On November 19, 2020 the Court of Justice of the European Union (C-663/18) issued a ruling on the question of whether a national ban on the marketing of cannabidiol (CBD) derived from the entire cannabis sativa plant and not only from its fibres and seeds is contrary to EU law.
According to the now issued decision, such a regulation as an import restrictive measure having equivalent effect within the meaning of Article 34 TFEU constitutes a restriction on the free movement of goods. It had the effect that CBD products that have been legally manufactured in a European Member State from the whole cannabis sativa plant cannot be marketed in the country concerned and therefore constitutes a restriction of the free movement of goods that is fundamentally contrary to EU law. Art. 34 TFEU is also applicable to such regulations, since CBD is not an addictive substance.
At the same time, however, the CJEUmade it clear that such a restriction of the free movement of goods could be justified by one of the reasons of public interest listed in Article 36 TFEU, such as, public health protection (the French Government refers to this), provided that the measure is appropriate and necessary to that end. The question of appropriateness and necessity is a question to be resolved by the national courts in each specific case. The CJEUpointed out that there would be considerable doubt as to the suitability of the French regulation if it were true that synthetically manufactured CBD products were not covered by the French marketing ban.
It remains to be seen how the French court will assess the suitability and necessity of the French regulation. Nevertheless, the decision is already a success for the CBD market in Europe.