CELEX: 62009CC0137
Language: en
Date: 2010-07-15
Title: Opinion of Mr Advocate General Bot delivered on 15 July 2010. # Marc Michel Josemans v Burgemeester van Maastricht. # Reference for a preliminary ruling: Raad van State - Netherlands. # Freedom to provide services - Free movement of goods - Principle of non-discrimination - Measure adopted by a local public authority which restricts access to coffee-shops to Netherlands residents - Marketing of ‘soft’ drugs - Marketing of non-alcoholic beverages and of food - Objective of combating drug tourism and the accompanying public nuisance - Public order - Protection of public health - Coherence - Proportionality. # Case C-137/09.

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.
      
      1 –	Original language: French.
      
      2 –	In January 2009, the UK Government decided to step up the preventative measures which had applied previously to the supply
         and trafficking of cannabis as a result of the appearance on the market of ‘skunk’, which is cannabis with a THC concentration
         four to five times higher than conventional preparations, on account of the horticultural techniques employed (see UK Home
         Office Circular 001/2009 entitled ‘Controlled drugs: reclassification of cannabis’, available at: http://www.homeoffice.gov.uk/about-us/home-office-circulars/circulars-2009/?showall=true).
      
      3 –	See Pijlman, F.T.A., Rigter, S.M., Hoek, J., Goldschmidt, H.M.J., and Niesink, R.J.M., ‘Strong increase in total delta-THC
         in cannabis preparations sold in Dutch coffee shops’, Addiction Biology, June 2005, Vol. 10, p. 171. See also the report of Commission of Inquiry No 321 on national policy to combat illicit drugs,
         created under a resolution adopted by the French Senate on 12 December 2002, available on the website of the French senate;
         ‘An overview of cannabis potency in Europe’, European Monitoring Centre for Drugs and Drug Addiction, Lisbon, 2004; and ‘2006 World Drug Report’, United Nations Office on Drugs and Crime, Vol. 1: Analysis, p. 27.
      
      4 –	See the Annual Report published jointly by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) and Europol,
         published on 23 April 2010, available on the EMCDDA website.
      
      5 –	‘Letter outlining drugs policy’, which endorses the report of the Advisory Committee on Drugs Policy entitled ‘New emphasis
         in Dutch drugs policy’, available on the website of the Netherlands Ministry of Health, Welfare and Sport: http://english.minvws.nl/en/kamerstukken/vgp/2009/letter-outlining-drugs-policy.asp.
         See, in particular, section 3 of that letter.
      
      6 –	See, in particular, Part 1, II, A., point 2, of the report of Commission of Inquiry No 321 mentioned in footnote 3 entitled
         ‘Les effets du cannabis: la fin du mythe des drogues “douces”’; Yücel, M., Solowij, N., et al., ‘Regional brain abnormalities
         associated with long-term heavy cannabis use’, Arch Gen Psychiatry, June 2008, Vol. 65, No 6, p. 694; van Ours, J. C., and Williams, J., ‘Cannabis use and mental health problems’, Center Discussion Paper No 2009-60, July 2009; Solowij, N., Stephens, R.S., Roffman, R.A., et al., ‘Cognitive functioning of long-term heavy cannabis
         users seeking treatment’, JAMA, March 2002, Vol. 287, No 9, p. 1123, and Karila, L., Cazas, O., Danel, T., and Reynaud, M., ‘Conséquences à court et long
         terme d’une exposition prénatale au cannabis’, Journal de gynécologie obstétrique et biologie de la reproduction, January 2006, Vol. 35, No 1, p. 62. See also the express statement by Council of the European Union in its draft resolution
         on cannabis of 7 July 2004 with a view to the definition of the new EU drugs strategy, available on the website of the Public
         Register of Council documents: http://register.consilium.europa.eu.
      
      7 –	See ‘Cannabis: quels effets sur le comportement et la santé?’, Institut National de la Santé et de la Recherche Médicale (INSERM), Paris, 2001, p. 429. See also the updates to that expert opinion on the INSERM website: http://www.inserm.fr.
      
      8 –	OJ 2010 C 83, p. 389.
      
      9 –	Convention of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of
         Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19), signed
         at Schengen on 19 June 1990 (‘the Schengen Implementing Convention’).
      
      10 –	Council Resolution of 29 November 1996 on measures to address the drug tourism problem within the European Union (OJ 1996
         C 375, p. 3).
      
      11 –	Joint Action 96/750/JHA adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning the
         approximation of the laws and practices of the Member States of the European Union to combat drug addiction and to prevent
         and combat illegal drug trafficking (OJ 1996 L 342, p. 6).
      
      12 –	Article 3 of that Action.
      
      13 –	Article 9 of that Action.
      
      14 –	Council Framework Decision laying down minimum provisions on the constituent elements of criminal acts and penalties in
         the field of illicit drug trafficking (OJ 2004 L 335, p. 8).
      
      15 –	Under Article 2(2) of Framework Decision 2004/757/JHA, such conduct is excluded from the scope of that Framework Decision
         when it is committed by its perpetrators exclusively for their own personal consumption as defined by national law.
      
      16 –	The Stockholm Programme – An open and secure Europe serving and protecting citizens (OJ 2010 C 115, p. 1).
      
      17 –	See section 4.1 of that Programme.
      
      18 –	EU Drugs Action Plan for 2009-2012 of 20 December 2008 (OJ 2008 C 326, p. 7).
      
      19 –	In this regard the Commission undertook to issue a communication on the coherence between internal and external drug policy
         in 2010.
      
      20 –	Case C‑184/99 Grzelczyk [2001] ECR I‑6193 and Case C‑103/08 Gottwald [2009] ECR I-9117, paragraph 24 and cited case-law.
      
      21 –	Case C‑73/08 Bressol and Others and Chaverot and Others [2010] ECR I-0000, paragraph 31 and cited case-law.
      
      22 –	See also Case C‑222/07 UTECA [2009] ECR I-1407, paragraphs 37 and 38 and cited case-law, and Case C‑91/08 Wall [2010] ECR I-0000, paragraph 32 and cited case-law.
      
      23 –	Under Article 57 TFEU, ‘services shall be considered to be “services” within the meaning of the Treaties where 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’. These services include commercial services.
      
      24 –	See, inter alia, Case C‑203/08 Sporting Exchange [2010] ECR I-0000, paragraph 23 and cited case-law; Case C‑258/08 Ladbrokes Betting & Gaming and Ladbrokes International [2010] ECR I-0000, paragraph 15 and cited case-law; Case C‑348/96 Calfa [1999] ECR I‑11, paragraph 16 and cited case-law; and Case C‑224/97 Ciola [1999] ECR I‑2517, paragraph 11 and cited case-law. It should also be noted that, according to consistent case-law, the freedom
         to provide services is a specific application of the right for any citizen of the Union to move and reside within the territory
         of the Member States (see Case C‑56/09 Zanotti [2010] ECR I-0000, paragraph 24 and cited case-law).
      
      25 –	United Nations Treaty Series, 1990, Vol. 1582, No 1‑27627, ‘the 1988 United Nations Convention’.
      
      26 –	Convention as amended by the 1972 Protocol (United Nations Treaty Series, Vol. 520, No 7515). Cannabis is among the substances considered particularly liable to abuse and to produce ill effects.
      
      27 –	United Nations Treaty Series, Vol. 1019, No 14956.
      
      28 –	With regard to the European Union, see Council Decision 90/611/EEC of 22 October 1990 concerning the conclusion, on behalf
         of the European Economic Community, of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
         Substances (OJ 1990 L 326, p. 56).
      
      29 –	See Government report of the Baan Commission (werkgroep Verdovende Middelen, Achtergronden en risico’s van druggeebruik (Baan report), The Hague, Staatssecretaris van Sociale Zaken en Volksgezondheid en van de Minister van Justicie, 1972).
      
