EU Court ruling on EU-Morocco trade agreement sheds light on Israeli claim of ‘double standard’ regarding labelling of settlement products  

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By Yossi Lempkowicz

Israel has responded to last month’s EU decision to issue guidelines for labelling  products from the West Bank and the Golan Heights, considered as “occupied territories” by the EU , by  saying the move was “politically motivated” as it discriminates against the products of one country, Israel, while there are some 200 territorial disputes around the world, such as in Western Sahara (occupied by Morocco) and northern Cyprus (occupied by Turkey), for which the EU didn’t issue such labels. Israel refuted EU’s claim that the labelling issue is a “purely technical matter” as “cynical and baseless.”

Last week’s ruling by the European Union General Court, the EU’s second highest court, to strike down a 2012 farm trade agreement between the EU and Morocco because of  Western Sahara, a disputed territory which Morocco has occupied and annexed since 1975 when it was handed by Spain as it ended its colony there, strengthens the Israeli position on  “double standards” applied by the EU in the labelling issue .

The EU court ruling came on a case brought by the Algerian-backed Polisario Front, a group fighting for independence in Western Sahara. The Sahrawi Arab Democratic Republic (SADR), which holds a government-in-exile in Algeria, claims rights to rule the territory.

The court cited Union Nations resolutions that classify Western Sahara as occupied and faulted the EU for pursuing an accord with Morocco without making distinctions about products manufactured in the Western Sahara. These products are currently labelled “Made in Morocco”.

The United Nations General Assembly in 1979 declared Morocco an “occupying force” in the former Spanish colony and affirmed the “inalienable right of the people of Western Sahara to independence.”

In 2005, the EU called for a resolution to the conflict that would ensure the “self-determination of the people of Western Sahara.”

Despite formal objections in recent years by Holland and Sweden to labelling Western Sahara produce as Moroccan, the EU has issued no labelling guidelines comparable to those it released on November 11 for Israel. (the “Interpretative Notice” issued by the European Commission providing guidelines for the member states suggests the use of labels such as “Product from the Golan Heights (Israeli settlement)” or “Product from the West Bank (Israeli settlement).”

Instead of acting on the EU court decision by calling to label Moroccan products from the occupied region as “Products from Western Sahara”,  EU foreign policy chief Federica Mogherini announced Monday at a meeting of EU Foreign Ministers the EU’s decision to fight the court ruling and to appeal it while in the meantime ensuring that the EU-Morocco trade pact stays in effect “because of the importance the EU  attaches to its relations with Morocco.”

The 2012 EU-Morocco trade deal lowered tariffs on dozens of Moroccan agricultural exports to the EU in exchange for scrapping of tariffs on some European exprts to Morocco. It also gave the EU the right to fish off the waters of the Western Sahara.

Moroccan Foreign Minister Salaheddine Mezouar, who was in Brussels on Monday for the annual meeting of the EU-Morocco Association Council, showed his displeasure at the court’s ruling, telling reporters that “this is a dangerous precedent. It is not useful to a relationship with the EU which has been built up step by step with determination for more than 20 years.”

Asked about the EU’s position on this case, an EU spokesperson told us that this is “not the same situation.”

According to Professor Eugene Kontorovich, a renowned legal expert at the North-western Pritzker School of Law and head of the International Law Department at the Kohelet Policy Forum, “the EU is trying to justify its double-standards regarding Western Sahara.”

“The EU’s defence of their discriminatory labelling rules – which for example they do not require for Moroccan-occupied Western Sahara – has been based on a remarkable claim that Western Sahara is not actually occupied, but rather a ‘special case,” he said.

“The EU General Court in its ruling last Thursday rejected this view, saying Western Sahara is occupied territory,” argues Kontorovich.

Applying the new ruling to the EU decision to label Israeli products manufactured  in Judea, Samaria (the West Bank), eastern Jerusalem and the Golan Heights, the professor said the case has exposed the fallacy of the EU’s claims.

“Given that the EU allows products in the Western Sahara to be labelled ‘made in Morocco’ (and this case does not change that), it totally undermines their labelling arguments about Israel,” he said. “At this point, it would be folly for Israel not to challenge the labelling in legal fora like the WTO (World Treaty Organization). The Europeans’ arguments have been stripped from them by their own court.”

Law professor Avi Bell at Bar-Ilan University and San Diego Law School, pointed out that “the EU has never unilaterally adopted a regulation requiring geographic labelling contrary to the exporting country’s certificate of origin, except in the case of Israel.”  The EU new guidelines, he argued, amount to “unlawful trade barriers” “They are manifestly discriminatory, as they apply only to Israel.”