Opinion of the Advocate General — ECLI:EU:C:2024:270
Date: 2024-03-21
Language of the case: Romanian
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-793/22 – 1 
Case C-793/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
29 December 2022 
Referring court: 
Curtea de Apel Alba Iulia (Romania) 
Date of the decision to refer: 
23 November 2022 
Appellant and applicant at first instance: 
Biohemp Concept Srl 
Respondent and defendant at first instance: 
Direcția pentru Agricultură Județeană Alba 
  
Subject matter of the main proceedings 
Appeal brought by Biohemp Concept SRL against the Direcția pentru Agricultură 
Județeană Alba (Directorate for Agriculture of the District of Alba, Romania) 
against the judgment of the Tribunalul Alba (Regional Court, Alba, Romania) 
dismissing the action seeking annulment of an administrative act, namely a permit 
for the cultivation of hemp (Cannabis sativa) on an area of 0.54 hectares. 
Subject matter and legal basis of the request 
On the basis of Article 267 TFEU, the court seeks the interpretation of Regulation 
(EU) No 1307/2013, Regulation (EU) No 1308/2013 and Articles 35, 36 and 38 
TFEU. 
Question referred for a preliminary ruling 
Must Regulations Nos 1307/2013 and 1308/2013 and Articles 35, 36 and 38 
TFEU be interpreted as precluding national legislation in so far as it prohibits the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-793/22 
 
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cultivation of hemp (Cannabis sativa) in hydroponic systems in indoor 
environments prepared for that purpose? 
Provisions of European Union law relied on 
Articles 35, 36 and 38 TFEU 
Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 
17 December 2013 establishing rules for direct payments to farmers under support 
schemes within the framework of the common agricultural policy and repealing 
Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009: 
Article 1(1)(a), Article 4(1)(d) and Article 32(6) 
Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 
17 December 2013 establishing a common organisation of the markets in 
agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) 
No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007: Article 1(1) and (2)(h), 
Article 189 and Annex I, Part VIII 
Provisions of national law relied on 
A. Legea nr. 18/1991 a fondului funciar (Law No 18/1991 on land ownership) 
and subsequent amendments: 
Article 2(a) provides as follows: 
‘Depending on its use, land is:  
(a) land used for agricultural purposes, namely: 
– arable land, vineyards, orchards, vine and tree nurseries, hops and mulberry 
plantations, pasture, grassland, greenhouses, photovoltaic greenhouses, 
seedbeds and similar; 
– land with coppice vegetation where it does not form part of silvicultural 
operations (silvicultural undertakings), afforested pasture; 
– land occupied by agriculture and livestock constructions and facilities, 
aquaculture and soil improvement facilities, roads of the rural road network, 
farm/agricultural roads and those connecting estates, platforms and storage 
areas necessary for agricultural production; 
– non-productive land which can be given over to, and used for, agricultural 
production.’ 
B. Legea nr. 339 din 29 noiembrie 2005 privind regimul flame al plantelor, 
substanțelor și preponatelor narcotic și psihotrope (Law No 339 of 29 November 
BIOHEMP CONCEPT 
 
