Abstract
The German government plans the ‘total-legalization’ of cannabis i.e. a state regulated market for recreational cannabis by 2024. Unlike Canada or Uruguay the German legislator plans to comply with the international treaty regime which strictly prohibits cannabis except for medical and scientific purposes. Concerning the equally prohibitive EU law the German government coalition follows a legal strategy of re-interpreting relevant provisions and exploiting legal loopholes. This article will outline this strategy and analyse the complex problems it raises under international and EU law. It will demonstrate that the German government has embarked on a risky endeavor as the international treaty regime as much as EU crime and drug policies give little room for legal maneuvers. Major issues such as the curbing of drug tourism and the compliance with free market rules remain widely unsolved.
1 Introduction
In recent years, the movement towards cannabis legalization in Europe has gained momentum. With Luxemburg and Malta two EU member states have now implemented what could be called a ‘legalization-light’: the cultivation of a small amount of cannabis plants for personal use and consumption are decriminalized.1 Switzerland and the Netherlands are apt to implement even more far-reaching initiatives: Both countries started scientific pilot projects legalizing the entire production chain from large-scale cultivation to the selling of cannabis for recreational purposes.2 Outside of Europe Canada, Uruguay and a considerable number of US-states have already legalized cannabis for some years now.3
Germany, however, has never been at the forefront of the legalization movement. With the new government elected in 2021, this is apt to change drastically. The coalition of social democrats, liberals and the green party have pledged in their coalition agreement a so-called ‘total legalization’ of cannabis. The agreement states: “We will introduce the controlled distribution of cannabis to adults for consumption purposes in licensed shops. This will control the quality, prevent the passing on of contaminated substances and ensure the protection of minors. We will evaluate the law for social effects after four years. We are enabling and expanding drug checking models and harm reduction measures.”4
These plans have not been entirely new. A corresponding cannabis control bill drafted by the green party had already been discussed in the German parliament since 2015.5 The bill included detailed provisions for large-scale cultivation of cannabis, licensing, the selling in specialized shops (including special trainings for sellers), labeling requirements and a separate cannabis taxation law. Indeed, the prospective of accumulating tax revues on the cannabis trade became an important argument in the German debate to convince the sceptics of a legalization.6 Nevertheless this initial draft bill was rejected under the conservative majority but the plans were revived after the election in 2021.
In the neighboring Netherlands with its world famous coffee shops and nearly half a century tolerance towards soft drugs one observes with interest and astonishment the German plans. For years Germany followed not only a relatively strict prohibitive approach to soft drugs but was also known for taking a strict stance on the EU level often fiercely criticizing the Dutch for their lax and as naïve perceived tolerance towards drugs. What has suddenly changed in German drug policies? How does the German government plan to comply with or circumvent the global and European prohibitive system it has been part of and shaped for decades? More importantly: have the German plans the potential of being a role model for other EU member states that flirt with a comprehensive legalization of recreational cannabis? This article will analyze the German approach to cannabis legalization on three legal dimensions: Firstly, the plans are scrutinized from an international law perspective with a focus on how the German government plans to streamline a bill with the international treaty regime. Interestingly enough the German legislator is setting out to take a similar approach Bolivia had taken in 2008 when legalizing the chewing of coca leaves – an approach, which Germany back then had initially rejected.7 Secondly, the EU legal framework is taken into account including the Framework Decision 2004/757 on the fight against illicit drugs.8 It shows that the German legislator opted for a formal, exceptionally wide and unusual interpretation of its scope and wording. Thirdly, the jurisprudence of the European Court of Justice (ecj) will be analyzed with a focus on the EU internal market rules. It will be demonstrated that the strong national focus of the German plans have given little considerations to EU principles and interests of other member states such as free market principles and the curbing of drug tourism.
2 Cannabis and Drug Policies in Germany
As in many other European countries, the German drug policies are strongly influenced by a health approach combined with relatively strict enforcement policies.9 However, due to the popularity of cannabis and its widespread use, law enforcement authorities are handling cases with some leniency. According to a recent and representative study over 46,4% of young German adults (between 18 and 25) had consumed cannabis once in their lifetime. A worrying 10,4% of adolescents between 12 and 17 years old had used cannabis at least once.10 According to the European Monitoring Center for Drugs and Drug Addiction (emcdda) Germany scores rather high compared to other European countries when it comes to last year’s prevalence of cannabis among young adults (between 15 and 34): In 2020, 17% of this group had consumed cannabis, a value only topped by France and Spain.11 Since 2017 cannabis can be prescribed for medical purposes in Germany.
However, the illicit cultivation, trafficking, possession and distribution of cannabis is punishable by the German narcotics law.12 Yet, the consumption of cannabis is considered legal. This leads to a textbook example often used by legalization advocates to demonstrate the alleged inconsistency of the German policies: sitting with friends and smoking weed is considered legal as long as the joint is not passed to another person, as this would amount to the distribution of cannabis punishable by law. However, the ratio of exempting consumption from punishment (which, interestingly enough applies to all drugs) shows the health approach to narcotic substances: drugs that are consumed are less of a danger to others.
The enforcement of the laws on soft drugs by German authorities is surprisingly pragmatic and flexible. One has to keep in mind that law enforcement in Germany is strictly bound by the legality principle. This principle forces police and prosecutors to persecute and prosecute every criminal offence that comes to their attention. The principle is deeply rooted in the German understanding of the rule of law, the Rechtsstaat.13 German law is very serious about this obligation, which is reflected in the fact that police officers can be prosecuted for obstruction of justice if they fail to investigate a crime.14 This rather formalistic approach to law enforcement is reflected in substantive criminal and criminal procedural law both guided by systematic thinking, internal consistency and comprehensiveness.15
However, with regards to soft drugs authorities are granted with more discretion and leeway. The German Constitutional Court in 1994 ruled that the possession of up to 6 grams of cannabis could be considered a negligible amount, leaving it to the discretion of authorities to enforce the law.16 To put this in perspective: the Dutch coffeeshops are allowed to only sell 5 grams of cannabis per customer per day.17 However, the ruling of the Constitutional Court led to most German states issuing guidelines for the public prosecutors’ offices on how to handle this leeway. This resulted in some considerable local differences: For example, in Berlin the possession of as much as a gross weight of 15 grams of cannabis is still considered tolerable while in other states the tolerated amount of possession is below the threshold set by the Constitutional Court.18
Despite all this, in 2020 the German crime statistics recorded over 365.000 drug related offences of which more than 220.000 were in connection with cannabis.19 Of the latter more than 85% (or 188.000 offences) were so called ‘konsumnahe Delikte’ meaning offences committed by consumers mostly by possessing small amounts of the drug and not related to the large scale production and trade of cannabis. At the same time, the public prosecutor’s office nationwide dropped nearly 40% of these cases due these small quantities or minor guilt.20
In conclusion, the current criminal justice approach while maybe pragmatic is neither very effective, efficient or very much line with the principle of legal certainty enshrined in Article 20 of the German Basic Law. Hence, the public debate about the issue is rather controversial with proponents of the legalization believing that a cannabis control law can solve many of these problems.21 Sceptics, on the other hand, argue that legalizing cannabis from the age of eighteen does not really serve the protection of minors but instead runs the risk of further trivializing and, hence, popularizing the use of the drug.22 Indeed, it seems that from a criminological perspective the better arguments speak in favor of a legalization although first empirical data from the Canadian cannabis market are rather sobering with a view to curbing the black market.23 While without doubt this debate on the pros and cons of a legalization is interesting the following analysis will focus on a different question: Does the current legal framework provided by international and EU law provide the possibility for a state like Germany to legalize cannabis for recreational purposes?
