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Is Cannabis Becoming Legal in Germany?

16.December 2021 | Lukas

Berlin traffic light is green with cannabis leaf

The headlines of the last weeks make the cannabis heart beat faster. If the German media is to be believed, the legalization of cannabis in the Federal Republic is just around the corner. The presented coalition agreement of the new German government announces a paradigm shift. It all sounds like a rosy future, but from a legal perspective, not all the lights are green yet.

The Initial Situation

Hardly any European country takes such strict action against cannabis, including commercial hemp, as Germany. German courts and prosecutors have been unwilling to compromise in recent years.

Cannabis for recreational purposes is prohibited in Germany unless it is commercial hemp or doesn't exceed a THC level of 0.2%. The BtMG states that abuse for intoxication purposes must be excluded. Under which circumstances an abuse for intoxication purposes is excluded remains open. This is a delicate situation, considering that criminal sanctions are linked to a vaguely formulated legal norm.  

With regard to the distribution of CBD products to consumers, the ECJ ruling of November 19, 2020 and the subsequent BGH ruling on the "Hanf Bar" have fundamentally changed the situation. The BGH ruled in March 2021 that a sale to end consumers is not categorically excluded. In this respect, a "revolutionary" ruling. However, many questions have not been clarified, in particular the question of the commercial handling of commercial hemp products has remained open. For the cannabis industry, trade remains a legal minefield.

The Coalition Agreement

So much for the status quo in Germany. Now there has been a change of government and the "Ampel"-coalition between the SPD, Bündnis 90/Die Grünen and the FDP has taken office. The coalition agreement presented heralds a change of heart:

«We are introducing the controlled distribution of cannabis to adults for pleasure purposes in licensed stores. This will control quality, prevent the transfer of contaminated substances and ensure the protection of minors. We will evaluate the law for social impact after four years.»

Coalition Agreement between the SPD, Bündnis 90/Die Grünen and the FDP. 2021. p. 88. Own translation.

The coalition agreement, as promising as it sounds, is nothing more than a declaration of intent at this point. These intentions must be turned into laws. This may take years and is not easy from a legal point of view.

The political driving force for actual implementation could be expected government revenues. A recent study by German economist Prof. Dr. Justus Haucap of Heinrich Heine University in Düsseldorf calculates a subsidy of 4.7 billion euros annually for the German state budget. The calculation is derived from the additional tax revenues and social contributions, as well as the savings in law enforcement and the judiciary. In addition, the study calculates 27,000 new jobs that cannabis legalization could bring. A lucrative package that also sells well politically. So far so good. What remains is a legal sticking point.

Legal Stumbling Blocks

The Ampel coalition wants to make controlled dispensing to adults for pleasure purposes possible. State-regulated quality assurance and a billion-euro subsidy for the public purse are no longer to be dispensed with. The announcement stands, the implementation is not yet concretized.

For a legalization some international obligations must be considered. A cannabis legalization for consumption purposes is strictly excluded by the "Single Convention on Narcotic Drugs" of the UN of 1961 and 1971.

As can be seen from the "Entwurf eines Cannabiskontrollgesetzes (CannKG)" of the Bündnis 90/Die Grünen of 2015, legalization would only be possible after the termination of these international treaties, and that only after a considerable waiting period. Winning a political majority for such a project is and remains difficult, Ampel or not.

How can it be that countries like Spain or the USA legally harbor stoners? The small but subtle difference probably lies in the state regulation of the market. Dispensing cannabis in coffee shops, like in Holland, or like the social clubs in Spain, are alternative models of regulation that are not based on a controlled market. This seems to be tolerated. In the case of Uruguay, however, the UN's International Narcotics Control Board (INCB) is stepping in. In contrast to Holland and Spain, Uruguay grants licenses for cannabis production, thus crossing the border into a state-regulated market. Legalization, as is the case in the US state of Colorado, for example, is best explained by the special position of the USA in world politics.

There seems to be room for maneuver in state policy, which more and more states are exploring. Germany will probably also find a way to come to terms with the UN convention. In view of this, however, the question then arises as to how contemporary a 60-year-old state treaty still is for a progressive drug policy.

Outlook

The explicit political will to strive for the legalization of cannabis, as expressed in the current coalition agreement, is an important sign. The commitment to dispensing to adults for pleasure purposes is a historic step towards cannabis legalization. Nevertheless, questions remain about implementation. The termination of state treaties is questionable and the time frame difficult to estimate. What remains (for now) is a benevolent commitment by the three governing parties.

At best, the cannabis industry will have to be patient. In principle, however, clear regulators are already desirable today. In particular, a clear commitment to commercial hemp with a THC content below 0.2% no longer seems as unrealistic as it did in the middle of this year.

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