When a Cutting Becomes a Cannabis Plant: Court Clarifies Germany’s Three-Plant Rule

You are allowed to own and cultivate three cannabis plants. This has been stipulated in the Consumer Cannabis Act (KCanG) since 2024 and is now considered basic legal knowledge for many hobby gardeners between Flensburg and Garmisch.

But, as is so often the case, the devil is in the details – or rather, in the root ball.In its decision of February 2nd, 2026 (206 StRR 315/25), the Bavarian Supreme Court (BayObLG) not only overturned a lower court ruling but also, incidentally, restructured the biology curriculum. The crucial question was: What exactly is a “cannabis plant”?

Three cannabis plants are allowed in Germany, but what counts?

The case seems trivial at first glance. A man was growing three cannabis plants in his apartment for personal use – completely legally according to Section 9 Paragraph 1 of the German Cannabis Act (KCanG). Later, he acquired a fourth young plant to replace one of his existing ones.

During a search, authorities in germany found three medium-sized plants, about 40 centimeters tall, and an additional smaller plant, around 30 centimeters tall, in what appeared to be a makeshift pot.

No flowers, no fruiting bodies.The district court sentenced the man to 50 daily fines and confiscated all the plants and growing equipment. Four is four, after all – one might think.But it’s not that simple when the legislature starts squeezing botanical developmental stages into penal codes.

Cutting, young plant, shoot section – or seedling?

The German Cannabis Act (KCanG) defines “propagation material” in Section 1 No. 7 as “seeds and cuttings.” Cuttings, in turn, are defined in Section 1 No. 6 as “young plants or shoots.” Propagation material is explicitly not considered cannabis in the criminal law sense (Section 1 No. 8c KCanG).At first glance, this sounds like a clear distinction: as long as it’s propagation material, it doesn’t count towards the three-plant limit.

But when does the young plant end – and when does the legally relevant cannabis plant begin?Here, the Bavarian Higher Regional Court (BayObLG) introduces a term that doesn’t actually appear in the text of the law itself: the “seedling.” While this term is only found in the legislative materials and in the case law of the Federal Court of Justice, it is crucial. A seedling is a plant that has already been planted and rooted.

With planting, the cutting (propagation material) becomes a cannabis plant within the meaning of the law.In other words, as soon as the roots have found a firm hold in the substrate and the plant no longer serves merely for cultivation but for later harvesting, the botanical innocence is over.

Or, as the court put it: By “planting”, the “cutting” becomes a “seedling” – and thus a cannabis plant that is relevant under criminal law.For school lessons, this means: photosynthesis, cell division and THC content should be explained in the future with reference to § 9 KCanG.

THC already present in the vegetation phase

The fact that the plant had not yet formed flowers did not help the defendant. According to the Bavarian Higher Regional Court (BayObLG), cannabis plants can already exhibit relevant THC levels at an early stage of the vegetative phase. The decisive factor is not the flowering, but the classification as a seedling.

The court rejected constitutional concerns regarding a potential violation of the prohibition of analogy (Article 103, Paragraph 2 of the Basic Law). While the term “young plant” is certainly acceptable in everyday language, the legislature had established a distinct meaning that differs from common understanding. Requiring interpretation – yes. Unclear – no.Botanists might frown, criminal lawyers nod.

When even lawyers stumble

But then things get interesting – and human. The Bavarian Higher Regional Court overturned the conviction and remanded the case. Why? Because the lower court had not sufficiently considered the possibility of a mistake of law (§ 17 of the German Criminal Code).The defendant stated that he had “never possessed more than three cannabis plants.”

Given the legislative terminology, a misunderstanding of the legal classification is likely. How is the average citizen—even with growing experience and modern LED lighting in their grow tent—supposed to recognize when their cutting becomes a criminal seedling?The Bavarian Higher Regional Court (BayObLG) now requires an examination of whether this error was avoidable.

The mere fact that the man did not consult a lawyer is not sufficient to affirm that it was avoidable. One could say: If even courts need several pages to distinguish between young plant, cutting and seedling, a hobby gardener may well start to wonder.

Three plants back into the tent

The Bavarian Higher Regional Court also overturned the confiscation of all plants and accessories.

Three of the plants had been legally cultivated – their confiscation was deemed “legally untenable.” At most, the fourth plant could have been confiscated.This is an important clarification at a time when legalization is a reality, but the practice still fluctuates between old repressive routines and the new legal situation.

Conclusion: Botany for advanced students

The ruling brings conceptual clarity – at least on paper:
A seedling is not a shoot.
A young plant is a cutting.
A seedling is not a young plant.

And a cutting is not a seedling.That clears everything up, right?In practical terms, this means that anyone using up the permitted three plants should pay very close attention to what else is in the pot. A freshly cut, unplanted cutting might pass as propagation material. However, as soon as it is potted and has developed roots, it can become the “fourth plant”—with legal consequences.

The KCanG (Cannabis Act) decriminalized home cultivation, but not reduced the bureaucracy. Perhaps in the future, alongside the grow box, a small legal reference book will also be needed on the shelf.Until then, it remains true that in Bavaria, it’s not just the green thumb that matters, but also how deep the roots reach.

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(Featured image by CRYSTALWEED cannabis via Unsplash)

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First published in Hanf Journal. A third-party contributor translated and adapted the article from the original. In case of discrepancy, the original will prevail.

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