The long-awaited letter outlining the Dutch cabinet’s plans for ‘coffee shops’ (where cannabis products are sold) was sent to the House of Representatives on 27 May.
As far as the government is concerned, coffee shops will become private clubs catering to the local market, only accessible to members.
The maximum number of members will be set at national level.
Mayors will have to decide how many coffee shops will be needed to meet local demand.
Only adult residents of the Netherlands will be able to visit a coffee shop, where they will have to identify themselves with valid ID and provide proof that they are residents of the Netherlands.
Membership must be for at least one year.
According to Jan Brouwer, professor of Legal Methods at the University of Groningen, this proposed new policy will create at least three new problems.
The initial problem will lie in enforcing this ‘resident’ criterion.
Coffee shop staff will have to deny anyone who does not live in the Netherlands membership.
However, according to Article 1 of the Dutch Constitution, everyone who is present in the Netherlands must be treated equally.
This principle may only be diverged from if there is an objective and reasonable legal justification to do so.
The reason being put forward – disturbance of the peace – does not suffice.
It assumes that it’s only foreigners who are disturbing the peace around coffee shops.
This has never been proven.
In fact, the Dutch are just as likely to offend as foreigners.
In 1996, Almelo District Court already rejected Hengelo municipality’s coffee shop policy on these grounds.
The Council of State is expected to rule in line with this in early July, in a conflict between a coffee shop proprietor and the mayor of Maastricht regarding being required to deny entry to coffee shops to non-residents.
Up until now, coffee shop proprietors were ‘tolerated’ under the Dutch policy known as gedoogbeleid if they did not advertise, create nuisance or sell to minors, and only sold in small quantities and kept a small stock on the premises.
A new ‘toleration’ requirement will be added to the list:
the coffee shop proprietor must set up an association that his customers must join.
It is extremely dubious whether this is legal.
The association would not be run-of-the-mill but would be one that would commit criminal acts on a structural basis.
Almelo District Court forbade such an association in 2001 and had it dissolved at the demand of the public prosecutor on the grounds of being contrary to public order.
The aim of the association had been to promote the interests of cannabis consumers.
Its goal was to provide clean cannabis products.
It is dubious, to say the least, that the government is planning to require that an association be established that would operate contrary to public order.
Such a requirement is greatly at odds with the freedom of association with others which in Article 8 of the Constitution is literally bounded by public order.
A third foreseeable problem regards supervision of the mandatory membership records the coffee shop proprietor is required to keep.
A supervisory body would in that case not be responsible for supervising whether the law is being complied with, but with supervision of non-compliance with the Opium Act.
This of course is difficult to reconcile with the legal definition of the duties of a supervisory body.
Has the government thought through these plans sufficiently?
Or should the plan being launched be explained as a blatant attempt to ultimately be able to blame the Council of State for not being able to change coffee shop policies?
Jan Brouwer (Oosterbeek, 1951) studied Law and History at the University of Groningen.
He is professor of General Law Studies at the University of Groningen and director of the Centre for Public Order and Security.
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