Hostname: page-component-74656f9884-2dmjx Total loading time: 0 Render date: 2026-11-10T13:46:06.789Z Has data issue: false hasContentIssue false
  • English
  • Français

The European Consumer’s Ethical Consumption Choices and the Observance of International Law: How Food Labelling Relates to the Conflict in the Middle East

Published online by Cambridge University Press:  16 June 2020

Josef WEINZIERL Open the ORCID record for Josef WEINZIERL [Opens in a new window]
Josef WEINZIERL*
Affiliation:
Doctoral Candidate, Faculty of Law, University of Oxford, Oxford, UK; email: josef.weinzierl@law.ox.ac.uk.
Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content. As you have access to this content, full HTML content is provided on this page. A PDF of this content is also available in through the ‘Save PDF’ action button.

Information

Type
Case Annotations
Information
European Journal of Risk Regulation , Volume 11 , Issue 3 , September 2020 , pp. 709 - 716
Copyright
© The Author(s), 2020. Published by Cambridge University Press

Case C-363/18, Organisation juive européenne and Vignoble Psagot, EU:C:2019:954

Reference for a preliminary ruling – Regulation (EU) No 1169/2011 – Provision of food information to consumers – Mandatory indication of the country of origin or place of provenance of a foodstuff where failure to indicate this might mislead the consumer – Requirement that foodstuffs originating in territories occupied by the State of Israel bear the indication of their territory of origin, accompanied, where those foodstuffs come from an Israeli settlement within that territory, by the indication of that provenance (official headnote).

Articles 9 and 26 of Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers

I. Introduction

Ethical and sustainable consumption – including awareness of the origins of food products – is becoming ever more popular in today’s Europe. Seemingly unrelated, in the Middle East we are witnessing one of the most complex contemporary territorial conflicts surrounding the State of Israel: the status of the Palestinian Territories and of the Israeli settlements within them. In Psagot, the Grand Chamber of the European Court of Justice (ECJ) brought the two issues together. It held that, under European Union (EU) consumer law, the information on the territorial origin on foodstuff labels ought to distinguish not only between the State of Israel and the Territories, but also between the Territories and Israeli settlements in these Territories.

The judgment is remarkable for how it connects legal-doctrinal, ethical and political issues and positions the European consumer right at the centre of them.

II. Facts

The case at hand concerns the labelling of food products – those mini-dossiers of ingredients and other important data put on foodstuff packages. Specifically, the French Conseil d’État, the referring court of the preliminary reference, had to adjudicate on the interpretation of the mandatory requirement to state the “country of origin or place of provenance” contained in Article 9(1)(i) and spelled out in Article 26(2)(a) Regulation 1169/2011. These provisions make the indication of the geographical origin of foodstuff mandatory, where failure to indicate might mislead the consumer as to its true country of origin or place of provenance.

This is precisely where geopolitics and international law kick in. For that element requires food labels (more precisely, labellers) to take a stance on territorial conflicts around the world, such as the legal status of the (in want of a better term) areas involved in the Middle East conflict.

In the present case, the French Minister for the Economy and Finance triggered the application by issuing a notice to economic operators, requiring them to take into account the specific situation in Israel and the Palestinian Territories (the West Bank, the Golan Heights and East Jerusalem (Territories)). In particular – drawing on the relevant Commission NoticeFootnote 1 – the products from those areas ought to reflect their territorial status under international law. As a consequence, the French notice distinguishes between (1) the State of Israel, (2) the Territories and (3) the Israeli settlements in the Territories. The applicants deemed this distinction incompatible with Regulation 1169/2011.Footnote 2

III. Judgment

The ECJ, following the opinion of AG Hogan, upheld the labelling obligation prescribed by the French notice. Consequently, EU consumer law requires foodstuff labels to distinguish between the State of Israel, the Territories and Israeli settlements in the Territories when indicating their geographical origin. Here is how the ECJ reached that conclusion.

