N. 5057/2024 RGNR
N. 1445/2025 RGGIP.

BRINDISI COURT

GIP-GUP Section

ORDER 2/12/2025
art. 23 Law 11 March 1953 n. 87

The Judge,

Having read the documents of the proceedings indicated in the epigraph and lifting the reservation assumed at today’s hearing of 06.26.2025;

NOTES

1. Introduction. Reconstruction of the facts.

On 06.12.2024, officials and personnel serving with the Brindisi Financial Police – 2nd Operational Unit subjected to checks vehicles and passengers arriving in Brindisi – Costa Morena Ovest – from Greece on the M/N E. and, in particular, the articulated trucks of Bulgarian registration respectively TG ………. and TG ……… and conducted by D. and Y.

The first of the two, during the inspection, exhibited the following commercial documentation:

– C sn dated 04.12.2024 indicating 1,120 pcs for a weight of 440 kg of “Cartoni” shipped by K. and destined for “M. Società Semplice Agricola”;

– C. sn dated 04.12.2024 indicating 242 pcs for a weight of 1510 kg of “Industrial Hamp (Cannabis Sativa L.)” shipped by K. and destined for M. Società Semplice Agricola

– Photocopy of documents no. 0001448 (variety Fenom1) – 0001449 (variety Fenom1)

– 0001451 (variety Fenom1) all of the plant species Cannabis sativa L.;

– Test Report dated 15.10.2024 no. xxxxx signed by D., drawn up in Bulgarian and English, of the Testing Center GLOBALTEST on behalf of “Executive 1Agency for Variety testing, Field Inspection and Seed Control” of Sofia (BG) relating to the determination of the parameter “THC – Tetrahydrocannabinol”;

– “Pre-Export” Certificate no. EU/BG 2600014 of 04.12.2024 issued by the Bulgarian Food Safety Agency in favor of the consignor sm1;

– Sampling protocol for plants of the hemp genus no. 24-2001383 of 04.09.2024 drawn up in Bulgarian and relating to the product Cannabis sativa L. FENOM1;

– Authorization for the cultivation of plants of the hemp genus (cannabis) with a THC content lower than 0.3% drawn up in Bulgarian no. P009-918 of the Ministry of Agriculture and Food for cultivation no. EIK207292609 of 08.23.2023;

– Blank confirmation receipts for the receiving company.

Furthermore, Y. made the following documentation available to the operators:

– C. sn dated 12.04.2024 indicating 81 pcs for a weight of 1,903 Kg of “Industrial Hamp (Cannabis Sativa L.), shipped by “KANNABIS 33 EOOD” and destined for M. Società Semplice Agricola”;

– C. sn dated 12.04.2024 indicating 1,120 pcs for a weight of 440 Kg of “Cartons” shipped by “KANNABIS 33 EOOD” and destined for M. Società Semplice Agricola;

– Photocopy of documents no. 0000468 (Fenoswiss variety) – 0000518 (Fenomoon variety) – 0000519 (Fenomoon variety) 0000520 (Fenomoon variety) – 0000521 (Fenomoon variety), all of the plant species Cannabis sativa L.;

– Test Report dated 15.10.2024 no. RA89497 signed by Dimitar Tanev, drawn up in Bulgarian and English, by the Testing Center GLOBALTEST on behalf of the “Executive Agency for Variety testing, Field Inspection and Seed Control” of Sofia (BG), relating to the determination of the parameter “THC – Tetrahydrocannabinol”;

– Pre-Export Certificate No. EU/BG 2600013 dated 12/04/2024 issued by the Bulgarian Food Safety Agency in favor of the consignor sm1;

– Authorization for the cultivation of plants of the hemp genus (cannabis) with a THC content lower than 0.3% drawn up in Bulgarian No. P009-918 of the Ministry of Agriculture and Food for cultivation No. EIK207292609 dated 08/23/2023.

In order to determine the THC content present in the goods 2 transported by the aforementioned articulated trucks, as well as the exact customs classification of the same, on 12/09/2024 personnel serving at the anti-fraud department of the Brindisi Customs and the Guardia di Finanza carried out sampling of the goods in question and sent, in total, 24 samples to the ADM Laboratory in Bari. The results of the analyses confirmed that it was Cannabis sativa L., classified under the code NC12119086 (plants, parts of plants, seeds and fruits, of the species used primarily in perfumery, in medicine or in the preparation of insecticides, pesticides or similar products, fresh, chilled, frozen or dried, whether or not cut, crushed or powdered), or under the code NC 53021000 (raw or macerated hemp), with a THC content greater than 0.2%.

Given that both in the documents relating to the testing activity requested from the Executive Agency for the Analysis of Varieties, Approval and Control of Seeds of the Bulgarian Ministry of Agriculture and Food, and in the sampling protocols for plants of the hemp genus No. 24-2001383 of 04.09.2024, drawn up in Bulgarian and relating to the product Cannabis sativa L. (documentation presented by the D. during the inspection) Reference was made to the Cannabis varieties “FENOM1” “FENOMOON” and

“FENOSWISS”, the aforementioned personnel proceeded to consult the European Portal “EUPVP” (which lists all the plant and agricultural species that can be marketed in the EU pursuant to Article 17 of Council Directive 2002/53/EC of 13 June 2002) and the institutional website of the Executive Agency for the Analysis of Varieties, Approval and Control of Seeds of the Bulgarian Ministry of Agriculture and Food. From the aforementioned check it emerged that,the “FENOM1” Cannabis varieties,

“FENOMOON” and “FENOSWISS” are not among the varieties registered on the European Portal “EUPVP”, nor are they included in the “official list of agricultural plant and vegetable varieties accepted for certification and trade in the territory of the Republic of Bulgaria”.

Consequently, the goods being transported and inspected were seized pursuant to Article 354 of the Code of Criminal Procedure, and the crime report was communicated with CNR prot. Nos. 18685 and 18686 of December 16, 2024, to the Public Prosecutor’s Office at the Court of Brindisi. The following day (specifically, on December 17, 2024), the crime report was registered against A. and C., in their capacity as partners and legal representatives of M. Società Semplice Agricola, the recipient of the seized goods.

On January 29, 2025, the prosecutor assigned to these criminal proceedings appointed Dr. Giacoma Mongelli, as a technical consultant, to perform a chemical-toxicological assessment on the substance contained in Exhibit 3, to answer the following questions: “The consultant should carry out a representative sampling of the seized plant substance, taking only the inflorescences contained in a minimum of at least 20 of the 240 cardboard boxes transported in the first load and a minimum of at least 8 of the 81 cardboard boxes transported in the second load; he should carry out the sampling according to the correct scientific methods; he should ascertain whether the plant variety documented in the documents falls within one of those included in the common catalogue of varieties of agricultural plant species pursuant to Article 17 of Council Directive 2002/53/EC of 13 June 2002; ascertain, for each sample formed, whether the inflorescences included in the single sample contain narcotic or psychotropic substances (hypothetically THC) according to current legislation, indicating the table to which they belong and the qualitative composition and whether they contain other non-narcotic substances (hypothetically CBD); quantitatively determine, using a chromatographic technique, the percentage and absolute content of the narcotic active ingredients contained in the inflorescences of the single sample (% of active ingredient and total mg of active ingredient present in each sample); in the event that the results of the sample analyses show significant discrepancies with the results and values ​​obtained by the technicians of the Customs and Monopolies Agency laboratory as reported in the test reports in the files, explain the reasons for such discrepancies, after having consulted the reporting technicians and verified the correctness of the method used by them; report on the drugging potential, taking into consideration the possible methods of ingestion of the active ingredient THC and the interference with the simultaneous intake of the CBD ingredient and the cumulative effects of possible multiple intakes (multiple joints) in a short period of time; also with reference to any possible associations of THC with other substances; report any other information useful to the investigation. The consultant, drawing on forensic toxicology data and scientific literature, should report the quantity in mg of the active ingredient Delta 9 THC whose intake (through inhalation from combustion of the plant substance and/or its derivatives such as oil or resin) is capable of producing psychotropic effects.››.

