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Beyond Food Safety – EU Food Information Standards as a Facilitator of Political Consumerism and International Law Enforcement Mechanism

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Abstract

In Case C-363/18 Organisation juive européenne, Vignoble Psagot Ltd v Ministre de l’Économie et des Finances (“Occupied Territories case”), the Court of Justice of the European Union (CJEU or Court) was tasked with deciding what information on its country of origin or place of provenance is mandatory for business according to existing European legislation. This casenote summarizes the interpretative decisions taken by the Advocate General Hogan (Advocate General or AG) and the Court in their opinion and judgment, respectively. It then considers the broader implications of this case from several perspectives: first, from the perspective of political consumerism and its (potential) role in EU internal market law; second, from the perspective of the enforcement of international law; and third, from the perspective of the coherence of EU food and consumer law including its behavioural dimension.
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Wageningen Working Papers
in Law
LAW AND GOVERNANCE GROUP 2020/01
Beyond Food Safety
EU Food Information Standards as a Facilitator of Political
Consumerism and International Law Enforcement
Mechanism
Kai P. Purnhagen
Josephine van Zeben
Christiane Ahlborn
Peter Oosterveer
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WAGENINGEN UNIVERSITY
LAW GROUP
Beyond Food Safety
EU Food Information Standards as a Facilitator of Political
Consumerism and International Law Enforcement Mechanism
KAI P. PURNHAGEN
JOSEPHINE VAN ZEBEN
CHRISTIANE AHLBORN
PETER OOSTERVEER
Wageningen Working Paper Law 2020/01
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© 2020 Kai P. Purnhagen, Josephine van Zeben, Christiane
Ahlborn, Peter Oosterveer
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Beyond Food Safety
EU Food Information Standards as a Facilitator of Political Consumerism
and International Law Enforcement Mechanism
Kai P. Purnhagen
Josephine van Zeben
Christiane Ahlborn
Peter Oosterveer
Abstract
In Case C-363/18 Organisation juive européenne, Vignoble Psagot Ltd v Ministre
de l’Économie et des Finances (“Occupied Territories case”), the Court of Justice
of the European Union (CJEU or Court) was tasked with deciding what information
on its country of origin or place of provenance is mandatory for business according
to existing European legislation. This casenote summarizes the interpretative
decisions taken by the Advocate General Hogan (Advocate General or AG) and the
Court in their opinion and judgment, respectively. It then considers the broader
implications of this case from several perspectives: first, from the perspective of
political consumerism and its (potential) role in EU internal market law; second,
from the perspective of the enforcement of international law; and third, from the
perspective of the coherence of EU food and consumer law including its behavioural
dimension.
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Keywords: Free movement of goods, Food Law, Food information law, food
labelling law, international law, consumer interests, country of origin, place of
provenance
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1 Introduction
EU internal market policy and EU internal market law increasingly recognise that
consumer choices are complex, multi-faceted, and context-dependent.
1
This
particularly accounts for EU food law and policy.
2
The kind of information and the
way in which information is presented hence influences consumer purchase and
their eating patterns. However, research has shown that not all information and
1
European Commission, Guidance on the implementation of Directive 2005/29/EC on
Unfair Commercial Practices, SWD (2016) 163 final, 44, 45; A.-L. Sibony and G.
Helleringer, “European consumer protection through the behavorial lens” (2017) Columbia
J. of European L. 607; G. Howells “EU Consumer Protection Through Information-The
Lessons Behavioural Economics Offers” in P.-C. Müller-Graff, S. Schmahl, V. Skouris (eds)
Europäisches Recht zwischen Bewährung und Wandel, Festschrift für Dieter H. Scheuing
(Baden-Baden, Nomos, 2011) p. 546; H. Schebesta and K. Purnhagen, “The Behaviour of
the Average Consumer: A Little Less Normativity and a Little More Reality in the Court’s
Case Law? Reflections on Teekanne (2016) E. L. Rev. 589; A.-L. Sibony and G. Helleringer,
“EU Consumer Protection and Behavioural Sciences: Revolution or Reform?” in A.
Alemanno and A.-L. Sibony (eds), Nudge and the Law (Oxford, Hart, 2015) p. 209; J.
Trzaskowki, “Behavioural Economics, Neuroscience, and the Unfair Commercial Practices
Directive” (2011) J. of Consumer Policy 377; K.P. Purnhagen, E. van Herpen and E. van
Kleef, “The Potential Use of Visual Packaging Elements as Nudges”, in K. Mathis (ed.),
Nudging - Possibilities, Limitations and Applications in European Law and Economics (New
York et. al., Springer 2016) p. 197 (Packaging as Nudges).
2
K. Purnhagen and H. Schebesta, “Food Labelling for Consumers - EU Law, Regulation and
Policy Options”, Policy Department for Citizens’ Rights and Constitutional Affairs, PE
608.871, available at
http://www.europarl.europa.eu/RegData/etudes/STUD/2019/608871/IPOL_STU(2019)60
8871_EN.pdf (Food Labelling for Consumers).
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4
not all presentation thereof have similar potent effects.
3
Many companies are
actively using this increasingly critical and informed consumer decision-making to
their benefit and are branding their products accordingly. As EU law becomes more
attuned to the interplay of information, its presentation and its impact on choice,
4
the types of information EU food law requires have changed.
The EU’s longstanding ambition for its internal market is the creation of a high
level of consumer protection,
5
and it has adopted ever more detailed information
requirements for products and their labelling.
6
This is especially true with respect
to food products, where the protection of “consumers’ “interest” has been central
to information requirements since 2002.
7
Regulation No 1169/2011
8
(“FIR”) has
3
See for a summary E van Herpen and H van Trip, “EU Health Claims: A Consumer
Perspective”, in H. Bremmers and K. Purnhagen (eds), Regulating and Managing Food
Safety in the EU (Cham, Springer Nature, 2018), p. 94 (Health Claims).
4
See Purnhagen, van Herpen and van Kleef, Packaging as Nudges, p. 197.
5
See inter alia art. 114(3) TFEU and art. 38 Charter of Fundamental Rights of the European
Union.
6
See W. Huizing Edinger, “Promoting Educated Consumer Choices. Has EU Food
Information Legislation Finally Matured?” (2016) 39 J. of Consumer Policy, 9-22.
