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German Federal Court Ruling Creates Confusion About Impending Legalization

So, Germany is just about to legalize cannabis for recreational use. Initial draft guidelines were even released. Which makes it strange that the German Federal Court of Justice just enforced a ruling against two guys who sold hemp flowers with not more than .2% THC. In fact, it sounds a lot like what we already went through when France tried to stop imports of CBD into the country, and had to be shut down by the EU. Will this change anything?

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First off, what just happened?

The story starts well before Germany made the decision to legalize recreational cannabis. In 2021, two guy were convicted in a court in Berlin for selling CBD flowers in large quantities. This decision was recently upheld by the higher German Federal court, even despite it not making sense with EU law, or upcoming German law. The flowers didn’t have more than .2% THC, and at the time, that was the industry cut off for what is legal and what is not. Hemp flowers under that amount, have been legal for awhile.

Yet on October 14th, 2022, despite the THC limit not gone over, and despite laws in the works that literally invalidate all of this, the German Federal Court confirmed the earlier ruling which convicted the two men; with suspended sentences that include years of jail time. In a press release on the matter, it was stated:

“The 6th criminal senate of the BGH has now decided that CBD flowers – as long as they have not been de-resinized or only contain traces of THC in negligible amounts – are narcotics, since abuse of these products for intoxicating purposes cannot be ruled out.” Which means the court actually considers that the men were dealing in narcotics, even though they weren’t breaking EU law.

Cannabis in Germany
Cannabis in Germany

To be clear, its not like the court is even saying the guys were trying to sell the products illegally. They state in the press release: “According to the judgment of the district court, the main defendant – with the support of the second defendant and an unknown third party – acquired 60 kg of cannabis plant flowers with a high proportion of the active ingredient cannabidiol (CBD) in September and October 2019. He sold the CBD flowers to wholesalers for a profit, who in turn sold them to late sales outlets and CBD shops.”

Yet it goes on to say these next confusing statements. First this: “the district court rightly classified the CBD flowers as narcotics within the meaning of Annex I to the Narcotics Act (BtMG). The flowers did not fall under a cannabis exemption. They did have an active ingredient content of 0.2% THC and thus did not exceed the limit specified in the exemption.”

But then after essentially pointing out that legal limits were not exceeded, says, “However, there was no requirement that abuse for intoxicating purposes must be ruled out. If the flowers were heated during baking, for example, this led to the release of further THC, which could produce a cannabis intoxication when consumed by the end user. The main defendant was aware of this, but his assistant was indifferent.”

One could realistically ask what the point is in having legal limits if a court is going to so badly trample on them.

What about EU law?

Even if the German high court wants to get wonky with this ruling at a completely inappropriate time considering national policy for recreational use is on the way, it still brings up something else. Compliance with EU law. You see, the flowers in this case weren’t grown in Germany, but in Spain. By barring them, it would mean barring Spain from being able to trade a product deemed legal by EU law. EU law upholds the ability for free trade between member states without issue. The recent case of France vs the EU should have put this idea of banning CBD products to rest already, since France lost the case, and with it, the ability to bar imports of CBD.

And it seems this idea was on the mind of the court, which seems to think simply saying its not breaking with the mandate, somehow makes it not break with the mandate. Which it in reality seems to be doing. It sounds like the court knows this is an issue, because before anyone could say anything, it added in this to its statement:

German high court ruling
German high court ruling

“Contrary to the opinion of the appeal, the conviction for trading in CBD flowers does not constitute a violation of the free movement of goods under European law (Art. 34 TFEU) that the flowers were legally produced in Spain.”

But, doesn’t it? I mean, wouldn’t you need a really good reason? Apparently, the best the Court could do was reiterate that “Because the flowers were narcotics, with which trade is prohibited from the outset and which are therefore not subject to the free movement of goods.” I mean, maybe that would make sense, if the EU also agreed that this classifies as a narcotic. But it doesn’t.

Yet the Court’s statement really wants to put words in the EU’s mouth. It goes on, “The standards of European law on which this assessment is based were so clear according to the relevant legal norms and so far clarified by the case law of the Court of Justice of the European Union (ECJ) that there was no reason to obtain a decision from the ECJ on compatibility with European law (Art. 267 TFEU ).”

So the German high court made the decision on behalf of the EU that it was okay to classify these flowers as narcotics even though the EU has a standard that allows for .2% THC (actually changed to .3%). By sheer definition the EU most certainly doesn’t agree, and the German court just brushed off the need to even ask.

It concluded with: “In view of the possibility of a health-endangering misuse of CBD blossoms for intoxication purposes, the Senate did not see any violation of the constitutional prohibition on excess in the punishability of trading in them.

The judgment of the Berlin Regional Court is now final.”

Let’s break this down. A country currently developing laws to allow recreational THC products, has a high court that just not only upheld the convictions of two men following EU law perfectly, but was ballsy enough to make a statement saying it was so sure of itself, it didn’t even need to ask the EU for permission.

EU cannabis law
EU cannabis law

What comes next?

Is this supposed to be some sort of hail Mary pass for all those unhappy with the new regime of Germany, and the move toward legalization? Is it expected to change the trajectory? Did someone actually think it would? Truth is, once the new laws come out, all this is invalidated anyway. The court might want to call it a narcotic, but the country is about to legalize it.

Plus, the men in question can do exactly what the two French guys Sébastien Béguerie and Antonin Cohen, did. Take their convictions to the EU high court. After all, if the EU doesn’t agree, the convictions can be invalidated. Those guys were convicted of marketing and selling hemp-derived CBD vapes in France, that came from the Czech Republic, which was within EU law. When France went against the EU and tried to ban the imports, it lost the case, because that violated EU trade law, which allows products to be sold without issue across borders.

Now, Germany is upholding the convictions of two men for almost the same thing. Giving those men the ability to take it to the EU. The question is whether the EU high court will see fit to hear the case. On the one hand, if it doesn’t hear the case, it allows its own ruling with France to be invalidated. On the other hand, doesn’t it have more important things to do than continuously look at the same issue? Personally, I hope it takes the case, and it might given the attention on it now. Or, it could ignore it, and figure that like it or not, Germany’s new laws will also end up invalidating the issue.

Conclusion

Most of all, the latest German high court ruling shows silliness, and petulance. How childish does a court system have to be to make such a judgement 1) as laws are literally in construction to invalidate the effort, and 2) when such a similar case was already lost by France so recently. Sure, maybe not everyone is on board with everything, but making it into such a temper tantrum when a legalization is coming? Stop being such cranky child, Germany!

This case won’t stop the legalization. It just serves to waste time and money, both for Germany, and for the EU if it must now do more work to uphold a ruling it already made.

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