Cannabis for personal use is no longer treated as a “classic” narcotic under German law – but that does not mean it is harmless from a criminal law perspective. The new Cannabis Use Act (Konsumcannabisgesetz, KCanG) still creates a dense web of offences, and recent case law by the Federal Court of Justice (BGH), higher regional courts and the Bavarian Supreme Court (BayObLG) shows that criminal investigations, seizures and prison sentences remain very real risks for consumers, home growers and those involved in the commercial market.
What is actually allowed – and where criminal liability starts
Since 1 April 2024, adults in Germany may possess up to 50 grams of cannabis at their residence or place of habitual abode and up to 25 grams in public, and they may grow up to three cannabis plants for personal use. However, this “freedom” is strictly limited: as soon as these thresholds are exceeded, or the handling of cannabis is no longer covered by genuine personal consumption (for example, by sharing, trading or commercial activity), the conduct quickly becomes criminal under § 34 KCanG.
In order to interpret the central terms, the courts largely rely on long‑standing case law from the German Narcotics Act (BtMG). “Possession” is understood as actual control over the substance combined with the will to retain such control; “cultivation” covers the entire process of growing plants from planting through watering, fertilising and lighting; “production” begins with harvesting; “dealing” (Handeltreiben) covers any self‑interested activity aimed at generating turnover; and “import” and “export” follow the familiar territorial approach. For clients, the key point is that the new cannabis regime is not a legal vacuum but an adapted continuation of traditional German drug criminal law.
Possession: thresholds, residence issues and joint control
Possession of cannabis is criminal under § 34 para. 1 no. 1 KCanG only if the statutory free quantities are exceeded – but those thresholds are differentiated: at the residence or habitual abode more than 60 grams, at other locations more than 30 grams. Recent decisions show how strictly, and sometimes controversially, courts are drawing the lines in practice.
One important line of cases concerns possession in prison cells. Some courts, such as the Higher Regional Court of Schleswig and the Regional Court of Stralsund, have refused to treat a prison cell as a “residence” or “habitual abode”, with the consequence that only the 30‑gram threshold applies and criminal liability sets in earlier. Others – including the Berlin Court of Appeal and the Regional Court of Bonn – have equated a long‑term cell with a residence, so that up to 50 grams for personal use could remain within the administrative but not criminal sphere. The law is not yet fully settled, which creates both risk and argumentation room for defence in detention‑related cases.
The Federal Court of Justice has also decided that cannabis stocks stored at different residences and at the habitual abode must be added together when assessing the free quantity. In other words, the thresholds are person‑related, not place‑related; spreading one’s stash across several flats does not reduce criminal exposure. This is fully in line with older BtMG case law treating possession for personal use at different locations as one unified offence.
When several people share a household, courts have started to apply the doctrine of joint possession. The Regional Court of Meiningen, for example, assumed joint possession where two people jointly cultivated five plants in an openly accessible grow tent in their shared flat; the BGH has confirmed that the BtMG rules on joint possession continue to apply under the KCanG. Mere awareness of cannabis in a flat and agreement with a roommate’s storage is, however, not enough – there must be an actual power of disposal and a will to co‑control.
A particularly sensitive issue is the confiscation of cannabis and related items. The Grand Criminal Senate of the BGH has clarified that where free‑quantity thresholds are exceeded, the entire quantity is in principle subject to confiscation under § 37 KCanG and § 74 para. 2 StGB; the courts are not required to carve out a “non‑confiscable” personal‑use portion. That said, judges may refrain from confiscation in whole or in part on grounds of proportionality under § 74f StGB, which opens an important defence avenue when substantial values are at stake.
Acquisition, the black market and money laundering
Under the KCanG, acquiring or receiving cannabis is generally prohibited in regulatory law, but criminalised only when certain quantitative thresholds are crossed: more than 25 grams on a single day or more than 50 grams within a calendar month. The legislative intent – and now case law – make clear that these limits apply even when cannabis is obtained on the black market: staying within the statutory daily and monthly limits is not a crime, even if the seller is illegal.