7
See art. 8 Regulation (EC) No 178/2002 of the European Parliament and of the Council
of 28 January 2002 laying down the general principles and requirements of food law,
establishing the European Food Safety Authority and laying down procedures in matters of
food safety, OJ L 31, 1.2.2002, p. 1-24 (General Food Law or GFL).
8
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, amending Regulations
(EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council,
and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC,
35
provided normative requirements how such consumers’ interest can be fleshed out
further, namely: “consumer choices can be influenced by, inter alia, health,
economic, environmental, social and ethical considerations.”
9
In Case C-363/18 Organisation juive européenne, Vignoble Psagot Ltd v Ministre
de l’Économie et des Finances (“Occupied Territories case”),
10
the Court of Justice
of the European Union (CJEU or Court) was tasked with deciding what information
on its country of origin or place of provenance is mandatory for business according
to existing European legislation. This casenote summarizes the interpretative
decisions taken by the Advocate General Hogan (Advocate General or AG) and the
Court in their opinion and judgment, respectively. It then considers the broader
implications of this case from several perspectives: first, from the perspective of
political consumerism and its (potential) role in EU internal market law; second,
from the perspective of the enforcement of international law; and third, from the
perspective of the coherence of EU food and consumer law including its behavioural
dimension.
2 Factual and Legal Background
Under EU law, food business operators (FBOs) must indicate the country of origin
or place of provenance of foodstuffs, if a failure to do so might mislead the
Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and
of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission
Regulation (EC) No 608/2004 Text with EEA relevance, OJ L 304, 22.11.2011, p. 18-63.
9
Recital 3 and Art. 3 (1) FIR.
10
Organisation juive européenne, Vignoble Psagot Ltd v Ministre de l’Économie et des
Finances (C-363/18) ECLI:EU:C:2019:954.
35
6
consumer as to the true country of origin or place of provenance of a food.
11
The
correct interpretation of this duty would require clear guidance on what information
may be considered misleading to consumers but also as to the meaning of “country
of origin” and “place of provenance”. Some of this guidance is provided by the FIR
itself,
12
some has been provided by specific legislation which de jure determines
mandatory country of origin labelling,
13
case law and, in a legally non-binding way,
by Commission notices.
In 2015, the Commission issued such a notice “on indication of origin of goods
from the territories by Israel since June 1967”.
14
In this notice the Commission
indicated that it was responding to “a demand for clarity from consumers,
economic operators and national authorities […] on origin information of products
from Israeli-occupied territories.”
15
Following the short historical background
11
Art. 26(2)(a) read in conjunction with art. 9(1)(1) FIR. In addition, several additional
provisions exist which provide indication of country of origin requirements for specific types
of food products. For an overview, see fn 6 of Commission, “Interpretative Notice on
indication of origin of goods from the territories occupied by Israel since June 1967”,
C(2015) 7834 final (Interpretative Notice).
12
See inter alia J. W. Rieke, “Country of Origin Labelling Trend zur Renationalisierung
des Lebensmittelrechts?”, (2019) Zeitschrift für das gesamte Lebensmittelrecht, 625.
13
See for an overview fn. 6 of Interpretative Notice on indication of origin of goods from
the territories occupied by Israel since June 1967, 2015/C 375/05, OJ C 375 (Interpretative
Notice) .
14
Interpretative Notice.
15
Interpretative Notice, Para 2.
35
provided by AG Hogan
16
, Israel has occupied certain territories, which had been
under the partial or entire control of several other states Egypt, Syria and Jordan
since June 1967.
17
Under international law, as confirmed by UN Security Council
and UN General Assembly Resolutions,
18
as well as an opinion from the
International Court of Justice (ICJ),
19
Israel is considered to be an “Occupying
Power” in these territories, which themselves have been given the status of
16
Opinion AG Hogan, Organisation juive européenne, Vignoble Psagot Ltd v Ministre de
l’Économie et des Finances (C-363/18) ECLI:EU:C:2019:494, para 4 (hereinafter the
Opinion AG Hogan).
17
See more elaborate A. Roberts, “Prolonged Military Occupation: The Israeli-Occupied
Territories Since 1967” (1990) 84 The American J. of International L., 85-86.
18
General Assembly, Israeli settlements in the Occupied Palestinian Territory, including
East Jerusalem, and the occupied Syrian Golan, A/RES/66/78, 12 January 2012, available
at
https://unispal.un.org/DPA/DPR/UNISPAL.NSF/47D4E277B48D9D3685256DDC00612265
/C2A00B6E6E1C02CF8525798E00578F75.
19
ICJ, Advisory Opinion on Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory [2004] ICJ Rep 136, (hereinafter: Wall advisory opinion) see
for a comment on the case A. Orakhelashvili, “Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory: Opinion and Reaction”, (2006) 11 J. of Conflict
and Security L., 119. For wider context J. Dugard and J. Reynolds, “Apartheid, International
Law, and the Occupied Palestinian Territory”, (2013) 24 European J. of International L.
(EJIL), 867.
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8
“Occupied Territories”.
20
The Israel Supreme Court has also referred to the
relationship between the West Bank and Israel as “belligerent occupation.”
21
There are some dissenting voices. Commentators associated with the Israeli
government have proposed to refer to the territories as “disputed territories” to
avoid the politically loaded term “occupation.”
22
The United States government has
similarly preferred an alternative status, referring to the settlements continuously
as an “obstacle to peace”, but not as “illegal” under international law.
23
In 2016,
the Obama administration decided against vetoing a UN Security Council resolution
aiming to end Israeli settlements,
24
bringing the US position more in line with the
predominant view that these settlements were in fact illegal under international
law.
25
However, the Trump administration, as a response of the judgment we are
20
United Nations Security Council Resolution 242 (S/RES/242).
21
Beit Sourik Village Council v. The Government of Israel et. al., HCJ 2056/04, Supreme
Court, 20 June 2004, see for comment M. Pertile, “Beit Sourik Village Council v. The
Government of Israel: A Matter of Principle (and Neglected Rules)” (2005) 65 Zeitschrift
für ausländisches öffentliches Recht und Völkerrecht, 678.
