Von Robin Hofmann
A German version of this post was first published on verfassungsblog.de.
The ‘total legalisation’ of cannabis in Germany is progressing slowly. The term describes the legalization of the consumption of cannabis for recreational purposes in addition to the already legalized consumption for medical purposes. A first draft bill of the Cannabis Control Act is expected to be presented by the end of 2022. The bill is eagerly awaited not only by the many lobbyists and investors who are looking forward to the appearance of an entirely new market worth billions. The many German cannabis consumers are looking forward to it as well to achieve legal certainty and freedom from prosecution at last. Until today the control regime and criminal justice approach towards cannabis use and possession varies considerably in the sixteen German states. For example, while in Berlin the possession of up to 15 grams of the cannabis may be tolerated by the police a much stricter approach is implemented in the south of the country. With the legalization of possession and consumption as well as the selling of cannabis in licensed shops this legal patchwork blanket would be a thing of the past. While the details of the bill remain unknown it is already clear that the Cannabis Control Act needs to address a number of open questions, with some of the main being briefly outlined below.
Conformity with international law
The current debate on cannabis legalisation in Germany revolves mainly around questions of international law, especially the conformity of the law with the UN drug conventions. EU laws receive less attention. This is surprising, given that the EU have considerably shaped drug policies in its member states over the past decades and created a tight legal framework with little room for drug market liberalizations. For example, Article 71 of the Convention implementing the Schengen Agreement specifically obliges contracting parties to prevent and punish the possession for sale and export of cannabis. While some other EU Member States seem to flirt with the thought of relaxing their punitive approaches to cannabis in the near future other countries, like e.g. Sweden, still push for a zero tolerance policy towards all drugs. Hence, the legal strategy Germany is pursuing remains on a national level and is not seeking a policy change or compromise on an EU level. The focus clearly lies on establishing conformity with international law. The legal ratio behind this is simple yet risky. Germany considers its policies as ‘völkerrechtsfreundlich’ as friendly towards international law. This doctrine has its roots in the turbulent history of the country. For the endeavor to legalize the recreational use of cannabis, this means that simply ignoring the international prohibitive laws, as Canada and Uruguay are doing it, is not considered an option. Instead, Germany strives to obtain a so-called reservation. To this end, Germany wants to denounce the 1961 Single Convention on Narcotic Drugs, only to re-acceed it with a reservation for cannabis. While this is possible in theory the only precedent for such an approach is the case of Bolivia on the issue of chewing coca leaves. If Germany succeeds then, so the argument goes, European law would no longer be an obstacle. This is because EU law refers to the international conventions in several instances. If the German legalisation of cannabis is in line with the latter, then the EU legal framework must take a back seat. A detailed legal explanation of this approach can be found hier.
EU-law as an appendix of international law?
EU law merely as an appendix to international law? This line of reasoning is questionable, to say the least. Over the past decades the EU has significantly shaped crime policies of the member states e.g. when it comes to the fight against terrorism and money laundering. In the extremely important drugs policy, however, international law alone is to be decisive and the EU is to take a seat in the audience? The explicit prohibition of cannabis in the Schengen agreement will not disappear into thin air just because Germany makes a reservation in an international law convention from 1961.
But things are even more complicated. Assuming the reservation in the single convention will be granted at the end there still is the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances from 1988, which would also require a German reservation for cannabis. Here lies an even more intricate problem: the EU has also signed the Convention as a contracting party. Even if Germany succeeds in obtaining a reservation, it would still be indirectly bound to the Convention as an EU member state. I have been repeatedly pointing to this problem but it was either brushed of or ignored in the legal discussion so far. Now, Markus Thym, professor for international law at the University of Constance and one of the most profiled international law experts in Germany has supported my argument. He points to the case law of the European Court of Justice that, in essence, prohibits member states going solo when it comes to international conventions. Thym concludes that Germany cannot move forward on the legalisation issue without the EU. However, he adds there is still the possibility that the European Court of Justice takes matter in its own hands. As I have been arguing since the beginning of the debate: it is completely open how the court will decide. Given the case law so far things are not looking too good as I have analysed here before.
Security and environmental sustainability
The UN World Drug report 2022 states: “The carbon footprint of cannabis grown indoors is, mainly due to its energy use, an average of 16 to 100 times greater than that of outdoor cannabis” (p.44). Germany does not offer an optimal climate for large-scale outdoor cannabis cultivation. Moreover, indoor cultivation is said to enable six harvests per year and the necessary security measure are easier to implement. Cannabis companies prefer the expensive and resource-intensive cultivation in greenhouses. Gill estimates that indoor cannabis cultivation is 500 times more energy intensive than aluminum smelting. The total annual demand for cannabis in Germany is estimated at around 400 tons. This will have a negative impact on the CO2 footprint of the country. If with rising energy cost the legally grown cannabis can still compete with the black market cannabis remains seen. Putting the black market under pressure is one of the main goals of legalization.
