Criminal Defense

BFH ruling on international account information

In a recent ruling dated January 23, 2024 (IX R 36/21), the German Federal Fiscal Court (BFH) ruled on the constitutionality of the automatic exchange of financial account information and its compatibility with fundamental rights. This issue has far-reaching implications for taxpayers with accounts abroad.

Criminal Defense

Cannabis Act (CanG) – Legalization of cannabis in Germany

Cannabis is being legalized in Germany – at least partially: On March 27, 2024, the new German Cannabis Act was published in the Federal Law Gazette and will come into force on April 1, 2024. This marks the end of the era in which cannabis was regulated by the BtMG and in future the Consumer Cannabis Act (KCanG) will be the main law to be taken into account.

In Germany, the following approach is taken: possession of cannabis is legal up to a certain amount and only becomes a criminal offense if it is noticeably exceeded. You are allowed to possess more cannabis at home than you have in your pocket on the street.

The intention is to create a system in which non-commercial cannabis social clubs (“cultivation associations”) serve as a source of supply, although it is quite costly to set up and operate one. The safety requirements, as well as the official requirements, are very high! Probably in order to avoid criminal liability, the legislator has also made the purchase of cannabis unpunishable as long as one does not buy “too much”. Overall, this has been the case in Germany since April 1, 2024:

  • You may possess up to 25 grams of cannabis when you are out and about; at home you may have 50 grams of cannabis;
  • You can buy up to 25 grams of cannabis per day, but no more than 50 grams per month;
  • Cuttings and seeds are excluded from the definition of cannabis, so that there is considerable freedom here, but: You may possess a maximum of 3 living cannabis plants and only if you do not have cannabis at home at the same time;
  • Foreigners and tourists also benefit from these regulations! However, you should stick to the smallest permitted quantity and never buy or carry more than 25 grams. Not even in your hotel room.

Cannabis 2024 and cultivation associations (“cannabis social clubs”)

Numerous questions arise around cannabidiol and legal hemp products, which lie at the intersection of BTM criminal law and competition law. BtMG lawyer Jens Ferner previously worked for many years in unfair competition law, especially cosmetics law and food law.

Today, he advises on the distribution of products for growers’ associations and cannabis social clubs as well as the activities of companies in matters relating to the legal distribution and promotion of cannabis, cannabidiol and legal hemp products. You can find our German-language articles on the Cannabis Act 2024 here.

What is punishable under the KCanG?

A custodial sentence of up to three years or a fine shall be imposed in accordance with Section 34 on anyone who

  1. contrary to § 2 paragraph 1 number 1
    • a) possesses more than 30 grams of cannabis, in the case of flowers, leaves close to the flower or other plant material of the cannabis plant in relation to the weight after drying, in a place that is not his domicile or habitual residence,
    • possesses a total of more than 60 grams of cannabis, in the case of flowers, leaves close to the flower or other plant material of the cannabis plant, based on the weight after drying, or
    • possesses more than three living cannabis plants,
  2. contrary to § 2 paragraph 1 number 2
    • a) cultivates more than three cannabis plants at the same time or
    • b) does not cultivate cannabis plants for personal consumption,
  3. produces cannabis contrary to § 2 paragraph 1 number 3,
  4. trades in cannabis contrary to § 2 paragraph 1 number 4,
  5. imports or exports cannabis contrary to § 2 paragraph 1 number 5,
  6. carries out cannabis contrary to § 2 paragraph 1 number 6,
  7. distributes or passes on cannabis contrary to § 2 paragraph 1 number 7,
  8. supplies cannabis for direct consumption contrary to § 2 paragraph 1 number 8,
  9. administers cannabis contrary to § 2 paragraph 1 number 9,
  10. otherwise places cannabis on the market contrary to § 2 paragraph 1 number 10,
  11. obtains cannabis contrary to § 2 paragraph 1 number 11,
  12. contrary to § 2 paragraph 1 number 12
    • a) acquires or receives more than 25 grams of cannabis per day,
    • b) acquires or receives more than 50 grams of cannabis per calendar month,
  13. extracts cannabinoids contrary to § 2 paragraph 2,
  14. possesses, cultivates, manufactures, imports, exports, acquires, receives, dispenses or transfers cannabis for scientific purposes, extracts cannabinoids from the cannabis plant or trades in cannabis for scientific purposes without authorization pursuant to Section 2 (4) sentence 1,
  15. cultivates cannabis without a permit pursuant to Section 11 (1),
  16. cultivates cannabis contrary to § 17 paragraph 1 sentence 1.