The appointed technical consultant filed the final report on March 28, 2025 and the related integration on May 16, 2025, the conclusions of which are reported in full below: ‹‹In Italy, hemp (Cannabis sativa L.) is subject to a dual regulatory regime:

– On the one hand, it is considered an agricultural and industrial plant, and its use is regulated by Law 242 of December 2, 2016, (“Provisions for the promotion of the cultivation and agro-industrial supply chain of hemp”). This is the reference law that regulates the production of industrial hemp in Italy. The law applies only to varieties admitted in the Common Catalogue of Varieties of Agricultural Plant Species obtained from certified seeds. The varieties admitted in the Common Catalogue therefore “do not fall” within the scope of the Consolidated Law on Narcotics (Article 1, paragraph 2). It follows that these varieties can be grown, processed, and marketed in any part of the plant completely safely, without incurring the criminal offenses provided for by the Consolidated Law on Narcotics, obviously complying with the specific regulations of the sectors of use (such as food, cosmetics, and so on). Indeed, as also held by case law, it is the intended uses, exhaustively listed in Article 2 of Law 242, that make the supply chain legal.

– on the other hand, any variety of hemp, regardless of its THC content, in terms of flowers, leaves, oils and resins, is classified as a drug plant by the Consolidated Law on Narcotics (Presidential Decree 309/1990), with the exception of “hemp grown exclusively for the production of fibres or for other industrial uses permitted by European Union legislation” (Article 14). The Consolidated Law on Narcotics, therefore, recognizes the exception only “for the production of fibres or for other industrial uses permitted by European Union legislation”.

From the examination of the documentation in the files and from the instrumental analysis of the inflorescences taken from the branches under judicial seizure, it emerged that:

1) The plant substance under judicial seizure consists of branches with leaves and inflorescences deriving from hemp plants, divided as follows:

a) relating to the truck with license plate …………. driven by D.: branches with leaves and inflorescences in a quantity equal to 1,510.0 kg, contained in a number of cardboard boxes equal to 240 compared to the 242 declared in the transport document;

b) relating to the truck with license plate …….. driven by Y.: branches, with leaves and inflorescences in a quantity equal to 1,903.0 kg, contained in a number of cardboard boxes equal to 81 out of the 81 declared in the transport document;

2) The three hundred and twenty-one (321) boxes containing the biomass at different stages of drying are indistinguishable from each other and lack any indication certifying their contents. It should be noted that this packaging method does not guarantee in any way and/or to any extent that the contents of said boxes are actually those reported in the 5 transport documents exhibited by the two truck drivers at the time of the stop carried out on 06.12.2024 in Brindisi, Costa Morena, by the Guardia di Finanza officers on duty during normal checks (pursuant to art. 12 of Legislative Decree 141/2024).

3) In the transport documents exhibited by the two truck drivers at the time of the stop carried out by G. di F., it is reported that the transported load consists of twigs of Hemp plants with a percentage of A-9-THC < 0.3% belonging to the plant species Cannabis sativa variety Fenom1 for the load relating to the truck with license plate ……….., and Cannabis sativa varieties Fenomoon and Fenoswiss for the load relating to the truck with license plate ……… As underlined, these varieties are not included either among the permitted varieties registered in the Common Catalogue of varieties of agricultural plant species, pursuant to Article 17 of Council Directive 2002/53/EC of 13 June 2002, or in the Official List of varieties of agricultural plants and vegetables accepted for certification and trade in the territory of the Republic of Bulgaria” for 2024. It follows that the cultivation and consequently the marketing of said varieties of Cannabis is not permitted both in the EU and in Bulgaria, falling within the scope of the thus within the scope of application of the consolidated law on the regulation of narcotics and psychotropic substances, prevention, treatment and rehabilitation of related states of drug addiction, pursuant to Presidential Decree no. 309 of 9 October 1990.

4) From the analyses carried out in “Gas Chromatography-FID (GC-FID)”‘ and in “Gas Chromatography-Mass Spectrometry (GC-MS)”, it was ascertained that these are certainly derivatives of hemp plants, given the presence of cannabinoids, in particular “Cannabidiol (CBD)”, “Cannabigerol (CBG)”‘ and “Delta-9-Tetrahydrocannabinol (4-9-THC). 5) From the quantitative analysis aimed at determining the average percentage of 4-9-THC and CBD, carried out on a total of twenty-eight (28) aliquots sampled from twenty-eight cartons (twenty from the load relating to the truck with license plate X405 1EM and eight from the load relating to the truck with license plate X5042EM) selected at random from a total of 321 cartons under seizure, as ordered by the PM at the time of the assignment of the task, it was ascertained that: a. with the exception of the sample with code “20A” whose 4-9-THC value is equal to 0.294%, the remaining samples analyzed have a 4-9-THC content greater than 0.3% by weight and not lower than this value as reported in the documentation presented at the time of the arrest, in particular in the “Test report no. RA89498 of 15/10/2024” and in the “Test report no. RA89497 of 15/10/2024” signed by the TC GLOBALTEST Manager Dipl. eng. D., drawn up in Bulgarian and English. by the Testing Center GLOBALTEST on behalf of the “Executive Agency for Variety testing, Field Inspection and Seed Control” of Sofia 6 (BG) relating to the determination of the parameter “THC- Tetrahydrocannabinol”; b. with the exception of the sample with code “5B” whose 4-9-THC value is equal to 0.522%, the remaining samples analyzed have a 4-9-THC content lower than 0.5% by weight. Since the 0.5% limit discriminates between plants of the sativa variety and the indica variety, this evidence allows us to affirm that the samples of well-dried inflorescences subjected to analysis derive from plants of “Cannabis sativa variety sativa”;

6) As widely represented in the expert report, in particular considering:

– the plant species declared (Cannabis varieties Fenom1, Fenomoon and Fenoswiss); – the method of packaging of this biomass during transport (in anonymous boxes);

– analytically determined percentages by weight of A-9-THC;

All the evidence listed so far makes the cultivation of this variety of Cannabis sativa L. (and above all the marketing of the plant substance derived from it) “illegal” as it does not meet the requirements for the application of Law 242/2016. This law in fact authorizes only the sowing of certified seeds and therefore the cultivation of permitted varieties registered in the Common Catalogue of Varieties of Agricultural Plant Species, pursuant to Article 17 of Council Directive 2002/53/EC of 13 June 2002, and the use of the hemp derived from it, exclusively for food, cosmetic, textile and construction purposes provided they do not have a narcotic effect, i.e. a percentage by weight of A-9-THC less than 0.2%, excluding the leaves and inflorescences and its derivatives such as marijuana, hashish and hashish oil from the list of legal products. The production and marketing of Cannabis L. leaves and inflorescences for recreational use, although practiced in the so-called “Cannabis shops”, has never been recognised by current legislation and thus falls within the scope of the consolidated law on the regulation of narcotics and psychotropic substances, prevention, treatment and rehabilitation of related states of drug addiction, as per the Presidential Decree of 9 October 1990, n. 309 – Consolidated Law on Narcotics (DPR 309/90). In order to evaluate the drugging effect of the twenty-eight samples of Cannabis taken from as many twenty-eight boxes chosen at random from the three hundred and twenty-one (321) under judicial seizure, it is necessary to consider the percentage ratio between A-9-THC and CBD contained in them. The calculated values ​​showed that all the analyzed samples have a percentage THC/CBD ratio between 1:16 and 1:27, therefore they are Cannabis sativa L. with characteristics that will contribute to activating the non-drug entourage effect; the sample with code “5B” also falls into this variety of Cannabis even though it has a percentage of delta 9 THC equal to 0.522%, therefore higher than the 0.5% percentage that distinguishes Cannabis with a drug-like effect (indica) from non-drug-like (sativa), since the percentage ratio between THC and CBD calculated is equal to 1:21.