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2005 on the legal regime governing narcotic and psychotropic plants, substances 
and preparations) 
Article 12(1) and (4) provides as follows: 
‘(1) The cultivation of plants containing substances subject to control under 
national legislation shall be authorised only if they are processed for technical 
purposes for the production of stalks, fibre, seeds and oil for medical and 
scientific purposes and only with the authorisation of the Ministerul Agriculturii, 
Pădurilor și Dezvoltării Rurale (Ministry of Agriculture, Forestry and Rural 
Development), through the Directorate for Agriculture and Rural Development or 
the Municipality of Bucharest, on the basis of the annual estimates drawn up in 
accordance with the provisions of Article 42(1)(e) of this Law and the 
methodological rules for its application. 
(4) Authorised cannabis and opium poppy growers shall be required to sow land 
they hold only with the seed varieties registered in the Catalogul oficial al 
soiurilor și hibrizilor de plante de cultură din România (official catalogue of crop 
varieties and hybrids of Romania) or in the Cataloagele Comunităților Europene 
(catalogues of the European Communities), produced by establishments 
authorised by the Ministry of Agriculture, Forestry and Rural Development, 
through the regional seed control and certification authorities.’ 
C. Normele metodologice din 22 decembrie 2006 de aplicare a prevederilor 
Legii nr. 339/2005 privind regimul juridic al plantelor, substanțelor și preparatelor 
stupefiante și psihotrope (methodological rules of 22 December 2006 
implementing the provisions of Law No 339/2005 on the legal regime governing 
narcotic and psychotropic plants, substances and preparations), approved by 
Hotărârea Guvernului nr. 1915/2006 (Government Decision No 1915/2006, ‘the 
methodological rules’): 
Article 4(5)(b) provides: 
‘With a view to the granting of a permit for the cultivation of plants containing 
narcotic and psychotropic substances for use in industry and/or in food, in the 
scientific or technical field or for the production of seeds, producers must submit 
an application to the district directorates for agriculture or the Municipality of 
Bucharest … The application shall be accompanied by the following documents, 
in either original or copy form, depending on the purpose of the permit: 
… 
(b) the deed of ownership, records/certificates of possession or any other act 
proving that the area of agricultural land is being lawfully used; 
…’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-793/22 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 By application lodged on 14 January 2021, Biohemp Concept Srl (‘the applicant’) 
asked the Directorate for Agriculture of the District of Alba (‘the defendant’) to 
grant a permit for the cultivation of hemp (Cannabis sativa) on an area of 0.54 
hectares. 
2 On 27 January 2021, the defendant issued a permit for the cultivation of plants 
containing narcotic and psychotropic substances for use in industry and in food 
(‘the permit of 27 January 2021’) for an area of 0.50 hectares only, namely for an 
area 0.04 hectares smaller than that requested. The reasoning advanced by the 
defendant for the reduction in area was that the area of 0.04 hectares is not 
agricultural land but a structure for agricultural and livestock purposes and that a 
structure of that type does not satisfy the conditions set out in Article 4(5)(b) of 
the methodological rules. 
3 The applicant lodged an initial complaint against the permit of 27 January 2021, 
which was rejected by the defendant on 17 February 2021. 
4 As regards the difference of 400 square metres (m²), the applicant stated that the 
structure in question was a hangar and that although, when it was built and entered 
in the land register, it had an agricultural/livestock purpose, it had subsequently 
been renovated and was currently used as an indoor environment for plant 
cultivation, and was therefore entered in the agricultural register of the locality in 
whose territory it was situated. 
5 The applicant stated that it wished to grow hemp (Cannabis sativa) with a legal 
concentration of tetrahydrocannabinol (THC) of up to 0.2% in that indoor 
environment of 400 m² using a hydroponic system, since cultivating hemp in 
indoor environments produces plants with cannabidiol (CBD) concentrations of 
12-14%, whereas hemp grown in the open air (on agricultural land) has a CBD 
concentration of up to 1%. According to the applicant, hemp processors have a 
marked preference for buying hemp grown in indoor environments because of the 
much higher concentration of CBD. The applicant stated that it had concluded 
contracts for the sale of the hemp grown with various processors of that raw 
material, including companies in EU Member States. 
6 By administrative appeal proceedings entered in the register of the Regional 
Court, Alba, on 13 April 2021, the applicant sought a permit for the area of 0.54 
hectares and an order that the defendant pay the costs. 
7 In the statement of the grounds of the appeal, the applicant maintained that the 
reduction in the authorised area was unlawful on the basis of the following 
considerations. 
8 In the first place, the applicant submitted that the defendant’s main reason for 
reducing the authorised area was that it considered that the area of 0.04 hectares 
was occupied by industrial constructions and facilities for agricultural and 
BIOHEMP CONCEPT 
 
