Initially scheduled to be submitted to the European Commission before the end of 2022, the German plan to legalize cannabis will not be submitted for approval in Europe before the end of March.
With the European Commission (EC) yet to take stock of the rapidly changing approach to cannabis around the world, some fear that Germany may be forced to come up with a plan B or abandon the initiative if its initial proposal is rejected.
And this leads to calls for the decision-making process to include European politicians in the Parliament and the Council of the European Union.
German health statement
In a statement to BusinessCann , the German Federal Ministry of Health confirmed that the bill is currently “in the process of being formulated within the federal government”.
He said he was also seeking “expert advice to shed light on the effects of controlled cannabis sales on the health and protection and use of young people”, and was undertaking “a review systematic literature” regarding countries that have legalized recreational cannabis in one form or another.
The ministry added that it was in the meantime continuing its discussions with the European Commission and that this work should be completed in the spring of 2023.
Once submitted to the EC, the submitted dossier will most likely be processed under a protocol established for the adoption of new legislation by Member States, known as the TRIS notification procedure.
Thus, proposals from Germany will be subject to a 3-month standstill period during which the proponent country cannot enact national legislation until it receives a response. of the EC.
The power of the EC to delay plans
The EC, or another Member State, can also submit a “detailed opinion” which has the effect of extending the standstill period for an additional 3 months. Finally, the EC can also block any progress for another 18 months.
In a statement to BusinessCann , the European Commission’s Directorate-General for Home Affairs reiterated that personal drug use is a matter for nation states.
She continues: “A formal notification has not yet been submitted by the German authorities. Therefore, as we have not yet received the official consultation request from Germany, we cannot comment further at this stage. »
“Existing European legislation provides for minimum criminal penalties for illicit drug trafficking and prohibits the cultivation of cannabis. »
“We are aware of and are closely monitoring these developments, particularly to understand the impact of changes in cannabis policies. This includes impact on health, crime, environment or social aspects. »
“Once the legislation is adopted, the Commission will examine its conformity with the acquis communautaire. »
CE culture error
Careful readers will notice an obvious error in this statement which indicates some confusion within the EC on how to approach the process.
This is the reference to the cultivation of cannabis being “prohibited by European law”, which is obviously false, since many medical cannabis cultivation facilities exist on the continent.
The outline of the German plan to legalize cannabis was submitted to the EC in an Eckpunktepapier (basic document) in October last year, by the ruling coalition, which came to power at the end of 2021.
However, the EC said it lacked specifics and asked to see a draft law.
Germany’s initial proposals recommend allowing people over the age of 18 to access cannabis in licensed stores, with the aim of eliminating the illicit market and improving public health, especially that of young people.
Feedback from the EC prompted Germany to embark on two further exercises – the literature review and input from other experts, which is being undertaken by a non-profit drug research institute. nonprofit, ISD Hamburg — with the goal of “demonstrating how prohibition has failed” and how this new law can “protect public health,” he said.
“Due to the EC notification, Germany will have to draft the entire law, because the 12 pages of the Eckpunktepapier are not sufficient. »
Fight against bureaucracy
Next spring, when the project is submitted to the EC, what could be the most important decision in the history of the European cannabis industry will fall to the officials of the Directorate of Home Affairs of the EC, led by Monique Pariat. .
Not much is known about his views on cannabis and drugs, but since politicians are kept on the sidelines for now and Brussels bureaucrats tend to stick to the status quo , many cannabis advocates will be irritated if Germany’s plans stumble over this hurdle.
A lot of anti-cannabis sentiments also exist in Germany, from different quarters such as the police and customs as well as the opposition Christian Democrats (CSU).
Bavarian Health Minister Klaus Holetschek of the CSU met Ms Pariat late last year to urge Brussels to say no.
And German Health Minister Karl Lauterbach, who is behind the reform, has made it clear that if the EC says ‘no’, it is more than likely that its cannabis plans will come to an end.
60/40 in bets
Niklas Kouparanis, CEO and co-founder of Bloomwell Group, one of Germany’s largest cannabis companies with 250 employees, thinks Germany’s plans will be approved by the EC, but there will be back and forth between the two parties before a final project is established.
“There are two statements the EC can make to Germany: the first is that it cannot be implemented, and the second is a request for clarification. »
“I think it will be the latter, but if there is a huge backlash from the EU, it could well delay the implementation of the law until 2025.”
He estimates that the odds of success are 60/40 and that the cannabis law will come into force in the first or second quarter of next year.
