Statement to the European Court of Justice In the Appeals Procedure of C-137/09

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Clementine Mathews
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1 Barbara von Gayling-Westphal Berlin, 11 December 2009 Representative of the Government of The Federal Republic of Germany European Court of Justice L 2925 Luxemburg Statement to the European Court of Justice In the Appeals Procedure of C-137/09 Mr. Josemans against the judgment of the Maastricht Tribunal in case no. 07/661 of 1 April 2008 in the lawsuit between: Mr. Josemans and The Mayor of Maastricht The Federal Republic of Germany holds the following: - A regulation, such as that at issue, concerning the access of non residents to coffeeshops, does wholly fall within the scope of the EC Treaty, namely Art. 49 EC Treaty. - The prohibition of the admission of non-residents to coffeeshops does not form a wholly suitable means of reducing drug tourism and public nuisance. - If and in so far as Art. 49 EC Treaty was not applicable to the rules on the access of nonresidents to coffeeshops, the regulation would fall in the scope of Art. 12 in conjunction with Art. 18 EC Treaty. - In that case the prohibition of the admission of non-residents to coffeeshops would not be a suitable means of reducing drug tourism and public nuisance. 1

2 1. Does a regulation, such as that at issue in the main proceedings, concerning the access of non-residents to coffeeshops", fall wholly or partly within the scope of the EC Treaty, with particular reference to the free movement of goods and/or services, or of the prohibition of discrimination laid down in Article 12 in conjunction with Article 18 of the EC Treaty? (1) The Federal Republic of Germany acknowledges the notion brought before by the Tribunal that - according to the ECJ hemp - products fall under a complete ban of import and trade in the Community and therefore may not be lawfully marketed 1. In general the Federal Republic of Germany applies a strict approach to granting legal scope for drug related issues: according to 134 BGB 2, for example, contracts that are subject to dealings with drugs are void and don t create any legal contractual obligations. Even in the area of basic Human Rights, dealings with drugs don t fall within the scope of the respective right, for example of Art. 2 GG 3 (General Freedom of Action, in relation to Art. 2 GG the German Federal Constitutional Court has denied a right to be stoned 4.), Art. 12 GG (Occupational Liberty) and Art. 14 GG (Protection of Ownership). This is because The Federal Republic of Germany does not recognize any economic element when it comes to illegal drugs. (2) The drug at issue, cannabis, is by German Law a non-marketable narcotic substance according to Appendix I of 1 I BtMG (German Law on Narcotic Substances). Anyone who grows, produces, trades, exports, imports, sells, dispenses, markets, purchases or procures cannabis by any other means is acting illegally according to 29 I BtMG. (3) However, by deciding whether the regulation at hand falls within the scope of EC Law, one must look at the regulation in its entirety. The Maastricht Business Ordinance (MBO), prohibits non-residents to access the so-called coffeeshops, which apart from selling cannabis also sell legal products such as tea and coffee. A reference to the case Happy Family 5, in which the Court decided on the taxability of the selling of illegal drugs in the light of the Sixth Directive, is not appropriate with regard to content. In fact in Coffeshop Siberie 6 the ECJ acknowledged an economic character to a service existing in providing premises for illegal products inside a coffeeshop. Just as the ECJ in Coffeeshop Siberie considered the 1 ECJ C-289/ 86 (Happy Familiy), ECJ C-158/98 (Coffeeshop Siberie) 2 BGB as abbreviation for Bürgerliches Gesetzbuch, the German Civil Code 3 GG as abbreviation for Grundgesetz, the German Constitution 4 BVerfGE 90, ECJ C-289/ 86 (Happy Familiy) 6 ECJ C-158/98 (Coffeeshop Siberie) 2

3 commercial activity as a whole and not only at the illegality of the product being sold, one must look at the full implication of the regulation in the case at hand. The denial of access to coffeeshops affects the full range of commercial activity, legal or illegal, being offered in a coffeeshop, therefore the MBO Regulation as a state action falls within the scope of EC Law. (4) The MBO Regulation furthermore falls in the scope of Art. 49 EC Treaty. As the ECJ stated in Schindler 7 and Omega 8, in case of both the freedom to provide services and the free movement of goods being affected, it only examines one of those two freedoms, if one is entirely secondary in relation to the other. Even though the Federal Republic of Germany recognizes a bigger issue with the illegal goods crossing the Dutch-German border than with the service being offered on Dutch territory, it would be unjust to refer to the legal products in order to make EC Law applicable, but to refer to the illegal products in order to decide for the specific grounds a restriction might be based upon. The cross border element will solely be found in the cannabis products and not in the legal products such as tea or coffee. The regulation therefore falls in the scope of Art. 49 EC as a freedom to receive services. The ECJ has acknowledged the existence of a passive freedom of services, where the one who receives a service travels in the country of the service provider In so far as the provisions of the EC Treaty concerning the free movement of goods and/or services are applicable, does a prohibition of the admission of non-residents to coffeeshops form a suitable and proportionate means of reducing drug tourism and the public nuisance, which accompanies it? (1) The denial of access to coffeeshops for non-residents is a restriction to receive the services being offered inside them, which must be justified. The regulation at issue forms an indirect discrimination as it refers to the residences of the consumers, which is closely linked to nationality. It must therefore be justified by reasons of public order, security and health according to Art. 55 in conjunction with Art. 46 I EC Treaty. (2) The aim being followed by the Dutch lawmaker is the avoidance of public nuisance and drug tourism, which falls within the category of public order. Therefore, it can be argued that the prohibition of admission of non-residents is a proportionate means of reducing drug 7 ECJ C-275/92 Schindler [22] 8 ECJ C-36/02 Omega [26] 9 EuGH. Slg 1989, S 195,Rn 15 Cowan; EuGH, 286/82 und 26/83, Luise und Carbone, Slg 1984, 377 Rn 15 3