1. Assigning the areas to Regulation 1169/2011: does EU consumer law allow for a distinction of origin?

The first nut to crack was the categorisation of these various areas under EU consumer law. The Court started by categorising the State of Israel and the Territories under the notions “country of origin or place of provenance” and used the Union Customs Code to do so. In detail, Article 60 Union Customs Code, to which Recital 33 of Regulation 1169/2011 refers, distinguishes between “country” and “territory”.Footnote 3 According to the Court, the uniform interpretation of Union law mandates to understand only states as countries for the purposes of Articles 9(1)(i), 26(2)(a) Regulation 1169/2011. Drawing on international humanitarian law, the ECJ concludes that the Territories cannot be considered part of the State of Israel. Instead – referring to its case law on the Western Sahara region – the Court qualifies them as territory, which it defines as “geographic spaces which, whilst being under the jurisdiction or the international responsibility of a State, nevertheless have a separate and distinct status from that State under international law”.Footnote 4

So far so good. But what about products from Israeli settlements in the Territories? Does EU consumer law allow for the disclosure of that specific origin? Yes, in the eyes of the ECJ. Despite the fragmented nature of the individual settlements, it held that they constitute a “place of provenance” under the terms of the Regulation.

To sum up, in the Court’s interpretation of Articles 9(1)(i), 26(2)(a) Regulation 1169/2011:

  • The State of Israel is a “state/country of origin”.

  • The Territories are a “territory (of origin)”, a category not explicitly mentioned in the Regulation but derived from Article 60 Union Customs Code and prior case law.

  • The Israeli settlements in the Territories constitute a “place of provenance”.Footnote 5

2. The risk of misleading consumers: does EU consumer law mandate a distinction of origin?

On that basis, the ECJ found that food labelling ought to differentiate between the State of Israel and the Territories. If not, that could “deceive consumers” because of their separate status under international law.Footnote 6

The Court’s subsequent holding that food labels on products from Israeli settlements need to indicate that origin in addition to the Territories is more controversial.Footnote 7 This is in part due to the political background, which is not under consideration here. Doctrinally, moreover, Article 26(2) Regulation 1169/2011 explicitly requires only one or the other origin alternatively (“Indication of the country of origin or place of provenance shall be mandatory”). And yet, the ECJ mandated the mentioning of both, the Territories as well as the Israeli settlements. In a rather bold interpretation of the general objective of Regulation 1169/2011 to enable informed consumer choice,Footnote 8 it considered that the settlements “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, as codified in the sixth paragraph of Article 49 of the Convention relative to the Protection of Civilian Persons in Time of War, signed in Geneva on 12 August 1949”.Footnote 9 Because of these violations of “fundamental rules of international law”, non-labelling would be liable to mislead consumers regarding the classification of geographical origin.Footnote 10

IV. Comment

How often does it happen that the US Secretary of State reacts to an ECJ judgment?Footnote 11 Or that annotations in the blogosphere read like political manifestos rather than doctrinal analyses?Footnote 12 Both, I believe, are fruits of the conflict in the Middle East, which informs the present case. I say this to stress that I focus exclusively on the doctrinal issues raised by the judgment (rather than the broader political context) related to EU consumer law and the perception of international law in EU law. If you excuse the pun with the journal title, it really is about risk regulation between EU consumer law and international law – namely, who ought to make the relevant judgments.

1. The ECJ’s incorporation of international legal assessments

Plainly, the most fascinating (legal!) aspect of the judgment is how EU law interacts with international humanitarian law, both in substance and in terms of inter-institutional cooperation. Who would have thought that food labelling in EU consumer law extends to the Middle East conflict? Nonetheless, the Regulation’s labelling requirement regarding the geographical origin applies to the entire globe, hence also to products originating from disputed territories. In a sense, the whole point of the labelling requirement is to take into account today’s global food production chains. In order to make an informed choice, consumers need to know where foodstuff comes from. As Psagot shows, that assessment may raise tricky questions of international law related to territorial sovereignty, border conflicts and much more.

