On 13 June 2019, Advocate General Gerald Hogan issued his Opinion in Case C-363/18, referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling on….
On 13 June 2019, Advocate General Gerald Hogan issued his Opinion in Case C-363/18, referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling on 30 May 2018 by the French Conseil d’Etat on the conformity with European law of the regulatory provisions requiring the labelling of products from Israeli settlements. The Advocate General considers that this mechanism is in line with European law and his opinion will probably be followed in the coming months by the CJEU. Proponents of respect for international law in Israel and Palestine will welcome the meaning of the conclusions presented, but should they be pleased? This is not certain.
On the one hand, the preliminary question put by the Conseil d’Etat was probably unnecessary. It is clear that the French system (Opinion of the Minister of Economy and Finance of 24 November 2016) is in line with European law (Regulation (EU) No 1169/2011 of 25 October 2011 on consumer information on foodstuffs and Communication of the European Commission of 12 November 2015) and makes it possible to set up specific labelling for products from Israeli settlements. The Conseil d’Etat could undoubtedly confirm this itself, without asking such a question to the CJEU (See in this respect, Revue de droit rural, 2018, com. 208, “La CJUE chargée de mettre la bonne étiquette sur les produits issus des colonies israéliennes” (The CJEU responsible for putting the right label on products from Israeli settlements, G. Poissonnier and F. Dubuisson). The referral to the Conseil d’Etat by the two applicants (a pro-Israeli association and a company specialising in the management of vineyards located in the West Bank settlements) was clearly intended to delay the application of the legislation and in this respect, their objective has been achieved since the judgment of the Conseil d’Etat, the Directorate General of Competition, Consumer Affairs and Fraud Prevention (DGCCRF) announced that it was suspending its controls aimed at checking compliance with the regulations. This is undoubtedly one of the first times that such an administration has suspended by itself as a precautionary measure the application of a regulatory mechanism pending a final court decision, while the proceedings initiated have no suspensive effect. But undoubtedly the Ministry of Economy and Finance, the regulatory authority of the DGCCRF, has deemed it useful to spare once again the Israeli authorities, who cry out in scandal against this legislation which they consider “anti-Semitic”.
On the other hand, and probably more fundamentally, the legislation on the labelling of colonial products is a half measure, falling far short of what is required by international law. The International Court of Justice (ICJ) made it clear in its opinion of 9 July 2004 that the construction of the separation wall and Israeli colonisation are contrary to international law and that States and international organizations must not “give aid and assistance” to Israel in pursuing these illegal initiatives. Providing no “aid and assistance” to colonization implies not encouraging the economic activities that are developing within the colonies. While in fact, by allowing the import into European territory of products manufactured in the colonies, the EU and its Member States contribute to the maintenance and development of economic activities in the colonies and thus to the viability of these illegal entities. The labelling of settlement products does not meet the obligation not to “provide aid and assistance” –See “Produits des colonies israéliennes : étiqueter ou interdire” (Products of Israeli Settlements: Label or Prohibit), La Croix, 24 June 2015. The ban on the import into European territory of colonial products, demanded by many associations, is the only measure likely to be fully in line with international law (see the campaign “Made in illegality” or Amnesty International’s online petition). This is actually what the EU decided for Crimean products after Russia annexed the territory.
However, it would probably be wrong not to read carefully the conclusions of Advocate General Gérald Hogan. They can be credited with clarity, and they recall, without betraying the meaning of the words, the various texts, resolutions and opinions that condemn the Israeli colonization of the Palestinian territories in view of its illegality under international law (Pt 53 to 58). Finally, they contain two paragraphs that perfectly explain the meaning of the call for a boycott of products from States that violate international law. The Advocate General considers that” it is quite obvious that, in a modern environment, some purchases are no longer based solely on considerations such as the price or identity of a particular brand. For many consumers, the decision to purchase may also be influenced by criteria such as environmental, social, political, cultural or ethical considerations” (Pt 39). Indeed, according to him, “ethical” considerations must be understood in a broad sense, that is not limited to the way in which food products are prepared (Pt 50). He states: “Just as many consumers were opposed to the purchase of South African products during the apartheid era before 1994, today’s consumers may, for similar reasons, oppose the purchase of products from a given country, for example because it is not a democracy or because it applies particular political or social measures that this consumer considers reprehensible or even revolting. In the context of Israel’s policy towards the occupied territories and the settlements, it is possible that some consumers may oppose the purchase of products from these territories, precisely because the occupation and settlements clearly constitute a violation of international law. It is not, of course, the Court’s task to approve or disapprove such a consumer choice: rather, it is sufficient to indicate that a violation of international law constitutes the type of ethical consideration that the Union legislator has recognised as legitimate in the context of the COI requirement” (Pt 51).
Of course, we can only share this analysis, which takes into account both the rich history of product boycott movements for political considerations (Ireland, England, United States, India, South Africa, Burma, See “A popular history of boycott”, O. Estèves, L’Harmattan, 2006) and the current rise in ethical consumption –See Le Monde of 2 May 2019, “Le boycott, un art de la résistance passive à travers les siècles” (Boycott, the art of passive resistance across the centuries), C. Vincent. The call for a boycott of Israeli products as part of the BDS campaign is perfectly in line with this logic.
Finally, the Advocate General allows himself a development that can only encourage those who believe that international law does not have only an abstract or symbolic meaning. According to him, “adherence to the requirements of international law is considered by many – and not only by a small group of experts in the field of international law and diplomacy – as playing a vital role in the maintenance of international peace and security and an omen of justice in an otherwise unjust world. This may be particularly true in the context of EU citizens who have witnessed, throughout their lives for some, the destructive effect of brute force, at a time when some countries had come to believe that international law was merely an empty promise to the oppressed and vulnerable of the world and that it could be ignored with impunity” (Pt 52).
The European Court of Human Rights, which will rule in the coming months on the sentencing by the French criminal justice system of community activists who called for the non-purchase of Israeli products outside a supermarket, in the name of respect for international law, could usefully draw on these inspiring words from the CJEU’s Advocate General.
By Ghislain Poissonnier, magistrate.