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livestock purposes and that a building of that type did not satisfy the conditions set 
out in Article 4(5)(b) of the methodological rules, in so far as the applicant had not 
demonstrated that it was entitled to use that area. On the contrary, the applicant 
stated that it had demonstrated its right of use, since, first, it had attached to its 
application for a permit a lease agreement that it had concluded with a commercial 
company relating to a hangar with an area of 400 m² and a plot of land of 5 000 
m², and that it had thus provided proof of use of the entire area of 0.54 hectares in 
respect of which it had sought a permit. Second, the applicant claimed that it had 
also attached to the application for a permit a certificate issued by the municipality 
of the locality in which the area at issue is situated, from which it was apparent 
that the entire area of 0.54 hectares was entered in the agricultural register of that 
locality, with the result that it had thus also provided proof of use of the entire 
area of 0.54 hectares. 
9 In the second place, the applicant submitted that the true reason for the 
defendant’s refusal to grant a permit for the entire area of 0.54 hectares was that 
the area of 0.04 hectares was not agricultural land stricto sensu. According to the 
applicant, the defendant’s interpretation of the applicable rules was incorrect. The 
applicant submitted that, in actual fact, the applicable rules do not limit the 
cultivation of plants containing narcotic and psychotropic substances solely to 
agricultural areas stricto sensu, and stated that most plants of that kind are grown 
not in the open air but indoors. 
10 According to the applicant, the expression ‘area of agricultural land’ in 
Article 4(5)(b) of the methodological rules must not be interpreted as meaning that 
a permit may be granted only for agricultural land stricto sensu, but it also 
includes land used for agricultural purposes. Under a logical and literal 
interpretation of Article 2(a) of Legea nr. 18/1991 (Law No 18/1991), 
‘agricultural land’ also covers land occupied by agricultural or livestock 
constructions and facilities used for agricultural production. 
11 In its defence, the defendant contended that, for the purposes of granting the 
permit, the applicable legislation provided for the lodging of certain documents 
issued in relation to productive agricultural land, not buildings, and that the 
concept of ‘agricultural land’ must be interpreted stricto sensu, that is to say, as 
productive agricultural land under Law No 18/1991. 
12 According to the defendant, the methodological rules do not refer to land used for 
agricultural purposes – which would, under Law No 18/1991, include productive 
agricultural land and land occupied by agricultural or livestock constructions and 
facilities – but rather refer solely to agricultural land. If the concept of 
‘agricultural land’ were to be interpreted broadly, that would imply the possibility 
of cultivating hemp also in other categories of land used for agricultural purposes, 
including wooded or non-productive areas, which, according to the defendant, is 
not possible. It argues that agricultural land differs from land occupied by 
agricultural or livestock constructions and facilities, both of which are 
subcategories of the category of land used for agricultural purposes. 
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13 In addition, hemp containing a THC concentration of less than 0.2% grown in 
Romania and monitored by the Ministry of Agriculture and Rural Development is 
a field crop created in compliance with growing technology that adheres to 
specialised literature, where the conditions of the plant in relation to the climate 
and soil are guaranteed. In Romania, the method of growing hemp as a field crop 
is also the subject of a patent registered with the Oficiul de Stat pentru Invenții și 
Mărci (State Office for Patents and Trademarks). 
14 Lastly, the defendant argued that procedure A for sampling for the determination 
of the THC content, as set out in Annex I to Commission Delegated Regulation 
(EU) No 639/2014, also demonstrates that hemp is grown in fields, since that 
procedure provides, inter alia, in a population of a given variety of hemp, for a 30 
cm part to be taken from each plant selected. 1 
15 The Regional Court, Alba, dismissed the applicant’s action, taking the view, in 
essence, that the fact that the applicant had the use of the entire area of 0.54 
hectares entered in the agricultural register on the basis of the lease agreement 
relating to the hangar with an area of 400 m² and the plot of land of 5 000 m² did 
not entitle it to obtain a permit, since the applicable rules concern the lawful use of 
‘the area of agricultural land’, and that therefore the hangar with an area of 400 m² 
cannot be treated as an area of agricultural land within the meaning of 
Article 4(5)(b) of the methodological rules. 
16 According to the Regional Court, Alba, the methodological rules do not refer to 
land used for ‘agricultural purposes’, a category which also includes productive 
agricultural land and land occupied by agricultural or livestock constructions and 
facilities, but to agricultural land stricto sensu, meaning productive agricultural 
land (referred to in the first indent of Article 2(a) of Law No 18/1991). In those 
circumstances, if the applicant’s broad interpretation of the term ‘agricultural 
land’ were to be accepted, it would be possible to accept the cultivation of hemp 
also in the other categories of land used for agricultural purposes, namely land 
with forest vegetation or non-productive land, which, in the view of the Regional 
Court, Alba, would be absurd. 
17 The applicant brought an appeal before the referring court, requesting that the 
appeal be ruled to be admissible, that the judgment of the Regional Court, Alba, 
be set aside, that the merits of the case be reviewed and, consequently, that the 
appeal as worded be upheld and that the defendant be ordered to pay the costs of 
the proceedings. 
 
