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So, Germany is just about to legalize cannabis for recreational use. Initial draft guidelines were even released. Which makes it strange that the German Federal Court of Justice just enforced a ruling against two guys who sold hemp flowers with not more than .2% THC. In fact, it sounds a lot like what we already went through when France tried to stop imports of CBD into the country, and had to be shut down by the EU. Will this change anything?
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First off, what just happened?
The story starts well before Germany made the decision to legalize recreational cannabis. In 2021, two guy were convicted in a court in Berlin for selling CBD flowers in large quantities. This decision was recently upheld by the higher German Federal court, even despite it not making sense with EU law, or upcoming German law. The flowers didn’t have more than .2% THC, and at the time, that was the industry cut off for what is legal and what is not. Hemp flowers under that amount, have been legal for awhile.
Yet on October 14th, 2022, despite the THC limit not gone over, and despite laws in the works that literally invalidate all of this, the German Federal Court confirmed the earlier ruling which convicted the two men; with suspended sentences that include years of jail time. In a press release on the matter, it was stated:
“The 6th criminal senate of the BGH has now decided that CBD flowers – as long as they have not been de-resinized or only contain traces of THC in negligible amounts – are narcotics, since abuse of these products for intoxicating purposes cannot be ruled out.” Which means the court actually considers that the men were dealing in narcotics, even though they weren’t breaking EU law.
Cannabis in Germany
To be clear, its not like the court is even saying the guys were trying to sell the products illegally. They state in the press release: “According to the judgment of the district court, the main defendant – with the support of the second defendant and an unknown third party – acquired 60 kg of cannabis plant flowers with a high proportion of the active ingredient cannabidiol (CBD) in September and October 2019. He sold the CBD flowers to wholesalers for a profit, who in turn sold them to late sales outlets and CBD shops.”
Yet it goes on to say these next confusing statements. First this: “the district court rightly classified the CBD flowers as narcotics within the meaning of Annex I to the Narcotics Act (BtMG). The flowers did not fall under a cannabis exemption. They did have an active ingredient content of 0.2% THC and thus did not exceed the limit specified in the exemption.”
But then after essentially pointing out that legal limits were not exceeded, says, “However, there was no requirement that abuse for intoxicating purposes must be ruled out. If the flowers were heated during baking, for example, this led to the release of further THC, which could produce a cannabis intoxication when consumed by the end user. The main defendant was aware of this, but his assistant was indifferent.”
One could realistically ask what the point is in having legal limits if a court is going to so badly trample on them.
What about EU law?
Even if the German high court wants to get wonky with this ruling at a completely inappropriate time considering national policy for recreational use is on the way, it still brings up something else. Compliance with EU law. You see, the flowers in this case weren’t grown in Germany, but in Spain. By barring them, it would mean barring Spain from being able to trade a product deemed legal by EU law. EU law upholds the ability for free trade between member states without issue. The recent case of France vs the EU should have put this idea of banning CBD products to rest already, since France lost the case, and with it, the ability to bar imports of CBD.
And it seems this idea was on the mind of the court, which seems to think simply saying its not breaking with the mandate, somehow makes it not break with the mandate. Which it in reality seems to be doing. It sounds like the court knows this is an issue, because before anyone could say anything, it added in this to its statement:
German high court ruling
“Contrary to the opinion of the appeal, the conviction for trading in CBD flowers does not constitute a violation of the free movement of goods under European law (Art. 34 TFEU) that the flowers were legally produced in Spain.”
But, doesn’t it? I mean, wouldn’t you need a really good reason? Apparently, the best the Court could do was reiterate that “Because the flowers were narcotics, with which trade is prohibited from the outset and which are therefore not subject to the free movement of goods.” I mean, maybe that would make sense, if the EU also agreed that this classifies as a narcotic. But it doesn’t.
Yet the Court’s statement really wants to put words in the EU’s mouth. It goes on, “The standards of European law on which this assessment is based were so clear according to the relevant legal norms and so far clarified by the case law of the Court of Justice of the European Union (ECJ) that there was no reason to obtain a decision from the ECJ on compatibility with European law (Art. 267 TFEU ).”
So the German high court made the decision on behalf of the EU that it was okay to classify these flowers as narcotics even though the EU has a standard that allows for .2% THC (actually changed to .3%). By sheer definition the EU most certainly doesn’t agree, and the German court just brushed off the need to even ask.
It concluded with: “In view of the possibility of a health-endangering misuse of CBD blossoms for intoxication purposes, the Senate did not see any violation of the constitutional prohibition on excess in the punishability of trading in them.
The judgment of the Berlin Regional Court is now final.”
Let’s break this down. A country currently developing laws to allow recreational THC products, has a high court that just not only upheld the convictions of two men following EU law perfectly, but was ballsy enough to make a statement saying it was so sure of itself, it didn’t even need to ask the EU for permission.
EU cannabis law
What comes next?
