Opinion of the Advocate General — ECLI:EU:C:2010:433
Date: 2010-07-15
Language of the case: Dutch
Subject matter: Free movement of goods;Principles, objectives and tasks of the Treaties;Freedom to provide services;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Community law – Principles – Equal treatment – Discrimination on grounds of nationality – Citizenship of the European Union – Right to move and reside freely in the territory of the Member States – Free movement of goods – Freedom to provide services – Provisions of the Treaty – Scope – Narcotic drugs distributed through illegal channels and falling within the scope of a prohibition of importing and offering for sale in all the Member States – Marketing tolerated in terms of criminal sanctions, in coffee-shops, of narcotic drugs categorised as ‘soft’ drugs – Not included (Arts 12 EC, 18 EC, 29 EC and 49 EC) 2. Freedom to provide services – Restrictions – Municipal rules precluding non-residents from being provided with certain services (Art. 49 EC) 1. In the course of marketing, which is tolerated in terms of criminal sanctions, in coffee-shops, narcotic drugs not distributed through channels strictly controlled by the competent authorities with a view to use for medical or scientific purposes, a proprietor of such a coffee-shop may not rely on Articles 12 EC, 18 EC, 29 EC or 49 EC to object to municipal rules which prohibit the admission of persons who are non-resident to such establishments. Narcotic drugs that are not distributed through channels strictly controlled by the competent authorities to be used for medical and scientific purposes are, because of their very nature, subject to a prohibition on their being imported and offered for sale in all the Member States. The fact that some Member States describe a narcotic drug as a ‘soft’ drug is not capable of calling that finding into question. Likewise, that prohibition of their being imported and offered for sale is not affected by the mere fact that, in view in particular of their limited manpower and means, the national authorities responsible for implementing that prohibition give lower priority to bringing proceedings against a certain type of trade in drugs, because they consider other types to be more dangerous. Above all, such an approach cannot put illegal drugs dealing on the same footing as economic channels strictly controlled by the competent authorities in the medical and scientific field. The latter trade is actually legalised whereas illegal dealings, albeit tolerated, remain prohibited. As regards the marketing of non-alcoholic beverages and food in those establishments, Article 49 EC et seq. may be relied on by the proprietor. The marketing of non-alcoholic beverages and food in coffee-shops constitutes a catering activity characterised by an array of features and acts in which services predominate as opposed to the supply of the product itself. (see paras 41, 43, 49, 54, operative part 1) 2. Article 49 EC must be interpreted as meaning that municipal rules which prohibit the admission of persons who are non-resident to coffee-shops constitute a restriction of the freedom to provide services laid down by the EC Treaty, in so far as that prohibition affects the provision of catering services in coffee-shops marketing certain narcotic drugs categorised as ‘soft’ drugs. That restriction is, however, justified by the objective of combating drug tourism and the accompanying public nuisance. Combating drug tourism and the accompanying public nuisance is part of combating drugs. It concerns both the maintenance of public order and the protection of the health of citizens, at the level of the Member States and also of the Union. Given the commitments entered into by the Union and its Member Sates, those objectives constitute a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Union law, even under a fundamental freedom such as the freedom to provide services. As regards the proportionate nature of such a restriction, it is indisputable that to prohibit the admission non-residents to coffee-shops constitutes a measure capable of substantially limiting drug tourism and, consequently, of reducing the problems it causes. In that connection, it cannot be held to be inconsistent for a Member State to adopt appropriate measures to deal with a large influx of residents from other Member States who wish to benefit from the marketing – tolerated in that Member State – of products which are, by their very nature, prohibited in all Member States from being offered for sale. As regards the possibility of adopting measures less restrictive of the freedom to provide services and, more specifically, the possibility of granting non-residents access to coffee-shops whilst refusing to sell cannabis to them, it is not easy to check and monitor with accuracy that that product is not served to or consumed by non-residents. Furthermore, there is a danger that such an approach would encourage the illegal trade in or the resale of cannabis by residents to non-residents inside coffee-shops. Member States may not be denied the opportunity of pursuing the objective of combating drug tourism and the accompanying public nuisance by introducing general rules that are easily managed and supervised by the national authorities. Nothing giving grounds for assuming that the objective pursued could be achieved to the extent envisaged by the municipal rules concerned by granting non-residents access to coffee-shops whilst refusing to sell them cannabis, such rules are suitable for attaining the objective of combating drug tourism and the accompanying public nuisance and do not go beyond what is necessary in order to attain it. (see paras 65-66, 69, 75, 78, 80-84, operative part 2)