Issues of international law in the Middle East conflict are, to put it lightly, not the daily business of the ECJ, however. Therefore, it is as welcome as it is unusual that the ECJ cites the International Court of Justice (ICJ) (three times) as well as the UN Security Council to corroborate its reasoning, because the only other court regularly cited in Luxembourg is the European Court of Human Rights (ECtHR).Footnote 13

I notice a distinct division of labour here. The ECJ refers and defers to the opinions of those international authorities, especially the ICJ, in all aspects relating to the interpretation of international law (such as the nature of the violations of international law brought about by the settlements). The work left for the ECJ is how to integrate these findings as normative facts into its assessment of EU consumer law. Of course, the unusual situation that there exists a clear ICJ ruling on the very question at hand greatly assists the Court’s task. This division of labour in interpreting international law mirrors the distinction in review cases, where the ECJ only reviews EU law transposing international law, rather than the international act itself.Footnote 14 Hence, the Court formally maintains its separation between international law and the EU legal order.

In substance and style, it remains to be seen whether the engagement with international authorities indicates a new trend, from a rather isolationist insistence on the autonomy of EU law towards more engagement and communication with other international courts and institutions apart from the ECtHR.

Reading the judgment, one notices the political open-heart surgery involving the legal qualification of the Territories. The issue is fundamental, and it is controversial. The EU itself has not recognised Palestinian statehood, though some Member States have. So, what does the ECJ say? In an admirable attempt at risk management, it goes to considerable lengths to avoid having to take a position on the underlying political issues. The only definitive conclusion the ECJ draws is that the Territories are not part of the State of Israel. It does not formulate what they are and, therefore, does not pronounce on the issue of statehood for Palestine.

You may think, how is this possible? Firstly, the ECJ seemed to rely on international humanitarian law as well as on the referring court when designating them as “territory” as an alternative to states in the first place.Footnote 15 More importantly, the Court goes beyond the dichotomy of Article 9(1)(i) Regulation 1169/2011 (“country of origin or place of provenance”) and complements it with the notion of “territory” from the Union Customs Code and its Western Sahara case law.Footnote 16

While that seems to suggest that Palestine is not a state, the Court does not say that. And that is not what EU consumer law should have a say on. The question of recognising a State of Palestine belongs to the political process, where it seems to have gotten new momentum recently.Footnote 17 The ECJ did well to eschew it, considering the backlash it got for the judgment as it stands. The argumentative leaps it took to do so underwrite the political dynamite in this case. Consequently, the ECJ’s reasoning does not mean EU law precludes the recognition of a State of Palestine. The important aspect for the ECJ was that a single product label for Israel, the Territories and the Israeli settlements potentially confuses consumers.

2. The European consumer and their ethical food consumption

These questions surrounding the territorial and legal status of the Territories and Israeli settlements within them are intriguing.Footnote 18 But why did the ECJ have to position itself in the debate?

As a starting point, let me remind you of the principle of conferral (Article 5(1) TEU), according to which the EU has no authority to act in any sector it wishes to regulate. Instead, its actions are limited to the competences and areas listed in the TFEU. Although that sounds much easier in theory than it is in practice, the formal argument remains true. For present purposes, territorial conflicts are matters of international law. Very recently, the ECJ itself decided that territorial disputes between EU Member States (such as the precise demarcation of borders in accordance with international law) fall outside the scope of EU law and declared the case inadmissible.Footnote 19 So the Court had to explain why the territorial elements of the Middle East conflict fall within the scope of EU law. And they do so because of EU consumer law.

The ECJ’s test is two-fold. First, it establishes whether a distinction is possible (ie whether the geographical areas in question can be assigned to different notions of Article 9(i)(ii) Regulation 1169/2011; supra, Section III.1). Second, any such distinction is only mandatory where failure to indicate it might mislead the consumer (Article 26(2)(a) Regulation 1169/2011; supra, Section III.2).

