Le CBD est-il légal en Allemagne ?

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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

Les fleurs de CBD sont-elles autorisées en Allemagne ?

GERMANS DISCRIMINATED AGAINST UNDER EU LAW

Un accroc dans la stratégie de l'UE commence. L'Allemagne traîne ses citoyens devant les tribunaux pour avoir fait exactement ce que les autres citoyens de l'UE sont autorisés à faire. Un Espagnol s'enrichit en vendant des fleurs de CBD, un Allemand passe des années devant les tribunaux. Le citoyen français ouvre un magasin de fleurs de CBD, le citoyen allemand est arrêté sous la menace d'une arme. En Italie, le CBD crée des opportunités, en Allemagne, de violentes confrontations avec la police. En Pologne, les boutiques de CBD sont ouvertes à la frontière allemande, tandis qu'en Allemagne, les portes sont enfoncées par la police. Ce n'est pas ce que l'UE avait promis.

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 exaggerated police aggression and violence, for the simple reason German prosecutors insist hemp products are narcotics – the EU Commission insists they aren’t. (1)

German prosecutors haven’t bothered to clarify this legal discrepancy, instead they’ve arrested German people by the thousands. People have received humiliating and shameful punishments by the German State which would not be permitted under EU law. In Germany it seems EU citizens are now denied EU law. How long it will stay like this depends on how long Germany can prevent EU courts becoming involved.

HEMP V’s MARIJUANA

There are many varieties of cannabis, and all of them different. Some cannabis varieties are small, some are big, 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 contains little or no THC and is used for ropes, fabrics and concrete. In 1941 Henry Ford used hemp to make car panels and even fuel for cars. (2)

IF IT LOOKS LIKE A DUCK AND SMELLS LIKE A DUCK IT MUST BE A DUCK

German prosecutors views are more simple – they say all cannabis is bad and hemp products, when consumed in ” excess quantities” or ” huge exaggerated portions” – intoxicate just like a narcotic.

It’s an unusual thought that narcotics have to be consumed in excess quantities and monstrous proportions to intoxicate when the reality is just the opposite, the tiniest doses of narcotics have an explosive impact. And some are so powerful a minute dose will kill.

GERMANY OPPOSES EU STRATEGIES

Outdated German laws now openly defy the updated EU law. Modern Europe, has no choice but to deal with complex issues as they appear. The environment is now a concern and mother nature needs a hand. To assist, EU policies have been tailored to promote wider growing of hemp across Europe. Hemp is thought to be an environmental ‘wonder’ plant – reducing green house gasses and carbons, (3) cleaning ground water and removing soil contaminants. It’s a long term EU initiative to reduce some crops and expand hemp, in the hope envronmental pressures are lessened.

‘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

German prosecutors pay little heed to these 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 but it does so regardless.

To justify trade restrictions on hemp products German prosecutors have simply called hemp products narcotics and banned them.

Narcotics are illegal and can be banned without EU permission. Calling hemp products narcotics is a cunning technique which amounts to little more than a trade restriction. Without EU permissions, trade restrictions are illegal in the shared EU market. A single EU country, Germany, doesn’t decide in isolation what will and will not be seeen as a narcotic, in the EU important decisions are made by all EU countries together. A single country defining a product as a narcotic and banning it from sale, would appear to be a violation of EU law – the product is widely sold across many EU countries. It’s a surprise for many Germans to learn that Germany is a frequent violator of EU law, so this is not unusual. (4) While demanding its citizens and residents remain strictly obedient to the law – EU data shows the German State fails to maintain this strict standard of itself.

PROPPING UP A HOUSE OF CARDS

Some courts are becoming openly intolerant of prosecutors insisting CBD flowers are narcotics when they are not: and the big courts begin to speak out against CBD convictions. A police prosecutor has been rebuked publicly for mis-application of hemp law:

Insisting CBD flowers are a narcotic has now been called as an abuse of legal process and serves as a warning that prosecutors must stop. (5)

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

IF A SUBSTANCE IS NOT INTOXICATING CAN IT BE A NARCOTIC

Narcotics are potent, unpredictable, and potentially lethal.

