C-462/01

HAMMARSTEN

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 8 October 2002 1

I — Introduction 38 EC. Articles 28 and 30 EC are also applicable to agricultural products.

1. These proceedings concern the question whether Community law precludes a national provision which prohibits the 3. Under Article 32(3) EC, the products cultivation of hemp, a product governed subject to the provisions of Articles 33 to by a common organisation of the market. 38 EC are listed in Annex I of the EC Treaty. Entry No 57.01 in that list is: '[t]rue hemp {Cannabis sativa), raw or processed but not spun; tow and waste of true hemp (including pulled or garnetted rags or ropes)'.

I I—Legal framework

2. Secondary law

thereof, in the version relevant to this case, 'Whereas the increasing abuse of narcotics provided inter alia as follows: in the Community is likely to endanger human health;

'A system of aid shall be introduced for flax Whereas the stalk of true hemp may in and hemp grown in the Community. some cases contain intoxicating substances; whereas, however, the cultivation of hemp in the Community is of considerable sig- nificance in some regions; whereas, to prevent the danger referred to above from being increased by the cultivation of hemp in the Community and by imports of raw hemp and hemp seed, the aid granted under However, aid shall be granted only for Article 4 of Council Regulation (EEC) hemp grown from seed of varieties provid- No 1308/70 of 29 June 1970 on the ing certain safeguards to be determined in common organisation of the market in flax respect of the content of intoxicating sub- and hemp, as last amended by the 1979 Act stances in the harvested product. of Accession, should be limited to varieties providing adequate safeguards in terms of human health, and imports of hemp and hemp seed which do not provide adequate safeguards should be prohibited'.

(b) Regulation (EEC) No 619/71

5. The second subparagraph of Article 4(1) of Regulation No 1308/70 was inserted by 6. The general rules for granting aid for Council Regulation (EEC) No 1430/82 of flax and hemp were established, on the 18 May 1982 providing for restrictions on basis in particular of Article 4 of Regu- the importation of hemp and hemp seed lation No 1308/70, by Regulation (EEC) and amending Regulation No 1308/70 in No 619/71 of the Council of 22 March respect of hemp. 3The first and second 1971 laying down general rules for grant- recitals in the preamble thereto read: ing aid for flax and hemp. 4Article 3(1)

(c) Regulation (EC) No 1673/2000

9. Section 1 of the Narkotikastrafflag 7. Council Regulation (EC) No 1673/2000 [1968:641 (Law on Narcotics) prohibits of 27 July 2000 on the common organi- the cultivation or other processing of narcotics without the necessary authori- sation. 5 — As amended by Council Regulation (EG No 1420/98 of 26 June 1998 amending Regulation (EEC) No 619/71 laying down general rules for granting aid for flax and hemp (OJ 1998 L 190, p. 7). 6 — OJ 2000 I. 193, p. 16.

I-785

OPINION OF MRS STIX-HACKL — CASE C-462/01

10. Under Section 6 of the Narkotikastraf- I I I— Facts and main proceedings flag, narcotics which have been the subject of an infringement must be declared for- feited.

I-786

HAMMARSTEN

IV — Questions referred V — Arguments of the parties

17. The Halmstads Tingsrätt stayed pro- ceedings and referred the following ques- tions to the Court of Justice: A — Swedish Government

18. The Swedish Government submits that the free movement of goods represents a '(1) Does Article 28 of the Treaty of Rome fundamental Community principle and that permit a Member State to prohibit even the Community rules concerning cultivation or other processing of "in- industrial hemp are based on that principle. dustrial hemp" allowed under EC regu- The relevant common organisation of the lations? market does not provide for a prohibition of quantitative restrictions, and it is there- fore Articles 28 and 30 EC which are relevant for the purposes of determining whether the Swedish rules are compatible with Community law.

(2) If that is not the case, can an exception nevertheless be made under Article 30 of the Treaty of Rome with the result that such a prohibition does not con- flict with EC law? 19. This case, it submits, meets the criteria set out in the judgment in Keck and Mithouard. 7This means that Article 28 EC does not preclude a prohibition such as that under the Swedish rules. Those rules seek only to protect the health and life of humans and are not intended to regulate trade between the Member States. Fur- (3) If that is not the case, can the Swedish prohibition be accepted on some other ground?' 7 — Joined Cases C-267/91 and C-268/91 [1993] ECR I-6097.

20. If the rules at issue in these proceedings must nevertheless be classified as a measure prohibited by Article 28 EC, it contends that they are compatible with Community law since they are necessary in order to 23. In the view of the Swedish Govern- attain the objective pursued. ment, the cultivation of industrial hemp in Sweden significantly increases the risk of hemp with a high THC content being cultivated, since distinguishing between the different varieties is not possible with the naked eye but requires laboratory analysis. Moreover, plants do not exhibit their maximum content until they reach 21. The Swedish Government points out maturity. It is therefore easy to conceal the that cannabis is listed in both Schedule I cultivation of illegal plants. In addition, the and Schedule IV of the Single Convention rules regarding industrial hemp may on Narcotic Drags of 1961. Schedule IV increase the acceptance of other varieties. contains substances which must be made subject to the strictest controls. That con- vention merely establishes minimum stan- dards and States are entitled to introduce stricter rules, which may extend as far as prohibition. Moreover, the THC content is of no relevance under the convention. Cultivation for industrial purposes is not covered. 24. For those reasons, the comprehensive prohibition is justified. The Swedish Gov- ernment therefore proposes that the first question be answered in the affirmative, that is to say to the effect that Article 28 EC is to be interpreted as not precluding such a prohibition. The answer to the second 22. It is true that aid is available for the question, if necessary, should likewise be cultivation of industrial hemp and that such in the affirmative, that is to say to the effect cultivation is permitted under Community that such a prohibition is permitted under law. However, the objective pursued by Article 30 EC. In view of the answers to be Community agricultural law, in particular given to the first two questions, the third the common organisation of the market, is question, concerning whether there is any

