Author
Peter Homberg
https://www.dentons.com/en/peter-homberg
On September 29, 2023, the German Federal Council (Bundesrat) officially commented on the German Federal Government’s (Bundesregierung) cannabis legalization plans for the first time. On October 20, 2023, the Parliament followed with a first (of three) legislative reading.
Content of the Law
The draft Cannabis Law (Cannabisgesetz, “CanG”) provides for the removal of cannabis from the Narcotics Act. The core of the law is composed of the legalization of the individual self-cultivation and communal self-cultivation through cultivation associations. Any person over the age of 18 may privately cultivate up to three cannabis plants for personal consumption or up to three hemp plants for non-commercial use at the same time at their place of residence or habitual abode in Germany. The cannabis from private self-cultivation may not be passed on to third parties. The propagation material, seeds or seedlings, may be obtained from the cultivation associations even as a non-member. Home-growers may purchase a maximum of seven seeds or, five seedlings, or a mix of seven seeds and seedlings per month. Growers must take appropriate safety precautions to prevent access by minors and third parties.
Cultivation associations are registered non-profit associations whose purpose is the collective cultivation and distribution of cannabis and propagation material for personal consumption. The operation of cultivation associations is subject to a permit, which is to be granted upon application if the specified requirements are met. Cultivation associations may pass on to each member a maximum of 25 grams of cannabis per day and a maximum of 50 grams per month. For adolescents (18-21 years old), the amount is limited to 30 grams per month; moreover, only cannabis with a THC content of up to 10% may be passed on to adolescents. Only persons over the age of 18 may become members. Each growers’ association may have a maximum of 500 members, and a person may only be a member of one cultivation association. Cannabis may only be cultivated by members or “mini-job” employees (earning no more than EUR 520 per month) of the cultivation association. The commissioning to other third parties for cultivation is expressly prohibited.
Statement of the Federal Council
Although the Federal Council has called for improvements in some areas, it has not fundamentally rejected the draft law, despite the efforts of individual federal state representatives and other critics.
In particular, the opinion that the CanG requires approval in the Federal Council did not find a majority in the Federal Council’s vote. In Germany, laws only require the approval of the Federal Council when specified in the German Constitution (= consent law). If the law is not classified as a consent law, the Federal Council can merely object, however, the vote has no veto power. If the legal assessment of the current law remains as is, the Federal Council would not be able to veto the law.
The German states’ criticisms relate to their responsibilities under the CanG for supervision and enforcement. According to the Federal Council’s statement these responsibilities should be regulated so that no additional personnel or financial requirements arise. The statement further notes areas in need of improvement—for example, traffic accident prevention, closing criminal liability gaps, setting minimum standards for securing cultivation facilities and the need for legally mandated standards for the development of a general plan to protect youth and health. In particular, as the CanG moves through the legislative process, regulations relevant to youth protection will be reviewed for their practicality and feasibility.
Legislative reading in the Parliament
On October 20, 2023, the first legislative reading a subsequent discussion in the parliament took place. As expected, the three coalition parties (SPD, die Grünen, FDP – moderate-left, green, liberal), who hold the necessary majority to adopt the law, support the draft law.
The CDU/CSU (conservative) group is calling for the planned legalization of cannabis to be halted and for efforts on the topic of prevention and education to be increased. The AfD (far-right) has also submitted a countermotion, in which the deputies call for the complete abandonment of plans to legalize cannabis for recreational purposes and for medical cannabis to be subjected to the AMNOG procedure for the benefit assessment and pricing of medicines. Both countermotions are substantiated with concerns of health risks that the consumption of cannabis poses and of an insufficient youth protection. “Die Linke” (left) generally support the plans of legalization, but have criticized some details in the implementation.
It is expected that the draft law will be modified in several areas until a potential final adoption. The main criticism from supporters of the legalization concerns the bureaucracy that is involved in the current version of the law, especially regarding the approval and supervision of cultivation associations, and that proposed prevention/youth protection measures are insufficient or unrealistic.
Next legislative steps
The CanG was originally scheduled to come into force at the beginning of 2024, and politicians of the coalition parties remain confident that this timeframe can be adhered to. While it is indeed still feasible to implement the law on January 1, 2024, it is becoming less likely with every slight delay in the legislative process. The current plan sees a hearing in the Committee on Health on November 06, 2023; a second and third reading in the Parliament (Bundestag) on November 16, 2023; and, if the Parliament adopts the law, a second passage in the Federal Council (Bundesrat) on December 15, 2023. If the Federal Council were to object, a medication committee would have to be involved, which would considerably delay the legislative process.