3 Cannabis Legalization Under International Law
There is little doubt among scholars that under international law the regulation of drug markets including trade and cultivation is prohibited, unless if it is for scientific and medical purposes.24 Namely the United Nations Single Convention on Narcotic Drugs from 1961 and the United Nations Convention on Psychotropic Substances from 1971 both supplemented by the Convention concluded at Vienna on 20 December 1988, to which all the Member States of the European Union are parties prohibit the manufacture, trade, distribution and possession of any drug outside the aforementioned purposes. The fact that Canada, Uruguay and partly the US have legalized cannabis for recreational purposes does not contradict this strictly prohibitive regime. The three states did so by simply ignoring their treaty obligations.
When Uruguay became the first country ever to regulate cannabis for non-medical purposes in 2013 the state argued that legalization was fully in line with the overarching concern of the drug control treaties to protect the health and well-being of humanity. The Uruguayan authorities stated that the country’s regulatory approach was equally determined by health and security aspects and therefore legalization was a human rights issue. In the event of a conflict between human rights obligations and drug control requirements, they reasoned, Uruguay would be obliged to give priority to its human rights obligations.25 Canada argued similarly when legalizing cannabis in 2018. There too, it was initially claimed that the federal Cannabis Act of 17 October 2018 was in line with the objectives of international agreements. However, Canadian Foreign Affairs Minister Chrystia Freeland admitted to the Canadian Senate that cannabis legalization “violates certain obligations with respect to cannabis under the three UN drug conventions”, adding, “We need to address this openly”.26
The UN’s reaction to the two countries’ advances was harsh. The International Narcotics Control Board (incb), a body consisting of 13 independent experts that monitors compliance with the UN drug control treaties, explicitly disagrees with the assessment that legalization is in line with international treaties. The president of the incb, Raymond Yans, expressed surprise in a press release that Uruguay had ‘knowingly decided to break the universally agreed and internationally endorsed legal provisions of the treaty’ i.e. 1961 Single Convention on Narcotic Drugs.27 The incb was even more explicit with regard to Canada’s legalization initiative. It accused the country of contributing to the weakening of the international legal framework for drug control and undermining the international order. Apart from demanding that Canada annul its new law, the incb made no suggestions on how Canada could bring its decision to regulate cannabis in line with its international legal obligations.28
In the past, the incb has repeatedly distinguished itself with a very restrictive interpretation of drug control agreements leaving no doubt that a legal regulation of cannabis for non-medical use violates the core obligations as well as the aim and purpose of the treaty regime. For example, in its 2020 report, it explicitly expresses concern that several countries in Europe have taken steps to legalize the use of cannabis for non-medical purposes, in violation of the provisions of the international drug control treaty.29
Concerning the US the situation remains a bit different compared to Uruguay and Canada. The US is a federal state with far reaching legislative powers for the states. Thus, the states have taken the initiatives and changed state laws accordingly, while on a federal level cannabis for recreational purposes remains prohibited. Since traditionally it is up to the states to enforce drug policies, the federal law just runs empty. Here as well the incb protested the legalization efforts as contradictory to the 1971 Convention on Psychotropic Drugs and the 1988 Anti-Trafficking Convention. It even insinuated the hypocrisy of the US by pointing to the fact, that the country was a prime mover of these multilateral treaties and largely responsible for signature ratification by virtually every other country in the world.30
3.1 The German Respect for International Treaties
All three models of legalization have in common that they are in more or less violation of international law. For historical reasons German state policies consider themselves as ‘völkerrechtsfreundlich’, as friendly and compliant with international law. Hence, ignoring international rules is not an option for Germany and the envisaged path towards legalization differs considerably form the aforementioned. Instead, Bolivia’s endeavor of legalizing the chewing of coca leaves serves as a precedent for the German approach. The South American country legalized the chewing of coca leaves as a traditional practice particularly of indigenous people despite the Single convention of 1961 abolishing this practice explicitly. It did so by leaving the convention it was part of since 1976 only to re-accede with a so-called reservation. Reservations are complex opt-out devices providing treaty states with the possibility to exclude certain practices of drug consumption from the treaty regime. Although frowned upon by legal commentators post-ratification reservations have become a regular yet infrequent component of modern treaty practice.31 For example, Peru and Columbia included reservations for coca chewing upon accessing the treaty regime, making the practice legal in these countries.32 However, including a reservation retroactive is more complicated and has to adhere to the procedure pursuant to Article 50 paragraph 3 of the Single convention. In short: Bolivia withdrew in 2012 from the convention only to adhere again with the reservation on coca leaf chewing in 2013.33 This procedure was possible only under the condition that not more than a third (or 61) of the 183 states parties to the convention would have objected to the reservation within one year. The procedure was successful as only 15 states formally objected, among them the USA, Canada and Germany.34
Today the German government is determined to make the same procedure work in their favor for the legalization of cannabis. While formally the procedure withdrawing from and re-acceding the conventions with reservations seems a perfectly reasonable approach in compliance with international law, it ignores the delicate political dimension of the treaty regime. The risks of a backlash are high. One has to keep in mind: Bolivia’s century old tradition of cultivating coca plants and chewing the leaves among some of the world’s poorest people is hardly comparable to cannabis consumption for recreational purposes in one of the world’s wealthiest countries. Indigenous communities in South America have – and still are – bearing a heavy burden of the global war on drugs.35 Over the past decades thousands of individuals were incarcerated, coca fields eradicated with pesticides causing harm to the peoples’ health, not to mention the systematic exploitation by local drug lords. Above all: chewing of coca suppresses hunger, thirst and pain.36 All these are good reasons to legalize coca chewing. However, these reasons hardly apply to the situation in Germany and the recreational consumption of cannabis. Chances are therefore high that not only the UN through the incb will voice their discontent with this approach. It even seems probable that a number of states may feel inclined to punish Germany for its hypocrisy by objecting to the reservation. Even with taking this risk into account the approach would take a considerable amount of time and significantly delay the process of legalization.
4 European Law and Illicit Drugs
The fact that Canada, Uruguay and many of the states of the US have ignored international law in the legalization process may be evidence for the diminished power of the global prohibitionist system. However, in contrast to these three pioneering states Germany is bound by European law, which in many respects is strongly interconnected with international law implementing the same prohibitive system. This becomes clear in Article 71 paragraph 1 of the Convention implementing the Schengen Agreement, of 14 June 1985. The provision not only explicitly mentions cannabis as an illicit substance for which sale and export must be prevented. It also refers to the existing United Nations Conventions. Some scholars interpret this strong interconnection in the way that once a reservation is included in the international treaty the Schengen agreement must stand back.37
This line of reasoning is questionable, to say the least. Over the past decades the EU has significantly shaped crime policies of the member states e.g. when it comes to the fight against terrorism and money laundering. It seems unlikely that the mere reference of international treaties in the Convention implementing the Schengen agreement can be interpreted in a way that leaves the EU a backseat in the audience when it comes to the drug policies of its member states. The explicit prohibition of cannabis and the strict obligations related to it will not disappear into thin air just because Germany makes a reservation in an international law convention from 1961.
