Marc Michel Josemans v Burgemeester van Maastricht.
Date: 2010-12-16
36. In that connection it is important to bear in mind that, since the harmfulness of narcotic drugs, including those derived from hemp, such as cannabis, is generally recognised, there is a prohibition in all the Member States on marketing them, with the exception of strictly controlled trade for use for medical and scientific purposes (see, to that effect, Case 50/80 Horvath  [1981] ECR 385, paragraph 10; Case 221/81 Wolf  [1982] ECR 3681, paragraph 8; Case 240/81 Einberger  [1982] ECR 3699, paragraph 8; Case 294/82 Einberger  [1984] ECR 1177, paragraph 15; Case 269/86 Mol  [1988] ECR 3627, paragraph 15; and Vereniging Happy Family Rustenburgerstraat , paragraph 17).
37. That legal position complies with various international instruments which the Member States have cooperated on or acceded to, such as the United Nations Single Convention on Narcotic Drugs, concluded at New York on 30 March 1961, amended by the 1972 Protocol amending the Single Convention of 1961 ( United Nations Treaty Series , Vol. 520, No 7515) (‘the Single Convention’) and the United Nations Convention on Psychotropic Substances, concluded at Vienna on 21 February 1971 ( United Nations Treaty Series , Vol. 1019, No 14956). The measures provided for by those conventions were subsequently strengthened and supplemented by the Convention concluded at Vienna on 20 December 1988, to which all the Member States of the European Union are parties. Cannabis is among the substances and products referred to in those conventions.
38. In the preamble to the Single Convention the parties declare themselves conscious of their duty to prevent and combat addiction to narcotic drugs, whilst recognising that the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes. Under Article 4 of that convention, the parties are to take all the measures necessary to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs (see Wolf , paragraph 9, and Case 240/81 Einberger , paragraph 9).
39. As regards more specifically European Union law, Framework Decision 2004/757 provides, in Article 2(1)(a), that each Member State is to take the necessary measures to ensure that, inter alia, the following intentional conduct when committed without right is punishable: offering, offering for sale, distribution, sale, delivery on any terms whatsoever and brokerage of drugs. Under Article 2(2) the conduct described in paragraph 1 is not to be included in the scope of that Framework Decision when it is committed by its perpetrators exclusively for their own personal consumption as defined by national law. It is stated in Article 1(1) of that act that the term ‘drugs’ includes any of the substances covered by the Single Convention and by the United Nations Convention on Pyschotropic Substances, concluded at Vienna on 21 February 1971.
40. Furthermore, pursuant to Article 71(1) of the Convention implementing the Schengen Agreement, of 14 June 1985, the States who are parties to that convention undertook, as regards both 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.
41. It follows that narcotic drugs which are not distributed through channels which are 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 importation and offering for sale in all the Member States (see, to that effect, Wolf , paragraph 10; Case 240/81 Einberger , paragraph 10; Case 294/82 Einberger , paragraph 15; Mol , paragraphs 15 and 18; Vereniging Happy Family Rustenburgerstraat , paragraphs 17 and 20; and Coffeeshop ‘Siberië’ , paragraph 14). The fact that some Member States describe a narcotic drug as a ‘soft’ drug is not capable of calling that finding into question (see, to that effect, Vereniging Happy Family Rustenburgerstraat , paragraph 25).
42. As narcotic drugs which are not distributed through such strictly controlled channels are prohibited from being released into the economic and commercial channels of the European Union, a coffee-shop proprietor cannot rely on the freedoms of movement or the principle of non-discrimination, in so far as concerns the marketing of cannabis, to object to municipal rules such as those at issue in the main proceedings.
43. That finding cannot be impugned by the fact that, as is apparent from paragraphs 12 to 14 of the present judgment, the Kingdom of the Netherlands applies a policy of tolerance to the sale of cannabis, even though trade in narcotic drugs is prohibited in that Member State. It is apparent from the case-law of the Court that such a prohibition 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 which are 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 (see, to that effect, Vereniging Happy Family Rustenburgerstraat , paragraph 29).
49. In such circumstances, as the Advocate General pointed out at point 76 of his Opinion, the marketing of non-alcoholic beverages and food in coffee-shops appears to constitute 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, by analogy, Case C-491/03 Hermann  [2005] ECR I-2025, paragraph 27).
50. Since the free movement of goods aspect is entirely secondary to that of the freedom to provide services and may be considered together with it, the Court will examine the rules at issue in the main proceedings only in the light of the latter fundamental freedom (see, to that effect, Case C-275/92 Schindler [1994] ECR I‑1039, paragraph 22; Case C-71/02 Karner  [2004] ECR I-3025, paragraph 46; Case C-36/02 Omega [2004] ECR I-9609, paragraph 26; Case C‑452/04 Fidium Finanz  [2006] ECR I-9521, paragraph 34; and Case C‑233/09 Dijkman and Dijkman-Laveleije  [2010] ECR I-0000, paragraph 33).