1 Translator’s note: The Romanian version of the corresponding part of point 2.2.1. of Annex III 
to Delegated Regulation (EU) 2017/1155, to which the last sentence of paragraph 14 makes 
reference, contains the expression ‘aflată pe câmp’, which is not present in the English language 
version. That expression makes clear that the cultivation referred to is open air cultivation. 
BIOHEMP CONCEPT 
 
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The essential arguments of the parties in the main proceedings 
18 The applicant submits that the Regional Court, Alba, was wrong to dismiss its 
appeal on the ground of infringement and incorrect application of Article 2(a) of 
Law No 18/1991 and Article 4(5)(b) of the methodological rules. 
19 Thus, the applicant submits, in the first place, that Law No 339/2005 does not 
impose any restriction as to the place where hemp may be grown and that the 
methodological rules refer to agricultural land, not to productive agricultural land, 
and that, therefore, a broad interpretation of the concept of agricultural land as 
land used for agricultural purposes within the meaning of Article 2(a) of Law 
No 18/1991 is correct. 
20 In the second place, although at the time when the 400 m² hangar was built and 
entered in the land register it had an agricultural/livestock purpose, it has been 
renovated and is currently used as an indoor environment for plant cultivation, as 
is apparent from the certificate attesting its entry in the agricultural register, issued 
by the municipality of the locality in which it is situated. Since a greenhouse is 
also an indoor environment for plant cultivation, the applicant submits that the 
400 m² hangar is an environment equivalent to a greenhouse within the meaning 
of the first indent of Article 2(a) of Law No 18/1991. 
21 The applicant asserts that it is a commercial company and that it was created to 
make profits, and must therefore meet the profitability requirements imposed 
within the free market. When hemp is grown outside, it is excluded from the 
market of competing Romanian companies that grow hemp in indoor 
environments and that benefit from permits issued for that purpose by other 
district directorates for agriculture. 
22 The applicant points out that the permit issued by the defendant in 2020 for the 
cultivation of hemp also included the 400 m² renovated hangar used as an indoor 
environment for plant cultivation, which is equivalent to a greenhouse, and it is 
therefore uncertain, in a situation where the relevant legislation has not been 
amended, why that institution issued a permit for 2020, including for the indoor 
environment, whereas it refused to grant a permit in 2021 for the same 
environment. 
23 As regards the defendant’s assertion that the cultivation of hemp indoors is 
prohibited, in support of which it has not relied on any legal provision, the 
applicant submits that, under Romanian law, any prohibition should be expressly 
laid down and that the legislature has not expressly prohibited the cultivation of 
hemp in indoor environments. 
24 In support of its arguments, the applicant also cites a series of decisions of the 
Court of Justice on hemp cultivation, as follows: 
– Judgment of 16 January 2003, Hammarsten (C-462/01, EU:C:2003:33), in 
which the Court held that Regulation (EEC) No 1308/70 must be interpreted as 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-793/22 
 
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taking precedence over national legislation which has the effect of prohibiting 
the cultivation and possession of industrial hemp; 
– Order of 11 July 2008, Babanov (C-207/08, EU:C:2008:407), in which the 
Court held, first, that Council Regulation (EC) No 1782/2003 must be 
interpreted as precluding national legislation which has the effect of prohibiting 
the cultivation and possession of hemp grown for [the production of] fibre and, 
second, that EU law precludes the court of a Member State from applying 
national legislation which, unlike Regulation No 1782/2003, has the effect of 
prohibiting the cultivation and possession of hemp grown for [the production 
of] fibre; 
– Judgment of 19 November 2020, B S and C A (Commercialisation of 
cannabidiol (CBD)) (C-663/18, EU:C:2020:938), which held that CBD 
extracted from hemp is not a narcotic drug and cannot be included in the 
category of narcotic drugs and that that compound falls within the scope of 
Article 34 TFEU. 
25 In the light of that legislation and case-law, the applicant submits that the 
judgment of the Regional Court, Alba, also infringed EU law on the subject, 
which does not require hemp to be grown solely outdoors, and that it is therefore 
permissible to cultivate it in indoor environments, namely greenhouses, 
photovoltaic greenhouses and similar structures. By limiting the cultivation of 
hemp to hemp grown in fields, the Ministry of Agriculture and Rural 
Development, through the defendant, is refusing to recognise a sector that has 
already been recognised by the European Commission and, by implication, is 
denying Romanian farmers access to the free internal market, contrary to the 
provisions of the FEU Treaty. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
26 The referring court notes that, having been seised of the appeal brought by the 
applicant, it is the court of last instance, and takes the view that the conditions for 
admissibility laid down in Article 267 TFEU are satisfied, since the question 
referred concerns the interpretation of Regulations Nos 1307/2013 and 1308/2013 
and Articles 35, 36 and 38 TFEU. 
27 Consequently, the request for a preliminary ruling addressed to the Court of 
Justice may provide clarifications to the referring court and to the parties on the 
solution to be adopted in this case, given that it is essential to the outcome of the 
dispute to determine whether other methods of cultivating hemp, such as in 
hydroponic systems in indoor environments prepared for that purpose, may also 
be authorised.