Is CBD legal in Germany

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Written in English. Translated with ‘DeepL’ online

These names are used interchangeably:

• Industrial Cannabis = Industrial Hemp; Hemp; Agricultural hemp
• Hemp Flower = CBD Flower.
• Hemp Products = CBD Flower/ CBD Hash/CBD Extracts

Is CBD flower legal in Germany?

GERMANS DISCRIMINATED AGAINST UNDER EU LAW

A hiccup in the EU strategy begins. Germany drags its citizens through the courts for doing exactly what other EU citizens are allowed to do. A person in Spain grows wealthy selling CBD flower, a person in Germany spends years in court. The French citizen opens a shop selling CBD flower,   the person in Germany is arrested at gunpoint. In Italy CBD creates opportunities, in Germany – violent police confrontations. In Poland CBD shops start at the German border, in Germany doors are kicked in by police. This is not what the EU promised. (1)

CBD FLOWER IS LEGAL UNDER EU LAW BUT REMAINS ILLEGAL UNDER GERMAN LAW

European legislation seems quite clear about hemp and CBD products: prompting thousands of people across Europe to open a CBD business. These EU laws have been met in Germany with police aggression and violence, for the simple reason German prosecutors insist hemp products are narcotics – the EU Commission insists they are not. (2)

German prosecutors haven’t bothered to clarify this legal discrepancy, instead they’ve arrested German people by the thousands. People have been humiliated and received shameful punishments by the German State which would not be permitted under EU law. It seems EU citizens are now being denied the rights of EU law.

How long can Germany dodge EU law? for as long as Germany can prevent EU courts and EU authorities becoming involved.

HEMP V’s MARIJUANA WHATS THE DIFFERENCE

There are many varieties of cannabis, and all of them different. Some cannabis varieties are naturally small, while others are big, some have THC some don’t, despite being different, they all belong to the cannabis family.

Marijuana and hemp are both members of the cannabis family but have very different genetics. Marijuana is a narcotic with an elevated THC content, industrial cannabis also called hemp, contains little or no THC and is used for ropes, fabrics and concrete. In 1941 Henry Ford used hemp to make cars. (3)

IF IT LOOKS LIKE CANNABIS IT MUST BE A NARCOTIC

German prosecutors views are more basic. They say it doesn’t matter if a cannabis plant has high THC or low THC because every cannabis plant is a narcotic.

Prosecutors agree that industrial cannabis has little THC and doesn’t intoxicate under normal conditions, but, if it’s consumed in vastly excessive quantities or huge monstrous proportions, they suggest intoxication cannot be ruled out. It’s an unusual thought that narcotics have to be consumed in vastly excessive quantities and huge monstrous proportions when in reality the opposite is true. The tiniest, minutest doses of narcotics are dangerously powerful.

Are prosecutors wrong – should the THC content of cannabis plants be an issue? If a politician writes a law to reduce drink driving the alcohol content is an issue. The law to reduce drink driving might look something like this:- “any person who drinks ten beers before driving will spend 6 months in jail.” Is it still fair that a person who drinks ten alcohol free beers before driving spends 6 months in jail?

Beer without alcohol doesn’t intoxicate. Cannabis without THC doesn’t intoxicate. Yet German prosecutors insist the THC content of cannabis is irrelevant because all cannabis is a narcotic. Are they being deliberately obtuse to make their job of prosecuting simple? Are they looking for loopholes in the law to exploit, so that more criminals are created? It’s a fair question to ask as the more prosecutions they complete successfully, the chance of promotion goes up, glamorous golden offices of private law firms with high pay and high roller lifestyles becomes a possibility.

GERMANY OPPOSES EU STRATEGIES

There is a tension between German laws and EU laws, this isn’t imaginary. Germany’s outdated narcotic laws now openly defy EU legislation. Modern Europe, represents 27 countries and has complex issues to deal with. The environment is a concern for many and needs help. To assist, EU policies have been tailored to promote wider growing of hemp across Europe, hemp is seen to be an environmental ‘wonder’ plant – reducing green house gasses and carbons, (4) cleaning groundwater and removing soil contaminants.

