Dope update

18 Jul

As you may have seen, the European Court of Justice made its ruling on the case I mentioned on Tuesday regarding Dutch authorities closing down a coffeeshop which sold marijuana to foreigners.

The ruling, from Advocate-General Yves Bot, caught some commentators by surprise in that he said that the move was not contrary to the free movement of goods because cannabis is not a legal substance.

In fact he went further, stating that the Dutch clampdown was necessary to keep public order which he said was threatened by floods of tourist crossing the border to buy drugs.

This was a commonsense ruling. It is ridiculous to suggest that banning the sale of a substance that is illegal in other countries is someway discriminatory.

Well done Monsieur Bot.

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12 Responses to “Dope update”

  1. Andrei Tuch July 20, 2010 at 10:34 pm #

    It’s not common sense at all. One nation is not obliged to uphold the laws of another nation within its own borders if it has no matching laws of its own.

    Restricting Australian backpackers from buying weed in Maastricht is legally tantamount to restricting Iranians from publishing Muhammed cartoons in Denmark. It’s not even an EU issue, it’s a basic non-discrimination issue.

    While I understand that the EU judge has no interest in opening the floodgates for free trade in soft drugs, he’s still *wrong*.

    • Eurogoblin July 21, 2010 at 9:01 am #

      This is a grey area. Cannabis is, despite a policy of non-enforcement in the Netherlands, still technically illegal. It is an illegal substance in every EU member-state. If the EU ruled that Cannabis should be covered by the rules of the Single Market, it would be a landmark case. The court made the only decision it could have.

  2. Dave July 22, 2010 at 10:14 pm #

    But by that reasoning wouldn’t some UK towns be able to ban foreigners from receiving abortions because it’s illegal in Ireland and Poland? Should towns in France be able to ban foreigners from eating foie gras because it’s illegal in several EU countries? And what about fireworks? Should foreigners be banned from buying fireworks in Belgium because they’re illegal in Ireland? It seems to me a basic violation of the common market to say an EU municipality can ban foreign EU citizens from consuming a product that is legal for its own citizens.

  3. Johnny Erasmus July 22, 2010 at 11:13 pm #

    That’s a very good point Dave, and one I haven’t really got an answer for. But, actually, the more I think about it, I think in those examples you give, the answer could be yes, they could. The Dutch courts brought the cannabis case to the Court of Justice as a test case. The Dutch authorities claimed they were banning foreigners from buying cannabis to stop “drug tourism”. If you take that to its natural conclusion then yes, I suppose there is a case for saying that if bus loads of Irish or Polish women were coming to a particular town in the UK for abortions, the town authorities could put a stop to it. But only on those grounds, I would imagine. An interesting one.

    • Dave July 22, 2010 at 11:54 pm #

      There have actually been a lot of stories in the British tabloids over the past year of Polish organisations sending women to the UK to receive abortions. Though of course, I wouldn’t imagine those would be confined to specific towns (to the extent that it’s even happening, it’s probably just the typical anti-polish stuff from the British rags). But I can’t imagine that a British town would be legally allowed to ban foreigners from receiving abortions within its jurisdiction, no?

      • Johnny Erasmus July 23, 2010 at 12:02 am #

        You’re absolutely right. I would imagine any British authority who tried to do this would fall foul of UK discrimination law. But, if they didn’t (and I don’t know how they could get round it) AND if they could prove that “abortion tourism” was having a detrimental impact on their area then this Court of Justice ruling would seem to offer a precedent for it not be against EU law… Unless of course, it could be argued to be different from cannabis because the access to an abortion is legal much more widely across the EU than cannabis is.

      • Eurogoblin July 23, 2010 at 9:26 am #

        The difference is that abortion is legal in Britain, whilst cannabis is illegal in the Netherlands (though there is a policy of non-enforcement in effect). The ECJ, if it had ruled that discrimination of non-enforcement was contrary to Community Law, would have been massively muddying the waters around what is an illegal substance in every single member-state.

  4. Eurogoblin July 23, 2010 at 9:31 am #

    P.S. With abortion – there are some cases involving Irish women travelling to the UK (including a fourteen year old girl who had been raped and was prevented from travelling to the UK for an abortion in 1992 by the Irish courts – until the ruling was overturned by the Irish Supreme Court). Though the ECJ has never been forced to give an opinion on this, these previous cases suggest it would indeed be contrary to Community Law to deny an individual an abortion based on their nationality.

    The crucial difference, though, is that abortion is legal in some member-states. Cannabis is illegal in all of them.

    • Andrei Tuch July 26, 2010 at 1:23 am #

      Does this mean that the policy of non-enforcement in Holland will be applied to the foreigner decision as well? 🙂 I can’t believe they’d actually stop sales, it would decimate their tourist revenue.

    • Dave July 26, 2010 at 10:31 am #

      But then does this ruling mean that member states are in theory allowed to selectively apply laws based on whether the person is a national or not? There are lots of crazy old laws on the books that are just no longer enforced. According to this ruling, a member state could dust one of them off and selectively apply it only to non-national EU citizens.

      • Eurogoblin July 26, 2010 at 11:07 am #

        From what I understand of EU law, that’s not the case (I’m not a lawyer, but I have studied EU law formally at postgraduate level – though not as my major). If the Netherlands started enforcing old laws in an area where EU law applies, then they wouldn’t be able to discriminate between citizens of different member-states.

        However, nowhere in Dutch law (even in old laws) does it say that cannabis is legal. The problem is that cannabis is illegal everywhere – old laws, new laws, etc. it makes no difference. It’s simply an illegal substance – which is why the ECJ could not have made any other decision.

        I also agree with Andrei that they probably won’t stop all tourists smoking cannabis in coffee-shops. This is probably just a case of the Dutch authorities (and it seems like it’s regional authorities in Maastricht, outside of Amsterdam) wanting greater control over the sale of cannabis in Holland (they now have a green-light from the ECJ to discriminate against tourists where they feel it is appropriate – i.e. if drug tourism starts to take off in a neighbourhood which has never experienced it before and the locals complain).

  5. Eurogoblin July 26, 2010 at 11:11 am #

    btw, I should cover my back and amend that to “if the Netherlands started enforcing old laws in an area where EU law applies and states that discrimination is prohibited.”

    There are so many exceptions in EU law that it’s best no to say anything for certain unless you’re an expert (which I’m not).

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