Tag: Germany

Germany’s Federal Court of Justice issued a decision this week that could have potentially huge ramifications for the nation’s emerging cannabidiol (CBD) industry. Two defendants were originally convicted in 2021 in a lower court in Berlin for selling large quantities of CBD flower, and that decision was upheld by the higher Court.

Low-THC cannabis flower that is high in CBD is widely available in not only Germany, but throughout Europe. ‘Cannabis light,’ as it is often referred to, contains very little THC, which is what the defendants were buying and selling. Unlike THC, CBD is not associated with inducing intoxicating effects among those that consume it.

Unfortunately, the lower court was not swayed by any of the defendant’s arguments, and neither was the Federal Court of Justice. Below is a press release from the Federal Court of Justice regarding the decision, translated from German to English.

It contains the details regarding the Court’s legal reasoning behind its decision, which seems to be resulting in a lot of head scratching among the international cannabis community. At the very least, the decision will likely send some level of a chilling effect across Germany’s emerging CBD industry, as the legal reasoning can also be applied to a large number of other people and entities.

This decision further highlights the need for comprehensive cannabis policy reform in Germany:

The Leipzig-based 5th Criminal Division of the Federal Court of Justice has rejected the appeals of two defendants against a Berlin judgment in which they were sentenced to imprisonment in particular for trading in CBD flowers.

The Berlin Regional Court sentenced one of the accused to total imprisonment of three years, nine months and ten months (the execution of which it suspended on probation) for, among other things, gang dealing in large quantities of narcotics in two cases and the other for aiding and abetting in this.

According to the judgment of the district court, the main defendant – with the support of the second defendant and an unknown third party – acquired 60 kg of cannabis plant flowers with a high proportion of the active ingredient cannabidiol (CBD) in September and October 2019. He sold the CBD flowers to wholesalers for a profit, who in turn sold them to late sales outlets and CBD shops.

The comprehensive review of the judgment prompted by the factual complaint did not result in any legal errors to the detriment of the accused. In particular, the district court rightly classified the CBD flowers as narcotics within the meaning of Annex I to the Narcotics Act (BtMG). The flowers did not fall under a cannabis exemption. They did have an active ingredient content of 0.2% THC and thus did not exceed the limit specified in the exemption. However, there was no requirement that abuse for intoxicating purposes must be ruled out. If the flowers were heated during baking, for example, this led to the release of further THC, which could produce a cannabis intoxication when consumed by the end user. The main defendant was aware of this, but his assistant was indifferent.

Contrary to the opinion of the appeal, the conviction for trading in CBD flowers does not constitute a violation of the free movement of goods under European law (Art. 34 TFEU) that the flowers were legally produced in Spain. Because the flowers were narcotics, with which trade is prohibited from the outset and which are therefore not subject to the free movement of goods. The standards of European law on which this assessment is based were so clear according to the relevant legal norms and so far clarified by the case law of the Court of Justice of the European Union (ECJ) that there was no reason to obtain a decision from the ECJ on compatibility with European law (Art. 267 TFEU ).

In view of the possibility of a health-endangering misuse of CBD flowers for intoxication purposes, the Senate did not see any violation of the constitutional prohibition on excess in the punishability of trading in them.

The judgment of the Berlin Regional Court is now final.

Lower court :

LG Berlin – Judgment of July 7, 2021 – (510 KLs) 254 Js 38/20 (9/20)

The relevant regulations are:

Annex I to § 1 Para. 1 BtMG (non-marketable narcotics)

Cannabis (marijuana, plants and plant parts of plants belonging to the genus Cannabis)

– except (…)

b) if (…) their tetrahydrocannabinol content does not exceed 0.2 percent and they are used (except for cultivation) exclusively for commercial or scientific purposes that exclude misuse for intoxicating purposes. (…)

Art. 34 TFEU Ban on import restrictions

Quantitative import restrictions and all measures having equivalent effect are prohibited between Member States.

Art. 36 TFEU exceptions

(1) The provisions of Articles 34 and 35 shall not preclude import, export and transit bans or restrictions which (…) are justified to protect human health and life (…).

2. However, such prohibitions or restrictions shall not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

Article 267 TFEU

(1) The Court of Justice of the European Union decides by way of a preliminary ruling

a) on the interpretation of the contracts,

b) on the validity and interpretation of the acts of the Union institutions, bodies, offices or agencies. (…)

(3) If such a question is raised in pending proceedings before a national court, the decisions of which are themselves no longer subject to appeal under national law, that court shall be bound to refer the matter to the Court of Justice.

