Assessing the Likelihood of Cannabis Clubs Being Passed Without the Consent of the Bundesrat

Since the CDU has governed in Berlin, the prime ministers of the traffic light parties in the Bundesrat have only had a wafer-thin majority – mind you, often in coalitions with the CDU. It is therefore an open question whether the Federal Council will approve the planned draft laws for the introduction of cannabis clubs and the pilot projects. Karl Lauterbach assumes that the federal government can pass the law for the first pillar without the consent of the Bundesrat. is that really the case? We asked lawyer Peter Homberg, partner at Dentons, how he assesses the chances that the first pillar will come into force without the consent of the Federal Council.

Peter Homberg on consent and objection laws:

Whether the “1. Pillar” of the legalization project can be implemented at all, and if so, in what time frame, depends largely on whether the federal law is a consent or objection law, i.e. whether the consent of the Bundesrat is a mandatory requirement for the law to come into existence is, or whether it can merely delay the legislative process. Whether the law is to be classified as a consent or objection law depends on the specific design of the draft law. There is an obligation to give consent if the Basic Law provides for one, which is always the case when federal legislation affects the federal system and the interests of the federal states in a particularly important way.

Peter Homberg explains what the catch might be:

According to the key issues paper of March 24, 2023, the federal government intends to “design the proposed regulation in such a way that the Bundesrat is not required to give its approval”. At the same time, however, the state authorities should, for example, take over the approval and monitoring of the cannabis clubs, which in principle could trigger an approval requirement under Article 85 (1) of the Basic Law. A final classification can only be made when the draft law is available. In any case, this topic could become problematic in view of a different political composition and distribution of votes in the Bundesrat. If the classification as a consent or objection law becomes a dispute between the Bundestag and Bundesrat, the Federal Constitutional Court must decide in the last instance.