Israel settlements – Photo Daniel Ventura – shechem.org
(LUXEMBOURG) – Foodstuffs originating in Israel’s occupied territories must bear the indication of their territory of origin, the EU’s top Court ruled on Tuesday, and be labelled if originating from an Israeli settlement.
In the judgment Organisation juive européenne and Vignoble Psagot (C-363/18), delivered on 12 November 2019, concerning the interpretation of Regulation (EU) No 1169/2011, the Grand Chamber of the Court ruled that foodstuffs originating in territories occupied by the State of Israel must bear the indication of their territory of origin, accompanied, where those foodstuffs come from a locality or a group of localities constituting an Israeli settlement within that territory, by the indication of that provenance.
The proceedings concerned a dispute between, on the one hand, Organisation juive européenne and Vignoble Psagot Ltd and, on the other hand, the ministre de l’Économie et des Finances (the French Minister for the Economy and Finance) in relation to the legality of a notice concerning the indication of origin of goods originating in the territories occupied by the State of Israel since June 1967 and requiring that those foodstuffs bear the indications in question. That notice followed publication by the European Commission of an interpretative notice on indication of origin of goods from those territories.
First, the Court observed that the country of origin or the place of provenance of a foodstuff must, in accordance with Articles 9 and 26 of Regulation No 1169/2011, be indicated where failure to indicate this might mislead consumers into believing that that foodstuff has a country of origin or a place of provenance different from its true country of origin or place of provenance. In addition, it noted that, where the origin or provenance is indicated on a foodstuff, it must not be deceptive.
Secondly, the Court clarified both the interpretation of the concept of ‘country of origin’ and that of the terms ‘country’ and ‘territory’ within the meaning of Regulation No 1169/2011. In that respect, it noted that that concept is defined in Article 2(3) of that regulation, by reference to the Union Customs Code, according to which goods which have either been wholly obtained in a particular ‘country’ or ‘territory’ or have undergone their last substantial processing or working in that country or territory are to be regarded as having their origin in that country or territory.
As regards the term ‘country’, which is used numerous times in the TEU and the TFEU as a synonym for the term ‘State’, the Court noted that, in order to ensure the consistent interpretation of EU law, the same meaning should be given to that term in the Union Customs Code and, consequently, in Regulation No 1169/2011. ‘State’ refers to a sovereign entity exercising, within its geographical boundaries, the full range of powers recognised by international law. As regards the term ‘territory’, the Court noted that it follows from the very wording of the Union Customs Code that that term refers to entities other than ‘countries’ and, therefore, other than ‘States’. In that context, the Court stated that displaying, on foodstuffs, the indication that the State of Israel is their ‘country of origin’, when those foodstuffs actually originate in one of the territories which while each has its own international status distinct from the State of Israel are occupied by that State and subject to a limited jurisdiction of the latter, as an occupying power within the meaning of international humanitarian law, would be liable to mislead consumers.
Consequently, the Court held that the indication of the territory of origin of the foodstuffs in question is mandatory, within the meaning of Regulation No 1169/2011, in order to prevent consumers from being misled as to the fact that the State of Israel is present in the territories concerned as an occupying power and not as a sovereign entity.
Thirdly and lastly, the Court stated that the concept of ‘place of provenance6 must be understood as referring to any specific geographical area within the country or territory of origin of a foodstuff, with the exception of a producer’s address. Thus, the indication that a foodstuff comes from an ‘Israeli settlement’ located in one of the ‘territories occupied by the State of Israel’ may be regarded as an indication of the ‘place of provenance’, provided that the term ‘settlement’ refers to a specific geographical area.
In addition, as regards the issue whether the indication ‘Israeli settlement’ is mandatory, the Court first of all underlined that the settlements established in some of the territories occupied by the State of Israel are characterised by the fact that they give concrete expression to a policy of population transfer conducted by that State outside its territory, in violation of the rules of general international humanitarian law. The Court then held that the omission of that indication, with the result that only the territory of origin is indicated, might mislead consumers. Consumers have no way of knowing, in the absence of any information capable of enlightening them in that respect, that a foodstuff comes from a locality or a set of localities constituting a settlement established in one of those territories in breach of the rules of international humanitarian law.
The Court noted that, under Regulation No 1169/2011, the provision of information to consumers must enable them to make informed choices, with regard not only to health, economic, environmental and social considerations, but also to ethical considerations and considerations relating to the observance of international law. The Court underlined in that respect that such considerations could influence consumers’ purchasing decisions.
