GERMANY new cannabis law came into force in April

The new Cannabis Act came into force on April 1. However, in the opinion of the Federal Court of Justice, the associated liberalization does not change the previously applicable, low THC threshold for a non-minor quantity.

In a ruling, the Federal Court of Justice (BGH) determined when a "not small amount" of cannabis is to be assumed, which has an aggravating effect on penalties for violations of the Consumer Cannabis Act (KCanG): Despite the changed legal situation, the limit value of 7.5 g tetrahydrocannabinol (THC) remains, according to the BGH (ruling of 18.04.2024, Ref. 1 StR 106/2). Unlike the legislator, the BGH does not assume a "changed risk assessment" for cannabis that justifies an increase in the limit value.

The KCanG, which recently came into force, has brought the long-awaited decriminalization for consumers. Within certain limits: If, for example, permitted possession quantities are exceeded, there is a threat of criminal sanctions. For example, according to § 34 para. 1 no. 1c KCanG, anyone who possesses more than three permitted cannabis plants is liable to prosecution. A particularly serious, aggravated case exists, among other things, if the act relates to a not insignificant quantity, § 34 para. 3 sentence 2 no. 4 KCanG.
The KCanG, which recently came into force, has brought the long-awaited decriminalization for consumers.
Within certain limits: If, for example, permitted possession quantities are exceeded, there is a risk of criminal sanctions.For example, according to § 34 para. 1 no. 1c KCanG, anyone who possesses more than three permitted cannabis plants is liable to prosecution. A particularly serious, aggravated case exists, among other things, if the act relates to a quantity that is not small, § 34 para. 3 sentence 2 no. 4 KCanG.

The 1st Criminal Senate of the BGH has now determined when this is to be assumed:If the amount of cannabis contains at least 7.5 g of the intoxicating active ingredient THC, the standard example is fulfilled.This means that the limit value, which was already used as the basis for Section 29a para. 1 of the German Narcotics Act (BtMG), remains in place for the BGH even under the new legal situation.
Almost 2,000 plants on 690 square meters
This decision was prompted by the appeals of two defendants who had been sentenced to four years and six months imprisonment each by the Ulm Regional Court (LG) for narcotics offenses under the previous legal situation.

The two lived and worked in a two-storey indoor marijuana plantation in which over 1,763 cannabis plants were grown.For a monthly fee of 1,000 euros and free board and lodging, they were responsible for watering and fertilizing as well as operating ventilation systems and heat lamps.The plants seized during a search last year contained 160 kg of marijuana and over 22,000 g of THC.
Due to the change in the legal situation, which now provides for a lower sentence, the BGH amended the sentence.While Section 29a (1) BtMG, which was correctly applied by Ulm District Court when the judgment was handed down, provides for a penalty range of one year to fifteen years, Section 34 (3) sentence 1 KCanG provides for a prison sentence of three months to five years.
BGH decides against the legislator's assessment
The judges based their decision to retain the limit value with regard to the non-low quantity on the finding that an average of 15 mg THC is required to achieve a state of intoxication by smoking a joint. This assumption, combined with the specific mode of action and dangerousness of THC, which had not changed even after the change in the law, resulted in the limit value of 7.5 g - exactly the same as 30 years ago.

According to the judges in Karlsruhe, the possession quantity of 25 to 50 g of cannabis per person, which has been permitted since April 1 in accordance with Section 3 of the KCanG, does not allow any conclusions to be drawn about the dangerousness of the active substance.
Decriminalization did not lead to a change in the risk assessment.
The BGH thus contradicts the legislator's assessment.In the explanatory memorandum to the KCanG (BT-Ds. 20/8704, 130), the legislator had referred to the fact that the limit value "must be significantly higher in future" than in the past in light of the legalized quantities.

There were irritated reactions in the cannabis community to the BGH's decision on Monday. In particular, it seems unclear how the strict limit of 7.5 g THC can be reconciled with the permitted possession of 50 g of home-grown cannabis.

lmb/hs/LTO editorial team