DESPITE some serious flaws in its approach it is unlikely that the European Commission has the powers to halt Germany’s ambition to establish an adult-use cannabis market, says a leading international drug policy expert.
In announcing its plans for cannabis legislation Germany says it is adopting an ‘interpretative’ approach to its obligations under the international drug conventions.
And, following preliminary discussions, it is now in the process of presenting these to the European Commission.
Kenzi Riboulet-Zemouli, one of Europe’s leading experts on cannabis policy in relation to internal treaty obligations, expressed serious concern with the German proposals which he believes are ‘under-cooked’, ‘error strewn’ and ‘ill-conceived’.
Mandate Of Nation States
However, he highlights that ultimately a nation state, even one tied to a larger regional economic body such as the European Union, has the capacity – as with Uruguay and Canada – to pursue its own domestic drug control agenda.
“While Germany has not done its homework and its white paper is riddled with many basic errors the interpretation of treaties is the mandate of nation states and not that of the European Commission or of the INCB. They cannot challenge the interpretations that states make of their treaty commitments. And states are entitled to move forwards with legalisation as long as they adopt one of the two permissible interpretive pathways under international law,” he said.
The two possible compliant ways to proceed with this are a ‘lex lata’ interpretive approach to legalise non-medical cannabis industry under article 2 paragraph 9 of the 1961 Single Convention on Narcotic Drugs (SCND), or legalising as a scientific experiment.
However, Germany’s interpretive declaration mentions neither of these options and oddly does not even reference the 1961 Single Convention, even though it contains the core legal provisions on cannabis ‘and is ipso facto a part of EU acquis’ according to Mr Riboulet-Zemouli.
The paper also mentions the 1988 Convention claiming it has been ratified by the European Union (EU), which is not entirely correct, since the EU only ratified a small portion of the 1988 Convention, and this does not concern cannabis.
Mr Riboulet-Zemouli added: “While the lex lata approach is the right one it is very surprising that Germany has failed to make any reference to either of these two pathways and suggest that there may be a lack of clarity in their approach.
“It would have more sense to reference Article 2 (9) of the 1961 convention which is already used for legal trade of hemp and CBD and can be extended to a full exemption of cannabis with any THC content for industrial purposes.
“Then there is Article 28 which has a full exemption of cannabis cultivation for industrial purposes.
“Ignoring these, and legalising without taking account of these concrete legal provisions (or indeed others) would regrettably represent a prima facie violation of international law.”
With its interpretative declaration Germany says the ‘implementation of the coalition agreement-under certain narrow conditions of state regulation and improvement of standards in the areas of health and youth protection as well as combating illicit drug trafficking – is compatible with the purpose and the legal requirements of the conventions’. But it remains silent on the nature of such compatibility.
European Commission Statement
In an emailed response to BusinessCann European Commission (EC) Spokesperson for Home Affairs, Anitta Hipper said it is still awaiting a formal German request for consultation.
She went on to provide the following statement which focused solely on illicit cannabis and decriminalisation with no mention of the progress being made with medical, and adult-use, cannabis on the continent.
It said: “The existing EU law lays down minimum criminal sanctions for illicit drug trafficking, and prohibits the cultivation of cannabis. The EU acquis (Council Framework Decision 2004/757/JHA) obliges Member States to take the necessary measures to ensure that crimes linked to trafficking in drugs, including cannabis, are punishable.
“This means that, except in the case of personal use of drugs, which is left for individual Member States to address, Union legislation requires that all activities related to trafficking of cannabis (production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery) are subjected to penalties by the national laws.
“The EU acquis is not covering personal use of drugs. It is therefore for the Member States to decide how to address the personal use of drugs, including for cannabis.”
No Reservations Expected
German cannabis lawyer Kai-Friedrich Niermann said that the preliminary talks Germany has held with the EU indicate a favourable response to its plans.
He said: “No fundamental reservations are to be expected in this respect, otherwise the Government wouldn’t have chosen this path. Particularly in view of the fact that a number of member states are also already making preparations for a reform of their national cannabis policies.”
He went on to say that he expects the EU to comment on Germany’s approach in the short term, ‘so that the legislative project can be introduced in the Bundestag as planned from January’.
And, if there is some push back from the EU it will have limited impact.
He added: “The German government leaves no doubt that cannabis legalization is politically desired by it and will also be pushed through against all odds.
“If the European Commission disagrees with the German plans – if that is legally relevant at all – they could do so only to the extent of establishing a commercialised value chain, i.e. from cultivation to trade, as personal possession and consumption is privileged under International and EU law.”
Breaching EU Rules?
Mr Riboulet-Zemouli highlighted how the EU could open an infringement procedure against Germany for breaching the EU acquis.
However, beyond the Council Framework Decision 2004/757/JHA – highlighted in the EC statement to BusinessCann – he contended that EU law also includes elsewhere ‘clear and direct obligations regarding the licit trade in drugs’.
He added: “While Germany has not done its homework, nation states can determine their own pathways based on their own interpretation of international commitments.”
Whether Germany, as a founder member and largest country in the EU, will be prepared to go it alone is, somewhat, questionable.
In a paper published last week The Canna Consultants bring this issue to the fore saying: “If the Commissions answer to Germany is ‘No’, it is almost inconceivable that Germany would confront the Commission head-on in a public battle over this issue.”
Mr Riboulet-Zemouli continued: “I see Germany going very slowly in designing the law, the leaked document (outlining its plans) was a surprise to many in the German government and beyond. It may not have been consensual with all branches of government, or with like-minded EU countries who have been working closely with Germany on European reform.
“Its approach is scatter gun and this may well reflect some of the internal divisions in German politics, and this is now slowing down German reform.”