Is this supposed to be some sort of hail Mary pass for all those unhappy with the new regime of Germany, and the move toward legalization? Is it expected to change the trajectory? Did someone actually think it would? Truth is, once the new laws come out, all this is invalidated anyway. The court might want to call it a narcotic, but the country is about to legalize it.
Plus, the men in question can do exactly what the two French guys Sébastien Béguerie and Antonin Cohen, did. Take their convictions to the EU high court. After all, if the EU doesn’t agree, the convictions can be invalidated. Those guys were convicted of marketing and selling hemp-derived CBD vapes in France, that came from the Czech Republic, which was within EU law. When France went against the EU and tried to ban the imports, it lost the case, because that violated EU trade law, which allows products to be sold without issue across borders.
Now, Germany is upholding the convictions of two men for almost the same thing. Giving those men the ability to take it to the EU. The question is whether the EU high court will see fit to hear the case. On the one hand, if it doesn’t hear the case, it allows its own ruling with France to be invalidated. On the other hand, doesn’t it have more important things to do than continuously look at the same issue? Personally, I hope it takes the case, and it might given the attention on it now. Or, it could ignore it, and figure that like it or not, Germany’s new laws will also end up invalidating the issue.
Most of all, the latest German high court ruling shows silliness, and petulance. How childish does a court system have to be to make such a judgement 1) as laws are literally in construction to invalidate the effort, and 2) when such a similar case was already lost by France so recently. Sure, maybe not everyone is on board with everything, but making it into such a temper tantrum when a legalization is coming? Stop being such cranky child, Germany!
This case won’t stop the legalization. It just serves to waste time and money, both for Germany, and for the EU if it must now do more work to uphold a ruling it already made.
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Right now, there is no legal recreational cannabis market in Europe (though there is one recreational legalization). Out of all of Europe, Germany’s medical cannabis market is by far the biggest, and quickly growing. Does this growing acceptance of cannabis mean that a recreational legalization is next? A failed initiative from last year was a setback, but with elections at the end of the month, and Chancellor Merkel standing down, a recreational legalization could come sooner rather than later.
Germany’s medical cannabis market is the biggest in Europe, and it looks like a changing political dynamic could lead to recreational legalization. This is good for consumers everywhere, as more legalized countries mean more and better products. Think about it, until the recent cannabis boom, products like delta-8 THC didn’t exist at all, and now this alternate form to delta-9, which causes less anxiety and couch locking, is available all over the place. Interested parties can check out our large selection of delta-8 THC, thcv, thcp, thco, hhc and delta 10 deals along with plenty of other compounds. The world of cannabis is growing, don’t miss out.
Germany and cannabis law
Germany is a recreationally illegal country when it comes to cannabis. Under the German Federal Narcotics Act, an offender can be sentenced to up to five years in prison for possession. This only covers possession, as there is technically nothing stated legally about use, meaning being caught using is likely to incur civil penalties or some kind of program, so long as the quantity is considered a ‘small amount’.
What’s a small amount? This is actually not specified, and is judged not just by physical weight, but by delta-9 THC content. Different regions of the country have their own limits, ranging anywhere from 6-15 grams. Cultivation and suppling cannabis are predictably illegal, and offenders generally receive up to five years in prison. Supply crimes can vary, with the possibility of garnering anywhere from 1-15 years in prison, depending on circumstances.
Germany approved the use of Dronabinol in 1998, officially allowing a small amount of medical use from that time. A full medical cannabis bill passed in 2017, expanding greatly on the original legalization. At this time, all medical cannabis was imported into the country, mainly from the Netherlands and Canada. This changed in 2019, when Germany legalized the production and exportation of medical cannabis products, thereby entering the global medical cannabis market.
Since that time, Germany has had the biggest cannabis market in Europe. The first German medical cannabis company to enter the Düsseldorf Stock Exchange is Cannovum AG, which entered this past May, 2021.
How big is Germany’s medical cannabis market?
On March 4th, 2020, a list of questions was posed by left party Die Linke to government officials in parliament. According to BfArM – The Federal Institute for Drugs and Medical Devices which oversees the regulation of the cannabis industry in the country, in regards to number of users, a survey performed by the agency showed 13,343 complete records. In its write-up and translation of the article, leading cannabis market intelligence firm Prohibition Partners estimated there were approximately 128,000 patients a year who received medical cannabis from the government, at that time. The government was not able to give a more specific number.
In terms of cannabis imports to Germany, Q4 of 2020 saw 3,264 kilograms enter the country, which is the highest of any quarter so far. This brought the year’s total to 9,249 kilograms. Germany’s import market grew so quickly that there was over a 100% increase in 2018 and 2019, though only 37% in 2020, possibly due to the corona pandemic. In the past, Germany imported mainly from Canada and the Netherlands.