This created an immediate tension with Germany’s very broad “all‑crimes” money laundering offence (§ 261 StGB). Some commentators argued that paying a dealer with “clean” money to obtain cannabis – even in amounts that are not criminal under the KCanG – could constitute money laundering, because the seller’s proceeds are likely to stem from criminal activity. The Higher Regional Court of Hamburg and, later, the Higher Regional Court of Celle rejected this expansive reading and held that § 261 StGB must be teleologically reduced: if the legislature deliberately de‑criminalises consumer‑level acquisitions under the KCanG, these transactions cannot simultaneously trigger money laundering liability. The BGH has not yet issued a fully reasoned decision on this specific point, but several of its criminal senates have proceeded in their decisions on the assumption that acquisitions within the KCanG limits remain “clean” for criminal law purposes.
For foreign clients, especially those used to more prohibitionist systems, this interaction is important: buying cannabis for one’s own use within the KCanG limits, even from an illegal source, is not supposed to be re‑criminalised via the back door of money laundering – but the law in this area is highly technical and still developing.
Dealing, seedlings and the notion of “large quantity”
In the area of dealing (Handeltreiben), the new cannabis law is far less liberal than one might expect. The BGH has unequivocally confirmed that the well‑known BtMG threshold for a “large quantity” (nicht geringe Menge) of cannabis products – 7.5 grams of THC – continues to apply as a benchmark for the aggravating example of a “particularly serious case” in § 34 para. 3 sentence 2 no. 4 KCanG. This is so despite the government’s legislative materials suggesting that, in light of legalised personal quantities, the threshold should be significantly higher. Several lower courts that tried to raise the limit (for example by linking it to ten times the legal personal quantity) have been corrected on appeal.
A particularly striking development concerns the question when dealing is “completed” in the context of cannabis plantations. Under the BtMG, the prevailing view was that the mere acquisition and possession of young plants intended for later harvest and sale was still preparatory; only after planting them into a prepared grow operation would dealing be considered attempted or completed. The 3rd Criminal Senate of the BGH now intends to depart from that position for the KCanG: in its view, taking over cannabis seedlings with the intention of raising them in an already prepared grow facility and later selling the harvested marijuana at a profit constitutes completed dealing in cannabis; the acquisition of the seedlings is already part of the actual turnover transaction. The Senate has formally asked the 5th and 6th Senates, and by extension the full court, whether they maintain any contrary case law; the final harmonised line remains to be seen.
This is more than an academic dispute. If the 3rd Senate’s approach prevails, classic “set‑up” phases for grow operations – when a suspect has only plants and equipment but no harvest yet – would move much more quickly into the range of completed dealing with cannabis, including the aggravated regimes for large quantities or organised crime. Foreign investors or operators considering involvement in cultivation structures should be aware that German criminal law would view the entire production chain as a unitary dealing operation, and that even early acts can carry full criminal liability.
In terms of concurrence (Konkurrenzen), the BGH has also clarified that the import of cannabis intended for resale is usually absorbed by dealing as part of a so‑called “valuation unit”: since the KCanG, unlike the BtMG, no longer provides a separate, higher minimum sentence for import of a large quantity, there is generally no need to convict separately for import alongside dealing. Only where part of the imported shipment is passed on at cost price, without self‑interest, can import and dealing stand in true concurrence, with dealing only covering the self‑interested portion of the transaction.
Production, cultivation and teleological reductions
Legislative drafting errors in the KCanG have forced the BGH to correct the statute’s literal wording by way of teleological reduction. The most prominent example is the harvesting of one’s own three legal plants: under the text of the law, harvesting qualifies as “production” (Herstellen) and is in itself criminal without free‑quantity limits, even though growing three plants and possessing up to 50 grams of the harvested cannabis are expressly permitted. Faced with this blatant value contradiction, the 3rd Criminal Senate held that production must be interpreted in a restrictive way so that harvesting cannabis from the up‑to‑three permitted plants for personal use remains exempt from punishment.
