The Bundesgerichtshof – Germanys Highest court? The Land of Wacky. CBD in Germany 2024

What Happens if High Courts Make Wrong Decisions

The Bundesgerichtshof (‘BGH’) is supposed to be Germanys highest court and is expected to make decisions free from influence. What happens when the highest court in a country, for example China, makes an important judgment which is incorrect and the courts below are bound to follow the judgement?

Being either too scared or to interested in their own careers, the incorrect judgement is followed by the lower courts even though it’s wrong. We know what happens in this situation, the canker spreads through the layers of the court and slowly, doubt about the judicial system creeps into the community as innocent people are convicted.

If a law is objectively and provably wrong and the system doesn’t remedy this anomaly, then a more scary message is being told. The message being told is – there is no real law, the law is what we tell you it is. And history tells us this never has a happy ending.

The Bundesgerichtshof in the latest CBD flower trial looked at “Kanavape”, a leading EU judgement that tells us what the CBD law is in Europe. It’s clearly written and easy to follow but somehow the BGH found it ambiguous. This quite simple judgement was turned on its head by the BGH with an interpretation that was incorrect and too narrow.

A Horse is Not a Donkey or is it?

What is a narrow interpretation of the law ? For example, if a law says ‘no horse is to be ridden on the motorway’, and a man rides a donkey on the motorway, can he be prosecuted using this law? With a narrow interpretation of the law no, because he’s not riding a horse, with a more general interpretation of the law yes, because it’s assumed the law covered horses and categories similar to horses, including for example donkeys.

There is some text below taken directly from the Bundesgerichtshof’s judgement, underneath this text is a comment on the BGH judgement. Is the BGH interpretation of the law too narrow so as to side step the law, and is this a acceptable in modern Europe?

Bundesgerichtshof Judgement

……….’I took a close look at current judgements in Germany and how they see European law involved [ in cbd trials]. The Bundesgerichtshof stated’:

From the BGH: “The CBD flowers on which the conviction is based are narcotic substances within the meaning of this case law. This is not contradicted by the fact that the Court of Justice of the European Union excluded CBD oil from the definition of narcotic substances in its decision of 19 November 2020. This is because that oil had been extracted from cannabis with a THC content of less than 0.2% in such a way that ultimately – with the exception of impurities – no compound other than CBD was contained, which is not psychoactive (see ECJ, loc. cit. para. 55, 72). CBD flowers are therefore not comparable as unprocessed parts of the cannabis plant that contain THC and whose THC content can be further increased (see Patzak/Volkmer/Fabricius, BtMG, 10th ed., § 2 para. 18c; Weber/Kornprobst/Maier, BtMG, 6th ed, § Section 1 para. 293; BeckOK BtMG/Teriet, 15th ed., Section 29 para. 29; Rottmeier, ZLR 2021, 77, 84: ‘CBD products containing cannabis in the form of plants or parts of plants [… were] not the subject of the ECJ decision’; see also Niermann/Schulte, ZLR 2021, 336, 347).

From the BGH: The CBD flowers traded here were not deprived of the resin and they did not contain only a ‘completely insignificant amount of the psychoactive substance’ (ECJ, loc. cit. para. 74; see also Rottmeier, ZLR 2021, 77, 84 f.). Rather, the THC content achievable by certain forms of preparation of the flowers was, according to the findings of the Regional Court, which were free of legal error, not completely insignificant, but capable of producing a cannabis high.“

And unfortunately Bundesgerichtshof said:

From the BGH: “There is no reason to refer the matter to the Court of Justice of the European Union for a preliminary ruling pursuant to Art. 267 (1) and (3) TFEU, as the decision does not depend on an interpretation of the relevant legal acts that has yet to be clarified, but on the subsumption of the facts of the individual case. October 1982 – 283/81; of 6 October 2021 – C-561/19; on the standards, BVerfG, decisions of 24 May 2022 – 1 BvR 2342/17; of 30 March 2022 – 2 BvR 2069/21, NStZ-RR 2022, 222, 223 et seq.; judgment of 30 July 2019 – 2 BvR 1685/14 et al. para. 314 et seq.) The assessment of the facts in question and the subsumption of the individual case under the European legal requirements already outlined in more detail are the responsibility of the national courts (Federal Court of Justice, judgement of 29 July 2021 – 3 StR 156/20 para. 23). The obligation to make a referral pursuant to Art. 267 TFEU does not only cease to apply when a decision relating to the specific facts of the case in dispute is available. Rather, it is sufficient that there is established case law from the Court of Justice of the European Union that has resolved the legal issue in question. This applies regardless of the type of proceedings in which this case law has been established and even if the disputed questions are not completely identical (BGH, decision of 30 April 2020 – I ZR 122/19).

From the BGH: b) Accordingly, there is no obligation to make a referral here: The obligation to make a referral pursuant to Art. 267 TFEU does not only cease to apply when a decision relating to the specific facts of the case in dispute is available. Rather, it is sufficient that there is established case law from the Court of Justice of the European Union that has resolved the legal issue in question. This applies regardless of the type of proceedings in which this case law has been established and even if the disputed questions are not completely identical (BGH, decision of 30 April 2020 – I ZR 122/19).Accordingly, there is no obligation to refer here.

In Reply

Hi Joe, I’ve read the text you sent, quoted from the Bundesgerichtshof re: Kannavape. This decision has been widely critised and rightly so it is legaly flawed and not an application of law to fact. It is not good law and certainty not worthy of Germanys High Court. But I understand it’s currently the law in Germany. I will look at sections from the judgement and give my opinions as i see it below.

