Germany has been moving and shaking recently, stirring up the EU in preparation to open the first European-based adult-use industry. But does Germany require permission from the EU to establish this cannabis market? Or should it not care about its federal parent entity? That’s the question currently circulating in the country now, as some seek approval, while others are happier to simply put out a bill.
Germany and cannabis legalization
The initial idea was introduced in 2021, upon an election in Germany, and a new leadership coming into play. For years Germany was helmed by conservative Chancellor Angela Merkel, and her conservative Union coalition that opposed cannabis reform. The new leadership is instead a coalition of three pro-marijuana parties: the Social Democrats (SPD), Green Party, and the Free Democrats (FDP). Cannabis legalization was, in fact, one of the first orders of business when this new leadership took over.
In April of this year, Germany made it more formal. Following the announcement of Switzerland to open its own recreational market, Germany seized the moment to make a likewise announcement. In April, Marco Buschmann, the Justice Minister, released a statement saying that the Ministry of Health was already contemplating a recreational cannabis plan.
This announcement came in tandem with a second announcement by Finance Manager, Christian Lindner, who confirmed that Germany was in the process of creating a legalization measure. Nothing was released at that time though, with no information as to what could be expected, and how Germany would govern this new market.
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What do we know about what’s coming?
The first trickle of tentative information for the new market came in mid-October, when Germany released some key points for the upcoming measure. The information was released to the RND newspaper group, which functions as Germany’s editorial network. These measures are not all-encompassing, or final in any way. Should they be a part of the bill in the end, they would allow for sales to anyone 18 and above, and would set a purchase and possession limit at 20 grams, a THC cap at 15%, and a two plant allowance for home-growing.
Germany even got more specific with certain things. For example, according to these reforms, while adults of 18 would be able to access legal cannabis, those between 18-21 could only access products with up to 10% THC; with the reason being to ward off brain damage. An odd sentiment to bring into this, considering its part of a legalization measure, and cannabis hasn’t shown to cause brain damage. I expect this is one of those things put in to satisfy people who haven’t come around to a legalization, but are going to have to put up with it anyway.
The draft points also stipulate that if someone under 18 is caught with marijuana, that they won’t be subject to criminal charges. They could, however, be forced into prevention courses via the youth welfare office, also a bit silly considering that once at 18, they’d have legal access. In such circumstances, the contraband would predictably be confiscated.
The draft guidelines also get into basic regulation for dispensaries, including the minimum distance they can be from places like schools and youth facilities. The sale of cannabis would require licensing, and unlicensed sales would be a criminal activity met with criminal sanctions. It also says that synthetic cannabinoids would be illegal, but doesn’t get into what this means to the cannabis pharmaceutical market, which operates off of synthetics like dronabinol and nabilone. It stipulates that there could be no advertising of cannabis products, but that there might be the ability for online sales.
But…does Germany need permission from the EU to open this cannabis market?
Germany isn’t just a country hanging out there on its own. It’s part of a bigger conglomeration known as the European Union. The ‘EU’ functions sort of like a federal body, with Germany, and the other EU countries, operating like states. In this way, a policy set by the EU, is expected to be followed by all member countries. Sometimes, like in the case of France vs the EU, this is good. In that case, France tried to bar imports of CBD oil from other EU countries, that were sold within regulation. The EU nixed this ability in promotion of its mandate for free trade between member states.
In the case of Germany wanting a recreational cannabis legalization, the presence of the EU becomes a bit more questionable. According to the EU, cannabis of over .2% THC (soon to be .3% THC) is illegal, making what Germany is planning, an illegal move. And this brings up the question of whether Germany should have to get permission from its federal governing body in order to open a cannabis market. As well as what happens if Germany opens the market without permission. The EU doesn’t technically have a hard, fast, answer for what happens in this scenario.
For those wondering why Switzerland doesn’t seem bound by this issue, its because its not. Switzerland sits in Europe, but is not a part of the EU, making it free to create whatever policy it chooses when it comes to cannabis legalization, without having to consider breaking the rules of a federal body.
So now the question is, should Germany wait for permission from the EU to introduce a formal bill for a recreational cannabis market? Or should it just go ahead and do it? Some lawmakers are set on waiting for this approval, while others prefer not to. The latter sentiment was seen recently in Twitter posts, and demands on Health Minister Karl Lauterbach to stop waiting on the EU. Lauterbach presented a legalization measure to the federal cabinet last month, and proponents of it want it submit, regardless of EU approval.
What happens without EU approval?
We know that California, and Oregon, and Colorado, and the rest of the US legal states didn’t go to the US federal government to ask for permission to open recreational cannabis markets against federal regulation. We also know that there’s no way they would have gotten approvals if they had. Because of how the US constitution is set up, the states were able to take something not specified in the constitution (cannabis legalization), and use the omission to their advantage in terms of using States Rights. As of yet, the federal government has not gotten in the way of these state legalization measures.
What about in the EU though? What happens if a member country like Germany, decides to open a market outside of EU law? Truth is, there isn’t any specific measure that defines this example at the moment, meaning the EU must decide how it feels on the matter. According to Kai Friedrich Niermann, an attorney with KFN+, it could result in tons of legal issues in the future. In the International Cannabis Chronicle, Niermann stated:
“I assume that preliminary talks have already been held with the European Commission, and that no fundamental reservations are to be expected in this respect. Particularly in view of the fact that a number of member states are also already making preparations for a reform of their national cannabis policies. Minister Lauterbach also assumes that if the EU Commission gives its approval in principle, lawsuits from other member states pursuing a more restrictive cannabis policy will have no chance of success.”
Plus, the EU shot down France when it tried to bar CBD imports from other member countries. Could it attempt to actually stop Germany’s market? Maybe it wouldn’t be the best idea, but we see the US government constantly trying in its own way to curb things even as they grow out of reach. Maybe the EU won’t like its power being taken away. Maybe it will make this into a fight.
After all, the EU has signed documents with other countries that agree to bar and prevent any commercial activities that are related to drugs, when not for medical or scientific use. If the EU Commission – the executive branch of the EU, deems a German legalization to be non-compliant with EU mandate, it can start an infringement procedure against the country. So far, Lauterbach has expressed a desire to wait for approval of the current outline.
In fact, Lauterbach has stated that if the EU Commission “clearly comes to the conclusion that this path is not passable, we would not develop any draft law.” This doesn’t sound like something that would be easily swallowed by a leadership which already wants to nix EU approval. It should be remembered though, that Germany is the biggest economy in the EU, and the EU probably doesn’t want it to pull a Brexit, and walk away. Which could greatly influence this situation.
The question of whether Germany needs to get permission from the EU to open its recreational cannabis market remains, and we’ll all have to wait patiently to see the outcome. For now, the country is torn on the matter, with some wanting approval, and some wanting to forge ahead without it. Whatever happens in this situation, will help define the parameters for other countries looking to make the same move in the future.
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