On Friday (September 29), opponents of Germany’s Cannabis Act (CanG) failed to prevent the bill from progressing in the German Federal Council (Bundesrat).
Two key ‘possible showstoppers’ failed to gain enough support in the Bundesrat, the German upper house that represents the country’s 16 states at a federal level, meaning the house ‘ultimately cannot prevent the legalisation of cannabis’.
More than 80 recommendations were made by the states, however, with concerns raised about the considerable financial and practical resources necessary for each state to effectively enforce the proposals.
While the bill is no longer under threat of being entirely thwarted by the Bundesrat, the progress of Pillar 1 is widely anticipated to face further delays.
What actually happened?
On August 16, 2023, Germany’s Federal Government (Bundesregierung) officially approved the draft bill of Pillar 1 of its cannabis legalisation strategy.
This bill has proposed to make possession of up to 25 grams of cannabis legal for adults, enable home cultivation of up to three plants, roll out not-for-profit cannabis cultivation clubs and, crucially, remove cannabis from the Narcotics Act.
Following approval by the Federal Government, the draft bill was passed to the Bundesrat to give the individual states an opportunity to comment on it for the first time last week.
Over 80 individual motions were prepared and put forward by the various committees of the Bundesrat – two of these motions were the most crucial.
Firstly, Bavaria’s Health Minister Klaus Holetschek (CSU) announced ahead of Friday’s session that he planned to ‘take all possible legal steps to take action against the law if it comes into force’.
In an effort to stop the bill in its tracks before getting to the point of launching a legal challenge, Mr Holetschek submitted a plenary motion in the Bundesrat ‘that will completely reject the draft law’.
This was ultimately rejected by the Bundesrat, with the motion failing to find a majority in the chamber.
CEO of Germany’s Cannovum Cannabis AG Klaus Madzia told Business of Cannabis he believed that much of the Bavarian minister’s fierce rhetoric was due to looming state elections, set to take place on October 08.
“Remember, next week there’s going to be elections in Bavaria, so I expect some of the rhetoric to tone down extensively after those regional elections. Simply because the legalisation of cannabis, among certain members of the conservatives in Germany, is always a hot button issue. You touch it and you get coverage.”
Secondly, a motion was put forward by SPD ministers from Hamburg, Thuringia and Lower Saxony, which would have made the passage of the law dependent on approval from the states in the Bundesrat, which also posed a legitimate threat to the bill’s future.
This, too, failed to gain enough support in the Bundesrat, meaning the threat of derailment from the Federal Council is all but over.
What happens next?
The Bundesrat’s statements will now go back to the Federal Government, which in turn will prepare counter-statements and submit the bill to the German parliament (Bundestag) to be voted on by democratically elected lawmakers.
If the bill passes through parliament, it will return to the Federal Council for final discussions, before being signed into law.
But how much is the bill expected to change in that time, given the 80+ recommendations for amendments that were put forward by the states in the Bundesrat?
“The Bundesrat only has to be consulted on this matter, but has no say in the matter,” Kai-Friedrich Niermann, cannabis lawyer and industry expert, explained.
“This is because it is not a consent law, but merely an objection law. An objection by the Bundesrat can be overruled by a majority of the Bundestag.
“These proposed changes can be taken into account by the Bundestag, but do not have to be. Should the Bundesrat then object in the 2nd session by having to deal with the draft, it can be rejected by the Bundestag.”
Next year, Germany could become the first major European country to legalize cannabis. But continued prohibition in so-called youth protection zones will make it difficult in practice. https://t.co/qgRIpxiAgR
— Big Think (@bigthink) September 27, 2023
He added that parliamentarians of the ruling traffic-light faction have already announced numerous amendments to the bill, which he doubts can be completely incorporated over the next four weeks, or before the second reading of the bill.
“For this, the groups of the traffic-light coalition would all have to be in agreement, and, if necessary, even the departments would have to be consulted again as to whether the changes can be implemented as they are, or whether there are ministerial reservations.
“I therefore believe it is quite possible that the law will not be passed until quarter one or quarter two of next year.”
Mr Madzia also suggested that delays to the bill’s rollout were increasingly likely, but for different reasons.
He suggested that it was ‘getting more and more likely’ the Federal Government may agree to pass the law by January 1, 2024, but delay its rollout by three to six months ‘to give the states and the federal and local governments time to build up infrastructure and regulate the release’.
This would mean that there will also potentially be a delay to when the cannabis clubs can legally found themselves.
Key concerns of the states
This potential delay in order to allow states enough time to establish the required infrastructure reflects the statements made by many in the Bundesrat.
The majority of German states believe that the rollout will require significant resources and personnel to effectively enforce the strict regulations set out by the draft, and many have called for additional funding.
Mr Neirmann explained: “Some of the statements want to prevent too far-reaching liberalisation of the legal situation.
“However, some comments also very specifically criticised the burden that will be placed on the states in carrying out the very detailed application procedures for the approval of cultivation associations and the control and enforcement of the newly added administrative offences (for example the 200m consumption ban zones). In particular, the states criticise a lack of personnel and funding.
“The cultivation associations are so over-regulated that it is doubtful whether any relevant number will even take upon themselves to establish them.”
This sentiment was not shared by the Bundesrat, which overwhelmingly supported the idea that the Federal Government’s estimation of around 1,000 growing associations was ‘way too low’.
Mr Madzia suggested: “You have a German political body at the lower house, in fact, saying, ‘we’re pretty convinced that there’s going to be more cannabis clubs’.
“So, this is an interesting psychological signal that the government says it’s going to be more than 1,000 clubs from the start.”