CAMPOS SÁNCHEZ‑BORDONA

delivered on 21 March 2024 (1)

Case C‑793/22

Biohemp Concept SRL

Direcţia pentru Agricultură Judeţeană Alba

(Request for a preliminary ruling from the Curtea de Apel Alba Iulia (Court of Appeal, Alba Iulia, Romania))

(Preliminary ruling proceedings – Common agricultural policy – Regulations (EU) No 1307/2013 and (EU) No 1308/2013 – Hemp cultivation – Concept of agricultural area – Exclusion of land occupied by agricultural and livestock constructions and facilities used for agricultural production needs – Prohibition of the cultivation of hemp using a hydroponic system in an indoor environment – Increased level of cannabidiol (CBD) in the hemp – Protection of public health)

The cultivation of hemp is permitted within the framework of the Common Agricultural Policy (CAP), subject to limitations aimed at ensuring that only varieties are planted that, on account of their low levels of psychoactive cannabinoids, are not suitable for the production of cannabis and other similar narcotic drugs.

In this reference for a preliminary ruling, the Court of Justice is required to rule on the compatibility with EU law of a measure adopted by the Romanian authorities which prohibits the cultivation of hemp in an indoor space fitted with a hydroponic system.

Recital 28 reads:

‘As regards hemp, specific measures should be kept to ensure that illegal crops cannot be hidden among the crops eligible for the basic payment, thereby adversely affecting the market for hemp. Hence, payments should continue to be granted only for areas sown with varieties of hemp offering certain guarantees with regard to its psychotropic substance content.’

Article 4 (‘Definitions and related provisions’) is worded as follows:

‘1. For the purposes of this Regulation, the following definitions shall apply:

…

(c) “agricultural activity” means:

(i) production, rearing or growing of agricultural products, including harvesting, milking, breeding animals, and keeping animals for farming purposes,

…

(d) “agricultural products” means the products, with the exception of fishery products, listed in Annex I to the Treaties as well as cotton;

(e) “agricultural area” means any area taken up by arable land, permanent grassland and permanent pasture, or permanent crops;

(f) “arable land” means land cultivated for crop production or areas available for crop production but lying fallow, including areas set aside in accordance with Articles 22, 23 and 24 of Regulation (EC) No 1257/1999, with Article 39 of Regulation (EC) No 1698/2005 and with Article 28 of Regulation (EU) No 1305/2013, irrespective of whether or not that land is under greenhouses or under fixed or mobile cover;

…’

Article 32 (‘Activation of payment entitlements’) provides:

‘1. Support under the basic payment scheme shall be granted to farmers, by means of declaration in accordance with Article 33(1), upon activation of a payment entitlement per eligible hectare in the Member State where it has been allocated. …

(a) any agricultural area of the holding, including areas that were not in good agricultural condition on 30 June 2003 in Member States acceding to the Union on 1 May 2004 that opted upon accession to apply the single area payment scheme, that is used for an agricultural activity or, where the area is also used for non-agricultural activities, is predominantly used for agricultural activities; …

…

3. For the purposes of point (a) of paragraph 2:

(a) where an agricultural area of a holding is also used for non-agricultural activities, that area shall be considered to be used predominantly for agricultural activities provided that those agricultural activities can be exercised without being significantly hampered by the intensity, nature, duration and timing of the non-agricultural activities;

(b) Member States may draw up a list of areas which are predominantly used for non-agricultural activities.

Member States shall establish criteria for the implementation of this paragraph on their territory.

…

Areas used for the production of hemp shall only be eligible hectares if the varieties used have a tetrahydrocannabinol content not exceeding 0.2%.’

In accordance with Article 1 (‘Scope’):

‘1. This Regulation establishes a common organisation of the markets for agricultural products, which means all the products listed in Annex I to the Treaties with the exception of the fishery and aquaculture products as defined in Union legislative acts on the common organisation of the markets in fishery and aquaculture products.

…

(h) flax and hemp, Part VIII;

…’

Part VIII of Annex I (‘List of products referred to in Article 1(2)’) includes ‘true hemp (Cannabis sativa L.)’ with CN code 5302.

Article 189 (‘Imports of hemp’) provides:

‘1. The following products may be imported into the Union only if the following conditions are met:

(a) raw true hemp falling within CN code 53021000 meeting the conditions laid down in Article 32(6) and in Article 35(3) of Regulation (EU) No 1307/2013[;]

(b) seeds of varieties of hemp falling within CN code ex12079920 for sowing accompanied by proof that the tetrahydrocannabinol level of the variety concerned does not exceed that fixed in accordance with Article 32(6) and in Article 35(3) of Regulation (EU) No 1307/2013;

(c) hemp seeds other than for sowing, falling within CN code 12079991 and imported only by importers authorised by the Member State in order to ensure that such seeds are not intended for sowing.

Article 2(a) states:

‘Depending on its use, land is:

(a) land used for agricultural purposes, namely:

– productive agricultural land – 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.’

In accordance with Article 12:

‘(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 Ministry of Agriculture, Forestry and Rural Development, issued through the provincial directorates of 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 rules for its implementation.

…

(4) Authorised cannabis and opium poppy growers shall be required to sow land they hold only with the seed varieties registered in the official catalogue of crop varieties and hybrids of Romania or in the 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.’

3. Rules for the implementation of Law 339/2005 (6)

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 provincial directorates of 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 or certificates of possession or any other act proving that the area of agricultural land is being lawfully used;

…’

II. Facts, dispute and question referred for a preliminary ruling

On 14 January 2021, Biohemp Concept SRL (‘Biohemp’) applied to the Provincial Directorate of Agriculture, Alba (Romania) (‘the provincial authority’) for a permit to cultivate hemp (Cannabis sativa L.) on an area of 0.54 hectares.

On 27 January 2021, the provincial authority issued a permit for an area of only 0.50 hectares. However, the provincial authority refused to issue a permit for the area of 0.04 hectares on the ground that it was not agricultural land but rather a building for agricultural and livestock purposes which did not satisfy the conditions laid down in Article 4(5)(b) of the Rules for the implementation of Law 339/2005.

Biohemp lodged a complaint against the decision of 27 January 2021, which the provincial authority dismissed on 17 February 2021.

On 13 April 2021, Biohemp brought an action before the Tribunalul Alba (Regional Court, Alba, Romania), seeking a permit for the full area of 0.54 hectares.