Legalisation impossible? Options for the legalisation of recreational cannabis in Germany in compliance with EU and international law

Legalisation seems to be a done deal – discussions about the details are ongo-ing

The introduction of a new law legalising cannabis products for recreational purposes seems to be a done deal. The technical preparations for the legislative process are underway. In June, five expert hearings took place on topics such as health and youth protection, supply chains, licensing and international experiences. Further expert discussions with associations and scientists followed in the summer. The results of this consultation process are to be in-corporated into a key issues paper which is being drafted under the leadership of the Federal Ministry of Health. The Federal Government intends to present a draft bill by the end of the year.

Opponents of liberalisation point – as they have for many years – to potential dangers for consumers and young people. However, the number of those who consider these risks to be manageable outweighs them. Political decision-makers are convinced that the previous pro-hibition approach has failed in its purpose and that the black market can only be combated by means of state-controlled production and distribution of cannabis. Those in charge are therefore already turning to the details of legal implementation: Who will be authorised to sell to adults? What is the right age of consumers? Should there be a maximum limit for THC content?

New potential conflict: Compliance with international and European law under discussion

In this context, one aspect is now being discussed in public, which could determine whether the entire legislative project will be a success or a failure: Is the intended liberalisation of cannabis for non-medical purposes in line with the relevant international and European law? At the end of July, the opposition parliamentary group of CDU/CSU submitted a so-called “Kleine Anfrage” (minor question) to the parliament demanding detailed information from the federal government on this issue (BT-Drucksache 20/2938). Among other things, the federal government was asked to explain whether it assumes a risk of violating European and international regulations. The federal government's answer is not very instructive (BT-Drucksache 20/3121): Aspects of international and European law are an “important part of the consultations”. Therefore, the federal government has formed a special task force to ex-amine these issues. However, the consultations have not yet been completed.

The Scientific Service of the Bundestag recently published a “Dokumentation” (documentation) on cannabis legalisation in the light of international law (WD 2 - 3000 - 057/22) as well as an “Ausarbeitung” (elaboration) on the requirements of EU law with regard to a legalisation of cannabis in the Member States (PE 6 - 3000 - 043/22). However, these papers do not provide more clarity either. In the first document the Scientific Service at least discusses various interpretations of the international treaties discussed in the literature – however, with-out providing its own assessment. In the second document the Scientific Service merely de-scribes the relevant EU law provisions and cites an CJEU ruling from 2010. In any case, no conclusions for or against legalisation can be drawn from these papers. A positioning is not possible without determining the relevant understanding of the provisions.

It is not to be expected that the federal government will take a position on this issue before its key issues paper is published. However, clarifying these questions at an early stage could avoid wasted efforts in all relevant ministries. Ultimately, the manner of legislative imple-mentation will determine the compatibility of the project with international and EU law.

International law allows handling of cannabis only for limited purposes

Germany has signed three international treaties in which the contracting states commit themselves to a restrictive drug policy: (1) the Single Convention on Narcotic Drugs of 1961, (2) the Convention on Psychotropic Substances of 1971 and (3) the United Nations Conven-tion against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. These three treaties complement each other. Cannabis falls under narcotic drugs as defined by the treaties. The contracting states must therefore, in principle, prohibit production, trade and possession. Exceptions are provided for in the treaties for the use of cannabis for medical and scientific purposes. If a contracting state permits the cultivation of cannabis, the flowers must be sold immediately after harvesting to a state authority that holds the exclusive right of distribution. In Germany, the Cannabis Agency of the Federal Institute for Drugs and Medical Devices (BfArM) assumes this task since 2020.

From a legal point of view, Germany does not have to fear any serious consequences for viola-tions of the UN treaties. Sanctions are not provided for in the treaties. In the worst case, the treaties could be terminated. Another question, however, is whether Germany can risk such national solo effort politically. The Greens, in their old draft cannabis control law of 2018 (BT-Drucksache 19/819), suggested that Germany should follow Bolivia's example instead. The South American state had withdrawn from the 1961 Single Convention in 2011. Half a year later, Bolivia re-joined subject to being allowed to permit the trading and consuming of coca leaves, which has a long tradition there. However, such a procedure would not be easy for Germany: if only one third of the contracting parties would object the reservation within twelve months, the approach would fail. Germany would therefore have to find a sufficient number of supporters of cannabis legalisation within a short period of time to achieve its re-entry under reservation. Success would likely depend on numerous factors that Germany can only influence to a limited extent.

European law refers to the international treaties

In addition to international law, Germany – unlike Bolivia or Kannada – is also subject to the requirements under EU law. The handling of cannabis is regulated by the EU Council Framework Decision 2004/757/JHA of 25 October 2004. The definition of the term “drug” in this Decision simply refers to the UN conventions. Cannabis is thus subject to European regulation to the same extent that it is subject to international law – i.e., with the exception of the state-controlled trade of cannabis for medical and scientific purposes. In other respects, the Decision includes independent regulations. It requires all EU member states to criminalise commercial activities such as the cultivation, production, distribution of drugs, including cannabis, “when committed without right”. The decision contains an exception for acts for private purposes: as far as the activities mentioned are carried out exclusively for “personal consumption”, they do not fall within the scope of the Decision. According to this, it remains up to the member states whether and how they want to criminalise also the private acquisition, cultivation, possession and/or consumption of cannabis.

