CBD as a legal product in the European market
In 2020, the European Court Of Justice: CJE has made an expected and fundamental interpretation on the relationship between
the discipline of the Single Convention on Narcotic Drugs of 1961 (the so-called New York Convention, from now on also in
abbreviated form “SC”) and Community law concerning the cannabis Sativa L. plant (so-called industrial hemp, i.e. hemp from
varieties registered in the Common Catalog of varieties of agricultural plant species with a THC content of up to 0.2%).
Since CBD has been recognized as legal throughout Europe, you can now legally find CBD hash and buy CBD products on the
The European Court defines cannabis as:
“The term” cannabis “refers to the flowering or fruiting tops of the cannabis plant (excluding seeds and leaves that are not joined
to the tips) whose resin has not been extracted, whatever their application”. Therefore, excluding seeds and leaves not
accompanied by the flowering top from the group of prohibited substances and the inflorescences themselves where the resin
has been extracted as deprived of the harmful potential.
To art. 2, c. 9 also states that “The Parties are not required to apply the provisions of this Convention to drugs that are
conveniently used in industry for purposes other than medical or scientific”.
On the other hand, at the Community level, the TFEU (Treaty on the Functioning of the European Union), in Annex I, lists under
letter a) the agricultural products to which the provisions of the same Treaty apply, including “raw, macerated hemp, scalloped,
combed or otherwise prepared, but not spun “.
Therefore, hemp is qualified as an agricultural product at the EU level and as an ” industrial plant ” according to EU Reg. No.
The Reg. (CE) n. 1307/2013 laying down rules on direct payments to farmers under the support schemes provided for by the
common agricultural policy, in art. 32, par. 6, states that “The areas used for the production of hemp (cannabis Sativa L.) are
eligible hectares only if the tetrahydrocannabinol content of the cultivated varieties does not exceed 0.2% “.
The Reg. (CE) n. 1308/2013 establishes a common organization of the markets for agricultural products, including ” flax and
hemp “, the latter defined as ” raw hemp, as it comes from the harvest, even if shelled “, according to the explanatory notes the
There are no distinctions between parts of the hemp Sativa L. plant in community legislation. On the contrary, it is perfectly in line
with the rationale of the SC (and of the drug regulations of the Member States of the European Union – henceforth “MS “).
At the community level, regarding the cannabis Sativa L. plant in its entirety, the CJE reiterates that any assessment of public
health issues has already been carried out by the European Union when hemp was qualified as an agricultural product in the
TFEU. A specific organization of the common market has been established, most recently with Reg. no. 1307/2013 and n.
1308/2013  .
Therefore, the MS, in the exercise of their discretion, can limit the circulation in the common market of an agricultural product only
on specific scientific data and not on a generic precautionary principle.
The common European market
Once the analysis of the current European situation has been completed, it is necessary to assess whether or not the above
elements impact the organization of the common market and, consequently, on the relationship between Community law and the
national legislation of the Member States hemp.
The free movement of goods between MS is a fundamental principle of the TFEU, which has found expression in the prohibition
of quantitative restrictions on imports between MS and all measures having equivalent effect according to art. 34 TFEU.
By consolidated jurisprudence for quantitative restriction, we mean any measure adopted by MS capable of hindering, directly or
indirectly, effectively or potentially trade within the European common market.
It is also to be considered a measure having an effect equivalent to a quantitative restriction any rule that in practice produces the
effect of treating the products of other MSs less favourably as it is suitable to hinder the access to the market of products coming
from other MS.
To this, it must be added that the field of application of art. 34 is not limited to goods coming only from MS as art. 28, par. 2 TFEU
extends free circulation also to goods from third countries; therefore, as confirmed by the CJE, the products of third countries
(such as Switzerland) are “definitively and completely assimilated” into the common market in the same way as SM products with
the consequence that the prohibition according to art. 34 applies in the same way.
On the other hand, art. 36 provides that a restrictive measure by an MS can be justified in the public interest or the imperative
needs of the MS.
But, as clarified by the CJE, these reasons, regarding hemp Sativa L., must be based on scientific evidence and not on mere
precautionary needs since – it must be repeated – every evaluation regarding public health has already been made by the EU
when hemp Sativa L. was qualified as an agricultural product with its own common organization of the market.
It follows that art. 34 arises as a rule with respect to the exception referred to in art. 36 and that this exception must be adequately
motivated. Specifically, concerning hemp Sativa, it is from concrete scientific evidence that demonstrates its danger to public
CBD as a legal product in the European market