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Cannabis flowers and blunts. Photo credit: Thomas Schmid
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Flowering hemp plants in a greenhouse. Photo credit: Thomas Schmid
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Georg Wurth. Photo credit: DHV
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Germany just announced plans also for legalizing cannabis… but will it be the first major EU country to do so? Other European countries also have legalization/decriminalization plans in the works.
On April 13, 2023, Germany’s public health minister Dr. Karl Lauterbach and agriculture minister Cem Özdemir jointly revealed at a federal government press conference in Berlin that the country would go ahead with decriminalizing – and eventually legalizing - cannabis. The somewhat hastily called press event caught few by surprise, though. After all, the plan had already been announced in late 2021 as an integral part of the coalition agreement of the current left-wing government. Then, in October 2022, health minister Lauterbach him-self confirmed that a legal framework draft would be ready “by the first quarter of 2023”. Well, he was only one month late with that.
Decriminalization and legalization are two different things
However, what transpired during that Berlin conference was that Germany is not going to fully legalize cannabis in one big swoop just yet. Instead, the initial focus will be on decriminalization.
“This is important to point out, because ‘decriminalization’ and ‘legalization’ are two very different matters that must not be confused with one another,” cautioned Georg Wurth, founder and c.e.o. of the German Cannabis Association (DHV). “Decriminalization is aimed at the individual consumer, who will no longer be prosecuted for possessing or using cannabis, while legalization concerns all aspects of commercialization such as opening cannabis shops, trading, and selling.”
Although full-scale legalization is not going to happen in Germany anytime soon, Wurth nevertheless calls himself satisfied. “Starting off with decriminalizing the end users is a sensible approach and something for which the DHV has campaigned many years,” he said. After all, even under the current outspokenly “pro-cannabis” government, almost 174,000 criminal cases have been filed in 2022 alone against citizens for possessing a few grams of weed or growing a couple of cannabis plants for their own consumption. “There are a million or more active users in Ger-many, so no longer treating them as criminals is the crucial first step into the right direction,” Wurth insisted.
A two-phased plan
According to health minister Lauterbach, Germany’s cannabis initiative will be implemented in two phases. Phase 1 concerns the decriminalization of end consumers per se, as well as the establishment of “cannabis social clubs”. Wurth explained that as part of that phase “consumers can have up to 25 grams of marijuana in their possession without needing to fear arrest.” That is a lot of grass! Secondly, the growing of “up to three flowering plants” at home likewise will be permitted, whereas it is understood that the “harvest” is for private consumption only and must not be commercially traded in any way. Then there are the already mentioned “cannabis social clubs”, which must operate as not-for-profit organizations. Intended as gathering spots for members to indulge in their favorite pastime, the clubs will be allowed to dispense cannabis obtained from their member network. But, they are explicitly barred from purchasing stocks “from third parties”. “That [third-party purchasing] could be construed as violating EU law and the government wants to avoid incurring penalties imposed by the European Commission,” explained Wurth.
Last but not least, the clubs apparently are going to have the additional option to grow their own cannabis on site, too, the plants tended by volunteers appointed and supervised by the respective club committee. But, Wurth noted that clubs will not be permitted to grow more than their members actually consume. In other words, surplus production is a no-no. How these clubs are to be controlled and how the amount of cannabis they are permitted to grow will be determined remains rather murky at this point. “It was not clearly expressed [during the conference], so we will have to wait until details are published in writing,” Wurth said.
Pilot regions for testing out the waters
Things get even murkier with phase 2, which calls for the establishment of selected “pilot regions” across Germany where actual cannabis shops will be allowed to operate.
“Retail shops will only be allowed to open within these pilot regions and alongside the social clubs, whereas outside of these zones only social clubs will be permitted, but no shops,” clarified Wurth. He added that designated pilot regions could potentially be located hundreds of kilometers apart from each other. “For example, there could be one zone in Berlin, another in Hamburg, yet another in Munich,” he explained.
But then again, these “pilot regions” conceivably serve two distinct purposes. Firstly, they are to test whether their proper supervision can be ensured by the authorities and whether the general public – a large proportion of which reportedly is against a “free-for-all cannabis bonanza” - is going to accept the existence of overtly operating canna-bis shops in their neighborhoods at all.
Secondly, the zones probably also are designed to see how the EU Commission will react to Germany’s move. “Unlike non-EU countries such as Canada or Uruguay, Germany is still bound by rather strict EU regulations regarding narcotics and cannot simply unilaterally decide to embark on a full-scale legalization,” Wurth said. He added, “Whichever German laws are hammered out, they must not conflict with EU law.”
But while Wurth was confident that initial decriminalization will almost certainly lead up to eventual legalization, he also expressed some disappointment at the proposed time frame. The regional pilot projects are supposed to run for a minimum of five years before an evaluation will determine if further expansion is even on the books. Furthermore, such an expansion will be hinged on the passing of appropriate laws by Germany’s 16 federal states as well as the national assembly.
