The hundreds of thousands of investigations conducted year after year into the possession of small amounts of cannabis clogged the German criminal justice system. The same is true for most other EU Member states. Yet, almost none has been brave enough to legalize cannabis – with the shining exception of the Netherlands. But did they really legalize it? Is it even possible under European and international law to legalize cannabis? Despite a global legalization movement including Canada, Uruguay, Portugal, and some US-States the answer may surprise: International and European law clearly prohibit the legalization of soft drugs. From a legal perspective the drug policies in the Netherlands have been a rather schizophrenic – with quite some collateral damage.  

Illegal through the back door
With in the legalization debate in Germany, the view seems to prevail: if the Dutch can do it, so can we - probably even better. The coalition's plan to legally regulate not only the selling, but also production and purchasing by the end suppliers is probably the most important point of the law reform. Here the mistakes of the Dutch are to be avoided. In the Netherlands the sale and consumption of cannabis was legalised, or more precisely tolerated, from the 1970s on. Until today, however, the Dutch have failed to create legal ways for the coffee shops to purchase the cannabis for sale. Cultivation and trade have always been (and still are) illegal. This is called the 'backdoor problem': Cannabis goes out the front door legally, and comes in the back door illegally. Drug gangs smuggling cannabis from Morocco and Turkey for the rapidly growing Dutch market quickly filled this void. Within a few years, a complex distribution system was set up, supplying not only the Dutch coffee shops but the whole of Europe with the drug. At some point, the drug gangs diversified their business: ecstasy, cocaine and heroin were added. Today, the Netherlands is one of the most important transit countries in the global drug trade. The side effects: a brutal conflict among the drug gangs has been going on for years. Assassinations on the open street with fully automatic weapons happen on a regular basis. Often innocent bystanders are injured or even die. In 2020, the defence lawyer of a key witness in a major criminal trial against the so-called 'Mocro-Mafia', a network of organised criminals of Moroccan origin, was killed. The sad climax was the murder of the well-known investigative journalist Peter R. de Vries in the summer of 2021.

Learning from mistakes
It would be dishonest to refer to the Netherlands as a cautionary tale against the legalisation of cannabis in general. The crime situation is complex, direct comparisons with Germany and other EU Member States are difficult. From a German perspective, it is nevertheless worth taking a close look at the situation of the Netherlands to avoid mistakes in the legalization process. The paradoxes and legal pitfalls of cannabis legalisation in the Netherlands are well summarised in the European Court of Justice judgement of 16 December 2010 Josemans v. Burgermeester van Maastricht. In this judgement the plaintiff Josemans, the operator of a coffee shop in Maastricht, defended himself against the closure of his establishment by the city. The mayor had decreed that access to coffee shops could only be granted to persons who were residents of the Netherlands. The plaintiff had violated this regulation and claimed that it led to discrimination of EU citizens. The aim of this regulation, which still exists in many Dutch border cities near the border, was clear: to curb the lively drug tourism from Germany, France and Belgium. In the end, Joseman's complaint was rejected. The reasons for this, however, should not be of further interest here. Much more important are the ECJ's statements on the questions of cannabis legalisation under European and international law.

First of all, the ECJ refers to the Schengen Agreement of 1990.

Article 71(1) of that convention provides that the Contracting Parties undertake as regards the direct or indirect sale of narcotic drugs and psychotropic substances of whatever type, including cannabis, and the possession of such products and sub stances for sale or export, to adopt in accordance with the existing United Nations Conventions, all necessary measures to prevent and punish the illicit trafficking in narcotic drugs and psychotropic substances. (para. 8)

The ECJ thus explicitly refers to the fact that the export and supply of cannabis in the Schengen area must be prevented. Union law also provides in Art. 2(1)(a) of Framework Decision 2004/757:

[…] that each Member State is to take the necessary measures to ensure that, inter alia, the following intentional conduct when committed with out right is punishable: offering, offering for sale, distribution, sale, delivery on any terms whatsoever and brokerage of drugs. (para. 39)

With reference to the United Nations Convention on Psychotropic Substances from 1971, the term ‘drugs’ include cannabis. This legal situation is in line with various international conventions. The ECJ further clarifies:

In that connection it is important to bear in mind that, since the harmfulness of narcotic drugs, including those derived from hemp, such as cannabis, is generally recognised, there is a prohibition in all the Member States on marketing them, with the exception of strictly controlled trade for use for medical and scientific purposes (para. 36)

How did the Dutch then legalise the cannabis?
So far, so clear. In view of these high barriers under European and international law, the question arises as to how the Dutch nevertheless managed to legalise the sale of cannabis for recreational purposes (i.e. not solely for medical and scientific purposes)?

The Dutch Narcotics Law (Opiumwet) explicitly prohibits in Article 2 the possession of narcotics, including cannabis and its derivatives (Art. 3), except for medical or scientific purposes and subject to prior authorization. The fact that Dutch authorities nevertheless tolerate the sale in coffee shops (so-called gedoogbeleid) is based on the opportunity principle. This principle gives the Dutch investigating authorities discretionary power in deciding which offences to prosecute and which not. A number of considerations can play a role, such as criminal policy priorities, capacity reasons, prospective of clearing, efficiency considerations or the seriousness of the offences to be prosecuted. Everything that does not fall under these criteria is basically left undone, i.e. not prosecuted.