Germany now accepts imports from Portugal, Israel, Uruguay, Spain, and Australia. It’s expected that countries with lower production costs, like Uruguay and Portugal (and likely the legalized African countries soon), will be major providers in the future. Besides imports, Germany is starting to produce itself, with the expectation of domestic suppliers providing 2,600 kilograms a year, or more. This broadening of countries to buy from has had a big effect on one of Germany’s biggest suppliers, the Netherlands, which saw a decrease in exports of 5% for the year, the first time this has happened.
Prior to 2020, Germany’s medical cannabis market was already very large, with statistics from 2019 showing Germany as both the biggest importer and exporter of cannabis oil for Europe, and being a main contender globally. For imports that year, according to worldstopexports, Germany imported $240 million worth of cannabis oil, second only to the US which imported a massive $893 million worth that year. The next European country to make the list was France, in 5th place, with $152.7 million worth of imports. Germany accounted for 7.8% of all cannabis oil imports that year.
In terms of exports, Germany was still the top European provider, coming in fourth place globally with $229.8 million worth exported. The next European country on the list was Spain, with $190.5 million for the year. Topping the list were China at just under one billion, India at $320.8 million, and the US with 309.7 million. All these numbers apply only to cannabis oil, and do not account for other products like cannabis flowers, other concentrates, tinctures, creams, patches, or capsules.
Obviously, the flower market should be examined as well, and Germany is not lacking here, either. In July, 2020, according to BfArM, Germany saw increases in imports in Q1 and Q2 at 16% and 32% respectively for that same year. How much do these increases mean in cannabis weight? In 2018, cannabis flower imports totaled about 3.1 tonnes, which went up to 6.7 tonnes in 2019. In 2020, it rose to the aforementioned 9,249 kilograms, or 9.249 in tonnes.
Will Germany pass a recreational legalization?
This is a great question. Germany’s medical cannabis market is huge, but will this help spur on further expansion by way of a recreational legalization? This has actually come up already. On October 29th, 2020, a recreational bill was rejected in parliament, and not because it didn’t have ample support. The rejection was more due to coalitions, than the idea of mass opposition to it. In Germany, there are six main political parties, as well as other smaller ones. Two of those main parties, the Social Democratic party of Germany, and the Union, (which itself is the combination of two parties including the Christian Democrats led by German Chancellor Angela Merkel) have a coalition.
The Social Democratic party holds 152 seats and is in favor of legalization. However, the Union holds 264 seats and is against legalization. The Social Democrats generally vote alongside the Union members, meaning that together they hold enough seats to derail legalization attempts, even though many of those seats are held by politicians looking to legalize, and other political parties also promote legalization. This is what happened to last year’s proposed bill for an adult-use market. It makes for quite the odd pairing considering how opposite the two parties are on many issues, including cannabis.
The thing is, when you see a government that has a large percentage leaning in a certain direction, strategic coalitions will only last so long, especially as public opinion changes. At a certain point, in order to remain in office, these politicians will have to succumb to the will of the people. This is the same thing that can be seen in North Carolina where republicans are now leading the charge for medical legalization with the understanding – stated by them directly, that they don’t have a choice anymore.
Another main party, the Green party, which currently holds 67 seats, has been gaining support and was vying with Merkel’s Union coalition earlier this year for the top spot in opinion polls. This September there are Bundestag Elections, in which the federal parliament is elected. As Angela Merkel will not be running this year as per her announcement in 2018 to stand down as Chancellor and leader of the Christian Democrats, this certainly opens the door for general change.
A lot has changed since 2005 when Merkel first came to power. The German Hemp Association, which has been conducting polls since 2014, saw 30% in favor of legalizing in their poll that year. This number went up to 46% for legalization within just a few years. In terms of decriminalization, 59% backed it in 2018, and no further poll on the matter has been taken since this time.
Co-founder of Cannovum, Pia Marten (the Berlin based-company which just became the first publicly listed cannabis company in Germany), had this to say: “Looking at the General Election I am excited to see what happens, it could introduce some changes in legislation; recreational would have an impact on our business and we are keeping a close eye on this… If we get a government with a liberal approach, it could happen, then it could make way for recreational use.”
Some are more sure of themselves, like cannabis lawyer Kai-Friedrich Niermann, who stated, “We have had medical cannabis since 2017 and we are now preparing for the big cannabis reform in September. The Federal elections are taking place and we are assuming the Green Party will come into power and legalize cannabis from next year.”
While Prohibition Partners has stated it believes approximately 28,000 people receive medical cannabis a year in Germany, the same firm also believes that there are upwards of four million cannabis users in the country, which means if Germany has a big cannabis market with only medical, it could be massive with recreational. We’ll find out how ready Germany is to embrace this idea at the end of the month.
Many countries are getting closer to recreational legalizations, so its not surprising that the country with the largest cannabis industry in Europe, would be looking to expand further. Germany’s medical cannabis market has been booming since 2017, and with a huge change coming in the political scene what with the end of Merkel’s reign, the former opposition to a legalized recreational market, might finally be taken over by a push to legalize.
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Disclaimer: Hi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advise, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.