Karlsruhe, October 12, 2022

When it comes to the push for adult-use cannabis legalization there’s no place on earth that is as exciting as Germany right now. Late last year a new coalition government was elected in Germany, and the ‘Traffic Light Coalition,’ as it is commonly referred to, made it clear very quickly that it sought to legalize cannabis for adult use and launch a regulated market. Speculation has swirled ever since regarding how long it will take for Germany to make the transition, and the nation’s Federal Finance Minister Christian Lindner (FDP) recently weighed in predicting that legalization would become a reality in 2023.

The comments by Finance Minister Lindner came at a FDP state election campaign event in Lower Saxony, apparently in response to cannabis advocates that were in attendance and holding up signs with hemp leaves that read (translated to English) “A bag with Christian Lindner.” Various other elected officials in Germany have also weighed in over the course of the last year, and the general consensus seems to be that legalization may arrive as early as next year, however, it could take as long as 2025 to become a fully implemented reality.

Not An Easy Task

Some cannabis advocates are expressing frustration regarding the current legalization process in Germany, which is understandable given that cannabis prohibition is the law of the land when it comes to consumers in Germany, and prohibition is a harmful, failed public policy. However, it’s important to keep things in perspective. Germany may not be the first nation to roll out a nationwide adult-use industry, yet it is certainly the first to try to do so on such a large scale.

The only three countries to legalize cannabis beyond low-THC, and at a national level, are Uruguay, Canada, and Malta. Germany’s population is roughly twice the size of all three of those other countries’ populations combined. The size of Germany’s economy is more than twice the size of those other countries’ economies combined. Unlike the other three legal countries, Germany shares a border with nine other countries, many of them being home to their own large populations and economies. Legalization absolutely needs to happen in Germany, but it needs to happen the right way and that will take some time.

The Prohibition Dam Will Burst

As alluded to earlier in this article, Germany is not legalizing cannabis in a vacuum. Every lawmaker and regulator around the globe that wants to see cannabis legalized is watching Germany with a very close eye right now, as the push to legalize in Germany will largely serve as the ‘guidebook’ for efforts elsewhere. What will the legal age be? What will the personal possession limit be? How many plants can a household cultivate? Will social use establishments be allowed? What should testing standards be? What will the business licensing forms entail? How many offices and government positions will be needed to oversee the industry? These are just a sample of questions that have to be completely vetted and sorted out. A lot of stakeholders have to be afforded an opportunity to weigh in, and some level of consensus has to be reached for every facet of Germany’s future cannabis policy.

All the while lawmakers and regulators are crafting plans and strategies without anyone truly knowing how much demand Germany will experience once legal sales begin. Current legal nations are not good comparators, as Germany is a completely different animal. Canada is the only country on earth right now where anyone of legal age can make a regulated purchase. Uruguay limits sales to residents and Malta does not have any industry framework in place. Even if those countries had models similar to Canada, they still would not be good comparators.

When Germany launches its adult-use industry domestic and foreign consumers will no doubt flock to retail outlets at levels literally never seen before in the emerging global cannabis industry. I personally think that Germany should do a staggered rollout with possession, cultivation, and consumption provisions being implemented sooner than industry provisions, as they are far more straightforward. By doing so, Germany will instantly save money by no longer enforcing failed public policy and individual consumers will finally experience freedoms that should have never been taken from them in the first place.

I have helped work on cannabis reform efforts since the late 1990s when medical cannabis reform initiatives were being heavily pursued on the West Coast of the United States. Those efforts culminated in election victories in California in 1996, and Oregon and Washington in 1998. Since that time I have seen cannabis prohibitionists across the U.S. basically recycle their failed talking points and tactics from that era over and over again, and the same thing appears to be happing in Germany right now.

Unless you have been living under a rock then you know that Germany is trending towards launching an adult-use cannabis market, and also that once the launch occurs, Germany’s market is going to be considerably more massive than that of Uruguay and Canada combined. Unfortunately, there are futile attempts ramping up that are geared towards halting the process, with the latest one involving cannabis opponents hurling the idea that cannabis cannot be legalized in Germany ‘due to European treaties.’

