A test action challenging Ireland's outright ban on the sale of any products containing the principal psychoactive constituent of cannabis, has opened before the High Court.
The action has been brought by Andrius Rogusas of Crowe Street, Dundalk, who on 21 October, 2020 had goods, namely oils that he imported from Slovenia, seized by Customs on the basis they were prohibited by national legislation.
He claims that the goods were legally made in another EU country and contained less than 0.2% Tetrahydrocannabinol (THC), which is the psychoactive constituent of cannabis; they do not constitute narcotic drugs.
Mr Rogusas, who is represented by Derek Shortall SC, Stephen Faulkner Bl, instructed by solicitor Niall Breen, claims that Ireland's 1977 Misuse of Drugs Act, contains an outright ban on all products containing any amount THC is contrary to EU laws concerning the free movement of goods.
He claims that a decision of the Courts of Justice of the European Union allows products with less than 0.2% THC to be manufactured and sold within the EU, and that such products cannot be completely banned.
He claims that the products, including ones containing THC, can only be banned on public health grounds on the basis of up-to-date scientific data and assessments of those products.
The claims are denied, and the court was told that the State respondent's position is that THC is a controlled drug, which it is fully entitled to prohibit.
The businessman has brought judicial review proceedings are against the Minister for Health, Minister Finance and the Attorney General, and the Revenue Commissioners.
His action is one of several similar challenges brought before the courts where the State's ban on products containing THC have been raised.
In his action, the businessman seeks a declaration from the court that the absolute prohibition of all products containing any level of THC as contained in the 1977 Misue of Drugs Act has not been determined in compliance with EU law.
He also wants the declaration to say that State has failed to carry out the necessary assessments taking account of the results of international scientific research to determine if the legislation is necessary.
He further seeks an order compelling the appropriate state party to carry out the necessary assessments to demonstrate and determine if the legislation banning all products with THC is required.
Opening the case, Mr Shortall said that the key legal issue in the action concerned what counsel said is an obligation by the State to carrying out of scientific tests and assessments of products containing THC to determine if any outright ban on these items can justified.
Counsel said that it was his client's case that no such tests have been carried out on the products such as the ones seized from his client.
Counsel said that it has not been denied by the state that no such testing has been carried out.
The respondents oppose the action.
In his submissions to the court, Rossa Fanning SC, with Bairbre O'Neill Bl, for the Ministers and the State said that his client's position "is clear" namely that "THC is a controlled drug".
Counsel said that the Department of Health does keep an open mind on the issue of the outright ban and accepts that the issue is one where there has been debate.
Counsel said that the World Health Organization had made a recommendation that legislation banning CBD products with 0.2% THC should be relaxed.
However, bodies including a committee of the European Council that considers issues to do with narcotics rejected the WHO's recommendation, counsel said.
Mr Fanning said that the court should not be left with the impression that Ireland is out of kilter with other nations on this issue and argued that the reliefs sought by the applicant should not be granted because of the narrow findings made in one case by the CJEU.
The challenge is also being opposed on technical grounds including that the action was brought outside of the three-month legal time limit allowed to have a decision judicially reviewed.
The hearing before Mr Justice Alexander Owens, continues.