EU Court of Justice Recognizes Right to Indoor Hemp Cultivation

The EU Court of Justice ruled that indoor hemp cultivation using hydroponic systems is eligible for direct agricultural payments under the Common Agricultural Policy. The Court noted that national restrictions on indoor hemp cultivation must be proportionate and consistently applied while suggesting concerns over THC levels and monitoring as a more appropriate solution than outright bans.

The EU Court of Justice (CJEU) has issued an important ruling regarding the possibility of cultivating hemp indoors while remaining eligible for direct agricultural payments under the Common Agricultural Policy (CAP).

This case stems from Romania, where national authorities banned the indoor cultivation of hemp using hydroponic systems, fearing that this method could increase THC levels beyond the national limit of 0.2%.

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The Case Before the EU Court of Justice

The central issue in this case before the EU Court of Justice revolves around a legal dispute between Biohemp Concept SRL, a company seeking to grow hemp, and a Romanian provincial agricultural authority.

Biohemp applied for a permit to cultivate hemp on 0.54 hectares of land, including an indoor space using a hydroponic system. The provincial authority granted a permit for only 0.50 hectares, excluding the indoor space because it was not considered agricultural land under Romanian law.

Biohemp contested this decision, arguing that European legislation does not require hemp to be grown exclusively in open fields and that indoor cultivation using hydroponic systems, which results in higher cannabidiol (CBD) content, should be allowed.

The provincial authority countered by citing Romanian and European regulations, suggesting that hemp cultivation is generally considered an outdoor activity. The Alba Iulia Court of Appeals referred a question to the CJEU, asking whether EU regulations and treaty provisions prevent national laws from banning indoor hemp cultivation using hydroponic systems.

Thus, the case centers on whether national restrictions on indoor cultivation conflict with EU law, particularly regarding the free movement of goods and agricultural production standards.

Key Aspects of the Decision

1. Definition of Agricultural Land and Hemp Cultivation: The CJEU ruling clarifies the definition of “agricultural area” under Regulation No. 1307/2013. The Court emphasized that indoor hemp cultivation using hydroponic systems can still be considered “arable land” and eligible for direct payments, even when conducted in a closed environment. The definition of arable land includes areas under greenhouses or other fixed structures, and the ruling rejects the notion that interaction with soil is a necessary condition for classification as agricultural land.
2. Hydroponics as an Agricultural Method: The ruling also acknowledges technological advancements in agriculture, particularly the use of hydroponic systems. Hydroponic cultivation, which does not require soil, offers proven advantages such as reducing water consumption, minimizing pesticide use, and lowering emissions due to proximity to urban areas. These features align with CAP objectives, which include increasing agricultural productivity and the rational use of resources. The CJEU ruled that the absence of soil interaction does not prevent hydroponic systems from being considered agricultural production.
3. THC and CBD Levels in Hemp: The CJEU addressed Romania’s concerns about increased THC levels in indoor-grown hemp. The Court noted that under EU law, hemp varieties eligible for direct payments must contain THC levels below 0.3%. Biohemp, the party involved in the case, argued that indoor hydroponic cultivation increases CBD levels without raising THC content. The Court emphasized that while national authorities have the right to regulate hemp cultivation to protect public health, any restrictions must be proportionate and applied consistently across the country.
4. Romanian Ban and the Principle of Proportionality: The ruling underscored the importance of proportionality in the implementation of national restrictions. Romania’s blanket ban on indoor hemp cultivation was deemed potentially excessive. The Court suggested that instead of outright banning indoor hemp cultivation, strict monitoring and sampling of THC levels in hemp could be a more proportionate response to public health concerns. Furthermore, the CJEU questioned whether the measures taken by Romania were applied uniformly across the country, given that some provinces had previously permitted indoor cultivation.

The CJEU’s decision sets a precedent for the treatment of non-traditional agricultural methods, such as hydroponic cultivation, under the CAP. Technological advancements in agriculture should not be hindered by outdated regulations.

Indoor hemp cultivation using hydroponic systems may qualify for direct payments, provided that THC content limits are respected, and national restrictions must be proportionate and systematically applied.

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(Featured image by Christian Lue via Unsplash)

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