With regard to cultivation itself, the courts have reaffirmed that the BtMG definitions carry over to the KCanG: cultivation comprises all horticultural or agricultural efforts to make a cannabis plant grow – watering, fertilising, lighting, planting seedlings – whereas harvesting marks the transition to production. As to concurrence between cultivation and production, the 2nd Criminal Senate has taken a more generous view than under the BtMG and now assumes a natural unit of action: when the same person grows plants and then harvests them as part of one continuous production process, cultivation and production stand in ideal concurrence (Tateinheit), not in separate real concurrence (Tatmehrheit). In practice, this allows for a more coherent assessment at sentencing, but does nothing to reduce the breadth of criminal exposure across the entire grow‑to‑harvest cycle.
“Putting into circulation” and throwing cannabis away
One of the more counter‑intuitive lines of case law concerns the handling of cannabis during a police stop. Under established BtMG jurisprudence, a person who throws away drugs in a manner that creates a real risk of third parties finding, consuming or passing them on can be guilty of “otherwise putting them into circulation” (sonstiges Inverkehrbringen); if nobody finds the drugs, the act remains an attempt. The Bavarian Supreme Court has now transferred this doctrine to § 34 para. 1 no. 10 KCanG.
In the decided case, the defendant threw away around 11 grams of marijuana while fleeing from the police; officers secured the package shortly afterwards in a house entrance. The BayObLG re‑qualified the original conviction for possession under the BtMG into an attempted “other putting into circulation” under the KCanG and remitted the case for re‑sentencing. The court explicitly held that a purposeless, “panicked” disposal is no defence if the offender at least accepts that a third party might gain control over the drugs.
This is a sobering message for many consumers: in the new legal environment, throwing away cannabis to evade a possession charge may transform a minor offence into an aggravated circulation offence, even when the quantity itself would have been within today’s free‑quantity brackets. For defence counsel, the subjective element (did the client really accept the risk of third‑party use?) and the concrete circumstances of the disposal (location, time, visibility) become central to limiting damage.
Transitional law, amnesty and old sentences
For many individuals with pre‑2024 cannabis convictions, the entry into force of the KCanG was linked to the amnesty regime in Articles 316p and 313 of the Introductory Act to the Criminal Code (EGStGB). Where a past act – for instance, possession of a small amount clearly for personal use – is no longer punishable or subject to an administrative fine under the new law, the existing custodial sentence or fine is deemed remitted by operation of law; no application is necessary, and appellate courts must take this into account ex officio under § 354a StPO and § 2 para. 3 StGB.
If the old conviction combined now‑lawful conduct (such as personal possession) with still‑criminal conduct (for example dealing or import), the amnesty regime provides for a re‑determination of the sentence. The courts of first instance are responsible for this re‑sentencing; the prison enforcement chambers are not competent. However, where conduct remains punishable under both the BtMG and the KCanG – such as dealing in large quantities – there is no basis for sentence reduction solely because the new statute provides for a lower minimum sentence; higher regional courts and the BGH have consistently rejected analogies to the amnesty provisions for such “still‑criminal” cases.
The same restrictive approach is applied in relation to early release from prison under § 57 StGB. The mere fact that the statutory penalty range for cannabis dealing has been lowered does not count as a “special circumstance” justifying earlier release; the legislator addressed old sentences expressly and exhaustively through the amnesty provisions and not via the general parole regime. For foreign inmates serving cannabis‑related sentences in Germany, this is a crucial point: the new law may in some cases eliminate sentences entirely, but where it does not, parole expectations remain governed by the ordinary criteria of risk and rehabilitation.
