• Peter Homberg

Legalization in Europe?

Candidates for the Legalization of Recreational Cannabis in the Near Future


Recently, the political landscape in several European countries has moved towards the legalization of cannabis for recreational use in various degrees.

Which countries could, which countries will most likely legalize recreational cannabis in the near future? How would the legalization be realized legally, and in which time frame can it be expected? What challenges could the legalization efforts face?


Photo by Dad Grass on Unsplash

Status quo


When discussing the issue of legalization, a clear distinction must be made between legalization and decriminalization. While decriminalization of cannabis for recreational use, which many countries have already undertaken, simply means that per se prohibited behavior is tolerated and not prosecuted, legalization signifies an explicit permission of said behavior.


The first and so far only European country so far to have legalized cannabis for recreational use is Malta. On 14 December 2021, the Maltese Parliament decided to legalize the possession of small amounts and cultivation of cannabis for personal use. Cannabis can be purchased by adults from special cannabis associations that operate on a non-profit basis and are not allowed to advertise the drug or its services. The associations are licensed and controlled by the newly established Responsible Cannabis Management Authority and may have a maximum of 500 members. 50 grams per month or 7 grams per day may be given to each of the members. The total quantity stored must not exceed 500 grams. In addition to obtaining cannabis from these official associations, a self-cultivation of four plants is allowed. However, the sale and consumption in public remains prohibited


Other countries, however, are not yet as far along.


Germany


On 7 December 2021, the new German government signed the coalition treaty, with the legalization of recreational cannabis being one objective. The target has been stated as the controlled distribution through licensed shops. Specific legal details – specifically the extent of legalization and the compatibility with EU and international law – remain unclear.


The government has also not yet given a specific timeframe, in which legalization can be expected. However, taking into consideration the general timeframe of German legislation, the pandemic being the top priority, the compatibility with international law being unclear and the challenges for the practical implementation – cultivation vs. import, infrastructure, drug tourism – it is fairly safe to predict that any sale of cannabis for recreational purposes will not take place in 2022.


Switzerland


Switzerland is already one step further than Germany in the possible legalization of recreational cannabis. On 19 March 2021, the Swiss Parliament adopted an amendment to the Narcotics Act for easier access to medicinal cannabis.


Almost simultaneously, on 31 March 2021, the Federal Council (Bundesrat) adopted the ordinance on Pilot Trials for the controlled dispensing of non-medical cannabis. From 15 May 2021, applications can be submitted to the Federal Office of Public Health to conduct pilot trials with non-medical cannabis; these studies are intended to expand knowledge on the advantages and disadvantages of controlled access to cannabis. Within the pilot trials, consumers can legally purchase various cannabis-based products, the cannabis products must meet high quality standards and come from organic cultivation, and the supply chains are strictly monitored and controlled, thus circumventing the black market Zurich announced a corresponding pilot trial with 1000 to 2000 cannabis users to start in autumn 2022.


In addition to that, in October 2021, the government announced intention to legalize production, cultivation, trade and consumption of cannabis. While this would be backed by the majority of the population – according to a survey by the Swiss Federal Office of Health, 66% of adults favor the legalization of recreational cannabis – it is unlikely to happen in 2022.


Luxembourg


Before their re-election in 2018, the parties of the Liberal-Green-Social Democratic government announced the intention to legalize cannabis trade by 2023, primarily to combat the black market. So far, this plan has not been implemented. Due to the resignations of the responsible ministers and the Covid pandemic, the main objective with which Luxembourg strived to become a European pioneer has turned into a moderate version of liberalization, officially due to “incompatibility with EU law”.


Instead of full legalization, the government announced that households will be allowed to grow cannabis (up to four plants) and consume it privately from 2021, which comes closer to decriminalization than legalization. The number of seeds purchasable and their THC content are unlimited; seeds can also be obtained from abroad or via the internet. Consumption and possession in public will continue to be punishable, but the range of punishment will be lowered.

In the medium term, a controlled domestic distribution of seeds is to follow. Luxembourg’s Justice Minister Sam Tanson, however, assured that the goal of full (commercial) legalization would not be abandoned.


