Part of: Scarce licences
The distinction that decides everything: a tolerance declaration is not a licence under the Services Directive, an operating licence is.
Coffeeshops have no licence within the meaning of the Services Directive
A coffeeshop operates not on the basis of a licence, but on the basis of a tolerance declaration. That distinction is legally essential: the EU Services Directive does not apply to the tolerance declaration for the sale of cannabis. The Administrative Jurisdiction Division confirmed this expressly on 30 April 2025 (Heerlen, ECLI:NL:RVS:2025:1925), in line with Josemans (CJEU, C-137/09) and as again confirmed by the District Court Midden-Nederland on 12 December 2025 (ECLI:NL:RBMNE:2025:7604). The Services Directive therefore does not oblige municipalities to apply a scarce-licence regime to coffeeshops.
Scarcity only arises through a municipal policy choice
When a municipality caps the number of tolerance declarations — for example through a maximum scheme or a fixed ceiling — factual scarcity arises. That scarcity is then the result of a chosen policy measure, not of a direct obligation under EU law. This shifts the debate: not "must we redistribute?" but "why are we capping at all, and is it necessary and proportionate?".
Why this distinction matters
In practice municipalities often present the transition to temporary, distributable tolerance declarations as legally inevitable. That is incorrect. As long as there is no self-imposed scarcity, there is no duty to redistribute. And when a municipality does create scarcity, it bears the burden of substantiating that choice objectively and verifiably — observing the principles of good administration (arts. 3:2, 3:4 and 3:46 of the General Administrative Law Act).
Our reasoning — why there is no duty to redistribute
Municipalities increasingly claim that the rulings on Apeldoorn (2023) and Heerlen (2025) oblige them to limit the duration of coffeeshop permits and to apply a scarce-licence regime. That reasoning is incomplete. Our full analysis is set out in our article "Since the Council of State ruling it is not the permit duration but the mayor's discretion that has been curtailed" and in our correspondence with municipal councils, the VNG and the ministries (see the letters archive later in this dossier).
- Neither ruling held that a coffeeshop tolerance declaration is a scarce licence within the meaning of art. 12 of the Services Directive. In Apeldoorn (Council of State 13 September 2023, ECLI:NL:RVS:2023:3431) the opposite was established; the sale of cannabis falls outside the EU free-movement freedoms (CJEU, Josemans, C-137/09).
- In Heerlen (Council of State 30 April 2025, ECLI:NL:RVS:2025:1925) the Division gave no ruling on the lawfulness or substantiation of the cap itself. Only its application within existing policy, in that specific case, was reviewed. The ten-year term is therefore not a standard.
- If a municipality does invoke art. 12 of the Services Directive, it must apply that regime in full: objective substantiation of the cap, objective selection criteria and a transparent allocation procedure. Shortening the term alone is not enough (cf. VNG guidance on scarce licences, ch. 3.3).
- Where a municipality itself opts for a cap, policy-induced scarcity arises. It then bears the burden of careful preparation, proper reasoning and proportionality (arts. 3:2, 3:4(2) and 3:46 of the General Administrative Law Act). Indefinite duration remains the starting point; a limited term is the exception and must be substantiated.
- The mayor's discretion has thereby been curtailed: a cap can no longer be set or maintained without current, verifiable and robust substantiation, without factual analysis and without weighing less intrusive alternatives (cf. Council of State 2 February 2022, ECLI:NL:RVS:2022:285).
- A less intrusive alternative exists: setting norms through the environment plan — where coffeeshops are permitted, distribution and distance to sensitive functions (cf. Council of State 6 April 2022, ECLI:NL:RVS:2022:1001) — combined with operating conditions and enforcement through the municipal by-law. That provides control over location and liveability without artificial scarcity.
- Our practical line: grant tolerance declarations for indefinite duration, or for a fixed term with automatic extension, taking account of the payback period of investments, long-term obligations and neighbourhood embeddedness — both necessary for the public interest the coffeeshop serves. Even falling back on the TFEU, the special risks of soft-drug sales justify limiting competition (the "Betfair exception", CJEU 3 June 2010, C-203/08).