‘Legalization light’?

When the German government initially announced its plans in 2021 to tackle the cannabis problem, the health minister had a full-fledged legalization of the soft drug in mind. Cannabis legalization – like already existing in Canada – means the drug can be produced, distributed, imported, exchanged, possessed, and consumed only with the limitations imposed by market regulations. It took the German government surprisingly long to realize that such an approach is not compliant with EU law. Hence, in 2023, a considerably downsized version of the bill was presented, which often was called a ‘legalization light’ but technically spoken is a partial decriminalization. Commercial production, distribution, and exchange of cannabis for recreational use remain prohibited. However, the possession of up to 25 grams of cannabis will be completely exempt from punishment. It will be allowed to grow several cannabis plants at the private home. And 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. Later on, regional model projects with pilots for commercial growth and supply chains are planned, similar to the Dutch wiet-experiment.

Uncharted territory

Sure, the German cannabis legalization project was significantly downsized. But what is now implemented can still count as an ambitious approach. Crucial questions remain unanswered: Are these new regulations in line with EU law? One neuralgic point of the law is particularly discussed. It revolves around the legal definition of what falls under ‘personal consumption’. Under international and EU law, states are allowed to regulate, i.e., decriminalize cannabis use if it is related only to the personal consumption of individuals. Small amounts and the growth and consumption in private spaces are usually subsumed under this privileged behaviour. The aim is clear: all forms of commercial production and distribution must be prohibited. 

By allowing cannabis clubs, Germany enters uncharted territory. While so-called cannabis social clubs have existed for a while – clandestine associations of like-minded cannabis enthusiasts to grow and smoke – the legislator has taken the ‘social’ out of these clubs. No gatherings and jointly consuming the weed on the club premises will be allowed. The reason for what one might feel inclined to call a very German approach: to prevent the establishment of de-facto coffeeshops driven by commercial interests. But how realistic is that in the long run? And can these clubs really be qualified as operating within the legal boundaries of personal consumption? 

Conclusion

Decriminalizing drugs remains a dull sword if it is not accompanied by legal means to acquire and consume cannabis. In the Netherlands, this is why coffee shops are the backbone of the tolerance policy—with mixed results. By introducing cannabis clubs, the German legislator wants to approach things differently. While the cannabis law represents a significant milestone in the country's drug policy reform efforts it remains open if the law complies with EU regulations. 

Other blogs by Robin

The Cannabis Dilemma – Is the legalisation of cannabis in Europe possible? - 26 November 2021