CANNABIS LEGAL SITUATION IN EUROPE
What are the legal aspects of owning, trading, growing and buying cannabis in Germany, France, the Netherlands, the UK and Spain? What kind of cannabis policy do we currently have in Germany and our neighboring countries? And what will the legal situation look like in the future? In our open, free and ever faster world, it is above all the task of politics to lay the laws in such a way that they fit our lives. This also applies to the legal situation of cannabis.
The legal situation in the Federal Republic of Germany
The Narcotics Act (BtMG) regulates the general handling of cannabis in Germany. It stipulates that “plants and plant parts” and “hashish, the separate resin of the plants belonging to the cannabis genus” as well as the cannabis active ingredient tetrahydrocannabinol (THC) and its stereochemical variants belong to the non-marketable substances (cf. § 1 Narcotics Act, Annex 1).
In plain language, according to the BtMG, the entire hemp plant from its seed to the flower is illegal. This also goes hand in hand with the cultivation, manufacture, trade, import, export, sale, sale, other placing on the market, acquisition and possession of all plant parts of the cannabis genus.
So far so tough the legal situation of hemp in Germany. But laws and their interpretation change over time. What seems set in stone on paper is amazingly variable in practice, especially when laws like cannabis law meet something as dynamic as politics.
The use of cannabis in Germany
In 2009 there was the first exemption for the use of cannabis in Germany. This took place with the approval of the Federal Institute for Drugs and Medical Devices (BfArM), which according to Section 3 of the BtMG may grant exceptions “for scientific or other purposes in the public interest”. The latter also includes the medical use, the BfArM allowed pain patients to obtain cannabis from a pharmacy in the Netherlands.
There is no explicit ban on the consumption of cannabis in the Narcotics Act. This falls under penalty-free self-harm. Anyone who suspects a loophole in the law at this point is mistaken. The BtMG has not made consumption a criminal offense because the possession of hemp products is already a criminal offense.
The term possession lies within the judge’s power of interpretation. Even a positive drug test can be interpreted as possession of cannabis, even if weed was consumed in the process, which in fact does not come from the person’s own possession.
So even if a positive drug test is not a criminal offense according to the law, it can be concluded that property is a criminal offense. Even if this does not happen, an entry is made in the driver’s license file.
Two years after the first exception, cannabis was approved for the preparation of medicinal products and, as a result, finished medicinal products containing cannabis, which can be purchased with a prescription.
Since March 2017, the consumption of cannabis as medicine has been completely permitted in Germany. From 2019, the federal government wants to sell cannabis from German cultivation; so far, cannabis has mainly been imported from the Netherlands and Canada. That should change now.
The cultivation of cannabis in Germany
Legal cannabis cultivation in Germany, neither proponents nor opponents really want to believe, but it will at least come for medicinal use. The legal situation of cannabis in Germany is currently in the greatest upheaval of all time. By the end of 2016, there were only just under 1000 patients who came from the pharmacy with an exception to marijuana.
That was around 160 kilograms of hash, which was imported from Kannada and the Netherlands with a special permit. With the new law, the federal cannabis agency, which was founded specifically for this purpose, expects a rapid increase in demand, with up to 800,000 people being talked about.
The cannabis agency also plans to harvest two tons of hemp flowers per year in professional indoor plantations in Germany over the next 4 years. In order to meet this requirement, the federal government plans to have cannabis cultivated legally from 2018 and has awarded a total of ten cultivation orders for three different cannabis varieties.
Ambitious hobby growers who have previously grown cannabis illegally in Germany are not allowed to apply for the cultivation contracts despite their experience.
The federal government grants the permits only to applicants who have produced hemp on an industrial scale and as a trade.
Companies and entrepreneurs in particular benefit from the new legislation on hemp cultivation. Private cultivation will remain largely unaffected by the legal relaxation.