8) From the comparison of the analytical results relating to the percentage by weight of 4-9-THC obtained by the undersigned professional at the Biochemical lab Service srl laboratory, with those obtained at ADM DT-Puglia, Molise and Basilicata Laboratory Office in Bari, no significant differences were found. The minimal differences can certainly be attributed to the non-homogeneous composition of the plant substance subjected to analysis, taken at different times and from the sampling carried out from different boxes.

9) Italian jurisprudence considers cannabis with a THC content of 0.5% to be a narcotic substance (5 mg of pure 4-9-THC in a 1 g dose of raw marijuana is sufficient to induce a narcotic effect), therefore the tolerance range between 0.2% and 0.6% applies only to those mentioned in Law 242, i.e., farmers (as also highlighted in the recent “Salvini Circular”).

However, the minimum amount of 4-9-THC (4-9-tetrahydrocannabinol) that can have a narcotic effect varies depending on several factors, such as the route of administration, individual tolerance, the concentration of THC and other compounds present in the substance. In general:

– ingestion through smoking: 2-5 mg of THC can be sufficient to produce narcotic effects, such as a feeling of relaxation or euphoria. – Oral intake: 5-10 mg of THC may be necessary to produce effects similar to those of smoking.

It is important to note that these are only estimates and that individual responses to THC can vary greatly.

There is also a wealth of scientific research that has studied the effects of THC and its minimum effective dose, such as:

– Another study published in the Journal of Psychopharmacology in 2015 found that a dose of 2.5 mg of THC was sufficient to produce mild effects on perception and mood.

– A study published in the journal Psychopharmacology in 2018 found that a dose of 5 mg of THC was sufficient to produce significant effects on perception and mood.

– The U.S. National Institute on Drug Abuse (NIDA) published a review on the effects of THC, which stated that doses of 5-10 mg of THC are sufficient to produce significant effects on perception and mood. – A study published in the journal “Neuropsychopharmacology” in 2012 found that a 10 mg dose of THC was sufficient to produce significant effects on memory and concentration.

It’s important to note that these studies were conducted under controlled conditions and with healthy participants, so the results may not be generalizable to all consumers. THC is a psychoactive compound, and its use can have negative health effects, especially when used in high quantities or for prolonged periods.

In a supplementary note dated April 4, 2025, the Brindisi Customs Office stated that, on December 11, 2024, Attorney E. sent an email to the Costa Morena Office’s institutional email address, on behalf of the shipping company “Cannabis 33” EOOD, with the subject “collaboration and clarification on the shipment of SATIVA hemp.” The email clarified that the company in question holds two authorizations (No. RD 09-918 of August 23, 2023, and No. RD 09-161 of April 22, 2024) issued by the Bulgarian Ministry of Agriculture and Food for the cultivation of plants of the hemp genus (cannabis) with a tetrahydrocannabinol content of less than 0.3% by weight, calculated in the leaf mass, flowering tops (inflorescences), and fruits. It was also clarified that the variety of industrial hemp shipped had been grown and produced in compliance with Bulgarian and European legislation.

Furthermore, on December 17, 2024, an email rectifying the transport documentation was sent to the Costa Morena offices, on behalf of the same company, “Cannabis 33” EOOD. The aforementioned communication clarified that the truck drivers had been provided with incorrect labels, while confirming the accuracy of the THC analysis certificates. Attached to the email were photocopies of the seed package labels for two varieties of Cannabis sativa L., bearing the following information:

– Eletta Campana, with country of production: Italy, packages closed on March 2021; – Tiborszallasi, with country of production: Germany, packages closed on March 2021. According to the information on the packages, both types of seeds were indicated for “floricultural and horticultural use.”

In the note under examination, the Brindisi Customs Office informed investigators that (excerpt from the aforementioned ADM note):

9- “The documentation accompanying the shipments and that subsequently provided by the lawyer M. are inconsistent and, in fact, do not allow for the tracing of the agro-industrial supply chain governed by Law 242/2016. Moreover, traceability is lacking, not only for the reasons just illustrated, but also because, although the Eletta Campana and Tiborszallasi varieties are included in the European Common Catalogue, the “seed number” and the “batch number” shown on the packaging label cannot be traced in any way to the goods being transported.”; – “The other authorization indicated by the lawyer, namely no. RD 09-161 of 02/22/2024, was not found among the documentation attached to the load of goods but was only referred to in the commercial sales contract between Cannabis 33 srl and M. Società Semplice Agricola.››;

– ‹‹a more in-depth analysis was conducted of the commercial documentation accompanying the seized goods and, in particular, of the information contained in the labels relating to the varieties of Cannabis sativa L. exhibited during the Customs check (Fenom1, Fenoswiss and Fenomoon) (Annex 7). In fact, all the labels in question bore the indications “variety not yet officially listed” and “for test and trials on”; therefore, further investigations were conducted to define the framework relating to national and European regulations relating to the plant species Cannabis sativa L. and, in particular, the methods of inclusion of its varieties in the European Common Catalogue. […] Given that, in Italy, the competent authority for the marketing of plant varieties, including Cannabis sativa L., is represented by the Ministry of Agriculture, Food Sovereignty and Forests (MASAF), we proceeded to contact, via institutional email, the reference official for the legislation on the marketing of plant varieties, Dr. Federico Sorgoni (Directorate General for Rural Development – DIRS V Office). In particular, photocopies of the labels containing the name of the varieties of Cannabis sativa L. (Fenom 1, Fenoswiss and Fenomoon) present among the documentation accompanying the transported goods. Following analysis of the aforementioned documentation, Dr. Sorgoni stated that, “for the varieties in question, in 2023 Bulgaria sent a notification granting authorization to market varieties for which an application for registration in a national register was submitted,” clarifying that “this request has the 10purpose of placing small quantities of seed on the market to evaluate their cultivation characteristics and publicize the variety” (sensu Decision 2004/842/EC) and that “the material (deriving from the cultivation of those seeds), although experimental, is not marketable. The entity that requested the authorization is “Balkan Cannabis Seed & Consulting Ltd.” In accordance with Decision 2004/842/EC, the seeds subject to the authorization must be provided with orange tags containing a series of information, including: 1) the certification authority; 2) the batch number; 3) the month and year of sealing; 4) the species; 5) the name of the variety under which the seeds will be placed on the market; 6) the indication “variety not yet officially listed”; 7) the indication “for test and trials only”. Furthermore, Dr.Sorgoni stated that “there are no notifications from Bulgaria in the years prior to 2023 for the varieties in question and the orange cards are issued in 2024.” In a subsequent email, Dr. Sorgoni forwarded a response from the Ministry of Health to a question posed in 2022 regarding the marketing of hemp, which outlines, in detail, the framework of uses deemed legal pursuant to Law 242/2016.››.

By decree of May 19, 2025 (hereinafter referred to as “funditus”), the Public Prosecutor revoked the evidentiary seizure of the seized substance and ordered, pursuant to art. 87 of Presidential Decree 309/90, its destruction, given that it was a substance with a narcotic effect or in any case an illicit, non-marketable product (pursuant to Law no. 80/2025).