Graduated system in the KCanG

For many, it will be easiest to orientate themselves towards the limits of the criminal offense. In fact, however, there is a permitted range, with fines being imposed for minor transgressions and criminal offenses only for significant transgressions. The following possession is permitted under §3:

(1) Persons who have reached the age of 18 are permitted to possess up to 25 grams of cannabis, in the case of flowers, near-flowering leaves or other plant material of the cannabis plant based on the weight after drying, for personal consumption.

(2) Persons who have reached the age of 18 shall, notwithstanding subsection (1), be permitted to possess cannabis at their place of residence or habitual abode within the scope of this Act as follows:

  1. up to 50 grams of cannabis, in the case of flowers, near-flowering leaves or other plant material of the cannabis plant in relation to the weight after drying, and
  2. up to three live cannabis plants.

In cases of lawful possession of cannabis in accordance with sentence 1 number 1 and paragraph 1, the total quantity of cannabis possessed may not exceed 50 grams of cannabis, in the case of flowers, leaves close to the flower or other plant material of the cannabis plant in relation to the weight after drying.

So you can have up to 25 grams “in your pocket”, but it is only a criminal offense if you have 30 grams or more.

Where in Germany can you buy cannabis?

The legislator has permitted purchase purely on the basis of quantity, not source. As long as the above limits are adhered to, buying from a dealer is no longer punishable! This is different for the seller, the dealer acting illegally is always liable to prosecution.

In the medium term, however, the intention is to acquire them via so-called growers’ associations.

How does this affect existing penalties?

Anyone convicted of an offense that is now unpunishable should be rehabilitated. The public prosecutor’s offices automatically check how to act in the case of sentences that are still being enforced. Even in the case of total sentences where cannabis only played a partial role, the total sentence can (but does not have to!) be opened and redetermined. The central standard is Art. 313 EGStGB, here it will depend on the individual case.

What about the German certificate of good conduct

Entries that are currently unpunishable can be deleted from the Federal Central Criminal Register upon application; for this purpose, an application must be submitted to the public prosecutor’s office in accordance with Section 41 (1) KCanG to the effect that the corresponding entry is “eligible for deletion”. I have already described why this choice of words is tricky. From my point of view, it is unclear whether the expiry period of the BZRG applies in these cases or is to be deleted immediately; the legislator has obviously not recognized the problem.

What about ongoing criminal proceedings?

Here, too, it depends on the individual case: Affected persons who have clearly not acted criminally according to the current state of affairs should not be fobbed off with dismissals after being charged, but should press for an acquittal (if no other offense was also charged). Incidentally, you have to weigh up what makes sense. Many offenses, especially those relating to plantations, must be reassessed, especially in the preparatory stage (where seeds or cuttings play a role), and previous case law must not be applied blindly. The legislator has created a lot of leeway here, which has to be fought for in court.

Take care when driving

The current situation regarding driving is completely unclear. From a lawyer’s point of view, we can only advise you not to smoke weed and then drive. Allow at least 3 full consumption-free days between smoking weed and driving. At least.

What are underestimated crimes?

There are criminal offenses that are easily underestimated because so much seems to be legal: even if you are allowed to purchase cannabis, you are not allowed to sell it to others or take it abroad. And under no circumstances may you supply cannabis to minors, as this is a serious criminal offense!

Tourists in Germany

The law does not differentiate between Germans and foreigners or tourists. From a local perspective, anyone who purchases up to 25 grams per day is privileged and will not be punished. But: Pay attention to the monthly maximum limit of 50 grams and never possess more than 25 grams as a tourist! Even if you are allowed to have up to 50 grams “at home”, a hotel room will most likely not be considered a residence within the meaning of the Cannabis Act. It is therefore best to observe the minimum regulations.

What’s next for the Cannabis Act?

The law is highly controversial in Germany and it should be assumed that this law will come under very critical scrutiny after the next general election in 2025.

Criminal Defense Liability of the management Technology- & IT-Law

Tax problems with DDP clauses and shipping from Asia to Germany

A current article in the magazine PraxisSteuerstrafrecht on the topic of criminal tax law and imports deals with customs law and, in particular, the risks of the DDP (Delivered Duty Paid) delivery condition for imports from China for online retailers. It explains how Chinese suppliers often offer customs declaration and tax payment as part of their service, which sounds tempting but carries legal and tax risks.

The complexity and pitfalls of this practice, such as changing the delivery route, the role of indirect representatives in the customs declaration and the tax consequences, are described in detail. The article makes it clear why caution is required both on the Asian side and on the German recipient side. The topic is also worth a few lines here.

Criminal Defense Liability of the management Technology- & IT-Law

Importing goods from Asia to Germany: What do you need to bear in mind?

