Author: Peter Homberg
Contact Peter: https://www.dentons.com/en/peter-homberg
Germany passes new law on the use of cannabis (“CanG”) partially legalizing cannabis for recreational use
The last few weeks were characterized by vehement debates within the governing coalition which gave the impression that the legalization of cannabis for recreational purposes in Germany might not happen after all. But on 23 February, the German Federal Parliament (Bundestag) passed the new Cannabis Act (Cannabisgesetz, “CanG”), thus also implementing a central plan of the federal government’s coalition agreement of November 2021. The implementation of the CanG represents the first part of the Federal Government’s (Bundesregierung) two-pillar plan to legalize cannabis for recreational use. The second pillar aims to set up so-called model projects. In certain regions, it should be possible to buy cannabis in specialist stores under scientific supervision.
Numerous associations and organizations had previously commented on the draft bill, and it was also discussed in numerous committees. In a somehow turbulent and emotional meeting on Wednesday, 21 February, the Health Committee (Gesundheitsausschuss) adopted a number of amendments to the original draft.
The law, which was passed by the Bundestag in its second and third readings, is due to come into force on 1 April 2024.
Most important contents
Growing regulations
The law will allow adults to possess up to 50 grams of cannabis for personal consumption in private spaces. In public spaces, the maximum limit will be 25 grams. Cannabis can be obtained and consumed from personal cultivation (up to 3 plants per adult in a household). Section 4 para. 2 of the Consumer Cannabis Act (Konsumcannabisgesetz, “KCanG”) stipulates that the cannabis seeds required for home cultivation in accordance with Section 9 CanG or for joint cultivation in cultivation associations (also called: cannabis clubs) may only be obtained from EU member states. Seeds, plants and harvested hashish and marijuana must also be protected against theft and access by children – for example with lockable cabinets and rooms.
Cannabis cultivation associations
The second part of the new CanG is to allow cannabis to be cultivated as part of a membership in a growers’ association. These cultivation associations will then be allowed to start operating from 1 July 2024. According to the plans, the associations or clubs may supply a maximum of 50 grams per person per month to their up to 500 members. Only adults can become members. If they are between 18 and 21 years old, they will receive a maximum of 30 grams per month. For them, there is also a limit on the THC content – it must not exceed ten percent.
Consumption is not permitted in the clubs. This is only permitted in a distance of 100 meters. This also applies to schools, children’s and youth facilities, playgrounds, and publicly accessible sports facilities. However, cannabis clubs are allowed to distribute a limited number of seeds and cuttings to even non-members for home cultivation. A maximum of seven seeds or five cuttings per month will be permitted.
The umbrella organization of German cannabis social clubs is expecting a boom following legalization. There are currently 300 groups that are in the process of founding a club or are just waiting for the law to finally come into force.
Elimination of the tender procedure
The award procedure for the domestic cultivation of cannabis for medical purposes by the Cannabis Agency (Cannabisagentur) at the Federal Institute for Drugs and Medical Devices (Bundesinstitut für Arzneimittel und Medizinprodukte, “BfArM”), as provided for under current legislation, will no longer apply. In future, authorization for the domestic cultivation of cannabis for medical purposes for interested economic operators will be granted via a licensing procedure in accordance with Sections 4 et seq. Medical Cannabis Act (Medizinal-Cannabisgesetz, “MedCanG”).
Open questions
Many detailed questions regarding the practical implementation of the CanG are still unclear. There is already a contradiction with the 50 grams that may be possessed at home: Because three plants usually yield much more harvest – However, cannabis may still not be passed on to others. Exceeding the maximum possession limit would be punishable by law. So far, the only option is to throw it away or grow less.
There are also still uncertainties regarding the effects on road traffic: the actual expert commission to determine a legal THC limit could not agree on a joint recommendation. The Federal Ministry of Transport (Bundesverkehrsministerium) therefore appointed a new working group to find a compromise. A relatively low limit of 1.0 nanogram per milliliter of blood serum currently applies in court but is not stipulated by law. Federal Health Minister Karl Lauterbach promised a legal regulation in the near future.
Criticism
From politics
Among others, the parties CDU and CSU as well as some members of parliament from the SPD reject the partial release. Doctors, police officers and psychotherapists had warned against the plans – the interior ministers of the federal states also opposed the federal government’s plans. As to them,the permitted cultivation of cannabis at home could not be controlled, nor could the distance regulations to children.
There is also criticism regarding the age limit, as several studies argue that the brain development of young people is only complete in their early to mid-twenties and that cannabis use can impair the brain development of adolescents and young adults. In addition to physical dependence, psychosis and schizophrenia can occur.
From the cannabis industry
With regard to the CanG, the cannabis industry particularly emphasizes the difficulty of finding suitable areas for cultivation and distribution. On the one hand, this has a lot to do with the distance rules, which are supposed to apply to the property of the cultivation associations and in many places leave hardly any leeway for permissible areas. On the other hand, with regard to investment and start-up costs (incidentally the second biggest challenge at 66%), the question arises as to which areas would be available for cultivation at all and could be used at a manageable cost.
From the judiciary
Criticism has also come from the criminal justice system. The reason is a kind of amnesty provision in the law according to which thousands of files must be reviewed. Specifically, it concerns Article 13 of the draft (BT-Drs. 20/8704). This is intended to insert a provision into the Introductory Act to the Criminal Code (Einführungsgesetz zum Strafgesetzbuch, “EGStGB”), which is intended to determine the applicability of Article 313 EGStGB, according to which sentences that have not yet been executed are to be remitted if the offense on which the sentence is based is no longer punishable.
Possible delays
However, the implementation of the proposed legislation could still be delayed for some time. The Federal Council (Bundesrat) will discuss the Cannabis Act on 22 March 2024. The Bundesrat must now be consulted in the legislative process. It cannot prevent the law from being passed, as it does not require the approval of the Bundesrat due to the CanG’s classification as an objection law. However, the Bundesrat can instruct the Mediation Committee (Vermittlungsausschuss) to examine the law. At the meetings of the Vermittlungsausschuss, an attempt is made to find an agreement between the divergent views of the Bundestag and Bundesrat. The committee can make proposals to amend the bill or recommend that the bill be repealed altogether. If no agreement is reached at the second meeting convened on the same matter, any member may request that the procedure be closed. If no agreement is reached at the subsequent meeting, the procedure is concluded without agreement. A further result of the conciliation procedure may be the confirmation of the Bundestag’s legislative resolution.
According to information from opposition circles, it is very likely that the Bundesrat will refer the bill to the mediation committee. The reason for this is said to be the concern of some federal states that the criminal justice system will be overburdened in connection with the decriminalization of cannabis. There are also complaints that a more generous timeframe would have been necessary for proper implementation. However, the extension of the implementation deadline was rejected by the Federal Ministry of Health (Bundesgesundheitsministerium). If the bill is referred to the mediation committee, the CanG’s entry into force could be delayed by several months beyond 1 April 2024.
Outlook
The CanG that has now been passed is a significant step forward in Germany’s legalization process of recreational cannabis. However, it has many gaps and will certainly remain the subject of many debates. It remains to be seen how the chosen theoretical approach will work in practice and whether the main objectives of protecting minors and combating the black market can be achieved.
