On 16 August 2023, the Federal Cabinet introduced a bill on the partial legalisation of cannabis. The draft implements the first pillar of the key proposals paper on the legalisation of cannabis for recreational purposes that was already presented on 12 April 2023 (see our article of 12 April).
The bill in detail – implementation of the first pillar of legalisation
Along with amendments to existing laws such as the Criminal Code (Strafgesetzbuch), the Narcotics Act (Betäubungsmittelgesetz) and the Medicinal Products Act (Arzneimittelgesetz), the bill provides in particular for the introduction of a Recreational Cannabis Act (Konsumcannabisgesetz, “KCanG”) and a Medical Cannabis Act (Medizinal-Cannabisgesetz, “MedCanG”).
Recreational Cannabis Act
The KCanG includes the following regulations:
Adults will be able to legally possess up to 25 grams of cannabis for their own consumption.
Non-profit associations (“cannabis clubs” or cultivation associations), with a maximum of 500 members 18 years of age and older, may collectively cultivate cannabis for recreational purposes and supply it only to members for their own consumption. These clubs will be under the supervision of the state authorities.
A maximum of 25 grams of cannabis per day and 50 grams per month may be dispensed to each member. People under 21 years of age may only receive a maximum of 30 grams per month.
Consumption will not be permitted in the club rooms (the consumption of alcohol will also be prohibited).
The clubs will have to maintain a minimum distance from schools and day-care centres, and the consumption of cannabis will be prohibited within a 200m radius of schools, day-care centres and the cultivation associations themselves. Consumption of cannabis in pedestrian zones before 20:00 will not be allowed.
In the future, each adult will be allowed to have three cannabis plants for home cultivation. For this purpose, cultivation associations may provide their members with a maximum of seven seeds or five cuttings per month. Appropriate measures and safety precautions will have to be taken to ensure that home-grown cannabis is not accessed by children, adolescents or third parties.
Contrary to original plans, providing home-grown cannabis to other adults for direct consumption in their own homes will remain prohibited.
The law will be reevaluated after four years.
Medical Cannabis Act (MedCanG)
The new MedCanG is intended to make an even clearer distinction between medical cannabis and non-medical (recreational) cannabis. For this reason, the regulations on medical cannabis will be set out in a separate new law. This means that regulations that were previously scattered throughout various laws will now be consolidated in one place. Other than that, however, there are hardly any material changes compared to the current legal situation. It will still be the case that only companies commissioned and licensed by the Federal Institute for Drugs and Medical Devices (Bundesinstitut für Arzneimittel und Medizinprodukte) may cultivate medicinal cannabis. The most important change is that a special narcotic prescription form will no longer be required and a normal doctor’s prescription will be sufficient.
The bill now adopted by the Federal Cabinet essentially incorporates the previously-announced key points of the first pillar, and is expected to be presented to the Federal Parliament (Bundestag) for discussion after parliament’s summer recess. The governing coalition’s parliamentary groups in the Federal Parliament have already announced the need for changes in some areas. We will report on further developments.
Second pillar of cannabis legalisation: Commercial model projects (draft bill expected in autumn 2023)
The second pillar is expected to result in an initial draft in autumn 2023 and will involve the testing of “commercial supply chains” in model projects in districts and cities of several federal states. For five years, companies are to be allowed to produce, distribute and sell to adults in licensed specialist retail stores. The model will be scientifically monitored and the findings will be provided to the European Commission. The possibility of permitting distribution of edibles (e.g. biscuits or cakes containing cannabis) subject to strict conditions is currently being reviewed.
Consequences for cannabis distribution in Germany
In view of the bill and the future plans, the cannabis distribution situation in Germany looks as follows:
In contrast to what is stipulated in the coalition agreement, there will be no full-scale legalisation.
Nevertheless, cannabis will become more available in the population as a whole which, from a purely objective standpoint, is also likely to have an impact on law enforcement. It remains to be seen whether the new possession limits, etc. will actually lead to less bureaucracy and criminal prosecution.
For the time being, commercial production and distribution of cannabis will still only be possible for medical purposes.
However, it is also conceivable that for chronically ill patients, membership in a “cannabis club” will eliminate their need to obtain prescriptions for medical cannabis.
It is very likely that it will only be possible to dispense commercially produced/imported cannabis in licensed shops in the course of implementing the model projects involved in the second pillar. It is unclear when these model projects will commence. According to Federal Health Minister Lauterbach, a corresponding bill is planned for autumn 2023.
In the course of implementing the new two-pillar model, the Federal Government will, by its own account, invoke the interpretive declaration made in 1993 upon ratification of the 1988 UN Convention and issue a statement declaring the project to be compatible with the purpose and legal requirements of the UN Conventions.
Moreover, the Federal Government has announced that alongside the national implementation, it will continue with its efforts to persuade European partners to align with the more liberal approaches of the original (more far-reaching) key proposals paper, while assessing the possibility that a sufficient number of EU Member States will take the initiative to make the EU legal framework more flexible and develop it further.
Recently, the Research Services of the Federal Parliament also published a (further) expert report on the scope for legalisation under EU and international law. Even though the 43-page study does not explicitly deal with the bill for the CanG, it has numerous implications for the Federal Government’s proposed legalisation. The report concludes, among other things, that full legalisation would likely contradict applicable EU law. However, according to the Research Services, partial legalisation in the private sector (pillar 1) as well as scientifically monitored model projects (pillar 2) could in principle be compatible with EU and international law. The report also concludes that a final assessment of the proposed legalisation can only be carried out by the ECJ, which must resolve questions concerning the interpretation of EU law. The question of whether the Federal Government’s proposed legalisation is lawful therefore cannot be answered definitively – at least not yet.