51. As regards the applicability of Article 12 EC, which lays down a general prohibition of all discrimination on grounds of nationality, it should be noted that that provision applies independently only to situations governed by European Union law for which the EC Treaty lays down no specific rules of non-discrimination (see, inter alia, Case 305/87 Commission  v Greece  [1989] ECR 1461, paragraphs 12 and 13; Case C-443/06 Hollmann  [2007] ECR I-8491, paragraph 28; and Case C‑269/07 Commission  v Germany  [2009] ECR I-7811, paragraph 98).
53. As regards the applicability of Article 18 EC, that provision, which lays down generally the right for every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in the provisions guaranteeing the freedom to provide services (see, inter alia, Case C-92/01 Stylianakis  [2003] ECR I-1291, paragraph 18; Case C-76/05 Schwarz and Gootjes-Schwarz  [2007] ECR I-6849, paragraph 34; and Case C-56/09 Zanotti  [2010] ECR I-0000, paragraph 24). As citizens of the European Union who do not reside in the Netherlands and wish to go into coffee-shops in the municipality of Maastricht to consume lawful goods there are to be regarded as ‘persons for whom’ services ‘are intended’ within the meaning of Article 49 EC, it is not necessary for the Court to rule on the interpretation of Article 18 EC.
58. It is clear from the Court’s case-law that the principle of equal treatment, of which Article 49 EC embodies a specific instance, prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, inter alia, Case C-3/88 Commission  v Italy  [1989] ECR 4035, paragraph 8; Case C-388/01 Commission  v Italy  [2003] ECR I-721, paragraph 13; Case C‑28/04 Tod’s and Tod’s France  [2005] ECR I-5781, paragraph 19; and Case C-147/03 Commission  v Austria  [2005] ECR I-5969, paragraph 41).
59. That is true, in particular, of a measure under which a distinction is drawn on the basis of residence, in that that requirement is liable to operate mainly to the detriment of nationals of other Member States, since non-residents are in the majority of cases foreigners (see, inter alia, Case C-224/97 Ciola  [1999] ECR I‑2517, paragraph 14; Case C‑388/01 Commission  v Italy , paragraph 14; Case C‑103/08 Gottwald [2009] ECR I-9117, paragraph 28; and Case C-73/08 Bressol and Others  [2010] ECR I-0000, paragraph 45).
62. While acknowledging the importance of the fight against drug tourism, the Commission submits that, as they are discriminatory, those rules can be compatible with European Union law only if they are covered by an express derogating provision, namely Article 46 EC in conjunction with Article 55 EC. The derogations provided for by those provisions should be interpreted restrictively. As regards more specifically grounds of public policy, they may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society (see, inter alia, Case 30/77 Bouchereau  [1977] ECR 1999, paragraph 35).
69. However, measures which restrict the freedom to provide services may be justified by the objective of combating drug tourism and the accompanying public nuisance only if they are suitable for securing the attainment of that objective and do not go beyond what is necessary in order to attain it (see, to that effect, Omega , paragraph 36; Case C‑438/05 International Transport Workers’ Federation and Finnish Seamen’s Union  [2007] ECR I-10779, paragraph 75; and Case C‑244/06 Dynamic Medien  [2008] ECR I-505, paragraph 42).
70. In that connection it is important to bear in mind that a restrictive measure can be considered to be suitable for securing the attainment of the objective pursued only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner (see, to that effect, Case C‑169/07 Hartlauer  [2009] ECR I‑1721, paragraph 55; Joined Cases C‑171/07 and C-172/07 Apothekerkammer des Saarlandes and Others  [2009] ECR I-4171, paragraph 42; and Case C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International  [2009] ECR I-7633, paragraphs 59 to 61).
77. As was pointed out in paragraph 36 of this judgment, there is, under international law and European Union law, a prohibition in all the Member States on marketing narcotic drugs, with the exception of strictly controlled trade for use for medical and scientific purposes. By contrast, prostitution, the behaviour referred to in Adoui and Cornuaille , aside from trafficking in human beings, is tolerated or regulated in a number of Member States (see, to that effect, Case C-268/99 Jany and Others  [2001] ECR I‑8615, paragraph 57).
82. Member States cannot be denied the possibility of pursuing the objective of combating drug tourism and the accompanying public nuisance by the introduction of general rules which are easily managed and supervised by the national authorities (see, by analogy, Case C-110/05 Commission  v Italy  [2009] ECR I-519, paragraph 67, and Case C-142/05 Mickelsson and Roos  [2009] ECR I‑4273, paragraph 36). In the present case, nothing in the case-file gives grounds to assume that the objective pursued could be achieved to the extent envisaged by the rules at issue in the main proceedings by granting non-residents access to coffee-shops whilst refusing to sell them cannabis.