Factual and Procedural Background
The Applicant, owner of a business known as "Company A Hemp Shop" located at 17 Market Street, The City, has traded both physically and online since mid-2021, selling products containing cannabidiol ("CBD") and traces of delta-9-tetrahydrocannabinol ("THC"). On 24 September 2021, law enforcement officials executed search warrants at the business premises and the Applicant's residence, seizing various products including CBD oils and hemp-based items. Some seized products were returned, while others were sent for forensic analysis. The Applicant subsequently initiated judicial review proceedings challenging the prohibition on the importation and sale of products containing any THC, arguing that products with THC below a 0.2% threshold should not be considered controlled drugs under EU law but rather conventional goods subject to free movement under the Treaty on the Functioning of the European Union ("TFEU"). Leave for judicial review was granted in January 2022. Meanwhile, the Applicant faces ongoing criminal charges related to alleged offences on the date of the search. The Applicant has since abandoned challenges relating to the search warrants and certain regulatory grounds.
Legal Issues Presented
- Whether, under EU law, the Irish State is entitled to prohibit the importation and sale of products containing any level of THC, including those below a 0.2% threshold, on the basis that such products constitute narcotic drugs rather than conventional goods.
- Whether the designation of cannabinol derivatives, including THC, as controlled drugs under national law infringes the Applicant's constitutional and human rights, specifically the right to earn a livelihood.
Arguments of the Parties
Applicant's Arguments
- The Applicant contends that products containing CBD with THC levels below 0.2% should not be classified as narcotic drugs under EU law but as conventional goods, thus benefiting from the principle of free movement of goods under the TFEU.
- The Applicant relies heavily on a purposive interpretation of the European Court of Justice ("ECJ") judgment in Kanavape, asserting that this supports the argument that low-THC products are not narcotic drugs.
- The Applicant asserts that the statutory prohibition on products containing any THC infringes her constitutional right to earn a livelihood and property rights, linking this claim to the alleged incompatibility of national law with EU law.
- The Applicant sought to challenge the validity of the search warrants and related seizures, though this aspect was later abandoned.
- The Applicant requested a reference to the ECJ under Article 267 TFEU on an alleged discrepancy between the ECJ's judgment and Council of the European Union decisions.
Respondents' Arguments
- The Respondents maintain that THC is a controlled drug under national law regardless of concentration, and the prohibition is consistent with EU law and international obligations under the Single Convention on Narcotic Drugs 1961.
- The Respondents rely on the High Court's prior decision in Bogusas v. Minister for Health, which rejected similar arguments, and submit that the ECJ's Kanavape judgment does not support the Applicant's interpretation.
- They argue that the 0.2% THC threshold applies to the cannabis plant variety, not the finished product, and that there is no evidence that the Applicant's products fall below this threshold.
- The Respondents contend that the constitutional claims lack evidential and legal foundation, emphasizing the absence of proof that the statutory restrictions are disproportionate or that the products are harmless.
- They submit that the rejection by the Commission on Narcotic Drugs of amendments to exclude low-THC preparations from control confirms the continuing classification of such substances as narcotic drugs.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Bogusas v. Minister for Health [2022] IEHC 621 |
Rejection of argument that low-THC products are not controlled drugs; faithful implementation of ECJ Kanavape. |
The court followed this decision, finding no basis to depart from it and agreeing with its reasoning and outcome. |
| Kanavape, Case C-663/18, EU:C:2020:938 |
Purposive interpretation of narcotic drug definition under the Single Convention; distinction between plant variety THC threshold and finished product; legal issues over factual determinations. |
The court held that the ECJ's judgment did not support the Applicant's argument that products below 0.2% THC are not narcotic drugs; the judgment concerned a narrow legal issue and left factual determinations to the national court. |
| Josemans, Case C-137/09, EU:C:2010:774 |
Recognition that free movement of goods does not apply to narcotic drugs except under strict controls. |
The court cited this as establishing the general principle that narcotic drugs are excluded from free movement protections. |
| Jenkins v. Director of Public Prosecutions [2022] IEHC 291 |
Interlocutory assessment of arguability on EU law compatibility of Misuse of Drugs Act provisions. |
The court distinguished this interlocutory ruling from the present substantive judicial review, emphasizing the need for definitive findings. |
| A. v. Minister for Justice and Equality [2020] IESC 70, [2021] 3 I.R. 140 |
Criteria for departing from decisions of coordinate jurisdiction. |
The court applied these criteria to justify adherence to the Bogusas decision. |
| Muldoon v. Minister for the Environment and Local Government [2023] IECA 61 |
Requirement to substantiate claims of interference with right to earn a livelihood. |
The court relied on this to reject the Applicant's bare plea regarding constitutional rights. |
| Lallement v. France (No. 46044/99) |
ECtHR jurisprudence on deprivation of means of earning a living. |
The court found this case irrelevant to the facts and claims of the present case. |
| Re Worldport Ireland Ltd [2005] IEHC 189 |
High threshold for refusing to follow a judgment of coordinate jurisdiction. |
The court applied this standard in deciding to follow Bogusas. |
Court's Reasoning and Analysis
The court began by analyzing the legal status of THC and CBD under national and EU law, noting that THC is classified as a controlled drug under the Misuse of Drugs Act 1977 regardless of concentration. The Applicant's central contention that products containing less than 0.2% THC should be treated as conventional goods subject to free movement under EU law was scrutinized in light of the ECJ's judgment in Kanavape.
The court observed that the Kanavape ruling addressed a narrow legal question concerning the scope of a French derogation limited to hemp fibre and seeds, and did not establish a general principle that low-THC products are not narcotic drugs. The 0.2% THC threshold referred to in Kanavape applies to the cannabis plant variety, not the finished product, a distinction confirmed by French Ministry of Justice guidance and absent from the ECJ's ratio decidendi.
Further, the court emphasized that the ECJ adopted a purposive interpretation of the Single Convention on Narcotic Drugs, focusing on the protection of health and welfare. The question whether a substance is harmful and thus a narcotic drug is a factual determination for national courts. The Applicant conceded THC's psychoactive nature and did not provide evidence that her products fall below the 0.2% threshold or are harmless.
The court also considered the legislative history of the Single Convention, noting the explicit rejection by the Commission on Narcotic Drugs of a proposed amendment to exclude preparations containing up to 0.2% THC from control measures. This rejection reinforces that substances containing any THC remain within the scope of the Convention and thus outside the ambit of free movement protections under Article 34 TFEU.
Regarding the Applicant's constitutional and human rights claims, the court found these unsubstantiated and premised on an erroneous interpretation of EU law. The court referred to established jurisprudence requiring evidence of disproportionate interference with rights, which the Applicant failed to provide. The court also noted that even if a prima facie infringement existed, it would likely be justified under constitutional provisions allowing restrictions in the public interest.
Finally, the court declined the Applicant's request for a preliminary reference to the ECJ, finding no discrepancy between the ECJ's judgment and subsequent EU Council positions warranting such a step.
Holding and Implications
The court DISMISSED the application for judicial review in its entirety.
The holding confirms that the Irish State is entitled, consistent with EU law and international treaty obligations, to prohibit the importation and sale of products containing THC, irrespective of concentration. The court upheld the classification of such products as narcotic drugs, excluding them from the principle of free movement of goods under Article 34 TFEU. The constitutional and human rights challenges were rejected as unsubstantiated and legally flawed.
No new precedent was established; rather, the court affirmed existing jurisprudence, including the recent decision in Bogusas v. Minister for Health, and the purposive interpretation of narcotic drug regulation under EU law and international conventions.