22
D. Gold, “From “Occupied Territories” to “Disputed Territories”, Jerusalem
Letter/Viewpoints, No. 470, 3 Shvat 5762 / 16 January 2002, available at
http://www.jcpa.org/jl/vp470.htm.
23
N. Laham, Crossing the Rubicon: Ronald Reagan and U.S. policy in the Middle East
(Farnham, Ashgate Publishing, 2004), p. 61.
24
United Nations Security Council Resolution 2334 (S/RES/2334).
25
See E. Cortellessa, “Choosing not to veto, Obama lets anti-settlement resolution pass at
UN Security Council”, The Times of Israel, 23 December 2016, 9:21 pm, available at
https://www.timesofisrael.com/choosing-not-to-veto-obama-lets-anti-settlement-
resolution-pass-at-un-security-council/.
35
annotating, has returned to past US policy and has declared it does not consider
the settlements illegal, explicitly reversing the Obama administration’s approach
towards Israeli settlements.
26
The European Commission in its notice and the CJEU in its judgment consider the
international legal consensus to be leading as to the legal status of the Occupied
Territories.
27
In its Notice, the Commission states that “the Golan Heights and the
West Bank (including East Jerusalem) are not part of the Israeli territory according
to international law.”
28
As a result, “the indication “product from Israel” is
considered to be incorrect and misleading in the sense of [the FIR].”
29
The
Commission then explicates which kind of indication would be appropriate under
EU law, which includes a clear reference to, inter alia, “Palestinian product” and/or
“product from Palestine”.
30
In line with the Commission’s notice, the French Minister for the Economy and
Finance published a notice to FBOs.
31
The notice repeated that under international
law the Golan Heights and the West Bank, including East Jerusalem, are not part
26
J. Hansler, N. Gaouette and J. Diamond, “Pompeo announces reversal of longstanding
US policy on Israeli settlements”, CNN Politics, Updated 2232 GMT (0632 HKT) November
18, 2019, available at https://edition.cnn.com/2019/11/18/politics/pompeo-west-bank-
settlements-announcement/index.html.
27
See e.g. Opinion AG Hogan, para 8.
28
Interpretative Notice, Para 2.
29
Interpretative Notice.
30
Interpretative Notice, para 22.
31
Interpretative Notice, para 23.
35
10
of Israel. In order to not mislead the consumer, “(f)oodstuffs from the territories
occupied by Israel must (...) be labelled to reflect this origin”
32
and, when relevant,
may require products to include the term “Israeli settlement” or equivalent
terms.
33
The Organisation juive européenne (OJE) and Vignoble Psagot a company
producing and trading wine from vineyards located in the territories under concern
brought an action before the Conseil d’État (the French Council of State) seeking
the annulment of the Ministerial Notice on the basis that it is ultra vires in light of
the FIR.
34
According to the referring court, this assessment depended on the
complex questions of interpretation of provisions of the FIR,
35
and decided to refer
the following questions to the Court of Justice for a preliminary ruling:
“(1) Does EU law and in particular Regulation No 1169/2011, where indication of
the origin of a product falling within the scope of that regulation is mandatory,
require, for a product from a territory occupied by the State of Israel since 1967,
an indication of that territory and an indication that the product comes from an
Israeli settlement if that is the case?
(2) If not, do the provisions of the regulation, in particular those in Chapter VI
thereof, allow a Member State to require those indications?”
36
32
See Opinion AG Hogan, who in para 24 cites and translates the French notice accordingly.
33
Opinion AG Hogan, para 24.
34
Occupied Territories case, para 26-27.
35
Occupied Territories case, para 27.
36
Occupied Territories case, para 28.
35
3 Opinion of the Advocate General
After providing a short historical overview on the status of the Occupied Territories,
AG Hogan starts his Opinion by elaborating on the different meaning of the terms
‘country of origin’ and ‘place of provenance’ in the FIR; he finds that ‘country of
origin’ refers to the names of the countries and their territorial sea, and ‘place of
provenance’ describes a geographical place “which is smaller than a country and
larger than the precise location of a building”.
37
In determining if the absence of
the indication of either on a foodstuff originating from an Occupied Territory
misleads the “average consumer”,
38
the AG first establishes which kind of
information an average consumer can legally expect from the labelling of
foodstuffs. According to art. 3(1) FIR, required information is that information
needed to ensure a high level of protection of consumers’ health and interests by
enabling informed consumers’ choices with particular regard to health, economic,
environmental, social and ethical considerations.
39
The interpretation of the term ‘ethical considerations’ proved crucial to answering
the question as to what information consumers may expect. OJE argued that
‘ethical considerations’ referred only to ethical considerations regarding food
consumption.
40
This reading of ‘ethical considerations’ would limit legal information
requirements to those that allow consumers to exercise food consumption in
accordance with, for example, their religious or ethical consumption beliefs
(vegetarianism or veganism) or in the manner in which animals were treated or
37
Opinion AG Hogan, para 33 and para 35, respectively.
38
A term also defined by the Court, see Opinion AG Hogan, para 47.
39
Opinion AG Hogan, para 46.
40
Opinion AG Hogan, para 50.
35
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slaughtered.
41
As such, ‘ethical considerations’ would not necessitate information
on the country of origin or place of provenance in case of violation of international
law. The AG did not follow this line of argument. Rather, he found ‘ethical
considerations’ to reference broader concerns which may inform the thinking of
certain consumers prior to purchase.
42
The relevant passage in his Opinion reads
as follows:
“Just as many European consumers objected to the purchase of South African
goods in the pre-1994 apartheid era, present day consumers may object on similar
grounds to the purchase of goods from a particular country because, for example,
it is not a democracy or because it pursues particular political or social policies
which that consumer happens to find objectionable or even repugnant. In the
context of the Israeli policies vis-à-vis the Occupied Territories and the
settlements, there may be some consumers who object to the purchase of products
emanating from the territories, precisely because of the fact that the occupation
and the settlements clearly amount to a violation of international law.
43
AG Hogan finds that Israeli’s occupation is a manifest and established breach of
international law,
44
and that EU jurisprudence in line with EU obligations to
respect international law
45
establishes an obligation to clearly distinguish
between products originating in the territory of Israel and those originating in the
41
Opinion AG Hogan, para 50.