Les stupéfiants sont un groupe de drogues produisant une narcose qui est état de stupeur, d'inconscience ou d'arrêt de l'activité produit par l'influence de stupéfiants ou d'autres agents chimiques ou physiques".

merriam-webster

Can a substance which doesn’t intoxicate reasonably be called a narcotic? Every stoner knows CBD flower isn’t a drug; the EU Commission confirms hemp isn’t used to make narcotics, (6) yet German prosecutors, relying upon strange evidence, insist they are.

THE LAW IN BRIEF

If politicians write a law to reduce drink driving it 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? Common sense says no.

So it is with narcotics – Cannabis without THC doesn’t intoxicate – just like beer without alcohol doesn’t intoxicate. Yet prosecutors say cannabis without THC is a narcotic. Is the claim reasonable if we look at what narcotics are? If we look at what narcotics are, we can also see what they are not.

WHAT IS A NARCOTIC

1. Un stupéfiant est un groupe de drogues, telles que l'héroïne, la morphine et la péthidine, qui produisent un engourdissement et une quasi-inconscience. - Dictionnaire Collins
2. Drogue (comme l'opium ou la morphine) qui, à doses modérées, émousse les sens, soulage la douleur et induit un sommeil profond, mais qui, à doses excessives, provoque la stupeur, le coma ou des 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.

La Convention unique décrit les stupéfiants comme un :

• a serious evil for the individual; and a
• Le problème est qu'il s'agit d'un danger social et économique pour l'humanité.

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 narcotics. Can it be said that hemp, used to make underpants and t’shirts, is a ‘serious evil’? It’s hard to find a serious person who thinks so.

ABUSE OF PROCESS

The judge in Margiotta said prosecutors abuse the legal process claiming CBD flowers are narcotics. Perhaps this is why there have been so many recent complaints about prosecutors behaviour and court decisions in Germany. Do people also feel the court is abusing it’s power and decisions are not transparent?

The Advocate General in Hammarsten ( ) advised that industrial cannabis was not a narcotic under the Single Convention. The Advocate General, seems to suggests the narcotics laws are for catching narcotic cannabis – and the cannabis varieties which aren’t narcotics, to be left alone.

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:

Article 28.2, of the Convention (above) has a provision to stop industrial cannabis being prosecuted, an exclusionary provision which means “do not prosecute industrial cannabis because it’s not a narcotic”. The Convention is written in plain language, and why is this section ignored?

UNCLEAR LAW IN GERMANY

When it comes to hemp and hemp products – the law is a mess in Germany. Inconsistent prosecutions, judicial chaos make for a true ” dogs breakfast”. 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 it goes on and on. And ordinary people are pulled 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.

It’s common knowledge among German people, German decision makers simply cannot make a decision. After 10 years of arguing – still no one knows if hemp flower is legal in Germany. But we do know EU law dominates all EU countries and when the EU authorities say hemp flower is legal in Germany, they are legal in Germany. And current case law indicates hemp products are legal in EU countries.

The corporate giant Lidl Supermarket sold hemp products across the entire country and was arrested for selling narcotics. (8)

Is a state allowed to prosecute its citizens if the law is unclear? In Germany it happens frequently but Germany isn’t allowed to do this.

RULE OF LAW

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:

Les pays candidats à l'adhésion à l'UE '...doit veiller à ce que les lois soient claires, rendues publiques, stables, équitables et qu'elles protègent les droits fondamentaux.‘

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 amusing perhaps but also worrying. Unclear hemp laws have been a hallmark of modern Germany for 10 years, and allowed prosecutors to take advantage of loopholes in the law to arrest. How does this meet EU standards and why is it allowed to continue? German laws, are now clearly out of step with EU law. Germany, like France must align its laws with EU law.

