‘No consequences’? Treaties are legally binding and anchored in European legislation.

More and more countries are moving towards the regulation of recreational cannabis. In the Netherlands, discussions about legalization are ongoing, the experiment is underway, and in Germany, initial steps have already 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 posed by 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 criminalize drug trafficking unless it involves medical or scientific use. As such, it directly opposes national experiments with regulated recreational cannabis markets. Entrepreneurs preparing for a regulated market must understand that without adjustments to this legal framework, any form of recreational cannabis regulation remains legally vulnerable and potentially in conflict with European law.

The Framework Decision: Anchored in International Obligations

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

The link to the UN treaties is explicitly established in several places:

The Schengen acquis directly references the UN drug conventions (Article 71.1).
Framework Decision 2004/757/JHA defines ‘drugs’ as substances covered by the scope of the 1961 and 1971 UN conventions (Article 1.1).
The earlier Joint Action 96/750/JHA obligated member states to apply their obligations under the UN conventions of 1961, 1971, and 1988 "strictly and effectively" (Article 7).

Although this Joint Action was formally repealed in 2016, the Framework Decision was explicitly designed to remain fully "in keeping with the spirit of the Joint Action" (European Commission, 2001).

According to a legal analysis by Radboud University, this all 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 route of exception—such as an inter se agreement or a reservation to the UN treaties—it may not recognize a 'right' that conflicts with these treaties. Thus, the Framework Decision is not merely a European obligation but also a direct extension of the international law to which Member States are bound. Although drug policy has largely remained within national jurisdiction in the EU, the Framework Decision 2004/757/JHA is an exception. Adopted on 25 October 2004, this decision aims to harmonize criminal provisions and minimum penalties for drug trafficking across the Union. Article 2.1 requires Member States to criminalize:

"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", alsook "the cultivation of opium poppy, coca bush or cannabis plant", wanneer deze handelingen worden verricht "without right".

The term "without right" directly refers to obligations under international treaties, particularly the 1961 and 1971 UN conventions. This means that national legislation legalizing recreational use, without first amending the international treaties, is by definition in conflict with this European obligation. As researchers from Radboud University state:

"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."

Thus, the provision constitutes a particularly strong obstacle to national legalization of cannabis for non-medical use.

"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 negotiations on the Framework Decision, the Dutch coffeeshop policy was a sensitive 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 issue was resolved by including Article 3.2, allowing member states, under specific conditions, to exclude certain behaviors—such as possession and sale in coffeeshops—from criminal liability. The Netherlands can maintain this policy precisely because these activities are still formally illegal but 'tolerated'; in other words, no active enforcement takes place. Legally speaking, this does not amount to legalization, but rather a pragmatic enforcement strategy. This nuance is crucial: as long as activities like possession or small-scale sales of cannabis formally remain criminal offenses, they can remain outside the scope of 'legalization' under the Framework Decision.

However, as soon as a member state decides to permit a fully regulated market—with licenses, taxation, and legal cultivation—this legal flexibility disappears. Such a step would imply that the activities involved are no longer criminalized and thus allowed 'with right' without a legitimate basis in international or European law. This crosses the boundary set by the Framework Decision.

European member states are not only bound by the UN treaties, but also by European legislation explicitly embedding these treaties. The Schengen acquis directly references the UN drug conventions, and the Framework Decision 2004/757/JHA defines 'drugs' based on the 1961 and 1971 treaties. Earlier EU legislation, such as Joint Action 96/750/JHA, also required member states to strictly and effectively adhere to their treaty obligations.

Framework Decision 2004/757/JHA, adopted on October 25, 2004, obligates member states to criminalize cannabis trafficking unless it is for medical or scientific use. During the negotiations leading to this Framework Decision, the Dutch coffeeshop policy was even one of the main obstacles to reaching an agreement. As the European Parliament noted in 2004:

"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."

This Framework Decision establishes minimum standards for defining criminal offenses and penalties related to illicit drug trafficking, aiming to harmonize member states' legislation. Consequently, it constitutes a binding legal framework within the European Union, directly tied to international treaty obligations on drug control. Regulating cannabis for recreational use is therefore in conflict with this framework.

Without an international legal basis, a regulated market is vulnerable

Many entrepreneurs in the cannabis sector invest considerable time, money, and reputation in preparation for a regulated market. But if this regulation rests on uncertain legal grounds, they risk:

Reversal of policies under political or legal pressure;
Restrictions on export or international collaboration;
Loss of trust from investors and financial institutions;
Complex legal procedures in cross-border activities.

