Criminal proceedings against B S and C A.
Date: 2020-11-19
49


According to the HS Explanatory Notes, which are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (judgment of 13 September 2018, Vision Research Europe, C‑372/17, EU:C:2018:708, paragraph 23), heading 53.02 of the HS Convention covers ‘raw hemp as harvested, whether or not the leaves and seeds have been removed’, ‘retted hemp in which the fibres are still attached to the woody part of the plant, but have been loosened by the retting’, ‘scutched hemp which comprises the isolated fibres, sometimes 2 m or more in length, separated from the plant by scutching’, ‘combed hemp or hemp fibres otherwise prepared for spinning, generally in the form of slivers or rovings’ and ‘tow and waste of hemp’.
59


As a preliminary point, it should be borne in mind that, since the harmfulness of narcotic drugs, including those derived from hemp, such as cannabis, is generally recognised, there is a prohibition in all the Member States on marketing them, with the exception of strictly controlled trade for use for medical and scientific purposes (judgment of 16 December 2010, Josemans, C‑137/09, EU:C:2010:774, paragraph 36).
60


That legal position complies with various international instruments which the Member States have cooperated on or acceded to, such as the Single Convention and the Convention on Psychotropic Substances. The measures provided for by those instruments were subsequently strengthened and supplemented by the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, concluded in Vienna on 20 December 1988 (United Nations Treaty Series, vol. 1582, No 1‑27627), to which all the Member States and the European Union are parties. That legal position is also justified in the light of EU law and, in particular, of Framework Decision 2004/757 and Article 71(1) of the Convention implementing the Schengen Agreement (see, to that effect, judgment of 16 December 2010, Josemans, C‑137/09, EU:C:2010:774, paragraphs 37 to 40).
61


It follows that narcotic drugs which are not distributed through channels which are strictly controlled by the competent authorities to be used for medical and scientific purposes are, because of their very nature, subject to a prohibition on importation and offering for sale in all the Member States (judgment of 16 December 2010, Josemans, C‑137/09, EU:C:2010:774, paragraph 41).
62


As narcotic drugs which are not distributed through such strictly controlled channels are prohibited from being released into the economic and commercial channels of the European Union, persons who market those products cannot rely on the freedoms of movement or the principle of non-discrimination, in so far as concerns the marketing of cannabis (judgment of 16 December 2010, Josemans, C‑137/09, EU:C:2010:774, paragraph 42).
66


As regards the interpretation of an international convention such as the Single Convention, it should be recalled that, in accordance with settled case-law, an international treaty must be interpreted by reference to the terms in which it is worded and in the light of its objectives. Article 31 of the Vienna Convention of 23 May 1969 on the Law of Treaties (United Nations Treaty Series, vol. 1155, p. 331), and Article 31 of the Vienna Convention of 21 March 1986 on the Law of Treaties between States and International Organisations or between International Organisations (Official Records of the Conference of the United Nations on the Law of Treaties between States and International Organisations or between International Organisations, vol. II, p. 91), which express, to this effect, general customary international law, state that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose (see, to that effect, judgment of 10 January 2006, IATA and ELFAA, C‑344/04, EU:C:2006:10, paragraph 40).
79


In that regard, it should be recalled that the free movement of goods between Member States is a fundamental principle of the FEU Treaty which is expressed in the prohibition, set out in Article 34 TFEU, of quantitative restrictions on imports between Member States and all measures having equivalent effect (judgment of 18 June 2019, Austria v Germany, C‑591/17, EU:C:2019:504, paragraph 119).
80


According to settled case-law, the prohibition of measures having equivalent effect to quantitative restrictions on imports laid down in Article 34 TFEU covers any measure of the Member States that is capable of hindering, directly or indirectly, actually or potentially, intra-Union trade (judgment of 18 June 2019, Austria v Germany, C‑591/17, EU:C:2019:504, paragraph 120).
81


Further, a measure, even if it has neither the object nor the effect of treating goods coming from other Member States less favourably, also falls within the scope of the concept of a ‘measure having equivalent effect to quantitative restrictions’, within the meaning of Article 34 TFEU, if it hinders access to the market of a Member State of products originating in other Member States (judgment of 18 June 2019, Austria v Germany, C‑591/17, EU:C:2019:504, paragraph 121).
83


