Austria imports record amount of medicinal weed amid constitutional challenges

Austria is currently in an interesting position regarding the legalization of cannabis. The third country in the DACH alliance in Europe (which also consists of Germany and Switzerland) currently has no legislative path to reform recreational cannabis, although its two trading partners are pushing the boundaries of the discussion in the EU

However, sales of dronabinol in the country have increased year after year, despite the fact that none of it is manufactured domestically. The Austrian Agency for Nutrition and Health (AGES) grows several hundred kilos of medicinal cannabis flowers each year, although all of this is exported – the majority of which has historically crossed the border into Germany – to be processed into dronabinol and then re-imported will.

So far, the medicinal market here is smaller than Germany, and there is more limited cultivation and no extraction, but there are some unfortunate similarities. Patients face numerous challenges in order to receive reimbursement from insurance companies. The fastest guaranteed way in Germany at the moment is also a lawsuit, which given the backlog of court cases is just another excuse for more deadlock and delay.

In Austria there is a trend to skip all this and go straight to recreational legalisation, albeit not through the legislature but through legal challenge.

The status of cannabis reform in Austria

Austrians are not allowed to consume, buy, sell or grow cannabis (unless it is not allowed to flower). However, as of 2016, possession of small amounts of the flower has been effectively decriminalized, with punishment coming in the form of fines roughly the same as a parking violation.

But as in other countries that have repeatedly stalled on reforms, the issue is advancing in court.

A Supreme Court challenge can change the game

A potentially landmark case is currently pending before the country’s constitutional court examining a private petition filed by a 26-year-old man, Paul Burger, in Vienna. He was caught by two undercover cops in 2020 with a half-burned joint. Together with the power lawyer Dr. Helmut Graupner, a well-known civil rights attorney, he has a good chance of winning his case. Burger has also successfully challenged the country’s ban on same-sex marriage.

Austria’s highest court must now examine whether the country’s narcotics law is constitutional. The argument before the court, similar to that before the Mexican Supreme Court, is that personal consumption that does not harm others should be protected by the right to privacy and self-determination. The reasoning is also similar to that behind the legalization of assisted suicide, which has also been permitted in Austria since the beginning of this year.

Odd Man Out or Potential Leader?

The constitutionality of personal access, possession, and cultivation is an issue that has floated through the legalization debate in Europe—but not as directly as in the North American context (see both Canada and Mexico). A lawsuit brought by Albert Tio in Spain over the access discussion when it came specifically to the clubs was rejected by the European Court of Human Rights last year.

Before 2017 in Germany it was clearly the legal challenges faced by patients that changed the game, but as soon as patients started winning on the legal front, the Bundestag enacted a new law. Namely one that dictated that patients couldn’t grow their own – they had to obtain the drug through a pharmacy on doctor’s prescription, and as long as the patient’s condition couldn’t be treated with other drugs, insurers had to reimburse the costs.

This model has largely failed, which is why the federal government is now on track to pass legalization measures by the end of the year. Given that the Austrian case is set to be decided around the same time, this could mean that this could become a legal and legislative precedent, at least in the German-speaking parts of the region, that will finalize recreational cannabis reform, not only in the EU formalized DACH countries, but the rest of Europe.