Germany: Flirting with Plan B?

More then anything, it is about time to coordinate better with other countries and agree on a common strategy
Wednesday, December 7, 2022

germany flag cannabisTwo articles published this week, in Der Tagesspiegel and LTO, throw cold water on expectations that the European Commission could give green light to Germany’s ‘Interpretationslösung’ to justify its cannabis regulation plan under EU law and UN treaties. No surprise, as I’ve also argued that the approach taken in the ‘Eckpunkte’ brings the whole project legally on thin ice. The way Peter Homberg (Dentons), Dirk Heidenblut (SPD) and Cornelius Maurer (Demecan) are ‘flirting with Plan B’, however, is equally problematic. Their narrative, based on the ‘Gutachten’ the Dentons law firm produced for Demecan, claims that a solution can be found by using the treaty exemption for ‘scientific purposes’.

Dentons’ ‘Gutachten’ presents four scenarios: (1) Legalisation at national level like Canada and Uruguay, a scenario in which Germany "accepts to violate international and European law" (triggering the risk of an EU infringement procedure); (2) A constitutional exemption (basically the Plan A of an ‘Interpretationslösung’ presented in the ‘Eckpunkte’); (3) Withdrawal and re-adherence with a reservation (the ‘Bolivia route’); and (4) A scientific experiment like in the Netherlands, using the treaty exemption for ‘scientific purposes’.

This last scenario, now presented in Der Tagesspiegel as a possible Plan B, could be branded as the ‘Japan route’. Japan tried to use a similar 'scientific purpose' exemption in the Whaling Convention to justify the very practice that the Convention aimed to prohibit. And for that reason, the ICJ ruled that Japan was in breach of the treaty, even though they acknowledged that Japan's whaling programme “involves activities that can broadly be characterized as scientific research”. For a critical analysis of this scenario see the ICLR article by Rick Lines and Damon Barrett. It is also important to point out that the Dutch government deliberately decided not to use the 'scientific purpose' argument to justify the experiment, accepting the reality that it was not a faithful treaty interpretation that could stand up to legal scrutiny.

The other problem is the construed distinction between the supposed legality of domestic production for recreational purposes versus international trade. According to Homberg (Dentons) and Maurer (Demecan), a prerequisite for a legal justification is “always a national value chain”. Under the current conditions of international law, “cross-border trade in cannabis containing THC for recreational purpose is not feasible without significant violation of applicable international law”, a conclusion basically copy-pasted into the government ‘Eckpunkte’. Demecan’s press release about the Dentons ‘Gutachten’ even claims that: "Legal opinion shows that cannabis legalisation can succeed in a legally compliant manner if all value creation is carried out in Germany."

The Dentons report itself, however, more accurately says: "Commercial participation in the recreational cannabis market [..] is currently to be prohibited at all levels of the supply chain - irrespective of whether the products originate in Germany or abroad. Without a change in the international obligations of the Federal Republic of Germany, a legalisation with the aim of the ‘controlled supply of cannabis to adults for consumption purposes in licensed shops’ as stipulated in the coalition agreement would therefore not be possible in conformity with the law."

The current improvised ‘Alleingang’ of the German government to find a way to regulate the cannabis market in compliance with UN treaties and EU law does not inspire much confidence. Minister Lauterbach has announced the government will soon present its own ‘Gutachten’ to still convince the European Commission. Let’s hope that it comes up with a more solid legal justification than its original Plan A or the proposed ‘Japan route’. More then anything, it is about time to coordinate better with other countries and agree on a common strategy.