Other countries


Portugal legalized medical cannabis in 2018 and has become a hotspot for US and Canadian cannabis companies looking to access the European medical cannabis market. Cannabis is not legal, but has been decriminalized, and the use and possession of small amounts is only treated as a misdemeanor. Currently, there are two draft laws that allow the consumption, cultivation and possession of cannabis for personal use. However, government instability and the pandemic have put these proposals and the public discussion on legalization on hold.


In Spain, the cultivation and personal use of cannabis is already decriminalized (often through cannabis social clubs). On 19 October 2021, a bill to legalize cannabis for recreational use was rejected by the Spanish Congress. Therefore, legalization is not realistic in the near future. Since then, several similar bills have been registered but are also expected to fail. However, a subcommittee has recently been set up to analyze the experience of regulating cannabis for medical use. The report is to be submitted to Congress in May/June 2022. The content of the report will most likely influence the future regulation of medical cannabis. However, commercial legalization of cannabis for recreational use is still a long way off.


In Italy, the use of drugs is no longer a criminal offence since the 1993 referendum but is punished administratively. In 2019, the Court of Cassation ruled that cannabis cultivation for personal use in one’s own home is allowed. Last year, the Italian Chamber of Deputies proposed a law that would allow private households to grow up to four cannabis plants. 600,000 people also signed a referendum to decriminalize domestic cannabis cultivation and remove penalties for cannabis possession – also to weaken the mafia. However, according to a decision of the Constitutional Court (2022), the referendum will not be considered. Court President Giuliano Amato justified this decision with the referendum including not only regulation of cannabis, but also other drugs such as cocaine. If the referendum had been successful, this would have violated Italy’s international obligations in the fight against drug-related crime. It remains to be seen whether a new attempt limited to cannabis only will have more success. At present, however, there are no further plans for (commercial) legalization.


The Dutch government wants to start an experiment with the cultivation of recreational cannabis to see if and how differently controlled cannabis can be legally supplied to coffee shops and what impact this would have.

In Belgium, similar to the Spanish model, Cannabis Social Clubs have become common and yet to be formally convicted for cultivation and distribution of cannabis within their members. However, no formal legalization effort is currently observed.


Outlook: influence on international law and national legislations

Overall, there is a clear trend towards increased legalization of cannabis in European countries, despite several recent setbacks. However, this development contradicts current international law. The UN Convention on Narcotic Drugs 1961 (“Single Convention”) specifies in Articles 23, 26 and 28 exactly what national and international controls should look like with regard to cannabis. The treaty not only sets the framework for the medical use of the substances listed in it, but it also still forms the basis of worldwide drug legislation today.


Especially with regard to recreational cannabis, the convention leaves little room for maneuver to the member states: While, following the European Court of Justice ruling on CBD in 2020, the United Nations Commission on Narcotic Drugs (CND) downgraded cannabis to the lowest category (Schedule 1) in the Single Convention on Narcotic Drugs, facilitating the medical use of cannabis. However, this had no effect on the use of cannabis for recreational use, to which this classification does not apply. Future legalization efforts will therefore initially run counter to the Convention.


How the International Narcotics Control Board (INCB) deals with such violations has already been observed in the past. Uruguay has been warned and threatened with sanctions by INCB following legalization of recreational cannabis. In the course of realizing legalization, Canada was also threatened with measures by the INCB, but they were never implemented.


However, an accumulation of legalization, accompanied by the necessary changes in national legislation, could trigger a domino effect, as has been observed in several US states. It is questionable whether the INCB will still be able to enforce the provisions of the Convention in the event of increased violations, especially by an increasing number of member states of the Convention, and whether this might lead to an amendment of the existing agreement or the conclusion of a new convention under increasing pressure.


Evidently, legalization of recreational cannabis is on the agenda in many European countries. However, the increasing efforts are challenged by factors as delay due to the pandemic, political powers and international law. It remains to be seen in which timeframe and under which legal conditions full legalization of the use of cannabis will be implemented in Europe.




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