42
Opinion AG Hogan, para 51.
43
Opinion AG Hogan, para 51.
44
Opinion AG Hogan, para 53-58.
45
Opinion AG Hogan, para 58.
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West Bank.
46
Hence, the omission of such information may mislead the average
consumer as to the true country of origin or place of provenance of the food.
47
Accordingly, the AG advises the Court that the correct interpretation of art. 9(1)(i)
and 26(2)(1) of FIR would be that for a product originating in an Occupied
Territory, the indication of that information on foodstuffs is mandatory.
48
The AG
then goes on to discuss the extent of this obligation,
49
and finds that the only way
to provide “correct, objective, accurate, clear and easily understandable”
information for the consumer is to include the terms “Israeli settlements” to the
geographical identification of the products.
50
The AG also considers whether, in the event that the Court does not follow his
analysis on the interpretation of arts. 9(1)(i) and 26(2) of FIR, Member States are
allowed to adopt national measures requiring the indication of the territory of a
food product originating in the Occupied Territories.
51
Here, the relevant provision
of FIR is art. 39(2) FIR, which provides that this is only authorized if there is “a
proven link between certain qualities of the food and its origin or provenance”.
52
As such a link between qualities and the occupied territories cannot be established
in this case, the AG advised the Court to rule that Member States cannot provide
46
See Brita GmbH v Hauptzollamt Hamburg-Hafen (C-386/08) EU:C:2010:91.
47
Opinion AG Hogan, para 59.
48
Opinion AG Hogan, para 60.
49
Opinion AG Hogan, para 69-78.
50
Opinion AG Hogan, para 77.
51
Opinion AG Hogan, para 80-87.
52
Opinion AG Hogan, para 84.
35
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national measures in this case, i.e. that the French notice was ultra vires based on
the provisions of FIR.
53
4 Judgment of the Court of Justice of the European Union
The Court answers both referred questions in turn. It answers the first question
as to whether FIR provisions on mandatory origin requirements apply to products
from the Occupied Territories in the affirmative.
54
As a result, it sees no need to
answer the second question as to the use of Chapter VI of the FIR as a legal
basis for the French notice that requires indications of origin.
55
In answering the first question, the Court starts its analysis through the
interpretation of art. 9(1)(i) read in conjunction with art. 26(2)(a) FIR, in line with
the Opinion of the AG. The combined reading of these articles creates the
obligation to indicate the country of origin and/or place of provenance of a food, if
failure to do so may mislead consumers as to the true origin of the food.
56
Moreover, any such indication may not be deceptive.
57
The Court’s answer to the
first question therefore in large part depends on the interpretation of “country of
origin” and “place of provenance”, and whether the omission of any related
information can lead to the deception of the consumer.
53
Opinion AG Hogan, para 87.
54
Occupied Territories case, para 58.
55
Occupied Territories case, para 59, see also Opinion AG Hogan, para 80-87.
56
Occupied Territories case, para 24.
57
Occupied Territories case, para 25.
35
With regard to the interpretation of “country of origin”, art. 2(3) FIR refers to the
definition in the Community Customs Code (CCC). Accordingly, the Court
references art. 60 of the CCC’s successor, the Union Customs Code (UCC), as the
interpretative basis of the term “country of origin”.
58
The UCC stipulates that
“goods which have either been wholly obtained in a particular ‘country’ or ‘territory’
or have undergone their last substantial processing or working in that country or
territory are to be regarded as having their origin in that country or territory.”
59
The Court observes that EU law treats the term “country” and “State”
synonymously, and that a “State” is understood to be “a sovereign entity
exercising, within its geographical boundaries, the full range of powers recognised
by international law”.
60
Conversely, the UCC views “territories” as distinct from
countries and states; specifically, based on the Court’s jurisprudence,
61
territories
include “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.”
62
As both countries and territories are referenced in the UCC, the Court reads the
obligation to indicate the country of origin of a foodstuff in art. 26(2) FIR as
58
Occupied Territories case, para 26.
59
Occupied Territories case, para 27.
60
Occupied Territories case, para 29, referencing Council v Front Polisario (C-104/16 P),
EU:C:2016:973, para 95.
61
The Court refers to judgments Council v Front Polisario (C104/16 P) EU:C:2016:973,
paras 92 and 95; Western Sahara Campaign UK (C266/16), EU:C:2018:118, paras 62 to
64.
62
Occupied Territories case, para 31.
35
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extending to foodstuffs originating in “territories”.
63
Under the rules of
international humanitarian law, the Occupied Territories are subject to a limited
jurisdiction of the State of Israel, while still having its own international status
distinct from that of that State, which means they are “territories” within the
context of the FIR.
64
This leads the Court to conclude that an indication of the State
of Israel as the “country of origin” of a foodstuff from those territories is liable to
deceive consumers.
65
Moreover, consumers could be misled as to “the fact that
the State of Israel is present in those territories as an occupying power and not as
a sovereign entity”.
66
These considerations indicate that the indication of the
territory of origin of these produce is mandatory under art. 9 and 26 FIR.
67
The Court then elaborates on how to interpret ‘place of provenance’ in art. 26(2)(a)
FIR.
68
The “place of provenance” of a food product refers to “the place from which
a food comes” but cannot be synonymous with the “country of origin” of that food,
nor the name, business name or address of the producer.
69
As such, the 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
63
Occupied Territories case, para 32.
64
Occupied Territories case, para 34-35.
65
Occupied Territories case, para 36.
66
Occupied Territories case, para 37.
67
Occupied Territories case, para 38.
68
Occupied Territories case, para 39 onwards.
69
art. 2(2)(g) FIR.
35
producer’s address.”
70
The Court finds that the term “Israeli settlement”, located
in one of the Occupied Territories, may indicate a ‘place of provenance’.
71
The Court then moves on to establish whether the indication of “Israeli settlement”
is mandatory, in addition to the mandatory indication of the territory of origin.
72
Also here, the Court identifies the possibility for omission to mislead consumers as
to the true place of provenance as decisive.
73
The Court reasons that if only the
indication of the territory would be mandatory, consumers would not be able to
distinguish if the foodstuff originates from Israeli, Palestinian or Syrian producers.
