Germany: Legalization of cannabis commerce: these are the plans | Fieldfisher
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Germany: Legalization of cannabis commerce: these are the plans



A few weeks ago, the first concepts for the legalization of cannabis were published. In the process, a great howl from political and social ranks went through the press: On the one hand, the legalization is based on the premise that the European Commission agrees, and on the other hand, the concept does not go far enough.

Summary of the basic concept

  • Acquisition and possession of up to 30 grams of "pleasure cannabis" should remain exempt of prosecution.

  • Self-cultivation for personal consumption will be permitted: every adult may possess three female plants, which must be inaccessible to children and teenagers.

  • In the future, adults will be able to obtain the drug from certified sales outlets and maybe pharmacies.

  • The THC content is to be set at an upper limit for sales to 18- to 21-year-olds, if necessary. This is however in strong dispute.

  • A "cannabis tax" is to be introduced in such a way that the price including tax is close to the current black market price of around ten euros per gram.

  • Cross-border trade is not to be allowed, but mail-order sales to registered customers within Germany may be.

  • The government is also considering erasing cannabis offenses from the Federal Central Register - and "rehabilitation or amnesty schemes".

  • Upstream decriminalization is being rejected.

  • Prevention work is to be expanded.


And the black market?

The primary goal of cannabis legalization should be to prevent black market trafficking so that distribution can be controlled and economic profit can be made from the trade. Currently, some of the feared "stretched" products are circulated via the black market, which can cause psychological and physical harm to consumers. 
In this process, other substances that are harmful to health are added to the cannabis so that it looks greener, fresher, or more voluminous.
Government monitoring and certified distribution would avoid this danger, allowing for the controlled use of cannabis.
The originally envisaged THC upper limit of 15 percent for over 21-year-olds was rejected in the second draft, so that the effective fight against the black market has been advanced quite a bit with the new draft.
The FDP-Fraction (a party part of the coalition) considers a possession limit of 30 grams to be wrong. After all, one does not restrict the possession of alcoholic stimulants. However, the fact that this regulation would fuel sales on the black market is far-fetched.

German Health Ministry awaits feedback from the European Commission

The European Commission also plays an essential role in the legalization process. The Commission is now to conduct a preliminary examination of the project to determine whether it is compatible with EU law. By way of an "interpretation declaration," the Commission is to be convinced that the ideas are not only in line with the objectives of international agreements and treaties, especially concerning the protection of health and minors, but could even be better achieved. "If the Commission follows our path of controlled legalization, we will get a draft law based on the cornerstone paper," Karl Lauterbach, the German Health Minister, stated. So if everything goes smoothly, legalization could be expected in early 2024.
Critical voices are coming from the ranks of advocates of cannabis legalization: What would happen if legalization were rejected? Would Germany then give up?
Some call Karl Lauterbach's approach "giving up the reins", others see the involvement of the EU Commission at an early stage as a clever move. After all, they say, this would allow them to react quickly to proposed changes and hope for a mutually satisfactory outcome.
It remains to be seen how this approach will ultimately affect the outcome.

Possible hurdles under EU law

 At this point, there are three opinions from Bundestag lawyers in connection with cannabis legalization: One on the compatibility with international law (WD 2 - 3000 - 057/22), another on the "Requirements of European Union law concerning a Member State legalization of cannabis" (PE 6 - 3000 - 043/22) and an elaboration on the "Dealing with cannabis in the Netherlands" (WD 9 - 3000 - 1022/22).
In all three reports, however, the Bundestag lawyers refrain from assessing whether the traffic light can succeed in establishing compatibility with international law in the legislative process. Instead, they merely document the legal hurdles that the traffic lights might have to overcome.
  1. On the one hand, according to EU Framework Decision 2004/757/JHA, each Member State is in principle obliged to criminalize, among other things, the production, sale and supply "under whatever conditions" of narcotic substances such as cannabis. However, this only applies "if the aforementioned acts have been carried out "without appropriate authorization." 

  2. Further regulations under Union law to be observed with regard to the treatment of cannabis would result from the Protocol integrating the Schengen acquis ("Schengen Protocol"). The "Implementing Convention" based thereon obliges the States to "take all necessary measures with regard to the (...) supply of (...) cannabis and the possession of these substances for the purpose of supply or export, taking into account existing United Nations conventions, which are necessary to prevent illicit traffic in narcotic drugs".
Article 71 (2) of the implementing convention requires parties to "prevent the illicit export of narcotic drugs of all kinds, including cannabis products, and the sale, procurement, and distribution of such drugs, by administrative and penal means." Ultimately, Germany must also take appropriate measures to combat drug tourism. If Germany were to create a legal dispensary for cannabis soon, precautions would have to be taken to prevent the mass entry of cannabis consumers, especially from neighboring countries.

Why not just do it like the Netherlands?

In the Netherlands, the sale of cannabis is "formally illegal" but is not prosecuted within a tolerance limit (up to five grams of cannabis and a maximum of five cannabis plants). In all cases where a consumer is found with drugs, they would be confiscated by the police. In addition, since May 2012, owners of licensed coffee shops have been allowed to distribute cannabis exclusively to adult residents of the Netherlands.

This solution is simply out of the question for Germany - after all, the aim is to achieve comprehensive legalization.

Summary and conclusion

Cannabis legalization is unlikely to happen in the short and medium term. Concerns under international and European Union law, as well as the involvement of the EU Commission, are still delaying the process by several months and perhaps even years. A significant step towards legalization would only be taken when the EU Commission indicates its approval. Until then, however, there is nothing for us to do but wait and watch the proceedings.
Would you like to prepare for The cannabis legalization in order to enter the economic trade with your company as soon as this becomes possible? We will be happy to advise you!
Dennis Hillemann is a partner and specialist lawyer for administrative law in our German Public Regulatory Group. Tanja Ehls is a senior associate in our German Public Regulatory group; both advise companies in their various contacts with the state, oversee approval procedures and provide support in disputes.