Why Germany is scaling back plans to Legalize Cannabis
Germany is set to scale back its initial plans to legalize cannabis amid legal hurdles at the European level.
After an initial optimism signaled by Health Minister Karl Lauterbach, who announced a bill to legalize cannabis in the coming weeks following "very good feedback" from the European Commission, Germany has recently announced to revise its plans on how to regulate the legal industry.
Lauterbach announced last week the will to introduce a revised version of the plan to legalize cannabis.
This decision was likely made to make the proposal more acceptable under EU regulations, as a more comprehensive plan for legalizing cannabis sales throughout the country would not comply with these regulations.
As per the initial proposal, individuals aged 18 and above would have been permitted to possess 20 to 30 grams of cannabis, which they could buy from federally authorized stores and, potentially, pharmacies. Additionally, people would have been allowed to cultivate up to three plants for personal consumption, following specific guidelines to prevent minors from accessing them.
But now, the revised policy reported by local news outlets would allow restricted cannabis sales under a regional pilot program for a duration of four years, similar to programs recently implemented in Switzerland and the Netherlands.
This approach would enable authorities to evaluate the effects of reform in both urban and rural areas. If the trial is successful, it may be extended to other regions of the country.
In short, Germany's revised plan aims to avoid breaching EU regulations by adopting a pilot project for the sale of cannabis products, inspired by the Swiss model, and by decriminalizing cannabis possession and domestic cultivation, inspired by Malta's recent legislation, as well as by establishing cannabis social clubs similar to those in Spain, which don't require EU approval.
While the details of the cultivation rules are still being worked out, sources indicate that the proposal may allow individuals to possess between 20 and 30 grams of cannabis. Additionally, non-commercial growers could potentially establish cannabis clubs like those in Spain.
The day before the updated proposal was revealed, Germany's Social Democratic Party, a member of the traffic light coalition, voiced skepticism regarding the initial plan. The party stated that it did not believe "comprehensive legislation is evidently feasible in the near future due to European Law."
Germany's plan to legalize cannabis is essential in understanding how other EU member states can move toward legalizing adult-use cannabis, as it is expected to set a precedent for how to do so within European legal frameworks.
Jason Adelstone, a lawyer at Vicente LLP, a law firm specializing in cannabis and psychedelics, explained that other countries that have legalized cannabis for recreational purposes, such as Canada and Uruguay, have interpreted international treaties in a way that enables them to legalize cannabis based on the health, safety, and well-being of their citizens, without repercussions at the international level.
However, the situation in Germany is different due to its membership in the EU.
Germany is bound by specific regulations that may make it difficult to legalize cannabis, and violating these rules could result in severe consequences for the country.
Adelstone explained that if Germany were to breach EU regulations, it could face economic sanctions.
The severity of the consequences would depend on the discussions that take place throughout the process, which could be lengthy. Negotiations with other member states would likely occur to avoid a formal hearing, and the outcome of these talks would determine the extent of the sanctions imposed on Germany.
The Schengen Agreement, which established an area in which internal border checks have mostly been eliminated, would not pose a threat to Germany's legalization plans because the original cannabis legalization plan called for the production of cannabis within the country's borders and prohibited imports and exports.
However, the main obstacle to Germany's plan is the Council Framework Decision 2004/757/JHA, which requires all EU countries to take action to penalize any deliberate actions related to drug trafficking and precursors.
Adelstone explained that the EU framework decision requires member states to ensure that cannabis production, manufacture, extraction, and sale are punishable in their countries. However, there is a debate over whether Germany's cannabis legalization plan would be deemed legitimate, particularly in relation to full commercialization and retail sales complying with UN law, whereas social club models seen in Spain may fall under the framework decision.
Another challenge for Germany is that as part of the EU framework, member states are required to comply with UN law. Therefore, the commercialization of adult-use cannabis is strictly prohibited under the 1961 Single Convention on Narcotics Drugs.
"The only way a country could move forward under UN law is under recognized exceptions. Those exceptions can include amending the treaties or removing cannabis from the treaties. But neither of those are realistic," Adelstone said.
However, there are few international legal options available to Germany to regulate the sale of cannabis products for recreational use that have legal justifications.
"The two most realistic options are controversial but have legal justifications," Adleston said.
One such option is inter se modification, a procedure permitted under Article 41 of the 1969 Vienna Convention.
The inter se modification procedure allows two countries that have signed the Single Convention to enter into a separate agreement between themselves as long as they maintain the intent of the original treaty.
Adelstone cited Canada and Uruguay as examples of two countries that could enter into an inter-state agreement for the international trade of cannabis between them, allowing for adult-use cannabis sales without violating the Single Convention.
Another option for Germany would be to withdraw from the Single Convention, make a reservation for cannabis, and then re-accede.
However, if one-third of the countries vote against their withdrawal, Germany would be prevented from doing so.
Adelstone mentioned the case of Bolivia, which withdrew from the conventions in 2011 regarding the coca plant, then re-acceded in 2013 after making a reservation for the plant in its natural state, no longer requiring compliance with the Single Convention.
Both options require time to achieve in the short term, so the scaled-back German plan, which is expected to be announced as a bill in the first quarter of 2023, appears to be the more feasible short-term plan.
However, the revised plan may require giving up the sale of cannabis products temporarily, with the ultimate aim of achieving full legalization, akin to the state-level legalization in the United States.
Adelstone suggests that although there may be further challenges at the European level, the proposed options for fully legalizing cannabis in Germany could ultimately allow for the sale of cannabis products in the country.
"Germany wants to fully legalize cannabis. I hope they provide the legal justification we were hoping for. It's not a simple process, but interstate modification and withdrawn recession are legally justified," he said.
