European Court Applies Double Standard against Israeli Products

The ruling, which singles out Israel, was presumably motivated not by concerns over food safety or consumer protection but by the EU’s anti-Israeli foreign policy preference. It has been roundly criticized as biased, discriminatory and anti-Semitic.

The labelling case has its origins in questions regarding the interpretation of EU Regulation 1169/2011, dated October 25, 2011, concerning consumer information on food products. The regulation was ambiguous on the issue of the labelling of food products from Israel.

On November 12, 2015, the European Commission, in an effort to clarify existing EU legislation on origin information of products from Israeli-occupied territories, issued a so-called Interpretive Notice. This directive stated that food products sold in the EU may not be labelled as “Made in Israel” if they are produced outside of Israel’s pre-1967 borders. The document explained:

“The European Union, in line with international law, does not recognize Israel’s sovereignty over the territories occupied by Israel since June 1967, namely the Golan Heights, the Gaza Strip and the West Bank, including East Jerusalem, and does not consider them to be part of Israel’s territory, irrespective of their legal status under domestic Israeli law.”

On November 24, 2016, France’s Ministry of Economy and Finance published a so-called Ministerial Notice (JORF No. 0273, Text No. 81) which outlined the French government’s interpretation of EU law on labeling requirements for Israeli products. The French requirements, even more strict than those of the EU, stipulate:

“For products originating from the West Bank or the Golan Heights that originate from settlements, a reference to ‘product from the Golan Heights’ or ‘product from the West Bank’ is not acceptable. Although these terms actually refer to the wider area or territory from which the product originates, the omission of the complementary geographic information that the product is from Israeli settlements is likely to mislead the consumer as to the true origin of the product. In such cases, it is necessary to add, in parentheses, the expression ‘Israeli settlement’ [colonies israéliennes] or equivalent terms. For example, expressions such as ‘product from the Golan Heights (Israeli settlement)’ or ‘product from the West Bank (Israeli settlement)’ may be used.”

In January 2017, Psagot Winery Ltd., an Israeli winery that operates vineyards in so-called occupied Palestinian territory, and a French-Jewish group called the European Jewish Organization (Organisation Juive Européenne), filed a lawsuit in which it asked the Council of State (Conseil d’État), France’s highest administrative court, to annul the Ministerial Notice, on the grounds that the French requirements amounted to promoting an economic boycott of Israel.

On May 30, 2018, the Council of State claimed that it was unable to rule on the case and referred it to the Court of Justice of the European Union for advisement.

On November 12, 2019, the Luxembourg-based Court of Justice ruled in favor of the French government:

“Foodstuffs originating in territories occupied by the State of Israel must bear the indication of their territory of origin, accompanied, where those foodstuffs come from a locality or a group of localities constituting an Israeli settlement within that territory, by the indication of that provenance.”

“The failure to indicate this might mislead consumers into believing that that foodstuff has a country of origin or a place of provenance different from its true country of origin or place of provenance.

“Displaying, on foodstuffs, the indication that the State of Israel is their ‘country of origin,’ when those foodstuffs actually originate in one of the territories which — while each has its own international status distinct from the State of Israel — are occupied by that State and subject to a limited jurisdiction of the latter, as an occupying power within the meaning of international humanitarian law, would be liable to mislead consumers.

“The indication of the territory of origin of the foodstuffs in question is mandatory…in order to prevent consumers from being misled as to the fact that the State of Israel is present in the territories concerned as an occupying power and not as a sovereign entity.

“The omission of that indication, with the result that only the territory of origin is indicated, might mislead consumers. Consumers have no way of knowing, in the absence of any information capable of enlightening them in that respect, that a foodstuff comes from a locality or a set of localities constituting a settlement established in one of those territories in breach of the rules of international humanitarian law.

“The provision of information to consumers must enable them to make informed choices, with regard not only to health, economic, environmental and social considerations, but also to ethical considerations and considerations relating to the observance of international law.

“In that respect that such considerations could influence consumers’ purchasing decisions.”

The Court of Justice ruling, which effectively encourages the strict French labelling requirements to be applied across the European Union, has been roundly condemned as reflecting the EU’s anti-Israel bias. Many commentators noted that of all the world’s many territorial conflicts — from Crimea to Northern Cyprus to Tibet to Western Sahara — the EU has singled out Israel as the only country subject to special labelling requirements.

The Israeli Foreign Ministry said that the ruling is “unacceptable both morally and in principle.” In a statement it added:

“Israel strongly rejects the recent ruling of the European Court of Justice (ECJ)​, which serves as a tool in the political campaign against Israel. The ruling’s entire objective is to single out and apply a double standard against Israel. There are over 200 ongoing territorial disputes across the world, yet the ECJ has not rendered a single ruling related to the labeling of products originating from these territories. Today’s ruling is both political and discriminating against Israel.

“This ruling only diminishes the chances of reaching peace and contradicts the positions of the European Union on the conflict. It plays into the hands of the Palestinian Authority, which continues to refuse to engage in direct negotiations with Israel and emboldens radical anti-Israel groups that advance and call for boycotts against Israel and deny its right to exist.”