So, what can you do? While on the one hand a huge new branch of industry is emerging through the professional and legal cultivation of cannabis in Germany, private cultivation, even in small quantities, remains illegal. But the votes against are getting louder and louder. According to the Narcotics Act, private individuals are not allowed to grow cannabis plants.
Even the THC content of the plant does not matter, even the cultivation of a THC-free, male crop is not allowed.
Here the ban of the BtMG on the cannabis plant applies in all its severity. Despite the severity, most consumers in Germany are self-sufficient. Bills are just as stubbornly brought into the Bundestag to legalize the cultivation of small quantities. This topic will also deal with the next federal government, regardless of the constellation in which it ultimately appears.
The possession of cannabis in Germany
Similar to cultivation, the BtMG works best when it comes to possession of cannabis. Even for pain sufferers, it is still difficult to own cannabis. Because many doctors do not prescribe the drug or applications to health insurance companies are simply rejected.
According to the BfArM, self-cultivation for medical self-sufficiency should be discontinued with the new law from 2017. In the future, every pain patient should get his prescription cannabis from the pharmacy. Growing yourself is then no longer planned.
Alliance 90 / The Greens have a draft cannabis control law (CannKG, available here as a PDF) in 2015) brought into the Bundestag. The aim of this was to give every adult in Germany legal access to cannabis as a luxury food. The final vote on the draft took place in July 2017 and was rejected by the then grand coalition.
The pure possession of hemp in Germany is and will remain the most clearly defined before the BtMG: owning cannabis is illegal in Germany.
At least according to the law. There are nuances of interpretation in court, the much-cited “small amount”. This is a small amount of cannabis that is not clearly defined and which is obviously only used for personal use. Criminal proceedings against “small amounts” are usually dropped by the public prosecutor’s office. However, this only applies to occasional consumers and is ultimately the interpretation of the respective judge.
In court it is not only about the amount that is in possession, but also about the active ingredient. One speaks of the “not small amount”, which does not refer to the total weight but to the THC weighting. There is also a fixed value here in Germany. The “not small amount” is an active ingredient content of 7.5 grams of THC.
Anyone who owns cannabis with a THC content above this level can expect imprisonment of at least one year. Incidentally, the permitted THC content in Germany is 0.2 grams. That leads us to the last point in the current legal situation of marijuana in Germany.
Owning cannabis seeds and ordering them from abroad
We just learned that cannabis products with a THC content of less than 0.2 grams will not be prosecuted in court. This of course also includes hemp seeds that have not yet been able to develop THC. Paradoxically, the BtMG itself lists cannabis seeds as plant parts and thus prohibits them.
However, the criminal liability for hemp seeds only begins when they are used for cultivation. Pure ownership and even acquisition from a neighboring European country are completely legal.
How can that be when acquisition and possession are not permitted in Germany?
We owe this to the free movement of goods within the EU. In fact, Germany is the only country in the entire EU that bans the trade in marijuana seeds. Cannabis seeds are legal in every other EU country.
The German law has nothing to do with free European action, so it is and remains completely legal to order hemp seeds to Germany. Hundreds of seed banks have specialized in this and they send their seeds across Europe. Cannabis is one of the fastest growing industries.
THE LEGAL SITUATION IN OTHER EU COUNTRIES
Cannabis politics is not only changing in Germany. Much is changing in our neighboring countries too. Laws are being relaxed, interpreted differently or even deleted entirely. Before we look at France, the Netherlands, Great Britain and finally Spain, it is worth taking a look across our national border.
Excursus: legal cannabis
The trade in “legal cannabis” is flourishing in Switzerland. This is due to the fact that in Switzerland the legally permitted THC content in hemp is much higher than in other European countries. Marijuana with a THC content of up to one percent is not yet covered by the Swiss Narcotics Act.
We remember that in Germany the limit is already 0.2 percent. Commercially available types of grass are said to have a THC content of up to 20 percent. The “legal hemp” from Switzerland is therefore comparatively weak. At least as far as the THC content is concerned, connoisseurs know that THC is only one of more than 100 cannabinoids active in hemp.