‘Most farmers apply nitrogen to the soil. As a result, roughly half of it ends up in groundwater, contaminating waterways, causing algae blooms, and interacting with other organisms.’

https://news.ucr.edu/articles/2021/09/16/grow-and-eat-your-own-vaccines

Prosecutors pay little heed to these environmental initiatives, and actively hinder the expansion of hemp across Europe. They do this by banning hemp products, for example CBD flower, by harassing local German hemp growers and seizing legal hemp which enters Germany from other EU countries. The EU has not given Germany permission to restrict these products nor behave in this manner.

To justify the trade restrictions against hemp products in Germany, prosecutors have simply called these products narcotics.

Narcotics are generally forbidden across the world – and certainly all EU countries. Calling hemp products narcotics is a sly tactic which allows for trade restrictions on hemp products to be imposed without asking permission. Without EU permissions, trade restrictions are illegal in the shared EU market.

A single EU country doesn’t decide what is a narcotic, all EU countries make these decisions together. A single country deciding a product is a narcotic and banning it from sale, stops the free movement of goods through the EU market and violates the principles of unrestricted trade.

That Germany has behaved like this is a surprise, Germany has presented itself far and wide as the land of law and order. Germany however is far from this and a leading and habitual violator of EU law. While demanding its citizens and residents remain strictly obedient to all laws – EU data shows disappointingly, the German State fails to maintain this strict standard of itself. (5)

‘With 46 cases Spain is still the Member state with the most pending infringement cases. It is followed by Greece (45) Italy (42) Germany (40) and Bulgaria (38)’.

(5) from 2003 ( https://single-market scoreboard.ec.europa.eu/enforcement-)

WHAT IS A NARCOTIC

1. A narcotic is any of a group of drugs, such as heroin, morphine, and pethidine, that produce numbness and near-unconsciousness. – Collins Dictionary
2. A drug (such as opium or morphine) that in moderate doses dulls the senses, relieves pain, and induces profound sleep but in excessive doses causes stupor, coma, or convulsions – Merriam Webster
3. ‘Recognizing that addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind, Conscious of their duty to prevent and combat this evil…’ – Single Convention on Narcotic Drugs 1961.

The Single Convention describes narcotics as a:

• a serious evil for the individual; and a
• social and economic danger to mankind.

It’s hard not to smile a little and wonder why German prosecutors have tried to make such an extreme comparison between hemp products and narcotic drugs. Can it be said that hemp, used to make underpants and t’shirts, is a ‘serious evil for the individual’ ? It’s assumed drug laws are written to protect the public from real dangers, not imaginary dangers. To place hemp flower in a similar group to heroin or cocaine is a gross exaggeration and prosecutors should be called upon to explain their logic.

IF A SUBSTANCE IS NOT INTOXICATING CAN IT BE A NARCOTIC

We all know narcotics are powerful. The sole purpose of a narcotic is to intoxicate with a severity that makes the narcotic drug group of particular concern to authorities. With this in mind can a substance which doesn’t intoxicate, CBD flower, reasonably be called a narcotic? Every stoner knows CBD flower isn’t a drug; the EU Commission confirms the hemp plant doesn’t have narcotic properties, (7) yet German prosecutors insist that CBD flowers are narcotics.

Prosecutors say: ” CBD flowers are narcotics you just have to eat more and more and more and intoxication cannot be ruled out – eventually you will probably get high”. It’s amusing to imagine the local drug dealer saying to his customers – “you just have to eat more and more and more and intoxication cannot be ruled out – eventually you will probably get high”.

Prosecutors arguments are clever, using words which cannot be measured, words without certainty and ‘weight’. Words like probably, maybe, possibly… and sentences like ” will probably happen”, ” probably get high”, ” and ” cannot be ruled out”. What do these words and sentences really mean.” If you work on Saturday I will probably pay you”, is different to “I will definitely pay you for working Saturday”.

Is it realistic to say – consume more and more and more of something, intoxication cannot be ruled out? Don’t we need to know how much will cause intoxication and if intoxication will be caused – not possibly caused?

Courts seldom convict a person who is possibly guilty of a crime. Fact, evidence and law take priority to convict. Prosecutors know this. Legal arguments which use vague words like: ‘maybe, possibly and cannot be ruled out’, make convicting easy – a prosecutors dream – but corrupt the legal process. It’s fair to say prosecutors claims are not based on fact. And this is a problem.

