Will Germany Bow to EU and Scale Back Legalization?

Germany was super excited when it announced plans for a recreational cannabis legalization last May. Since that time, problems surfaced concerning EU regulation, and whether Germany would face obstacles in that direction. While some in the country want to push through, it seems Germany is likely to bow to EU pressure; and greatly scale back its original plan. A new draft law is now anticipated after Easter. What should we expect?

What we know

No one knows for sure what Germany is about to do, and we won’t until right after Easter. But recent issues concerning EU regulation have certainly taken the steam out of the sales. The legislation is already late for submission, and was originally planned for release by the end of the first quarter of 2023. Karl Lauterbach, the German health minister, says that the plan is to release a new draft after Easter; though we have no confirmation on what this means.

The reason for confusion stems from issues Germany has run up against as a member of the EU, since its looking to break with EU mandate. Whereas a few months ago there was a great desire to push back by many lawmakers (and still is), last month it was indicated that the bill might get scaled back in an effort to not deal with international legal issues. So far, the only thing confirmed by Lauterbach, is that “legalization is planned throughout Germany,” indicating a widespread measure of some kind is still in motion.

Much of the government is at odds with any plan to minimize the original legalization plan. Said FDP member Kristine Lütke to Zeit Online, “We need Germany-wide legalization because the black market can only be pushed back if quality-assured cannabis for recreational use can be traded in certified shops throughout Germany. If you can only legally buy quality-assured cannabis in a few cities, the black market will survive.”

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The original framework was set to allow adults 18 and up to purchase and have 20-30 grams of cannabis. The cannabis was supposed to be sold at government licensed stores, and possibly pharmacies as well. That initial framework, which was backed by the governing coalition, was also set to allow the self-cultivation of up to three plants.

The framework also spoke of adding an extra “special consumption tax” on cannabis products, alongside the country’s standard sales tax. This amount was not settled on, and the framework called for the tax amount to leave products at overall prices that can compete with the black market.

Though the government did pass this framework at the end of 2022, issues outside of Germany escalated when it came time for EU approval. And now it seems that this framework will likely get modified from its original version; to something more manageable for the EU.

Some possibilities of the new legislation

Whatever updates made to the framework are under wraps for now, but that doesn’t stop speculation from the peanut gallery of life. There are a couple unconfirmed thoughts as to the direction Germany will end up going with cannabis legalization.

Some think that self-cultivation will be instituted to a degree, with a push for cannabis clubs for more organized growing and dissemination. Think Spain, but as a more official model. Other ideas involve the implementation of sales though a pilot program, like in Denmark, or the one set to start in Switzerland. If the latter part is true, it indicates that a ‘wide-scale’ measure won’t mean ‘all encompassing’ of the country, and might only relate to certain areas.

Under this idea, the government would take its time to institute a full policy, as pilot trials tend to last several years. If Germany does adopt this method, a real legalization should not be expected for awhile, and nor should it be expected that the whole country will benefit from whatever is set up.

As nothing is confirmed about possible scale-back models, these are the main ideas swirling around right now. It’s thought these two ideas are relevant as they leave less polarizing issues for the EU to approve. In fact, the EU would only need to approve the first part, while the rest regarding cultivation and social clubs, would be only under Germany’s purview.

Truth is, we’ll have to wait until after Easter to find out for sure, and even that is actually questionable. According to Lauterbach, he is “firmly assuming that we will present the new proposal immediately after Easter,” which when you really look at the language, indicates we might not see something until after that time.

Problems with the EU, why this is happening

If it was only up to Germany, the conversation would be over; but there is another factor to consider. Germany is a member state of the EU, and operates like a state within a federal country. Which means, though it has its own government, it must also consider its federal parent organization, other countries of the EU, and international law as it applies to these bodies.

Germany made its announcement last year about legalizing recreational cannabis. It set up draft rules, introduced them, and approved them. But it did so with a heavy shadow hanging above; the need to get EU approval. According to the EU, cannabis with above .3% THC isn’t legal for recreational cultivation or sale, meaning Germany’s plans automatically don’t jive with EU mandate. So what happens when a country makes a decision outside of federal EU law? As no blueprint exists, its up to the EU to decide how to handle it.

When this came up last year as a possibly limiting factor; the country was split. Some wanted to push ahead and ignore the EU, others were more reticent to make such moves. Perhaps the EU is acting like an over-lording federal body trying to control its member country; but we should remember the EU has contracts with other countries related to drugs and commercial activities. The EU could put itself in hot water by allowing this. Plus, other countries like France are making a big stink, which adds more difficulty. France already lost its battle with the EU over blocking CBD imports from EU countries.

Though we don’t know what the EU said to Germany concerning the original draft law, there is wide concern for the legal discrepancy; with the EU as the main excuse for whatever revisions are underway. In fact, many in the industry are already resigned to this idea, as exemplified by Constantin von der Groeben, the managing director of cannabis company Demecan, based out of Berlin. According to von der Groeben via MJBizDaily:

“We have been expecting this result – a ‘model’ project – for several months and are therefore not surprised. Anything else would have been too difficult to align with EU regulation.” He continued that in terms of a trial program (if that’s what’s decided), “It might not even have to pass the Bundesrat. Legalization as early as January 2024, instead of the previously planned Q3 2024, would thus be possible.”

This understanding is mirrored by coalition partner the Social Democratic Party, which agrees that in the short term, a full legalization is not possible. In a statement issued last week, the Party said in reference to a trial program over a full legalization, “From our point of view, these can be model projects, decriminalization and self-cultivation.”

Conclusion

We won’t know until after Easter if the government will follow through with presenting something. And we won’t know until its presented, how modified the new plan is from the original, or what that means for a full-scale legalization in Germany. Best that we all let it go for now, unplug, and enjoy the holiday. We can get right back to it next week. Happy holiday, everyone!

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