The European Court of Justice (ECJ) released its decision on the mandatory rules regarding labeling of products from Israeli settlements.
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This means that besides the artificial democratic legitimacy of European Union institutions and (countless!) administrative bodies, countries like my own – Portugal – are not allowed to freely take decisions on traditional sovereign matters, like foreign affairs.
Why? Because there is always an obstacle made in Brussels (maybe we should order the mandatory labeling of these decisions...). Think about the pressure that the Czech Republic authorities faced after announcing their determination to move their embassy in Israel to Jerusalem, following President Trump's decision on this matter: It was so intense and threatening that the Czech political entities ultimately stepped back and their embassy still remains in Tel Aviv up to this day.
I use to say that while the US Constitution declares "We, the People", the European Union preferred to declare initially "We, the nations" (which was not so bad) and now it is just " We, the bureaucrats". I do believe the European Union is reformable – we can make something better out of it, if we go back to the original spirit of its creation and, once and for all put a stop in this undemocratic giant neo-federalist administrative state.
Having said this, and no matter what the European Court of Justice ruled last week, the labeling of products from east Jerusalem, the West Bank and the Golan Heights represents a clear violation of European Union legislation.
The reasons why are four-fold.
First, the Lisbon Treaty – which is similar to a constitution – enshrines the principle of non-discrimination in Article 2 of the Treaty of the European Union and in the Article 10 of the Treaty on the Functioning of the European Union (these are two treaties which set the constitutional framework for the European Union activity). Therefore a special and exceptional duty of labeling requirements for Israeli products made in the areas beyond the Green Line is a form of discrimination against the corporations, businessmen and the workers who produce and sell goods from there.
This additional requirement of labeling, prohibiting the sole reference to "Made in Israel," represents extra costs for the producers of goods operating in the territories located in the Green Line, making the exportation of their products more difficult and, in some cases, even impossible.
Second, the European Union's bureaucrats are imposing political choices through European law and trade regulations. The special and costlier labeling of products from the West Bank and Golan Heights is nothing more than a political bias regarding Israel – and shows plainly how the boycott, divestment and sanctions movement dominates the EU politics.
Third, there is no rational basis for the violation of the principle of non-discrimination in this case. The defense of consumer rights was cited by the European Commission in its decision to label Israeli goods produced beyond the Green Line. European consumers, according to this understanding, should be able not to buy products that could violate their ethical standards and convictions.
However, this argument is totally unacceptable: There is no risk for consumers to buy products from Israel, whether they are from within or beyond the Green Line. The poison of this European Union regulation comes in its tail: If we concede that Europen Union should protect an ethical objection of consumers to buy products from the West Bank or the Golan Heights, then, logically speaking, the European Union legitimates a total boycott to Israeli products, no matter where they are made, because the consumers who are worried about the origin of the products from the West Bank are the very same ones who object to the existence of Israel altogether.
Fourth, the opinion issued by the advocate general has not a single legal argument. Gerald Hogan has even brought up the ludicrous argument that the West Bank situation is like the South-African apartheid and, therefore, the European Union law should give to consumers the same power of fighting the injustice. He showed in his opinion in the case Organisation juive européenne, Vignoble Psagot Ltd v Ministre de l'Economie et des Finances that he is more concerned with his future political career in Ireland than in serving the rule of law, liberty and decency.
In short, let me be crystal clear: The BDS won the battle but I ensure you that BDS will lose the war very badly. The fight is just beginning – European countries cannot endorse the discriminatory regulations and rulings of European institutions. Our national constitutions – which endorse the equal protection clause as the core foundation of our constitutional order – plainly forbid discriminatory treatments on origin.