What needs to be considered when importing from Asia, especially China or Vietnam – what are the pitfalls when importing goods from China and the Asian region? It is interesting to note that companies sometimes take a rather naïve approach to international trade.

This shows that you sometimes have to be extremely careful – our law firm used to advise clients, especially start-ups, who are dependent on importing products from Asia and China in particular, whether these are manufactured at the client’s request or supplied off the shelf.

Note: Our law firm based in Germany is only active in this area for criminal compliance and IT law, please refrain completely from inquiries regarding other products imported from Asia.

Criminal Defense Cybercrime

EUGH: Prohibition of exploitation in case of insufficient possibility of defense

In the course of the current rulings on data retention, the EU Court of Justice (C-339/20 and C-397/20) has ruled in a further case on a certain handling in France. What appears on the surface to be a pure data retention issue turns out, on closer inspection, to be a potentially landmark decision for the German criminal justice system.

Criminal Defense

Fine from German customs for cash entering or leaving Germany

Money on entry into Germany: There is a duty to declare cash (and equivalent means of payment) when crossing the German border. If you enter or leave Germany outside the EU with cash totaling 10,000 euros or more, you must, in accordance with Article 3 of REGULATION (EC) No. 1889/2005, declare this amount in writing to the competent German customs office upon entry or exit without being asked to do so:

Any natural person entering or leaving the Community carrying cash of EUR 10 000 or more shall declare that amount in accordance with this Regulation to the competent authorities of the Member State through which he enters or leaves the Community. The obligation to declare is not fulfilled if the information provided is incorrect or incomplete.

Artikel 3 der VERORDNUNG (EG) Nr. 1889/2005

In the case of cash, a written notification is required upon entry into Germany; in the case of equivalent means of payment with a total value of 10,000 euros or more these must be notified verbally upon questioning during customs checks. Violations are punished with a fine, which can be considerable. But also at the internal border, i.e. when traveling within the EU, an obligation to report may arise upon questioning!

Criminal Defense

Arrest warrant in Germany, what to do?

Lawyer for German arrest warrant – arrest warrant in Germany, what to do? What can a criminal defense lawyer or lawyer in Germany do in case of an arrest warrant? It is possible that you have suddenly learned that there is an arrest warrant against you in Germany, then the obvious question is how to deal with it. We will help you if you are affected by a German arrest warrant and also advise that you seek advice immediately and in no case also commit foolish acts.

Criminal Defense Labour law Liability of the management Technology- & IT-Law

When does pseudo self-employment exist? Criteria for pseudo self-employment in Germany

An often underestimated problem is the so-called pseudo self-employment: It can happen that someone is self-employed “on paper” and also behaves like this in everyday life. However, case law and the social security funds in Germany can come to the conclusion that an employment relationship is to be assumed despite self-employment. Objective criteria are used for this – and if the apparently self-employed person is then actually classified as an employee, this has unpleasant consequences: Social security contributions must be paid in arrears, which in Germany can quickly run into six figures! In addition, there is the threat of criminal liability for the involuntary employer and suddenly a monthly remuneration obligation if one does not give proper notice.

When does pseudo self-employment exist? The Federal Social Court (B 12 R 7/15 R) had the opportunity to comment on the criteria for the assumption of pseudo self-employment. Especially in the area of IT law and the widespread use of freelancers here, this is a constant minefield. At the time, the court had ruled that it is a weighty indication of self-employment if the agreed fee is significantly higher than the salary of a comparably employed employee subject to social security contributions and thus allows for self-provision. On this occasion, the court also once again discussed the criteria to be used in the examination of a pseudo-self-employment.

Criminal Defense Liability of the management

Embargo and violation of sanctions

The violation of sanctions (“embargo violation”) is punishable by considerable sanctions – and especially in the past months it is by no means such an exotic violation that one should not have it on one’s radar. In recent months, our law firm has been confronted mainly with requests for advice in the area of software and technology goods, where the question of import or export arises via quite tricky detours.

Criminal Defense

On the run and German arrest warrant – what to do?

On the run, what to do? International arrest warrant, European arrest warrant, extradition, Interpol, Red Notice – these are the keywords that run through your head when you are stuck abroad and a German public prosecutor is looking for you. At least formally, you are “on the run” at this moment, although we know that this situation can also arise without having been deliberately brought about by you. It is then many nights on the Internet searched and long lived in uncertainty; sometimes under the worst conditions – because the countries that do not extradite rarely have pleasant living conditions.

We know what we are talking about, our clients come from Lebanon, Turkey, North Africa or Syria, among other countries – and our work in the field of cybercrime, drugs and Encrochat is closely linked to the issues of extradition custody.