DELAYS in submitting its proposals to the European Commission and potential hold-ups once submitted could see Germany’s adult-use cannabis plans pushed back into 2025.
Originally scheduled for submission before the end of 2022, Germany’s draft cannabis law will not now be submitted for Europe’s approval until the end of March.
With the European Commission (EC) still coming to terms with the rapid global changes in the approach to cannabis there are some concerns that Germany will need to work on a Plan B, or abandon the initiative, if its initial submission is rejected.
And, this is leading to calls for the decision-making process to include Europe’s politicians in its Parliament and The Council of the European Union.
German Health Statement
In a statement to BusinessCann The German Federal Ministry of Health confirmed the draft law is currently ‘being formulated within the federal government’.
It said it is also seeking ‘expert opinion to shed light on the effects of a controlled sale of cannabis on health and youth protection and consumption’, as well as undertaking ‘a systematic review of the literature’ pertaining to those countries who have some form of legalized recreational cannabis.
Going on to say that in the meantime it was continuing to talk to the EC with the above ‘set to be completed by Spring 2023’.
Once submitted to the EC it will most probably be dealt with under an established protocol for enacting new member state legislation, known as the TRIS Notification Procedure.
This will see Germany’s proposals subject to a three-month standstill period during which the initiating country cannot enact the domestic legislation until it has received feedback from the EC.
EC Power To Delay Plans
The EC, or another member state, can also submit a ‘detailed opinion’ which has the effect of extending the standstill period for a further three months. And, the EC can also block progress for a further 18 months.
In a statement to BusinessCann the Home Affairs Directorate of the European Commission reiterated that personal drug consumption was a matter for nation states.
It continued: “A formal notification has not yet been submitted by the German authorities. Therefore, since we have not yet received the formal German request for consultation, we cannot make further comments at this stage.
“The existing EU law lays down minimum criminal sanctions for illicit drug trafficking, and prohibits the cultivation of cannabis.
“We are aware and we are closely following these developments, notably to understand the impact changes in cannabis policies. This includes the impact on health, crime, environment or social aspects.
“Once the legislation is adopted, the Commission will examine its compliance with the EU acquis.”
EC Cultivation Error
Keen-eyed readers will notice an obvious error in this statement which indicates some confusion within the EC on how to address the process.
This is the reference to the cultivation of cannabis being ‘prohibited in EU law’, which is plainly untrue with numerous medical cannabis cultivation facilities in situ across the continent.
Germany’s outline plans were submitted to the EC in an Eckpunktepapier (cornerstone paper) in October last year, by the ruling Coalition, which came into power in late 2021.
However, the EC said it lacked detail and asked to see a draft of the law.
Germany’s initial proposals recommend allowing those over the age of 18 to access cannabis through licensed stores with the aim of eliminating the illicit market and improving public health, in particular that of young people.
Niklas Kouparanis, CEO and Co-Founder of Bloomwell Group, one of Germany’s largest cannabis businesses with 250 employees, acknowledges that the delays were due to the fact that the Eckpunktepapier was not sufficient for the EC.
The feedback from the EC prompted Germany to embark on two further exercises – the literature review and further expert input, which is being undertaken by a non-profit drug researchers ISD Hamburg – with the aim of ‘demonstrating how prohibition has failed’ and how this new law can ‘protect public health’, he said.
“Because of the notification by the EC, Germany will need to draft the whole law, as the 12 pages of Eckpunktepapier is not sufficient.”
Come this spring when the draft is submitted to the EC, what will possibly be the most important decision in the history of the European cannabis industry will rest with the EC officials in the Home Affairs Directorate headed by Monique Pariat.
Little is known of her views on cannabis and drugs, but with the politicians frozen out of the picture, for now, and Brussels bureaucrats tending to err to the status quo, it will irk many cannabis advocates if Germany’s plans stumble at this hurdle.
There is also much domestic, anti-cannabis sentiment from various quarters such as the Police and Customs as well as the opposition Christian Democrats (CSU).
Bavaria’s Health Minister Klaus Holetschek, of the CSU, met with Ms Pariat late last year to urge Brussels to say no.
And, Germany’s Health Minister Karl Lauterbach, who is driving the reform, has made it clear that if the EC does say ‘no’, then that will more than likely be the end of its cannabis plans.
60/40 In The Betting
Mr Kouparanis believes Germany’s plans will be approved by the EC, but there will be some to-ing and fro-ing between the two before a final draft is settled.
“There are two statements that the EC can provide to Germany one is that this cannot be implemented, and secondly these are our suggestions.
“I believe it will be the latter, but if there is a huge pushback from the EU, it could well delay the implementation of the law into 2025.”