4 tourism and the accompanying public nuisance. The Federal Republic of Germany welcomes the approach to fight drug tourism, as the Netherlands is the most dominant country of origin of drugs being seized in Germany. According to the Annual Report on Drugs of the Federal Ministry of the Interior 10, 81% of the seized cannabis, 75 % of the seized marijuana and 80% of the seized ecstasy originate from Dutch territory. Drug tourism of German citizens causes significant legal and factual problems for German authorities: (i) According to Art. 16 II GG German citizens having committed a criminal act must not be surrendered to a foreign state. Therefore 7 II Nr. 1 StGB states, that German Criminal Law applies for wrongful acts committed by a German citizen, if the act is to be punished by the law of the regarding state. Whether or not German Criminal Law applies therefore depends on whether the foreign Criminal Law considers the act to be unlawful. The reason behind this regulation is that the Federal Republic of Germany doesn t want to disrespect another state s legal system. (ii) According to Dutch law the purchase and possession of cannabis is prohibited. The possession or consumption of small quantities, however, does not have to be prosecuted by Dutch police force and is therefore generally tolerated. This means that German Criminal Law still applies for German citizens, who buy cannabis in the Netherlands. As stated above, cannabis is a non-marketable narcotic substance according to Appendix I of 1 I BtMG and any dealing with it is to be punished under German Law. A problem arises, as the German police force do not prosecute mere private consumption of cannabis in Germany, even though the consumption implies a previous purchase, which is a wrongful act according to 29 I BtMG. The actual purchase of cannabis on Dutch territory however is very difficult to prove. (iii) According to 11 I BtMG any import of narcotic substances without official permission is prohibited. Since the Schengen Agreement has come into force and since obligatory border controls of people have been abrogated, German authorities can only perform spot test, which makes the prosecution of drug contraband very difficult. (3) To reduce drug tourism and public nuisance is a legitimate and desired aim. However, the measure has to be suitable and proportionate to its desired aim. (4) The Federal Republic of Germany considers the regulation on hand not to be suitable to achieve the desired aims. By not allowing non-residents to enter the coffeeshops, it is more 10 Drogenbericht der Bundesregierung

5 likely that they are mislead to buy soft and hard drugs off the street. This would lead to an increased street trading, which would further result in even more public nuisance. The state of mind of non-residents, who have not been allowed in the coffeeshops, is not to be underestimated either. Potential consumers may very well feel discriminated or offended after have been blocked at the entrance of a coffeeshop, which could give rise to further nuisance and aggression. (5) The Federal Republic of Germany holds for a stricter measure in order to achieve the desired aim of reducing drug tourism and public nuisance. This would in an ultimate conclusion be the closing down of all coffeeshops. 3. Is the prohibition of discrimination against citizens on grounds of nationality, as laid down in Article 12 in conjunction with Article 18 of the EC Treaty, applicable to the rules on the access of non-residents to coffeeshops if and in so far as the provisions of the EC Treaty concerning the free movement of goods and services are not applicable? (1) If the Court holds that Art. 49 EC Treaty is not applicable, the MBO Regulation still falls in the scope of Art. 12 in conjunction with Art. 18 EC Treaty. Those provisions, generally being subsidiary in relation to the special rules concerning the Single European Market, apply as the regulation forms an indirect discrimination as it refers to the residences of the potential consumers, which is closely linked to nationality. 4. If so, is the resulting indirect distinction between residents and non-residents justified, and is the prohibition of the admission of non-residents to coffeeshops a suitable and proportionate means of reducing drug tourism and the public nuisance which accompanies it? (1) The Federal Republic of Germany considers the prevention of drug tourism and public nuisance as objective reasons according to Art. 12 EC Treaty. However, a distinction between residents and non-residents at the entrance of coffeeshops is not suitable to prevent these aims, as discussed above See 2. (4) 5

What annoys me most is that all these measures lack any kind of vision

What annoys me most is that all these measures lack any kind of vision You might expect somebody from the Netherlands to come up with a very positive message. I think I m going to disappoint you a bit.