ABUSE OF PROCESS

Corruption of the legal process has finally been called by a judge against a prosecutor. In some countries judges have become intolerant of pedantic arguments and increasingly speak out against CBD convictions. Claiming that CBD flowers are a narcotic has now been labelled by one judge as an abuse of legal process. (6) An abuse of the legal process by prosecutors whose duty it is to protect the legal process. There have been many recent complaints about court decisions in Germany regarding hemp and CBD. Are the courts enabling a systematic abuse of power as the judge in Margiotta warned? Is transparency an issue and is anyone in a position to complain in Germany, if it were?

SINGLE CONVENTION ON NARCOTIC DRUGS 1961

The Single Convention on narcotic Drugs 1961 ( “Single Convention”) contains a list of narcotic drugs. It does not list or include industrial cannabis. Does the legislation direct our attention to, or express any opinion about industrial cannabis ?

The Advocate General in Hammarsten advised that industrial cannabis was not a narcotic under the Single Convention. She suggests the narcotics laws are for catching narcotic cannabis. 28.2. Above echoes this.

UNCLEAR LAW IN GERMANY

When it comes to hemp and hemp products – the law is a mess in Germany. The Berlin judges make decisions which oppose the Leipzig judges. The Leipzig judges contradict decisions made by Berlin. Berlin judges quite rightly disagree with Braunschweig judges. And Braunschweig judges disagree with each other. It goes round and round while ordinary people are dragged from one court to another. The German state doesn’t understand the law, the police, the lawyers and the people don’t understand the law and it’s been this way for 10 years.

The corporate giant Lidl Supermarket sold hemp products across the entire country and was arrested for selling narcotics. (9)

Is a state allowed to prosecute its citizens if the law is unclear? In Germany the answer is yes.

RULE OF LAW

If laws are vague or unclear it allows prosecutors to go after anyone they want. For this reason it’s a basic requirement that a state must provide clear laws to its citizens. The European Commission sets out rules that countries entering the European Union must follow:

Candidate countries wishing to join the EU ‘…must make sure that laws are clear, publicised, stable, fair, and protect fundamental rights.‘

https://neighbourhood-enlargement.ec.europa.eu/enlargement-policy/policy-highlights/rule-law_en

Laws are so unclear in Germany, Lidl supermarket has now been arrested. Has any other country had a supermarket arrested? It’s an amusing situation to imagine a supermarket giant arrested. But it’s also worrying. Prosecutors have persisted to take advantage of unclear laws and operate in a cloudy legal environment to punish, humiliate and convict. And this hasn’t finished they continue to do so. The EU says clear laws are a fundamental right for all. Is Germany providing clear laws ?

With powerful friends and huge financial resources, it was no surprise Lidl was quickly cleared of criminal wrongdoing. Bunte Blüte a small startup is in court today after ten years. Hanfbar another small startup, were in the court system for 8 – 10 years. Their case finally discontinued as too ‘insignificant’ to further prosecute. Does this mean a mistake was made?

REALITY CHECK

There are reports in Germany of police officers confiscating shopping bags made from hemp. These same hemp bags are available to purchase on Amazon. It seems hard to imagine people eating shopping bags to get high, but prosecutors have identified this as an area of possible concern. Baking huge cookies and eating shopping bags? These situations may seem reasonable in the imagination but do not happen in real life. These are hypothetical possibilities.

LEGAL INTERPRETATION AND PURPOSE OF THE LAW

When a strict interpretation of the law has brought about an absurd meaning, a common sense Interpretation of the law will be used to understand what the purpose of the law was and what the law was meant to achieve, what it’s aim was. This is a recognised legal technique taught at university. Prosecutors suggest that intoxication cannot be ruled out if a person eats a bucket of hemp flower, but can the stomach contain so vast a quantity? Common sense tells us no. Hemp flower is very expensive. Will a person spend €800 euros on hemp to bake a gigantic cookie, when a joint of marijuana costs €3 ? Common sense tells us no. Is it likely hemp shopping bags will be baked into a cookie then eaten? Common sense tells us no.