25. The Commission points out at the outset that, although the questions referred concern Articles 28 and 30 EC, it never- theless appears advisable to examine the 27. The Commission points out, however, relationship between these and the provi- that national measures in an area governed sions concerning the common organisation by a common organisation of the market of the market. may, according to the case-law of the Court, be declared incompatible with provisions concerning the free movement of goods. Member States are not permitted to adopt measures that prejudice a common organisation of the market. Nevertheless, 26. The Commission takes the view that, the establishment of a common organi- where national provisions are inconsistent sation of the markets does not have the with both a common organisation of the effect of exempting agricultural producers market and the provisions of the Treaty from any national provisions intended to relating to the common market, the rule attain objectives other than those covered established by the judgment in Pigs and by the common organisation of the mar- Bacon Commission is to be applied. 8 kets. Under that rule, 'in the event of proceed- ings relating to an agricultural sector gov- erned by a common organisation of the market, the problem raised must first be examined from that point of view having regard to the precedence necessitated by Article 38(2) of the EEC Treaty [now, after amendment, Article 32(2) EC] for the specific provisions adopted in the context of the common agricultural policy over the 28. With regard to the questions referred, general provisions of the Treaty relating to the Commission is therefore of the opinion the establishment of the common market'. that an assessment of the compatibility of the Swedish rules with the common organi- sation of the market should precede the 8 — Case 177/78 Pigs and Bacon Commission v McCarren assessment of its compatibility with [1979] ECR 2161, paragraph 9. Articles 28 and 30 EC.

I-790

HAMMARSTEN

sation of the market and less restrictive cultivation, that is to say not to prevent all measures are possible. cultivation.

35. In the view of the Commission, the third question referred is too general and, 38. With regard to the questions referred, it therefore, unanswerable. should be pointed out that, although they relate expressly to the interpretation of primary law, they also contain a reference to secondary law, namely a common organisation of the market.

VI — Assessment

39. Even though the questions principally seek the interpretation of provisions of primary law, it may be expedient — in 36. Regard should be had first of all to the addition or instead as the case may be — Swedish Government's argument that to interpret other provisions of Community Sweden has an obligation under inter- law, that is to say ones which are applicable national law to prohibit the cultivation of to the main proceedings, in order to pro- hemp on the basis of the Single Convention vide the national court with an answer on Narcotic Drugs. It should be pointed out which will be of use to it in resolving the in this respect that, as the Commission case pending before it. To that end, it is rightly observes, the convention in question necessary first of all to determine the does not apply to cannabis cultivated for applicable legislation. industrial purposes.

'...in the event of proceedings relating to an 44. With regard to the legal significance of agricultural sector governed by a common common organisations of the market in organisation of the market the problem relation to national law, the Court has raised must first be examined from that made clear in its case-law that national point of view having regard to the preced- ence necessitated by Article 38(2) of the EEC Treaty [now, after amendment, 10—Judgment in Case 177/78 (cited in footnote 8), Article 32(2) EC] for the specific provisions paragraph 9; cf. also the judgments in Joined Cases 141/81, 142/81 and 143/81 Gerrit Holdijk and Others adopted in the context of the common [1982] ECR 1299, paragraph 12, and in Case 118/86 Nertsvöderfabriek Nederland [1987] ECR 3883, agricultural policy over the general provi- paragraph 12.

I-792

HAMMARSTEN

measures may not prejudice common 2. Possible justification for a national pro- organisations of the market. 11 hibition in the light of primary law

I - 793

OPINION OF MRS STIX-HACKL — CASE C-462/01

proceedings of the existence of a cross- any discrimination between producers in border element. However, the Court has the Community, laid down in the second consistently held that it may answer ques- subparagraph of Article 40(3) of the tions referred in relation to the interpre- Treaty, refers to the objectives pursued by tation of fundamental freedoms only where the common organisation and not to the such an element is present. 12 various conditions of production resulting from national rules which are general in character and pursue other objectives'. 13

52. The first condition is, according to the case-law of the Court, to be understood as meaning that 'the establishment of a com- mon organisation of the agricultural mar- kets pursuant to Article 40 of the Treaty does not have the effect of exempting 54. It should also be pointed out that the agricultural producers from any national Swedish legislation provides for a prohib- provisions intended to attain objectives ition. This supports the conclusion, at first other than those covered by the common glance, that Sweden has opted for one of organisation, even though such provisions the most stringent of measures. After all, as may, by affecting the conditions of produc- the Commission observes, cultivation could tion, have an impact on the volume or the also be made subject to authorisation, cost of national production and therefore given, perhaps, on fulfilment of certain on the operation of the common market in conditions. the sector concerned. The prohibition of

13 — Judgment in Case C-309/96 Anmbaldi [1997] ECR I-7493, 12 — See in this respect the judgment in Case C-510/99 Tridon paragraph 20. [2001] ECR I-7777, paragraph 46, and the decisions cited 14 — See in this respect my Opinion in Case C-224/00 Com- therein. mission v Italy [2002] I-2965, point 40 et seq.

I-794

HAMMARSTEN

V I I— Conclusion

55. In the light of all of the foregoing, it is proposed that the Court answer the questions referred as follows: