Kanavape case: the conclusions of the Advocate General of the CJEU expected this Thursday

The conclusions of the Advocate General before the Court of Justice of the European Union in the Kanavape case are expected this Thursday. The opinion delivered by the Advocate General, who will provide a legal analysis of the problem posed, will give a probable direction to the decision of the Court, which may however choose not to follow it.

A reminder of the Kanavape case

In 2014, two entrepreneurs from Marseille launched an e-cigarette using CBD oil sourced from the Czech Republic. Revolutionary at the time of its launch, the product has been accused of being presented as a medicine, among other things. Convicted in first instance, However, the Aix Court of Appeal decided to grant the preliminary question put by Ingrid Metton, lawyer for one of the two founders.

The Court of Justice of the European Union (CJEU) must now decide before French justice can do so.

The central debate in this case is crucial for the CBD, not only in France, but throughout the European Union. The aim is to determine whether national restrictions on the use of hemp are compatible with European Union law, in this case the free movement of goods.

And for France, to overrule the MILDECA's position, which had already been undermined by national rulings. its unconventionality. For Ingrid Metton, «the question is whether MILDECA's position, followed by the French authorities who have prosecuted entrepreneurs on the basis of this restrictive vision, is compatible with European law».

What's at stake

The Kanavape trial plays on several elements of European policy: the hemp trade, public health risks and the free movement of goods.

In the past, the CJEU has on several occasions examined the compatibility of national legislation prohibiting the cultivation or possession of hemp. On two occasions (C-462/01 and C-207/08), the courts ruled that a restriction on industrial hemp was contrary to the CAP.

The risk to human health posed by THC has already been taken into account in the organization of the common market and can only be justified by a proportionate risk. In 2018, the WHO nonetheless deemed that CBD was not associated with any risk to public health, and recommended to not classified as a controlled substance.

As for the free circulation of goods, French legislation prohibiting trade in CBD or hemp flower would amount to a quantitative restriction prohibited by Article 34 of the Treaty on the Functioning of the European Union. The current case, moreover, concerns CBD obtained from hemp plants grown in the Czech Republic, and cultivated in accordance with CAP rules.

The Court could nevertheless decide not to rule on the marketing of CBD, or not to respond directly to the use of hemp flower, and leave it to the Member States to decide on national legislation.