CBD in Germany 2018 – 2023

2000- 2023

ANOTHER BERLIN STORY

A Berlin police prosecutor when interviewed by a Berlin magazine, seemed quite pleased to mention there were a long line of CBD companies waiting to be prosecuted. He seemed delighted to speak of it. This he suggested was a clear signal that selling CBD flower was illegal. He didn’t mention it could be a signal the German law was wrong.

The EU courts say CBD products are legal, they support it. It would be interesting to see if the prosecutor would be willing to send a CBD flower case to the EU courts for judgement? This request has been frequently made, but consistently refused.

Leipzig: The High Court of Germany and its Contribution

The German legal system appears to be sinking under the weight of the CBD issue. Unable to properly integrate EU law into German domestic law, the judicial apparatus is quietly submerging, weighted down by confusion and a general lack of leadership. In the Bunte Blüte CBD trial, the Berlin Court showed legal skill and courage with judgements that were sound and accurate and celebrated both in Germany and more widely across Europe. These judgements were immediately overturned by the higher court of Leipzig.

The strange Leipzig decision will be remembered for many reasons, legal precision not being one. To suggest the Kannavape judgement applied only to CBD oil and was not intended to apply to all CBD products, as the Leipzig court said, is a surprising interpretation of EU case law. And incorrect. The Kannavape decision can be applied to all European CBD products, indeed, it is intended to be. If this hadn’t been intended the EU court itself would have made this clear.

The decision from Leipzig, Germanys highest court, is at odds with EU case law and principles of EU free trade. It’s as though Germany is refusing the responsibilities EU membership requires of all member states. The unfortunate judgement of the Leipzig court left a question mark over the German legal system and its ability to apply the law to the facts. Chaotic and confused management of the hemp laws and CBD situation in Germany, highlights flaws in the German legal system.

EU Courts Must Review CBD Cases From Germany

To put an end to the increasingly vocal criticism of CBD prosecutions in Germany, the German courts must send a CBD flower case to the EU courts for review. If German courts have understood the law correctly, and if there is nothing to hide, an EU review of Germany’s CBD decisions, should be welcome. But it’s not. German courts refuse to involve the EU – perhaps the EU courts pose a threat?

Though appearing confident on the surface, it’s very possible the German prosecutors and judges have got it wrong, inside of the German legal bubble this will not be exposed, but these mistakes, if any have been made, will be exposed quickly by the EU courts.

Have the German Courts Got it Wrong or Right?

Many scholars and critics have suggested the German judiciary has clearly failed to understand the EU hemp laws, If this is so, there would be no congratulations and no pat on the back, but a direct confrontation between the German and European courts, which, Germany can’t win; at least with regard to this hemp issue. Why can’t Germany win? Because EU law comes first and Germany must obey it. This is what Germany agreed to when it became a member of the EU.

The probability of the German courts being wrong, is great. If the EU courts show that Germany has incorrectly prosecuted CBD companies, claims for damages and restitution will be made by the thousands of people who feel they have been wrongly prosecuted in Germany for simple CBD offences. The state will be required to pay for the damage which has been done. Dodging the EU law has consequences. There seems little haste or urgency on the part of prosecutors to clarify the legal discrepancy. They have had many years in which to ask the EU courts for guidance and a clarification of the law. But haven’t.

Incorrect application of EU law by German prosecutors, doesn’t affect the prosecutors, it affects only the citizens. German citizens are denied access to and protection by European law; which means their businesses are closed, livelihoods removed, moneys taken and fines imposed, authorised by German prosecutors. Can these citizens still pay their rent and medical insurance, and if they can’t, does it matter? The prosecutors continue to dine at expensive restaurants, there is no hardship for them.

Proportionality

The hemp/CBD law is disputed and debated, it’s unsure what the law means. Some legal professionals say the law means one thing, others say it means something different. Without asking the EU to clarify the law, prosecutors persist in authorising violent police raids on small CBD businesses; heavy handed tactics using hotly disputed laws.

