By Niklas Kouparanis
Current international law, which restricts the cultivation, supply and possession of cannabis only for medical and scientific purposes, has failed to achieve its set goals. Recently, three European Union (EU) countries–Malta, Luxembourg and Germany–have come together to draft a common statement on why the EU needs a new approach to cannabis use for adult-use production, sale, and consumption. The release of such a statement is a historic step forward for the new age of cannabis policy and for Germany, which champions alignment with like-minded countries on the legalization of adult-use cannabis. Though starting with just three countries, it is likely that other countries in the EU are taking note of these actions and may align them in the future.
This news comes on the heels of Germany, which has set its sights on adult-use cannabis legalization by 2024, holding a series of hearings in June 2022, bringing together more than 200 experts met to discuss recommendations for the legislation draft. The hearings covered key topics such as health and consumer protection, protection of minors and prevention, supply chains, ecological and economic issues, criminal liability, control measures and licensing for the grow, sale and distribution of cannabis for recreational and international experiences.
Such discussions are crucial to understanding the country’s plan to legalize cannabis and provide a forum for feedback, industry insights, and concerns to be openly addressed and discussed. Upon legalization of adult use, Germany is set to become the largest legal market of cannabis in the world and the first in the EU to legalize recreational cannabis sales. So, what happens next?
Consideration of European Cannabis Models
While still early in the legalization process, it remains unclear which model the country is likely to follow. In the Netherlands, cannabis use is tolerated in coffee shops. This has only proven to be a half-baked solution. In Malta, Luxembourg, Portugal, the Netherlands and Spain, cannabis has been decriminalized, but a real adult use market along the value chain has yet to be legalized. Industry experts agree Germany will likely stray far from either option as they lack the overall regulatory oversight and controls needed to achieve its primary goals of consumer protection and the protection of minors.
Eyes on the U.S.
In the U.S., cannabis remains criminalized at the federal level but has seen growth within legalized states such as California and Colorado, which operate as siloed markets, unable to transport seeds and products across state lines. However, critical issues such as high taxation, inconsistency and complexities in licensing, lack of federal oversight and a thriving illicit market remain prevalent in these markets and have hindered growth. Keeping this in mind, as well as taking lessons learned from its own medical-only market, Germany must seek to ensure the supply, availability, quality and convenience of accessing the plant – and guarantee homogenous rules on federal level.
UN Considerations and European Collaboration
Another consideration is the legal and political effects of legalization. As a member of the EU, Germany has signed the 1961 United Nations (UN) Single Convention and Narcotics Law and has signed EU treaties and agreements such as the Schengen agreement, Art. 71 and the council Framework from 2004. Adult use legalization in Germany would essentially conflict with the restrictions outlined by the Single Convention on cannabis use, leaving the country with few options. Germany may seek to withdraw from the convention, which could take upwards of a year, or it can take a page out of Canada’s book by ignoring the convention altogether, as the country did when it legalized cannabis in 2018. However, by violating EU law, the European Court of Justice (ECJ) may state that the country is not allowed to move forward with adult use.
An example of this would be how the ECJ ruled against Germany over the Maut Project, a toll on both foreign and domestic cars driving on Germany’s autobahns, based upon fuel type, engine power and emission standard, up to a maximum of 130 euros. The Court took issue with the coalition’s plan to completely refund any levies paid by domestic drivers by knocking the toll amount off their motor vehicle tax bill. In its ruling, the ECJ stated that the toll discriminates against EU foreigners and puts an unfair burden on EU drivers traveling through Germany.
Following the hearings in Germany, top officials from Malta, Luxembourg, and the Netherlands held a historic meeting with German officials to discuss plans and challenges that come with the decriminalization and/or legalization of cannabis. While no decisions were made at the initial summit, the officials from Germany, Malta and Luxembourg released a joint statement that they have a “common understanding” that “the status quo is not a tenable option,” signaling to countries that legalized cannabis is seemingly imminent, and paths forward must be considered. It is considered that if countries were able to find a solution for cannabis legalization with the EU, it would put pressure on the UN to change its regulations regarding cannabis use in the long term. The goal of international law is to protect minors and the health of citizens. After witnessing the wellness benefits of the plant through medical-only markets, supporters of adult-use legalization in the EU feel that the current policy is counterproductive.
Next Steps
Germany, like many other medical-only markets, has seen the wellness benefits for patients, learned from its limitations and challenges and embraced growth opportunities for businesses, investors and tax revenue alike. While medical-only markets have proven to be viable given steady supply, accessibility and clear guidance from regulatory entities, this is only a fraction of what can be achieved under the adult-use market. While we are optimistic that outdated stigmas surrounding the cannabis plant are falling by the wayside, it’s time for our countries’ governments and the EU as a whole to no longer cling to prohibition policies that are no longer relevant and obstruct future progress.
It’s impressive that progressive European states have come together to herald this new era in international cannabis politics. However, Germany and other EU legalization hopefuls still have their work cut out to make it a reality. It is up to these states to keep the doors of dialogue open with the rest of the EU and the European Commission to determine the best workarounds for current EU sanctions and treaties, as well as how to handle the Single Convention and whether they can relinquish stigmas surrounding cannabis and adapt to the new green world. We will continue to work together to ensure the complete legalization of the value chain and bring the EU into the next phase of industry growth.
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