A crucial distinction between the UN system and EU law is that EU law contains enforceable sanction mechanisms. The European Commission has a mandate to oversee compliance with EU law and possesses powerful instruments: ranging from informal dialogue (EU Pilot) to formal infringement procedures before the Court of Justice of the European Union (CJEU). Member states themselves may also initiate proceedings or pursue legal action against each other.

Unlike the International Narcotics Control Board (INCB)—which addresses countries such as Uruguay and Canada but cannot impose sanctions—the European Commission can indeed levy fines and exert legal pressure. Consequently, legal infringements within the EU present a direct risk for entrepreneurs operating in markets potentially in conflict with EU law.

Consequences of non-compliance

The International Narcotics Control Board (INCB) monitors compliance with the 1961 and 1971 conventions. In cases of non-compliance, the INCB can urge countries to take corrective measures if treaty objectives are seriously jeopardized. Yet, the INCB's powers are limited. Under the 1988 convention, to which the EU itself is a party, the INCB has only a technical role concerning precursors (Article 12) rather than the entire convention. The INCB has never imposed economic sanctions, though countries can face political pressure, diplomatic engagement, public reprimands in annual reports, and reputational harm—as experienced by Uruguay and Canada following cannabis legalization.

The gravest long-term consequence is that persistent treaty violations undermine respect for international law. This erosion can weaken countries' negotiating positions on other crucial issues, such as human rights, territorial integrity, or international dispute settlement procedures. International law is not an à-la-carte menu: countries that expect others to adhere to the law must themselves comply.

European Union

In contrast to the UN system, the EU possesses formal, enforceable sanction mechanisms. Under Article 17(1) of the Treaty on European Union (TEU), the European Commission is responsible for overseeing compliance with EU law.

Violating or ignoring the treaty is not without consequences

Unlike the UN conventions, violations can lead to infringement procedures initiated by the European Commission, ultimately resulting in fines imposed by the European Court of Justice (ECJ). Other Member States can also act if they believe a country is breaching the Framework Decision. They may:

File a complaint with the European Commission, which may then initiate infringement proceedings;
In extreme cases, bring the matter directly before the Court of Justice of the EU themselves.

Unless Member States have a valid exemption, such as a treaty reservation or an amendment to their international obligations, cannabis regulation remains legally "without right". This means that Member States choosing to regulate cannabis for recreational use are essentially breaching EU law.

The European Commission has already taken action in similar cases. For example, it initiated infringement proceedings against Hungary for failing to adhere to a binding EU position on a UN cannabis vote, despite Hungary's conservative stance. Luxembourg has even temporarily paused its legalization plans due to these legal obstacles. Germany has chosen a gradual legalization approach, partly driven by legal concerns over the Framework Decision. Amending this Framework Decision is particularly challenging, as it requires unanimous approval from all EU Member States. This means just one opposing vote is sufficient to block reform entirely.

The message is clear: entrepreneurs looking to build a sustainable cannabis market must also establish a solid legal foundation. This foundation will remain absent until the Framework Decision is amended or a legally valid exemption pathway is pursued.

Referenties

Boister, N. & Jelsma, M. (2018). Inter se modification of the UN drug control conventions to facilitate cannabis regulation.
Dörr, O. & Schmalenbach, K. (2012). Vienna Convention on the Law of Treaties: A Commentary.
European Commission (2001). Explanatory Memorandum to the Framework Decision 2004/757/JHA.
European Commission (2017). Communication on EU law: Better results through better application.
European Parliament (2004). Debates on the Framework Decision 2004/757/JHA.
Hansen, D. (2021). Statement by Minister of Justice Sam Tanson on legalisation delay.
INCB (2022). Annual Report.
Jelsma, M. (2022). Cannabis regulation vs international and EU law: Legal tensions and compliance options. In rausch, 11(3/4), pp. 92–101.
Kempen, P.H.P.H.M.C. van & Fedorova, M. (2022). Legal analysis for the Radboud University on cannabis regulation under EU and international law.
United Nations (1973). Commentary on the 1971 Convention on Psychotropic Substances.
United Nations (1974). Proceedings of the Conference of the Parties to the 1961 Convention.
United Nations (1976). Commentary on the 1961 Single Convention.
United Nations (1998). Commentary on the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.