Can the Psagot winery convince European Court of Justice to drop "settlement" labeling laws?

The Times of Israel reports that some Israeli officials are warning that a private lawsuit brought by the Psagot winery to the European Court of Justice against a French policy of labeling goods made by Jews in Judea and Samaria as being made in "Israeli settlements."

Israeli officials are concerned that the lawsuit will backfire, Psagot will lose, and world headlines will again be screaming about settlements.

The Psagot winery argues otherwise. It hired some serious lawyers to argue that adding "Israeli settlements"to the labels adds a political commentary to consumer goods, something that would become a nightmare if enforced equally across all imports from countries with problematic political policies.

Psagot's questions for the ECJ are:

Does EU law, and in particular Regulation No 1169/2011 …, where indication of the origin of a product falling within the scope of that regulation is mandatory, require, for a product from a territory occupied by Israel since 1967, indication of that territory and an indication that the product comes from an Israeli settlement if that is the case? If not, do the provisions of [Regulation No 1169/2011], in particular those in Chapter VI thereof, allow a Member State to require those indications?’

The decision wlll be handed down Tuesday.

Experts consulted by Times of Israel think that this lawsuit does not stand a chance. The major reason is that ECJ’s Advocate General Gerard Hogan already expressed a non-binding opinion on the matter and he is rarely overruled by the court.

His ruling s based on the wording of Regulation No 1169/2011, the 2011 EU consumer information rule, which states:

In order to achieve a high level of health protection for consumers and to guarantee their right to information, it should be ensured that consumers are appropriately informed as regards the food they consume. Consumers’ choices can be influenced by, inter alia, health, economic, environmental, social and ethical considerations.

Hogan's ruling concentrates on the "ethical considerations" part, saying that the territories are occupied and therefore consumers who base their purchases on information like that need to know this.

In my view, the reference to ‘ethical considerations’ in the context of country of origin labelling is plainly a reference to those wider ethical considerations which may inform the thinking of certain consumers prior to purchase. Just as many European consumers objected to the purchase of South African goods in the pre-1994 apartheid era, present day consumers may object on similar grounds to the purchase of goods from a particular country because, for example, it is not a democracy or because it pursues particular political or social policies which that consumer happens to find objectionable or even repugnant. In the context of the Israeli policies vis-à-vis the Occupied Territories and the settlements, there may be some consumers who object to the purchase of products emanating from the territories, precisely because of the fact that the occupation and the settlements clearly amount to a violation of international law. It is not, of course, the task of this Court to approve or to disapprove of such a choice on the part of the consumer: it is rather sufficient to say that a violation of international law constitutes the kind of ethical consideration which the Union legislature acknowledged as legitimate in the context of requiring country of origin information.

Psagot's argument against this is that if the consumer information required is so broad then the labeling for all countries must include political information about that country.

TOI:

“The court will not rule in favor of labeling, because I am confident the judges are more farsighted than that,” [lawyer Brooke] Goldstein told The Times of Israel.

“Either way, I do not think that EU member states will be able to enforce any EU regulation that requires it to label only Israeli products. Since most EU member states have robust anti-discrimination laws, it will require any EU regulation to apply in a non-discriminatory fashion, to any products imported into the EU that come from either disputed territories or territories engaged in human rights violations.”

In other words, if Europe’s top court decides that West Bank products must be labeled, “that means Styrofoam cups from China, wine from Turkey, oil from Iran, will all be mandated to have labels indicating the particular political circumstances of each country. That will obviously be an economic nightmare for Europe and totally unenforceable.”

Hogan's ruling subtly shows his own anti-Israel bias because he simply doesn't even consider that "occupation" is only one of thousands of possible "ethical" considerations that consumers would have the right to know. Does the country of origin discriminate against gays? Does it have laws against abortion? If one "ethical" consideration is important enough to be considered important for the labeling, then why aren't the others? According to his logic, every country of origin should have a laundry list of possible ethical violations listed, from its stance on abortion to its gun control laws and whether it allows kosher slaughter. Yet Hogan rules only that the purported illegality of the settlements is the only consideration important enough for consumers to be told explicitly, so much so that it should be mandatory to label the goods that way!

Interestingly, he seems to undercut his own argument a bit when he says that other legal rulings assume that consumers are "well-informed" about the issues of importance to them. He argues that such a consumer needs to be told that the provenance of the goods come from "Israeli settlements"  even though if they really are "well informed" they wold know that wine that is clearly labeled as coming from the Golan Heights or Judean Hills are obviously made by Jews and not Muslims who do not drink wine.

Unfortunately, as his ruling shows, the ECJ is likely to have its own biases against Israel just as Hogan does.

Hogan's ruling does not address the EU states' non-discrimination laws, apparently because they are up to each member state. So while Psagot's argument against Hogan might not help in the ECJ, it might be useful in terms of fighting it in individual countries - and, from the other side, to fight for the ECJ to apply its reasoning to every problematic country that goods are imported from.

I spoke to Yaakov Berg, the owner of Psagot Winery, a number of years ago, where he briefly addressed the labeling issue. "It's very funny, because for example, if I would sell my winery tomorrow morning to a German guy, to an English guy, so what is going to be written on the bottle? Nothing! In other words, only if a Jew will have a winery or a factory in his own land, only then will it be written on a bottle a 'warning,'"Berg said.

Berg told TOI, "This court decision is just the beginning of the fight we’re preparing to put up. We won’t agree to a double standard. It cannot be that products from Tibet are considered ‘Made in China’ while I am labeled. I — who am working the field where my ancestors were already making wine during the Second Temple period. There is no historical debate over this; all historians agree that this was the homeland of the Jewish people.”

“My grandmother escaped the Nazis; they labeled her as a Jew. I grew up in Russia, where they labeled us as Jews. They shall not stick special labels on us,” Berg declared. “It just won’t happen, certainly not in Europe. We won’t accept it.”

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