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BvCW publishes legal opinion – Tightening of the Cannabis Act unconstitutional?

Strengthening of organized crime feared through ban on “grow hubs”

Berlin, 05/02/2024 | With the current draft bill to amend the Cannabis Act, the Federal Government wants to keep the promises made to individual federal states in the protocol declaration in the Bundesrat.

Accordingly, the Federal Ministry of Health (BMG) presented a draft amendment to the Consumer Cannabis Act and the Medical Cannabis Act on 16.04.2024, which is to be implemented by the Bundestag as part of an abbreviated legislative procedure.  

In parts, this draft goes far beyond the commitments made in the protocol declaration and the underlying intentions and poses fundamental problems that are difficult to solve, especially for cultivation associations. 

However, the hastily presented amendment law and the associated interventions in the so-called “Pillar 1” of cannabis regulation (cultivation associations and private home cultivation), which has only just been introduced by the CanG, are so far-reaching that they are likely to be unconstitutional, as a legal opinion by the renowned commercial and administrative law firm Witzel Erb Backu & Partner, Munich, has now determined. The legal opinion was commissioned by a member company of the BvCW with the request for a neutral assessment.

In essence, this concerns the general prohibition for growers’ associations to outsource bundled services – even if they cannot (reasonably) provide them themselves. Even a rental agreement with the supply of electricity or heat by the landlord would be considered a prohibited “package service” under the amendment act. Furthermore, it is to be left to the discretion of the federal states to deny licenses even if only two associations want to cultivate cultivation areas in the same building complex, or even in the same location in a narrow interpretation – regardless of whether this would enable efficient, ecological and secure cultivation in the first place and even simplify monitoring by the supervisory authorities. 

The legal opinion comes to the conclusion that the planned changes are not only counterproductive, but also unconstitutional. The private autonomy of associations is clearly enshrined in Article 9 of the German Basic Law, among other things. However, other fundamental rights such as the guarantee of property rights under Article 14 of the Basic Law, the principle of equal treatment and freedom of occupation are also violated according to the expert opinion – without the principle of proportionality being observed.

The BvCW also fears that the additional restrictions on legal business opportunities could greatly increase the influence of organized crime. The BvCW had already informed the coalition leaders in the Bundestag about this, submitted proposals and asked for intensive examination (the association will be happy to make this available on request).

In order to safeguard the original purpose of the law and prevent criminal structures, far less restrictive provisions can be implemented – such as limiting the number of cultivation associations in a building complex and/or a possible obligation for cultivation associations to appoint a money laundering officer in accordance with the Money Laundering Act (GwG) – similar to the gambling sector.

If the draft amendment is adopted in its current form, not only would the achievement of the CanG’s objectives (protection of minors and consumers, suppression of the black market and organized crime) would be at risk in many respects. Furthermore, a wave of lawsuits by cannabis cultivation associations and their service providers is to be expected, which could lead to a burden on the administrative courts and a lack of legal certainty for all stakeholders. 

You can find the full report here.