Another line of reasoning is based on a Joint Declaration included in the Schengen Implementation Agreement which establishes the possibility for contracting parties to depart from “[…] the principle referred to in Article 71(2) in connection with national policy on the prevention and treatment of addiction to narcotic drugs and psychotropic substances […]”.
Van Kempen and Fedorova, for example, argue accordingly that states implementing a national licensing system for cannabis that is based on the rationale of prevention and treatment of addiction is in compliance with the Schengen implementation agreement.38 While at first sight this indeed seems to be an important loophole for the cannabis legalization, a more thorough inspection of the terms ‘prevention and treatment of addiction’ raises some considerable questions. The German regulative plans for cannabis focus on protective measures for juveniles and health risks related to contaminated and stretched cannabis but not specifically on addiction prevention.39 While legalizing cannabis may have positive effects on crime prevention, the curbing of the black market and providing consumers with better quality cannabis it is hard to imagine that it may have significant effects on preventing consumption or addiction risks. One might argue that legalizing cannabis may lead to a normalization of the drug and, hence, more people addicted to it may be encouraged to search for professional help. But this as well may be a double-edged sword as the current UN World Drug Report 2022 points out: Germany is specifically mentioned as a case country where hospital admissions related to cannabinoid dependence and withdrawal have increased eightfold between 2000 and 2018.40 While multiple factors have played a role it remains doubtful that licensing cannabis will reverse that trend considerably. Consequently, Germanys legalization plans hardly fulfill the criteria for the exception mentioned in the Joint Declaration in the Schengen Implementation Agreement.
Besides the Schengen agreement, the most important EU legislation when it comes to cannabis and drug policies in general is the framework decision 2004/757 from 2004. This particular framework decision deals with the threat and fight against illicit drug trafficking and puts a strong focus on a coordinated and harmonized law enforcement approach among Member states. The reason for this: Over the years it had become apparent, that member state policies and enforcement strategies towards drugs had somewhat drifted apart. While, for example, Sweden is known for its zero-tolerance policy towards all drugs the Netherlands have gained the image of having a relatively relaxed approach towards cannabis.41 There is little doubt that this contradicts harmonizing efforts and complicates a coherent law enforcement approach to drugs.
5.1 The German ‘Interpretation Declaration’
However, the true innovation of the framework decision besides its harmonizing efforts is to be found in Article 2 paragraph 2. Here, the cultivation of cannabis and other drugs is not prohibited if ‘it is committed by its perpetrators exclusively for their own personal consumption as defined by national law.’ Spanish courts where among the first to incorporate the provision in their rulings allowing citizens to grow cannabis for personal use.42 Soon the cannabis social clubs movement with its wide interpretation of the words ‘personal use’ took foot in many member states.43 The already mentioned legalization-light models in Luxemburg and Malta are both based on this provision. Nevertheless, the wording of Article 2 does not allow for a total legalization of cannabis since it does neither include the large-scale production or commercial trading and selling of cannabis for recreational purposes as planned by the German legislator.
Instead, the German approach is based on another passage of Article 2 of the same framework decision. According to Article 2 lit b, member states are obliged to punish intentional acts (e.g. trafficking, cultivation, etc. of cannabis) if they are carried out without right. What the terms ‘without right’ specifically refer to remains open. Even in the documents on the drafting process, there is no indication of what the Council and the Parliament had in mind.44 Hence, the obvious interpretation of the paragraph would be that it refers to the production and trade for medical and scientific purposes.45 This narrow interpretation seemed to be the most common in the scientific literature. For example, Klip writes in his standard work on European Criminal Law with regards to the without right clause: “This refers to the right of individuals who are involved in the very limited legal trade (for example hospitals) in psychotropic substances.”46 The German legislator, however, interprets the terms ‘without right’ differently and identifies in it the decisive ‘loophole’ to enable the total legalization of cannabis.47 The idea: Since the Framework decision does not explicitly refer to the exception of medical and scientific purposes the Member States are authorized to establish ‘a right’ to cultivate, traffic and trade cannabis through their own laws.
In favor for such a formal interpretation speaks the fact, that in an early draft of the framework decision by the European Council the words ‘without right’ were not included but rather the terms ‘without licensing’.48 In international treaty texts, licensing typically refers to the use of psychotropic substances for scientific and medical purposes.49 The fact that the council had scrapped the word ‘licensing’ and replaced it with the broader ‘right’ may point to the intention to create more leeway for the member states. Moreover, while the framework decision refers to a number of European treaties in lit (2) of its preamble, it does not explicitly mention the Schengen agreement nor international treaties. In fact, it mentions the single conventions from 1961 and 1971 in Article 1 but only and explicitly with regards to the definition of drugs. Based on this lack of referencing one might feel inclined to deduce that in all other issues the conventions do not apply and, hence, interpret the Framework Decision as a step towards emancipation from the international drug treaty regime.
On a closer look, however, there seems little reason to believe that this wide interpretation is in line with the original intention of the framework decision. After all, this would amount to no less than a paradigm shift in European drug policies without any further explanation or comments in the associated documents. It would make little sense to provide Member states with the opportunity to abolish the entire prohibitive drug system in a legal document dedicated to coordination and harmonization of the fight against drugs. Even more so as the EU Action Plan on Drugs 2000-2004 contain clear commitments to the international drug control conventions and the restrictions of cannabis production and trade for medical and scientific purposes only.50
Instead, there are some hints to the fact that the EU legislator just did not put much effort in a precise wording of the text. For example, the already mentioned wording in Article 2 paragraph 2 does not only allow for the growing of cannabis but is theoretically applicable to every existing drug as long as it is for personal use. Will soon coca plants decorate living rooms and opium poppy sprout in flowerbeds across Europe? It seems unlikely that this was the intention of the EU-legislator.
