While some people deem the usage of cannabis as a youthful indiscretion, for others, it is a criminal offence that should be punished. German law clearly regulates, among other things, the production, trafficking and related activities concerning the drug. Nevertheless, cannabis is considered the most trafficked and consumed drug in Germany in the past year. With regard to trafficking in this and other types of narcotics, it can be noted that the number of cases is constantly increasing. Likewise, the prosecution of criminal offences in connection with the drug is increasing. In politics, however, the idea of legalising cannabis in Germany has not been ruled out.

In the following, we will explain the current legal situation regarding cannabis in Germany, go into the current debate in politics and discuss some arguments for and against the legalisation of the narcotic drug. If you have any questions or need individual and personal legal advice, please get in touch with the lawyers at Schlun & Elseven Rechtsanwälte.

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Legal Definition: What is Meant by Cannabis?

Cannabis is an Indian hemp plant. It is used to produce substances that can have an intoxicating effect on humans. The intoxication is caused by the psychoactive substance tetrahydrocannabinol (THC) contained in the plant.

Its legal status is demonstrated under the Narcotics Act (BtMG). According to the BtMG, cannabis is an illegal narcotic in Germany. Annexe I BtMG defines cannabis as “marijuana, plants and plant parts of the plant belonging to the genus Cannabis”. The plant’s dried and crushed blossoms and leaves are called marijuana (grass), while the cannabis resin is called hashish (dope).

Besides THC, cannabis also contains the ingredient cannabidiol (CBD). This single substance is not an addictive substance. Therefore, it is considered harmless and is not included in the narcotics law. However, CBD is usually not available as a single substance. Since this ingredient belongs to the hemp plant from which the above-mentioned narcotic drugs are produced, CBD in combination with other active substances is also subject to the Narcotics Act.

Current Legal Status of Cannabis in Germany

As far back as 1994, the German Federal Constitutional Court classified the social and individual effects as well as the psychological consequences of the consumption of the narcotic cannabis as low (cf. BVerfG, the decision of 09.03.1994 – 2 BvL 43/92 et al., marginal no. 25, 26). Nevertheless, according to Annexe I BtMG, cannabis is a non-marketable substance.

In the Narcotics Act, some criminal offences related to cannabis and other narcotics are specified. Thus, the cultivation, production, and any activities connected with the sale of the narcotic substance as well as the acquisition and possession of such a substance are prohibited and punishable by imprisonment or a fine (§§ 29 ff. BtMG). In addition to the penal consequences of the BtMG, however, other effects of consumption, possession, trafficking, etc., must also be considered. For example, participation in road traffic under the influence of narcotics is a criminal and administrative offence. In this context, the withdrawal of the driving licence, a driving ban or the payment of a fine as a consequence of the actions are possible.

The consumption of cannabis, on the other hand, is considered self-harming according to German law and is therefore exempt from punishment, provided that there are no actions under the influence of the drug that needs to be punished. Thus, the possession of a small amount of cannabis can be exempted from prosecution. However, this only applies if the possession serves the purpose of personal use. The amount that can be described as small depends on the federal state and the limit applicable there.

It should also be noted that since 2017, it has been possible to prescribe the drug in pharmaceutical quality, provided that this serves a medical purpose. However, any conditions of the law on medicinal products and narcotics must be considered.

Feel free to read our article “Lawyer for Drug Offences and Narcotics Criminal Law” for more information.

The Current Debate on the Legalisation of Cannabis in Germany

In most parts of the world, cannabis is prohibited. However, there has been a change in this regard. For example, possession of a higher quantity of the drug is now legal in some countries. In Germany, too, the legalisation of the narcotic is increasingly being discussed. In the following, we will objectively explain the arguments for and against legalisation.

While the use of narcotics is now legal under certain preconditions and in the context of medical treatment, the expansion of permitted actions has so far been lacking. The argument here is the consequences of legalisation. In particular, the protection of children and adolescents is emphasised. For adolescents, the use of cannabis can have considerable health consequences. Studies prove that the use of the drug during the physical development phase of an adolescent (as a result of the not yet completed brain development) can lead to a change in the brain’s structure. This early consumption may also affect the person’s performance. Early and intensive use of the drug can also lead to psychosis. This danger is especially true for people who already have a history of psychosis. Therefore, if legalisation were to occur, the condition of an age limit should be linked to it.

The legalisation of the drug is supported by the prevention of trade in contaminated substances. Currently, cannabis can be mixed with other substances that can have a higher addiction potential or other health consequences. At present, the quality of cannabis that is illegally marketed cannot be controlled, so the consumer does not know precisely what they are ingesting. Within the framework of legalisation, on the other hand, the market would be controllable. Likewise, a controllable market could curb access for young people. In the course of legalisation, it would also be possible to provide better and more targeted information about the drug and its effects.

On the other hand, there would be the possibility of creating a false impression among children and young people. The curiosity to try the drug, as adults do, could lead to a problem and result in the consequences described above. Similarly, legalisation cannot guarantee the complete containment of the illicit market. Thus, despite legalisation and the controlled sale of the drug, other countries still have to tackle the illegal trade.

The experience of legalising cannabis use and possession in other countries varies. While some countries have created a clear framework for the implementation of legalisation and have thus been able to gain relatively positive experiences, other countries have not observed any change in consumption behaviour.

Schlun & Elseven Rechtsanwälte will be happy to keep you informed about the development of the debate in Germany. If a change in the current legal situation becomes apparent, we will notify you via our website. If you have any further questions about the current regulations, please feel free to contact us today.

Company Formation and Legal Production of Cannabis in Germany

Until now, the demand for cannabis for medicinal purposes in Germany has largely been met by imports. To make cultivation in Germany possible and legal, the Federal Institute for Drugs and Medical Devices (BfArM) founded the Federal Cannabis Agency. This agency is responsible for controlling cultivation, harvesting and all subsequent processes. The German Federal Cannabis Agency does not carry out the processing steps itself. Instead, the cultivation of the plants is carried out by selected companies commissioned by the responsible agency. In this way, the first legal harvest was carried out in Germany in June 2021.

Our lawyers will be happy to assist you in setting up a company specialising in the production of cannabis. To obtain the authorisation from the Federal Institute for Drugs and Medical Devices (BfArM) required for the legal cultivation of cannabis, we will analyse your goals and explain the options available to you, file the relevant applications together with you, check compliance with all regulations. We will also be happy to advise you regarding further steps.

Full-Service Legal Support with Schlun & Elseven

The information provided in this article is of a general nature. If you require specialised legal advice, please do not hesitate to contact the legal team at Schlun & Elseven.

Schlun & Elseven Rechtsanwälte is a multidisciplinary full-service law firm. With offices in Cologne, Aachen and Düsseldorf as well as conference rooms in Hamburg, Berlin, Stuttgart, Frankfurt and Munich, we operate nationwide and are always at your service. Our lawyers advise you in German, English and other languages. Call us, send us an email or use our online form – we will be happy to give you an overview of your options as part of an initial assessment.