The Consistently Inconsistent:

WTO-Violating EU Labels on Israeli Food Imports

Juscelino F. Colares

 

ABSTRACT: In Organisation juive européenne, Vignoble Psagot Ltd. v. Ministre de l'Economie et des Finances, the European Court of Justice (‘ECJ’) upheld an implementation1 of Council Regulation No. 1169/2011,2 which mandated origin labelling only on Israeli foodstuffs from the West Bank, Golan, and East Jerusalem, along with the requirement to identify such products as coming from an ‘Israeli settlement’. To the ECJ, this identification ostensibly ‘enables [EU] consumers to make informed choices with regard to . . . ethical considerations’ regarding the covered Israeli products.3 This article demonstrates that the EU labelling requirements for Israel and the Psagot Case constitute a pattern of regulatory action that violates the General Agreement on Tariffs and Trade's (‘GATT’) broad definition of territory and Most-Favoured-Nation Treatment (‘MFN’) Principle,4 among other WTO provisions. After demonstrating how these labelling measures were imposed without any transparency or explanation for their focus on Israel, this article explains: (i) how the relevant EU and French labelling regulations and ECJ's decision violate the text, structure, purpose, and history of GATT, art. XXVI:5(a)'s broad definition of territory; (ii) how they subject Israeli imports to disparate treatment, in violation of GATT, arts. I & IX; (iii) why potential alternative legal defences under GATT, art. XX cannot exempt the European Union from its duty to limit itself to origin-neutral regulations; and (iv) how they violate the Agreement on Technical Barriers to Trade (‘TBT’). By imposing a labelling requirement that is at the very least arbitrary, the EU and French bureaucrats and judges have deviated from the WTO/GATT system founders' core commitment to fair and unbiased treatment, and the reduction of barriers to trade. (JEL: F13, F53, K23, K41, Q13, Q17).