5.2 Current Developments in the Legal Debate
Germanys approach to consider the without right clause as the entry gate for its legalization plans were not born out of thin air. In fact, in recent years the broad interpretation of the without right clause have become increasingly popular. Most noteworthy among those advocates of a broad interpretation are Van Kempen and Federova whose legal opinion was only recently published in this journal sparking an extraordinary amount of interest in the German media.51 One reason for this immense impact may have been that the online first publication was almost exactly on the same date as the publication of a long-awaited legal assessment commissioned by the Bavarian government.52 The latter report written by Wegener from the University of Nuremberg-Erlangen is the first comprehensive legal assessment in German language of the government’s legalization plans besides a number of shorter legal opinions published by the scientific service of the German parliament in the summer of 2022.53 Just like the parliamentary researchers Wegener leaves no doubt that the plans of the government are in breach of international and European law. He even goes so far to assume an obligation of the Bavarian state to ignore the bill after its enactment in order to provoke being sued by the German federation and ultimately escalating the issue to the ecj.54
Besides the remarkable timing Van Kempens and Fedorovas meticulous analysis of the without right clause is of interest for the further debate on cannabis legalization not only in Germany. It signifies how interpretations of the almost 20 years old framework decision have changed over time and how the legal debate about regulating cannabis has gained considerable momentum in recent years – even without being accompanied by any changes in the EU legal framework or within the relevant ecj jurisprudence. These changes can be best be demonstrated by taking into account Van Kempen and Federovas comprehensive legal assessment of legalizing recreational cannabis in the Netherlands from 2014. Back then the authors answered the question whether the without right clause goes beyond the scope of exceptions for scientific and medical purposes in the following way: “We have found no evidence that the term “without right” in Article 2(1) is intended to have a broader scope.”55 The authors further concede that, based on the framework decision cultivation, distribution, trafficking, sale and so on can only be authorized for ‘medical and scientific purposes indicating that everyone acting outside this scope act without right.56 Consequently the authors conclude: “The final conclusion is that legalization, decriminalization, policy-based tolerance and/or other forms of regulating cannabis cultivation for the recreational user market is not permissible under the UN Narcotic Drugs Conventions or European law.”57
However, less than a decade later their legal assessment is diametrically different. With the view to national licensing system for recreational cannabis the authors argue: “Authorization under the licensing system can as such very well qualify as a “right” for the cultivator, distributor or salesperson to perform the activity. Authorization would thus mean that the activity does not take place “without right” in the sense of Article 2(1) of the Framework Decision.”58 Moreover, they argue that since cannabis regulation ensures a more effective protection of human rights, it provides for a “right” that would justify deviation from obligations to criminalize cannabis for recreational use under Framework Decision 2004/757/jha.59
While, unfortunately, Van Kempen and Fedorova do not enclose what has caused their change of heart in their interpretation of the without right clause, the clear contradiction demonstrates how controversial this interpretation really is. Basing the legalization of cannabis, probably the most significant change in drug policies of the past half century on a highly debated interpretation of two words may pose some considerable legal risks. The German legislator seems to be aware of these risks since the Eckpunktepapier makes no mention of the framework decision other then voicing the hope that the ecj may interpret the legalization plans as in accordance with the EU and international law.60 To support this the German strategy includes a so-called ‘interpretation declaration’ (Interpretationserklärung) to the other parties of the international conventions and to the international drug control bodies.61 This interpretation declaration states that Germany interprets the drug control treaties in that way that the overreaching goals of health and youth protection as well as combating drug-related crimes can be reached by reached by a state controlled legalization of recreational cannabis.
The term itself seems odd as one can hardly imagine a new draft bill that is not based on the legal interpretation of existing regulations. In essence however this interpretation declaration interprets international treaties and EU law pretty much in contradiction to its clear wording by simply arguing that legalizing cannabis can still reach the overreaching goals of health protection and security.. There might be good reasons for re-interpreting the treaties in this way However, it leaves the question if the end justifies the means, hence, if this re-interpretation still in compliance with the treaties? In order to come close to an answer a look at the jurisprudence of the ecj may be of value.
5.3 The Jurisprudence of the European Court of Justice Concerning Cannabis
With a view to cannabis policy within the EU, one ecj judgment is of particular relevance: Josemans vs. Burgemeester van Maastricht from 2010.62 In the case the plaintiff Josemans, the owner of a coffee shop in the southern Dutch city of Maastricht, defended himself against the closure of his establishment by the city. The mayor had decreed that access to coffee shops could only be granted to persons who were residents of the Netherlands. The aim of this regulation was to curb drug tourism from Germany, France and Belgium and the nuisance related to it. The plaintiff had violated this regulation and claimed that it led to discrimination of EU citizens.63 The court, however, ruled all narcotic drugs including cannabis are prohibited in all the EU Member states with the exception of strictly controlled trade for use for medical and scientific purposes.64 Hence, as cannabis sold in coffeeshops is marketed for recreational purposes and formally remains a prohibited substance under Dutch law (yet tolerated) there is no right for EU citizens to buy the product. Consequently, the Court denied a violation of the principle of non-discrimination in the cities regulation.65
While the judgment is interesting in many respects, particularly two aspects are relevant for the context of this analysis. First, the Court leaves no doubt on several occasions in the judgment that production and trade of cannabis outside of the medical or scientific purpose is prohibited under international and EU law.66 This has been settled case law of the Court for over three decades.67 Albeit the Court is also explicitly dealing with framework decision 2004/257, there is no word or hint to the possibility that member states may circumvent this through a national law as discussed above. Secondly, the Court considers the prevention of drug tourism is a key factor within the EUs prohibitive approach to cannabis.
5.4 Curbing Drug Tourism
To understand why the ecj deals in depth with the issue of drug tourism, one has to bear in mind the delicate situation the Court found itself in: it was forced to deal with the question if the Dutch exceptionalism towards cannabis is in compliance with European law while, at the same time, upholding the strict prohibitive approach enshrined within EU law. The Courts balancing act is only partly convincing, especially when the Court attempts to justify the almost Dutch approach of tolerating the selling of cannabis while prohibiting the supply to the coffeeshops.68 This so-called back-door problem (through the front-door cannabis is sold de facto legally – but through the backdoor it enters illegally) has been pointed out as one of the root causes for the thriving organized crime in the country.69 However, at the end the Dutch exceptionalism with regards to cannabis is considered in line with European law as the country has taken effective measures of persecuting and punishing “[..] other offences which are considered to be more dangerous”.70 In the logic of Dutch tolerance, there is a trade off between focusing the limited capacities of law enforcement on the fight against hard drugs for the price of turning a blind eye to the small scale trade of cannabis in coffee shops. In reality, however, this balancing act have come under increasing pressure with the rise of the Netherlands as one of the main transit countries for illicit drugs into Europe and a hub for organized criminal networks operating on a global scale.71
However, while the above mentioned German frameworkpaper specifically mentions the combat against organized crime as a reason for its regulative approach to cannabis, the issue of drug tourism is completely left out. This is remarkable, as Germany had struggled in the past with the Dutch tolerance facilitating drug tourism and causing large loads of drug smuggling cases for courts in German border towns. Moreover, the problem is not limited to the Netherlands. For example, the Czech Republic’s lax handling of chrystal meth laboratories led to a small epidemic in neighboring Bavaria with all the negative consequences such as drug related crimes, increased need for therapy and drug-related deaths.72 Consequently, for years it was Germany that had pushed for a more coordinated and harmonized (restrictive) approach towards drugs. The more surprising it seems that the German approach so far, does not provide for any mechanisms to curb the unwanted side effects of drug tourism for neighboring Member States. In consequence, a coherent approach to legalization of cannabis within the European Union has to come up with a solution to these issues in order to withstand the scrutiny of the ecj.