From the BGH: 1. “The CBD flowers on which the conviction is based are narcotic substances within the meaning of this case law. This is not contradicted by the fact that the Court of Justice of the European Union excluded CBD oil from the definition of narcotic substances in its decision of 19 November 2020. This is because that oil had been extracted from cannabis with a THC content of less than 0.2% in such a way that ultimately – with the exception of impurities – no compound other than CBD was contained, which is not psychoactive”.

1. My Answer: The BGH is suggesting that Kanavape was about pure CBD oil with no THC. This isn’t true. The CBD oil in Kanavape contained < 0.2% THC and this was said many times by the Advocate General, Tanchev. It was not pure CBD oil plus impurities, as the BGH judgement suggests. This is very deceptive on the part of BGH.

1. My Answer: Even if this were the case, if it was pure CBD oil with no THC, the Advocate General in Kanavape, Tanchev, was very clear on many occasions to mention the CBD oil contained less than 0.2% THC. In his opinion, this made the CBD oil legal under EU law – because the THC content was within guidelines set down by the EU. Nowhere in the Kanavape judgement does it say or imply that the product- the CBD oil – is pure CBD with no THC content, quite the opposite, the THC content is continually mentioned. The judgement from Kanavape clearly lays down a law – that a CBD product with a THC level that is within EU guidelines is not a narcotic. The BGH should have followed this decision, from the ECJ. Had the oil been pure CBD with no THC as claimed by the Bundesgerichtshof, Tanchev would have said: this product is pure CBD with no THC and therefore not a narcotic. He didn’t say this. Again the BGH is deceptive.

2. From the BGH: The Bundesgerichtshof went on to claim: “CBD flowers are therefore not comparable as unprocessed parts of the cannabis plant that contain THC and whose THC content can be further increased.”

2. My Answerr: Again this is incorrect. Kanavape is intended to apply generally to CBD products. CBD oil is a processed hemp product so is CBD flower and therefore very comparable. CBD flowers are heavily processed, cut, dried, stored and further processed to remove THC. Even though Kanavape dealt with CBD oil – the principle of the case applies to CBD flower.

2. My answer: Does it say in Kanavape – this judgment shall apply only to CBD oil. If it doesn’t say this in the judgement, it can be assumed the judgment is intended to apply to all similar categories of CBD products legally grown in the EU. CBD oil and CBD flower are similar categories of product. The Bundesgerichtshof should not limit or narrow the decision of the ECJ to suit the purposes of the Bundesgerichtshof. The BGH has interpreted the Kanavape decision so narrowly, it’s now useless. Which of course was the intention. Their intention was to prove CBD flower was a narcotic and therefore not tradeable. This is again deceptive.

3. From the BGH . ‘CBD products containing cannabis in the form of plants or parts of plants [… were] not the subject of the ECJ decision’; see also Niermann/Schulte, ZLR 2021, 336, 347).5.

3. My answer: The BGH has chosen to support their decision using words from Niermann and Schulte. This is an unfortunate choice. I would suggest the words of Niermann and Schulte have been very much taken out of context by the BGH. As both of them, Niermann and Schulte disagreed strongly with the decision from the BGH. Niermann said it was hard to see how Germany’s Highest Court could make such a decision, describing the decision as an “embarrassment”. Schulte from memory was quite shocked by the decision. Someone else described it as a ‘scandal’ which made me smile.

In a separate incident, Schulte brought 360g of industrial cannabis flowers ( CBD flowers) across the Lörrach border by car and presented them to German customs officials. He would only do this if he believed they were legal under EU law and not narcotics. Schulte said from memory: “goods legally produced and manufactured in one EU country cannot be prevented from being sold in another EU country.” EU law TFEU 34 -36 says this quite plainly and I think this is correct.

Bundesgerichtshof Refuse EU Involvement

The BGH spent a lot of time justifying why the European Court of Justice (“ECJ”) shouldn’t be involved when obviously it should. This is an EU not a German matter and it’s alleged Germany is breaking EU law, so the EU courts need to be involved. The large demonstration about why the EU courts didn’t need involvement – just convinces the EU courts need to be involved. Why make such a theatre about it if it wasn’t necessary. I also wouldn’t want the EU involved if I was the BGH and I’d just made that decision. Somethings just not adding up.

Some suggest the prosecutors are scared the EU will simply follow the reasoning in Kanavape and say CBD flower is legal. Which of course the EU will. This means Germany has prosecuted hemp illegaly and a great embarrassment for prosecutors and judges. Being proven wrong jnfront of thr whole EU. I’m surprised the defendants in the BGH case Bunte Blüte, did not appeal to the EU, claiming an error in law by the BGH, but perhaps this is not grounds for appeal to the EU courts, I don’t know.

CBD Flower Before the EU Commission

There is a case now before the EU commission to determine if hemp products containing any THC at all, even less than 0.3% THC, can be called narcotics. The EU comission will also consider if CBD flowers are narcotics. Taking this situation to the EU level is an Italian innitiative and much needed for legal clarity, the BGH made the situation hugely chaotic. Hemp products have flourished in Italy, unlike Germany, where police prosecutors have killed the industry. I might have mentioned this in a previous mail. Just my thoughts on the current law in Germany.

The Nutzhanfliberalisierungsgesetz is being written because political intervention is now needed to remove the BGH decision from German law – at least I guess this is the reason. The Nutzhanfliberalisierungsgesetz….. says clearly industrial cannabis is not a narcotic and tradeable when it’s within EU guidelines. (<0.3%)