It is one of Germany’s most trafficked and consumed drugs – cannabis. Regarding the legal situation in Germany, the production, trade, and all activities related to this substance (considered non-marketable according to Annex I of the German Narcotics Act) are currently clearly regulated: Acquisition and possession are prohibited and punishable by imprisonment or a fine. Nevertheless, the legalisation of this substance has been under discussion in Germany for several months.

To provide our clients with an initial insight into this topic, we will go into the current debate in Germany on the legalisation of cannabis below and describe the current legal situation compared to the planned legalisation. If you have any questions, please do not hesitate to contact the German lawyers of Schlun & Elseven Rechtsanwälte.

Rechtsberatung im Ausländerrecht

The lawyers at Schlun & Elseven advise both private individuals and companies. Our law firm can be reached by telephone, e-mail and our contact form. We also offer video conferencing. Please do not hesitate to contact our team for further legal services.

Current Legal Situation

While the cultivation, possession and trafficking of cannabis are prohibited under the German Narcotics Act (cf. § 29 BtMG), the consumption of cannabis is considered non-punishable self-harm and is therefore not prohibited (cf. § 31a BtMG). Whoever violates the legal provisions of the German Narcotics Act can – depending on the severity of their offence and considering any circumstances – be punished with a fine or a lengthy prison sentence (up to 5 years). In addition to the criminal law consequences associated with cannabis, the health consequences of consumption must also be considered. The health/physical reaction to such a substance should not be underestimated in this context. It should be considered that certain actions under the influence of narcotics can also be prosecuted under German criminal law. For example, participation in road traffic despite taking/consuming a narcotic.

Since 2017, doctors in Germany have been allowed to prescribe pharmaceutical-grade cannabis to seriously ill patients (cf. § 31 para. 6 SGB V) without having to obtain an exemption from the German Federal Institute for Drugs and Medical Devices (BfArM) first (cf. § 4 para. 1 no. 3 lit. a BtMG). In such cases, however, several prerequisites of the law on medicinal products and narcotics must be observed. In addition, it must be noted that self-cultivation is still prohibited in these cases.

For more information on possession and trade of narcotics, please visit our page “Drug and Narcotics Offences in Germany“.


Discussions on Legalisation – The Plans of the Politicians / German Government

While the use of cannabis, which is considered unpunishable in Germany, is punished as a criminal offence in some other European countries, the possession of a higher amount of cannabis for personal use is already legal in some countries (e.g., in the Czech Republic, in various states of the USA). In other countries, only decriminalisation has occurred (e.g., in the Netherlands), whereby possession or acquisition cannot be considered legal behaviour. Sanctions can, therefore, still be imposed.

The number of countries that continue to prohibit cannabis is still significantly higher. Nevertheless, a slow change can be noticed. This is also the case in Germany: the discussion about legalising cannabis is becoming increasingly concrete. In our article “Could Cannabis soon be Legalised in Germany? ” we explain, among other things, the advantages, and disadvantages of legalisation. You can find more information on the current debate here.

The coalition agreement between the Social Democratic Party of Germany (SPD), Alliance 90/The Greens (BÜNDNIS 90/DIE GRÜNEN) and the Free Democratic Party (FDP) states that the controlled distribution of cannabis to adults for consumption purposes in licensed shops will be introduced. This was aimed not only at decriminalising the drug’s possession for pleasure purposes but also at creating a controlled market. The question now is what exactly is planned regarding legalisation and how it will be implemented.

As early as the middle of the year, the German federal government sought information and expertise from experts on the implementation of the project. According to the media, a realisation of the project was initially planned for the spring of next year, but now there are doubts about such a quick development.


Legal Objections

Although the plan to legalise cannabis has not been fully implemented, preparations such as the legislative process are underway. However, legalising cannabis could be opposed by agreements under international law. At least according to the Research Services of the German Bundestag report, in which the existing legal requirements were explained. It states that the control system under international law concerning drug use is based on three conventions (cf. documentation WD 2 – 3000 – 057/22 of the German Bundestag). What is meant here:

  • the Single Convention on Narcotic Drugs of 1961,
  • the 1971 Convention on Psychotropic Substances, and
  • the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

In these agreements, the parties – including Germany – undertake to refrain from commercial cannabis trade. An exception is trading for medical or scientific purposes. The legalisation of cannabis for non-medical purposes could, therefore, violate the conventions. In this context, however, how the conventions are to be understood is questionable.

Some voices point out that protecting the health, children and young people is the aim of the conventions. Since the current legal situation could not achieve this goal, another solution should be sought for the German market to be better and more intensively controlled and regulated.


Open Questions about Legalisation

Many questions remain unanswered, first and foremost, when a realisation of the project can be expected and whether such a realisation is possible.

Furthermore, it is still unclear how the German market can and should be covered in the event of the legalisation of cannabis. The demand for cannabis for medical purposes is currently not covered by German producers alone. The substance is, therefore, imported from various countries, mainly from the Netherlands or Canada. For more information on the legal situation regarding commercial hemp cultivation in Germany, see our article ” The Cultivation of Cannabis – Possibilities in Germany“.


Key Points of the Draft Law – 10/2022

On 26 October 2022, the first key points of the draft law were explained by the German Federal Health Minister Karl Lauterbach. At a press conference, he announced that the purchase and possession of a maximum of 20-30 grams of cannabis for personal use is permitted for adults.

In addition, cultivating up to three plants for personal use is to be exempt from punishment. In addition, the sale in licensed shops or pharmacies is to be allowed.

