The new German government plans to legalize cannabis, finally! The draft Cannabis Control Act would allow the soft drug to be licensed to be grown and sold in specialty stores to those over the age of 18. The largest EU member states are in good company: Canada legalized cannabis in 2018. A number of American states soon followed. In the EU, Luxembourg and Malta took the step towards legalization in 2021. In the Netherlands, cannabis has been freely available in the famous coffee shops since the 1970s. However, Article 2 of the Dutch Narcotics Act (Opiumwet) prohibits the possession of narcotics, including cannabis and its derivatives. The fact that the Dutch authorities nevertheless tolerate sales in coffee shops (so-called gedoogbeleid) is based on the opportunity principle. This principle gives the Dutch investigative authorities discretion in deciding which crimes to prosecute and which not. On this basis, Dutch prosecutors consider the sale and possession of limited amounts of cannabis tolerable.
Nonetheless, some legalization advocates are noticing a global movement away from drug prohibition policies and towards a more liberal approach to dealing with narcotics. In fact, the German approach is nothing less than a minor revolution of over half a century of cannabis prohibition in Europe. The question remains: How does Germany intend to do this without violating international and European law? This post examines the legal rationale for legalizing cannabis in Europe, the legal obstacles raised by the ECJ and how Germany is attempting to circumvent them.
The ECJ Josemans judgment
In 2010, the ECJ issued judgment C-137/09 Josemans vs. Burgermeester van Maastricht. In the underlying case, the plaintiff Josemans, the owner of a café in the Dutch city of Maastricht, fought against the city's closure of his restaurant. The mayor had decreed that only people residing in the Netherlands could have access to the coffee shops. The aim of this regulation was to curb drug tourism from Germany, France and Belgium by requiring a Dutch residence permit to buy cannabis in the coffee shops. The plaintiff had violated this regulation and claimed that it discriminated against EU citizens. The Court ruled that all narcotics, including cannabis, are banned in all EU Member States except for strictly controlled trade for medical and scientific purposes (paragraph 36). Since cannabis sold in coffee shops is not marketed for the latter purposes and consequently cannot enter the economic and commercial circuit, restrictions on nationality do not constitute a breach of the principle of non-discrimination (paragraph 42).
If the large-scale cultivation, trafficking and sale of cannabis outside of medical and scientific uses is illegal within the EU, how can countries like Malta, Luxembourg, the Netherlands and now Germany legalize recreational cannabis? The answer is that it depends on how legalization is conceptualized. Within the EU, Luxembourg and Malta have opted for legalization-light, allowing consumption and cultivation for personal use, while commercial cultivation and sale remain prohibited. Similar policies have developed in Spain and to a lesser extent in Belgium, where so-called Cannabis Social Clubs are facilitating personal cultivation and consumption of cannabis. However, none of these models are as ambitious as the German plans for a so-called full legalization of cannabis use.
The Netherlands in particular, with their unique coffee shop model, are watching the German plans with great interest – and astonishment. The country had struggled for decades to legalize the supply side of cannabis products, resulting in what criminologists have dubbed a backdoor problem: while the sale of cannabis in coffeeshops is tolerated, growing and buying in bulk remains banned. This leaves the coffeeshops with no choice but to buy the product illegally. Cannabis goes out the front door legally and comes in illegally through the back door. The reasons for this birth defect in Dutch cannabis policy lie in European law and the case law of the ECJ, which strictly prohibit cultivation and sale for purposes other than medical and scientific. But if the Netherlands never managed to solve this problem, how is Germany supposed to? Have you found a legal loophole in European law? Well maybe they have.
Ban on drugs and EU law
In order to understand the German approach, it helps to first take another look at the Josemans judgment of the ECJ. In addition to emphasizing the strong interdependence of international and European law, the ECJ refers to Framework Decision 2004/757. Similar to the Schengen Agreement of 1990, this framework decision deals with threatening and combating illegal drug trafficking by means of law enforcement. In addition, it focuses on a more coordinated and harmonized approach. With Schengen and the abolition of border controls within the EU, drug trafficking received an enormous boost. The fight against drugs required harmonized legal and enforcement strategies, especially since Member States pursued very different drug policies. For example, while Sweden to this day has a zero-tolerance policy towards all forms of drugs, the Netherlands did not take drug-related crime prevention very seriously for many years. In a united Europe, however, a fundamental drug problem has become starkly clear: the policies of one country can have a major impact on another. Germany in particular is struggling with this problem. The Czech Republic's lax treatment of crystal meth laboratories has led to a small epidemic in neighboring Bavaria, with all the negative consequences such as drug crime, increased need for therapy and drug-related deaths. Dutch tolerance has clogged the courts of German border towns with criminal cases related to cannabis smuggling. Therefore, Germany has for years advocated a prohibitionist approach to drug policy, and the framework decision emphasizes harmonization and coordination as a key factor within EU drug policy.
However, the real innovation of the Framework Decision is found in Article 2(2) of the Framework Decision. Here the cultivation of cannabis and other drugs is not prohibited if “it is committed by the perpetrators solely for personal use within the meaning of national law. In 2004, this was nothing less than a minor revolution in drug policy. Spanish courts almost immediately picked up the provision and incorporated it into their rulings, effectively legalizing cultivation for personal use. The provision is not only the legal basis for the Cannabis Social Clubs movement that has emerged in many Member States, but also for the Luxembourg and Maltese approach. However, the wording of Article 2 does not allow for a far-reaching legalization model, as the German legislator is planning. Instead, the German approach is based on Article 2(1) of the Framework Decision. According to this, each Member State is obliged to “take the necessary measures to ensure that the following intentional acts, if committed without authorisation, are punishable, inter alia: offering, offering for sale, distribution, sale, supply on any terms and brokerage of drugs”. The crucial two words in this article are "unjustified". These form the legal basis of the German Cannabis Control Act, as stated in the appendix to the same:
“The legal trade in cannabis by license holders under the Cannabis Control Act is therefore not covered by the framework decision, as in these cases there is an authorization under national law.