Theory Versus Reality

Is Germany bound by European and international treaties, including ones that prohibit cannabis? Yes, obviously. Are Canada and Uruguay also bound by international treaties that prohibit adult-use cannabis commerce, including ones that Germany is also a part of? Also yes. With all of that being said, laws are only as good as the enforcement behind them, and just as the sky did not fall and the international community didn’t perform whatever the global community version of a SWAT raid is on Canada and Uruguay when they launched adult-use cannabis sales, the same will prove to be true in Germany when they inevitably launch adult-use sales within their own borders.

Leading up to legalization in Canada in 2018, Russia tried the ‘what about international treaties’ argument in an attempt to derail Canada’s efforts, to no avail. The same thing happened in Uruguay in 2013 when the United Nations tried the same tactic (and failed). It’s a similar concept that I personally witnessed in the United States when opponents tried and failed with their ‘but cannabis is federally illegal!’ arguments. Bad laws are meant to be broken, and cannabis prohibition is one of the worst public policies in human history.

Even within Europe there are examples of jurisdictions disregarding continental and international treaties when it comes to adult-use cannabis commerce. Late last year Malta passed an adult-use legalization measure, although they have yet to issue any licenses and access there is going to be different compared to what will eventually be implemented in Germany. Regardless, there has been no crackdown in Malta as a result of passing a measure that is in direct defiance of certain treaties. Adult-use cannabis pilot programs area already in place in Denmark, with Switzerland getting ready to launch its own pilot program, and eventually, the Netherlands. Again, international treaties have yet to derail any of those efforts in those European countries.

An Obvious Need For A New Approach

Earlier this month European anti-drug coordinators met in Prague, and Czech National Anti-drug Coordinator Jindřich Vobořil called for a new approach to cannabis policy and regulation in Europe at the continental level.

“We hope it will be a coordinated effort (to regulate the cannabis market). It is impossible not to talk about it on an EU-wide basis. Prohibition has not proved to be effective enough; we need to look for other models of control. A controlled market may be the only possible solution,” Vobořil said according to Euractiv.

Cannabis reform is on the move in Europe and in every other corner of the earth, and with it, the spread of the emerging cannabis industry. Lawmakers and regulators can try all of the delay tactics that they can think of, and it’s likely a safe bet that they certainly will, however, those efforts will always prove to be futile. At best, all it will do is delay the inevitable. The cannabis industry toothpaste is out of the tube and it is not going back in, and it’s beyond time that treaties reflect that undeniable fact and catch up with reality.

Lawyers for the Bundestag Scientific Service of the Bundestag issue analysis of cannabis legalization, claiming it violates EU law – and the cry is picked up, again, by the conservative state Health Minister in Bavaria

The clash over legalization is getting nasty in Germany. In the last three weeks, in late August, a conservative politician, a CSU member and Klaus Holetschek, the state Health Minister of Bavaria, had called out the federal German Chancellor, Olaf Scholz, for proceeding on cannabis reform even though Scholz admitted that cannabis was not harmless.

Now, on the official website of the state of Bavaria, Holetschek, has issued a press release calling for the government to stop work on the legalization of cannabis – this time quoting a group of Bundestag lawyers who say that German cannabis legalization will run afoul of EU law.

There are several problems with this approach. The first is that yes, at present, EU law does prohibit recreational cannabis use – mirroring international law on the same issue. However, just as CBD was reclassified by the EU as not a narcotic (and German law is now out of compliance with the same), the entire matter is now being considered at a multilateral level across the EU. Using circular logic like this is patently disingenuous.

The second problem with this tactic of course, is that it smacks of special interests within the CSU/CDU, particularly from Bavaria, who seem to want to derail a popular legislative initiative by the current government. This line of reasoning also fails to mention that the group doing this very conservative analysis was tasked to do the same by CSU affiliated health politician Stephan Pilsinger  – a member of the Bundestag’s health committee – and also, not coincidentally, also hailing from Bavaria.

Why Are Conservatives from Bavaria Challenging Government Efforts To Legalize Cannabis?

There are several reasons that the Bavarian CSU appears to be increasingly vocal on the topic of federal cannabis reform. The first, of course, is that the state is known, domestically at least, to be the most conservative in the country. Kind of like a “German Texas.” Cannabis infractions are more harshly punished here than anywhere else in the country.

Beyond this, however, this campaign seems to be motivated as much by anti-cannabis voices from the party that lost control of the government last national election. This effort, in other words, appears to be the effort of a group of conservative politicians, on a state level, to slow down federal reform.

It is not a tactic unknown in the United States. Whether it is likely to work remains unseen. That said, given the statements of the federal Health Minister, Karl Lauterbach of late, that is not likely.