October 22, 2021
In its decision of 8 October 2021, the Council of State acceded to the request of the French Association of Cannabinoid Producers (AFPC) to refer to the Constitutional Council the question of the conformity of the narcotics regulations relating to cannabis (L. 5132-1, L. 5132-7 and L. 5132-8 of the Public Health Code (PHC)) with the rights and freedoms guaranteed by the Constitution. This is a first in the field, which our associates discuss in an article published on the Village de la Justice.
In this case, the Conseil d'Etat considered, for the first time, the serious nature of the infringement of this regulation on the freedom of enterprise with regard to the scope and lack of supervision of the regulatory power (Director General of the ANSM or Minister of Health) to classify substances on the lists of poisonous and stupefying substances and to limit or even prohibit their use (production, manufacture, transport), possession and marketing.
This case comes at a time when the draft order amending theorder of 22 August 1990 implementing Article R. 5132-86 of the PHC for cannabis is currently being analysed by the European Commission under the notification procedure for technical acts provided for in Directive 2015/1535. This draft order draws - in part - on the consequences of the"Kanavape" ruling handed down by the CJEU last November, which cannot satisfy all operators as it stands.
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