Dentons: Partial legalization of cannabis in Germany 

Author

Peter Homberg

https://www.dentons.com/en/peter-homberg

The German Federal Council (Bundesrat) has endorsed the Cannabis Act (Cannabisgesetz, “CanG”), thus enabling the partial legalization of cannabis for recreational use. Despite the recommendations of several Federal Council (Bundesrat) committees, the Bundesrat did not decide to convene the Mediation Committee (Vermittlungsausschuss) at its meeting on 22 March 2024. 

Vote in the Bundesrat

Resistance from the federal states

As the law is a so-called objection law (Einspruchsgesetz), it did not require approval of the Bundesrat. The federal states could only have referred the law to the Vermittlungsausschuss for further consideration and thus could have significantly slowed down the process. Despite massive resistance from the federal states (not only those led by the CDU/CSU (Christian Democratic Union of Germany/Christian Social Union in Bavaria) the Bundesrat ultimately did not vote in favor of referring the law to the Vermittlungsausschuss. This would have required a majority of at least 35 of the 69 votes in the plenary. At the end, however, most of federal states governed by the SPD (Social Democratic Party of Germany) and The Green Party abstained resulting in a failure to reach the majority. In addition to the CDU/CSU-led federal states, Saarland (lead by the SPD) and Baden-Württemberg (lead by the Green Party) also voted in favor of referring the law to the Vermittlungsausschuss. Saxony’s vote was inconsistent and therefore invalid. 

Main points of criticism of the law

The main reason for the opposition, including federal states led by the SPD and the Green Party, was the amnesty provision contained in the new law, according to which previous convictions for cannabis offenses would no longer be enforceable. According to this, all sentences for cannabis offenses that have not yet been fully executed are to be suspended so that those convicted no longer must serve the (remaining) sentence. Anyone who has been convicted of cannabis and other offenses together must have a new (total) sentence set by the court. The justice departments of the federal states had calculated that around 100,000 paper files would have to be re-examined as a result and that this could not be done in such a short period of time.

The CDU has also expressed concerns that the law could become a booster for the black market in the first few months. Furthermore, the CDU/CSU has announced its intention to overturn the CanG immediately if it comes to power in 2025.

In the plenary session on 22 March, Federal Health Minister Karl Lauterbach (SPD) once again vehemently defended the plan. He also referred to a protocol declaration made in the last few days and emphasized that he did not want to propagate the use of cannabis, but rather wanted to counteract undesirable developments in the current drug policy.

The session of the Bundesrat got so much attention by the public that the Bundesrat’s server collapsed. Interested parties had to switch to social media to follow the discussion. 

Main regulatory content of the law

The law aims in particular to strengthen cannabis-related education and prevention, to curb the illegal market for cannabis and to strengthen the protection of children and young people.

The most important regulatory content includes Article 1 of the CanG, the Consumer Cannabis Act (Konsumcannabisgesetz, “KCanG”), which regulates, among other things, personal cultivation at home and communal cultivation within the framework of cultivation associations. From April 1, 2024, the possession of up to 50 grams of cannabis for personal consumption in private spaces and a maximum quantity of 25 grams in public spaces will be permitted. Cannabis may also be obtained and consumed from home cultivation (up to three plants per adult in a household). The non-commercial cultivation associations, which will be allowed to commence their activities from July 1, 2024, will only be allowed to grow cannabis for consumption collectively with the active participation of members and to pass it on only to its members for their own consumption. Members must also be of legal age and have their place of residence or habitual abode in Germany. Cultivation associations are subject to a strict obligation to verify membership and the age of members. When passing on to adolescents, the THC content must be limited to ten percent.

The gradual legalization with the subsequent introduction of cultivation associations will also have an impact on home cultivation. Cuttings (i.e. young plants or shoots of cannabis plants that are to be used for the cultivation of cannabis plants and do not have inflorescences or fruit buds) may only be procured via cultivation associations. This will therefore only be possible after the cultivation associations have become operational in the summer this year. However, Section 4 para. 2 KCanG stipulates that cannabis seeds may also be obtained from other EU member states. This means that for the time being, home cultivation will only be possible with seeds.

The law permits the consumption of cannabis outside a protection zone of 200 meters from the entrance area of cultivation associations, schools, children’s and youth facilities, children’s playgrounds and publicly accessible sports facilities. 

Cannabis for medical and medical-scientific purposes

In addition to the KCanG, the so-called Medical Cannabis Act (Medizinal-Cannabisgesetz, “MedCanG”) on the supply of cannabis for medical and medical-scientific purposes is also included in the CanG. Among other things, this contains regulations on prescribing and dispensing, authorization and approval, monitoring, child and youth protection as well as penalties and fines specifically in relation to medicinal cannabis. Although the prescription obligation remains in place, a special prescription for narcotics will no longer be required, but a regular prescription from a doctor would be sufficient. In order to do justice to the changed risk assessment of cannabis, certain requirements that previously existed in the narcotics law, such as the bureaucratic effort involved in the dispensing voucher procedure and prescribing on a narcotics prescription, are to be dropped.

What happens next?

The implementation of the CanG represents the first part of the two-pillar plan on which the federal government in Germany has based the legalization project. The second pillar provides for a so-called model project. In certain regions, it should then be possible to buy cannabis in specialist stores under scientific supervision. 

The draft bill provides for the law to be evaluated in terms of its social impact after it comes into force. An initial evaluation is to be presented as early as 18 months after entry into force, looking at the effects on the protection of children and young people in the first year, including the effects on the consumption behavior of children and young people. An interim report on the effects of the law, including the effects on cannabis-related organized crime, taking into account the expertise of the Federal Criminal Police Office (Bundeskriminalamt), will be available after two years. A comprehensive and final evaluation is to be presented four years after the law comes into force. 

As far as the impact on the cannabis industry is concerned, it remains to be seen what entrepreneurial options are available to companies in this new environment.

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