Consequently, consumers would not have sufficient information to know whether
a foodstuff “comes from a locality or a set of localities constituting a settlement
established in one of those territories in breach of the rules of international
humanitarian law.”
74
The Court further underlines that, in accordance with art.
3(5) TEU, the European Union is to contribute to the strict observance of
international law, including the principles of the United Nations Charter. Hence, an
“omission of the indication that a foodstuff comes from an ‘Israeli settlement’
located in one of the territories (in question) is likely to mislead consumers, by
suggesting that that food has a place of provenance other than its true place of
provenance.”
75
70
Occupied Territories case, para 41.
71
Occupied Territories case, paras 42-45.
72
Occupied Territories case, para 46.
73
Occupied Territories case, para 47.
74
Occupied Territories case, para 50.
75
Occupied Territories case, para 51.
35
18
To support its conclusion, the Court references the regulatory objective of the FIR,
namely “to ensure a high level of consumer protection in relation to food
information, taking into account the differences in perception of consumers.”
76
Under art. 3(1) FIR, this means that information provided must enable consumers
to make informed choices with particular regard to health, economic,
environmental, social and ethical considerations.
77
The Court highlights that this
list presented in art. 3(1) FIR is non-exclusive and may also encompass “other
types of considerations, such as those relating to the observance of international
law (...).”
78
The Court endorses the view of the AG that consumers’ purchasing
decisions may be impacted by the fact that a foodstuff was produced in settlements
established in breach of international humanitarian law,
79
in particular if those
breaches concern fundamental rules of international law.
80
Based on the preceding, the Court concludes that the omission of the term “Israeli
settlement” on foodstuffs is liable to mislead the consumer as to the place of
provenance of that foodstuff and is hence mandatory. As a result, arts. 9 and 26
of the FIR must be interpreted as meaning that both the indication of territory and
the place of provenance must be provided for these foodstuffs.
81
76
art. 1 (1) FIR.
77
art. 3(1), recitals 3 and 4 FIR.
78
Occupied Territories case, para 54.
79
Occupied Territories case, para 55
80
Occupied Territories case, para 56.
81
Occupied Territories case, para 58.
35
5 Assessment
The implications of this landmark judgment touch on EU internal market and food
law, as well as on the relationship between EU and international law. In our
treatment of the case, we will start with a discussion of political consumerism and
its (potential) role in EU internal market law in the wake of this judgment. We will
then consider the connection made between consumer choices and the
enforcement of international law. Our conclusion will focus on the evolving role of
information in EU consumer and food law, and remaining puzzles.
5.1 The rise of political consumerism in EU internal market law
The ruling of the CJEU allows consumers concerned about the Israeli occupation of
Palestinian territories to engage in so-called ‘political consumerism’.
82
Political
consumerism can be defined as “market-oriented engagements emerging from
societal concerns associated with production and consumption.”
83
From this
perspective, acts of production and consumption are considered as more than
private business matters and individual consumer choice. Within the context of
expanding global trade and increasing concerns about its social, environmental
82
M. Micheletti, Political Virtue and Shopping. Individuals, Consumerism, and Collective
Action (New York, Palgrave MacMillan, 2003); D. Stolle and M. Micheletti, Political
Consumerism. Global Responsibility in Action (Cambridge, Cambridge University Press,
2013).
83
M. Boström, M. Micheletti and P. Oosterveer, “Studying Political Consumerism”, in M.
Boström, M. Micheletti and P. Oosterveer (eds) The Oxford Handbook of Political
Consumerism (Oxford, Oxford University Press, 2019) p. 2.
35
20
and political consequences, political consumerism has attracted increasing
attention in recent years, as an additional instrument for policy-making.
Political consumerism entails four different forms of consumer involvement,
namely: ‘(1) boycotts (refusing to purchase a good based on societal concerns
about production and consumption), (2) buycotts (purchasing goods for such
reasons, (3) discursive political consumerism (communicative actions), and (4)
lifestyle political consumerism (more profound changes in lifestyle practices)’.
84
This ruling relates primarily to the first form of political consumerism: the boycott
of products from Israel’s settlements in the occupied territories.
This boycott has partly been unorganised, spontaneous and individual. However,
there has also been an organized element, led by the Boycott, Divestment and
Sanctions (BDS) movement.
85
The BDS movement started in 2005 in response to
the ICJ ruling that Israel’s decision to build a wall in the occupied Palestinian
territories violated international law. The movement calls for the enforcement of
international law and considers a consumer boycott one of the strategies for
achieving this goal. This strategy resembles the boycott of South African products
during the apartheid era.
86
The BDS movement claims to have been successful in
84
Boström, Micheletti and Oosterveer, Studying Political Consumerism, p. 3.
85
M. Micheletti and D. Oral, “Problematic Political Consumerism. Confusions and Moral
Dilemmas in Boycott Activism” in M. Boström, M. Micheletti, and P. Oosterveer (eds.), The
Oxford Handbook of Political Consumerism (New York: Oxford University Press, 2019) pp.
699-720.
86
R. Skinner, “The Moral Foundations of British Anti-Apartheid Activism, 1946–1960”
(2009) 35 J. of Southern African Studies, 399-416.
35
reducing investments in Israel
87
but independent confirmation of this claim is
lacking. The BDS movement has also been criticised: at times, the impression is
given that the boycott extends to all products from Israel, since its members argue
that the whole economy of Israel profits from the settlements; moreover, the
movement has been accused of fostering anti-Semitism.
88
The ruling by the CJEU gives the BDS movement, as well as the broader categories
of consumers concerned about the situation in the occupied territories, better
opportunities for taking political action through a boycott of products from the
Israeli settlements. Moreover, the explicit recognition of their concerns in the ruling
itself can be interpreted as a support for their points of view and their activism. In
response to the ruling by the Court of Justice, the BDS movement has already
called for an EU ban on trade with Israeli settlements rather than merely labelling
products.
89
The ruling represents a potential watershed moment for political consumerism as
it recognises political consumerism as relevant consideration in the interpretation
of EU food information law. In cases of country of origin labelling, it offers
consumers the necessary legal basis to demand certain types of labelling from
FBOs. Whether these obligations extend beyond country of origin labelling and
violations of international humanitarian law and human rights in connection to
87
See: https://bdsmovement.net/news/18-highlights-bds-impact-2018 (accessed 3
December 2019).