      30 –	This report was published by the Netherlands Government (Ministry of Foreign Affairs et al., 1995).
      
      31 –	Idem.
      
      32 –	See, inter alia, directives of the Netherlands Public Prosecutor’s Office concerning the policy on investigations and criminal
         prosecutions of infringements under the Law on opium (Nederlandse Staatscourant 1980, No 137); of 21 October 1994, (Nederlandse Staatscourant 1994, No 203), and of 10 September 1996 (Nederlandse Staatscourant 1996, No 187).
      
      33 –	See also Article 174a of the Law on municipalities (Gemeentewet), the Law on urban areas (special measures) and Article
         16 of the Law on housing (Woningwet).
      
      34 –	See the letter on cannabis (cannabisbrief) which the three ministers responsible for drugs policy sent to the Netherlands
         Parliament on 23 April 2004 and which the Parliament approved on 30 June 2004, and the letter of 11 September 2009 mentioned
         in footnote 5.
      
      35 –	As the Burgemeester van Maastricht added at the hearing, 82% of the inhabitants of the Municipality of Maastricht suffer
         considerable nuisance as a result of the influx of drug tourists.
      
      36 –	Observations submitted by the Burgemeester van Maastricht at the hearing.
      
      37 –	This is clear from the letters from the competent ministers dated 23 April 2004 and 11 September 2009, mentioned in footnote
         34, and from the discussions at the hearing.
      
      38 –	This is evident from the oral observations made at the hearing by the Burgemeester van Maastricht and by the Netherlands
         Government.
      
      39 –	Case C‑491/03 Hermann [2005] ECR I‑2025, paragraphs 21 and 27.
      
      40 –	See cited case-law in footnote 22.
      
      41 –	Case C‑420/06 Jager [2008] ECR I‑1315, paragraphs 46 and 47; Case C‑350/07 Kattner Stahlbau [2009] ECR I‑1513, paragraphs 24 to 26; and Case C‑115/08 ČEZ [2009] ECR I‑10265, paragraph 81 and cited case-law.
      
      42 –	See the argument put forward by Havy, V., ‘La politique de l’Union européenne en matière de stupéfiants’, Collection droit de l’Union européenne, Bruylant, Brussels, 2008, p. 406.
      
      43 –	See, inter alia, Case C‑324/93 Evans Medical and Macfarlan Smith [1995] ECR I‑563.
      
      44 –	Case 50/80 Horvath [1981] ECR 385. That case was concerned with determining the customs duty chargeable on a quantity of heroin purchased on
         the black market in Amsterdam and discovered when it was being taken across the Netherlands-German frontier.
      
      45 –	Case 221/81 Wolf [1982] ECR 3681 concerning the determination of the custom duties applicable to quantities of heroin and cocaine which were
         purchased by the plaintiff in the main proceedings on the black market in Germany and the Netherlands and re-sold by him in
         contravention of German drugs law.
      
      46 –	Case 240/81 Einberger [1982] ECR 3699 concerning the determination of the customs duties applicable to quantities of morphine which, having been
         illegally imported into Germany, were sold in Switzerland in contravention of German drugs law by the plaintiff in the main
         proceedings.
      
      47 –	Case 50/80 Horvath (paragraph 16) and Case 240/81 Einberger (paragraph 16).
      
      48 –	Case 50/80 Horvath (paragraph 13) and Case 240/81 Einberger (paragraph 13).
      
      49 –	That is also the case with counterfeit currency. See Case C‑343/89 Witzemann [1990] ECR I‑4477.
      
      50 –	Case 294/82 Einberger [1984] ECR 1177.
      
      51 –	Case 269/86 Mol [1988] ECR 3627.
      
      52 –	Case 289/86 Vereniging Happy Family Rustenburgerstraat [1988] ECR 3655.
      
      53 –	Paragraph 25.
      
      54 –	Article 3 TEU.
      
      55 –	Under Article 3(1)(c)(iii) of the 1988 United Nations Convention and Article 9 of Joint Action 96/750/JHA, the Member States
         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 to be especially vigilant as regards the use made of the Internet.
      
