'No Consequences'? Treaties are legally binding and enshrined in European law

More and more countries are moving towards the regulation of recreational cannabis. In the Netherlands, there is talk of legalisation and the experiment.

More and more countries are moving towards the regulation of recreational cannabis. In the Netherlands, there is talk of legalisation, the experiment is ongoing, and in Germany, the first steps have been taken. For entrepreneurs, this sounds like good news. But behind this optimism lies a legal reality that is rarely discussed. Of course, there are the well-known obstacles of the UN drug conventions and the Schengen Agreement, but there is also a lesser-known – and legally more powerful – obstacle: Framework Decision 2004/757/JHA.

This binding European Framework Decision obliges member states to criminalise drug trafficking, unless it is for medical or scientific use. This puts it directly at odds with national experiments involving regulated recreational cannabis markets. Entrepreneurs preparing for a regulated market must understand that, without amendment of this legal framework, any form of regulation for recreational use is legally vulnerable and potentially contrary to European law.

The Framework Decision: Rooted in international obligations

Framework Decision 2004/757/JHA does not stand alone. It is part of a complex web of legal obligations that refer directly to international treaties. All EU member states are parties to the three UN drug conventions, and this is even a requirement for new member states wishing to join the Union. The EU itself is a party to the 1988 UN Convention, albeit only for provisions on precursors (Article 12), making it less relevant to cannabis policy.

The link with the UN conventions is explicitly made in several places:

• —The Schengen acquis refers directly to the UN drug conventions (Article 71.1);
• —Framework Decision 2004/757/JHA defines 'drugs' as substances falling within the scope of the 1961 and 1971 UN conventions (Article 1.1);
• —The earlier Joint Action 96/750/JHA obliged member states to apply their obligations under the 1961, 1971 and 1988 UN conventions "strictly and effectively" (Article 7).

Although this Joint Action was formally repealed in 2016, the Framework Decision was designed to be fully "in keeping with the spirit of the Joint Action" (European Commission, 2001).

According to a legal analysis by Radboud University, all this means that:

EU Member States can only recognize a 'right' under Art. 2.1 of 2004/757/JHA if this does not violate their obligations under international law.

This means that as long as a member state does not follow a legitimate exceptional route — for example, through an inter se agreement or a reservation to the UN conventions — it may not recognise a 'right' that is contrary to those conventions. Thus, the Framework Decision is not only a European obligation but also a direct extension of international law to which member states are bound. Although drug policy in the EU has largely remained a national competence, Framework Decision 2004/757/JHA constitutes an exception. This framework decision was adopted on 25 October 2004 and aims to harmonise criminal provisions and minimum penalties for drug trafficking within the Union. Article 2.1 stipulates that member states must criminalise:

The production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of drugs, also the cultivation of opium poppy, coca bush or cannabis plant, when these acts are committed without right.

The term "without right" refers directly to international treaty obligations, particularly the 1961 and 1971 UN conventions. This means that national legislation that legalises recreational use, without first amending the international conventions, is by definition contrary to this European obligation.

A legally regulated cannabis market with state-licensed cultivation and sales to adults for non-medical use clearly falls within the scope of 2004/757/JHA and would constitute a breach 'when committed without right'.

During the negotiations on the framework decision, the Dutch coffeeshop policy was a contentious issue. The European Parliament noted:

The Dutch determination to be able to continue to allow the possession of small quantities of soft drugs and for such drugs to be sold in 'coffee shops' was one of the main problems to resolve in order to reach a final agreement. (European Parliament, 2004)

Ultimately, this was resolved by allowing, in Article 3.2, room for member states to exclude certain behaviours from criminal liability under certain conditions — such as possession and sale in coffeeshops. The Netherlands can pursue this policy because, formally, these are still criminal acts that are merely 'tolerated', meaning that active enforcement does not occur. In a legal sense, therefore, it is not a matter of legalisation, but of a pragmatic enforcement strategy. This nuance is crucial: as long as behaviours such as the possession or sale of small quantities of cannabis formally remain criminal, they can remain outside the scope of 'legalisation' in the sense of the Framework Decision.

However, as soon as a member state decides to permit a fully regulated market — with licences, tax structures, and legal cultivation — this legal space disappears. That would, after all, imply that the behaviours in question are no longer criminal, and are therefore permitted 'with right' without a legal basis existing in international or European law. In doing so, one crosses the line set by the Framework Decision.

Without an international legal basis, a regulated market is vulnerable

Many entrepreneurs in the cannabis sector invest time, money, and reputation in preparation for a regulated market. But if that regulation is legally precarious, they run the risk of:

• —policy reversal under political or legal pressure;
• —restrictions on export or international cooperation;
• —distrust from investors and financial institutions;
• —complex legal procedures for cross-border activities.

An important difference between the UN system and EU law is that the latter does indeed have enforceable sanction mechanisms. The European Commission is tasked with monitoring compliance with EU law and has powerful tools at its disposal: from informal dialogue (EU Pilot) to formal infringement procedures before the Court of Justice of the EU. Member states can also take action themselves or sue each other.

Unlike the INCB – which does address countries like Uruguay and Canada, but cannot impose sanctions – the European Commission can actually impose fines and exert legal pressure. Thus, legal violations in the EU pose a more direct risk to entrepreneurs operating in a market that may be contrary to EU law.

Consequences of non-compliance

The International Narcotics Control Board (INCB) is the supervisory body for compliance with the 1961 and 1971 conventions. In cases of non-compliance, the INCB can call on countries to take corrective measures if the objectives of the convention are seriously jeopardised. Nevertheless, the INCB's powers are limited. Under the 1988 convention, to which the EU is also a party, the INCB has only a technical role with regard to precursors (Article 12) and not the entire convention. The INCB has never imposed economic sanctions, but countries may face political pressure, diplomatic discussions, public reprimands in annual reports, and reputational damage. Uruguay and Canada experienced this after their legalisation of cannabis.

The most serious long-term consequence is that structural treaty violations undermine respect for international law. This can weaken a country's negotiating position on other issues, such as human rights, territorial integrity, or legal proceedings in international disputes. International law is not an à-la-carte menu: those who want others to abide by the law must do so themselves.

European Union

In contrast to the UN system, the EU has formal and enforceable sanction mechanisms. The European Commission is responsible for supervising the application of EU law under Article 17(1) of the Treaty on European Union.

Violation or disregard of the treaty not without consequences

Unlike the UN conventions, a violation can lead to an infringement procedure by the European Commission and ultimately to fines via the European Court of Justice. Other member states can also take action if they believe a country is violating the Framework Decision. They can:

• —lodge a complaint with the European Commission, which can then decide to initiate an infringement procedure;
• —in extreme cases, themselves bring a case before the Court of Justice of the EU.

As long as member states cannot cite a valid exception, for example through a treaty reservation or amendment of international obligations, regulation is legally "without right". This means that member states that regulate are in principle infringing European law.

The European Commission has already taken action against this. For example, an infringement procedure has been initiated against Hungary because it failed to adhere to a binding EU position on a UN vote concerning cannabis, despite Hungary pursuing a conservative course. Luxembourg even temporarily suspended its legalisation plans due to these legal obstacles. Germany has opted to implement its legalisation approach incrementally, partly due to legal concerns about the Framework Decision.

Furthermore, amending this framework decision is particularly difficult: it can only be amended by a unanimous decision of all EU member states. This means that one dissenting vote is enough to block reform.

The message is clear: anyone who wants to build a future-proof cannabis market must also build its legal foundation. And that foundation is missing as long as the Framework Decision has not been amended or a legally valid exceptional route has not been created.