In addition to the Framework Decision, the 1990 Convention Implementing the Agreement (“Schengen Convention”) requires Germany to prevent the “direct or indirect sale” of cannabis as well as the possession of cannabis for the purpose of sale. The necessary measures for this must be taken by the contracting parties “in accordance with” the existing UN treaties. This agreement under international law became part of European law with the Treaty of Amsterdam. It confirms the general prohibition of cannabis for other than medical or scientific purposes.

In the event of a breach of these provisions of European law, the Commission or other EU states could take legal action against Germany in infringement proceedings before the CJEU. In addition to fines and other sanctions, Germany could face considerable damage to its image on the international stage.

Possible legislative approaches: Modern interpretation or “legalisation light”

Both international law and European law offer various starting points for liberalising the drug control policy allowing state-controlled cultivation and dispensing in licensed shops also for non-therapeutic purposes. The legal framework offers considerable conceptual scope for legalisation with different legal approaches.

One approach based on a potential contradiction in the European Framework Decision 2004/757/JHA seems particularly promising. The European legislator provides that member states are free to allow the handling of cannabis for private purposes. The 1990 Schengen Convention and the UN Conventions also do not stand in the way of liberalising private consumption. If Germany allows private handling of cannabis, the constitutionally guaranteed principle of consistency of law requires that German law also allows for a legal supply of adult consumers with cannabis. Otherwise, consumers would only be able to purchase cannabis on the illegal black market. This is precisely what the legislator wants to combat – as do the par-ties to the international conventions. Against this background, cultivation, importation, distribution and dispensing of cannabis to adult consumers cannot be considered as acts “committed without right” if they are necessary to enable legal private consumption.

In addition, the Schengen Convention contains a Joint Declaration of the Contracting Parties which considers derogations from cannabis prohibitions to be possible for the purpose of “the prevention and treatment of addiction to narcotic drugs and psychotropic substances” at the national level. Such a policy also serves medical and scientific purposes in the sense of the drug control treaties. The Joint Declaration thus also supports the possibility of introducing a controlled cannabis market insofar as the measure serves the state's drug control policy.

Furthermore, in 2017, the German federal legislator approved cannabis flowers and cannabis extracts as medicine with the introduction of the “Cannabis as Medicine law”. This paradigm shift must be taken into account when interpreting the drug control treaties according to their meaning and purpose. In the last instance, the CJEU would decide how the European regulations are to be interpreted. An amendment or clarification of the international and European regulations would be politically desirable. However, this would likely be a lengthy process.

In this situation, a pragmatic approach of a “legalisation light” could be favourable for the time being. If the German legislator were to limit its plans temporarily to simplifying access to cannabis for adult consumers within the existing medical regime – potentially supported by appropriate accompanying field studies – considerably less resistance could be expected at the international level. This could be achieved by creating corresponding exceptions in German narcotics and medicinal products law, without implementing a complete legalisation of recreational cannabis. Another approach for a pragmatic transitional solution could be the path chosen by the Netherlands: Since 2021, coffee shops in ten Dutch cities have been allowed to sell (only) cannabis from state-controlled and licensed cultivation. This is a scientific experiment limited to four years to study the effects on addiction control and the black market. An approach combining medical and scientific purposes is also conceivable. Both approaches can be seen as drug control policy test phases for a later full legalisation.

First position of the federal government eagerly awaited

In any case, the federal government will do well to soon decide on a strategy for dealing with the restrictions under international and European law. Otherwise, the federal government is threatened with a similar disaster as with the failed introduction of a passenger car toll system for the German Autobahn. The CJEU decided in 2019 that the regulation which had been prepared for many years was contrary to European law, thus thwarting the project shortly before the system was scheduled to go into operation. The mainly responsible person for the project was former Transport Minister Alexander Dobrindt. It is probably no coincidence that he, along with his party colleague Friedrich Merz, is now the author of the Kleine Anfrage regarding the legalisation of cannabis.

Impairments of the medical cannabis market to be avoided

The last question of the Kleine Anfrage of 26 July 2022 concerns another fundamental prob-lem: How to prevent the creation of a market for recreational cannabis products from jeop-ardising the necessary supply of medical cannabis? If cannabis products generally lose their status as medicinal products and are freely available without a doctor's prescription, the production of cannabis-containing medicinal products under pharmacovigilance standards could become uneconomical. This could lead to the discontinuing of corresponding payments by health insurance funds. The preservation of a parallel market for medical cannabis for therapeutic purposes is necessary. The special needs of patients for expert advice and prod-ucts with certain pharmacological efficacy levels cannot be met by the market for recreational cannabis. In its answer to the Kleine Anfrage, the Federal Government at least acknowledges that a sufficient supply of patients with cannabis-based medicinal products is an important concern. In its implementation, the legislator should therefore strictly separate the markets of cannabis products for therapeutic and non-therapeutic purposes. Manufacturers of can-nabis products must decide whether they produce under the strict specifications of the me-dicinal products law regime – i.e.: for therapeutic purposes – or under the new less restrict regime for recreational products. Consumers should be able to easily recognise which prod-ucts they are dealing with due to different distribution channels and specific labelling. Only a clear separation of the two cannabis markets and legal regimes based on objective criteria can avoid legal disputes about the classification of individual products.