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German SPD Representatives Confident A Solution To International Legal Hurdles Will Be Found

EARLIER this month news broke that recent analysis conducted by the Bundestag’s scientific service suggested the creation of a legal recreational cannabis market could contravene a number of European treaties which Germany had signed. 

While many commentators were quick to point out that this was nothing new, and that the study was commissioned by anti-legalisation party the Christian Social Union, the news reinvigorated debate and scrutiny surrounding the progress of Germany’s ambitious cannabis project following a period of relative radio silence from the Government. 

Days later, two members of the Social Democratic Party (SPD) made the unusual step of hosting an Instagram Live session to provide insight on how discussions were developing within their party, one of the three that form the German coalition government. 

Though the discussion by no means constituted an official position from the Government, many points raised offered new insight into the thinking behind how it intends to tackle many of the issues yet to be addressed. 

Legal Hurdles 

Alfredo Pascual, Vice President of Investment Analysis at SEED Innovations, who explored the session in detail, told BusinessCann that the information should be taken with a pinch of salt because it is still in the very early stages of the legislative process, ‘but because the two SPD legislators that did the Instagram session are leading the discussions within their party, it has some weight’. 

Unsurprisingly, one of the key discussion points of the session was the recently highlighted potential breaches of European law, which could see Germany’s legalisation efforts thrown out by the European Court of Justice. 

The SPD’s Carmen Wegge and Dirk Heidenblut offered a confident response to these issues, stating that they were very sure they would find a solution that didn’t breach international law, and would not impact the legislative timeline. 

“An interesting point here is that they reassured that they will have a solution. But it also seems that the issue isn’t so simple. If it were easy, they would’ve said without further delay what that solution is. But so far they’ve only hinted at potential pathways forward”, Mr Pascual said. 

Another key aspect of their response to this topic is the strong indication that the eventual solution will be compliant with international law. 

“They have not been signalling that the solution will be simply to ignore international obligations; they have been signalling very clearly that they intend to fully comply with international law. I think that’s a very important point.”

In a separate address to the media held earlier the same week (September 12), a spokesperson for the German Ministry of Health said, when pressed about this topic, that they currently have a team of international lawyers working on a solution and this will be addressed in the upcoming ‘Eckpunktepapier’, now set to be published in October. 

This Eckpunktepapier is understood to be a simplified summary of what the country’s draft law, due to be published by the end of this year or early 2023, will look like. 

In light of a clear commitment from the Government that they will find a solution to the issue by October, Mr Pascual says that ‘if it is not addressed in this document, some may see that as a worrying sign’. 

Other New Developments

While the session covered a myriad of topics, including issues such as driving licences, online sales, and THC and possession limits, discussions surrounding decriminalisation and the Bundesrat were most notable. 

On the former, while the Government has been consistent that they want a single law to cover both legalisation and decriminalisation, there appeared to be a suggestion that they see the implementation of decriminalisation, home growing and social clubs happening before the launch of a commercial market, which takes longer to implement. 

Citing his home country of Uruguay ‘and other parts of the world’ as an example, Mr Pascual suggested that legalising without a clear commitment to swiftly creating a fully regulated market has been a ‘painful’ implementation of the law, and led to a ‘very grey market’ emerging. 

“If the purpose of the government is to have a strictly controlled supply chain, deprioritizing the implementation of legal commercial sales would arguably not be ideal… Limiting legal access to home growing only, without consumers also having the option of buying in licensed shops, could represent a risk. Ideally, the three ways of accessing – home growing, social clubs and commercial sales – would be legalised and implemented in parallel.”

Elsewhere, the ‘Bundesrat issue’ was also covered. In order for legalisation to be implemented, the bill will need to receive final approval from the Bundesrat, which represents Germany’s 16 states at a federal level. 

This has long been cited as a potential hurdle; however, during the Instagram Live session the SDP representatives reassured that for decriminalisation and home growing to go ahead, no consent from the Bundesrat would be necessary. 

Mr Pascual suggested this may signal the two SPD legislators may be thinking about a plan B ‘should the Bundesrat end up representing a challenge.’ 

While Mr Wegge and Heidenblut believe Bundesrat approval is necessary for full commercial legalisation, this may suggest they plan to push ahead with decriminalisation and home growing should that house vote to block legislation.  

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