EU's Highest Court Opens Pandora's Box of Politicized Product Labeling for All Countries that Export to the EU
Press Release – For Immediate Release
November 12, 2019
Media Contact:
David Pasch
202-854-1179
dpasch@targetedvictory.com
CJEU decision that EU law allows for discrimination against Israeli Jews will enable product labels to be used for political purposes, complicate U.S.-EU trade relations
LUXEMBOURG — Today, the Court of Justice of the European Union (CJEU) issued a disastrous and imprudent decision that supports derogatory French labeling requirements imposed on Israeli products and obligates similar requirements throughout the EU. This decision mandates religious discrimination, treating Jewish-owned and Muslim-owned businesses differently even if they operate in the same geographic location. It also opens up a Pandora's box of unintended consequences, allowing anyone to bring an action requiring labeling of any exports to the EU based on subjective "ethical considerations."
The French regulation under consideration mandated that Israeli-made products from East Jerusalem, the Golan, and Israeli territories west of the Jordan river be labeled with the designation "colonies israéliennes" ("Israeli colony" or "settlement"). The controversial regulation was driven by foreign policy concerns, and contributes in no demonstrable way to food safety or consumer protection. In fact, polls have shown that consumer choice is in no way affected by such discriminatory labeling of Israeli products. The Lawfare Project and Cabinet Briard initiated legal action in 2017 on behalf of the award-winning Israeli winemaker Psâgot, challenging the regulation before France's administrative supreme court (Conseil d'État), which asked for guidance from the CJEU.
The only way to avoid complete global trade pandemonium would be to limit labeling requirements to Jews, the definition of antisemitism
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 Pandora's box for politicized labeling has been opened. What started with Israel will not end with Israel.
The Court's decision creates new barriers and disruptions to international trade, contrary to EU policy and in violation of the EU's WTO obligations, as The Lawfare Project has previously warned. Indeed, there will be far-ranging consequences not just for Israelis but for all countries that export to the EU. The decision allows any consumer to object to the labeling of any country's exports, based on any "ethical consideration" whatsoever, including environmental, sanitary, political, social, legal, or otherwise. EU consumers can now bring actions mandating that oil produced in Iran indicate that Iran executes homosexuals, that goods produced in China indicate that China detains political prisoners, that shrimp produced from the disputed territory of New Caledonia be labeled "New Caledonia–French Colony," that products from Quebec indicate whether they are made by English or French speakers, and that items produced in the United States indicate whether the manufacturer supports President Trump. Besides, the "ethical considerations" of an individual in France may differ from those of someone in Poland, which may differ from someone in Germany, and so on. This would not only lead to inconsistent labeling throughout Europe, but will unquestionably create chaos and uncertainty in international trade. In fact, at least one lawsuit has already been filed by a consumer protection association in France, demanding that the court enforce labeling of Iranian, Chinese, U.S., and even French products pursuant to the astonishingly expansive "ethical considerations" mandate.
The CJEU's decision will result in untenable product labeling requirements, wreaking havoc on the global trade system. EU countries are now left with three options: either amend the trade regulation at issue, open the door to unpredictable and chaotic politicized labeling, or apply the decision to Israel and only Israel. This last option would fly in the face of the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, according to which a contemporary example of antisemitism is "[a]pplying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation."
Application of the CJEU decision to Israeli products will trigger U.S. anti-boycott law and potentially disrupt U.S.-EU trade relations
Boycotts of Israel are illegal in the United States. High-ranking U.S. Senators and Representatives, both Democrats and Republicans, have warned of the negative implications for U.S.-EU relations and trade. Senator Robert Menendez (D-NJ), the Ranking Member of the Senate Committee on Foreign Relations, said this decision would "create policy tensions with the United States."
François-Henri Briard, lead counsel on the case, released the following statement:
"EU rules are there to provide fair and relevant information to consumers, not to cater to political prejudices. 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. Our work with The Lawfare Project to challenge anti-Israel discrimination in trade is far from over."
Brooke Goldstein, Executive Director of The Lawfare Project, released the following statement:
"The decision to codify religious discrimination into law is embarrassing for Europe. 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."
Yaakov Berg, CEO of Psâgot Winery, released the following statement:
"The Winery is proud of its contribution to combating this decision and intends to continue the struggle. We are happy to see the support of many leaders in Israel and the United States, including the State Department and members of Congress. We regard this as an important mission for Israelis and Jews, the second generation from the Holocaust. As Israeli citizens, living in a community that has been approved by the Israeli government, we only wish to produce and export high-standard wine that has earned its reputation worldwide."
Gabriel Groisman, legal adviser for Psâgot Winery, released the following statement:
"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 fight is not over.
Psâgot's legal action will now be remanded back to the French court, where we will argue against the labeling requirements being applied exclusively to Israel on the basis of French anti-discrimination law. We are committed to challenging enforcement in every country and every locality that attempts to discriminate against persons based on their race, ethnicity, religion, or national origin.
The Lawfare Project is a global network of legal professionals that contribute their skills, time, and expertise to defending the civil and human rights of the Jewish people and pro-Israel community, and fighting discrimination wherever they see it.