In the present case, the Court’s remarkable argument is that consumers should not be misled into buying products from areas that are inhabited under violation of rules of international humanitarian law. That, however, would be the case if no distinction were drawn between the Territories and the Israeli settlements, because the latter violate international humanitarian law, as the ICJ opined in its seminal 2004 opinion.Footnote 20 The ECJ does not discuss more specific criteria of norms, the violation of which would trigger the separate labelling duty, but the reference to “fundamental” rules and the ICJ opinion suggests that erga omnes obligations provide a good definitional starting point.Footnote 21

In the eyes of the ECJ, consumers may have ethical reasons related to complying with international law when making food choice decisions, so they need the relevant information.Footnote 22 The Court does not back up this assumption with empirical evidence, but such reasoning reflects the underlying paradigm of an interested, circumspect and alert consumer, who processes all of the available information.Footnote 23 That approach, which pervades Regulation 1169/2011 in its entirety, manifests a particularly widespread regulatory technique (instead of, or complementary to, product regulation, product governance, etc.), namely the idea of quantity. The more information, the better for the consumer. In that sense, the ECJ merely implements the regulatory strategy of the EU legislator.Footnote 24

The important point is that the Court’s decision – while containing a legal endorsement of the ICJ’s opinion about the illegality of the settlements – does not contain an ethical judgment in and of itself. Instead, it intends the consumer to be in a position to make that ethical judgment.Footnote 25 The precise doctrinal basis for this finding remains unclear, however. Article 3(1) Regulation 1169/2011 mandates that the information on food labels shall provide “a basis for final consumers to make informed choices and to make safe use of food, with particular regard to health, economic, environmental, social and ethical considerations” (emphasis added). On the one hand, the ECJ stresses the non-exhaustive nature of this list, holding that “the observance of international law may also be relevant”.Footnote 26 This seems to understand the observance of international law as a separate category. On the other hand, the ECJ links the legal situation of the settlements to a consumer’s “ethical assessment”,Footnote 27 thereby giving the impression that compliance with international law is a subset of the “ethical considerations” mentioned in Article 3(1) Regulation 1169/2011.Footnote 28

This doctrinal ambiguity is irrelevant for the core idea: EU consumer law explicitly connects the ethical concerns of consumers in relation to food choices to the importance of observing international law.Footnote 29 Crucially, the ECJ derives that importance from EU primary law, namely Article 3(5) TEU. As a consequence of the regulatory technique to provide sufficient information to the circumspect consumer, the Court puts the consumer’s choice and interests at the centre of the labelling obligation.

3. Conclusion: the European consumer, ethical food choices and international law

The judgment illustrates that the relationship between international law and EU law now plays a role in everyday cases reaching Luxembourg. In Psagot, the regulatory technique of ensuring informed consumer choice, combined with the global reach of the Regulation’s requirement to provide information on the geographical origins of foodstuffs, led to this surprising alliance: in the ECJ’s view, European consumers should have the necessary information to base their food choice also on violations of rules of international humanitarian law.

Leaving the political tensions and implications of Psagot aside (which the ECJ tried as well), the judgment – remarkably – gives European consumers agency in international law, for it enables, perhaps even encourages, European consumers to take into account violations of international law when making consumption decisions. For better or worse, the ECJ – in line with the broader discourse on promoting sustainable consumption as well as the regulatory technique of providing relevant information – imposes that specific burden of judgment on the individual consumer.

Footnotes

This Case Note is a longer and revised version of a blogpost, available as J Weinzierl, “An unlikely couple: Informed consumer choice in EU law and the Middle East conflict” (Völkerrechtsblog, 14 November 2019) <https://voelkerrechtsblog.org/an-unlikely-couple/> accessed 31 March 2020. I am grateful to the editors of Völkerrechtsblog for the permission to reuse the material. I specifically want to thank Benjamin Nussberger for reviewing and discussing earlier drafts.

References

1 Commission, Interpretative Notice on indication of origin of goods from the Territories occupied by Israel since June 1967 [2015] OJ C 375/4.

2 Given the nature of the proceedings (preliminary reference), criticism according to which the Court should have addressed questions of international law related to other territories is misguided. But see O Kanevskaia, “Misinterpreting Mislabelling: The Psagot Ruling” (2019) 4(3) European Papers 763, 776.

