Dialogue at EU level on the legalisation of recreational cannabis – the German Federal Government's White Paper will not suffice

On 26 October, the Federal Government presented its White Paper “on the introduction of controlled dispensing of cannabis to adults for recreational purposes”. The paper includes the results of extensive consultations and expert discussions that took place in the summer. The Government plans to allow the purchase and possession of 20-30 grams of cannabis as well as the private cultivation of up to three female plants. Commercial production and distribution of the products are also to be legal in Germany subject to strict state control. The sale to consumers is planned in state-licensed shops – potentially also in pharmacies. A strict advertising ban and labelling requirements are to apply. There may be a THC limit (only) regarding young users under 21 years of age.

Legalisation is possible under EU and international law

The paper explains the requirements for dealing with cannabis under EU and international law. The Federal Government makes it clear that legalisation is generally possible within the existing legal framework. In doing so, it positions itself against some critics who already predicted a fate for cannabis legalisation like that of the failed German car toll. In fact, none of the relevant provisions expressly prohibits the introduction of a state-controlled market for recreational cannabis products. How narrow the legal framework for the planned legislation is will depend on the interpretation of these regulations.

Clarification by means of a declaration of interpretation

The Federal Government plans to clarify its understanding of the relevant regulations in a so-called “declaration of interpretation” vis-à-vis the other parties to the international conventions and the international drug control bodies. This declaration will state that the planned state control system for recreational cannabis strengthens the protection of health and young people and serves the primary goal of the conventions – i. e., the fight against illicit drug trafficking – better than the currently prevailing policy of prohibition.

Pioneering work in close coordination with the EU Commission

Draft acts of member states law regarding technical provisions on consumer products must be reviewed by the EU Commission in a formal notification procedure. This standard EU procedure gives the Commission and the other member states the opportunity to comment on such laws. However, the liberalisation of cannabis is no standard project. Germany wants to pioneer and develop a regime that could be a role model for other states in the EU and worldwide.

Therefore, the Federal Government wants to coordinate closely with the EU Commission in advance. At the presentation of the White Paper on 26 October, Federal Health Minister Karl Lauterbach announced that the White Paper will be submitted to the EU Commission for this purpose.

The White Paper states: “In terms of European law, close and transparent coordination will be essential to ensure that the EU Commission and member states follow Germany's interpretative approach and to minimise the risk of infringement proceedings and/or state liability claims, which would ultimately have to be decided by the CJEU,".

Need for improvement in the argumentation

In spite of that, the White Paper does not specify how the Federal Government intends to argue in detail vis-à-vis the EU Commission. It only suggests that the aspects of state control, health protection and international crime control may be invoked to show compatibility with the purposes of international law. This will not be enough to convince the Commission and the other member states that the proposal is compliant.

The existing regulatory framework is complex. The two essential regulations of EU law – Art. 71 of the 1990 Convention Implementing the Schengen Agreement (“Schengen Convention”) and the Council Framework Decision 2004/757/JHA – refer to the older international treaties. When interpreting these provisions, the wording of individual norms and, above all, the overall system and purpose of the regulations must be taken into account. The Federal Government must explain to what extent these provisions allow a legalisation intended to foster the aspects mentioned in the White Paper. There is a need for improvement here.

Regulations leave conceptual room for national regulatory approaches to combat the illicit drug market

The primary purpose of the international treaties and the EU provisions is for the states involved to jointly combat illicit drug trafficking – which is transnational by nature – in order to protect the health and safety of citizens (see, e. g., recitals 1–3 of Framework Decision 2004/757/JHA). For this purpose, it is not necessary to generally ban cannabis from all respective countries.

Accordingly, the regulations provide for various exceptions. The use of cannabis for medical and scientific purposes is expressly permitted under the international treaties. The Joint Declaration of the Contracting Parties on Art. 71(2) Schengen Convention provides that derogations from the cannabis prohibitions are possible at national level in connection with a “national policy on the prevention and treatment of addiction to narcotic drugs”. In addition, the EU Framework Decision leaves it up to the individual Member States to decide whether they permit conduct for the purpose of “personal consumption” of cannabis.

The wording of the essential provisions under European law also reflects this principle of rule and exceptions: Art. 71(1) Schengen Convention is limited to the prevention of “the illicit trafficking in narcotic drugs”. Art. 2(1) Framework Decision 2004/757/JHA only concerns conduct “when committed without right”. The regulations do not state which “permissions” or “rights” may be granted on national level for certain substances and products. This must be determined by an assessment of the provisions taking into account the meaning and purpose of the overall regulation.

Legal arguments to back up the Federal Government's Declaration of Interpretation

The Federal Government's Declaration of interpretation can be based on such assessment. The introduction of a strictly controlled market as a measure of national drug control policy creates the necessary “right” for trafficking in Germany. Indeed, a regulated distribution to adults serves the objectives of the treaties and regulations better than the currently prevailing policy of prohibition.

