This is an English translation. The original Dutch article is authoritative.
It has been almost eighteen months since I became chair, then still interim, of the Bond van Cannabis Detaillisten. My mission, however—normalising and legalising cannabis—existed long before that. During my interview in the Cannastembus, Derreck Bergman noted that it is remarkable that the first female mayor of Amsterdam coincides with the first female chair of the Bond van Cannabis Detaillisten, which also has its roots in Amsterdam.
And he had a point there. Incidentally, I had thought of this myself once before. But over the past few days, this thought has kept circulating in my mind. Naturally, we are in the midst of the battle against the i-criterion and are closely following our Amsterdam mayor and the politicians on this matter. During the committee meeting on 28 January, Mayor Halsema spoke out in favour of the legalisation of cannabis. She never made a secret of that during her time in the House of Representatives either. Looking at it that way, she and I actually have the same mission. We are just taking a different route.
Besides Femke Halsema, there is another woman who openly speaks out in support of legalising cannabis: Vera Bergkamp. Recently, she announced that the “Wietwet” (the closed coffeeshop supply chain experiment act was already adopted by the House of Representatives in 2017) must be further considered in the Senate. According to her, the weed trial is progressing far too slowly. I agree with her on this.
During her interview in the Cannastembus, I was pleased to hear that she also recognises the cannabis plant as a special plant. One that we must take good care of. Regulating is good for public health and for combatting crime. Arguments that our Amsterdam mayor also seems to understand. Vera Bergkamp and I share the bewilderment that when you are in favour of regulation, according to some, you are also “on drugs”. Whereas by regulating, you can actually do more regarding prevention, education, and combatting crime. Coffeeshops are an important tool for this. Unfortunately, that is not always recognised yet.
Vera Bergkamp also expressed her concerns about the i-criterion. I share these. She understands that the mayor must – and wants to – do something about nuisance and crime. But as an Amsterdammer, she has seen queues increase with the closure of coffeeshops. In addition, she believes that when so many experts say: “the i-criterion is not a good idea”, you as a mayor must listen to that. Especially as a member of GroenLinks! Furthermore, Vera Bergkamp says that regulating is the best solution for Amsterdam. Especially if you want to do something about drug-related crime and the “shady business” at the back-door. That is where the problem lies, also in terms of nuisance.
If we go back to Femke Halsema's home base: GroenLinks, we also end up at regulation. The election manifesto literally states: We want to legalise the cultivation and trade of soft drugs. In this way, drug-related crime decreases and control over trade and the quality of soft drugs increases. Currently, the possession and use of cannabis is tolerated, while cultivation and trade are punishable. That is an unbalanced situation. Sellers of soft drugs must have a permit and meet strict quality requirements.
Our Amsterdam mayor presents her plans as a hop, skip, and a jump: ‘We are making the market smaller and more suitable for legalisation.’ A peculiar route that even I, as an advocate for the legalisation of cannabis, do not understand.
And yet, I am somewhat positive. We see the same necessity. All three of us. Albeit via a different path, we are committed to the legalisation of cannabis. Each from a different angle and via a different route. Perhaps our paths will cross soon. Because in my view, where you have a common end goal, you can also walk the path towards it together.
Amsterdam, 19 March 2021,
Simone van Breda, Chair BCD
Scarce rights and European freedoms
Scarce rights refer to permits that are only available to a limited extent and for which potential operators must compete. According to the Treaty on the Functioning of the European Union (TFEU) and the Services Directive, such permits must in principle be distributed in a non-discriminatory and transparent manner. However, the situation surrounding coffeeshops is unique and requires closer consideration.
Exceptions in the Services Directive
The Services Directive does not apply to activities that require specific public order and consumer protection, such as gambling activities (preamble point 25 of the Services Directive). This principle can also be applied to the sale of soft drugs in coffeeshops. The sale of soft drugs, although tolerated under certain conditions, entails significant risks for public order, public health, and the living environment.
Case law shows that a tolerance declaration is not a permit and therefore cannot be considered as scarce rights as long as the Opium Act remains in force (Limburg District Court, 30 March 2021). The current tolerance status of coffeeshops means that there is no fully legal economic circuit, which is also supported by the judgment of the European Court of Justice in the Josemans case (C-137/09).
