Germany’s plan to legalize cannabis clashes with European Union reservations

“If this law is approved, would be the most liberal project to legalize cannabis in Europebut also the most regulated market”, assured the German Minister of Health, Karl Lauterbach, when presenting last week the traffic light coalition government plan to decriminalize the recreational use of this drug. “Could be a model for Europe“, holds Lauterbach.

The standard provides authorize the production, supply and distribution of cannabis for recreational use, but within a framework controlled by the State. The purchase and possession of up to 30 grams of cannabis for personal use by people over 18 years of age in public or private spaces will no longer be considered a crime. The drug will be sold in licensed stores or even pharmacies. In addition, it will be allowed self-cultivation of up to three plants per person. Criminal proceedings in progress will be archived.

Lauterbach justifies this initiative with the argument that the current anti-drug policy is not achieving its objective of reducing consumption and also pushes users towards delinquency. The legalization of cannabis -which appears in the coalition agreement signed in 2021 by Social Democrats, Liberals and Greens- will make it possible to strengthen quality controls, prevent the distribution of contaminated substances, improve the protection of the best and combat the black marketBerlin alleges.

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However, the government itself Olaf Scholz admits that his legislative project could collide with several international treaties signed by Germany: the Single Convention on Narcotic Drugs of 1961, the Convention on Psychotropic Substances of 1971 and the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.

The legalization of cannabis, as proposed by Berlin, is also could be incompatible with EU law, in particular with the Schengen Application Convention and the Framework Decision on drug trafficking. The German Executive has promised to formally notify the bill to the European Commission before its approval to try to obtain its green light.

for now, Brussels coolly welcomes Scholz’s plan. “We have not yet received the German document or the consultation request. In the absence of adopted legislation that clearly establishes the details of the measures, we cannot comment on plans or declarations”, explains the spokeswoman for the Interior of the Community Executive, Anitta Hipper.

“The current legislation of the EU establishes minimum criminal penalties for illicit drug trafficking and prohibits the cultivation of cannabis”, highlights the spokeswoman. Specifically, the Council Framework Decision 2004/757/JHA requires that all activities related to cannabis trafficking be criminalized and punished accordingly in national laws.

Personal use

This includes production, manufacturing, extraction, preparation, offering, offering for sale, distribution, sale, delivery under any conditions, brokerage, forwarding, shipment in transit, transportation, import or export of drugs.

Nevertheless, “the EU acquis does not cover the personal use of drugs”Hipper points out. “Therefore, it is up to the Member States to decide how to deal with personal drug use. This means that countries can choose whether or not to criminalize the personal use of drugs, including cannabis.”

The strategy being weighed by the German Government to overcome these pitfalls consists of presenting an interpretative declaration to the other parties to the conventions international. In it, he will argue that his initiative to legalize cannabis is compatible with the objectives of fighting drug trafficking.

Regarding European legislation, Berlin is committed to consulting closely and transparently, not only with the Commission but with the rest of the Member States, in order to “minimize the risk of infringement proceedings and/or state liability claims“.

And he does not rule out presenting an initiative to modify the community regulations in question. But if Brussels unequivocally concludes that the German model is incompatible with EU law, the government would not go down this route, says Lauterbach.

The traffic light coalition plans to present the bill at the end of the year or the beginning of next, with the aim that the legalization of cannabis enters into force in 2024 at the latest. Around 4 million people used this drug in Germany in the last year25% of whom were young people between 18 and 24 years old, according to data from the Ministry of Health.

Once cannabis products are legalized, their sale will be subject to a turnover tax and a special cannabis levy. The decriminalization of cannabis could bring Germany annual tax revenue and cost savings of around 4.7 billion euros and create 27,000 new jobs, according to a study conducted last year.

Other EU countries have already taken steps to legalize cannabis, although the German model is the most ambitious. In malt, a December 2021 law decriminalizes the consumption and cultivation of this drug, although with limits. He too Luxembourgish government In June 2022, it approved a bill that allows adults to grow up to four cannabis plants in their homes.

The best known case is that of Hollandwhere since 1976 the authorities have tolerated the use of cannabis in coffee shops. In 2020, a bill came into force that allows the cultivation and sale of this drug for recreational purposes in a four-year pilot project.