Correcting the Record on Psagot’s Case Against Labeling
JNS.org – The European Court of Justice (ECJ) will likely decide next week whether European law requires the discriminatory labeling of Jewish goods from disputed Israeli territories. Meanwhile, a series of articles have been spreading misinformation or “fake news” about the case quoting anonymous Israeli officials, and therefore the record has to be corrected.
The case originated when the European Commission issued a non-binding notice claiming that European Union guidance requires labels on food products from eastern Jerusalem, the West Bank, and Golan Heights that originate in Jewish “settlements” to include the derogatory indication “Israeli colony” or equivalent terms. Psagot Winery, supported by The Lawfare Project and represented by esteemed French Supreme Court Lawyer François-Henri Briard, sued the French government for its discriminatory application of the notice.
France’s highest court, the Conseil d’État, referred the matter to the ECJ, asking the European court to assess whether EU law requires such labeling, and if not, whether EU states were free to implement such requirements. In June, the Advocate General (AG) of the European court declared in a non-binding opinion that he believes EU law requires such labeling. He further stated that while Israeli products from the “disputed territories” may not be labeled as “Products of Israel,” but rather must be labeled as products of “Israeli colonies,” Palestinian products from the exact same region may be designated as originating in “Palestine” rather than, for example, “Palestinian colonies.”
This undeniably discriminatory approach seems to ignore the Oslo Accords, which expressly did not create a Palestinian state, but provided for both Israelis and Palestinians the same legal rights to live in the disputed territories until the Israeli government and Palestinian Liberation Organization reached a final agreement through negotiations.
According to the International Holocaust Remembrance Alliance’s working definition of antisemitism, a contemporary example of antisemitism is “applying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation.” In the product-labeling context, Israel is being held to a different standard than other nations deemed to be acting in violation of international law.
For instance, the United Nations has declared that the United States, the United Kingdom, Russia, Morocco, and France are illegally occupying and colonizing certain territories, yet products from these nations have not been subjected to the labeling requirements enforced against Israel for allegedly engaging in the same type of conduct.
On Nov. 12, the ECJ is expected to announce a decision on the limited questions before it only, and then the case will be remanded back to the French court to rule on according to French anti-discrimination law. There is no reason to believe the French court will agree with the AG’s reasoning, which in effect declares that Palestinian businesses should receive preferential treatment not afforded to Israeli businesses. Nor has there yet been a decision by a French court on this matter.
Anonymous Israeli officials have been claiming that many EU countries have simply not implemented the labeling guidelines, so it would have been better policy to just ignore them and pretend they didn’t exist. This is a misleading and dangerous position. Countries like Germany, Belgium, Spain, the Netherlands, and others have indeed been ramping up their enforcement of the European Commission guidelines on labeling and sending letters to EU importers. What these anonymous Israeli officials seem to be asking is for private companies to simply ignore the fact that their goods are being targeted for discriminatory treatment designed to cripple the Israeli export market.
Despite the fake news disseminated by certain media outlets, this case has not and will not make things worse for Israeli exporters. If Psagot Winery had not brought suit, the door would have been left open for anyone to bring European importers to court in an attempt to force them to abide by the labeling regulations. Psagot’s legal case does not change this — it challenges those regulations themselves with the aim of preventing any future legal cases against Israeli products.
Even in the event of an unfavorable decision from the ECJ, Psagot’s case will be remanded back to France, where it will be challenged on anti-discrimination grounds. Discriminatory labeling requirements that single out Israeli goods will likely be challenged in every European jurisdiction that attempts to implement them, on the basis of local anti-discrimination laws. Moreover, if there is an adverse ruling by the ECJ this month, the EU Parliament and Council could amend the food regulation at issue and annul its application with respect to West Bank and Golan Heights products, as was done in the Western Sahara Polisario case.
The case before the ECJ was brought by an Israeli company exercising its legitimate rights to avail itself of the judicial process to protect its commercial interests, and by extension, the commercial interests of all Israeli companies that do business in Europe. Any concerns that this case could harm Israeli exporters further are completely unfounded, as even an unfavorable decision would not change the status quo. Before the case was brought, EU countries were enforcing the notice and the European Commission was touting the regulations as binding.
It is deeply troubling that Israeli government officials would signal to the ECJ prior to its ruling that the Israeli government not only expects a negative decision, but is prepared to blame its own citizens for the outcome. Israel’s Foreign Ministry would be well-served to instruct its bureaucrats to spend more time defending Israeli interests abroad and less time demonizing Israeli companies behind the shameful cloak of anonymity.
Brooke Goldstein is founder and executive director of the Lawfare Project, a global network of legal professionals dedicated to defending the civil and human rights of the Jewish people and pro-Israel community, and combating discrimination.