Part of: Scarce licences
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: a tolerance declaration is not a "scarce public right" within the meaning of EU law. This was again confirmed by the District Court Midden-Nederland on 12 December 2025 (ECLI:NL:RBMNE:2025:7604). The EU 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).
Foundation — legal opinion Blenheim Advocaten (3 June 2024)
This line is set out in the legal opinion prepared by Blenheim Advocaten on behalf of BCD. Key points:
- A tolerance declaration is not a licence within the meaning of the General Administrative Law Act, nor within the meaning of the Services Directive. As long as the Opium Act is in force, no licence can be granted for the sale of soft drugs (cf. District Court Limburg 30 March 2021, ECLI:NL:RBLIM:2021:2746; Council of State 13 September 2023, ECLI:NL:RVS:2023:3482).
- Even under the Cannabis Experiment the legislator expressly intended that there is no "legal economic and commercial circuit" — the sale of soft drugs therefore does not fall under the EU free-movement freedoms (cf. CJEU, Josemans, C-137/09).
- The sale of soft drugs therefore does not fall within the scope of the Services Directive. On that basis no licensing regime with caps or limited duration can be imposed.
- Even falling back on the TFEU, the special risks of soft-drug sales — protection of public health, public order and the residential environment — justify excluding or limiting competition (cf. the "Betfair exception", CJEU 3 June 2010, C-203/08).
- Practical advice: grant tolerance declarations for indefinite duration, or for a fixed term with automatic extension, to safeguard the continuity of existing operators and their embeddedness in the neighbourhood — both necessary for the public interest that the coffeeshop serves.