The Advocate General in Kannavape, knew police prosecutors would be afraid of change and warned prosecutors against using hypothetical arguments to restrict trade of hemp products, unfortunatley we see prosecutors in the German courts doing exactly that. ( 9 )

FRANCE AND ENGLAND DISAGREE WITH GERMANY

The French High Court confirms that CBD flower has tiny amounts of THC, yes, but not enough to intoxicate. This is also the position of England. The London Court Of Appeals, applying EU law, says CBD flower contains too little THC to be a narcotic and is not intoxicating. The London magistrate goes further to suggest that a courtroom is a public venue and trials must be  conducted in such a manner that faith in the legal system is upheld. The judge felt that if a court prosecutes CBD flower as a narcotic when CBD flower is not a narcotic, peoples trust in the court system will be weakened. These comments may be a reminder to German judges that fickle, poorly reasoned decisions will not be quickly forgotten.

IN CONCLUSION

It is disappointing when the system we rely on for protection, refuses to protect and instead attacks. Police prosecutors and judges joined at the hip, agreeing on things that lack common sense in a kind of ‘group think’. Is there a real separation of powers in Germany or just a surface appearance of it? Is it possible to still trust the German legal system when the courts make decisions that seem incorrect and refuse decisions that seem correct? ( 10 )

Prosecutors can very quickly discredit a legal system when truth no longer resonates from the courtrooms, the judge from Margiotta warned. He suggested when the law is manipulated to provide outcomes which are incorrect, the deception will not be forgotten. We can see clear irregularities in prosecutors arguments, which are not becoming of legal thinkers, arguments which are odd and riddled with impaired judgement, subjective dislikes and lacking in clear reason – like a mob at a lynching, whose enthusism to punish prevents them from seeing clearly. To the outsider, recent court episodes may appear not so much as trials as witch hunts.

PREJUDICE AND STIGMA

As the world becomes less certain and moves forward it’s easier to look for strength in what we’ve always known. Villiage gossip can seem more powerful than science and modern research if it confirms what we have always believed. The Advocate General warned in Kannavape about the power of stigma and prejudices to cloud prosecutors judgement. (11) He asked hemp cases be judged according to fact and science not stigma and prejudice. If real public harm can be shown by hemp products he said, (12) the EU would give permission to ban hemp products. The harm must be real and provable. Germany has not shown that hemp products are harmful but banned them regardless. The irony is that Germany will legalise cannabis with a heavy THC content, while out of sight, persists in violently prosecuting cannabis without THC. It’s fair to ask what kind of a message is this sending.

IS CBD FLOWER LEGAL IN GERMANY?

Under EU law, CBD flower and products are legal across all EU countries. Germany is refusing to accept this EU law. German prosecutors use hypotheticals to show that hemp flower can become a narcotic when consumed in exaggerated quantities. The truth is, narcotics are potent when consumed in minute quantities, and dangerous or lethal in large quantities. Prosecutors have created a topsy turvey world, using novel applications of the law and hypotheticals to criminalise ordinary people and enrich the state with fines.

Prosecutors receive no bravo, taking advantage of vague laws to prosecute, their first task is to clarify legal discrepancies when the law is unclear. Laws must be clear before prosecutions commence – to avoid dissatisfaction spreading throughout a community, to prosecute first and clarify the law after, which has happened repeatedly – makes prosecuting lucrative, but isn’t forgotten nor forgiven by those affected.

The handling of the hemp situation in Germany is an embarrassment and shameful, common sense and legal objectivity, replaced by a desire to punish. Having read through defining EU case law, Hammarsten & Kannavape, and the more recent Margiotta and the Single Convention on Narcotic Drugs 1961, it seems quite clear those being arrested for CBD infringements are not breaking EU law. Can this be said of those authorising the arrests?

The German courts seem determined to prevent EU involvement, perhaps they fear mistakes have been made and an apology will be required. Not an apology in words, but the more painful kind of apology made in dollars and cents. We wait for the EU courts to step in and clarify the situation of hemp in Germany as the German courts, after ten long years are unable.

Prosecutors will eventually be called to the EU to explain themselves, how a kilo of hemp can become a narcotic when baked into a large cookie. How a hemp shopping bag has the potential to intoxicate. How a young adult spends €800 to bake one hemp cookie when a joint cost €2 or €3. Will the EU judges be impressed by these arguments, or will the EU judges smile quietly, as many do, thinking that a clever game is being played?