2. Reconstruction of the regulatory framework: the amendments made by art. 18 of Law 80/2025 to arts. 1, 2, and 4 of Law 242/2016.

On June 9, 2025, Law no. 131 was published in the Official Journal – general series – no. 80/2025 containing “Conversion into law of Decree-Law No. 48 of 11 April 2025, containing urgent provisions on public safety, the protection of personnel in service, as well as victims of usury and the prison system”, the so-called “security decree”, which came into force on 12 April 2025.

The text – consisting of 39 articles – is divided into six Chapters:

– Chapter I, containing “Provisions for the prevention and fight against terrorism and organised crime as well as on seized and confiscated assets and police checks” (consisting of nine articles: Articles 1-9);

– Chapter II, containing “Provisions on urban security” (consisting of nine articles: Articles 10-18);

– Chapter III, containing “Measures for the protection of police force personnel, the armed forces, and the national fire brigade, as well as the bodies referred to in Law No. 124 of 3 August 2007” (composed of fourteen articles: Articles 19-32);

– Chapter IV, containing “Provisions regarding victims of usury” (composed of a single article: Article 33);

– Chapter V, containing “Rules on the prison system” (composed of four articles: Articles 34-37);

– Chapter VI, containing “Final provisions” (composed of two articles: Articles 38-39). For the purposes of this article, Article 19 is inserted in Chapter II of the decree under consideration. 18, entitled “amendments to Law No. 242 of 2 December 2016, containing provisions for the promotion of the cultivation and agro-industrial supply chain of hemp”, which amends and integrates Articles 1, 2 and 4 of Law No. 242 of 2 December 2016.

The introduction to the provision in question, while revealing the legislative intent through the law itself, clarifies that the legislative changes introduced by the emergency decree were made necessary “in order to prevent the intake of products consisting of hemp (Cannabis sativa L.) inflorescences or containing such inflorescences from encouraging, through alterations in the psychophysical state of the user, behaviors that put public safety or security or road safety at risk […]”.

Article 18, letter a), amends Article 1 of Law No. 242 of 2016 through the following four amendments, the last of which (new paragraph 3-bis) has criminal implications:

1) it amends paragraph 1, specifying that the promotion of hemp cultivation is permitted only at the industrial supply chain level;

2) it amends paragraph 3, establishing that the aforementioned support and promotion measures are aimed “exclusively” at the cultivation of hemp “demonstrably” aimed at the activities envisaged therein;

3) it amends paragraph 3, letter b), eliminating the “use” and “final consumption” of semi-finished products from the purposes of hemp promotion and restricting their production to “uses permitted by law” only;

4) adds a new paragraph 3-bis, expressly excluding, “except as provided in the subsequent Article 2, paragraph 2, letter g-bis),” the application of Law No. 242 of 2016 “to the importation, processing, possession, transfer, distribution, trade, transport, dispatch, shipping, delivery, sale to the public, and consumption of products consisting of hemp inflorescences, even in semi-processed, dried, or shredded form, or containing such inflorescences, including extracts, resins, and oils derived therefrom” and maintains “the provisions of the consolidated text referred to in Presidential Decree No. 309 of 9 October 1990.”

Letter b) of Article 18, however, amends Article 2 of Law No. 242/2016, specifying that permitted hemp crops intended for floriculture must be of a professional nature and introducing letter a). g-bis) in paragraph 2 – concerning the “agricultural production of seeds intended for uses permitted by law within the contamination limits established by the decree of the Minister of Health pursuant to Article 5 of this law” – and paragraph 3-bis containing the following prohibition:

“The import, sale, processing, distribution, trade, transportation, dispatch, shipping, and delivery of inflorescences of hemp cultivated pursuant to paragraph 1 of this Article, even in semi-processed, dried, or ground form, as well as products containing or consisting of such inflorescences, including extracts, resins, and oils derived therefrom, are prohibited. The sanctions provided for in Title VIII of the Consolidated Law pursuant to Presidential Decree No. 309 of 9 October 1990 apply. Only the processing of inflorescences for the agricultural production of the seeds referred to in letter g-bis) of paragraph 2 is permitted.” Therefore, the newly introduced ban, with the exception of Article 2, paragraph 3, letter g-bis), applies to inflorescences, i.e., the female flowers of “Cannabis sativa L.” arranged in glomeruli, considered, as of April 12, 2025, to be the subject of conduct punishable under Presidential Decree no. 309 of 1990. In other words – those effectively used in the report of the Office of the Index and the Role of the Supreme Court of Cassation no. 33 of June 23, 2025 – ‹‹by effect of the combined provisions of the non-application clause set forth in art. 1, new paragraph 3-bis, and the corresponding prohibition established in art. 2, new paragraph 3-bis, law no. 242 cited, criminally protected, as of April 12, 2025, it has become (alternatively) prohibited, under threat of application of articles 73 et seq. Presidential Decree No. 309 of 1990 prohibits the importation, sale, processing, distribution, trade, transportation, dispatch, shipping, and delivery of hemp inflorescences, in any form (semi-processed, dried, or ground), as well as products containing such inflorescences (including extracts, resins, and oils derived from them). However, as an exception to the general ban—and always at an industrial (but never “domestic”) level—the agricultural production of hemp seeds is permitted […]›› (See page 77 of the aforementioned report).

3. Regarding the relevance of the issue.

In order to resolve the reservation, this Judge believes that a question of constitutional legitimacy should be raised in relation to Articles 13, 25, paragraph 2, 27, paragraph 3, 77, paragraph 2, and 117 of the Constitution, with reference to Article 18 of Legislative Decree no. 48/2025, converted without amendments by Law no. 80/2025, in the part in which it prohibits the importation, transfer, processing, distribution, trade, transport, dispatch, shipping, delivery, sale to the public and for consumption of products consisting of hemp inflorescences, even in semi-processed, dried, or shredded form, as well as products containing such inflorescences, including extracts, resins, and oils derived from them, without prejudice to the processing of the inflorescences for the agricultural production of the seeds referred to in letter g-bis), paragraph 2, Article 2, Law no. 80/2025. It should be noted, first of all, that the question of constitutionality was raised on June 26, 2025, in the context of a proceeding concerning the opposition, pursuant to Article 263, paragraph 5, of the Code of Criminal Procedure, to the decree of May 19, 2025, by which the Public Prosecutor revoked the evidentiary seizure of the seized assets (see paragraph 1 of the order) and ordered, pursuant to Article 87 of Presidential Decree 309/90, their destruction. Specifically, the Public Prosecutor, in the aforementioned decree, noted: “that the plant substance (flowers and inflorescences) deriving from the cultivation and development of Cannabis plants is included as such (regardless of the variety) among the prohibited substances set out in Table II attached to Presidential Decree 309/1990 (table drawn up on the basis of the indications contained in art. 14 paragraph 1 letter b) no. 1);

– that the plant substance deriving from the cultivation of Cannabis can be excluded from the scope of application of Presidential Decree 3029/1990 and can fall within the scope of application of the European legislation referred to in Council Directive 2002/56/EC of 3 June 2002 and within the scope of application of national law no. 242/2016 which makes cultivation legal (for specific industrial uses and therefore also the consequent marketing of the plant substance derived from cultivation) only if it derives from the cultivation of plant varieties included in the “Common catalogue of varieties of agricultural plant species pursuant to Council Directive 2002/56/EC of 3 June 2002” (which does not include the Fenom 1, Fenoswiss and Fenomoon varieties which are the subject of the seizure) and provided that (another condition established by national law no. 242/2016) the percentage of the active ingredient of Delta 9 14THC does not exceed the threshold of 0.2%;