6 The Free Market Conundrum
What could such a solution to prevent drug tourism look like within the German approach? The answer to this is difficult and shows how intricate and complex the German endeavor of legalizing recreational cannabis truly is. While the Dutch found a simple yet effective solution by limiting the sale of cannabis to its own residents this, unfortunately, is not an option for the German approach. The ecj accepted this obviously discriminatory measure on basis of residency solely on the presumption that cannabis is a prohibited substance under Dutch (and EU-) law and, hence, there cannot be a right for EU nationals to acquire it. However, the German legislators plans to exclude cannabis from the list of forbidden substances under the German narcotics law, effectively making it a legal product within the German jurisdiction (an agricultural product to be precise). This would create a legal island within the broader context of the EU that still considers it still illegal. While this in itself seems to be a legal conundrum from the perspective a free market, it also has some critical consequences. Given the ecj jurisprudence and specifically the Joseman-Judgment this legalization makes it impossible to limit the selling only to national residents, as it now is a legal product and any restrictions based on nationality or residency would indeed amount to a discrimination under EU law.
Moreover, this problem is not limited to the consumer side. It also applies to the production side of recreational cannabis. This is where the plan of the German government to restrict cannabis production to domestic cultivation in Germany becomes relevant. The reasoning behind this is the enforcement of strict rules and quality standards for the cultivation of cannabis in order to keep product safety on a high level. It would be very difficult for German authorities to control and enforce these high standards with imported cannabis. Moreover, the restriction to domestic cannabis is also a logical consequence of the international prohibitionist system. Where should the recreational cannabis be imported from if it is illegal in nearly all other countries in the world with the exception of Canada and Uruguay? A farmer elsewhere cultivating cannabis for the German recreational market would run the risk of being prosecuted for large scale drug production. Even if authorities turn a blind eye: how would the export to Germany look like? A ship e.g. from South America with a container of cannabis for the German recreational market making a stopover in any port immediately runs the risk of seizure by costumes and prosecution for drug trafficking. Again, states that have signed the single convention are obliged to actively prevent illicit drug trafficking. The fact that Germany declared Cannabis as legal and consequently defining the trade as legal does not change treaty obligations for other states. Consequently, the framework paper briefly declares that the EU customs law have to be adhered to and somewhat cautiously concludes that, based on a preliminary assessment, national demand would have to be met by production in Germany.73
Still good reasons speak for allowing only domestically cultivated cannabis to be sold in Germany. Cultivators will be under strict scrutiny of the german cannabis agency and have to adhere to high standards of quality and security.,But when taking into account the European free market rules this seems to be less of an ideal solution. Germany would in essence create a closed domestic market for cannabis within the free market of the EU. According to ecj case law all trading rules which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade are prohibited by article 34 tfeu.74 Exceptions are to be found in article 36 tfeu: among others for consideration of public security or the protection of health and life of humans. Indeed, health considerations may justify the establishment of a purely domestic market since cannabis producers will be put under strict scrutiny and quality control of the German cannabis agency. No doubt, it would be extremely difficult to apply the same standards to imported cannabis. Nevertheless, public health considerations are the main reasons for legalizing recreational cannabis in the first place. The entire legalization project is based on the assumption that health risks related to cannabis consumptions are manageable. Can the same rationale be applied in order to close the market to competitors from other EU countries? Can German authorities generally assume that e.g. cannabis from Portugal or Spain would be riskier to public health than cannabis cultivated domestically? Or does the free market principle require Germany to open the national cannabis market and ensure the protection of public health in different ways?
The fact that the German legislator has pledged to engage in a notification procedure, as soon the plans are generally green-lighted by the commission indicate, that there are some doubts about the compliance with the free market rules. Indeed, the large body of ecj jurisprudence on free market issues indicate how complex and problematic the German plans may be. For example, in the 2007 decision Rosengreen vs. Rikslageren the ecj ruled against the Swedish state monopoly that prohibited the import of alcohol by private person from other EU member states into Sweden. The Court deemed the prohibition for importing alcoholic beverages as unsuitable for protecting young persons from harmful effects of alcohol consumption and, hence, the import restricting unjustified on the grounds of article 36 tfeu.75 The Swedish legislator solved the issue by allowing EUs competitors to sell and ship alcohol products ordered online in Sweden and, hence, circumventing the state monopoly. Of course, the German government does not plan to install a state monopoly on cannabis (at least not in the technical sense of the term) and an online trade of cannabis is expressively excluded from the plans.
In a similar decision of the Court ruled that a law prohibiting the import of undernatured ethyl alcohol of over 80% into Finland was in compliance with article 36 tfeu as the importers were only required to obtain a license for doing so.76 Indeed, a licensing system for cannabis imports into Germany might be more in compliant with the free market rules. Even those may pose a restriction to the free market even if they are a pure formality according to a 2006 ecj ruling.77
This free market conundrum may ultimately be of a mere theoretical nature for two reasons: Firstly, as long as nowhere within the EU cannabis is completely legalized there will be no legal production nor export for recreational purposes. Secondly, as the ecj has clearly established in the Joseman-Judgment since cannabis remains a forbidden substance under EU law there exist no right for EU citizens to buy this product. Consequently, the same would apply to private persons wanting to produce and import the product to Germany. In that sense, Germany may be on the verge of creating a domestic cannabis market perfectly shielded against competitors from other EU Member states. In view of an estimated volume of 4 billion euros, this would not be an insignificant market.78 It remains questionable if the European Commission will accept such an approach which potentially undermines the free market rules.
7 Conclusion
The obstacles the German government faces in its endeavor to legalize cannabis for recreational purposes are manifold. At first, there is the international law: Canada, Uruguay and the US have demonstrated how legal barriers raised by international law can be ignored in order to make legalization possible. Many may look at this crumbling of the solidified global prohibitionist system with satisfaction. Others may worry how casually international treaties are set aside if these don’t fit the liberal zeitgeist anymore. Germany, however, prides itself with honoring the international treaty regime. This is also reflected in the lavish steps the German legislator is willing to take of withdrawing and re-accessing the relevant conventions with reservations for cannabis in order to remain in compliance with international law. Still, it is a risky move with an unknown outcome and unforeseeable consequences. Global drug prohibition is fueled by the fear of one can call a domino effect: in this logic if one signature state gets its way, others will follow ultimately resulting in a collapse of the entire prohibitive system.79 This might be the reason why the few countries that embarked on the legalization endeavor have opted for leaving the treaties untouched for the price of being in breach of them.
Bolivia, however, is one of the few countries that managed a legalization in compliance with the international drug treaties. Bolivia’s success has fueled the debate about the interplay between drug prohibition and human rights obligations. Cannabis legalization advocates have jumped on this bandwagon arguing that the drug conventions have to stand back when human rights violations are at stake.80 The case of coca chewing in Bolivia, a century old tradition practiced by the poor rural communities for the purpose of numbing hunger, thirst and pain demonstrates the strength of this argument. And indeed, there is a strong case to purport that no state can be expected to abide international treaties which by design violate human rights of its citizens.
