Article 21 - Non-discrimination
Key facts of the case:
It is prohibited in the Netherlands to sell soft drugs to inhabitants not residing in the Netherlands (there has been a binding Guideline by the Public Prosecution Service since 13 December 2012 in the context of the Opium Act). In this case a 'coffee shop' in the city of Maastricht, close to the German and Belgian border, is prosecuted by the Public Prosecutor because it sold soft drugs to various people from outside the Netherlands. The accused states that the prohibition is in conflict with Article 21 of the Charter, which lays down the principle of non-discrimination on the basis of nationality. He also states that the prohibition is in conflict with the EU freedom of services.
Outcome of the case:
The Supreme Court holds that the accused's argument does not hold. The ECJ held in its judgment of 16 December 2010 (C-137/09), Josemans v Mayor of Maastricht, that the prohibition to allow EU citizens not residing in the Netherlands into coffee shops is a measure aimed at considerably limiting drugs tourism and thus reducing problems caused by drugs tourism. It cannot be deemed incoherent if a Member State takes suitable measures to face a massive influx of inhabitants of other Member States who want to benefit from the tolerated sale of products, the sale of which is prohibited in all Member States. The Supreme Court therefore holds that it is possible to prosecute a coffee shop that sells soft drugs to inhabitants from countries other than the Netherlands. It is a suitable measure to reduce problems caused by drugs tourism (public order) and therefore is not in conflict with Art. 21 of the Charter.
3.1. The claim, which states that the Court of Appeal should not reject the allegation by the accused that the Public Prosecutor cannot prosecute the accused, comprises, among other things, the complaint that the Court of Appeal did not take into account that using the criterion of being a Dutch inhabitant or not amounts to unjustified discrimination due to a conflict with Art. 21 of the Charter on the Fundamental Rights of the European Union – a provision which prohibits, among other things, discrimination on the basis of nationality within the scope of the functioning of the Treaties of the European Union.
3.3. The Court of Appeal held, in brief, that the use of the criterion of being an inhabitant residing in the Netherlands or not does not amount to unjustified discrimination. This judgment does not show that legal standards are not correctly adhered to. This judgment is not unclear either and it gives sufficient reasons. The Supreme Court takes the following into account. In the judgment of the European Court of Justice of 16 December 2010 (C-137/09), case Josemans v Mayor of Maastricht as to the criterion of being an inhabitant of the Netherlands or not – which was raised in the context of administrative proceedings – (reflected in the Conclusion of the Advocate-General under 27), the ECJ held that a prohibition to allow inhabitants from other states to coffee shops is a measure to considerably limit drugs tourism and thus reduce problems caused and that it cannot be deemed to be incoherent that a Member States takes suitable measures to face the massive influx of inhabitants from other Member States who want to benefit from the sale of products tolerated in this Member States, whereas due to their nature, the sale of these products is prohibited in all Member States. With this in mind, the Court of Appeal could judge, without a denial of the prohibition of discrimination, that the use of the criterion of being an inhabitant from the Netherlands or not does not result in the conclusion that the Public Prosecutor cannot prosecute the accused.