Coffeeshops in the weed experiment
On 17 June, the transition phase of the weed experiment began. During this experiment, the cultivation, delivery, and sale of soft drugs in participating municipalities is temporarily declared legal, whereby the prohibitive provisions of the Opium Act for these actions are declared inapplicable (closed coffeeshop supply chain experiment act, art. 3). However, the legislator has explicitly stated that this does not mean that a legal economic and commercial circuit is created as intended in the European freedoms. The European freedoms of movement, including the Services Directive, do not apply to the sale of cannabis during the weed experiment.
No obligation to apply scarce permits
During the weed experiment, the use of an equal opportunities procedure for the distribution of operating permits for coffeeshops is not mandatory and is strongly discouraged. Introducing scarce permits would create unnecessary risks for public order, public health, and the living environment. The legal and practical complications, such as repeatedly moving coffeeshops to new locations, would lead to a disruption of public order and an extra burden for local residents.
Objections to equal opportunities procedures
The operation of coffeeshops requires strict compliance with the AHOJGI criteria (no advertising, no hard drugs, no nuisance, no sales to minors, no sales of large quantities, and no access for youth under 18). These criteria were established to protect public order and public health. An equal opportunities procedure could lead to coffeeshops at new locations, which can disrupt public order and the living environment.
Practical problems with new permits
The repeated allocation of new permits can lead to uncertainty and unrest among both operators and local residents. Examples from municipalities such as Eindhoven, Tilburg, and Hellevoetsluis show that there is often significant resistance to the establishment of new coffeeshops, leading to lengthy legal procedures and delays in opening new branches. This is not merely an administrative challenge, but a fundamental problem that affects stability and public order.
Coffeeshops that have operated at the same location for a long time have generally achieved a certain degree of acceptance and integration within the neighbourhood. Residents are used to the presence of the coffeeshop, which contributes to a sense of stability and predictability in the district. This local trust and the established relationship between operators and local residents reduce the chance of nuisance and promote a peaceful living environment.
When closing or moving an existing coffeeshop, there is a real risk that street dealers will establish themselves at the former location of the coffeeshop. These dealers try to attract the former customers of the coffeeshop, leading to an increase in illegal activities and nuisance in the neighbourhood. Furthermore, we express significant concerns about the possible consequences for public order and safety. Currently, coffeeshops are established and regulated via the existing tolerance policy, where the established entrepreneurs are responsible for the back-door.
These coffeeshop entrepreneurs often have a good relationship with the local government, and they are carefully and regularly checked by the local authorities. Introducing scarce permits would break these existing relationships, and it would be unclear who becomes responsible for the organisation and the back-door provision. This lack of transparency and clarity can lead to undesirable situations and an increased risk of illegal activities. Safeguarding public order and safety is a top priority, and the current tolerance policy has proven effective in reducing nuisance and minimising the influence of criminal organisations. Scarce permits could disrupt this delicate balance and open doors to uncontrolled and potentially undesirable practices.
Exception according to the law
It is of crucial importance that municipal administrative bodies refrain from applying an equal opportunities procedure in the distribution of permits for coffeeshops. The unique nature of the sale of soft drugs and the associated risks to public order, safety, and public health justify an exception to the rules for scarce rights, similar to the exceptions that apply to gambling activities, as laid down in the European Services Directive (Directive 2006/123/EC, preamble point 25).
Municipalities should support existing coffeeshops by granting them permits for an indefinite period, as permitted under Article 9 and Article 12 of the Services Directive, provided this is justified by an overriding reason of public interest. In light of case law, such as the Josemans judgment of the European Court of Justice (Case C-137/09), which confirms that the sale of soft drugs does not fall under the freedoms of movement, it is clear that coffeeshops occupy an exceptional position. Given the unique character of the sale of soft drugs and the necessary measures to protect public order and public health, the operation of coffeeshops must be exempted from the rules regarding scarce rights as laid down in the Services Directive. The case law and the specific context of the tolerance policy and the weed experiment make it clear that the strict application of these European rules is not appropriate for this sector. It is evident that the implementation of scarce permits during the weed experiment is not only superfluous but also potentially harmful.
Municipal administrative bodies are strongly advised to refrain from such procedures. Maintaining a stable and safe operating environment for coffeeshops is crucial for the preservation of public order and public health. This approach guarantees the continuity, safety, and acceptance of coffeeshops within their communities, and prevents the negative consequences of overhasty and unfounded changes in permit policy.
BCD Editorial Board, 24 June 2024