But the case of Bolivia has also shown how multifaceted the relationship between human rights and drugs are, how context-bound, and how difficult it is to justify one-size-fits-all approaches. Legalizing the chewing of coca for some of the poorest and most vulnerable communities in the world is very different from legalizing cannabis for recreational purposes in some of the wealthiest countries in the world. It is precisely here where the current debate on cannabis legalization in Germany lacks convincing arguments which go beyond mere claims of alleged human rights violations which supposedly justify the ignorance or even abolishment of obligations under the international treaty system.81 However, the real legal challenges for Germany’s plans are to be found in EU law. The approach to legalization is based on extremely wide interpretation of the wording of to Article 2 lit b of framework decision 2004/257. It also is built on the hope that the strict prohibition of cannabis enshrined in article 70 of the Schengen implementation agreement will disappear into thin air as soon as the Gordian knot of the international treaty regime is cut. Even then, many issues remain unresolved: how to curb drug tourism? How to prevent charter ships with Swedish drug tourists from frequenting the port of Kiel or bus tours from Austria to Munich coffee shops? The German framework paper lacks the mentioning of a clear strategy in this regard.
Finally, a legal conundrum for the German legislator are the free market rules within the EU. Indeed, there are good reasons for importing cannabis to Germany. The climate is not ideal for large-scale cannabis cultivation and the majority will have to take place indoors. The recent UN drug report estimates that the carbon footprint of indoor-cannabis is up to a 100 times greater than that of outdoor cannabis, mainly due to its excessive need of energy and fertilizers.82 Nevertheless, the legal obstacles and uncertainties created by international law make imports virtually impossible in the near future. A purely domestic market within the EU free market, although not impossible, is difficult to justify purely based on public health considerations.
All these challenges add to the considerable risk of an infringement procedure against Germany as soon as the bill is passed. This can either be initiated by the EU commission pursuant to Article 258 tfeu or another member state pursuant to Article 259 tfeu. Then the ecj would have to decide. Will a cannabis control law hold up in Court? Of course, a forecast would be speculative. In the Josemans ruling the Court leaves no doubt about the validity of a restrictive drug and cannabis policy. Then again, legalization advocates repeatedly point to the fact that our knowledge about cannabis and its impact on people and society has improved significantly over the past two decades.83 Perhaps the ‘green wave’ will have reached the judges in Strasbourg as well and a shift away from the purely prohibitive approach to cannabis will be possible. Even if so, there is little doubt that an adaptation of EU regulations and an involvement of the member states in this process is inevitable. It remains to be seen if Germany’s ‘Sonderweg’ i.e. without the involvement of the EU partners will be successful in initiating this change in EU drug policies.
See O. Barry, Malta just legalized cannabis. Will other countries follow? The World, 17 December 2021. https://theworld.org/stories/2021-12-17/malta-just-legalized-recreational-cannabis-will-other-european-countries-follow.
For the Netherlands see https://www.rijksoverheid.nl/onderwerpen/experiment-gesloten-coffeeshopketen-wietexperiment. For Switzerland see https://www.bag.admin.ch/bag/de/home/gesund-leben/sucht-und-gesundheit/cannabis.html.
For a an overview see R. Hofmann, ‘Deutschlands Cannabis-Dilemma’ Zeitschrift für internationale Strafrechtswissenschaft (2022) 195-198.
See page 87 of the coalition agreement which can be found here https://www.spd.de/fileadmin/Dokumente/Koalitionsvertrag/Koalitionsvertrag_2021-2025.pdf.
Deutscher Bundestag Drucksache 18/4204 18. The draft can be found here https://dserver.bundestag.de/btd/18/042/1804204.pdf.
See for example a study published by the University of Düsseldorf estimating billions in tax revenue. J. Haucap, L. Knoke, Fiskalische Auswirkungen einer Cannabislegalisierung in Deutschland: Ein Update. dice. (2021) Online available at https://www.dice.hhu.de/fileadmin/redaktion/Fakultaeten/Wirtschaftswissenschaftliche_Fakultaet/DICE/Bilder/Nachrichten_und_Meldungen/Fiskalische_Effekte_Cannabislegalisierung_final.pdf.
M. Jelsma, Lifting the ban on coca chewing. Bolivia’s proposal to amend the 1961 Single Convention. Series of Legislative Reform of Drug Policies, No.11. (2011) 1.
Council Framework Decision 2004/757/jha of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking.
S. Anderson “European Drug Policy: The Cases of Portugal, Germany, and The Netherlands,” The Eastern Illinois University Political Science Review: Vol. 1: Iss. 1, Article 2. (2012) 9. Available at: http://thekeep.eiu.edu/eiupsr/vol1/iss1/2.
B. Orth, C. Merkel, Die Drogenaffinität Jugendlicher in der Bundesrepublik Deutschland 2019. Rauchen, Alkoholkonsum und Konsum illegaler Drogen: aktuelle Verbreitung und Trends. BZgA-Forschungsbericht. Köln: Bundeszentrale für gesundheitliche Aufklärung. (2020). doi: 10.17623/BZGA:225-DAS19-DE-1.0 p.8.
emcdda (2020) Statistical Bulletin 2020 – prevalence of drug use. https://www.emcdda.europa.eu/data/stats2020/gps#.
See §§29 et.seqq. BtMG.
Meyer-Goßner, Strafprozessordnung, Kommentar, Aufl. 61. Auflage, 2018, § 152, Rn.7.
R. Hofmann, Formalism versus pragmatism – A comparative legal and empirical analysis of the German and Dutch criminal justice systems with regard to effectiveness and efficiency. Maastricht Journal of European and Comparative Law. Vol 28(4), (2021) 464.
J. Keiler, D. Roef, ‘Introduction’, in J. Keiler and D. Roef (eds.), Comparative Concepts of Criminal Law (Intersentia, 2016), 5.
BVerfG, Beschluss vom 9. März 1994 – 2 BvL 43/92, njw 1994, 1577 (BVerfGE 90, 145).
Data available at https://www.rijksoverheid.nl/onderwerpen/drugs/gedoogbeleid-softdrugs-en-coffeeshops.
Deutscher Bundestag: Ausarbeitung – Einstellung von Ermittlungsverfahren nach §31a Betäubungsmittelgesetz bei geringer Menge Cannabis zum Eigenverbrauch. S.5.
Bundeskriminalamt: Rauschgiftkriminalität Bundeslagebild 2020. 14.
Statistisches Bundesamt: Rechtspflege Staatsanwaltschaften 2020, Fachserie 10 Reihe 2.6. S.26.
See e.g. L. Böllinger, ‚Aufstieg und Fall des Cannabis-Verbots‘, 20 Neue Kriminalpolitik (2018) 288-290.
G. Duttge, M. Steuer ‘Legalisierung von Cannabis: Verkommt Deutschland zu einer berauschten Gesellschaft?‘ Zeitschrift für Rechtspolitik (2014) 181-184.
N. Noonan, ‚High Time For Change: Combatting the Black Market for Cannabis in Canada’. Manitoba Law Journal, 44(3), (2021) 259.
J. Walsh, M. Jelsma, ‚Regulating Drugs: Resolving Conflicts with the UN Drug Control Treaty System’. Journal of Illicit Economies and Development, 1(3), (2019) 267.
Ibid. 268.
