by Robin Hofmann
It was right after Easter 2023, when the German Minister of Health Karl Lauterbach presented his plans for legalizing Cannabis in Germany. The plans are a considerable downsized version of the initial plan of the government coalition to fully legalize Cannabis including a comprehensively regulated cannabis market. Instead, a so-called ‘legalization light’ is to come for the time being. Consisting of two pillars, a bill for a decriminalization of cannabis is to come first. Two core elements can be identified: first, the possession of up to 25 grams of cannabis will be completely exempt from punishment. Secondly, so called cannabis clubs will be allowed with up to 500 members, in which each member may bring in up to three female cannabis plants. The second pillar then provides for regional model projects with pilots for commercial growing and supply chains, as we already know from similar projects in the Netherlands and Switzerland.
Until recently the German debate around cannabis legalization suffered from a somewhat remarkable ignorance with regards to EU law and regulations. These new plans, however, are a reality check in terms of what is possible under the European drug prohibition regime. It is good that finally the limitations raised by EU law are taken seriously. But make no mistake: Lauterbach’s legalization light concept is still extremely ambitious. Despite many good and unconventional ideas, it and pushes these legal boundaries to the limit. This is also true for the implementation of the plans in the new German cannabis policies. Lets take a closer look at some of the neuralgic points of the cannabis policy plans.
Decriminalization of the possession 25 grams of Cannabis
A key aspect of the German Legalization light is the penalty-free possession (carrying in public) of 25 grams of cannabis for personal consumption. Public consumption near schools, daycare centers or the like, as well as in pedestrian zones until 8 p.m., remains prohibited. Conversely, this means that public consumption of cannabis will be permitted. Formally this decriminalization approach is compliant with EU regulations. Framework Decision 2004/757/JHA, for example, states that possession for personal consumption may be exempted from punishment by national legal systems (Art. 2). The Schengen implementation agreement also does not require member states to punish or prosecute possession. Only possession for the purpose of supply or export is mentioned there (Art. 71).
However, decriminalizing the possession of a surprisingly high amount of 25 grams of cannabis per day could cause problems. For comparison: until now, the German Federal Constitutional Court considered 6 grams to be such a small amount that prosecution could be waived. In the Netherlands, 5 grams is tolerated. And in Portugal, the European prime example of drug decriminalization, a daily amount of 2.5 grams of cannabis are exempt from punishment (multiplied by a ten-day ration). Particularly with regard to Portugal, a fundamental problem becomes apparent that is not addressed in Lauterbach’s plans: The question of what may be covered by decriminalization in the first place.
The UN defines decriminalization as a process in which an offense is downgraded by law from criminal to noncriminal. While the conduct remains prohibited, these prohibitions may be enforced by means other than criminal law. In other words: When we talk about decriminalization in the context of the international drug control regime, it refers to a downgrading to a misdemeanor. In Portugal, possessing more than 2.5 grams of cannabis is exempt from punishment which does not make it legal. If you are caught with it, you might have to appear before a commission for the prevention of drug addiction, which can impose various sanctions, including community service, fines, or even temporary occupational bans. The German plans to completely abstain from any penalization (incl. administrative fines) when it comes to the possession of cannabis might be, technically spoken, closer to a legalization then to decriminalization.
Social Policy vs. Crime Policies
Apart from these rather fundamental concerns: why does the governing coalition want to legalize the considerable amount of 25 grams in the first place? In practice, this is likely to cause a number of problems: How are the police supposed to distinguish between small-time dealers and consumers? 25 grams of cannabis is a sufficient quantity for small time dealer. As long as he is not caught with more or in the moment of handing it over to the customer, he has little to fear. It seems likely that socio-political considerations play a role here and small-time dealers are deliberately included in immunity from prosecution. They often come from vulnerable populations so why should they not also benefit from decriminalization? Especially since the weed that can then be consumed without punishment has to come from somewhere. But with this de facto exemption from punishment for small-scale trafficking, the legislator is treading on thin ice with regards to effective crime policies. Those who have little to fear in terms of criminal persecution could see this as an incentive to enter the lucrative business with the drug. However, more dealers would also fuel the black market by increasing supply and lowering prices.
Here, it might be worth considering whether the classification of certain offenses as misdemeanors would be the better way. The German law on administrative offenses has the great advantage that the opportunity principle applies (as opposed to legality principle guiding German criminal law), giving the authorities more flexibility in prosecution and sanctions. Nationwide uniform guidelines could, for example, set graduated fines if there are indications of small-time drug-trafficking.
Club Cannabis and the Decriminalization Dilemma
The most interesting aspect of Legalization-Light is the planned cannabis clubs. It is an unconventional idea to resolve the fundamental contradiction of any drug decriminalization: What good is to abolish punishment if there is no way for consumers to legally obtain cannabis? Decriminalization models like the one in Luxembourg, which rely exclusively on home cultivation, are not very practical solutions. This is because cannabis plants are complex plants. Unlike for example office plants cannabis plants need constant watering. Hence female plants require considerable attention, expertise and resources such as fertilizer, water and artificial light until they reach harvestable age.
This is where the Cannabis Social Clubs come in. These have existed in Europe since the 1990s and are associations of like-minded people who dedicate themselves to cannabis cultivation together in the clubhouse, share technical equipment and expertise, and consume the harvested product together in the private club premises. The clubs are not intended to be open to third persons or to be profit-oriented; the focus is on social aspects. For this reason, the number of members is usually limited to a few dozen.