      56 –	See Article 2.3.1.1(1)(a)(3) of the APV.
      
      57 –	At the hearing, Mr Josemans also stated that the average annual turnover of a tea room in Maastricht was in the order of
         EUR 200 000 in 2007.
      
      58 –	In my view, the Municipality of Maastricht imposed a prohibition of access to the establishment on this basis. It would
         not be logical or indeed effective to allow access to thousands of people to whom, once inside the establishment, a sale was
         refused. It would even be dangerous.
      
      59 –	See point 5 of the 2004 letter from the three ministers responsible for drugs policy, mentioned in footnote 34.
      
      60 –	Reference to that same letter.
      
      61 –	According to settled case-law, Union law does not impose on Member States a ‘uniform scale of values’ as regards the assessment
         of conduct which may be considered to be contrary to public policy (see Case C‑268/99 Jany and Others [2001] ECR I‑8615, paragraph 60 and cited case-law). In the view of the Court, the Member States retain exclusive competence
         to evaluate the risks of public order offences in their own territory. Those circumstances vary not only from one State to
         another and from one era to another, but also depending on the social context of the State and the importance it attaches
         to a legitimate objective in the light of Union law (see Case 41/74 Van Duyn [1974] ECR 1337, paragraph 18; Case C‑265/95 Commission v France [1997] ECR I‑6959, paragraph 33; Case C‑394/97 Heinonen [1999] ECR I‑3599, paragraph 43; and Case C‑54/99 Église de scientologie [2000] ECR I‑1335, paragraph 17 and cited case-law.
      
      62 –	See Case C‑348/96 Calfa, and Joined Cases C-482/01 and C‑493/01 Orfanopoulos and Oliveri [2004] ECR I‑5257, in which the Court recognised that the fight against drugs trafficking comes under the maintenance of
         public order. See also Case C‑394/97 Heinonen, in which the Court considered that the campaign against various forms of criminality linked to the consumption of alcohol
         seeks to safeguard internal security. In that case, the Finnish Government had justified its measure restricting alcohol by
         the fact that the consumption of such a product, which had increased considerably, had resulted, among other things, in drunken
         driving becoming common, violence increasing in both frequency and seriousness, and illegal markets appearing and multiplying.
      
      63 –	See point 4.1 of the Stockholm Programme referred to in footnote 16.
      
      64 –	Case C‑268/99 Jany and Others, paragraph 60 and cited case-law.
      
      65 –	See footnote 10. In that resolution, the Council invited the Member States to conclude bilateral or multilateral agreements
         with a view to developing the exchange of information and practices and to improving cooperation in combating drug tourism.
         Whether bilaterally or multilaterally, the Kingdom of the Netherlands and the neighbouring Member States must therefore work
         on effective strategies to address common public order and security problems and organise their cooperation. Thus, in their
         bilateral police cooperation agreement, signed at The Hague on 20 April 1998, the Kingdom of the Netherlands and the French
         Republic decided to coordinate their actions to combat drug tourism and the structures behind it [Accord sur la coopération
         dans le domaine de la police et de la sécurité entre le gouvernement de la République française et le gouvernement des Pays-Bas
         (Decree No 99-350 of 29 April 1999 on the publication of that agreement, JORF of 6 May 1999, p. 6797) and akkord bettreffende samenwerking op het gebied van politie en veiligheid de regering van de France
         Republiek en de regering van Nederland (Nederlandse Staatscourant 1998, No 81)].
      
      66 –	See footnote 11. Under Articles 1 to 3 of that Joint Action, the Member States undertook to approximate their laws and
         the practices of their police, customs services and judicial authorities in order to combat illicit movements of narcotic
         drugs, in particular drug tourism.
      
      67 –	Article 75 of that Convention.
      
      68 –	See, in particular, Article 31 TEU and Framework Decision 2004/757/JHA.
      
      69 –	Article 83(1) TFEU.
      
      70 –	See footnote 63.