– that, due to the presence of percentages of the active ingredient Delta 9 THC in it exceeding 0.2%, it is to be considered to all intents and purposes an illegal substance whose commercialization is prohibited (since the cultivation of plants of permitted varieties is legal but only for farmers and the latter is exempt from criminal liability in the event that the percentage of the active ingredient Delta 9 THC is greater than 0.2% but less than 0.6%);

– that only with reference to the cultivation of Cannabis Sativa species has Law No. 242/2016 established a tolerance range for the quantity of the active ingredient Delta 9 THC contained in the plant substance which, if between 0.2% and 0.6%, exempts the grower from criminal liability;

– that, with reference to all other conduct other than cultivation, and therefore also for import conduct as well as for possession, transfer, and sale, when the conditions for the application of Law No. 242/2016 do not exist (in this case, these conditions do not exist because the product derives from the cultivation of plant species not included in the European Catalogue, the product is not traceable and was packaged in anonymous boxes, making it impossible to verify its provenance from cultivation carried out with certified seeds, and the product contains concentrations of the psychoactive ingredient Delta 9 THC greater than 0.2% although less than 0.6%), the provisions of the Consolidated Law on Narcotics pursuant to Presidential Decree 309/1990 apply;

– that the technical investigations on the seized plant substance (collection of samples and qualitative and quantitative analysis) were carried out in the presence of the parties, pursuant to Article 360 ​​of the Code of Criminal Procedure, and concluded with the filing of the aforementioned technical report;

– that the lack of conditions for the application of Law No. 242/2016 and the attribution of the contested importation conduct to the case provided for and punished by Article 73, paragraph 4 of Presidential Decree 309/1990 (which is a case of concrete danger) have now been established;

– that even a minimal narcotic effect cannot be ruled out as a result of taking the substance as seized (with a percentage of the active ingredient delta 9 THC greater than 0.2%, although lower than 0.6% and despite the partial inhibition of the functioning of Delta 9 THC resulting from the interaction with CBD), especially in relation to the previous health conditions and age of a potential consumer,with consequent danger of the substance for the health of people and for the protection of younger generations (legal assets protected by the incriminating provision as identified by the Constitutional Court);

– that when the plant substance is used not as seized but as possibly transformed and refined through processes separating the active ingredient Delta 9 THC from the active ingredient CBD, the substance’s narcotic properties and its danger to the user’s health are certainly present; – that pursuant to art. 87 of Presidential Decree 309/1990, once the collection of representative samples of the narcotic substance has been completed (in this case, not only the collection of samples but also the qualitative and quantitative analysis of the substance was carried out in consultation with the parties), “the judicial authority orders the destruction of the narcotic and psychotropic substances”;

– which, with reference to derivatives from the cultivation of Cannabis Sativa, very recently, the legislator, with Legislative Decree 11.04.2025 n. 48 (not yet converted into law but already in force starting from 12.04.2025, the day following publication in the Official Journal n. 85 of 11.04.2025) introduced in art. 18 (whose heading reads: “Amendments to Law No. 242 of 2 December 2016 containing provisions for the promotion of the cultivation and agro-industrial supply chain of hemp”) contains a series of significant provisions, preceded by a significant expression of intent: “In order to prevent the intake of products consisting of hemp (Cannabis sativa L.) inflorescences containing such inflorescences from encouraging, through alterations in the psychophysical state of the user, behaviors that put public safety or security or road safety at risk, the following amendments are made to Law No. 242 of 2 December 2016.” Of particular note is the text of paragraph 3 bis added to Article 1 of Law No. 242/2016, which states: “Without prejudice to the provisions of the following Article 2, paragraph 2, letter g-bis), the provisions of this law do not apply to the importation, processing, possession, transfer, distribution, trade, transportation, dispatch, shipping, delivery, sale to the public, and consumption of products consisting of hemp inflorescences, even in semi-processed, dried, or ground form, or containing such inflorescences, including extracts, resins, and oils derived from them. The provisions of the consolidated text referred to in Presidential Decree no. 309 of 9 October 1990 remain unchanged;” Even more relevant is the text of paragraph 3-bis added to Article 2 of Law no. 242/2016 16 which establishes that “The import, sale, processing, distribution, trade, transport, dispatch, shipping and delivery of hemp inflorescences cultivated pursuant to paragraph 1 of this article, even in semi-processed, dried or shredded form, as well as of products containing or consisting of such inflorescences, including extracts, resins and oils derived therefrom, are prohibited. The sanctioning provisions set forth in Title VIII of the consolidated text referred to in Presidential Decree no. 309 of 9 October 1990 shall apply.Only the processing of inflorescences for the agricultural production of the seeds referred to in letter g-bis) of paragraph 2 is permitted”; these are provisions which unequivocally criminalize all conduct other than cultivation carried out by a person other than the one authorized to cultivate, having as its object the derivatives of the cultivation of Cannabis Sativa and also qualify products containing or consisting of inflorescences as intrinsically illicit things in relation to which the rule set out in art. 240 paragraph 2 no. 2) of the Criminal Code of mandatory confiscation “of the things, the manufacture, use, carrying, possession or disposal of which constitutes a crime, even if no conviction has been pronounced” applies;

– that, by virtue of the new legislation illustrated above, even regardless of the presumed qualification of the seized plant biomass as a substance with a narcotic effect and regardless of whether or not the contested import conduct is considered to be criminally unlawful and criminally liable, the seized substance could never be marketed and would in any case be destined for confiscation, even in the absence of a conviction […]››.

On 29 May 2025, the lawyer for the accused – A. and C.

Igor –, equipped with a special power of attorney, filed an opposition against the destruction decree of 19 May 2025.

With a decree of 12 June 2025, this Judge set, pursuant to articles. 263, paragraph 5, and 127 of the Code of Criminal Procedure, the Chamber hearing of 26 June 2025 for the decision on the aforementioned opposition: during the aforementioned hearing, the defendants’ counsel filed a request to suspend the proceedings and to raise a question of constitutional legitimacy with reference to Law no. 80/2025, converting Legislative Decree 48/2025. The relevance of the question of constitutional legitimacy mentioned in the introduction is considered to exist in relation to the judgment a quo, given that the possibility for this Judge to define the procedural segment in question depends on its decision by accepting or rejecting the opposition formulated by the defendants against the destruction order issued by the Public Prosecutor pursuant to art. 87 of the Consolidated Law on Narcotics. Indeed, the amendments introduced to articles 1 and 2 of Law no. 242/2016 by art. 18, Legislative Decree no. 48/2025, converted by Law no. 80/2025, prohibits, starting from 12 April 2025, any conduct other than cultivation, carried out by a person other than the grower and having as its object (the true core of the new law lies therein) hemp inflorescences and products containing such inflorescences, without prejudice to the processing of inflorescences for the agricultural production of seeds referred to in letter g-bis) of paragraph 2 of art. 2, Law no. 242/2016: the newly introduced provisions, as noted by the Public Prosecutor, therefore extend the scope of application of art. 240, paragraph 2, no. 2), of the Criminal Code to derivatives of the cultivation of Cannabis sativa, even regardless of a proven narcotic effect of the substance. Consequently, the constitutional validity of art. 18, Law no. 80/2025 would require the rejection of the objection filed by the current defendants against the destruction order issued pursuant to art. 87, Presidential Decree 309/90.