However, these new developments/projects would only be possible under consideration and compliance with certain conditions or state control. For example, it should be a prerequisite that these licensed shops are located conveniently from schools and other facilities for children and young people.

Furthermore, there is the consideration of a gradation regarding the intoxicating substance in cannabis, the THC content (tetrahydrocannabinol). One idea is not to set an upper limit for this intoxicating substance for adults over 21 but to do so for younger people. This point, however, is still under discussion and has not been conclusively clarified.

For minors, the possession of cannabis, which is considered by many to be a gateway drug, remains prohibited. However, this will not be made a punishable offence. Only the confiscation of the drug and possible participation in appropriate courses on the subject are to take place. Advertising is also to remain prohibited.

However, according to Lauterbach, the legalisation is not expected until 2024 at the earliest since, among other things, it must be examined whether the above-mentioned key points violate EU law. To this end, the plan to legalise cannabis must be submitted to the EU Commission before a concrete bill is drafted to check whether the project and its implementation violate EU law.


Federal Government adopts Key Issues Paper – 04/2023

On 12.04.2023, after talks with the EU Commission, the German Federal Government agreed on the key issues paper presented in October. Implementation is planned in two steps as a so-called 2-pillar model (Club Cultivation & Regional Model/CARe). First, cultivation in non-profit associations and private self-cultivation are to be made possible. In a second step, the distribution of cannabis in specialised shops is to be implemented.

In particular, the first pillar provides that non-profit associations, which are to be established and run according to the general rules of an association, may cultivate cannabis for the personal use of their members. The distribution of the harvested cannabis (flowers) is to be allowed exclusively to members. Seeds and cuttings shall also be allowed to be distributed to members. The number of members per association is limited to a maximum of 500 persons, who may only be members of one association at a time. The minimum age is 18, whereby the associations are subject to strict age control. It shall not be allowed to advertise for the associations.

Convictions that were exclusively related to cannabis and would no longer be punishable under the proposed law are to be expunged upon request. Proceedings still in progress will be terminated when the proposed law comes into force.


Draft Law Published – 07/2023

On 06.07.2023, the draft bill for legal regulations on the handling of cannabis in Germany was published. The “Draft Law on the Controlled Use of Cannabis and on the Amendment of Other Regulations” constitutes the “Cannabis Law”, abbreviated as “CanG”.

By way of introduction, the draft again emphasises that the law aims to improve health protection, strengthen cannabis-related education and prevention, and protect children and young people.

According to Section 2 (3), it is to be permitted for persons aged 18 years and older to

1. possess cannabis (maximum limit of 25 grams),

2. to cultivate and distribute privately for personal consumption (free of charge and non-commercially) and

3. to cultivate cannabis for personal consumption in collective and non-commercial cultivation associations.

The consumption of cannabis is prohibited for persons under the age of 18. It is also forbidden to smoke pot in the presence of minors. Locally, consumption is prohibited near children’s, youth, and sports facilities. In pedestrian zones, consumption is permitted only between 8 pm and 7 am. The draft law provides for numerous prevention measures, as well as a comprehensive ban on advertising.

Exceeding the permitted handling of cannabis can, in principle, result in a custodial sentence of up to 3 years. There are also criminal offences for more severe violations and fines for lighter violations.

In addition to introducing the CanG, several amendments to existing laws are planned. Among others, the modification of the Federal Non-Smoker Protection Act is planned by including the smoking of cannabis products, among others, in addition to the smoking of tobacco products. As an amendment, § 1 para 1 No.4 is newly introduced, which states that the smoking of tobacco and cannabis products, including the use of electronic cigarettes and heated tobacco products as well as devices for vaporising tobacco and cannabis products, is prohibited in closed vehicles in the presence of minors or pregnant women.

Four years after the law has come into force, an evaluation will be carried out to check whether the changes to the law have achieved their objectives.


Expert Opinion on Compatibility with EU Law – 07/23

The European Department of the Research Services of the German Bundestag has now published its opinion on the regulatory freedoms of the Member States in the field of cannabis under EU law. The statement does not reflect the view of the German Bundestag but is an independent opinion on the professional responsibility of the department.

This opinion states that subject to the respective national design, decriminalisation in possession, purchase and cultivation should be possible within the framework of the private consumption clause. Accordingly, the planned decriminalisation suits the EU requirements. Legalisation would be doubtful, but the draft law nonetheless does not provide for this.

The Federal Ministry of Health also emphasises on its website that the planned implementation of cannabis decriminalisation is permissible within the framework of European and international law.


Cabinet Decision of 08/23: German Government Agrees on the Draft Law

On 16.08.2023, the German Cabinet passed the “Law on the Controlled Use of Cannabis and on the Amendment of Other Regulations”. This forms the first pillar of the 2-pillar cornerstone paper: It regulates private and communal, non-commercial personal cultivation for adults for personal consumption. The German Federal Government emphasises that protecting children and adolescents is a central component of the entire legislative project.

The German Hemp Association, among others, published a press release on the law on the same day. It criticises the quantity specification of 25 grams with three permitted plants for self-cultivation and the distance regulations, which make it challenging to find suitable locations and do not specify to the consumer and the police which areas are permitted and which are not. The association hopes for clarification of these details in the parliamentary procedure.


What Happens Next?

The law must now be introduced into the German parliament for consultation so the Bundestag can finally pass the law. Entry into force is planned for the beginning of 2024.