On April 1, 2024, the Cannabis Act (Cannabisgesetz, CanG) entered into force in Germany. It enacts a new Cannabis Consumption Act (Konsumcannabisgesetz, KCanG) and amends several other laws, such as the Medicinal Cannabis Act (Medizinal-Cannabisgesetz, MedCanG) and the Narcotics Act (Betäubungsmittelgesetz, BtMG). The purpose of the Cannabis Act is to make the responsible use of cannabis easier, minimize black market activity, and improve the protection of children and young people. (Explanatory Memorandum, at 1.) The Cannabis Act entered into force mostly as originally proposed by the German Federal Ministry of Health (Bundesministerium für Gesundheit, BMG) in 2023, allowing for the possession, cultivation, and trade of cannabis under certain circumstances. (KCanG §§ 3, 4, 9, 13, 19.) The newly added rules regarding driving while under the influence of THC and the amnesty provision have sparked controversy.
Private Possession, Communal Cultivation, and Health and Youth Protection Measures
The act aligns with the proposal regarding private possession, communal cultivation, and health and youth protection measures: Persons ages 18 years and older are permitted to possess up to 25 grams of cannabis for private consumption. (§ 2, para. 3, no. 2; § 3, paras. 1, 2.) They are also authorized to cultivate up to three cannabis plants at home for their personal use. (§ 2, para. 3, no. 3; § 9, para. 1.) The use of cannabis is prohibited in close proximity to persons under the age of 18 and in certain public areas, such as schools and playgrounds. (§ 5, paras. 1, 2.)
Furthermore, members of cultivation associations are permitted to cultivate, distribute, and receive cannabis. (§ 2, para. 3, no. 4; §§ 11–23, 25, 26, 29.) Members ages 18 to 21 years (“adolescents”) are allowed to receive up to 25 grams per day and a maximum of 30 grams per month. Members older than 21 years can receive the same amount per day but a maximum of 50 grams per month. The THC level for adolescents is limited to 10% (§ 19, para. 3), while for persons older than 21 years it is unlimited. Cultivation associations require a license from the competent authority. (§ 11, para. 1.) However, even though the act entered into force on April 1, 2024, cultivation associations may not start operating until July 2024. (Art. 15, para. 2.)
Rules for Driving Under the Influence of THC
Because the proposed Cannabis Act was criticized for not including any rules for driving under the influence of THC, the final act was written to include a mandate to establish such rules as well as those related to THC levels while driving. (KCanG § 44.). Section 44 states that an expert group of the Ministry of Digital and Transport (Bundesministerium für Digitales und Wirtschaft, BMDV) was to propose, by March 31, 2024, “a value for THC blood concentration at which the safe driving of a motor vehicle in road traffic is generally no longer guaranteed according to the current state of science.” At the end of March 2024, the expert group stated that the risk of having an accident with a THC level of 3.5 nanograms per milliliter is comparable to the risk while driving with a blood alcohol level of 0.2 per mille. Therefore, a THC level below this value does not cause any impairment relevant to road safety. As a result, the THC level of 3.5 nanograms per milliliter must now be incorporated into the Road Traffic Act (Straßenverkehrsgesetz, StVG). Driving with a higher THC level will be considered a regulatory offense. (StVG § 24a.)
The intention behind setting the limit at 3.5 nanograms per milliliter is to prevent occasional and moderate users of cannabis from receiving a positive THC test. Because THC takes time to break down in the bloodstream, these users can avoid a positive THC test by separating consumption and driving — that is, by “[not] driv[ing] a motor vehicle on the road while under the influence of cannabis as long as there is an impairment relevant to road safety.”
Effects of Amnesty
The Cannabis Act includes an amnesty provision that amends the Introductory Act to the Criminal Code (Einführungsgesetzbuch zum Strafgesetzbuch, EGStGB). (CanG art. 13.) Legally enforceable sentences for offenses that are no longer punishable under the new Cannabis Act and are not punishable by a fine will be remitted when the new law comes into force if the sentences have not yet been enforced. (Art. 13; EGStGB arts. 316p; 313, para. 1.)
Sentences and measures to enforce the sentences must be discontinued immediately. Any enforcement of sentences that has begun must be discontinued, and sentenced persons must be released from imprisonment immediately. All criminal files on the possession of cannabis must be reviewed to identify whether the sentence has been enforced yet. That means, for example, that the German state of Baden-Württemberg has to review more than 25,000 cases.
Criticism of the Cannabis Act
The Cannabis Act received criticism from the German population and various associations. For instance, the German Association of Judges (Deutscher Richterbund) criticized the amnesty provision. In particular, they argued that the act would create a significant workload for the courts and state prosecutors that cannot be completed in a timely manner. Additionally, they expect that, contrary to the act’s purpose, the provision would serve to strengthen the black market because purchasing cannabis from a cultivation association requires membership and active participation (KCanG § 17, para. 2), whereas purchasing from the black market allows the buyer to avoid registration and active participation. (Statement of the German Association of Judges, at 7.)
According to the German Medical Association (Bundesärztekammer), the legalization of cannabis poses a “relevant threat to the mental health and development opportunities” of young people. In accordance with the associations’ statements, a survey from March 2024 revealed that 56% of the German population believe that legalization is wrong, while 40% believe it is the right thing to do.
Prepared by Eva Dauke, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist
Law Library of Congress, April 19, 2024
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