German cannabis legalisation could infringe EU law despite tweaks

Germany’s plans to legalise cannabis are partially incompatible with EU law, despite significant changes Berlin made to avoid legal problems, according to a study from the parliamentary research service.

After the German government first presented a roadmap in October 2022 for the full legalisation of the commercial production and distribution of cannabis, it became clear that the plans clashed with EU legislation on drug trafficking.

After talks with the European Commission, the three-party government presented a new version in April that was significantly watered down in order to make it legally compatible with the EU framework.

But according to the new study, conducted at the request of conservative opposition MP Stephan Pilsinger (CSU/EPP) and cited by several German media on Tuesday (25 July), parts of this adapted version could still face legal hurdles at the EU level.

For Pilsner, the study shows that the government’s current plans “clearly violate European law.” Speaking to German public TV, he called on Social Democrat health minister Karl Lauterbach (SPD/S&D) to abandon the “illusory project” of cannabis legalisation.

According to a Commission spokeswoman, EU law on penalties in the field of illicit drug trafficking obliges member states to take the necessary measures to ensure that crimes linked to trafficking in drugs, including cannabis, are punishable.

This includes the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, and delivery of drugs, including cannabis.

Meanwhile, penalties for these activities are left for individual member states to address, as well as regulating and persecuting the personal use of drugs, she told EURACTIV in April.

Therefore, according to the study, legal problems for German legislation especially arise for the idea of allowing ‘cannabis clubs’ – clubs that would grow cannabis on a non-profit basis and be able to dispense a limited amount per month to registered members.

This was a key idea the German government came up with as a workaround when it became clear that legalising the for-profit sale of cannabis would not be possible according to EU law.

The report found that, in general, it is legally possible to decriminalise the private consumption of cannabis, as well as the joint cultivation of the plant in clubs for strictly medicinal or research purposes.

But having members of clubs consume cannabis they did not grow themselves for recreational purposes would be “complicated” in terms of EU law, according to the researchers.

Cannabis clubs around Europe

Cannabis clubs that follow a similar model to the one proposed in Germany are already allowed in several EU countries, such as Spain and Belgium and Malta.

In the case of Malta, medical cannabis was legalised in 2018 while rules for recreational use were formalised in 2021. The law allows cannabis non-profit social clubs where cannabis can be grown and distributed among members. Each club can have up to 500 members and give out seven grams, per member, per day, capped at 50 grams per member a month. The club is also allowed to give members 20 seeds per month.

Under Maltese law,  a person can now carry up to seven grams, cultivate four plants per household, and store up to 50 grams at home.

Meanwhile, EU-hopeful Albania has recently legalised medical cannabis production and processing, despite warnings from the Commission that they may not have the law enforcement capacity to keep up with monitoring.

Albania was once the leading producer of illicit cannabis in Europe and still produces a significant amount of the drug today.

[Edited by Giedrė Peseckytė]


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