A third scenario would be for the European Commission to reject the plans, for the German coalition government to abandon the project and lose the 2025 elections, which would mean that the baton for cannabis reform would have passed to other EU members. , such as the Czech Republic.
Finn Age Hänsel, founder and managing director of Sanity Group, Germany’s leading cannabis company, says he “wishes things had gone faster”, but that it’s “better if it’s done in depth and Germany has a good law”.
He adds: “If you look at the current timeline, I would say Q4 2024. The notification process could take six months, then there is the approval of the German parliament and other details regarding licensing and cultivation. which need to be settled. »
Pathways to progress
Many opponents have pointed to obstacles to reform in the 2004 Schengen Agreement, and European regulations around the free movement of goods.
There are, however, a number of avenues through which Germany can introduce its legislation and comply with its international and European obligations.
As a signatory to the Single Convention on Narcotic Drugs 1961 (SCND), there are two possible ways to achieve compliance, namely: Article 2, paragraph 9, which recognizes the legality of the use of prohibited substances in industrial purposes, or legalization as a scientific experiment.
The second, the scientific option, could see Germany introduce a trial for a few years, labeling it an experiment, putting it beyond the reach of the EC or the UN.
Mr Kouparanis thinks that Germany should explore this option and hopes that Mr Lauterbach’s air of resignation to a ‘no’ from the EC is just window dressing and that his team is putting developed a plan B, a scientific experiment, which Germany could implement immediately.
He said: “As the largest country in Europe, Germany must take the lead and over time – whether in 2024 or not – we must underline to other EU members that the number one priority is health and human protection. I think that can only be done by drying up the illicit market. »
“What we are doing could lead to a change in the perception of cannabis globally, with Europe saying it is no longer working under the 1961 Convention. It would also lead to a change at the United Nations level. »
“Science is important. Switzerland and the Netherlands are about to undertake trials that should provide the evidence needed to push cannabis reform to the policy level. »
Prohibition doesn’t work
“We have to convince the European Commission and member states that prohibition does not work and, if the European Commission refuses, we will have to move to the political level. »
Mr. Hänsel agrees with his compatriot that the chances of success are currently around 60/40. Sanity is well connected in German political circles and, based on his discussions with the government and politicians, he believes Germany has the advantage.
“The scientific study that is underway is an attempt to comprehensively demonstrate to Europe that for Germany, and other countries, it is better to have a legalized drug that is under control, rather than an illegal drug that is not. »
He pointed out that cannabis tourism was a major concern in Europe. Many of Germany’s neighbours, such as Hungary and Poland, are expressing reservations.
One way to counter this phenomenon is to allow sales only to German residents, although this poses significant control and enforcement problems for the authorities.
And to add: “If Germany succeeds in obtaining the green light, we will see many other countries following the example in Europe. It is therefore a good thing that Germany is leading the way and tackling the challenges of cannabis reform in Europe. This could eventually be a model for other countries to follow.”
Kai-Friedrich Niermann, a German cannabis lawyer, is following developments closely. He believes Germany will get EC approval through the notification process.
He told BusinessCann, “No international law treaty can ever compel a country to prosecute its own citizens if it contradicts its own legal framework or constitutional principles. »
“If the personal use and consumption of drugs does not violate the acquis communautaire, then logically the stages upstream of consumption, such as cultivation and trafficking, must also be possible under strictly controlled conditions. »
“I assume that this conception will prevail in the short or medium term in the official notification procedure. »
Last year saw the first coordinated pan-European efforts to present a united front on cannabis reform, involving Germany, the Czech Republic, Luxembourg, Malta and the Netherlands.
These efforts have led the Council of the European Union to adopt a new, human rights-based approach to drugs that has been called a “paradigm shift” and could pave the way for continental cannabis reform. .
It is therefore difficult to imagine a scenario in which pro-cannabis political reformers in the EU would be completely left out of the decision-making process.
Mr. Friedrich-Niermann agrees: “For now, it is difficult to predict whether only the Commission will really act on this issue.
“Some parts of the European Parliament have already made it known that they want to change the legal framework for cannabis. The Council of the European Union could also become active in this field. »
In 2021, Mr Niermann co-signed a document on German cannabis reform which called for legalization by April 1, 2024 – to date it is not yet known whether this deadline will be met.
Nevertheless, with the right winds, it is quite possible that Europe will give birth to the largest regulated cannabis market in the world by the time of the next German federal elections, in October 2025.