His best ‘guesstimate’ on the chances of success are 60/40 with the cannabis law coming into effect by Q1 or Q2 next year.
A third scenario is for the EC to reject the plans, the German coalition government to park the project and lose the 2025 election meaning the cannabis reform baton would be passed to fellow EU members, such as Czechia.
Finn Age Hänsel, Founder and Managing Director of leading Germany cannabis company Sanity Group says he would have ‘loved things to go faster’ but says it’s ‘better that it’s done thoroughly and Germany has a good law’.
Adding: “Looking at the timeline now I would say Q4 2024. The notification process could take six months and then there is the German parliament approval and further details around licensing and cultivation which need to be ironed out.”
Pathways To Progress
Many opponents have highlighted the obstacles to reform in the 2004 Schengen agreement, and European regulations around the freedom of movement of goods.
But, as BusinessCann has reported previously there are a number of pathways for Germany to introduce its legislation which allow it to comply with its international and European obligations.
As a signatory to the 1961 Single Convention on Narcotic Drugs (SCND), there are two possible compliant ways to proceed namely; under article 2 paragraph 9 which recognises the legality of using prohibited substances for industrial purposes, or, legalising as a scientific experiment.
The second, the scientific option, could see Germany introduce a trial for, say, a handful of years, with it being branded as an experiment, placing it out of the reaches of the EC or the UN.
Mr Kouparanis believes Germany needs to explore this option and is hopeful that Mr Lauterbach’s air of resignation in relation to an EC ‘No’ is merely a guise. And, that his team is working up a boil-in-the-bag, Plan B, scientific experiment, which Germany could enact immediately.
He said: “As the biggest country in Europe Germany has to take the lead and over time – whether it’s 2024 or not – we have to emphasise to fellow EU members that the number one priority is health and human protection. I believe this can only be done by drying up the illicit market.
“What we are doing could lead to a global change in cannabis perception with Europe saying we are now not working to the 1961 Convention anymore. This would also prompt change at the UN.
“Science is important. Switzerland and Holland are set to undertake trials which should provide the evidence required to get cannabis reform through on a political level.
Prohibition Does Not Work
“We have to convince the EC and member states that prohibition does not work and if the EC says no then we will have to take it to the political level.”
Mr Hänsel agrees with his fellow countryman that the chances of success are currently around 60/40.
Sanity is well-connected in German political circles and from its discussions with the Government and politicians he believes Germany has a strong hand.
“The scientific study which is now being undertaken is an attempt to demonstrate comprehensively to Europe that for Germany, and other societies, it is better to have a legalised drug that is under control, rather than an illegal one which is not.”
He highlighted cannabis tourism as a main European concern. Many of Germany’s neighbours such as Hungary and Poland, are expressing reservations.
One way to counter this is to permit sales solely to German residents, although this will also present the authorities with significant monitoring and enforcement challenges.
He added: “If Germany can get this right, and it gets the green light, we will see many other countries follow suit across Europe. So it’s good that Germany is leading the way and tackling the challenges that face cannabis reform in Europe. This could eventually form the model for others to follow.”
German cannabis lawyer Kai-Friedrich Niermann is following developments closely. He believes Germany will secure approval from the EC through the Notification process
He told BusinessCann: “No treaty under international law can ever oblige a country to prosecute its own citizens if it contradicts its own legal framework or constitutional principles.
“If the personal use and consumption of drugs does not violate the EU acquis, then logically the steps upstream for consumption, such as cultivation and trafficking, must also be possible under strictly controlled conditions.
“I assume that this understanding will prevail in the short to medium term in the official notification procedure.”
Last year witnessed the first co-ordinated pan-European efforts to present a united front on cannabis reform involving Germany, Czechia, Luxembourg, Malta and the Netherlands.
This led to the Council of the European Union adopting a new, human-rights based approach to drugs which has been branded a ‘paradigm shift’ which could smooth the pathway to continental cannabis reform.
This was driven by politicians so it’s hard to imagine a scenario in which pro-cannabis political reformers in the EU will be totally frozen out of the decision-making process.
Mr Friedrich-Niermann agrees: “At the moment, it is difficult to foresee whether only the Commission will actually act on this matter.
“Parts of the European Parliament have already made it clear that they want to bring about a change in the legal framework for cannabis. The Council of the European Union could also become active here.”
In 2021, Mr Niermann co-authored a paper on German cannabis reform which predicted legalisation by April 1, 2024 – as yet, it remains unclear whether that deadline will be met.
Nevertheless, with a fair wind there is a decent possibility that Europe will have spawned the world’s largest, regulated cannabis market by the time the next Federal German elections take place in October 2025.