The discussion about the legalization of cannabis planned by the traffic light coalition is gaining momentum. A significant obstacle to the project are the provisions of international and European law to which Germany is bound. The scientific service of the Bundestag has now pointed this out in reports ordered by the CSU member of the Bundestag Stephan Pilsinger.
In the coalition agreement, the SPD, Greens and FDP agreed to introduce a “controlled sale of cannabis to adults for recreational purposes in licensed shops”. That would be extensive liberalization and a step that is unique in Europe and more or less corresponds to the model in Canada and some US states. A bill is in preparation. In the autumn, “if things go well”, key points would be presented, Health Minister Karl Lauterbach said recently.
As far as EU law is concerned, the Bundestag experts mention the “framework decision” of 2004. According to this, every member state must make the manufacture, offering, selling, supplying, importing and exporting of drugs a punishable offense if these intentional acts are carried out “without the appropriate authorization were made”. The same applies to the cultivation of the cannabis plant and the purchase or possession of drugs. According to a UN convention of 1971, the term drugs also includes cannabis.
The “Schengen Protocol”, an addendum to the Amsterdam Treaty, is also relevant. In it, the contracting parties undertake “to prevent the illegal export of narcotics of all kinds, including cannabis products, as well as the sale, procurement and delivery of these funds by administrative and criminal means”.
The Luxembourg governing parties (Liberals, Social Democrats, Greens) abandoned their original plan for full legalization last year precisely because of this legal situation in the EU. Instead, the cultivation of up to four hemp plants for personal use should be permitted in Luxembourg. Use and possession of cannabis are partially decriminalized.
“Devil in the Details”
According to the Bundestag experts, three UN conventions from the 1960s to 1980s are relevant internationally. It encourages states to criminalize the cultivation, sale and possession of cannabis. However, they are also an expression of a drug policy that in many places “is no longer felt to be up-to-date”, the report states.
A spokesman for the Federal Ministry of Health said on Monday that the analysis of the scientific service would be examined and included in the considerations for the controlled sale of cannabis. “The new cannabis regulations must be legally secure, there is no question about that, and we are currently looking for a solution that is compatible with international and also with EU law.”
The legalization of recreational cannabis “failed before it even began,” said Pilsinger, a CSU politician. “If Karl Lauterbach wants to go through with what I consider to be a health-hazardous cannabis legalization, then he must at least find a legally correct, pan-European solution in Brussels.”
The governing parties are aware of the legal problems. Lauterbach said of European law: “The devil is in the detail here.” in one Green Party bill of 2015 it was doubted that EU law stood in the way of legalizing cannabis. A controlled levy can finally be assessed as a levy with the corresponding “authorization” as provided for in the Framework Decision. In addition, there is enough time to “adjust” European law. With regard to the problems under international law, the authors of the draft law recommend that the federal government withdraw from the UN conventions and then re-enter them with reservations.