These raids are carried out, not by a few chubby, smiling, well meaning local police, but ‘kommando style’ units with miliatary grade precision. The CBD businesses being raided by the police, are legal under EU law, it’s hard to understand how this has been allowed to continue. These violent and hostile police encounters have traumatised thousands of people across Germany. Armed police, trained to enter hostile zones, subdue opposition and exit – suited to hostage negotiation and armed robbery – now being used against people selling CBD?

Police, screaming, shouting and pointing weapons – not at hardened crimimals – at ordinary people who have no idea what’s going on, people sitting drinking an afternoon coffee and preparing the evening meal. The EU says CBD is legal, so people wonder why are police kicking in the door of their home, handcuffing them, pushing their heads into the walls and sticking a gun in their face. Not only are the people being raided confused, some police themselves are confused about why they are raiding a CBD business and question their supervising officers if what they are doing is right. It’s a fair question, if CBD is legal under EU law why are police raiding people who have CBD?

It’s also fair to ask if authorising heavily armed police raids is proportionate to the offence which has been alleged, that of selling legal CBD flower with little or no available THC? Or, is sending in armed police state overreach, an abuse of state force? Would an independent review agree that proportionate force has been used or would an independent review conclude that abusive force has been used? It’s hard to see how sending in tactical units of crime busting police squads is acceptable when EU case law permits the free movement of and sale of CBD in EU counties.

Prosecutors are aware that many academics and legal experts, including specialist narcotics lawyers, claim the law is wrong. The outcry against hemp prosecutions has grown larger over time, not smaller, a clear sign that a sense of injustice has increased as Germany’s hemp prosecutions, which ignore EU law, continue.

Common Sense Needs To Be Used

Single minded determination can be an asset, but not always. When mounting evidence suggests something is grossly out of order, something is clearly wrong, then perhaps single minded determination needs to be replaced with thoroughness, and abberations in the law investigated. Prosecutors enforcing their rights while ignoring their obligations, is a topsy turvy view of the legal process, and this is what we see happening across Germany.

Prosecutors Must Know the Law

Prosecutors must be 100% certain of the law, not 60% or 70% or 95%. They must know the law to a 100% standard in order to properly enforce the law: and this isn’t happening. With so many legal professionals questioning hemp prosecutions and insisting basic errors are being made, this lets us know something is wrong. And we can see a strange thing occurring, many thousands of people across Germany, without previous criminal records, are suddenly being convicted of narcotics offences? This must wake prosecutors up to the fact something unusual is happening .

If valid critisisms have been made of prosecutors behaviour and the laws themselves, then prosecutors are duty bound to address these criticisms, this is their job. To persist in authorising violent arrests, putting ordinary citizens in danger, using laws that may not be legal, does not bring credit to the legal profession. It is time the EU courts were asked for advice but this isn’t happening in Germany.

France Was Quick To Act

Faced with the same situation as German prosecutors, the French halted all arrests and CBD prosecutions and asked the EU for guidance. The French prosecutors, like the German prosecutors, believed CBD was a narcotic and therefore illegal. It turned out French prosecutors were wrong, they had misunderstood the law and the EU corrected them. How German prosecutors have ignored this is concerning.

Although the argument is complex, the central issue revolves around this: German courts say hemp flower (< 0.3% THC) is a narcotic and the EU court says – no it isn’t. It’s difficult to see that the European courts will shift their view, as their opinion has been firmly stated in court judgements, Kannavape and Hammarsten. It’s quite clear from Kannavape, that CBD products legally produced in one EU member country are required to be freely sold in other EU member countries. The Leipzig court continues to ignore this.

Germany has isolated herself by claiming CBD flower is a narcotic, dictating to the EU what the law should be. And there is an added consideration now CBD flower is widely sold in most EU countries. If CBD is a narcotic how is this possible when all narcotics are forbidden in the EU.