3 Art 60 para 1 Union Customs Code reads: “Goods wholly obtained in a single country or territory shall be regarded as having their origin in that country or territory”.

4 See Case C-363/18 Organisation juive européenne and Vignoble Psagot EU:C:2019:954, paras 27–35 (Psagot).

5 For definition, see ibid, para 41: “In view of these elements, the concept of ‘place of provenance’ 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”.

6 As AG Hogan notes, the Court has already recognised this distinction in Case C-386/08 Brita EU:C:2010:91. See Case C-363/18 Organisation juive européenne and Vignoble Psagot EU:C:2019:494, Opinion of AG Hogan, para 56.

7 Psagot, supra, note 4, paras 44–45.

8 ibid, para 53, referring to Art 3(1) and Recitals 3 and 4 of Regulation 1169/2011.

9 ibid, para 48.

10 ibid, paras 56–57.

11 Mike Pompeo (SecPompeo), Tweet (13 November 2019, 8.17 pm): “The CJEU’s decision yesterday serves only to encourage, facilitate, and promote [Boycott, Divestment and Sanctions (BDS)] against Israel. The United States unequivocally opposes any effort to engage in BDS. The path toward resolving the Israeli-Palestinian conflict is through direct negotiations”.

12 M Polzin, “Außenpolitik statt Verfassungsschutz” (Verfassungsblog, 19 November 2019) <https://verfassungsblog.de/aussenpolitik-statt-verbraucherschutz/#comments> accessed 31 March 2020: “Man kommt nicht umhin, hier an die Parole der Nationalsozialisten ‘Kauft nicht bei Juden’ zu denken”. But see the reaction of O Hardan, “Völkerrecht und Verbraucherschutz: Zur Kennzeichnungspflicht von Lebensmitteln aus israelischen Siedlungen” (Verfassungsblog, 21 November 2019) < https://verfassungsblog.de/voelkerrecht-und-verbraucherschutz/> accessed 31 March 2020.

13 J Kokott and C Sobotta, “Protection of Fundamental Rights in the European Union: On the Relationship between EU Fundamental Rights, the European Convention and National Standards of Protection” (2015) 34 Yearbook of European Law 60, 66.

14 Case C-402/05 P Kadi and Al Barakaat International Foundation v Council and Commission EU:C:2008:461, para 286.

15 Compare Psagot, supra, note 4, paras 30 and 33.

16 ibid, para 31. For more detail on how Psagot relates to the jurisprudence on Occupied Territories, see S Hummelbrunner, “Contextualisation of Psagot in Light of other CJEU Case Law on Occupied Territories” (2019) 4(3) European Papers 779.

17 According to media reports, Luxembourg’s foreign minister Jean Asselborn wants the question back on the agenda of the Foreign Affairs Council. Note that the question of statehood is one of international law. Only the element of recognition seems overtly political.

18 AG Hogan, supra, note 6, section II.

19 Case C-457/18 Slovenia v Croatia EU:C:2020:65. See also Art 77(4) TFEU.

20 Psagot, supra, note 4, para 48, and the reference to International Court of Justice, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ICJ Reports 2004/136, para 120. Undoubtedly due to the political salience of the question, the Israeli Supreme Court has so far avoided ruling on the question. See D Kretzmer, “Settlements in the Supreme Court of Israel” (2017) 111 American Journal of International Law Unbound 41.

21 Psagot, supra, note 4, para 56.

22 See also AG Hogan, supra, note 6, para 51.

23 In more detail, see S Weatherill, EU Consumer Law and Policy (Cheltenham, 2nd edn, Edward Elgar 2013) ch 4.

24 But cf. the criticism at Kanevskaia, supra, note 2, 772.

25 Similarly, C Ryngaert, “Indications of Settlement Provenance and the Duty of Non-Recognition under International Law” (2019) 4(3) European Papers 791, 795.

26 Psagot, supra, note 4, para 54 (emphasis added).

27 ibid, para 56.

28 See also AG Hogan, supra, note 6, paras 50 et sqq.

29 For Kanevskaia, supra, note 2, 774–75, this overstretches the notion “ethical”.