Part of: Scarce licences
The claims most often heard in policy discussions, with the legal state of play and our position on each.
Two questions to keep strictly apart
Question 1: does the Services Directive apply to the tolerance declaration? No (Council of State 30 April 2025, Heerlen, ECLI:NL:RVS:2025:1925; CJEU Josemans, C-137/09). Question 2: can scarcity arise under national administrative law when a municipality caps the number of tolerance declarations itself? Yes — and then the requirements of equal opportunity, transparency and a limited term from the Vlaardingen line (ECLI:NL:RVS:2016:2927) apply.
The absolute claim "tolerance declarations are never scarce rights" is therefore no longer tenable. The correct and stronger line is the split: no Services Directive licence, but municipal capping can create national scarcity. That moves the debate to where municipalities are weakest: substantiating the cap itself.
Argument map — municipal claim and legal response
| Municipal claim | Legal response / control question |
|---|---|
| “Europe obliges us to redistribute coffeeshops periodically.” | No. In Heerlen the Council of State held precisely that the Services Directive does not apply to the tolerance declaration for the sale of cannabis. An appeal to an EU obligation of periodic redistribution therefore fails. |
| “We have a cap, so we must run a lottery.” | A municipal cap can make the available tolerance declarations scarce. It does not follow that a lottery is mandatory. The municipality must separately substantiate what consequences it attaches to that scarcity and why the chosen procedure is appropriate and proportionate. |
| “The Council of State ruled that coffeeshop licences may last no more than ten years.” | No. In Heerlen a ten-year duration was assessed within the concrete circumstances of that case. The Council of State did not set a general ten-year term that municipalities may adopt without further reasoning. |
| “Roermond proves that five years is permitted for coffeeshops.” | Roermond concerned the operating licence and concrete reasoning based on public order and protection of the living environment. The ruling gives municipalities no general five-year term for coffeeshops and is no independent ground to let a tolerance declaration lapse after five years. |
| “Since Apeldoorn a tolerance declaration is a decision and therefore a licence.” | No. In Apeldoorn the tolerance declaration was equated with a decision for legal protection purposes only. It did not become a licence. Heerlen subsequently confirms that the Services Directive does not apply to the tolerance declaration. |
| “Because we have always had a cap, we do not need to substantiate it again.” | A historically grown cap is not in itself current substantive reasoning. When changing or continuing policy, the municipality must explain which objective the cap serves, why the chosen number is appropriate for it and how the interests involved were weighed. |
| “New entrants are entitled to a coffeeshop.” | No. The equality principle gives potential applicants no right to a tolerance declaration or to the creation of extra places. The municipality first decides whether and how many coffeeshops it wishes to tolerate under its own policy objectives. Only within the scarcity thus created does the question of equal opportunity arise. |
| “Existing operators must simply make way for new applicants when their term ends.” | That does not follow automatically from the case-law. The interests of existing operators must genuinely be weighed, including continuity, investments, staff and the consequences of closure. A municipality must be able to justify the chosen duration, the transitional arrangements and the effects of its policy change separately. |
| “A numerical cap is necessary to control the number of coffeeshops.” | A numerical cap is a municipal policy choice, not a statutory obligation. The municipality must therefore explain why capping specifically is necessary and proportionate, and why less intrusive instruments such as substantive and spatial conditions are insufficient. |
| “The environmental plan is no alternative, because it cannot fix the exact number of coffeeshops.” | That is exactly where the alternative lies: setting norms instead of caps. With objective spatial conditions a municipality can steer towards locations where a coffeeshop is acceptable in terms of the living environment and spatial planning, without creating an artificial number of available rights in advance. |
| “Public order justifies our cap.” | Public order can be a legitimate policy objective. That does not yet show that the number of coffeeshops causes the problem, or that a numerical cap specifically is suitable and necessary to solve it. Ask for the factual analysis and for the causal link (arts. 3:2 and 3:46 Awb). |
| “Other municipalities also apply a cap.” | Common practice is no substitute for local substantiation. Necessity and proportionality must be assessed against the concrete local facts: population composition, geography, existing coffeeshops, visitor flows and the public-order situation in that municipality. |
| “We have used this population ratio for years.” | A historical guideline or rule of thumb is not an independent legal norm. The municipality must explain why it is suitable for the current local situation, on which data it rests and why precisely this number follows from it. |
| “With this number we keep negative effects manageable.” | That is a conclusion, not yet a reasoning. Ask which data show that precisely this number controls those effects, and which causal link between number and effect has been established (art. 3:46 Awb). |
| “We are allowed to apply a cap.” | A power to cap does not yet answer why that power is necessary and proportionate in this concrete case. Competence and justification are two different questions. |
| “Qualitative conditions are insufficient; we also need a ceiling.” | Ask which concrete risk remains despite location, integrity, operating and supervision requirements, and why only an absolute ceiling can remove that risk. A heavier instrument requires justification where more specific and less intrusive means are already available. |
| “Problems on the illegal cannabis market justify fewer coffeeshops.” | Explain the causal link first. Problems around illegal production or supply do not automatically prove that the number of tolerated points of sale is too high; those problems stem from the design of the cannabis market and the unregulated supply side. |
The scarcity test per municipality
For every local policy change, apply the same test: purpose of the cap, current facts, causality between numbers and problem, the chosen number, less intrusive alternatives, duration, transitional arrangements, distribution method, legal succession and business impact. Request the underlying research, council documents, legal advice and data — the weak spot usually sits before the distribution procedure, in the necessity and substantiation of the cap.
Lessons from the municipalities
Apeldoorn — In 2023 the Council of State strengthened the legal protection of coffeeshop operators: objection and appeal are open against a tolerance declaration, its refusal and its withdrawal. The Division thereby equated the tolerance declaration with a decision for legal protection purposes. It did not rule that a tolerance declaration thereby becomes a licence or falls under the Services Directive.
Roermond — An operating licence for the regular hospitality activities of a coffeeshop may be granted for a limited period where an independent, sufficiently reasoned ground exists, such as protection of public order and the living environment. The temporary duration therefore does not follow automatically from the mere fact that a coffeeshop is involved or that the number of coffeeshops is capped. The ruling must moreover be distinguished from the tolerance declaration for the sale of cannabis.
Heerlen — This is the key ruling for the current debate. The Council of State explicitly confirms that the Services Directive does not apply to the tolerance declaration for the sale of cannabis. At the same time the Division holds that where a municipality itself caps the number of tolerance declarations, they become scarce as a result, which in the Division's view means they must have a limited duration. In Heerlen a ten-year term was considered proportionate, partly in view of the transitional period and the circumstances of the case. The ruling does not say that every municipality is obliged to redistribute coffeeshops periodically.
Amersfoort — In late 2025 the district court again confirms that a tolerance declaration cannot be regarded as a “scarce public right” within the meaning of EU law. That does not exclude that tolerance declarations become scarce in fact where the municipality itself applies a cap. Because Amersfoort grants at most seven tolerance declarations, the court accepts that a limited duration is attached to them. The case also shows that the concrete transition from old to new policy and the application of transitional law remain separately reviewable.
The case-law now draws a clear distinction: a coffeeshop tolerance declaration is not a licence under the Services Directive. A municipality can create scarcity by setting a cap itself, but it does not automatically follow that the full regime of periodic redistribution of scarce licences applies.