If Germany refers a CBD flower case to EU courts the outcome is clear and Germany will be in breach of EU law. German courts will then need to consider the appropriate steps required to repair the damage which has been done by the many CBD prosecutions. How much will be paid in damages and to whom. Complicated, expensive and an admission of professional miscalculation. This perhaps explains why Germany continues to avoid the EU courts.

Mixing the New Laws With Old Laws

The hemp laws and CBD issue has exposed a weakness in the German legal system, and this is good, it allows the weakness to be fixed. The system workers, for example judges and prosecutors, seem uncomfortable outside their area of expertise, unable to adapt the new incoming EU laws into their existing legal knowledge. They can’t make the new EU laws and the old German laws work happily together. And this is a problem, as all EU countries are required to import new EU law into their existing domestic legal framework.

Mutual Recognition

A CBD product which is legal in France, and Poland, Italy, Spain and Greece, the UK and Holland, becomes a narcotic when entering Germany. EU case law has established that goods legaly produced and sold in one EU country must be made available for sale in another EU country. This isn’t optional, it’s a requirement under EU law Article 34 & 35 TFEU. Failure to allow this, directly or indirectly, is a trade restriction and forbidden. German prosecutors are aware of this requirement.

It’s worth imagining what would happen if EU countries stopped selling products from other EU countries, as Germany has done with CBD products, or countries decide themselves what they will sell or won’t sell. What would be the final outcome for the EU if this began to happen?

Dassonville

Two points 5 and 7, from the judgement of ‘Dassonville’ a European Court of Justice (“ECJ”)case, are set out below. The Dassonville case examines Article 34 of the Treaty on The Functioning of the European Union (“TFEU”) in a trade dispute involving alcohol. The judgement explains that one member state of the EU must not restrict the sale of products from another member state of the EU. To do so violates Article 34 & 35 TFEU.

Does Germany’s refusal to sell CBD products, legally manufactured in and sold in other EU member states, breach article 34 of the TFEU. The points below, 5 and 7 from Dassonville, are a useful guide in making this decision.

5. All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions.

7. Even without having to examine whether or not such measures are covered by Article 36, they must not, in any case, by virtue of the principle expressed in the second sentence of that Article, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

Procureur du Roi v Benoît and Gustave Dassonville (1974) Case 8/74  ECJ

Applying New Laws to New Situations

All Governments, including the German government, asks employees to think for themselves on occasion and the bulk of legal officials have shown themselves unable or perhaps unwilling to do so. Moving away from the group in Germany can bring its own set of complications, perhaps this is what we are seeing. No one wanting to be held accountable for applying new and untested laws to new and untested situations. But government workers, when they do not perform their duties as required, may protect themselves, but in doing so put others at risk.

Lets look at how the issue of CBD products has been policed in Germany. This is also an area of some odd behaviour. When people have told German police they are going to buy CBD products, police have allowed them to do so, then arrested them for doing it. Is this unusual or good police practice?

AN EXCLUSION MUST BE SYSTEMATIC AND CONSISTENT

Most European countries have a flourishing retail trade in CBD products including CBD flowers, while Germany views CBD flowers as narcotics. If something is banned, for example CBD flower, there must be consistency and regularity in the banning. What does consistency and regularity mean? An amusing story from Berlin illustrates.

For selling CBD flower a Berlin trader had his apartment raided and the doors kicked in by 10 – 15 armed police in a ‘kommando style’ Breaking Bad type raid. They pointed guns, pinned him down and handcuffed him.  He was photographed, fingerprinted and released from the police station later that night.

To the persons surprise, he noticed, when released, that the shop next to the police station sold a huge selection of CBD flower also – in plain sight of all customers. And the police allow this. The police go into the shop, buy their cigarettes, and in front of them – shiny packets of CBD flower on the counter for sale. This discriminatory policing shouldn’t be happening, but it is.

