And, in doing so, the Justices have upped the pressure on the European Commission to jettison proposals to outlaw over-the-counter CBD sales.
Speaking to BusinessCann she said that in some determinations the European Court of Justice (ECJ) can often prevaricate, caveat, obfuscate and leave room for multitude interpretations of its rulings.
But, on this case the judges went much further than expected.
She said: “I believed we had very good chances of success, but was concerned the court would, maybe, lack the courage.
Tackling The Key Issues
“In many cases ECJ rulings are very general; they may confirm overall principles, but look to establish no clear positions.
“If the court wanted to avoid taking a position it could have. But with this ruling they are very clear on the key point of principle: CBD is not a narcotic, and in doing so they have gone further than expected.
“It is good for the rule of law that they have given a judgement that is very well-reasoned, from a legal perspective, and has actually tackled the issues, and not shied away from them.”
Ms Van Keymeulen, Head of the Life Sciences Regulatory Practice for international law firm Allen & Overy, was appointed to lead in the ECJ appeal, in 2018, by one of the French creators of the KanaVape e-cigarette Antonin Cohen.
French authorities had determined KanaVape to be illegal due to the presence of Czech CBD, extracted from the flower and leaves, elements of the plants which are outlawed in France.
Following a conviction, an appeal was lodged in 2018 and in October, last year, Ms Van Keymeulen appeared at an oral court hearing before the ECJ in Luxembourg.
Cannabis Extracts’ Question
French prohibition is related to the status of cannabis extracts under the international drug treaties – and the court acknowledged that a ‘literal interpretation’ of cannabis extracts in such treaties could support the lower French court’s decision.
However, the ECJ dismissed this interpretation saying the CBD, in question, was taken from hemp plants with less than 0.2% THC, and the CBD, in question, ‘does not appear to have any psychotropic effect or any harmful effect on human health on the basis of available scientific data’.
The Paris-based, Belgian lawyer said: “The court went into great depth in examining the purpose and sprit of the international conventions.
“What the ECJ is now saying is that when you have a cannabis extract, and that final extract is not psychotropic and there is no proven harm, or risk, to public health, there is no reason under the sprit, or purpose, of these international conventions, that it should be considered a drug.
“That had not been the intention of the parties to the international conventions and this is a very sensible and correct interpretation.”
Synthetic Versus Natural CBD
One further key point which supported the KanaVape case related to French inconsistency in the treatment of natural and synthetic CBD.
In France, synthetic CBD is not covered by the present prohibition. “That is something the court picked upon and France was robustly challenged on this,” she added.
The ECJ’s clear interpretation of the meaning, and intent, of the cannabis extracts phrase will now put the European Commission under pressure to U-Turn, once more, on its narcotic CBD position.
Ms Van Keymeulen added: “The Commission, is in principle, bound by what the ECJ says so hopefully will now take into account this judgement. However, within the Commission, its politicians, its various departments there is a lot of confusion and different interpretations, which is exactly what should be avoided as the EU position on CBD should be harmonised.”
An EU spokesperson told BusinessCann:“The Commission takes note of the Court’s ruling regarding the commercialisation of cannabidiol (CBD) and will carefully assess the judgement.”
BusinessCann understands talks on this are planned for early December but not until after a meeting of the UN Commission on Narcotic Drugs.
It is scheduled to vote on six recommendations which could change the scheduling of cannabis and related substances in two international drug treaties.
However, one outcome for the CBD industry is that enforcement action across the member states could be suspended and, any businesses being prosecuted for selling CBD should sense victory by deferring to this ruling from Europe’s top court.
@The five justices sitting on the KanaVape case were Michail Vilaras, President of the Chamber, Nuno Piçarra, Daniel Šváby, Siniša Rodin and Küllike Jürimäe. See here.