Israel’s ambassador to the United Nations, Danny Danon, said that the decision reflects anti-Semitic climate in Europe today:

“This is another example of Europe continuing its surrender to Israel’s enemies. The EU’s discrimination against the Zionist enterprise will provide legal cover for anti-Semitism. The court’s decision will only spread this ancient bigotry across the continent, providing extra fuel for the forces trying to undermine and damage the Jewish State. Today marks a dark stain of Europe’s own doing that will never wash away.”

The New York-based Lawfare Project, which funds legal actions to challenge anti-Semitism, said that the EU law allows for discrimination against Israeli Jews and will enable product labels to be used for political purposes:

“The Court’s decision is discriminatory on its face; goods produced by Jewish people and Muslim people in the same region will have different labels because of political decisions made by European officials. Mandating an ethnic and religious element to labeling products is a dangerous precedent. Indeed, the decision is completely unenforceable in areas like the Golan where there are no defined ‘settlements’ and compliance would require some sort of census of the ethnicity, nationality, and/or religion of the producers in order to determine how products must be labeled. The illogic of the ruling is further evidenced by the fact that Palestinian Muslims — the very population the Court deems to be legal inhabitants of, and who do business in, Israeli-controlled areas — will themselves be subject to derogatory labeling. And, while Israel is the historic homeland of the Jewish people, the Court seeks to call Jews foreigners in their own home. The Court’s assertion that even the most precise geographic location or address of the manufacturer is inadequate, and that the ethnicity and/or nationality of the producers themselves is a necessary factor for labeling, is a clear-cut indication that the intention is to encourage discrimination.”

The Executive Director of the Lawfare Project, Brooke Goldstein, said that the “decision to codify religious discrimination into law is embarrassing for Europe.” She added:

“There is no legitimate reason for products produced by Muslims and Jews in the same geographic place to be labeled differently. In fact, treating people differently because of their religion is the definition of bigotry and we know what happens when Europe goes down that track. Muslims living under Palestinian Authority rule are as much ‘settlers’ as are Jews — they are both legally allowed to settle under the same treaty, the Oslo Accords.”

Lawfare Project’s lead counsel on the case, François-Henri Briard, said that the Court’s catered to “political prejudices.” He added:

“If such labeling is applied to Israeli products, surely it will also need to be applied to scores of other countries around the world that could be argued to be in violation of international law.”

The legal adviser for Psagot Winery, Gabriel Groisman, said:

“While there are many efforts to discriminate against and boycott Israel, those affected by boycotts must continue to stand up for their rights in courts of law in every corner of the world. Despite the unfavorable ruling by this Court, rest assured that Psâgot will not stop fighting for its rights to be treated equally and fairly under the law.”

The U.S. State Department said that the labelling requirement is “suggestive of anti-Israel bias” and added:

“This requirement serves only to encourage, facilitate, and promote boycotts, divestments, and sanctions (BDS) against Israel. The United States unequivocally opposes any effort to engage in BDS, or to otherwise economically pressure, isolate, or otherwise delegitimize Israel. The path toward resolving the Israel-Palestinian conflict is through direct negotiations. America stands with Israel against efforts to economically pressure, isolate, or delegitimize it.”

Eugene Kontorovich, a professor at George Mason University’s Antonin Scalia Law School and a director of the Jerusalem-based Kohelet Policy Forum, said that the European court was “putting a new kind of yellow star on Jewish-made products.” He added:

“Now Jewish products are the only ones to have to bear special labels based on their origin. This blatant discrimination makes it more urgent than ever for the Trump administration to defy Brussels by making official what has long been U.S. practice, to allow these products to be labelled ‘Made in Israel.’

“The ruling also shows it’s not about the Palestinians, it’s about the Jews. Because in the Golan Heights where there are no Palestinians and no discussion of a Palestinian state, the Europeans imposed the same rule. And we know it’s not about occupation because they don’t apply this rule in any occupied territory anywhere in the world or anywhere.”

The Chairman of the Brussels-based European Jewish Association, Menachem Margolin, summed it up:

“The entire basis of the labelling policy is purely discriminatory against the world’s only Jewish state. Is any other country in the world with disputed territory subjected to such a blatantly one-sided policy? The answer is no. It also goes against the international standard of trade set by the World Trade Organization.

“What is particularly galling is the message this sends to the Israeli public today.

“As shops, schools and businesses are forced to close because of the onslaught of massive indiscriminate rocket fire from Gaza, as Israelis take shelter and border towns and villages steel themselves against the worst, the EU sends them a signal not of support or solidarity, but of punitive and needless labeling.

“This is the worst kind of fiddling while Rome burns. The European court quoting Israel for its ‘breach of the rules of international humanitarian law’ whilst Hamas and its acolytes are bombing innocent civilian populations in Israel is one of the most perverse ironies I have witnessed in quite some time.”

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