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.

Prosecutors are no longer seeing clearly, caught by their imagination in a constant loop. Baking huge cookies and eating shopping bags – in the imagination may seem reasonable – but it doesn’t happen in real life, they are hypothetical – imaginary possibilities. If a person eats a shopping bag or a monster hemp cookie, they are going to hospital.

LEGAL INTERPRETATION AND PURPOSE OF THE LAW

When a strict application of law has brought about absurd meanings, a common sense approach will be used to try and understand the law more fully, what its intentions were and what it was meant to achieve…its purpose. 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 they can get high on street weed for €3 ? Common sense tells us no. Is it likely hemp shopping bags will be baked into a cookie then eaten or rolled into a joint and smoked? Common sense tells us no.

The Advocate General in Kannavape, knew police prosecutors would be afraid of change and warned against using hypothetical arguments to restrict the sale of European hemp products. Using hypotheticals was identified as a threat to the new cannabis industry, and though warned against it, German prosecutors employ hypotheticals to restrict the sale of European hemp products. ( 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 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. The 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 appear not so much as trials as witch hunts.

PREJUDICE AND STIGMA

As the world moves forward it’s easier to look for strength in what we’ve always known, allow ourselves to be guided by our old prejudices and stigmas, recognisable values we’ve been taught by parents. Villiage gossip can seem more powerful than science and modern research, if it confirms what we have always believed. Moving forward can be a cognitive rupture when we deny old values we’ve held close. The Advocate General warned in Kannavape about stigmas and prejudices clouding prosecutors values (11) and he asked hemp cases be judged according to science. If real public harm can be shown he said, (12) the EU gives permission to ban hemp products. No harm has been shown yet Germany has banned them. The irony is that Germany will legalise cannabis with a heavy THC content, while out of sight, persists in violently arresting citizens for selling cannabis without THC content. It’s fair to ask what kind of a message is this sending to people about Germany?

The handling of the hemp situation in Germany is both embarrassing and shameful, common sense and objectivity disappearing while an unexplainable desire to punish appeared. Having read through EU case law, Hammarsten (13) & Kannavape, ( 14 ) even the more recent Margiotta and the Single Convention on Narcotic Drugs 1961, it seems quite clear those being arrested for CBD infringements are not actually breaking the EU law. Can this be said of those authorising the arrests? We wait for the EU courts to answer this question clearly as a German courts are unable to.

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 have tried to show that hemp flower is a narcotic using arguments that lack science and common sense. Prosecutors try to show that industrial cannabis becomes a narcotic when consumed in enormously large quantities. The truth is, narcotics are potent when consumed in tiny tiny amounts, when consumed in enormously large quantities are lethal. Prosecutors are creating a topsy turvey world, to make criminalising citizens easy, put more people in jail and enrich the state with fines. Prosecutors treat the citizens who pay their very large wages, badly.

Prosecutors will eventually be called to the EU to explain themselves and their theories, 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 when consumed. How a young adult spends €800 on hemp to bake 1 cookie. 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?

****************

1. 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.’
2. https://themeaningofwater.com/2020/10/03/henry-fords-hemp-cars/#:~:text=Ford’s%201941%20bioplastic%20Model%20T,hemp%20or%20other%20agricultural%20waste.
3. 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
4. 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.)
5. 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
6. 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.’
7. Single Convention on Narcotic Drugs 1961: https://www.unodc.org/pdf/convention_1961_en.pdf
8. Lidl Supermarket Arrested: https://hemptoday.net/raid-of-supermarket-chain-puts-germanys-challenges-in-focus/
9. 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
10. Berlin court made a decision that CBD flower cannot be judged as narcotic with low THC values, overturned by Leipzig court – all CBD flower narcotic n a decision that was hard to believe. Bunte Blüte case. Exact info to be supplied soon.
11. 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
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. 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
14. 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
15. 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