What do the two pillars in the key issues paper on cannabis legalization look like in concrete terms?
The 1st pillar consists of the legalization of individual self-cultivation of up to three cannabis plants on the one hand and the complex “collective self-cultivation” in so-called cannabis clubs on the other. It should be possible for these clubs to distribute cannabis flowers, seeds and cuttings among their (max. 500) members. Approval and monitoring are to be carried out by the state authorities. Of course, these regulations would decriminalize the possession of cannabis up to certain limits.
With the 2nd pillar, regionally limited, scientifically supported model projects are to be established, which are intended to pave the way to a nationwide, state-controlled luxury food market, as envisaged in the 2021 coalition agreement. According to the key issues paper, “the effects of a commercial supply chain on health and youth protection as well as the black market are to be scientifically examined”. These are open-ended, scientifically supported projects that will initially run for 5 years and for which only adults within certain spatial limits are eligible to participate.
How will the EU legal situation influence the implementation of the 2-pillar model?
Any national law must conform to EU law, otherwise there is a risk of infringement proceedings being initiated by the EU Commission or other member states. To what extent the planned two pillars are in conformity with EU law cannot be assessed with absolute certainty at this point in time, as it depends on the concrete legal implementation and the interpretation of EU law. However, it can be assumed that the EU Commission gave relevant feedback regarding its classification of the legalization project in confidential discussions, and that the Federal Government changed the original key points in response. In any case, the current proposals do not appear to be clearly contrary to EU law. Art. 71 Para. 1 of the Schengen implementation agreement refers, among other things, to the UN uniform agreement of 1961, in which, for example in Art. 4 c.), the production, distribution, possession and trade in drugs for scientific purposes dated prohibition are expressly excluded. In principle, this could pave the way to the pilot projects of the 2nd pillar. Tolerance of self-cultivation and the decriminalization of property (first pillar) are already being practiced in other EU member states.
What criteria must be met in order to be able to participate in a regional model project?
Precise details on the concrete implementation of the second pillar have not yet been communicated. In any case, all participants will have to be of legal age. A residence restriction to certain regions, cities or districts can be considered. In view of the scientific monitoring, health criteria are taken into account where appropriate.
Are there international examples where regional model projects for cannabis legalization have been successfully implemented?
According to the Federal Office of Public Health (CH), three pilot projects have currently been approved in Switzerland, two of which are already running (“WEED CARE”, Basel; “Züri Can”, Zurich), and a third (“Cann-L”, Lausanne ) is to be implemented from summer 2023. These are scientifically supported studies limited to a few years in which selected participants can obtain cannabis for recreational purposes. The three pilot projects will take care of a four-digit number of people; sales take place through pharmacies and social clubs. While Switzerland is not a member of the EU, it is a member of the Schengen Agreement, so the legal implementation is also interesting for Germany.
What are the next steps towards full cannabis legalization in Germany?
EU law currently stands in the way of full legalization of recreational cannabis. On page 4 of the key issues paper, the Federal Government writes that it intends to continue its efforts to promote its approaches to European partners and also to examine to what extent the initiative will be possible for a sufficient number of EU member states to take the relevant EU – to make the legal framework more flexible and to develop it further. In my opinion, this is the necessary step. Full legalization in Germany must be preceded by a change in EU law, unless agreement is reached on an open breach of the law, which I think is unlikely; but in any case a change in the political climate and in the case law at EU level.
