The Current Legal Situation in Germany
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. It is, therefore, not banned (cf. § 31a BtMG). Whoever violates the legal provisions of the Narcotics Act can be punished with a fine or a lengthy prison sentence (up to 5 years), depending on the severity of his offence and taking into account any circumstances.
In addition to the criminal law consequences associated with cannabis, those of consumption, among others, must also be considered. In this context, the health/physical reaction to such a substance should not be underestimated; on the other hand, it should be considered that certain actions under the influence of narcotics can also be prosecuted under criminal law—for example, participation in road traffic despite taking/consuming a narcotic.
Since 2017, doctors have been allowed to prescribe pharmaceutical-grade cannabis to seriously ill patients (cf. § 31 para. 6 SGB V) without first having to obtain an exemption from the Federal Institute for Drugs and Medical Devices (BfArM) (cf. § 4 para. 1 no. 3 lit. a BtMG). In such cases, however, a number of conditions of the law on medicinal products and narcotics must be observed. In addition, it must also be noted in this context that self-cultivation is still prohibited in these cases.
For more information on the possession and trafficking of narcotics, please take a look at our article “Drug Offences and Narcotics Criminal Law in Germany“.
Discussions on Legalisation – Plans of the German Government
While in some other European countries, the use of cannabis, which is considered unpunishable in Germany, is punished as a criminal offence, 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 taken place (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 the legalisation of cannabis in Germany is becoming more and more concrete. In our article “Could Cannabis soon be Legalised in Germany? November 2021“, we explain, among other things, the advantages and disadvantages of legalisation.
The coalition agreement between the Social Democratic Party of Germany (SPD), Alliance 90/The Greens (BÜNDNIS 90/DIE GRÜNEN) and the Free Democrats (FDP) states: “We are introducing the controlled distribution of cannabis to adults for consumption purposes in licensed shops”. This statement aimed to decriminalise the drug’s possession for pleasure purposes and create a controlled market. Now the question arises as to what exactly is planned concerning legalisation and how the implementation will take place.
As early as the middle of the year, the federal government sought information and expertise from experts on implementing 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.
Conflicting Laws in Germany
Although the plan to legalise cannabis has not yet been fully implemented, preparations such as the legislative process are underway. However, EU laws could stand in the way of legalising cannabis. At least according to the Scientific Service of the Bundestag report, the existing legal requirements were explained. There it says: “The control system under international law with regard to the consumption of drugs is based on three conventions” (cf. documentation WD 2 – 3000 – 057/22 of the German Bundestag). The mentioned conventions are:
- The Single Convention on Narcotic Drugs of 1961,
- the Convention on Psychotropic Substances of 1971, and
- the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.
In these conventions, the parties – including Germany – undertake to refrain from the commercial cannabis trade.
An exception is trading for medical or scientific purposes. The legalisation of cannabis for non-medical purposes could therefore be a violation of the conventions. In this context, however, it is questionable how the conventions above are to be understood. Some voices point out that the convention aims to protect children, young people and public health.
Since the current legal situation could not achieve this goal, another solution should now be sought through which the German market can be better and more intensively controlled and regulated.
Open Questions about Legalisation in Germany
Many questions remain unanswered, first and foremost, when the 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 at all in the event of the legalisation of cannabis. The demand for cannabis to be used for medical purposes is currently not covered by German producers alone. The substance is, therefore, still imported from various countries, mainly from the Netherlands or Canada.
For more information on the legal situation regarding commercial hemp cultivation in Germany, please see our article “The Cultivation of Cannabis – Possibilities in Germany“.
Key Points of the Draft Law
On 26 October 2022, the first key points of the draft law were explained by 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 are to be permitted for adults.
In addition, the cultivation of 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, in future, 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 at a sufficient distance from schools and other facilities for children and young people.
Furthermore, there is the consideration of a gradation concerning 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 the age of 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, the plan will not make it a punishable offence. Only the confiscation of the drug and the possible participation in appropriate courses on the subject are to take place. Advertising is also to remain prohibited.
However, according to Lauterbach, 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 is to be submitted to the EU Commission before a concrete bill is drafted to check whether the plan and its implementation violate EU law.