Author: Salomé Lemasson
1 July 2021
2 min read
Salomé Lemasson of Rahman Ravelli details a French Supreme Court decision that means France cannot restrict the import and sale of cannabidiol (CBD) products legally produced in the EU.
On June 23, 2021, the Criminal Section of the French Supreme Court (Cour de cassation, chambre criminelle) ruled that the possession and sale of cannabidiol (CBD) products extracted from the cannabis sativa plant in its entirety and legally produced in the European Union could not be criminally sanctioned. With this landmark decision the French Supreme Court aligned its criminal case law with that of the European Court of Justice.
The decision resulted from criminal proceedings that had been opened for drug offences, in connection with an investigation into concealed employment relating to a Foxseeds shop, during which the police discovered stocks of products containing cannabis. These products had been withdrawn from sale from another Foxseeds location, pending distinct but similar proceedings targeting this second shop.
Following this discovery, the shop owner was sanctioned as an “accomplice to the offence of possession, offer or sale and acquisition of non-authorised narcotic products” on June 22, 2020, by the Grenoble Court of Appeals. The Grenoble Court of Appeals held that, pursuant to Article R. 5132-86 of the French Code on Public Health and its application order of August 22, 1990, the production, import and sale of CBD products was allowed only if such products were derived from the fibres and seeds of the cannabis sativa plant and contained less than 0.20% of delta-9-tetrahydrocannabidol (THC). Given that the products seized were derived from the “flowering tops” of the plant, they did not fall within the realm of the exception provided by Article I of the August 22, 1990, application order.
Both the prosecutor and the defendant appealed this decision before the Supreme Court. The defendant argued that his conviction was illegal as it breached Articles 34 and 36 of the Treaty on the Functioning of the European Union (TFEU), as interpreted by the European Court of Justice (ECJ, November 19, 2020, C-663/18, B.S., C.A).
In this decision, the ECJ held that “Articles 34 and 36 TFEU must be interpreted as precluding national legislation which prohibits the marketing of cannabidiol (CBD) lawfully produced in another Member State when it is extracted from the cannabis sativa plant in its entirety and not solely from its fibre and seeds, unless that legislation is appropriate for securing the attainment of the objective of protecting public health and does not go beyond what is necessary for that purpose.”
The French Supreme Court, therefore, held that the conviction issued by the Grenoble Court of Appeals contradicted the position held by the ECJ, given that the judges had not considered (despite being asked to do so) whether the seized products had been legally produced in another EU member state.
Consequently, the French Supreme Court overturned the conviction for drug offences and referred the matter to the Paris Court of Appeals for a new ruling. This is because the French Supreme Court never rules on facts, only on the application of law - hence the matter needing to be referred to another court of appeals for determination. The Court of Appeals theoretically remains free to rule as it sees fit, including against the position of the French Supreme Court. In practice, however, it is rare for Court of Appeals to resist Supreme Court case law.
There is little doubt that the Supreme Court’s decision of June 23, 2021, provides guidance on the commercialisation of CBD products in France – guidance that has been long awaited. But technically, legal uncertainty remains, with the application of the August 22, 1990, application order applicable to Article R. 5132-86 of the French Code on Public Health. CBD is mainly contained in the flower and leaves of the cannabis sativa plant, yet the text only authorises extraction from plant’s fibres and seeds. It remains to be seen whether the consistent European and French case law will persuade the French legislator to enhance the legal framework applicable to the growing business of CBD products.
Of Counsel Head of EU Business Crime and Regulatory Practice Group
Salomé works on Europe’s most challenging and significant white-collar and complex crime cross-border cases. She leads Rahman Ravelli’s EU Business Crime and Regulatory Practice Group, representing and advising companies and individuals in high-stakes investigations.