After years of European statements, resolutions and directives against the Jewish people’s right to live in Judea and Samaria (the “West Bank”), eastern Jerusalem and the Golan Heights, on Nov. 12 the European Court of Justice (ECJ) continued the trend, confirming that under longstanding European Union consumer protection law, food and wine from those territories may not be labeled “Made in Israel.” Instead, ruled the court, their labels must indicate that they come from an “occupied territory,” an “Israeli settlement” or the like.
The court reasoned that European consumers must be able to “make informed choices” and that product labels must include “health, economic, environmental, social and ethical considerations, including respect for international law.” The court explained that the term “settlement” must be used “since it refers to a population of foreign origin,” going on to state that the “West Bank” is the territory of “the Palestinian people” and that they “enjoy the right to self-determination” in that territory.
And of course, although E.U. law and the ECJ decision do not relate only to Israel, in practice the only “social and ethical” consideration for which the E.U. is specifically mandating such labeling is the dispute over the pre-1967 territories in Israel.
The underlying case was initiated by Psagot Winery, based in the Binyamin region just minutes outside of Jerusalem. I am a member of the multi-national legal team advising Psagot on this matter. Psagot had challenged the legality of France’s application of these very labeling requirements, which it argued were discriminatory. The French court, in turn, filed an action with the ECJ to seek guidance on the matter.
Immediately following the ECJ ruling, letters of condemnation of its outrageous interpretation of E.U. law and in support of Israel poured in from members of the U.S. Congress, the State Department, the White House and more.
Jews, and friends of Israel all over the world, were disheartened and shocked by the ruling. Calls of anti-Semitism rung out, as the singling out of Israel falls clearly within the well-established and accepted definition of anti-Semitism set forth by the International Holocaust Remembrance Alliance, and Europe is clearly “[a]pplying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation.”
Yet voices in Israel were less supportive. Israeli officials seemed more worried about distancing themselves from Psagot and the ruling. Foreign Ministry staff put out anonymous statements to the press stating that they had advised Psagot to drop the matter. Similar statements came from former Justice Minister Ayelet Shaked and Foreign Minister Israel Katz.
Columnists rushed to publish articles criticizing Psagot for bringing this case in the first place. They argued that Psagot made the situation worse for producers of food and wine products from Judea and Samaria, eastern Jerusalem and the Golan. Some even argued that Psagot’s actions harmed Israel.
But those who stood against Psagot’s actions are some of the many in Israel who have decided, year after year, to allow or overlook Europe’s discrimination against Israelis, funding of anti-Israel initiatives and active work towards the delegitimization and destruction of the State of Israel. Psagot, on the other hand, is proud to have fought the E.U.’s discriminatory laws in court, no matter the outcome. Psagot will continue this fight as the case is remanded back to the French courts, and will continue to lead the fight against Europe’s misuse of consumer protection laws to harass, intimidate and discriminate against Israel and Jews around the world.
Importantly, from a legal perspective, Israel is no worse off after the ECJ’s Nov. 12 ruling. The court did not change the law, but rather confirmed the enforcement guidelines of the European Commission, which have been on the books for years. While Psagot argued that the court’s interpretation and application of these labeling requirements, which had been promoted by the European Commission, was wrong, the court did not make a new law.
From an enforcement perspective, too, Israel is no worse off. Many commentators suggested that enforcement authorities in European states did not enforce the law prior to Nov. 12. This is false. European countries in some of the most important entry points in the E.U. (France, Belgium, the Netherlands, Germany) had all begun enforcement of the labeling directives.
In fact, this action was initiated by Psagot precisely because France had begun enforcing these labeling requirements. According to the ECJ, the law has not changed and always required those labels. In theory, the E.U. could have launched infringement proceedings against non-conforming states, though such an action would have been rather exceptional and it is doubtful according to European experts that the European Commission would have sued a member state over this issue.
In fact, slowly but surely, European nations are already coming out stating that they will not be implementing the labeling requirements.
Regarding Israeli officials’ statements about putting pressure on Psagot to drop the action: Did members of the Israeli government ask Psagot to drop the case? Yes. But did other members of the Israeli government support Psagot’s actions? Yes.
Psagot is a private business, which has the right to fight for its rights in courts of law around the world. It does not seek nor require the approval of any government entity or official to do so. And the fight continues. Without going into details regarding Psagot’s legal strategy, European states that look to impose these labeling requirements will have to include any and all social or ethical considerations that their consumers may find relevant, or violate their own anti-discrimination laws by applying them to the only Jewish state.
After many meetings and discussions with U.S. officials, the U.S. government has also taken notice. Just days after the ECJ opinion was released and the U.S. State Department issued a statement condemning it, U.S. Secretary of State Mike Pompeo announced a change in U.S. policy regarding Judea and Samaria, stating: “The establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.”
Of course, this undermines the ECJ’s ruling, which is based on the false premise that these civilian settlements were established “in violation of the rules of general international humanitarian law.”
It is important to note that when France began requiring this discriminatory labeling, Psagot had two choices—the same two choices the State of Israel and every affected business owner had: do nothing, or fight. From our perspective, the days that the Jewish people choose to do nothing in the face of discrimination are over. We must fight, we have fought and rest assured, we will continue to fight.
There are certainly legitimate disagreements as to the best strategies that Israeli businesses can employ to protect their rights in Europe and elsewhere. But rather than point fingers and smear those we disagree with, we must find ways to work together towards the same goal.
November 2019 will not go down in Israeli history as the month that a European court reaffirmed the E.U.’s discriminatory labeling policies regarding Israel. It will be remembered as the month that the United States recognized the truth—that for Jews to live in the historical homeland of the Jewish people is not illegal. With this backdrop and tailwind, Psagot will continue to battle for its rights and those of all of its neighbors, and hope that for the next round it won’t have to fight alone.
Gabriel Groisman is an attorney at Groisman Law, PLLC, based in Miami and also serves as the mayor of Bal Harbour, Fla. He is a legal adviser to Psagot Winery and a leading voice in the global fight against anti-Semitism.
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