German cannabis regulation on thin ice - The government’s risky approach to international legal obstacles puts the entire project in jeopardy

Germany’s current interpretative approach puts the fate of the entire project for cannabis regulation on very thin ice. But there is still time to change course, and legally sound and politically viable alternative options are available.

The German government has released its ‘Eckpunktepapier’, a concept note laying out the key points to shape the regulation of the recreational cannabis market. Presenting the key points at a press conference this week, Health Minister Lauterbach made clear that it had not been easy to reach agreement within the ‘Ampel’ coalition and between the involved ministries. Clearly one of the trickiest issues has been how to deal with the legal hurdles of the UN drug treaties and EU law. The Minister presented what he called the ‘Interpretationslösung’ as the government’s Plan A, which will be submitted to the European Commission in hopes of a green light that would allow the legislation to proceed. But if the EC rejects Germany’s ‘interpretative solution’, there will be no legal regulation unless another legal accommodation can be negotiated. Regarding a Plan B, the Eckpunkte vaguely mention the possibility that the proposed legislation “can be accompanied by Germany's advocacy for certain amendments/updates at EU and international law level”.

Unfortunately, Germany’s Plan A approach risks bringing the whole regulation project onto legally very thin ice, for several reasons. Let’s make clear from the outset that TNI fully supports the intention to legally regulate the cannabis market, as we have done in the case of Uruguay, Canada, Mexico, Malta and now also Colombia. TNI has been working for several years now with a group of international lawyers, treaty experts and government officials to explore the most viable options to accommodate the legal regulation of cannabis markets under international law. With due respect for basic principles of international law, and staying within the realm of faithful treaty interpretation, we have laid out in detail the legal tensions and the available compliance options. The ‘Interpretationslösung’ now proposed by Germany, does not appear on the menu of viable solutions elaborated by the group of treaty experts we convened, as it can be easily contested and dismissed on legal grounds.