Federal Ministry of Food and Agriculture issues regulation according to § 2 KCanG on research projects on cannabis- is Sanity Group right?

In a press release dated 11 December 2024, the Federal Ministry of Food and Agriculture (BMEL) announced that it had issued a regulation on the authorisation, implementation and monitoring of research projects on consumer cannabis.

The final draft is not available to us as of 12 December 2024 and cannot be found on the internet either. It can be assumed that it is identical to the draft ordinance of 3 April 2024.

§ 1 Competent authority

The Federal Agency for Agriculture and Food is responsible for granting the licence according to § 2 paragraph 4 sentence 1 as well as for monitoring and implementing the provisions of the Consumption Cannabis Act mentioned in § 2 paragraph 4 in sentences 3 to 5.

§ 2 Entry into force

This ordinance shall enter into force on the day following its promulgation.

The content of the draft is the same as the press release. The Federal Agency for Agriculture and Food (BLE) is to be responsible for the granting, implementation and monitoring of research projects on recreational cannabis (!). The Federal Institute for Drugs and Medical Devices (BfArM) will continue to be responsible for research projects on medical cannabis.

In fact, the ordinance does not change anything materially; only the responsibility has been transferred from the Federal Institute for Drugs and Medical Devices (BfArM) to the Federal Agency for Agriculture and Food (BLE).

The Sanity Group's press release is of interest in relation to research projects on recreational cannabis. Available at: .

The Sanity Group announces that Clara Herrmann (Alliance 90/The Greens), district mayor of Friedrichshain-Kreuzberg, together with Hannes Rehfeldt, CDU district councillor for social affairs and health in Neuk?lln, have signed a declaration of intent to implement a model project with the Sanity Group.

Although the declaration of intent is not legally binding, it is, from our perspective, to be viewed critically. It smacks of preferential treatment of the Sanity Group for the implementation of a model project in the respective districts. This would run counter to the principle of neutrality under public procurement law.

The question of whether an award procedure must be carried out in accordance with the VgV cannot be answered without further ado due to the unknown content of the declaration of intent and the lack of legal regulations, but it can be left open, since the districts can at least be said to have a regional dominant market position for the ‘implementation of model projects’. This means that, even without an award procedure, the principles of equal treatment must be observed when selecting the companies. These principles arise from the Act against Restraints of Competition (GWB). According to § 19 para. 1 GWB, the abuse of a market-dominating position by a company is prohibited. Claims for damages by competitors are possible.

Section 19 (2) GWB contains examples of when the abuse of a dominant market position is to be assumed in particular. Section 19 (2) no. 1 GWB may be relevant here. According to this, an abuse is deemed to have occurred in particular if a dominant company, as a supplier or customer of a particular type of goods or commercial services, directly or indirectly unfairly hinders another company or, without an objectively justified reason, directly or indirectly treats it differently than similar companies.

‘According to the case law of the Federal Court of Justice, there is an infringement of the prohibition of abuse of a dominant market position in the form of unfair obstruction and discrimination under Section 19 (2) no. 1 of the German Competition Act (GWB) (formerly Section 20 (1) 1 GWB) if, in the letting of rooms suitable for sign makers, which are only available in a limited number and are located in the immediate vicinity of a vehicle registration office, the selection among the potential interested parties is not carried out under appropriate and fair conditions. The landlord of such areas has an outstanding market position – resulting from the signmaker's location advantage – since, from the point of view of signmakers who want to meet the needs of visitors to the vehicle registration office for official vehicle registration plates, shop premises located in the same building as the registration office and, even more so, shop premises adjacent to the registration office within the building, are sign makers who want to meet the demand for official number plates from visitors to the vehicle registration office are preferable to all other shop premises outside the building, which are more difficult for potential customers to reach. This dominant market position of the landlord – whether public or private – means, first, that it must determine current demand by means of a call for tenders and, second, that it may not let such commercial space for a fixed term of more than five years in order to avoid blocking market entry for current and potential competitors of the tenant ' (see Federal Court of Justice, judgment of 8 April 2003 - KZR 39/99, GRUR 2003, 809, 810 [juris marginal no. 11 et seq.] with further evidence - Konkurrenzschutz für Schilderpr?ger).

This applies even more to public bodies, which are obliged to treat everyone equally under Article 20 (3) of the German Constitution in conjunction with Article 3 (1) of the German Constitution.

We see the unequal treatment in the fact that companies other than The Sanity Group are likely to be denied the opportunity to participate in the implementation of the model projects in the respective districts.

Due to the restrictive granting of permission for research projects by the Federal Agency for Agriculture and Food – ‘…permission in accordance with sentence 1 may only be granted in exceptional cases’ – it is to be expected that several model projects will not be approved in a certain area in order to avoid conurbations. It would also be absurd to allow a concentration of model projects in order to obtain meaningful, diversified research results that correspond to the average population.

In this context, it will not be possible for the districts to tolerate or approve several model projects in their own district. This also raises the question of whether ‘approval’ by the districts is necessary at all, in addition to the permission of the Federal Agency for Agriculture and Food. From our perspective, the legal situation here is very unclear. It is also unclear what the research objectives of the model projects should be.

Who will have access to the collected data and evaluations – whatever these may be – and who will benefit from them (including monetarily)? The framework for this (and also the necessity of a call for tenders) will only emerge from the specifications and administrative practice of the Federal Agency for Agriculture and Food.

The fact that public authorities can issue declarations of intent against this unclear legal background does not exactly inspire confidence. It is a testament to a lack of scrutiny – a common phenomenon in Berlin – of the factual and legal situation by the executive.