Investigative tools, crypto‑phones and evidentiary use
For serious drug crime, German authorities have in recent years relied heavily on data from encrypted communication services such as EncroChat, SkyECC and ANOM. The KCanG has complicated this picture because some cannabis offences, notably dealing in large quantities, are no longer catalogue offences under § 100b para. 2 StPO (which governs online searches and similar intrusive measures). Several higher regional courts initially took the position that, at least for cases where only a KCanG offence remained, data collected under the old BtMG catalogue could no longer be used, as no current catalogue offence existed at the time of evidentiary use.
Other courts, and eventually the BGH, have taken the opposite view and held that what matters is the law at the time of data collection, not at the time of trial: if the original surveillance complied with the law then in force (for example, because dealing in a large quantity of cannabis was still a § 29a BtMG offence), subsequent changes in catalogue status do not retroactively render the evidence unusable. The BGH has confirmed the fundamental admissibility of EncroChat and SkyECC data in cannabis cases, while tightening the requirements for proportionality assessments under EU law at the stage of issuing European Investigation Orders.
For clients, particularly those operating in cross‑border structures, this means that German prosecutors will likely continue to use historic crypto‑phone data in cannabis cases where the underlying conduct was originally classified as a serious BtMG offence – even if, under current law, the same conduct would fall under a milder KCanG provision that is no longer a catalogue offence.
Young cannabis plants
The decision of the Bavarian Supreme Court (BayObLG) of 2 February 2026 (206 StRR 315/25, BeckRS 2026, 685) illustrates how blurred the KCanG’s cannabis concept still is at the boundary between cuttings, seedlings and “real” cannabis plants. The court takes the statutory definitions seriously and emphasises that not every small plant automatically constitutes punishable “cannabis”; instead, the legal distinction between “propagation material” (Stecklinge) and cannabis in the narrower sense must be carefully observed, based on the plant’s development stage and characteristics. In the case at hand, the BayObLG considered it at least plausible that a layperson might misclassify very young plants as still belonging to the permitted propagation category, and therefore treated an avoidable mistake about the scope of the prohibition (Verbotsirrtum) as not excluded from the outset.
From a defence perspective, this ruling is significant in two ways. First, it forces trial courts to make concrete findings about the status of seized plants – size, rooting, planting medium, presence of flowers or buds – rather than lazily referring to “cannabis plants” in general. Second, it opens an argumentative door for good‑faith mistakes by hobby growers who genuinely try to stay within the permitted home‑grow framework but stumble over the KCanG’s poor terminology: where the normative line between Steckling and seedling is unclear even to experts, criminal liability may be mitigated or excluded if the defendant could not reasonably foresee the law’s classification. At the same time, the BayObLG ties confiscation of plants and grow equipment strictly to the statutory rules in § 37 KCanG and § 74 StGB: confiscation is not automatic, but requires a reasoned assessment as to whether and to what extent the specific plants and equipment still qualify as significant objects or means of the offence.
Bottom line for international clients
The German KCanG has not “legalised” cannabis in a simple, liberal sense. Instead, it has carved out narrow islands of decriminalised personal use within a closely structured criminal law regime that largely continues the logic of the BtMG – including concepts like “large quantity”, dealing, import, confiscation and even world‑wide applicability under § 6 no. 5 StGB for certain cannabis trafficking offences. For international clients, investors and expatriates in Germany, the crucial message is that the risk profile has changed, but not disappeared: those who move beyond strictly defined personal use – by growing more than three plants, accumulating larger stocks, supplying others, or participating in commercial structures – can very quickly find themselves confronted with serious criminal charges, asset confiscation and complex evidence based on international law enforcement co‑operation.
In this environment, early, specialised defence is essential. The new case law on free quantities, money laundering limits, large‑quantity thresholds, home‑grow definitions and investigative powers offers real opportunities to limit or avoid criminal liability – but only if these highly technical doctrines are deployed strategically from the outset of an investigation.
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