The full scope of the opportunity principle only becomes clear, however, when one considers its counterpart in Germany: the principle of legality. This is the guiding principle in most EU Member states. Put simply, this principle forces the German law enforcement authorities to prosecute every criminal offence that comes to their attention. The principle is deeply rooted in the German understanding of the rule of law the Rechtsstaat. German law is very serious about this obligation, which is reflected in the fact that police officers can be prosecuted for obstruction of justice if they fail to investigate a crime. It makes perfectly sense: The legislators creates criminal laws. Police officers and prosecutors as part of the executive power enforce these laws. There is no room for discretion.

However, with regards to the implementation of the principle in legal practice, the old German saying applies: The soup is not eaten as hot as it is cooked. Not every criminal offence, no matter how minor, is prosecuted with the full force of the law. Particularly when it comes to minor offences the principle of opportunity applies. For example, with regards to cannabis although criminalized (with the exception consumption) the possession of small amounts is tolerated. Since Germany is federal state, this tolerance varies from state to state but it in Berlin an amount of 16 grams cannabis is still considered a tolerable offence. This is more then one can (legally) buy in a Dutch coffee shop.     

The Schizophrenia of Dutch Cannabis Legalisation
What does this all mean with regard to the question of legalising cannabis in Germany? Once again, it is worth taking a look at the reasoning of the ECJ. First of all, it states that the introduction of narcotics into the economic and commercial traffic of the Union outside a strictly supervised trade in the context of sales in coffee shops is prohibited (para. 42).

That finding cannot be impugned by the fact that, as is apparent from paragraphs 12 to 14 of the present judgment, the Kingdom of the Netherlands applies a policy of tolerance to the sale of cannabis, even though trade in narcotic drugs is prohibited in that Member State. It is apparent from the case-law of the Court that such a prohibition is not affected by the mere fact that, in view in particular of their limited manpower and means, the national authorities responsible for implementing that prohibition give lower priority to bringing proceedings against a certain type of trade in drugs, because they consider other types to be more dangerous. Above all, such an approach cannot put illegal drugs dealing on the same footing as economic channels which are strictly controlled by the competent authorities in the medical and scientific field. The latter trade is actually legalised whereas illegal dealings, albeit tolerated, remain prohibited […] (para 43).

These two paragraphs of the judgement sum up the schizophrenia of half a century of Dutch cannabis legalisation. The sale of cannabis in coffee shops is only possible because the goal was to prosecute large-scale trafficking - the very trafficking that made small-scale sales possible in the first place. The prerequisite for this is the application of opportunity principle. Only this makes prioritizing of law enforcement possible. Thus, two problems arose that were recognized early on, but nevertheless ignored Dutch drug policies: first of all, the dangerous types of drug trafficking include precisely the production and trade of cannabis for non-scientific and non-medical purposes. Even though there has been talk for decades about licensed cultivation under state control, this is essentially a bluff. International and European law clearly opposes this. Second of all, the opportunity principle reaches its limits with regard to licensed cultivation. It does allow the sale of small quantities to be tolerated. Even a handful of houseplants for personal use can be ignored without a problem. However, the discretion is exceeded when it comes to large-scale cultivation, entire plantations and container loads of cannabis that are unloaded in the port of Rotterdam. Even under the relatively lax Dutch narcotics law, large-scale production and trafficking are serious offences that cannot simply made disappear by the prosecutor's discretion.

So, in order to meet international obligations on the one hand and to secure sales in the coffee shops on the other, the Dutch police have been practising a balancing act for years: every now and then, the illegal plantations in the country are busted and containers are intercepted in the ports. People like to talk about the police helicopters circling over Dutch cities during the first snowfall of the year: it is easy to identify the heat-intensive attic plantations. That's where the snow melts first. However, this fight against drugs never led to shortages in the coffee shops. Reasonably, priorities of law enforcement are on hard drugs, which are many times more dangerous. Drug gangs trained by the cannabis trade have established the country as a European hub for cocaine trafficking. The southern province of Limburg has become a something like Silicon Valley of ecstasy production.

A reality check
What does this mean for the legalisation of cannabis in Germany? Nothing good, it is to be feared. At least as long as international treaties and European law remains as it is. On thee one hand, the new German government cannot simply remove cannabis from criminal law and thus decriminalise production, sale and consumption. Anything outside of medical and scientific use and small amounts for personal use would simply violate European and international law. On the other hand, Germany does not have the option to tolerate the sale in coffee shops via the principle of opportunity, as the Dutch do. But even if so: this would not solve the problem of the supply side which even the pragmatic Dutch did not manage to tolerate – despite half a century they had time to do so.   

Resolving this dilemma is difficult from a legal point of view. Luxembourg has just had to make this experience. The small EU Member state started in 2018 with the promise to implement the full package of legalisation of cannabis (licensed cultivation, supply and sale). Today, three years later, there is not much left of this: consumption in the private sphere is permitted. You are allowed to grow a few plants in your living room. Everything else remains illegal. Some might ask: and what about Portugal? There all drugs are decriminalized. Well, not quite: If caught in Portugal with a less then a ten-days supply of drugs (hard and soft) one has to appear before panel composed of lawyers, social workers and medical professionals. These will primarily assess the addiction and encourage treatment for dependent drug users but may also impose a wide range of sanctions. Individuals possessing more than the ten-days supply (e.g. an amount of more than 2,5 grams of cannabis) will be referred to the criminal courts where they may be charged with drug trafficking. Needless to say: calling this a decriminalization of drugs or an innovative drug policy amounts to a big bluff.     

It remains to be seen whether the great ambitions of the German coalition will be subjected to a similar reality check. It would be a pity, if a legalisation-light, as in Luxembourg, would be the outcome. Chances have never been better to change the schizophrenic policies on soft drugs. However, it does not seem very realistic that this can be achieved somewhere soon. But then again: realism has never been a defining element of cannabis policies. One should not lose hope.