4. On the grounds that the question is not manifestly unfounded.

4.1. With respect to art. 77, paragraph 2, of the Constitution.

Legislative Decree no. 48/2025 was issued outside the extraordinary cases of necessity and urgency which, pursuant to art. 77, paragraph 2, of the Constitution, represent the prerequisite for the executive branch to exercise its legislative function, without prejudice to the conversion of the decree itself into law by Parliament. It seems unnecessary, at this point, to recall the centrality of art. 77 of the Constitution in the system of primary sources. Indeed, while the first paragraph of the same provision prohibits the Government, in the absence of a delegation from the Chambers, from issuing decrees having the force of ordinary law, pursuant to paragraph 2 of art. 77 of the Constitution, extraordinary cases of necessity and urgency are an exception to this rule, in which the Government is empowered, under its own responsibility, to adopt provisional measures with the force of law, subject to their submission to the Chambers for conversion into law. Having thus outlined the essential features of our constitutional system – which is based on a “tendentially” clear separation between the powers of the state for the purpose of better implementing the principles that characterize our form of government – ​​it is necessary to clarify that, from the provisions of art. 77 of the Constitution, it follows, as a logical corollary, that emergency decrees find their inescapable justification in compliance with the prerequisites outlined in the 18th provision, that is (as reiterated on several occasions by the jurisprudence of the Constitutional Court – See ex multis Constitutional Court no. 8/2022; Constitutional Court no. 146/2024), the pre-existence of a factual situation entailing the necessity and urgency of providing for the use of an exceptional instrument, such as a decree-law. Therefore, failure to comply with the validity requirement for the adoption of this act constitutes a constitutional defect, which is not remedied by the conversion law, which, if it were to be enacted, would in turn be affected by a procedural defect. On the

other hand, it must be noted that the expression chosen by the Constituent Assembly to indicate the prerequisites for emergency decrees is characterized by such a margin of flexibility that it legitimizes the Government to assess their existence with regard to a variety of situations for which rigid parameters cannot be established (see Constitutional Court decisions no. 137/2018 and no. 171/2007). For this reason, the jurisdiction of the Constitutional Court remains limited to cases of “evident lack” of the conditions in question or of manifest unreasonableness or arbitrariness in their assessment (ex plurimis, Constitutional Court, judgments no. 186/2020; no. 288/2019; no. 97/2019, no. 137/2018; no. 99/2018; no. 5/2018; no. 236/2017; no. 170/2017).

Having highlighted all of this as a necessary premise, it is necessary here to verify, based on intrinsic and extrinsic evidence from the contested provision, whether the requirement of extraordinary nature of the case of necessity and urgency to provide action is clearly lacking (see Constitutional Court, judgment no. 171/2007, cited above).

Well, it is worth recalling first of all that Legislative Decree no. 48/2025, converted unchanged by Parliament, reproduces almost entirely the content of the corresponding government-initiated “security” bill, which the Chamber of Deputies approved at first reading on September 18, 2024, and transmitted to the Senate the following day. The joint First and Second Committees of the Senate, in their reporting capacity, had examined and approved a minimally amended text on March 26, 2025. Therefore, by the time the decree-law was issued—approved by the Council of Ministers on April 4—the measure was ready for consideration by the Senate. Therefore, the text of that bill was about to be approved with amendments by the Senate and, consequently, should have returned to the Chamber of Deputies. In reality, the Senate Assembly, in its session of April 16, 2025, did not proceed to examine the “security” bill, precisely because the bill converting Decree-Law No. 48/2025 had been simultaneously submitted to the Chamber of Deputies. The circumstance just mentioned, among others, has raised doubts among intellectuals and legal practitioners regarding the existence of the justifications for resorting to emergency decrees, especially considering that the proposing Government had not availed itself of the option, provided for by art. 72 of the Constitution and the parliamentary regulations, to request urgent examination of the “security” bill.

First of all, according to the constant teaching of the Constitutional Court, the use of the decree-law – and the assumption of responsibility that ensues for the Government according to art. 77 of the Constitution – cannot be supported by the unequivocal statement of the existence of reasons of necessity and urgency, nor can it be exhausted by the observation of the reasonableness of the legislation that was introduced (See also Constitutional Court decisions no. 171/2007 and no. 128/2008). On the other hand, in the preamble to Legislative Decree no. 48/2025, the reasons appear generic and tautological, apodictic, “unusually divided into cases in which there is an “extraordinary necessity and urgency” to provide and cases in which, instead, only “necessity and urgency” apply.

Furthermore, the report accompanying the bill to be converted into law in the Chamber of Deputies explains the rationale behind the provisions, but fails to address the reasons justifying the necessity and urgency of using the decree law to advance its approval. Only in the (subsequently drafted) Technical Regulatory Analysis document does the use of emergency decrees justify themselves “in light of the need to implement an immediate and more effective sanctioning and deterrent response to serious criminal acts that pose a threat to public order and safety, create a growing perception of insecurity among citizens, and inevitably expose the physical safety of the police force to grave danger.”

Again. From the point of view of the objectives pursued and, therefore, of its content, the emergency provision is heterogeneous in origin – just as the original security bill was: now, as is known, the heterogeneity has been repeatedly considered a “symptomatic figure” of the lack of justifying conditions for the emergency provision pursuant to art. 77 of the Constitution (ex multis Constitutional Court, judgment no. 146/2024; Constitutional Court, judgment no. 22/2022; Constitutional Court, judgment no. 138/2018; Constitutional Court, judgment no. 244/2016). On this issue, while the Constitutional Court has not ruled out the possibility of decrees with “multiple content,” it has nevertheless held that the provisions of such government measures must “share a common objective and all strive for a single purpose, albeit one with considerable breadth” (most recently, Constitutional Court, judgment no. 146/2024).

In the case at hand, the “security” decree lacks, at first glance, a general presentation capable of identifying the core of the entire legislative process, given that the purposes of the measure—which need to be extrapolated from the title, preamble, and main chapters, in the absence of a precise and unequivocal indication upstream—are multiple and, therefore, at least six:

1) strengthening activities to prevent and combat terrorism and crime (Chapter I);

2) improve the efficiency and functionality of the National Agency for the administration and allocation of assets seized and confiscated from organised crime (Chapter I);

3) adopt measures regarding urban security and police controls (Chapter II);

4) introduce measures regarding the protection of personnel of the police force, the armed forces and the national fire brigade, as well as of service bodies (Chapter III);

5) introduce provisions regarding victims of usury (Chapter IV);

6) introduce measures regarding the prison system (Chapter V).

These distinct purposes correspond to an inevitable and consequential heterogeneity of content.

This Judge, therefore, believes there can be no doubt that the heterogeneity of the purposes pursued by the “security” Decree, together with the inhomogeneity that characterizes the individual provisions contained in the decree under examination, irreversibly undermines the positive assessment of its legitimacy, given that they must be evaluated against intrinsic indicators that reveal the existence of the so-called “inhomogeneity per tabulas” of Legislative Decree no. 48/2025, which, consequently, falls fully among the decrees having the force of law without the requirements of constitutional validity, capable of altering, according to the teaching of the Constitutional Court, “the fundamental balance of the form of government”.

4.2. With respect to Articles 13, 25, paragraph 2, and 27, paragraph 3, of the Constitution, as constitutional referents of the principle of offensiveness.

As is known, by virtue of the principle of offensiveness, a fundamental constitutive element of the criminally relevant act is the offense to a legal asset, which can take the form of injury, i.e., actual harm, or exposure to danger, i.e., potential harm.

Within our criminal system, the principle of offensiveness operates on two distinct levels: on the one hand, as a precept addressed to the legislator, aimed at limiting criminal repression to acts that, in their abstract configuration, express an offensive content to assets or interests deemed worthy of protection (“abstract offensiveness”); on the other, as an interpretative-applicative criterion entrusted to the judge, who, in verifying the attribution of the individual specific case to the abstract punitive paradigm, must ensure that behaviors devoid of any harmful nature fall within the latter (“concrete offensiveness”).

