On labeling settlement goods, the European Union is far from united

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ToI asks 10 member states how last month’s court decision will affect their policy. Some eagerly reaffirmed their existing labeling regime, some demurred, France refused to comment.

–  The Times of Israel

When it comes to its controversial policy requiring products from Israeli settlements to be labeled as such, the European Union is very divided, a Times of Israel survey of 10 member states has shown.

Some governments adamantly declare that the labeling requirement is just, necessary, and must be implemented and enforced. Others are less enthusiastic. And some don’t want to comment on it all.

The bloc of 28 states usually strives to speak with one voice about foreign policy matters, and so far has more or less agreed on a common position on the Israeli-Palestinian conflict; calls for the establishment of a Palestinian state and opposition to Israeli settlements are considered consensus positions.

At the same time, a handful of Central European states, led by Hungary, have blocked joint EU statements condemning the US administration’s 2018 move of its embassy to Jerusalem and, more recently, Washington’s new policy position that settlements are not illegal.

It was also Budapest that, in 2015, spoke out the loudest against the union’s then-fresh policy to require products originating in Israeli settlements to be labeled as such.

“It is an inefficient instrument. It is irrational and does not contribute to a solution [to the Israeli-Palestinian conflict], but causes damage,” Hungarian Foreign Minister Péter Szijjártó said at the time.

Although the labeling guidelines have since been considered mandatory, apparently few governments took them seriously, or at least made little to no effort to enforce them. A recent study found that 9 out of 10 wines from settlements offered in European supermarkets, for instance, were not labeled according to the EU’s instructions.

On November 12, the European Court of Justice, in response to a legal challenge brought by a winery in the West Bank, ruled that it was indeed obligatory for all EU member states to label settlement goods.

The ruling was denounced by the Israeli government, the US State Department, some individual European politicians, and even the Dutch parliament.

The Netherlands’ House of Representatives passed a resolution saying it would be unfair if only Israeli products were labeled while goods from other areas under dispute were not. This text, which passed with a large majority, called on the government in The Hague to speak out against the “unequal treatment” of Israel in Brussels and to “advocate at EU level that such regulations should only apply if they also apply to all other occupied territories.”

The Dutch government responded to the motion by saying that the EU’s requirement for correct indication of origin “applies to all countries and territories,” insisting that there is “no unequal treatment of Israel and the territories occupied by Israel.”

The Times of Israel contacted 10 European governments — some considered friendly to Israel and some known to be rather critical — about last month’s EU court decision. We asked two questions:

1. To what extent has your country implemented the labeling requirement as laid out in the 2015 interpretative notice?

2. Will your country change its policy vis-a-vis the enforcement of the labeling requirement in light of last week’s European Court of Justice decision?

Few governments provided clear answers, but their responses — or lack thereof — are nonetheless telling. Not only does Europe appear deeply divided on the merits of its controversial labeling policy, but some countries one would expect to be enthusiastic about the court ruling also seem somewhat uneasy about it.

The Czech Republic and Lithuania, generally very pro-Israel, sufficed with very short answers, saying that their respective governments still need to examine the November 12 court ruling and how it will affect their policies.

Poland, which is generally supportive of the Jewish state, but still angry at Foreign Minister Israel Katz’s refusal to apologize for having said that Poles “suckle anti-Semitism with their mother’s milk,” did not provide any answer at all.

Ireland — a country traditionally hostile to Israel, and where a bill that would ban settlement goods entirely is currently advancing in parliament — provided a measured response. Officials “are currently examining the judgment and reflecting on whether there are implications for Ireland,” a spokesperson for the government in Dublin said.

The most detailed answer came from Berlin, where a spokesperson for the German food and agriculture ministry delineated exactly when and why the EU enacted the labeling policy, and who is responsible for interpreting and enforcing it.

Oddly, France, which like Germany was one of the 16 states that in 2015 asked the European Commission in Brussels to issue clarifications regarding the labeling of products from Israeli settlements, refused to provide an on-record statement.

Instead, a diplomatic source, who insisted on remaining unnamed, called this reporter and dictated to him a few boilerplate sentences about consumer protection and the union’s opposition to settlements.

Below are the full replies by all 10 countries we asked — Sweden, Germany, UK, Ireland, France, Hungary, Czech Republic, Netherlands, Lithuania and Poland — in no particular order.

Sweden

The responsibility to monitor implementation lies with the relevant national authorities. In Sweden, the Commission’s 2015 interpretative notice has been implemented by The National Food Agency and the municipalities.

Sweden does not foresee any changes in its implementation of the Commission’s interpretative notice because of the ECJ ruling, which confirms — as said in the notice — that the indication of origin of the products originating in Israeli settlements must be correct and not misleading for the consumer. As a matter of principle, rulings of the ECJ are legally binding for all EU member states.

(Reply provided by a diplomat at Sweden’s embassy in Tel Aviv)

Germany

The European Union distinguishes between Israel and the Occupied Territories beyond the ceasefire line of June 4, 1967 (“Green Line”), and does not consider the Israeli settlements in the Occupied Territories as part of Israeli territory.

Commodities from the occupied territories, including the Israeli settlements, are therefore not from Israel and therefore cannot be labeled with the denomination of origin “Israel.” Nor do they enjoy any preferential tariff under the EU-Israel Association Agreement.

It is in this context that the interpretation note of the European Commission of November 12, 2015, on the correct application of existing rules on the designation of origin of products from the occupied territories is to be understood. The Commission’s Communication did not create a new law, but merely explained existing legislation and the case-law of the European Court of Justice.

