Kenzi Riboulet-Zemouli, one of Europe’s leading cannabis policy experts, spoke to BusinessCann about plans to legalize cannabis in Germany.
Despite serious flaws in its approach, the European Commission is unlikely to have the power to stop Germany’s ambition to establish an adult cannabis market, the leading international drug policy expert believes.
In announcing its plans for cannabis legislation, Germany is taking an “interpretative” approach to its obligations under the international drug conventions, which it will present to the European Commission after preliminary discussions.
However, Kenzi Riboulet-Zemouli expresses his deep concern with regard to the German proposals, which he considers “insufficiently worked out”, “full of errors” and “poorly conceived”.
The Mandate of Nation States
For Kenzi Riboulet-Zemouli, however, the most important thing is that a nation-state, even if it is linked to a larger regional economic body like the European Union, has the capacity – as is the case for the Uruguay and Canada – to establish its own national drug control program.
“Although Germany has not done its homework and its white paper is riddled with many fundamental errors, treaty interpretation is the mandate of nation states and not that of the European Commission or the INCB . They cannot challenge the interpretations that States make of their treaty commitments. And states have the right to move forward with legalization as long as they adopt one of the two paths of interpretation allowed by international law,” he said.
The two possible ways to proceed are an interpretative “lex lata” approach to legalizing the non-medical cannabis industry under Article 2(9) of the 1961 Single Convention on Narcotic Drugs (SCND), or legalization as a science experiment.
However, Germany’s interpretative statement does not mention any of these options and, curiously, does not even refer to the Single Convention of 1961, although it contains the main legal provisions on cannabis “and makes ipso facto part of the acquis communautaire”, according to Mr. Riboulet-Zemouli.
The document also mentions the 1988 Convention by stating that it was ratified by the European Union (EU), which is not entirely correct, since the EU has ratified only a small part of the 1988 Convention, which does not concern cannabis.
Mr. Riboulet-Zemouli adds: “Although the approach lex lata is the correct one, it is very surprising that Germany has made no reference to either of these two paths” and suggests that there is perhaps a lack of clarity in its approach.
“It would be more logical to refer to Article 2(9) of the 1961 convention, which is already used for the legal trade in hemp and CBD and which can be extended to a total exemption of cannabis, whatever or its THC content, for industrial purposes. »
“Then there is Article 28 which provides a total exemption from the cultivation of cannabis for industrial purposes. »
“Ignoring these provisions and legalizing without regard to these concrete legal provisions (or even others) would unfortunately represent a violation prima facie of international law. »
With its interpretative declaration, Germany affirms that the “implementation of the coalition agreement – under certain narrow conditions of state regulation and improved standards in the fields of health and youth protection as well as of the fight against trafficking in illicit drugs – is compatible with the objective and the legal requirements of the conventions”.
But she remains silent on the nature of this compatibility.
Statement by the European Commission
In an email response to BusinessCann, Anitta Hipper, European Commission (EC) spokesperson for home affairs, said the Commission was still awaiting a formal request for consultation from Germany.
She then provided the following statement, which focuses only on illicit cannabis and decriminalization, without mentioning the progress made in medical and adult cannabis on the continent.
She said: “Existing European legislation provides for minimum criminal penalties for the trafficking of illicit drugs and prohibits the cultivation of cannabis. The acquis communautaire (Council Framework Decision 2004/757/JHA) obliges Member States to take the necessary measures to ensure that crimes related to drug trafficking, including cannabis, are punishable. »
“This means that, except in the case of the personal use of drugs, which is left to the discretion of each Member State, Union legislation requires that all activities related to cannabis trafficking (production, manufacture, extraction, preparation, offer, offering for sale, distribution, sale, delivery) are subject to sanctions by national laws. »
“The acquis communautaire does not cover the personal use of drugs. It is therefore up to the Member States to decide how to deal with the personal use of drugs, including cannabis. »
No reserve expected
Kai-Friedrich Niermann, a German cannabis lawyer, said preliminary talks Germany has had with the EU indicate a favorable response to his plans.
He said: “No fundamental reservations are to be expected in this regard, otherwise the government would not have chosen this path. Especially since a number of Member States are already preparing for a reform of their national cannabis policy. »
He goes on to say that he expects the EU to comment on Germany’s approach in the short term, “so that the draft legislation can be introduced in the Bundestag as planned from January”.
And, if there is a return from the EU, it will have a limited impact.
He added: “The German government leaves no doubt that the legalization of cannabis is politically desired by them and that they will push it through come hell or high water.
“If the European Commission does not agree with the German plans – if that is legally relevant – it could only do so insofar as it is a question of establishing a commercialized value chain, c ie from cultivation to commerce, personal possession and consumption being privileged by international law and European law. »
Violation of EU rules?
Kenzi Riboulet-Zemouli highlighted how the EU could open infringement proceedings against Germany for violating the acquis communautaire.
However, beyond Council Framework Decision 2004/757/JHA – highlighted in the EC’s statement to BusinessCann – he argued that EU law also includes elsewhere “clear and direct obligations regarding lawful trade drugs”.
He added: “If Germany has not done its homework, nation states can determine their own course based on their own interpretation of international commitments. »
It is debatable whether Germany, as a founding member and largest EU country, will be prepared to go it alone.
In a document published last week, The Canna Consultants puts this issue forward by saying: “If the Commission’s answer to Germany is ‘no’, it is almost inconceivable that Germany will confront the Commission head-on in a public battle over this issue”.
Mr Riboulet-Zemouli continues: “I see Germany going very slowly in designing the law, the leaked document (outlining its plans) came as a surprise to many in the German government and beyond. It may not have had consensus among all branches of government, or with EU countries that have worked closely with Germany on European reform. »
“His approach is scattered and this may well reflect some of the internal divisions in German politics, which is now slowing down German reform. »