Ibid.
United Nations Information Service: Uruguay is breaking the International Conventions on Drug Control with the Cannabis Legislation approved by its Congress. Available at https://incb.org/documents/Publications/PressRelease/PR2013/press_release_111213.pdf.
See J. Walsh, M. Jelsma, ‚Regulating Drugs: Resolving Conflicts with the UN Drug Control Treaty System’. Journal of Illicit Economies and Development, 1(3), (2019) 267.
incb Report 2020, 96. Available at https://www.incb.org/documents/Publications/AnnualReports/AR2020/Annual_Report/E_INCB_2020_1_eng.pdf.
Kilmer et al., Multinational overview of cannabis production regimes. wodc. (2013) 30.
R. Room et al., ‘Cannabis Policy: Moving Beyond Stalemate’. Vol. First edition. oup Oxford, (2010) 135. For an in-depth analysis of the practice of reservations see L. R. Helfer, ‘Not Fully Committed Reservations, Risk, and Treaty Design’. Yale Journal of International Law, 31(2), (2006) 367-382.
M. Jelsma, ‘Lifting the ban on coca chewing. Bolivia’s proposal to amend the 1961 Single Convention’. Series of Legislative Reform of Drug Policies, Nr.11. (2011) 7.
See unodc: Bolivia to re-accede to UN drug convention, while making exception on coca leaf chewing. Available at https://www.unodc.org/unodc/en/frontpage/2013/January/bolivia-to-re-accede-to-un-drug-convention-while-making-exception-on-coca-leaf-chewing.html.
wola Press Release, Bolivia Wins a Rightful Victory on the Coca Leaf. Available at https://www.wola.org/2013/01/bolivia-wins-a-rightful-victory-on-the-coca-leaf/.
J. Burger, M. Kapron, ‘Drug Policy and Indigenous Peoples’. Health and human rights, 19(1), (2017) 269–278.
M. Casanovas et al. ‘Discovery of a macromolecular complex mediating the hunger suppressive actions of cocaine: Structural and functional properties’. Addiction Biology. Volume 26, Issue 5 (2021).
K. Ambos, Zur völkerrechtlichen Zulässigkeit der Cannabis-Entkriminalisierung‘. (2022) Available at https://verfassungsblog.de/zur-volkerrechtlichen-zulassigkeit-der-cannabis-entkriminalisierung/.
P. Van Kempen, M. Fedorova, ‘Cannabis Regulation Through the “Without Right” Clause in Article 2(1) of EU Framework Decision 2004/757/jha on Illicit Drug Trafficking’, European Journal of Crime, Criminal Law and Criminal Justice (published online ahead of print 2023) 29. doi: https://doi.org/10.1163/15718174-bja10039.
Eckpunktepapier der Bundesregierung zur Einführung einer kontrollierten Abgabe von Cannabis an Erwachsene zu Genusszwecken. para 17. Accessible on the website of the German Ministry of Health https://www.bundesgesundheitsministerium.de/ministerium/meldungen/kontrollierte-abgabe-von-cannabis-eckpunktepapier-der-bundesregierung-liegt-vor.html.
UN World Drug Report 2022, 24.
C. Chatwin, ‘Drug Policy Developments within the European Union. The Destabilizing Effects of Dutch and Swedish Drug Policies’, The British Journal of Criminology, Volume 43, Issue 3, 1 (2003) 567–582. P. Tops et. al; ‘The Netherlands and Synthetic Drugs: An Inconvenient Truth’. Eleven International Publishing, The Hague, (2018).
A. Marks, Defining ‘Personal Consumption’ In Drug Legislation and Spanish Cannabis Clubs. International & Comparative Law Quarterly. Vol 68, (2019) 193-223.
M. Pardal et al. ‘Mapping Cannabis Social Clubs in Europe. European Journal of Criminology Vol 19(5) (2020). doi:10.1177/1477370820941392.
P. Van Kempen, M. Fedorova ‘Internationaal recht en cannabis Een beoordeling op basis van vn-drugsverdragen en EU-drugsregelgeving van gemeentelijke en buitenlandse opvattingen pro regulering van cannabisteelt voor recreatief gebruik. Kluwer. (2014) 136. The entire document is available here https://repository.wodc.nl/handle/20.500.12832/2100.
A. Klip, European Criminal Law – An integrative Approach. Intersentia, 4th edition (2021), 281.
Ibid.
J. Wegener, ‘Völker- und europarechtliche Grenzen einer Cannabis-Legalisierung in Deutschland Rechtsgutachten für die Bayerische Staatsregierung‘. (2023) 46. Available online at https://www.stmgp.bayern.de/wp-content/uploads/2023/03/gutachten-cannabis-legalisierung.pdf.
P. Van Kempen, M. Fedorova, ‘Internationaal recht en cannabis Een beoordeling op basis van vn-drugsverdragen en EU-drugsregelgeving van gemeentelijke en buitenlandse opvattingen pro regulering van cannabisteelt voor recreatief gebruik. Kluwer. (2014) 136. The entire document is available here https://repository.wodc.nl/handle/20.500.12832/2100.
See for example article 8 paragraph 3 of the Vienna Convention of psychotropic substances from 1971.
Brüssel, den 26.05.1999 kom(1999) 239 endg. 62.
See for example Der Tagesspiegel: Cannabis Legalisierung Dank EU Verordnung? Available at https://background.tagesspiegel.de/gesundheit/cannabis-legalisierungs-loesung-dank-eu-verordnung.
J. Wegener, ‘Völker- und europarechtliche Grenzen einer Cannabis-Legalisierung in Deutschland Rechtsgutachten für die Bayerische Staatsregierung‘. (2023) 46. Available online at https://www.stmgp.bayern.de/wp-content/uploads/2023/03/gutachten-cannabis-legalisierung.pdf.
Wissenschaftlicher Dienst des Deutschen Bundestages ‚pe 6 – 043/22 Vorgaben des Europäischen Unionsrechts im Hinblick auf eine mitgliedsstaatliche Legalisierung von Cannabis‘. (2022) Online available at https://www.bundestag.de/resource/blob/909550/2fed53bda15f6b2f0dcc26ebfc94b5e1/PE-6-043-22-pdf-data.pdf
pe 6 – 039/22 Unionsrechtliche Vorgaben im Hinblick auf eine mitgliedstaatliche Legalisierung von Cannabis. Online available at https://www.bundestag.de/resource/blob/914898/941521a34eacc736c9357ab64acd8bd8/PE-6-039-22-pdf-data.pdf
wd 2 057/22 Cannabis Legalisierung im Licher des Völkerrechts. Online available at https://www.bundestag.de/resource/blob/909524/0331f5fd3ccd14c6758c234f561ed879/WD-2-057-22-pdf-data.pdf.
J. Wegener, ‘Völker- und europarechtliche Grenzen einer Cannabis-Legalisierung in Deutschland Rechtsgutachten für die Bayerische Staatsregierung‘. (2023) 56. Available online at https://www.stmgp.bayern.de/wp-content/uploads/2023/03/gutachten-cannabis-legalisierung.pdf.