Despite the absence of a constitutional provision expressly enshrining it, doctrinal and jurisprudential developments have nevertheless derived, from the constitutional system, the principle that the crime must consist of an offense against the legal right protected by the incriminating provision. Furthermore, constitutional jurisprudence has long clarified the division of jurisdiction between constitutional judges and ordinary judges: in particular, as relevant here, “it is the Court’s duty—through the instrument of constitutional review—to verify the offensiveness ‘in abstract’, determining whether the offense outlined by the legislator expresses a genuinely offensive content; a requirement which, in the event of recourse to the model of the crime of danger, presupposes that the legislative assessment of the dangerousness of the incriminated act is not irrational and arbitrary, but responds to the id quod plerumque accidit.›› (See Constitutional Court, judgment no. 225/2008; judgment no. 265/2005; judgment no. 263/2000; judgment no. 519/2000).

The constitutional basis of the principle of harmfulness was traditionally deduced:

– from art. 13 of the Constitution, which protects personal freedom, so that the imposition of a criminal sanction (limiting that asset) can only be permitted as a reaction to conduct that offends an asset of equal rank;

– from art. 25, paragraph 1, of the Constitution. 2 of the Constitution, which makes criminal sanctions contingent on the commission of an “act,” thus requiring the legislator to punish material and offensive conduct, not mere disobedience, since otherwise the penalty would be unable to fulfill its culturally orienting function;

– Articles 25 and 27 of the Constitution, which distinguish between punishment and security measures: imposing a penalty for non-offensive conduct, but simple disobedience, even if symptomatic of social danger, would in fact mean assigning to it the function of a security measure;

– Article 27, paragraph 3, of the Constitution, since conviction for mere violations of duties or for conduct that does not offend any property would frustrate the re-educational function of punishment: the application of a criminal sanction for a harmless act would make it perceived as unjust, and the offender would be less inclined to accept the offer of social rehabilitation it represents.

(edit by Mister Lex)

Recently, in fact, the Constitutional Court clarified that compliance with the principle of offensiveness (nullum crimen sine iniuria) can be deduced, in particular, from art. 25, paragraph 2, Constitution, in a systematic reading against the backdrop of all the values ​​connected to human dignity›› and that the aforementioned principle ‹‹entails that the legislator, in the exercise of its discretion, can repress on a criminal level, as a crime, only conduct which, in their typical description, in any case respectful of the principle of legality, also consists of behaviors with an offensive content to assets worthy of protection, even in terms of their mere exposure to danger.›› (ex multis, See Constitutional Court ruling no. 211/2022)

On the “abstract” level, the principle of offensiveness is therefore addressed to the legislator and acts as a “limit” on the incriminating choices made by the same, so much so as to be able to establish a judgment on their constitutional legitimacy.

Therefore, the Constitutional Court has long recognized the principle of abstract harmfulness as a constitutional limit on legislative discretion in criminal matters, assigning itself the task of ensuring compliance.

Given this premise and turning to the case at hand, in the economic sector that developed in our country around the cultivation of agro-industrial hemp following Law No. 242 of 2016, inflorescences represent the majority of the target market. Therefore, in the absence of scientific evidence that the use of products derived from hemp plants can cause psychotropic or harmful effects, based on available and shared scientific data, abruptly banning, under threat of criminal law, the industrial cultivation previously permitted under Article 2, paragraph 2, of Law No. 242 of 2016, undoubtedly conflicts with the principle of harmfulness. According to the scientific literature on the subject, hemp inflorescences are rich in trichomes, resin glands containing cannabinoids, terpenes, and flavonoids. The main and most abundant cannabinoids in hemp that can be extracted from the (female) inflorescences are Δ9-tetrahydrocanniboline (Δ9-THC or simply “THC”) and cannabidiol (“CBD”).

Prior to the entry into force of Legislative Decree 48/2025 on April 12, 2025, MIPAAF circular no. 5059 of May 22, 2018, clarified that hemp inflorescences, although not expressly cited by the aforementioned Law no. 242 among either the purposes of cultivation or its possible uses, fell within the scope of art. 2, paragraph 2, letter g), i.e., within the scope of legal crops intended for horticulture, provided that such products derived from one of the permitted varieties registered in the Common Catalogue of Varieties of Agricultural Plant Species, pursuant to art. 17 of Council Directive (EC) 2002/53 of 13 June 2002, with an overall THC content not exceeding the levels established by the legislation: such plants (in their entirety), not subject to any marketing restrictions, do not fall within the scope of Presidential Decree No. 309 of 1990 if they have a THC content less than or equal to 0.2%. Furthermore, by virtue of an assessment of the appropriateness of repressive measures entrusted to the correspondence of the botanical characteristics of the products obtained as a result of the biological cycle of cultivation, Article 4, paragraphs 5 and 7, of Law No. 242 of 2016 has identified a tolerance limit of up to 0.6 percent THC, capable of ruling out the unlawfulness of industrial cultivation.

In this overall framework, the newly introduced restrictive legislation, since it is protected by criminal law, conflicts with the principle of harmfulness (in the abstract), given that, as previously mentioned, scientific evidence demonstrates the absence of narcotic effects when the active ingredient of cannabis is below the THC percentages indicated in art. 4 of Law 242 of 2016, which have proven to be suitable for assessing, in a general and abstract manner, the legality of industrial hemp cultivation by farmers who “despite using permitted qualities, within the agri-food chain outlined by the 2016 amendment, cultivate hemp that, during the production cycle, appears to contain, in its structure, a percentage of THC between 0.2 percent and 0.6 percent, or higher than this maximum limit” (as per SS. UU., no. 30475 of 05/30/2019). The issue, therefore, far from concerning the criminal relevance of the marketing to the public of derivatives of the legal cultivation of hemp (an issue exhaustively explored in the aforementioned Supreme Court Cases 30475/2019), or the existence of indicators revealing the purpose of marketing the product for uses other than those permitted (See Cass. Pen., Section IV, no. 16155 of 17/03/2021), concerns the newly introduced ban – falling within the dogmatic category of the crime of abstract or presumed danger – of the agro-industrial cultivation of hemp inflorescences, a conduct that the legislator has deemed (abstractly) dangerous, falling, therefore, within the scope of application of Presidential Decree no. 309 of 1990, on the basis of an absolute presumption of harmfulness to the psycho-physical state of the person taking the drug and, in even more distant terms, to “public safety or road safety”, here assumed as legal assets of particular importance.

In conclusion, if it is true, as it certainly is, that in compliance with the provisions of Article 25 of the Constitution, the discretion of the legislator (or, as in this case, of the Government exercising the legislative function) can be exercised, in the criminal sector, within the limits of criminalizing conduct that abstractly infringes on rights worthy of protection; that, since criminal sanctions directly (prison sentences) or indirectly (pecuniary penalties) affect personal freedom, constitutionally guaranteed by Article 13 of the Constitution, sacrificing the latter is justified only to protect rights that also have constitutional relevance; that, bearing in mind Article 25 of the Constitution, the discretion of the legislator (or, as in this case, of the Government exercising the legislative function) can be exercised, within the limits of criminalization of conduct that abstractly infringes on rights worthy of protection; that, since criminal sanctions directly (prison sentences) or indirectly (pecuniary penalties) affect personal freedom, constitutionally guaranteed by Article 13 of the Constitution, sacrificing the latter is justified only to protect rights that also have constitutional relevance; that, bearing in mind Article 25 of the Constitution, the discretion of the legislator (or, as in this case, the discretion of the Government exercising the legislative function) can be exercised, within the limits of criminalization of conduct that abstractly infringes upon … penalties directly (prison sentences) or indirectly (pecuniary penalties) affect personal freedom, constitutionally guaranteed by Article 13 of the Constitution, sacrificing the latter is justified only to protect rights that also have constitutional relevance; that, bearing in mind Article 25 of the Constitution, the discretion of the legislator (or, as in this case, the 27, paragraph 3, of the Constitution, the penalty has an eminently re-educational purpose, it is necessary to subject to repression only truly offensive acts, in order to avoid the sanction imposed on the offending subject being perceived by the same as unjust, disproportionate, unreasonable, there can be no doubt about the collision of the provision contested here with the principle of offensiveness, in the absence of scientific support regarding the dangerousness, even only in theory, of the circulation of cannabis inflorescences and its derivatives, even in the presence of the limits set for its circulation by Law 242/2016.