In the White Paper, the Federal Government describes its proposal as a “reaction to a changed risk assessment”. In fact, the state of scientific knowledge based on which the requirements of EU and international law have so far been interpreted as a strict ban on cannabis has changed: On the one hand, experience with medicinal cannabis shows that it is outdated to think of cannabis as a purely harmful stimulant. The approval of cannabis flowers and extracts as medicinal products in 2017 was a paradigm shift in German law. On the other hand, the increasing use among young people and the cases of contaminated cannabis products prove that prohibition has failed as a health protection measure. From a legal point of view, legal provisions must be re-interpreted through purposive construction where the factual situation the legislator sought to address has changed considerably (so-called “Änderung der Normsituation”). The new facts are to be taken into account in the interpretation of the European and international provisions – including the scope of exceptions.

In addition, the Federal Government can refer to the fact that the planned regulation of commercial cultivation and trade is necessary for the consistent implementation of the EU Framework Decision. Germany wants to make use of the option provided for in Art. 2(2) allowing conduct for purposes of personal consumption. However, this requires the introduction of a strictly controlled, legal market in order to be compliant with the goal of eliminating the illegal drug market. The EU legislator surely did not want to provide an exception enabling national laws that foster the black market instead of combating it.

Finally, by protecting youths and controlling the distribution to adults, the envisaged legalisation serves the purpose of “prevention and treatment of addiction to narcotic drugs” within the meaning of the Joint Declaration of the Contracting Parties on Art. 71(2) Schengen Convention.

All-in on complete legalisation – no plan B?

The Federal Government wants to completely exclude cannabis (for recreational and medicinal purposes) and industrial hemp from the scope of German narcotics law. The White Paper explains that the “option of only limited legalisation with a focus on self-cultivation for personal consumption and possession would fall short of the goal set by the coalition agreement”.

At the same time, Karl Lauterbach announced at the press conference on 26 October that the Government's further course of action will depend on the feedback from the EU Commission: If the EU Commission approves the proposal, the Government will be able to present a corresponding draft act very quickly. In this case, an infringement procedure would be unlikely. If, however, the EU Commission rejects the project, there will be no law based on the White Paper. If the EU Commission only criticises individual aspects of the White Paper, the Federal Government will adapt the draft act accordingly.

On the subject, the Government thus is taking a hard line. At the same time, it passes the responsibility for the success or failure of the project entirely on to the EU Commission. Of course, it makes sense to involve the EU Commission at an early stage. However, instead of going all-in on complete legislation, the Federal Government should have an alternative up its sleeve for the upcoming dialogue.

“Legalisation light” can be presented to the EU Commission as an alternative

The complete legalisation of recreational cannabis in an EU state would be a considerable step in international drug policy. If this plan currently still met with significant resistance, the Federal Government would not have to abandon the entire project. Rather, Germany can also implement a “legalisation light” as a first step. This approach would clearly be based on the exceptions for medical and scientific purposes provided by EU and international law.

To this end, the legislator can transitionally introduce a new category of medicinal cannabis products into the Medicinal Products Act which can be dispensed without a doctor's prescription – potentially also outside pharmacies. Adult consumers would be able to freely purchase these products and use them on their own responsibility, similar to aspirin or medicinal teas. This would make the black market for equivalent products obsolete. This would also be a political measure for the “prevention […] of addiction to narcotic drugs” as explicitly permitted by the Joint Declaration of the Contracting Parties on Art. 71(2) Schengen Convention. The Federal Government could collect data on usage habits, risk of addiction and effects on addiction prevention by means of accompanying scientific research. The knowledge gained from this research could be used at a later stage to convince the international community and to achieve complete legalisation.

International trade of recreational cannabis wrongly excluded

In its White Paper, the Federal Government takes the “preliminary” view that “international trade in cannabis for recreational purposes is not possible on the basis of or in accordance with the existing international framework”. The Government therefore assumes that the demand for cannabis will be completely covered by production in Germany.

This view is not comprehensible from a legal perspective. It is true that exportation of cannabis legally produced in Germany will not be allowed to countries where such products are prohibited. However, in principle, trade between Germany and another country is possible to the extent that both countries – in accordance with European and international law – allow the placing on the market of cannabis products. The countries involved in cross-border trade of cannabis must, pursuant to the Joint Declaration of the Contracting Parties on Art. 71(2) Schengen Convention, adopt the necessary measures to prevent and punish the illicit import and export into the territory of other Contracting Parties that prohibit such products.

Within the EU, cross-border commercial activities are protected by the principles of freedom to provide services and/or free movement of goods to the extent they are permitted in the countries involved. Germany would therefore only be allowed to restrict the import of legally produced cannabis from EU countries if this were exceptionally justified by reasons of health protection. In cases where the importing EU country guarantees equivalent safety and quality standards as Germany, blanket import bans will not be lawful.

This applied a fortiori if the Federal Government were to introduce only a facilitated access to cannabis for medicinal and scientific purposes within the Medicinal Products Act (“legalisation light”). In this case, the cross-border trade of these products – as is already the case with medicinal cannabis – would be directly covered by the exceptions under EU and international law.