Author Sam Saarsteiner (Clark Hill)
In this article, we continue our journey by reviewing the history of cannabis regulation and proceed to explore the current state of development of the legal cannabis market in Europe, canvassing its decriminalization and regulation as a culmination of a global pattern over the last 20 years.
What Can I Do and Where?
It is important while tackling the objective of this article to draw a distinction between legal medicinal use and legal recreational use. This article shall not cross into industrial and other uses. While showing its age, the 1961 Single Convention on Narcotic Drugs (and others that followed) remains an international basis for cannabis is considered (contrary to modern medical evidence) to be an addictive drug with a serious risk of abuse.
The pattern of legislative change has seen two distinct patterns emerge globally since the year 2000: legalization for medicinal use and decriminalization for recreational use. The position across European countries is as follows:
Isn’t the EU all about Harmonized Laws?
Yes and no. As was seen in the Kanavape case (Case C-663/18, decision delivered 19th November 2020), there are limits on the free movement of goods which would otherwise set at naught local health-based regulations around the use of cannabis. The bombshell decision opened the European market to hemp-derived CBD. In short, the highest court in the EU pronounced that CBD (when derived from the Cannabis sativa plant in its entirety – not just from its fibre and seeds) does not contain a psychoactive ingredient and is not captured by the 1961 Single Convention definition of “drug”. The limitation in the judgment is that there may be in theory national legislation if appropriate to the protection of health and life of humans and where it does not exceed that purpose.
Beyond such hemp-based CBD products, the EU’s centralized competencies for legislative action do not extend to narcotics. Rather, these are left to each member state to legislate, resulting in a patchwork of laws as is demonstrated by the above table.
What about the Medicinal Cannabis Industry in Europe?
Parking for the moment the fact that “medicinal cannabis” is not a commonly defined term across Europe, the market is significant and rapidly growing as the dominos tend to fall quicker in the field of medicinal cannabis compared to recreational use. Its value in 2021 was approximately €380m. The real story however is the estimated growth of the market. For Germany alone, perhaps one of the more advanced medicinal cannabis markets in Europe, the market value is poised to hit over €7bn by 2027. There will be 340,000 medicinal cannabis users in Europe in 2022 alone. The overall market is estimated by some to see a growth of over 500% over the next three years. This is being driven by a mixture of legislation becoming more mature and a resultant diminution in stigma as medical evidence continues to support appropriate prescribed medicinal applications.
What is Ireland’s Role?
From a legislative perspective, Ireland has not taken any steps towards decriminalization or legalization for personal use. The country’s measures to facilitate medically prescribed use of cannabis have been slow but successful, with prescribed cannabis now available within Ireland (subject to a limited number of government-issued licenses to specific products/suppliers). The market is in its extreme infancy for now but based on international patterns there is likely to be growth. Ireland is more likely to be of interest to international canna-businesses or those looking to expand to that scale and into Europe out of the U.S. or Canada. Ireland’s position as a gateway to Europe, being the sole remaining English-speaking common law country with familiar laws, stable government, and an excellent range of insolvency options including examinership (like Chapter 11 bankruptcy) positions Ireland as an objectively ideal corporate base.
Final part three article next week.
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