88
Micheletti and Oral, Problematic Political Consumerism, pp. 699-720.
89
https://bdsmovement.net/news/eu-must-ban-all-business-settlements-instead-merely-
labeling-settlement-products (accessed 3 December 2019)
35
22
occupation remains to be seen.
90
If the judiciary or the lawmaker wish to further
operationalize these ethical, social, environmental or political consumer concerns,
a firm legal basis remains essential.
5.2 Consumer choice and the enforcement of international law
The international legal basis that has driven the BDS movement and informed the
reasoning of the Court in broadening the interpretation of the term “consumers’
interest” can be found in international humanitarian law and human rights law, in
particular the right to self-determination of the Palestinian people. The CJEU noted
that “[c]onsumers cannot be expected to guess […] that foodstuff comes from a
locality or a set of localities constituting a settlement established in one of those
territories in breach of the rules of international humanitarian law.”
91
The CJEU’s
decision to qualify the Israeli settlements as violations of international law is based
on firm legal grounding, including various UN Security Council resolutions,
92
and
the Wall advisory opinion of the ICJ, which had been previously invoked by AG
Hogan.
93
While the Security Council has repeatedly called on “Israel, as the occupying
Power, to abide scrupulously” by its obligations under international humanitarian
90
See in this case note, last para of “Consumer choice and the enforcement of international
law.”
91
Occupied Territories Case, para. 50.
92
Opinion AG Hogan, para. 55 (fn. 26).
93
Opinion AG Hogan, paras. 54-55.
35
law over the past decades,
94
Israel has thus far failed to comply with relevant
Security Council resolutions. Similarly, the ICJ’s finding that the wall between the
West Bank and Israel’s Eastern border is illegal under international law did not lead
Israel to dismantle the construction and to follow the ICJ’s request to provide
reparation. It is true that ICJ advisory opinions are non-binding for UN Member
States.
95
But the ICJ’s ruling in its Wall advisory opinion was largely based on
customary international law,
96
and confirms Israel’s international responsibility for
its internationally wrongful acts. The continuing occupation and extension of
settlements in the Palestinian territories by Israel thus speak to an enforcement
gap in international law.
97
The only means that the ICJ had at its disposal to enforce
its advisory opinion was to call on the Security Council and the General Assembly
94
United Nations Security Council Resolution 2334 (S/RES/2334), preambular paragraph,
referring specifically to the Fourth Geneva Convention relative to the Protection of Civilian
Persons in Time of War, of 12 August 1949.
95
See K. Oellers-Frahm, “Ch.XIV The International Court of Justice, Article 96”, in B.
Simma, D.-E. Khan, G. Nolte, A. Paulus and N. Wessendorf (eds), Oxford Commentaries
on International Law (Oxford, Oxford University Press, 2012) p. 1975 and p. 1987.
96
See, in particular, ICRC, Rule 130. Transfer of Own Civilian Population into Occupied
Territory’, IHL Database/Customary IHL, available at: https://ihl-
databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter38_rule130. In the East Timor
case, the ICJ characterised the right to self-determination as “one of the essential principles
of contemporary international law” (Case Concerning East Timor (Portugal v Australia)
Merits, Judgment, (1995) ICJ Reports 4, para 29).
97
See generally ‘Implementation Mechanisms’ in M. Sassòli, A. A. Bouvier, A. Quintin and
J. Grignon, How Does Law Protect in War? Cases, Documents and Teaching Materials on
Contemporary Practice in International Humanitarian Law (ICRC 2014), available at:
https://casebook.icrc.org/law/implementation-mechanisms.
35
24
to consider further action to end the illegal situation created by the construction
of the wall and its associated regime by Israel.
98
Against the background of this enforcement gap, the preliminary ruling of the CJEU
could be seen as contributing to the more effective implementation of international
humanitarian law and the right to self-determination. The argument that national
courts implement international law is not new, but it has gained increasing traction
in recent years,
99
including with regard to EU courts. The Kadi cases,
100
which
concerned the review of the implementation of UN Security Council
counterterrorism resolutions through a EU regulation, have been presented as
situations where the European courts implement values stemming from the UN
98
Wall advisory opinion, para. 160. In this regard, see General Assembly resolution ES-
10/15 of 20 July 2004 (Advisory opinion of the International Court of Justice on the Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, including
in and around East Jerusalem).
99
See generally A. Nollkaemper, National Courts and the International Rule of Law (Oxford,
Oxford University Press, 2011); A. Nollkaemper, A. Reinisch, R. Janik, and F. Simlinger
(eds), International Law in Domestic Courts A Casebook (Oxford, Oxford University Press,
2019). See also the Oxford Reports on International Law database available at:
https://opil.ouplaw.com/home/ORIL.
100
Yassin Abdullah Kadi v Council of the European Union and Commission of the European
Communities (Case T-315/01) ECLI:EU:T:2005:332 (hereinafter Kadi I), and Yassin
Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union
and Commission of the European Communities (Joined Cases C-402/05 P and C-415/05 P)
ECLI:EU:C:2008:461 [2008] (hereinafter: Kadi II).
35
legal order.
101
In Kadi, the General Court found that the relevant Security Council
resolutions did not violate any fundamental rights protected by peremptory norms
of general international law (jus cogens).
102
The CJEU disagreed and annulled the
relevant regulation implementing the Security Council resolution.
103
The CJEU
based its decision on EU law, considering that the respect for human rights and
fundamental freedoms was part of the foundations of the EU legal order,
104
and
that a regulation violating such human rights was therefore incompatible with EU
law.
105
Although the Court’s decision implied possible EU non-compliance with the
relevant Security Council resolutions, it ultimately contributed to a better
implementation of international human rights law because it prompted the UN
Security Council to improve the human rights protection in its counterterrorism
sanctions regimes.
106
As implementers of international law in their own legal orders, national and
European courts can act to reinforce the international legal order. Unsurprisingly,
101
See P. De Sena and M. C. Vitucci, The European Courts and the Security Council:
Between Dédoublement Fonctionnel and Balancing of Values” (2009) 20 EJIL, 193. But see
the replies of different authors contained in the same issue of EJIL.
