This article was originally published in the Tagesspiegel on 24 July 2023:
Now it happened faster than expected - After the government coalition anchored the legalization of cannabis in the coalition agreement in 2021, some calm seemed to have returned at first. The bill, which was originally intended as a complete legalization through the establishment of a state-controlled stimulant market, was largely withdrawn after an intensive consultation process with experts from industry, science and politics, as well as discussions with the EU Commission. In some cases, due to numerous acute political crises, there were doubts about implementation in the current legislative period.
In April 2023, Federal Minister of Health Karl Lauterbach and Federal Minister of Agriculture Cem Özdemir presented a way forward in the form of the so-called “2-pillar plan” for the legalization of cannabis for consumption purposes. According to the ”first pillar”, individual as well as, within the framework of so-called “cultivation associations”, communal self-cultivation of certain quantities of cannabis plants is to be legalized. Shifted in time, the “second pillar” should then allow the purchase of cannabis for recreational use within the framework of locally limited model projects, which are to be accompanied by scientific studies.
At the beginning of July 2023, the Federal Ministry of Health (Bundesgesundheitsministerium, BMG) now published the first official draft bill. The timeframe for implementing the project now also depends to a large extent on whether the new law requires approval in the Bundesrat.
What does consent-requiring (zustimmungsbedürftig) mean?
In principle, federal laws in Germany are objection laws (Einspruchsgesetze), so that the Bundesrat has the option of raising an objection and initiating a separate procedure that can delay the entry into force of the law once again. However, the Bundesrat cannot exercise a final “veto”. Only if the Basic Law expressly provides for this is a law subject to approval. This applies to laws that amend the Basic Law, laws that have a specific impact on the finances of the states (Bundesländer) and laws whose implementation interferes with the organizational and administrative sovereignty of the Bundesländer.
Need to approve the draft bill of the CannG?
The draft of the “Cannabis Control Act” introduced in 2017 by the Green parliamentary group and supported by the Left parliamentary group, which already failed in the Federal Parliament (Bundestag), was classified at the time in the bill itself as requiring approval. In fact, the new cannabis law would only require approval if it fell under one of the aforementioned categories.
The Cannabis Act (Cannabisgesetz, CannG) in the current version of the draft bill of 5 July could belong to the third group of cases. It is planned that the state authorities are responsible for the approval and supervision of cannabis cultivation associations. The law also mentions specifications regarding the concrete execution. It should be noted, however, that the states generally have a right of deviation in the execution of federal laws. If, as an exception, the federal government excludes this right to deviate and thus deprives the states of the opportunity to adapt the law to their own structures, the law must be approved by the Bundesrat. However, the draft bill of July 2023 does not contain any such exclusion.
If the bill had an impact on the finances of the federal states in a certain way, the law could fall under the second group of cases. On the revenue side, this would include all laws on taxes in whose revenue the states or municipalities participate. On the expenditure side, this would include all laws that create obligations on the part of the Bundesländer to provide cash benefits, non-cash benefits of monetary value or comparable services. This would be the case if the finances of the Bundesländer were affected on the revenue or expenditure side. This cannot yet be assessed on the basis of the current draft bill.
In addition to the CannG as a whole, however, a different assessment could arise with regard to Article 2 of the Act. With the provision envisaged there, cannabis would now also no longer be classified as a narcotic and would be removed from the Narcotics Act (Betäubungsmittelgesetz, BtMG). This would also have explicit implications for the Medical Cannabis Act (Medizinal-Cannabisgesetz, MedCanG), which has been in place since 2017. In order for the amendment to the BtMG, as regulated in Article 2 of the draft law, to be classified as requiring consent, the law would have to fall under one of the aforementioned exceptions to the objection law, none of which are currently apparent, however.
If the amendment to the BtMG were to be classified as requiring approval, it would still be possible to split off the article in advance and introduce it as a separate bill in order not to jeopardize the CannG. This is because if a law contains even a single provision requiring approval, the law as a whole, i. e. including its components not requiring approval, is subject to approval.
However, the BMG is confident and assumes that the law does not require approval. According to the BMG's website, “The German Bundestag is responsible for passing the final resolution on the law. The law does not require the approval of the Bundesrat. Entry into force is scheduled for the end of 2023.” In view of the political composition of the Bundesrat and the delay that could be avoided as a result, it is obvious that it is in the interest of the Federal Government in terms of legal policy to make this Act as far as possible not subject to approval. If, however, the Bundesrat is of a different opinion as to whether the law requires approval, the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) would have to make a final decision on whether approval is required. Discussions on this have only just begun and it remains to be seen what position the Bunesländer represented in the Bundesrat will take on this.