PARKING OUTSIDE A SHOP SELLING CBD TO RAID SOMEONE ELSE FOR SELLING CBD

This person raided by police lived on a busy Berlin street. For this raid police used large vans which they parked outside another CBD shop. In the front window of the shop, CBD flower was for sale, and great big signs advertised CBD flower for sale. Twenty or twenty five police parked two large vans outside a CBD shop selling CBD flower, then ran 200 meters up the street to raid a persons apartment for selling CBD flower – but they didn’t raid the shop selling CBD flower. Police prosecutors say CBD flower is a narcotic, shouldn’t narcotics laws apply to everyone ?

These small examples show what it means to inconsistently or randomly apply the law. If one person cannot sell a product and another person is being allowed to sell it, then the law is being inconsistently applied, creating confusion not clarity. If one person can’t sell a product, no person should be allowed to. EU law is clear about this.

There are thousands of shops across Berlin selling CBD flower and hash. Spatis, hairdressers, petrol stations and kiosks. Bio supermarkets, Denns and LPG selling a range of CBD chocolates and CBD cookies, Lidl supermarket were also selling CBD cookies and cakes, filled with chocolate hempy goodness. Police know this and allow it. This pattern of behaviour, wide availability of CBD products across Berlin, implies CBD products are in fact legal and police will confirm this when asked.

BERLIN POLICE SAY CBD FLOWER IS LEGAL

When asked, Berlin police say quite openly, CBD flower is legal in Berlín. People assume the police can be trusted to know the law. A Berlin person, having been assured by Berlin police CBD flower is legal, and believing CBD flower to be legal, travels to Switzerland by car to buy CBD. The German border control checks the car in Germany and asks the person why he’s visiting Switzerland. The person quite simply answers “…I will buy CBD flower and oil in Switzerland to bring to Germany, I have a small CBD shop in Berlin”.

Police check his appointments to confirm he is meeting with Swiss CBD wholesalers and allow him to cross the border into Switzerland. The German police are intending to arrest him the next day on his return from Switzerland.

The same policeman who allowed him to cross to Switzerland to buy CBD, arrested him for travelling back with the CBD the following day. CBD is now suddenly a scandal according to German border police in Lörrach. The German police, who the previous day had allowed the person to pass into Switzerland, knowing he was to buy CBD products, now gather around to explain how CBD products are illegal and forbidden in Germany.

He is detained unexpectedly for five or more hours, no toilet available and a small dog left in the cold car outside during mid-winter.   This is the standard of care deemed acceptable by Lörrach border police. Nine months later, 15 armed police kick in the persons doors because of this incident.

LÖRRACH POLICE SAY CBD IS ILLEGAL

It would seem more honorable if German border police in Lörrach had mentioned that CBD is illegal in Germany rather than permitting the person to enter Switzerland to buy CBD. A person tells German border police his sole purpose to enter Switzerland is to buy CBD products to bring back to Germany, the German police laugh and give him permission to enter Switzerland to buy CBD.  Then the same German police arrest him for CBD.

If Police know a person is about to do an act which is illegal, and are aware the person doesn’t know the act is illegal, and the police deliberately choose not to correct the persons misunderstanding, the police have impliedly given consent and permission for this crime to happen. If police help a crime to occur or their behaviour ensures a crime will happen they are becoming enablers and participants in the crime. Is this legal?

IF YOU CAN’T CATCH A CRIMINAL – CREATE ONE

Nine months after the unusual arrest in Lörrach, 15 kommando style police, weapons raised, burst into the persons home, shouting, screaming – the full theatre. State aggression in Germany now looking very much like a scene from the Netflix series ‘Breaking Bad’.

But unlike Netflix, here, there were no Colombian drug lords, no cartel meth labs, no tequila drinking drug runners, and no AK47s, no 40 kilos of meth amphetamine, simply THC free hemp flower, an old man and a dog. All products made from legal industrial hemp and allowed by EU law.