However, it is apparent from settled case-law that such a measure can be justified on one of the grounds of public interest laid down in Article 36 TFEU or by imperative requirements. In either case, the provision of national law must be appropriate for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain it (judgment of 18 June 2019, Austria v Germany, C‑591/17, EU:C:2019:504, paragraph 122).
84


Further, a restrictive measure can be considered to be an appropriate means of securing the achievement of the objective pursued only if it genuinely reflects a concern to secure the attainment of that objective in a consistent and systematic manner (judgment of 23 December 2015, Scotch Whisky Association and Others, C‑333/14, EU:C:2015:845, paragraph 37).
85


In so far as the French Republic claims that the aim of its legislation prohibiting the marketing of products derived from parts of the Cannabis plant other than its fibre and seeds is to protect public health as set out in Article 36 TFEU, it must be recalled that the health and life of humans rank foremost among the assets and interests protected by the FEU Treaty and that it is for the Member States to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved. Since that level may vary from one Member State to another, Member States should be allowed a measure of discretion (judgment of 19 October 2016, Deutsche Parkinson Vereinigung, C‑148/15, EU:C:2016:776, paragraph 30).
86


That discretion relating to the protection of public health is particularly wide where it is shown that uncertainties continue to exist in the current state of scientific research as to certain substances used by consumers (see, to that effect, judgment of 28 January 2010, Commission v France, C‑333/08, EU:C:2010:44, paragraph 86).
87


Since Article 36 TFEU contains an exception, which must be narrowly interpreted, to the free movement of goods within the European Union, it is for the national authorities which invoke it to demonstrate in each case, taking account of the results of international scientific research, that their legislation is necessary in order effectively to protect the interests referred to in that provision, and, in particular, that the marketing of the products in question poses a genuine threat to public health that must undergo an in-depth assessment (judgment of 28 January 2010, Commission v France, C‑333/08, EU:C:2010:44, paragraphs 87 and 88).
88


A decision to prohibit marketing, which indeed constitutes the most restrictive obstacle to trade in products lawfully manufactured and marketed in other Member States, can be adopted only if the real risk alleged for public health appears sufficiently established on the basis of the latest scientific data available at the date of the adoption of such a decision. In such a context, the object of the risk assessment to be carried out by the Member State is to appraise the degree of probability of harmful effects on human health from the use of prohibited products and the seriousness of those potential effects (judgment of 28 January 2010, Commission v France, C‑333/08, EU:C:2010:44, paragraph 89).
89


In exercising their discretion relating to the protection of public health, the Member States must comply with the principle of proportionality. The means which they choose must therefore be confined to what is actually necessary to ensure the safeguarding of public health; they must be proportional to the objective thus pursued, which could not have been attained by measures which are less restrictive of intra-Community trade (judgment of 28 January 2010, Commission v France, C‑333/08, EU:C:2010:44, paragraph 90).
90


It is true that the assessment which a Member State is required to make may reveal a high degree of scientific and practical uncertainty in that regard. Such uncertainty, which is indissociable from the concept of precaution, influences the extent of the discretion of the Member State and thus has an impact on the means of applying the proportionality principle. In such circumstances, it must be acknowledged that a Member State may, under the precautionary principle, take protective measures without having to wait for the reality and the seriousness of those risks to be fully demonstrated. However, the assessment of the risk cannot be based on purely hypothetical considerations (judgment of 28 January 2010, Commission v France, C‑333/08, EU:C:2010:44, paragraph 91).
91


A correct application of the precautionary principle presupposes, first, identification of the potentially negative consequences for health of the proposed use of the substance at issue and, second, a comprehensive assessment of the risk to health based on the most reliable scientific data available and the most recent results of international research (judgment of 28 January 2010, Commission v France, C‑333/08, EU:C:2010:44, paragraph 92).
92


Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures, provided they are non-discriminatory and objective (judgment of 28 January 2010, Commission v France, C‑333/08, EU:C:2010:44, paragraph 93).