The lawyer who represents Psagot Winery believes a recent decision by the Court of Justice of the European Union will likely be seen as legal ammunition by opponents of the West Bank winery in Canada, and may also prompt BDS advocates to ramp up pressure for a full-scale boycott of Israeli products.
On Nov. 12, the EU court released its decision in a case involving the labeling of Psagot wines in Europe. It ruled that not only should the wines produced by the West Bank winery indicate that they were made in territory that’s occupied by Israel, but also that they must indicate that “a foodstuff comes from an ‘Israeli settlement’ located in one of the ‘territories occupied by the State of Israel.’ ”
In other words, according to the court ruling, Psagot wines and similar products not only need to be labelled as a product of the West Bank, but must state that they were made in an Israeli settlement within the territory.
The court went on to assert that Israeli settlements are a violation of international law and “give concrete expression to a policy of population transfer conducted by that state outside its territory.” The court said a failure to specify that the wine originated in a settlement might mislead consumers.
David Elmaleh, whose firm RE-LAW now represents Psagot in a labeling matter before Canadian courts, said the decision of the European court should not be adopted in Canada, as the decision would violate Canadian laws against ethnic and religious discrimination.
“The decision of the EU is in my view a very unfortunate decision that effectively mandates discrimination,” Elmaleh said. “It calls for treating Jewish and Muslim businesses differently,” and goes beyond simply requiring labelling of the wines as indicating they were produced in the West Bank.
“In my view, the equivalent would be for Canada to mandate that products from Quebec are produced by English or French producers,” or that products from Iraq were made by Sunni or Shiite producers, he continued.
“That’s not the Canadian way. There’s no ethnic or religious element for labeling products in Canada.”
The EU case parallels a similar legal dispute in Canada. In 2017, Winnipeg professor and pro-Palestinian activist David Kattenburg complained to the Liquor Control Board of Ontario that two wines made in the West Bank and sold at the provincial liquor retailer were “falsely” labeled as a “Product of Israel,” because international law and Canadian policy do not recognize the West Bank as part of the Jewish state.
Kattenburg’s complaint named the Psagot Winery and the Shiloh Winery, which is located in Ma’ale Levona, a West Bank settlement southeast of Ariel. Both wines are kosher.
The parties to the case were Kattenburg and the attorney general of Canada.
Psagot was not represented in the case, which began with an application by Kattenburg to the Canadian Food Inspection Agency and then to its complaints and appeals office (CAO). The CAO approved the labelling of the wines as a product of Israel.
On judicial review, the Federal Court overturned that ruling and sent the matter back to the CFIA for a resolution.
That process is currently on hold, pending an appeal to the Federal Court of Appeal, Elmaleh said.
In the aftermath of the EU court decision, the Israeli Embassy in Ottawa released a statement quoting Israeli Foreign Minister Israel Katz.
“Israel vehemently rejects the decision of the (European Court of Justice), a decision heavily influenced by politicking and one that promotes double standards and discrimination. There exist over 200 territorial disputes the world over, which the court has neglected to acknowledge in its decision.
“This decision inhibits the efforts to attain peace and contradicts the positions of the EU. The decision also strengthens the Palestinian Authority in its dedication to refuse direct negotiations with Israel and grants support to those looking to boycott and deny the right of Israel to exist,” Katz stated.
“The decision is morally and ethically wrong. It sends a message contradicting longstanding European policy – where the Israeli-Palestinian conflict will only be resolved via direct negotiations, not judicial rulings.”
Michael Mostyn, the CEO of B’nai Brith Canada, issued a statement saying that, “This discriminatory EU decision, which we believe is fundamentally flawed, creates a real mess for its future labeling laws. There is no question that this ruling will create uncertainty regarding European trade practices.”
He noted, however, that “there are many differences between” the EU and Canadian cases.
“The Canadian decision is currently being appealed by the attorney general. The League for Human Rights for B’nai Brith Canada has already indicated that it will seek to intervene in this appeal, just as it intervened in the original application, in support of Israel’s ability to fairly and accurately label wines produced in areas under its control as a product of Israel,” Mostyn stated.
Shimon Fogel, the president and CEO of the Centre for Israel and Jewish Affairs (CIJA), said that, “Our initial assessment is the European court’s decision is flawed because it in effect falls prey to the concept of ‘selective prosecution,’ namely that it singles out products from Judea and Samaria for special treatment, while ignoring the 199 other cases of products produced in territories that are under dispute.”
He also noted that “CIJA is currently applying for intervenor status in the case that is currently before the Canadian courts.”
Fogel sees both cases as products of the BDS movement against Israel.
“In many respects, BDS is a failure and has had little if any impact on Israel’s economy, which is growing because of many global partnerships that are flourishing. The world continues to benefit from doing business with Israel in sectors like technology and water management and conservation,” he said.
“Despite the failure to impact Israel’s economy, BDS activists continue to propagate myths and falsehoods by cloaking their anti-Israel activism in the language of human rights. This is a cynical attempt to drive young Jews away from Israel. Though not all supporters of BDS are anti-Semitic, the movement itself has been forever tainted by anti-Semitism, which is truly unfortunate because there are many things those who care about peace can do that don’t involve lending energy to a divisive, hateful campaign.”
Elmaleh said he expects the EU decision will be cited as precedent when the Federal Court of Appeal hears the Psagot case, but hopes “the government will strongly resist.”
Psagot has not been represented in any of the Canadian cases to date and the winery is now seeking the court’s permission to be added as a party to the case, or failing that, to be included as an intervenor, Elmaleh said.