If the hemp situation is a narcotics violation and serious enough to authorise a raid using 20- 25 specially trained kommando police, to kick in doors with weapons drawn, the situation must be urgent. If the situation is urgent, why did the prosecutor wait 9 months to authorise the raid on the persons house? Nine months is not an insignificant amount of time, it is time enough for a woman to become pregnant and give birth to a child.

The German legal system is full of confused and mixed messages, this is the one feature that truly remains constant throughout Germanys ‘war on hemp’. Is it possible the police prosecutor waited nine months, in the hope the tiny little CBD ‘hobby’ business, became a bigger CBD business. A small fish becomes a bigger fish.

No Public Harm Identified with CBD Products

In reality, the whole CBD flower, hemp situation, is not a priority for the police prosecutors. No public harm has been identified, prosecutors know this. The prosecutor waited until there was some spare time, no crimes to solve and nothing to do, and then sent in the shock troops. Perhaps it was done to give the police some practice, keep them trained using the public to practice on. Or, just waited for the business to get bigger so there was something worth raiding.

Like a nuclear bomb being used to get rid of a nest of mice, can Germany’s misguided war on hemp, be seen as an abuse of process and a refusal to accept European law over domestic German law? Hemp is a THC low product which cannot be used to make narcotics according to the European Commission.

Using 20 armed police, more suited to hostage negotiation or armed robbery containment, to raid a small CBD business which is permitted under the EU law. Is this an acceptable and proportionate use of force?

Perhaps the prosecuter just didn’t do his homework, and if not why not, isn’t it his job to do his homework? What does a raid like this cost taxpayers and how can it be justified, when a simple knock on the door by two police, would be done in most civilised countries.

Perhaps the money used for this kommando styled police raid, the many many thousands of Euros it cost taxpayers, can be spent more wisely to protect Germany’s youth from real narcotics and harmful drugs? not THC free cannabis. According to EU figures, Germany is now consuming 14.5% of the global fentnyl supply, which is alarming. And while this fentnyl problem consumes Germany’s youth, prosecutors direct large sums of money and police time, to stop CBD flower, which has no proven harm to the public.

Fentanyl is 100 times more potent than morphine and 50 times stronger than heroin, and its use is not just an American issue: while the USA accounted for 19.3 % of global fentanyl consumption in 2021, Germany, Spain and Italy were close behind, with 14.5 %, 11.8 % and 6.3 % respectively. 

Question for written answer  E-003085/2023 to the Commission Rule 138 Isabella Adinolfi (PPE) https://www.europarl.europa.eu/doceo/document/E-9-2023-003085_EN.html

State Officials Need Independant Third Party Monitoring

Prosecutors know if a complaint is made against them, the police themselves review the complaint not an independently appointed, independently paid, third party. This is pretty cosy and, research suggests, makes prosecutors less likely to be made accountable for rash decisions. If there is a feeling of no or lessened accountability, does this give prosecutors an invitation to look for and exploit loop holes in the law? The potential for them to do this, exists of course. Is this what’s happened in the hemp industry and the chaotic prosecutions we’ve witnessed the last ten years.

Perhaps this is one reason the many hemp businesses, who feel unjustly treated by prosecutors in Germanys ‘war on hemp’, don’t complain about how they were treated. They know the outcome of an enquiry and then they run the risk of being further targeted by the state. With this in mind it’s better to say nothing.

If the state doesn’t supply a mechanism which holds all state officials, including police prosecutors, to strict and objective accountability – this invites over-reach by officials.

Of course state officials are cosier without needing to justify themselves to an independently paid for and appointed ‘watchdog’ or task force. But states primarily exist to make the people and citizens feel safe and cosy, not state officials. Certainly in China, we have the feeling governments continue with or without citizens being prioritised. Democracies are run differently and it is this which makes them special. And safe.

Until the EU courts are involved Germany will remain in the CBD grey zone.

1. The police have been said to behave professionally and responsibly at all times. And their safety is paramount, this is understood. The question is not police behaviour, but if it is reasonable for prosecutors to use such draconian measures in these situations.