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1. https://european-union.europa.eu/easy-read_en#:~:text=The%20European%20Union%20is%20a%20group%20of%2027%20countries%20in%20Europe.&text=to%20make%20things%20better%2C%20easier%20and%20safer%20for%20people.
2. https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/european-green-deal_en ‘Due to the very low level of THC, hemp complying with the provisions of the CAP is not used to produce narcotic drugs.’
3. https://themeaningofwater.com/2020/10/03/henry-fords-hemp-cars/#:~:text=Ford’s%201941%20bioplastic%20Model%20T,hemp%20or%20other%20agricultural%20waste.
4. A hectare of hemp sequesters almost twice as much carbon as a forest, prompting calls from UK farmers to loosen its regulation. https://www.euronews.com/green/2021/11/11/the-uk-countryside-is-ablaze-with-hemp-farms-but-how-do-they-help-the-climate
5. Enforcement proceedings: ‘With 46 cases Spain is still the Member state with the most pending infringement cases. It is followed by Greece (45) Italy (42) Germany (40) and Bulgaria (38).’ (https://single-market scoreboard.ec.europa.eu/enforcement-tools/infringements_en#:~:text=to%204%20cases).-,With%2046%20cases%2C%20Spain%20is%20still%20the%20Member%20State%20with,for%2030%25%20of%20all%20cases.)
6. Margiotta & Ors, R. v [2023] EWCA Crim 759 (30 June 2023)URL: http://www.bailii.org/ew/cases/EWCA/Crim/2023/759.htmlCite as: [2023] EWCA Crim 759
7. https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/european-green-deal_en ‘Due to the very low level of THC, hemp complying with the provisions of the CAP is not used to produce narcotic drugs.’
8. Single Convention on Narcotic Drugs 1961: https://www.unodc.org/pdf/convention_1961_en.pdf
9. Lidl Supermarket Arrested: https://hemptoday.net/raid-of-supermarket-chain-puts-germanys-challenges-in-focus/
10. Kannavape decision: https://curia.europa.eu/juris/document/document.jsf?docid=233925&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=17576455
11. Berlins Court 5th chamber decision: CBD flower cannot be judged as narcotic with low THC values. Overturned by Leipzig court which claimed all CBD flower with minimal THC trace is a narcotic. Re: Bunte Blüte.
12. Kannavape decision: https://curia.europa.eu/juris/document/document.jsf?docid=233925&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=17576455
13. Kannavape decision: https://curia.europa.eu/juris/document/document.jsf?docid=233925&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=17576455
14. Hammarsten ECJ court ruling industrial hemp not narcotic when grown according to legislation: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2003%3A33
15. Kannavape decision: https://curia.europa.eu/juris/document/document.jsf?docid=233925&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=17576455
16. https://agriculture.ec.europa.eu/farming/crop-productions-and-plant-based-products/hemp_en

Interesting articles:

1. https://agriculture.ec.europa.eu/farming/crop-productions-and-plant-based-products/hemp_en#:~:text=Hemp%20production%20in%20the%20EU,-Hemp%20is%20a&text=France%20is%20the%20largest%20producer,and%20The%20Netherlands%20(5%25).
2. https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/european-green-deal_en ‘Due to the very low level of THC, hemp complying with the provisions of the CAP is not used to produce narcotic drugs.’
3. Ibid.
4. https://www.merriam-webster.com/dictionary/narcotics
5. https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/european-green-deal_en ‘Due to the very low level of THC, hemp complying with the provisions of the CAP is not used to produce narcotic drugs.’
6. Ibid.
7. https://www.unodc.org/pdf/convention_1961_en.pdf
8. Ibid.
9. https://agriculture.ec.europa.eu/farming/crop-productions-and-plant-based-products/hemp_en#legalbases
10. https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/european-green-deal_en
13. https://agriculture.ec.europa.eu/farming/crop-productions-and-plant-based-products/hemp_en
14. https://agriculture.ec.europa.eu/farming/crop-productions-and-plant-based-products/hemp_en
15. Merriam Webster
16. • https://neighbourhood-enlargement.ec.europa.eu/enlargement-policy/policy-highlights/rule-law_en
17. https://www.britannica.com/topic/rule-of-law
18. https://curia.europa.eu/juris/document/document.jsf?docid=233925&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=17576455