Could cannabis be imported from countries with favourable climates and outdoor plantations if necessary? What sounds like a simple solution is in reality much more complicated. One would have to find a country of cultivation that has also legalised the recreational use of cannabis, such as Uruguay or Canada. Otherwise, the farmers there would be exposed to criminal prosecution, since the cannabis would not met the requirements for medical purposes. Assuming that a country is found that is willing to turn a blind eye, there is still the problem of importing into the EU market. A container of cannabis destined for German recreational use that lands in the port of Genoa, for example, and is then transported overland to Germany, is legally considered drug smuggling in other countries. Since Italy is still bound by international law to prevent the illegal trade (which it still is under Italian law) authorities may feel obliged to confiscate the product and prosecute the importers. The same is true for most other countries in the world. Cannabis shipments would therefore have to land in a German port directly from the country of origin without any stopover. Will it be possible to find logistics companies that will take this risk? At least there would still be the import by air freight. However, this would probably have an impact on prices and would not be optimal from an environmental point of view. Stopovers or emergency landings outside German territory must then be avoided at all cost.
Curbing drug tourism
An important concern of EU drug policy is to curb drug tourism. In its ruling of 16 December 2010, the European Court of Justice reaffirmed the importance of this goal. The drug policy of one member state can always have an impact on other member states. Germany in particular can tell you a thing or two about this: For decades we have criticized the Dutch for their naive tolerance policy regarding cannabis, as the number of criminal proceedings in German border towns for smuggling was high. The Dutch responded by restricting sales in coffeeshops to people registered in the Netherlands (even if this is still only implemented extremely half-heartedly). In its ruling, the European Court of Justice accepted this obvious discrimination against EU citizens, arguing that cannabis was formally illegal in the Netherlands as well and that there was therefore no right to freely purchase it. However, a similar approach would not be possible in Germany after the legalization. If cannabis is legal without restriction, there is no justification for restricting its sale to persons registered in Germany or even to German citizens. Free access to the German cannabis market would be open to all EU citizens. A restriction would violate the principle of equal treatment under Article 49 EC and, according to the case law of the ECJ, constitute discrimination on the basis of nationality. But how does Germany intend to prevent drug tourism from Poland, Austria and Sweden, all member states that have a strict approach to cannabis policy? Here, the cannabis bill must offer solutions and include the interests of other member states.
Cannabis in road traffic
Driving under the influence laws in Germany are very strict. German Police enforces the rules regularly and punishments can be quite harsh. But it is still open how to effectively deal with cannabis in road traffic. In contrast to alcohol, there are no reliable findings on the point at which it can be assumed that cannabis users are unfit to drive. Jurisprudence assumes that a relative inability to drive exists at any rate from a value of 1.0 ng/ml THC in the blood. The problem is that the degradation process of THC in the blood is more diffuse than it is the case with alcohol. This means that a regular pothead may still have an elevated concentration of THC in his blood days after his last joint and even though he is no longer impaired in his ability to drive a motor vehicle. It is said that users of medicinal cannabis are therefore advised to generally refrain from driving as it is simply not possible to reliably assess when a consumer is fit to drive again. While the blood even after days after consumption may still test over the allowed limit the driver may be completely fine to drive. There is a fierce debate among experts if the limit needs have to be increased.
Conclusion: A European solution?
Cannabis legalisation is coming in Germany. The EU Commission will have a say in the matter. Solutions must be found for the problems mentioned above. And then? In the best case, the bill will pass smoothly. The EU Commission expresses only marginal or no objections. Those EU member states that pursue a strict cannabis policy continue to do so and otherwise view the German special path with indifference. Other member states, however, may follow the German example and a progressive drug policy breaks through in Europe. Then it is only a matter of time before the international prohibition regime will come under pressure.
In the worst-case scenario, however, the EU Commission or another member state would initiate infringement proceedings under Art 258 or 259 TFEU. Then the ECJ would have to decide whether the German Cannabis Control Act complies with EU law. Maybe the ‘green wave’ has allready reached the judges in Strasbourg. Nevertheless, a 180-degree turnaround in decades-old jurisprudence remains uncertain. A negative ruling would set back legalisation efforts in the EU by years. Thym seems more optimistic and concludes his analysis with an advise for the ECJ:
“Why not simply strengthen the reputation [of the ECJ] as a dynamic fundamental rights court and declare prohibition incompatible with private life under Art. 8 of the European Charta for Fundamental Rights by judicial fiat. Cannabis legalisation by virtue of ECJ case law. That would be something new. International law would not stand in the way, because according to the hierarchy of norms of the EU treaties, fundamental rights have a higher weight.”
The probability of the best or worst case scenario occurring is difficult to assess. However, a middle course along the lines of the Netherlands entails far fewer risks. There, cannabis legalisation is being tested in a large-scale weighing experiment. Based on scientifically strictly monitored pilot studies, the coffee shops in ten municipalities are supplied with cannabis from state-certified cultivation. This scientific approach is not only in line with EU law. An experiment like this under strict scientific scrutiny produces important data which can be used to convince skeptical member states of the feasibility and rationality of the legalisation. This could pave the way for a change in EU law. This would then be a genuine European solution, so often invoked by Germany for other policy areas. So why not in cannabis policy as well?