The Dutch original formulation is: “Wij hebben geen aanwijzingen kunnen vinden dat de term ‘rechtvaardigingsgrond’ in artikel 2 lid 1 aanhef Kaderbesluit een ruimere strekking beoogt te hebben.” P. Van Kempen, M. Fedorova, ‘Internationaal recht en cannabis Een beoordeling op basis van vn-drugsverdragen en EU-drugsregelgeving van gemeentelijke en buitenlandse opvattingen pro regulering van cannabisteelt voor recreatief gebruik. Kluwer. (2014) 136. The entire document is available here https://repository.wodc.nl/handle/20.500.12832/2100.
Ibid. 137 In the original Dutch language: “Dit duidt erop dat men zonder machtiging in beginsel ‘geen rechtvaardigingsgrond’ heeft oftewel ‘without right’ handelt.”
P. Van Kempen, M. Fedorova ‘Internationaal recht en cannabis Een beoordeling op basis van vn-drugsverdragen en EU-drugsregelgeving van gemeentelijke en buitenlandse opvattingen pro regulering van cannabisteelt voor recreatief gebruik. Executive Summary. Kluwer (2014) 4. The entire document is available here https://repository.wodc.nl/handle/20.500.12832/2100.
P. Van Kempen, M. Fedorova, ‘Cannabis Regulation Through the “Without Right” Clause in Article 2(1) of EU Framework Decision 2004/757/jha on Illicit Drug Trafficking’, European Journal of Crime, Criminal Law and Criminal Justice (published online ahead of print 2023) 17. doi: https://doi.org/10.1163/15718174-bja10039.
Ibid.
Eckpunktepapier der Bundesregierung zur Einführung einer kontrollierten Abgabe von Cannabis an Erwachsene zu Genusszwecken. Para 2. Accessible on the website of the German Ministry of Health https://www.bundesgesundheitsministerium.de/ministerium/meldungen/kontrollierte-abgabe-von-cannabis-eckpunktepapier-der-bundesregierung-liegt-vor.html.
Eckpunktepapier der Bundesregierung zur Einführung einer kontrollierten Abgabe von Cannabis an Erwachsene zu Genusszwecken. Para. 2. Accessible on the website of the German Ministry of Health https://www.bundesgesundheitsministerium.de/ministerium/meldungen/kontrollierte-abgabe-von-cannabis-eckpunktepapier-der-bundesregierung-liegt-vor.html.
Josemans vs. de Burgemeester van Maastricht, European Court of Justice, Judgement C-157/09.
See for more details R. Hofmann, ‘Cannabis Legalization in Germany – The Final Blow to European Drug Prohibition?’ (2022) Available at https://europeanlawblog.eu/2022/01/11/cannabis-legalization-in-germany-the-final-blow-to-european-drug-prohibition/.
Josemans vs. de Burgemeester van Maastricht, European Court of Justice, Judgment C-157/09. para 36.
Ibid. para 42. See for the issue of illegal products and services under EU law A. Klip, European Criminal Law – An integrative Approach. Intersentia, 4th edition, 140 et.seqq.
Josemans vs. de Burgemeester van Maastricht, European Court of Justice, Judgement C-157/09.
See Case 50/80 Horvath [1981] ecr 385, paragraph 10; Case 221/81 Wolf [1982] ecr 3681, paragraph 8; Case 240/81 Einberger [1982] ecr 3699, paragraph 8; Case 294/82 Einberger [1984] ecr 1177, paragraph 15; Case 269/86 Mol [1988] ecr 3627, paragraph 15; and Vereniging Happy Family Rustenburgerstraat, paragraph 17).
Josemans vs. de Burgemeester van Maastricht, European Court of Justice, Judgement C-157/09.
H. van de Bunt, T. Muller ‚The Bankruptcy of the Dutch Cannabis Policy: Time for a Restart‘ in H. Nelen, D. Siegel, eds., Contemporary Organized Crime,(Springer, Switzerland 2021) 11-23. R. Hofmann, Sind die Niederlande ein Narco-Staat? Der Kriminalist, 12 (2021), 5. A. Holligan Is the Netherlands becoming a narco-state? bbc News (2021) Available at https://www.bbc.com/news/world-europe-50821542.
Josemans vs. de Burgemeester van Maastricht, European Court of Justice, Judgement C-157/09.
See R. Hofmann, Sind die Niederlande ein Narco-Staat? Der Kriminalist, 12 (2021).
See AA. Kistner ‘Germany’s Chrystal Meth Pandemic‘ Der Spiegel (2014). Available at https://www.spiegel.de/international/germany/crystal-meth-becoming-more-popular-in-germany-a-958215.html.
Eckpunktepapier der Bundesregierung zur Einführung einer kontrollierten Abgabe von Cannabis an Erwachsene zu Genusszwecken. Rn. 36. Retrieved from https://www.bundesgesundheitsministerium.de/ministerium/meldungen/kontrollierte-abgabe-von-cannabis-eckpunktepapier-der-bundesregierung-liegt-vor.html.
Case 8/74 Dassonville [1974] ecr 837.
ecj Case C-170/04, 5. Juni 2007.
ecj Case C-434/04 from 28 September 2006 where the ecj considered import licensing of undernatured ethyl alcholol of over 80% into Finland as complaint with article 36 tfeu.
ecj Case C-434/04 from 28 September 2006 para 18.
J. Haucap, L. Knoke, ‚Fiskalische Auswirkungen einer Cannabislegalisierung in Deutschland: Ein Update‘. dice. (2021) Online available at https://www.dice.hhu.de/fileadmin/redaktion/Fakultaeten/Wirtschaftswissenschaftliche_Fakultaet/DICE/Bilder/Nachrichten_und_Meldungen/Fiskalische_Effekte_Cannabislegalisierung_final.pdf.
Jelsma speaks in that respect of a pandora’s box which, once opened, would jeopardize the integrity of the entire control system. M. Jelsma, ‘Lifting the ban on coca chewing. Bolivia’s proposal to amend the 1961 Single Convention’. Series of Legislative Reform of Drug Policies, Nr.11. (2011) 5.
See for example P. Van Kempen, M. Fedorova, ‘Cannabis Regulation Through the “Without Right” Clause in Article 2(1) of EU Framework Decision 2004/757/jha on Illicit Drug Trafficking’, European Journal of Crime, Criminal Law and Criminal Justice (published online ahead of print 2023) 25. doi: https://doi.org/10.1163/15718174-bja1003925.
Van Kempen and Fedorova make a strong argument for human right obligations being a main driver behind legalization approaches without specifying how and which human rights are exactly violated by cannabis prohibition. See P. Van Kempen, M. Fedorova, ‘Cannabis Regulation Through the “Without Right” Clause in Article 2(1) of EU Framework Decision 2004/757/jha on Illicit Drug Trafficking’, European Journal of Crime, Criminal Law and Criminal Justice (published online ahead of print 2023) 25. doi: https://doi.org/10.1163/15718174-bja10039.
UN World Drug Report 2022, 44.
L. Böllinger ‘Aufstieg und Fall des Cannabis-Verbots’ 20 Neue Kriminalpolitik (2018) 288-290.