Legal Hurdles Put Brakes on Optimism that First Legal Joint Will Be Smoked in Germany in 2023
The unexpected complexity of legalization has made German lawmakers more cautious than they have been about full ‘adult-use’ consumption, and in particular they fear infringing European laws.
Legal hurdles are slowing down German plans to allow the controlled distribution of cannabis among adults, with fears that a badly crafted law to legalise the drug could be thrown out by the European Court of Justice - as reported by The Guardian Newspaper on 12 September 2022.
In a coalition agreement signed last November, the three-party government led by the chancellor, Olaf Scholz, stated its intention to make it legal to sell cannabis to adults for recreational purposes.
The pledge has been reiterated by the Green party and the liberal Free Democratic party in particular, with the justice minister, Marco Buschmann, expressing optimism in May that a law could be passed by next spring and “the first legal joint” sold in Germany in 2023.
Since then, however, the government has become noticeably quieter on promises of a draft law in the autumn. On Monday, a legal analysis by the German parliament’s research service leaked to the news portal RedaktionsNetzwerk Deutschland warned that a move to legalise cannabis would contravene European regulations in more ways than one.
While the expert opinion was commissioned by the conservative Christian Democratic Union, which opposes steps to further legalisation, some of the increased alertness around the subject is shared in government circles.
“There is a degree of caution about promises of a breakthrough before the end of the year,” said one official familiar with the matter. “The complexity of all is starting to sink in, and there’s a sharper awareness of the risks involved. We don’t want another autobahn toll debacle.”
Angela Merkel’s fourth term as chancellor saw a humiliating U-turn on plans to introduce a German road toll that would disproportionately affect foreign-registered cars, after it was ruled in violation of anti-discrimination law by the European Court of Justice.
In the initial debate around legalising cannabis in Germany, the main obstacle identified was the UN 1961 single convention on narcotic drugs, whose obligations Canada and Uruguay ignored when they took steps to legalise the drug.
Now, however, Berlin increasingly sees the convention as the smaller challenge as the binding nature of various European laws has come into focus. A Council of the European Union framework decision from 2004, for example, requires member states to ensure that the sale of drugs including cannabis are “punishable by effective, proportionate and dissuasive criminal penalties”.
The Schengen agreement also obliges signees to curtail the illegal export, sale and supply of “narcotic drugs and psychotropic substances, including cannabis”.
While the German government remains on track to pass a law within the current parliamentary term to allow the distribution of cannabis, sources said, it is also watching the latest plans in Luxembourg as a way to legalise the drug with minimal risk of infringing European laws.
The government in Luxembourg this summer proposed a law that would legalise recreational use of cannabis in private but continue to ban the use of the drug in public.
The Netherlands, while widely associated with legal weed-smoking, only tolerates the consumption of cannabis and technically still criminalises the growth and sale of the drug to coffee shops.