4.3. With respect to art. 117 of the Constitution, in relation to arts. 34 and 36 TFEU

Finally, it should be noted that the prohibition introduced by art. Article 18 of the “security” Decree appears to impede the free circulation of goods within the Union (Articles 34 and 36 TFEU) in a disproportionate manner, in disregard of the principle of mutual recognition and in clear absence of mandatory requirements, given that there is no scientific evidence proving that hemp inflorescences and derivatives of hemp varieties with a THC content of less than 0.3 percent pose a threat to public health and safety. Pursuant to Article 38 TFEU (pursuant to which the European Union defines and implements a common agricultural and fisheries policy), unless otherwise provided, the rules established for the establishment and functioning of the internal market apply to the agricultural products listed in Annex 1 to the TFEU, which include “seeds, oleaginous fruits, various seeds and fruit; industrial and medicinal plants; straw and fodder.”

The detailed rules that followed within the support schemes provided for by the Common Agricultural Policy (CAP), consisting initially of EU Regulations 2013/1307 and 2013/1308 and EU Regulation 2021/2115, include and incentivize a number of crops, including Cannabis sativa, for the purposes of entitlement to financial assistance. These regulations establish that areas used for hemp production are considered eligible hectares for the European contribution only if the tetrahydrocannabinol content of the cultivated varieties does not exceed 0.3%. Consequently, hemp is a recognized crop, including for premium purposes, by the European legislator, which introduced specific control provisions regarding the methods for determining tetrahydrocannabinol after establishing the list of botanical varieties of cultivated plant species.

Hemp plants, once grown within the permitted THC limits, circulate within the European Union as manufactured products: a topic that opens the door to the principle of free movement of goods within the EU (Articles 34 and 36 TFEU). In this regard, EU Regulation No. 1234/2012 is relevant. 2013/915 of the Commission of 25 April 2023, “relating to maximum levels for certain contaminants in foodstuffs”, with which the European legislator, to ensure effective protection of public health, on the one hand established that certain foods “shall not be placed on the market and shall not be used as raw materials in foods or as ingredients in foods if they contain a contaminant in a quantity exceeding the maximum level established in the same Annex” (Article 2, paragraph 1), on the other hand it admitted those whose content falls within the established limits, including hemp residues, for which the regulation modified the maximum total THC content by also introducing a conversion factor of Δ9-THCA to THC.

In other words, EU Regulation no. Regulation (EU) 2023/915 imposed a maximum limit on the amount of two cannabinoids contained in hemp—tetrahydrocannabinol and tetrahydrocannibinol—which, below these limits, have no intoxicating effect. Again in the food sector, with Commission Regulation (EU) 2022/1393 of 11 August 2022, the European legislator revised the THC limits in food, harmonizing the rules within Member States, setting them from 1 January 2023 as:

– 3.0 mg/kg for ground hemp seeds, (partially) de-oiled hemp seeds, and other products derived/processed from hemp seeds (flour, protein, seeds); – 7.5 mg/kg for hemp seed oil.

In the cosmetics sector, according to EU Regulation No. 2009/1223, CBD can be used in cosmetic products both as a pure compound and in the form of extracts obtained from Cannabis sativa plants or seeds.

In summary, at the European level, in terms of regulation of various product sectors, hemp is subject to normal cultivation and products obtained from it circulate freely within the Union, based on the overriding principle of free production and marketing of goods and services (Articles 36 and 36 TFEU), which is linked to the incompatibility with EU law of bans on substances for which there are no proven health risks (on this point, see ECJ 4/10/2024, case C-793/22).

Furthermore, recently, the Court of Justice, in the well-known Kanavape case (ECJ 19/11/2020, case C-663/18, BS, CA), in the context of a request for a preliminary ruling relating to the marketing, in France, by the aforementioned company, of an electronic cigarette whose liquid contained cannabidiol (CBD) extractable from hemp, ruled that ‹‹Articles 34 and 36 TFEU must be interpreted as precluding national legislation which prohibits the marketing of CBD legally produced in another Member State, where it is extracted from the Cannabis sativa plant in its entirety and not only from its fibres and seeds, unless that legislation is suitable for ensuring the achievement of the objective of protecting public health and does not go beyond what is necessary to achieve it›› (paragraph 96). Therefore, any restrictive measures to protect public health must be based on “available scientific data” and not on “purely hypothetical considerations”: the real risk to public health must be sufficiently demonstrated on the basis of the most recent scientific data available at the time the decision is adopted.

The Court continues: “In exercising their discretion in matters of public health protection, Member States must respect the principle of proportionality. The means they choose must therefore be limited to what is actually necessary to ensure the protection of public health and must be proportionate to the objective thus pursued, which could not have been achieved with measures less restrictive of intra-Community trade” (paragraph 89, citing ECJ 28/1/2010, Commission v. France, C-333/08, para. 90).

In light of the above, Article 18 of the “security” Decree, by prohibiting the importation, processing – with the exceptions mentioned above – possession, transfer, distribution, trade, transportation, dispatch, shipping, delivery, sale to the public and for consumption of products consisting of hemp inflorescences, even in semi-processed, dried, or shredded form, or containing such inflorescences, including extracts, resins, and oils derived from them, constitutes a measure having an effect equivalent to quantitative restrictions on imports, directly conflicting with Article 18 of the “security” Decree. 34 TFEU (See ECJ 18/6/2019, Austria v. Germany, C-591/17) as interpreted by the Court of Justice (ECJ 19/11/2020, case C-663/18, cited; ECJ 4/10/2024, case C-793/22, cited). This is stated, it is reiterated, considering that the EU legislation allows the free circulation of products derived from industrial hemp in its entirety within the Member States pursuant to Articles 34 and 36 TFEU.

PQM

The Court of Brindisi – GIP/GUP Section, represented by the undersigned Judge; having regard to Article 23 of Law No. 87/1953;

raises a question of constitutional legitimacy, in relation to Article 77, paragraph 2, of the Constitution, to Articles 13, 25, paragraph 2, 27, paragraph 3, and 117, of the Constitution, with reference to art. 18, Legislative Decree no. 48/2025, converted without amendments by Law no. 80/2025, in the part in which it prohibits the importation, transfer, processing, distribution, trade, transportation, dispatch, shipping, delivery, sale to the public, and consumption of products consisting of hemp inflorescences, even in semi-processed, dried, or ground form, as well as products containing such inflorescences, including extracts, resins, and oils derived therefrom, without prejudice to the processing of the inflorescences for the agricultural production of the seeds referred to in letter g-bis), paragraph 2, of Article 2, Law no. 80/2025.

Orders the immediate transmission of the documents to the Constitutional Court and the suspension of this proceeding.

Orders that this order be notified to Mr. Prime Minister, as well as communicated to the President of the Chamber of Deputies and the President of the Senate.

Send to the Chancellery for formalities.

Thus decided in Brindisi following the council chamber meeting on June 26, 2025.

The Judge for Preliminary Investigations,
Dr. Barbara Nestore