102
Kadi I, paras 282-292.
103
Kadi II para. 372.
104
Kadi II, para. 303. See also J. Kokott and C. Sobotta, “The Kadi Case Constitutional
Core Values and International Law Finding the Balance?” (2012) 23 EJIL. 1015, 1016.
105
Kadi II, para. 371.
106
Kokott and Sobotta, supra note 104, at 1019. But see L. van den Herik, “Peripheral
Hegemony in the Quest to Ensure Security Council Accountability for its Individualized UN
Sanctions Regimes” (2014) 19 J. of Conflict and Security L. 427, 444.
35
26
this implementation is at least partly motivated by “domestic” obligations; as
recognized by the CJEU in Kadi, the EU is obliged to contribute “to the strict
observance and the development of international law, including respect for the
principles of the United Nations Charter”
107
based on art. 3(5) TEU. While this is
an internal obligation and as such not enforceable outside the EU legal order, it is
the corollary of the EU’s international legal personality. As an international legal
person, the EU is bound by its international treaty obligations and customary
international law. When the EU breaches its international obligations, it can be
responsible under the law of international responsibility, as codified in the 2001
Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) and
the 2011 Articles on Responsibility of International Organizations (2011).
108
Indeed, in the Wall advisory opinion, the ICJ emphasized that all other states are
under an obligation “not to recognize the illegal situation resulting from the
construction of the wall and not to render aid or assistance in maintaining the
situation created by such construction”.
109
The ICJ thereby applied art. 41 (2) of
the ARSIWA, which sets out the particular consequences of a serious breach of jus
cogens.
110
As recently defined by the UN International Law Commission, jus cogens
norms have an ethical dimension. They “reflect and protect fundamental values of
107
Occupied Territories case, para. 48.
108
ILC, ‘Articles on the Responsibility of States for Internationally Wrongful Acts with
commentaries thereto’, (2001) 2(2) ILC Yearbook 31-143, and ‘Articles on the
Responsibility of International Organizations with commentaries’, (2011) 2(2) ILC
Yearbook 46-105.
109
Wall advisory opinion, para. 163 (D.).
110
See also art. 42(2) of the ARIO.
35
the international community, are hierarchically superior to other rules of
international law and are universally applicable”.
111
Therefore, a breach of such
peremptory norms triggers legal consequences for all states and international
organizations, in particular the obligations not to recognize or render aid or
assistance to maintain the illegal situation.
112
In its reasoning, the CJEU concurred with the ICJ’s finding that the Palestinian
people enjoy the right to self-determination,
113
which has been recognised as
having the status of a peremptory norm of general international law.
114
Moreover,
the CJEU noted that the Israeli policy of population transfer outside its territory
was in violation of the rules of general international humanitarian law, as codified
in art. 49(6) of the Fourth Geneva Convention relative to the Protection of Civilian
Persons in Time of War of 12 August 1949.
115
Although not all of international
humanitarian law has a peremptory nature, the basic rules of international
humanitarian law could be characterized as jus cogens.
116
Israel’s violations of
rules that constitute jus cogens have legal consequences for the EU and its
member states, which are under an international obligation not to recognise and
aid or assist in the illegal situation created by Israel.
111
ILC, ‘Peremptory norms of general international law (jus cogens)’, UN Doc. A/74/10
(2019), para. 56, conclusion 3 (emphasis added).
112
ILC, (jus cogens), conclusion 19(3).
113
Occupied Territories case, para. 35.
114
ILC, supra note (jus cogens), annex.
115
Occupied Territories case, para. 48.
116
ILC, supra note (jus cogens), annex. See also ICRC, supra note (rule 130).
35
28
The CJEU, like the ICJ, did not explicitly refer to peremptory norms of general
international law in its decision; however the Court did note that “a foodstuff [that]
comes from a settlement established in breach of the rules of international
humanitarian law may be the subject of ethical assessments capable of influencing
consumers’ purchasing decisions, particularly since some of those rules constitute
fundamental rules of international law”.
117
The Court at least implicitly
acknowledged the importance of the international rules at stake, which reflect and
protect the values of the international community. The broader notion of
“consumers’ interest” developed in the case can thus arguably also be understood
against the background of the need for the EU to comply with own international
obligations, which serve the effective implementation of those fundamental rules
of international law.
While the Court’s legal reasoning based on international law is sound, the burden
of closing the enforcement gap of international law ultimately lies with FBOs. As a
consequence of the judgment, FBOs will now have to carefully evaluate if the
products they supply have been produced in countries and possibly also under
conditions that violate international law. How far this duty reaches still remains to
be seen. Will this duty only concern country of origin labelling or maybe also other
forms of labelling of violations of international law, such as human rights
violations? As this duty is based on the notions of deceptiveness and consumers’
interest, it could indeed be argued that, following from this judgment, businesses
need to label also other kinds of international law violations that occur in the supply
chain. However, under EU food information law, a clear obligation to label thus far
117
Occupied Territories case, para. 56 (emphasis added).
35
only exists regarding country of origin and place of provenance labelling. Further
judgments, or legislative changes, will be needed to clarify the parameters of this
duty.
5.3 The Evolving Role of Information in EU Consumer and Food Law
The political and international ramifications of this case can easily distract from the
EU food information law that lies at its core. It is nevertheless crucial to place this
case also within that context, especially in light of its potential importance for
actors within the EU’s internal market. The broadening of the concept of
“consumers’ interest” through the Occupied Territories case presents, potentially
exciting, opportunities for political consumerism and international law
enforcement. There are however two interrelated risks of the approach currently
adopted by the Court: first, behavioural science suggests that this type of
information provision may not be effective in creating more informed consumers;
and second, it is unclear whether the adopted interpretation complies with the
legal limits provided by art. 4(2) FIR.
Since the famous Cassis de Dijon
118
decision, information has been the primary
method of regulation in the EU food market.
119
On the one hand, food labelling
118
REWE v Bundesmonopolverwaltung für Branntwein (Case 120/78) ECLI:EU:C:1979:42
(Cassis de Dijon).