In other words, European law exempts member states from taking action against trafficking in drugs, including cannabis, when such trafficking is legal or based on a law. The key question is what makes drug trafficking legal? To find an answer to this question, a brief look at international law or the case law of the ECJ over the last 30 years helps. The trade and cultivation of drugs is permitted if it serves scientific and medical purposes. Article 7 of the 1971 Psychotropic Substances Convention permits the manufacture, trafficking, distribution and possession of drugs only to duly authorized persons in medical or scientific establishments under the direct control of, or specifically authorized by, their governments. They also require prior approval. While international law is very clear on the issue of licensing and authorization to handle drugs of any kind, European law is not. In fact, neither the Schengen acquis nor the Framework Decision mention the restriction to medical and scientific purposes. However, both refer directly to international law and the ECJ also does this in its case law. The crucial question is therefore: Does the wording of the framework decision allow EU member states nothing less than to unhinge the entire EU drug prohibition regime by giving them the possibility to legally define what constitutes a right to grow and trade cannabis represents?
The German interpretation of "unjustified"
At first glance, this seems far-fetched. Harmonization and coordination in the fight against illegal drug trafficking is the guiding principle of EU drug policy, which is particularly emphasized in the framework decision. How would a provision that allows any member state to opt out of the prohibition regime by legalizing virtually any drug in existence, further this goal? Even if that had been the intention of the legislature, one would have expected a more detailed explanation of such a drastic step. But there is not a single word on this subject in the supplementary material to the framework decision. Also, this framework regulation dates from the early 2000s, a time when cannabis liberalization was more of an exotic idea. Finally, there is the case law of the ECJ, which since the 1981 Horvarth decision has repeatedly affirmed the solemn exception of strictly controlled drug trafficking for medical and scientific purposes.
But what speaks for the interpretation of the German legislature, which in principle allows all member states to create their own drug laws? Well, first of all the wording of Article 2. While the international treaties tend to use the terms “authorisation” and “authorisation” when it comes to the cultivation of drugs for medical or scientific purposes, the Framework Decision expressly speaks of a “right " to. However, a right is more than a permission or license. A right can be created by law. If the framework decision does not provide for any restrictions, it seems reasonable that the Member States themselves determine what constitutes the right in question. As for the international treaties, Article 2 only makes explicit reference to the European treaties (e.g. the Tampere conclusions) when it calls for legislative action to combat illicit drug trafficking. The important international treaties are not directly mentioned. The 1971 Vienna Convention on Psychotropic Substances, which includes the important medical/scientific exemption, is mentioned in Article 1, but only in relation to the definition of drugs. One could deduce from this that the framework decision should be a step towards an independent EU drug policy that offers more leeway than the international conventions. However, the Schengen Agreement and also the EU drug action plans from 2000 to 2004 leave no doubt that the member states of the international drug control conventions are bound by the restrictions for medical and scientific purposes.
In summary, the better arguments are in favor of a narrow interpretation of the terms “without rights” that only applies to scientific and medical purposes. German legislators have interpreted the framework literally, but this is unlikely to stand up in court. So the German cannabis control law is based on a very formal but questionable interpretation of EU law. The question remains as to what consequences this German path could have.
In 2019, the ECJ made a judgment that shook the German legislator to the bone. In Case C-591/17 Republic of Austria v. Republic of Germany, the court ruled that the German infrastructure charge for passenger cars discriminated against EU citizens. Germany had passed a law requiring all passenger cars using the German autobahns to pay a toll. That's nothing unusual. The highlight, however, was that the German vehicle owners were able to reclaim the toll through their taxes. The ECJ rightly saw this as clear discrimination on the grounds of nationality under Article 18 TFEU and rejected the German law. Will the Cannabis Control Act meet the same fate? The chances are good. Like the infrastructure charge, the Cannabis Control Act largely ignores EU law, the case law of the ECJ and the interests of other EU member states. For example, how does Germany intend to curb drug tourism to Poland, Austria or Denmark? After years of pressure from their German neighbors, the Dutch have tied the sale of cannabis in border towns to a residence permit. The ECJ considered this to be lawful and not discriminatory as cannabis is still a prohibited product under Dutch law. Therefore there can be no right for EU citizens to buy this product. However, under the German draft law, cannabis would no longer be banned. This would also eliminate the possibility of restricting the sale of the product only to persons resident in Germany, as this would indeed constitute discrimination according to the case law of the ECJ. But how could Germany then tackle the problem of drug tourism? The draft law leaves this question unresolved.
There are good reasons for legalizing cannabis: it can help dry up the illicit market, ease the burden on the criminal justice system, reduce user stigma and potentially minimize health risks through quality controls. More importantly, the problem of the gateway drug is more manageable: those who buy weed from a dealer are often offered harder drugs as well, often as a free sample. Comprehensive but cautious legalization of cannabis is sound drug policy. However, it must take into account the interests of the other member states and be consistent with European law. If this right is no longer up-to-date, it must be changed. Within the EU, this is a long and rocky road. There are no shortcuts, not even for Germany.