Weed Legalization in Germany Hampered by EU Laws

Plans to legalize cannabis in Germany could be delayed as government officials try to determine how legalization will be viewed by the European Union’s courts.
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Germany has slowed its plans to legalize cannabis this year, with some officials expressing concern that a hastily drafted reform measure will be rejected by European Union courts. Although the plan to legalize marijuana has not been scrapped, a government official said recently that lawmakers are proceeding with a “degree of caution about promises of a breakthrough” and have scaled back plans to achieve legalization by early next year.

In November 2021, the center-left Social Democrats Party (SPD) received the most votes in Germany’s most recent federal election and created a coalition with the environmentalist Green Party and the Free Democrats (FDP) to form a new government. Known as the traffic light coalition in reference to the parties’ colors, the new ruling majority replaced the Christian Democratic Union, which had led the government under Chancellor Angela Merkle for 16 years.

As negotiations to form the new government were underway, representatives of the coalition announced that cannabis would be legalized for adults and a regulatory framework for legal sales would be created. Spokespeople for the new ruling alliance announced that cannabis would be legalized for adults, including the launch of regulated recreational marijuana dispensaries.

“We’re introducing the controlled distribution of cannabis to adults for consumption in licensed stores,” an unidentified spokesperson for the coalition said. “This will control the quality, prevent the transfer of contaminated substances and guarantee the protection of minors. We will evaluate the law after four years for social impact.”

The goal of cannabis legalization in Germany has been restated by the Green Party and the liberal Free Democratic Party since the traffic light coalition took power, including Minister of Justice Marco Buschmann predicting in May that a reform bill could be passed by next spring and lead to “the first legal joint” being sold in Germany in 2023.

In early June, Health Minister Karl Lauterbach announced that the government would start the legal process for cannabis legalization soon. He told the German newspaper Handelsblatt he has changed his stance on legalization over the past two years, and now believes the negative impact of prohibition outweighs the risks of recreational cannabis reform.

“I’ve always been opposed to cannabis legalization, but I revised my position about a year ago,” Lauterbach said.

A series of five hearings to discuss different aspects of cannabis were scheduled by the German government. Commissioner for Addiction and Drug Issues Burkhard Blienert said that “the time has come” to move forward, according to a translation.

“We are starting the preparatory phase of legislation,” he added. “Being able to finally announce this is a special, gratifying moment for me personally. Like many others, I have been working for years to ensure that we in Germany finally stop criminalizing cannabis users and start a modern and health-oriented cannabis policy.”

Government Officials Scaling Back Legalization Hopes

But after expressing optimism that reform would come quickly, government officials have been walking back predictions that Germany will legalize cannabis by 2023. On Monday, a legal analysis by German parliament researchers was leaked to the news portal RedaktionsNetzwerk Deutschland, warning that the effort to legalize cannabis would conflict with European regulations in several ways.

Early in the ruling coalition’s discussions of legalization, officials identified the United Nations 1961 single convention on narcotic drugs as a potential obstacle to achieving the goal, although both Uruguay and Canada effectively ignored the international agreement when cannabis was legalized in those countries.

German officials now largely believe that the 1961 treaty is not the obstacle it once seemed and have turned their attention to European Union laws that might jeopardize legalization in Europe’s most populous country. Under a Council of the European Union framework decision from 2004, member states are required to ensure that sales of drugs including cannabis are “punishable by effective, proportionate and dissuasive criminal penalties.”

Additionally, the 1985 Schengen Agreement, which led to the abolishment of border crossings throughout the European Union, requires member nations to combat the illegal export, sale and supply of “narcotic drugs and psychotropic substances, including cannabis.” As the government considers the challenges to cannabis legalization under EU laws, officials are rethinking the pace of reform.

“There is a degree of caution about promises of a breakthrough before the end of the year,” said an 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,” a reference to a plan to build a toll road that was abandoned when the European court of justice ruled it violated an anti-discrimination law because it would disproportionately affect foreign drivers.

The traffic light coalition remains on target to finish drafting a bill that would allow for the legal distribution of cannabis, according to government sources cited by The Guardian. But lawmakers are also watching to see what happens in neighboring Luxembourg, where officials unveiled a plan this summer that would legalize the recreational use of cannabis in private settings but maintain prohibitions on using cannabis in public.

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