However, the German model does not include this social aspect. Lauterbach speaks simply of cannabis clubs in which joint consumption remains prohibited. What seems like a bit of killjoy has its background in European law. Although cannabis social clubs are surprisingly widespread (according to Wikipedia, there are up to 500 of them in Spain), they are not legal anywhere in Europe. The founding myth of European cannabis social clubs is to be found in Framework Decision 2004/757/JHA and the permission for cultivation for personal consumption in Art 2 (2). The cannabis social club movement took up this simple idea: If the cultivation of cannabis for personal consumption is allowed, then this has to apply even if the plants are placed in a private clubhouse. As long as there is no supply of cannabis to others and members grow their own plants, harvest their own crop and ultimately consume their own cannabis the model is in compliance with EU regulations.
Cannabis Clubs in the Gray Area of European law
What sounds plausible is, how could it be otherwise, at least once problematic under European Union law. Firstly, there are legal doubts as to whether the cultivation of one’s own cannabis plant in a CSC can still be qualified as ‘cultivation for personal consumption’ and thus fall under the exemption from punishment clause of the Framework Decision. Cultivation within one’s own four walls is only privileged because this is the only way to largely exclude access by and delivery to third parties, at least in theory. This is precisely not the case in a cannabis social club, since all members have access to the plants there and, moreover, non-members could also gain access without the plant owner being able to control this.
Second, however, practical reasons are also cited against privileging CSCs. True, the social idea may be at the forefront of these. In reality, however, the clubs often operate in such a way that professional cannabis growers are paid from membership funds to take care of the cultivation of the plants. For example, a recent study of clubs in Europe showed that more than half rely on paid staff to grow the cannabis. This is precisely what Lauterbach’s concept seeks to prevent, by ruling out commercialization and prohibiting third parties from being contracted to grow the plants. Classical CSCs have accommodated this non-commercial but social character by strictly limiting the number of members to a few dozen. In Germany, such a limit is set at 500 members, each of whom may bring in up to 3 female plants. This results in a plantation of considerable size and it could get crowded when 500 cannabis allotment gardeners check on their offspring on Saturday mornings.
Last but not least, criminal policy considerations have diminished the acceptance of CSCs. For law enforcement agencies, the clubs are difficult to distinguish from illegal cannabis plantations. It is almost impossible to check whether the individual plants can actually be attributed to individual and genuine persons who then consume the harvest themselves or whether the weed ultimately ends up on the black market. But also the clubs themselves are often suspected of not cultivating the cannabis for consumption themselves, but to obtain it directly from the black market.
Preventing the Dispensing of Cannabis
How does Lauterbach intend to solve these problems? The concept is clearly designed to prevent the distribution of cannabis to third parties, meaning to non-club members. As a reminder, dispensing is strictly prohibited in the SDC (Art 71 (2)) as well as in the 2004 Framework Decision. The common prohibition of consumption is intended to achieve this. Behind this lies the fear that the cannabis clubs could set up consumption rooms to which third parties would also have access (similar to the Dutch coffeeshops).
However, if this solves the problem remains questionable: Members of a club are in principle free to bring third parties into the club, unless it is excluded by the clubs’ statute. In terms of German law, a cannabis club is no different from a bowling club or tennis club. It is true that cannabis may not be distributed to third parties. But what if they pick cannabis themselves for personal consumption? That would not be a transfer in the technical sense. One could take this idea even further and think of cannabis tastings with self-harvested cannabis for groups of visitors. However, even if access to clubhouses were restricted to members only, this is still no guarantee to prevent abuse and also drug tourism: One need only recall the so called smokers’ clubs that appeared in the wake of the Non-Smokers Protection Act. Every guest simply had to fill out an application at the entrance and became immediately a club member.
New Grounds in German Drug Policies
Despite all these unanswered questions, the governing coalition is breaking new ground in drug policy. The strategy has somewhat shaky feet in terms of European law. But at least it has feet to stand on, which was not the case for the initial plans of a total legalization. But one should not set one’s own expectations too high. As far as the triad of youth protection, health protection and curbing the black market is concerned, decriminalization will hardly be noticeable. The black market will not shrink, and thus health risks from contaminated cannabis, for example, will remain. The protection of minors remains the blind spot of the plans: Cannabis will be only accessible for adults. Minors caught with cannabis will have to participate in mandatory early intervention and prevention programs. The kids surely won’t be too excited about this.
The plans will ease the burden on the judiciary, and consumers can rejoice as well. Those who have promised themselves a big business with the drug, the many investors and startups who wanted to get into the pleasure business via the medical cannabis lever, will go empty-handed for the time being. It is understandable that a lot of loud criticism is coming from this side. But it also shows what has gone wrong in the German legalization debate. Instead of health and youth protection or legal aspects, economic interests have dominated the discourse. The government has wantonly fueled this. The bill for this: total legalization is off the table. At least for the time being.
But reasonable expectation management is also necessary with a view to the future. This is especially true with regard to the regional pilot projects planned in the second pillar, which are intended to make comprehensive legalization possible in the long term. Here, too, there should be no illusions. The planning, implementation and scientific evaluation of such pilot projects takes time. The Dutch, for example, began planning their projects in 2017, and to date, not a single gram of state-licensed cannabis has crossed the counter. The Swiss are only marginally faster. And even if there are positive and scientifically robust results at the end, the work of political persuasion is only really beginning. In addition to the Commission, skeptical member states must be brought on board. This is not impossible. But it takes time and nerves and there are no shortcuts. But what if there is a change of German government in the meantime? Would a government led by the notoriously cannabis sceptics’ Christian Democrats push for a legalization at the European level? Miracles are said to happen. But one should not build on it.