As many know by now, Malta has been claiming to be the first country in the European Union to legalize the growth and consumption of cannabis. Here we shall take a look at the similarities and differences between the Maltese system and another ruleset governing the cultivation, possession and distribution of cannabis within the EU: that of the Netherlands.
A brief overview of the relevant provisions under Dutch law
Even though the Dutch have a reputation for being progressive, especially when it comes to drug enforcement laws, the way in which things are arranged, legally, are not as liberal as one might think. In 1953, the Netherlands outlawed possession of cannabis, following the national authorities’ bans in the US and other parts of Europe. The Opium law (the Dutch law that governs illicit consumable substances), was later divided into schedule I and II”, giving rise to the categorization of ‘hard’ and ‘soft’ drugs, respectively. The second list always carried the Hemp plant and any part of it from which the resin was not removed, with exception of the seeds, and any product made from the resin (referred to by law as ‘hashish’). In 2011, any product containing more than 15% THC ( tetrahydrocannabinol) has even been notched up to schedule I, effectively classifying most types of commercial cannabis products as hard drugs. By the letter of the law, this makes import, cultivation, transport and sales of the substance illegal, with maximum sentences reaching up to 2 years imprisonment and a fine of up to €80,000, which is added to a confiscation claim equal to the amount of financial gain estimated to have been made from any illegal activities.
So how have they maintained a status as possibly the most weed-friendly European country, despite the clearly illegal status?
Around the 1970s, the Dutch started differentiating between hard and soft drugs and decriminalized the possession and consumption of small amounts of cannabis.
On top of that, policies were created to “tolerate” the sale of marijuana at selected points of sale, given they obtained a valid permit from the mayor and that they upheld a shortlist of unofficial criteria aimed at ensuring the full restriction of access to minors, avoiding any form of advertising, ensuring that the activities do not cause any public nuisance and that no other drugs, including alcohol, are sold. Inside the walls of these ‘coffee shops’ only, there is an exemption to this law and the sale, purchase and consumption of up to 5 grams per customer is tolerated by law enforcement.
This exemption, however, does not stretch itself to cover the supply chain of these shops: larger scale cultivation and transport of weed is still fully illegal. In fact, those supplying coffee shops are still at risk of being taken to court and sentenced to large fines and imprisonment.
This mismatch in law and practical execution has led to the infamous Dutch “backdoor policy”, which forces coffee shops operating in the country to keep the grow-and-supply part of their businesses fully in the shadows.
Though much critiqued, this system has remained the status quo for years, until a bill was passed in 2017 that set into motion an attempt to fix its faults. It was coined “Experiment Closed-Coffee-Shop-Chain”. The project aims to allow support for a limited number of appointed cannabis-growing businesses that will receive a similar exemption to the law to allow them to perform the tasks that are now done in secret, but then under heavy scrutiny. These companies will supply all coffee shops in the now 10 municipalities that are participating in the experiment (out of 345 total) while maintaining strict product standards. The end goal is to expand this project to allow for the entire process, from cultivation to sales of recreational cannabis, to exist under authorized regulation, nationwide.
The exact terms of the arrangements have been discussed for years and many coffee shop owners, as well as legislators, are still dissatisfied with the current version, which includes an obligation to grow cannabis within the country and a restriction on selling to non-residents. Some are claiming the experiment will not fix the issues it intends to fix while further increasing the burden of compliance on coffee shops.
However, none of this is meant to diminish the upsides of these types of policies, which have shown to reduce incarceration of minority users, cost of law enforcement, benefit public health through the regulation and generate tax income. [The costs and benefits of cannabis control policies (nih.gov)]
How does Malta’s new system compare?
Since Parliament’s approval of Bill 241, amendments have been made to existing laws governing the legal status of recreational cannabis use and related sanctions, which will determine the way in which the Maltese authorities are to handle the different aspects regarding the Maltese cannabis scene following these changes.
Firstly, a new regulatory body will come into being that will perform duties and functions related to the oversight of the recreational use of the drug: The Authority on the Responsible Use of Cannabis. This authority will establish policies and manage the day to day tasks of governing this sector, such as issuing permits, monitoring cannabis usage and stimulating its responsible use by for instance organizing campaigns, proposing guidelines and improvements to the system and imposing, collecting and managing fines regarding breaches of cannabis regulations.
The bill also makes changes in the permitted amount of cannabis that an individual may have on them, from 3 to 7 grams, as long as he/she is not underage. (Anything beyond 7 grams is at risk of being confiscated, and at 28 grams or more possession will remain punishable). Possession of more than the legal amount can still lead to criminal charges, and public recreational use is still not tolerated.
Thirdly, cultivation of up to 4 plants (provided they are kept out of sight of the general public) and storage of up to 50 grams will no longer be seen as a criminal act. Amounts exceeding this weight may be seized by authorities.
In addition to these rules, it will now be permitted for individuals to start organizations that dedicate themselves to the cultivation of cannabis and its distribution to their members. However, unlike most similar systems, only individuals (rather than companies) can be registered owners, and no profit is to be made from these activities.
Lastly, an important addition to the bill is the move to strike criminal records of anyone who has been convicted of possession of an amount that is now legal in the country. Past offenders of this law will be able to submit an application to request the de-registration of the conviction from their conduct certificate.
The practical implications of these new provisions
Despite the fact that some other European countries have been known to tolerate Cannabis’ usage to varying degrees for years, Malta really is the first European country in the Union (omitting the Medical variety) that managed to change the plant’s legal status in the actual law. While these changes do not fully legalize cannabis, they do effectively create an unprohibited zone for the activities covered above as long as no restrictions are violated.
Mariella Dimech, executive chairperson for the Authority on the Responsible use of Cannabis, has pointed out that the new legislature purposefully chose this approach over what other member states such as the Netherlands have done in the past, specifically to avoid some of the downsides that are known to come with the mixed ‘illegal-but-tolerated’ approach. In the Dutch approach there is no official regulatory body and a lack of verifiable information about the substance being sold, leading to not only a decrease in product and risk awareness among users, but also to coffee shops themselves being able to take less responsibility for their services, because they cannot always know where their product has been. In addition, it helps sustain a type of ecological niche for criminal activity that the ‘Maltese system’ will likely not permit due to lack of incentive for street dealers.
Another benefit of the Maltese approach is that citizens abiding by the new legislation are not considered to be active in criminal spheres. When the substance is fully prohibited, however, not only are those responsible for the open ‘’tolerated’’ distribution considered already criminally active and must then continually prove their innocence to avoid sanctions, they must at the same time have regular dealings with members overseeing their supply chain, which are often by necessity organized criminal groups.
Other than the strict non-profit rule that Malta has decided on, Dutch coffee shops and Maltese Cannabis clubs will have very similar criteria they must maintain in order to steer clear of criminal proceedings, such as not allowing minors to enter, restricting their stock to a maximum of 500 grams in the premises, a maximum amount allowed to be sold per customer (7g per day or 50g per month), not being allowed to advertise their products and a proximity restriction near schools.
If the Maltese authorities do this right, they might have a chance to set a new precedent for the most effective marijuana policy within the EU. Other countries that are gearing up to follow suit with their own legislation very soon might be able to learn from what is being accomplished here.
The article is intended to serve as a general guide on the subject matter. For further information and guidance on the subject we recommend seeking professional assistance.