The obligation to correctly identify the origin of specific products (for example, fruits and vegetables, wine, honey, olive oil, meat, and fish, but also cosmetics) for consumer protection purposes is laid down in various EU regulations, which are binding in all member states.

In the area of ​​general food labeling law, the EU-wide uniform, cross-product Regulation (EU) No. 1169/2011 (LMIV) on consumer information applies. It does not make any specific statements about Israeli foods, but contains a general ban on misleading (see Article 7).

According to that, food information needs to be accurate, clear, and easy for consumers to understand. The information must not be misleading as to the characteristics of the food, in particular as regards the type, identity, country of origin, or place of provenance.

The indication of the country of origin or place of origin is compulsory under the LMIV, “if, without that information, consumers could be misled by the actual country of origin or place of provenance, in particular if the information attached to the food or the label as a whole gives the impression or would suggest that the food came from another country or place of origin.”

A certain impression regarding the origin of a given food can in principle be rectified by clarifying information. The entrepreneur has a wide range of options available with regard to this clarification; the decisive factor in the end is the overall impression, which must be determined separately in each individual case.

The responsibility for a correct description of a food’s origin lies with the food business operator. The control of compliance with food law regulations is the responsibility of the federal states in Germany. The interpretation of the rules is ultimately up to the courts.

The ECJ ruled in the preliminary ruling proceedings on the interpretation of EU law and the question of which requirements the LMIV places on the labeling of a food from an Israeli settlement. The decision of the ECJ of November 12 does not create a new law, but only supports the previous line of Germany. Last week’s ruling by the ECJ is legally binding for all EU Member States.

(Reply provided by a spokesperson for the Federal Ministry of Food and Agriculture)

Great Britain

“We have noted the European Court of Justice ruling on the indication of origin of goods originating in the territories occupied by the State of Israel since 1967. The UK approach remains in line with the EU’s interpretive notice on the indication of origin of products from Israeli settlements.”

(Reply provided by the Foreign and Commonwealth Office)

Ireland

The ECJ ruling in Case C 363/18 found that foodstuffs originating in territories occupied by the State of Israel must bear the indication of their territory of origin, and when these products originate from an Israeli settlement, that must also be made clear on the label.

The Court of Justice’s ruling is an interpretation of France’s implementation of the Commission’s Notice and associated EU Regulations. It essentially does not change the situation. However, officials are currently examining the judgment and reflecting on whether there are implications for Ireland. Accuracy of product labeling will continue to be a consumer protection issue, monitored and enforced as heretofore.

(Reply provided by a spokesperson for the Department of Foreign Affairs and Trade)

France

The French government did not provide a statement. An anonymous French diplomatic source said:

“The decision of the European Court of Justice validates the European guidelines that already exist and serve to provide full information to consumers. The EU supports consumers’ right to know the correct origin of products, and if it originates in Israeli settlements in the occupied territories. The EU’s opposition to settlements is permanent and steadfast, since it threatens the two-state solution.

However, this is not in any way a boycott, which France opposes vociferously.”

Hungary

Hungary is analyzing the new legal situation.

(Reply provided by the Ministry of Foreign Affairs and Trade)

Czech Republic

1. We do not know
2. So far we are getting to know the regulation

(Reply provided by the Foreign Ministry)

The Netherlands

The Netherlands was one of the 16 EU Members states that asked the European Commission in 2015 to clarify how goods from the settlements in the occupied territories should be labeled, in order to ensure that consumers are not being misled by false information.

Since then, The Netherlands Food and Consumer Product Safety Authority (Voedsel en Warenautoriteit, NVWA) has used the guidance of the interpretive notice as part of its regular policy. That is also what Cabinet said in reaction to written questions in Parliament (for Dutch, see link)

The binding verdict of the EU Court confirms the Dutch policy and is no reason to change the Dutch policy.

These answers were sent to The Times of Israel before the above-mentioned parliamentary resolution on the matter was passed. After we sent a follow-up query, we received the following answers:

The existing EU legislation (Regulation (EU) No 1169/2011 on the provision of food information to consumers) requires that consumers are correctly informed about the origin of products and are not misled. This applies to products from all countries and territories.

The recent judgment of the European Court of Justice has clarified how this existing EU legislation should be applied in the specific case of territories occupied by the state Israel and Israeli settlements.

The judgement has not changed the situation of Dutch consumers. If they have questions regarding the origin of any product, from any country or territory, or believe that the origin information on the product’s label is incorrect, they can approach the Food and Consumer Product Safety Authority.

The position of the Netherlands government has been clear since the existing EU legislation was introduced and has not changed during the years: information about the origin of a product — whether it is produced in the territories occupied by Israel or in any other part of the world — must not be misleading.

The motion in Parliament was passed yesterday. The cabinet will respond to it in a written answer.

(Reply provided by a spokesperson for the Foreign Ministry)

Lithuania

As a member of the EU, Lithuania has its clear obligations, including rulings of the European Court of Justice.

We take note of the ruling of the European Court of Justice on indication of origin taken on November 12. Currently Lithuanian authorities are in the process of analyzing the implications of this ruling.

(Reply provided by the Foreign Ministry’s Information Monitoring and Media Division)

Poland

The Foreign Ministry in Warsaw referred us to the Ministry of Agriculture and Rural Development, which did not reply to numerous queries.

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