“Considering how slow progress has been so far, legalization will not occur until well into the next decade even if everything goes off without a hitch,” Wurth worried.
Will time run out?
And there is a huge elephant in the room, too. It is uncertain if the current government, already under intense criticism for its disastrous energy, economic, social security, and immigration policies, will survive that long. Should the present administration fall and hand the country’s reins to a conservative coalition, there is the real possibility that the ambitious cannabis plan might be scrapped altogether without ever really getting off the ground. Some observers already predict that the government’s days are numbered and that it won’t see the end of the year. “If that happens, all could be back to square one, I fear,” lamented Wurth.
Germany is of course not the only EU member state where things are happening in favor of cannabis. There also are the Czech Republic, Spain, and even the tiny island nation of Malta. Let’s take a quick look at developments in those countries, as well as set the record straight regarding a couple of other European nations about whom some misconceptions stubbornly persist.
Czech Republic: EU laws slow down country’s full legalization proposal
For a while it looked as if the Czech Republic may well pull past Germany in the cannabis race. But then things got delayed. A legalization draft was supposed to be presented to the public in March 2023 – and wasn’t. DHV’s Georg Wurth surmised that the Czechs might have hit the same obstacle that Germany encountered: the EU’s strict drug policy, which is not compatible with a blanket legalization of cannabis. Yet the country apparently remains determined to probe every nook and cranny, every crack in EU law. “I hope [the Czechs] will stick to their plan, submit a comprehensive legalization draft to the EU Commission and then fight it out in Brussels and Strasbourg,” said Wurth. If that works, Czech Republic may overtake Germany still.
Luxembourg: three years and waiting for full legalization proposal
Then again, we also do have the case of Luxembourg. In 2018, the Grand Duchy’s new government included cannabis legalization in its coalition agreement. But just like Ger-many and Czech Republic, the country then apparently hit a snag with the EU Com-mission. More than three years into the government term nothing has moved. Instead, politicians have told the public that full legalization was not possible “because the EU said so”… or something along these lines. Wurth complained that (just like in the case of the Czech Republic) “no official statement from the commission was forthcoming as to the concrete reasons for the rejection.”
Malta: first in EU for regulatory decriminalization
Yet with concerted tenacity, there seems to be a way to outsmart the EU Commission after all. A great example for this is the Mediterranean island nation of Malta, a full-fledged EU member. “Malta is the new benchmark in Europe,” said Wurth. “They put their back into it, formulated a regulatory framework and decriminalized cannabis in 2018, the first EU country to do so.” Members of the public can carry up to 7 grams of cannabis and even may grow up to 4 plants at home.
But not all is swell. While Malta does allow the opening of cannabis social and grower clubs in principle, the regulations pertaining to that appear extremely complicated and require improvement. “You can ap-ply for a license, but its’ so complex, confusing and represents such an investment risk that nobody has bothered so far, and hence not one single club exists,” Wurth told Tobacco Asia.
Spain: turning a “blind eye” to hundreds of illegal cannabis clubs
Although cannabis remains illegal in Spain, literally hundreds of cannabis clubs have established them-selves there, creating a vibrant scene in cities like Madrid, Barcelona, Valencia, Málaga, and countless others. Strictly speaking, all these venues are illegal, of course, but local authorities simply turn a blind eye. Which brings us to the…
Netherlands: surprisingly, cannabis is not legal
When asked about the status of cannabis in the Netherlands, 9 out of 10 people will surely answer that weed has been entirely legal there for decades. It’s a misconception that stubbornly persists. The truth is that cannabis is not legal in the Netherlands, and never has been! The proliferation of cannabis cafés that attract millions of foreign tourists every year and the circumstance that blunts or “special cookies” can be openly consumed without being arrested on the spot doesn’t change that fact. Just like in Spain, it’s merely tolerated. Municipalities willingly dispense cannabis café operating licenses as long as “business” remains discrete. But shops need stock – and that is where the real problem lies. While venues are allowed to sell and distribute cannabis products, practically all operators obtain their supplies from the black market.
Portugal: a defacto “consumer” decriminalization
Alas, the “Portuguese Model” does not refer to a tall, long-legged beauty with flowing auburn hair named Luiza or Mercedes; though we wish it did. Instead, the moniker describes the approach of Portugal to illegal drugs, including cannabis. And once again, just like with the Netherlands, many people get it completely wrong when talking about the “Portuguese Model”.
Along with substances such as cocaine, heroin, crack, or ice, cannabis remains illegal in Portugal, period. Its commercial production, smuggling, distribution, or sale brings lengthy jail terms.
The “Portuguese Model” merely applies to users, who are no longer prosecuted for possessing or consuming small quantities of cannabis, cocaine, heroin or whatever. It spares users from court cases, imprisonment, and criminal record entries, thus can be construed as a form of consumer decriminalization. But that’s all it does, really.