The Paris Council of State has suspended a ban on the marketing in France of Cannabis sativa L. leaves and flowers in their raw state–e.g., ‘herbal tea cut’ for infusions–with a THC content of less than 0.3 percent.
Hemp flowers and leaves, the impugned restrictions
TheUnion des professionnels du CBD, the Syndicat professionnel du chanvre and 13 industry companies have filed several urgent appeals, to the Council of State. To request the annulment of the government ordinance Dec. 30.12.21 that, in alleged implementation of the code de la santé publique (R. 5132-86), had limited the possibilities of using hemp flowers and leaves to the industrial production of extracts only.
These restrictions would have applied even if both conditions instead defined to protect the full legitimacy of the products were met:
– Provenance from varieties of Cannabis Sativa L. included in the Common Catalogue of Varieties of Agricultural Plant Species, which is the official catalog of plant species and varieties cultivated in France,
– THC levels, in leaves and flowers, of 0.3 percent or less. That is, below the threshold already defined, in France, to exclude a priori any possible narcotic action of hemp and its derivatives.
State Council, prohibited to ban
The judges in Paris, by order 24.1.22, granted the petitions for a stay of the challenged order. Acknowledging both the risk that an unwarranted ministerial whim could cause serious harm to sector enterprises, given the fact that leaves and flowers of Cannabis sativa L. express up to 50-70% of the economic value of the plant-both the well-founded doubt about its legitimacy.
The ban on possessing and/or selling and/or ‘consuming’ leaves and flowers of Cannabis sativa L. – in addition to being blatantly contrary to European law (see next paragraph) – is unjustified and disproportionate, according to the high court, to any hypothetical objective. Since these are herbs with no toxicity profiles, as well as already under a regime of controls regarding THC limits.
Cannabis sativa L. and EU law
Cannabis sativa L., in the varieties provided for in the EU catalog of cultivable plants, is an ‘industrial plant‘ that produces an ‘agricultural product‘. (1) It is characterized by rapid development, without the need for agrochemicals, and great ability to sequester carbon in the atmosphere. Its cultivation is subject to aid under the Common Agricultural Policy (CAP). Each part of the plant can be used for various purposes. Cosmetic and/or food and/or pharmaceutical ingredients, floriculture, agriculture, green building and bioplastics, etc. (2)
The EU Court of Justice, European Court of Justice (ECJ), had already ruled precisely on a case originating in France. Affirming the incompatibility with European law of the national ban on the marketing of CBD products. The Luxembourg judges recalled how restrictions on the free movement of goods can only come to be justified if the member state is able to justify its measures with concrete needs for the protection of public health and they are actually proportionate to the objectives, in terms of intensity and duration. (3)
Interim conclusions
The French state was ordered to pay costs in the symbolic amount of €1,000 to each claimant. And the State Council ordered copies of the order to be sent to the prime minister as well as to those of solidarity and health, economy, finance and revitalization, agriculture and food, and interior. Pending a final ruling that will likely declare unlawful any restrictions on the sale of Cannabis sativa L. leaves and flowers. From approved plants. The same may happen in Italy and other member states where operators in the hemp supply chain are unjustifiably discriminated against compared to representatives of other agricultural supply chains, in the wake of the aforementioned ECJ decision.
Decisions of the European Court of Justice, it should be recalled, have the value of official interpretation (see Art. 267 TFEU). As well as the authentic interpretation that may come from the legislature. They therefore have the value of a source of law and bind all national courts to which a similar question is submitted. (4) The Italian Constitutional Court, in applying EU law as interpreted by the ECJ, has in fact declared the ‘direct effect‘ or ‘immediate operativeness‘ of ECJ rulings. And the Supreme Court has in turn recognized their ‘normative value’. (5) Any refusal by a national court to apply a judgment of the Court of Justice may result in the initiation of infringement proceedings against the member state. (6)
Administrative and civil responsibilities
The principle of the responsibility of member states for the violation of EU law, also affirmed in the case law of the EU Court of Justice, means that its violations by any institution can give rise to obligations to provide compensation.
Therefore, operators in the hemp supply chain are entitled to seek compensation for damages caused to them by regulations, ministerial circulars, sanctioning measures and rulings (including by the United Sections of the Supreme Court) that are contrary to EU law.
Criminal Responsibilities
Criminal responsibilities for abuse of office are added against all civil servants who – despite having knowledge of EU law, as supplemented by the case law of the Court of Justice (or otherwise having to know it, since ignorantia legis non excusat) – deliberately violated it, causing unfair harm to the administered people.
Law, in Europe, is like mathematics. One plus one equals two, uncertainty is not allowed as it is incompatible with the pillars of the Treaty, which is based first and foremost precisely on the free movement of goods. Fundamental human rights, in turn, cannot be exposed to the blizzards of politicians, magistrates and officials as if they were weathervanes in the wind. (7)
Ad majora
Dario Dongo
Notes
(1) Dario Dongo. Industrial hemp and circular economy. GIFT (Great Italian Food Trade). 8/16/19, https://www.greatitalianfoodtrade.it/progresso/canapa-industriale-ed-economia-circolare
(2) Dario Dongo. Medicinal plants decree, possible misunderstandings about hemp. (Great Italian Food Trade). 14.1.22, https://www.greatitalianfoodtrade.it/salute/decreto-piante-officinali-possibili-equivoci-sulla-canapa
(3) Dario Dongo. Natural CBD, EU Court of Justice declares unjustified bans unlawful. New horizons. GIFT(Great Italian Food Trade) 21.11.20, https://www.greatitalianfoodtrade.it/progresso/cbd-naturale-la-corte-di-giustizia-ue-dichiara-illegittimi-i-divieti-ingiustificati-nuovi-orizzonti
(4) See Italian Constitutional Court, judgment 23.4.85 no. 113. Court of Justice of the EU, Elchinov, 5.10.10 (Case C-173/09) and Križan, 15.1.13 (Case C-416/10) judgments
(5) Italian Constitutional Court, judgments 284/07 and 227/10. See also Court of Cassation, judgment 30.12.03 no.19842
(6) The European Commission in such cases may also bring an action for failure to fulfil obligations(Art. 258 TFEU)
(7) The appropriateness of opposing the uncertainty generated in Italy by the well-known ruling of the United Criminal Sections of the Italian Supreme Court is reaffirmed in this sense. See article https://www.greatitalianfoodtrade.it/mercati/canapa-industriale-stupefacente-cassazione-a-sezioni-unite
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
