers "legal" products for sale (e.g. Coke, coffee, tea, sandwiches, t-shirts, etc), he realizes that people come to his establishment specifically to buy & consume weed or hash. (He even threw in a plug for those not interested in smoking should still come to his coffeeshop because he actually DOES have excellent coffee & sandwiches which I thought was HYSTERICAL). He also pointed out that one of the mayor's arguments is the fact that these coffeeshops can create a "public nuisance"; however, (& I didn't realize this until he brought it up) in reality coffeeshops are less of a nuisance than the local pubs, bars, & clubs because the Organization of Coffeeshop Owners have all agreed to install surveillance cameras outside of their establishments for security, & they all have required identification checkpoints before anyone can enter the premises. They do this all at their own expense, so he didn't see how they were any more of a "nuisance" than bars. It's a valid argument. He also brought up the point that there needs be a differentiation between "drug tourism" & people coming to Maastricht simply to visit a coffeeshop. In his opinion, drug tourism involves hard drugs which cannot be regulated & which are, under Dutch law, completely illegal; whereas, coming to Maastricht to partake in the activities of a coffeeshop are much less serious in nature; plus it's a regulated environment which is of the utmost safety. Interesting. He also brought up the fact that without the coffeeshops in Maastricht, there would be less job opportunities & less economic activity in the city because the clients that come to the coffeeshop also come to shop & eat in Maastricht, thus boosting the local revenue.
Mr. Josemans arguments were totally valid. It will be interesting to see how the ECJ will rule with regard to the discrimination issue. Mr. Josemans said in the worst case scenario, if the Court rules against him, he'll lose about 30% of his revenue. The interesting part is the fact that Mr. Josemans agreed to this lawsuit as a "test case" on behalf of all of the coffeeshops of Maastricht... it would be unfortunate for him to lose because he did this voluntarily, & it will ultimately hit him in the pockets. After all, he's a businessman by profession - whether that's classified as a "drug dealer" or not, he's still responsible for a major aspect of the economic activity of the Limburg region.
All in all, I thought it was a fascinating case based on the differences in drug culture between the US & the Netherlands. I can't even imagine the US Supreme Court EVER hearing a case based on whether or not there is discrimination in an establishment that specializes in the selling of marijuana... haha
That was my lesson on European criminal law for the day. Class dismissed. 😊
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Mario
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Court hearing
The Court of Justice of the EU will hear the case on 29 April at 9.30 am. Good luck! :o)