This is why “legal weed” contains far more cannabidiol (CBD) instead of THC.
Unlike THC, CBD is not psychoactive and therefore falls through the grid of the narcotics laws. One percent THC is still too much for German cannabis legislation, but the Swiss have developed a hemp variety that has less than 0.2 percent THC. This makes it legal in many EU countries and has recently also been sold in France.
The cannabis law in France
France has one of the toughest laws against cannabis in Europe. Because here consumption is a punishable offense. The maximum statutory penalty for smoking a joint is a fine of EUR 3,750 and a year in prison. French President Emmanuel Macron wants to relax this law for 2018.
The prison sentence as a legal sanction is to be removed from the French Narcotics Act. However, there are no plans to decriminalize cannabis in France. In everyday life, the French cannabis law is tougher on paper than in reality.
Anyone caught smoking weed in France is usually kindly but firmly asked to throw the joint away.
There is hardly ever an advertisement.
The cannabis law in the Netherlands
Despite its liberal cannabis image, the Netherlands has one of the most contradicting cannabis laws of all. Cannabis is still illegal, nothing will change that, but since 1976 it has been tolerated up to a quantity of 5 grams.
This in turn means that in the Netherlands owning a small amount of hemp and even buying it in coffee shops is not punishable. This legal situation led to a social acceptance of the drug, which also resulted in a sharp drop in criminal prosecutions.
But with this liberal law new problems arose. The trade in large quantities of cannabis is still illegal, so coffee shops have to get their goods on the black market. For this reason, politicians have long been calling for the legal or tolerated trade in larger quantities of cannabis.
The new government in the Netherlands has now made that happen and declared the cultivation of cannabis to be free of punishment.
As a result, hemp cultivation will no longer be criminally managed in future, but will be controlled by the state.
The cannabis law in the UK
While cannabis policy and thus also the legal situation of hemp are in upheaval in many European countries and beyond, cannabis laws in Great Britain remain pessimistic.
The state of cannabis research is in the lower ranks in an international comparison, every effort, such as a new cannabis research foundation planned for 2017, has been rejected by the government. While it is now possible to use cannabis medicinally in many countries such as the USA, Australia, Israel, the Czech Republic and even Germany, the United Kingdom’s see no clear benefit.
The possession of cannabis remains illegal for everyone in the UK and can be punished with up to 5 years in prison.
But this does not apply to the hemp seeds, which, as in every European country except Germany, can legally buy and own. Only the cultivation of marijuana plants is illegal again and is severely punished with up to 14 years imprisonment and heavy fines.
The cannabis law in Austria
The legal situation of cannabis in Austria is comparable to that in Germany. Hemp is subject to the Addictive Substances Act (SMG) and states that acquisition, possession, production, introduction, execution, procurement and transfer are punishable.
As in Germany, the consumption of cannabis is classified under temporary possession and thus also falls into the list of criminal offenses.
There is also medically prescribed cannabis in Austria, but not in its flower form, only synthetically from the pharmacy. The THC limit in Austria is 0.3 percent, which some Austrian companies like the Swiss use to sell legal weed.
The law enforcement authorities are currently deciding whether this goes hand in hand with the Austrian SMG.
In 2016, the prosecution in Austria regarding cannabis was adjusted so that every violation of the SMG is reported. In plain English, this means that anyone who is caught with marijuana in Austria will get a complaint. This is actually done, but usually there is still no procedure, the report is canceled and the case is transferred to the health authority.
If you were caught for the first time or the last complaint was more than 5 years ago, there is nothing to fear here.
This approach of recording an advertisement only to be dropped shortly afterwards has met with great criticism in Austria. The country has thus created an administrative monster that eats up a lot of tax money.
The number of cannabis crime reports rose to 30. 000 per year – Europe-wide record values. There can be no question of decriminalization in Austria either. In the case of small quantities for personal use, there is nothing to fear under criminal law, but the administrative effort that goes along with a report can be enough to put you off.