Federal Government White Paper on the Legalisation of Cannabis Products - Details and Questions under European Law

Co-author: Christoph Behm

The legalisation of cannabis products for recreational purposes is making progress. After the Coalition Government announced in the 2021 Coalition Agreement  to introduce the “controlled supply of cannabis to adults for recreational purposes in licensed shops”, the resulting consultation process between politicians, expert and interest groups has now come to an end. A Federal Government white paper now reveals the first details of the proposed law, which should satisfy the supporters of legalisation in terms of content. At the same time, however, the white paper also addresses the question of whether Germany’s legalisation efforts can actually be implemented under international and European law. 

Content appears positive

In terms of content, the cultivation and distribution of cannabis products for recreational purposes is, as expected, to be subject to strict state supervision through licensing and control. All those involved in the supply and trade chain must therefore be prepared for a licensing procedure and extensive documentation obligations. It is also important to note that according to the Federal Government, any international trade in cannabis products for recreational purposes - unlike for medical or scientific purposes - would be legally impossible, meaning that national demand would have to be met by production in Germany alone. This is not good news for cannabis companies from abroad that already import cannabis for medical purposes. Synthetically produced cannabinoids will not be allowed to be used. The distribution of cannabis products to exclusively adult consumers is to be reserved for licensed specialised shops and possibly pharmacies and will be limited in quantity. However, there is to be an absolute ban on advertising, and there is also to be no online mail-order trade for the time being. However, the possibility of home grown cannabis on a very limited scale is to be created (acquisition and possession of cannabis products up to a maximum quantity of 20 to 30 grams is to remain exempt from punishment). In addition to value added tax on sales, a separate “cannabis tax” is planned, which will be based on the THC content. The end consumer price is supposed to be close to the black market price.

Compatibility with international and European law

For the legal implementation of the details, cannabis and the active ingredient tetrahydrocannabinol (THC) are in future no longer to be classified as narcotics within the meaning of the Narcotics Act (BtMG) and are to be given their own regulatory framework with medicinal cannabis and commercial hemp. Under international and European law, however, the classification of cannabis as a narcotic drug is predetermined by three conventions (Single Convention on Narcotic Drugs; Convention on Psychotropic Substances; UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances) and, above all, by the binding EU Council Framework Decision 2004/757/JHA and the Schengen Agreement. The Federal Government therefore plans to demonstrate by means of an interpretative statement that the state-controlled system for the legalisation of cannabis products for recreational purposes contained in the white paper is compatible with the international requirements with regard to the protection of health and minors.

Summary 

The key points of legalisation are encouraging. However, it remains questionable whether the Coalition Government can deliver its original promise. The concerns under European law are considerable and much will depend on the efforts of the other Member States to ensure a modern and above all harmonised cannabis policy for supranational health protection. Italy and Austria have only recently openly declared their opposition to legalisation. In any case, it will probably take some time before legalisation. If the Commission gives the green light, a draft law would have to be formulated for the first time, which would also have to go through a notification procedure at European level according to the Transparency Directive (EU) 2015/1535. The Ministry of Health, which is in charge, expects legalisation to take place in 2024 at the earliest.