119
See J. A. Usher, “Disclosure Rules (Information) as a Primary Tool in the Doctrine on
Measures Having an Equivalent Effect”, in S. Grundmann, W Kerber and S. Weatherill
(eds), Party Autonomy and the Role of Information in the Internal Market (Berlin, de
Gruyter, 2001) pp. 152-153; K. P. Purnhagen, “The Virtue of Cassis de Dijon 25 years later
35
30
helps ensure that consumers are not deceived regarding the food they buy and
consume. On the other hand, compared to product requirements, information
requirements do not significantly impede trade between Member States, making it
the perfect tool for ensuring the EU’s internal market goals.
120
Art. 8 GFL, the cornerstone of EU food information regulation, stipulates that
consumers’ interest shall be the guiding principle for EU food information law.
121
At the time of the coming into force of the GFL in 2002, this consumers’ interest
was synonymous with the need to ensure food safety.
122
This focus on food safety
can be explained by the fact that food labelling law in the EU largely developed
against the backdrop of food crises, such as BSE.
123
Since the adoption of the GFL,
EU food information law has expanded to include dietary and nutrition information
It Is Not Dead, it just smells funny”, in K. P. Purnhagen and P. Rott (eds), Varieties of
European Economic Law and Regulation (Cham, Springer Science, 2013) p. 315. For the
priority of information regulation see K. P. Purnhagen and E. van Kleef, “Commanding to
«Nudge» via the Proportionality Principle?”, in H. Bremmers and K. Purnhagen (eds),
Regulating and Managing Food Safety in the EU (Cham, Springer Nature, 2018) p. 158.
120
art. 3(3) TEU.
121
art. 8 GFL.
122
There had been some earlier debates focussing more on health, see e.g. M. Holle,
“Nutrition Policy in the European Union”, Wageningen Working Paper Law and Governance
2014/03.
123
S. Krapohl, “Thalidomide, BSE, and the single market: A historical-institutionalist
approach to regulatory regimes in the European Union”, (2007) 46 European J. of Political
Research, 38; K. P. Purnhagen, The Politics of Systematization in EU Product Safety
Regulation (New York et al, Springer Science, 2013) p. 27.
35
as a consumer interest. Recital 1 of Regulation (EC) No 1924/2006,
124
for example,
presupposes a regulatory environment for consumer choice, where “(a) varied and
balanced diet is a prerequisite for good health.”
125
The coming into force of the FIR significantly expanded the informational
requirement of EU food law to cover a wide array of potential consumers’ interests.
This judgment further defines the notion of “consumers’ interest” as expanded
through this legislation. However, instead of limiting its scope to a workable legal
concept,
126
the Court has expanded its meaning to cover an even broader range
of interests, now explicitly allowing for the possibility of political consumerism
through the inclusion of information on violations of international law. In the
current case, the Court extensively references art. 3(1) FIR which sets out the
general objectives of the regulation in general and the “interests” that EU law
normatively demands from consumers in particular when making informed choices
and safe use of food. Surprisingly, it does not refer to art. 4 FIR, which provides
the principles governing mandatory food information. Especially relevant in this
context is Paragraph 2, which reads:
124
For a general account from the perspective of EU food law see also Recital 41 FIR. For
a more thorough assessment see Purnhagen, van Herpen and van Kleef, Packaging as
Nudges, pp. 197-216.
125
Recital 1 FIR.
126
See for earlier warnings regarding the wide interpretation of “consumers’ interest” K.
P. Purnhagen, “Beyond threats to health: May Consumers’ Interests in Safety Trump
Fundamental Freedoms in Information on Foodstuffs? Reflections on Karl Berger v Freistaat
Bayern”, (2013) E. L. Rev. 711-719.
35
32
“When considering the need for mandatory food information and to enable
consumers to make informed choices, account shall be taken of a widespread need
on the part of the majority of consumers for certain information to which they
attach significant value or of any generally accepted benefits to the consumer.”
Art. 4(2) FIR provides guidance as to the limits to making information
requirements mandatory. It can also be understood as addressing concerns
expressed in research on information overload;
127
the question as to whether an
ever more loaded food label meaningfully increases the ability of consumers to
make informed choices.
128
Despite its clear relevance to the current case, neither the Court nor the AG refer
to art. 4(2) FIR. As such, the case represents a missed opportunity to give shape
to the art. 4(2)’s requirements, specifically on how to detect whether “the majority
of consumers (...) attach significant value” to the disputed information. How would
one be able to demonstrate that the majority of consumers attach significant value
to knowing whether the products were produced in breach of international
humanitarian law and human rights in general and/or whether they originate in
the Israeli settlements in particular? What is the threshold for a majority in this
situation? How to prove the attachment of a significant value?
127
For the problem of information overload see W. Verbeke, “Agriculture and the food
industry in the information age”, (2005) 32 European Rev. of Agricultural Economics, 347
368, for the connection between art. 4(2) FIR and information overload Purnhagen and
Schebesta, Food Labelling for Consumers, 39.
128
See for a summary van Herpen and van Trip, Health Claims, p. 94.
35
It is hard to imagine how one would determine that a majority of consumers attach
significant value to certain information other than through surveys and statistical
analysis. For example, a recent Eurobarometer survey illustrated that, when
buying foods, Europeans consider “where the food comes from (53%), cost (51%),
food safety (50%) and taste (49%). Nutrient content is considered slightly less
important (44%), while ethics and beliefs (e.g. considerations of animal welfare,
environmental concerns or religion) rank lowest in importance (19%).”
129
The
Eurobarometer can only confirm, acknowledging the limits of its methodology, that
more than 50% of consumers pay attention to the origin of the foodstuff; it does
not give us any information on consumer valuation of breaches of e.g. international
law.
Guidance from case law or legislation on this issue remains limited. Thusfar, the
Court has only identified “price” as a decisive factor in consumer purchasing
decisions, in the context of the Unfair Commercial Practices Directive (UCPD).
130
129
EFSA, Food safety in the EU, P. 4
https://www.efsa.europa.eu/sites/default/files/corporate_publications/files/Eurobaromete
r2019_Food-safety-in-the-EU_Full-report.pdf.
130
Canal Digital Danmark A/S (C-611/14) ECLI:EU:C:2016:800, para 46, see for a more
comprehensive analysis H. Schebesta and K. P. Purnhagen, “An Average Consumer
Concept of Bits and Pieces Empirical Evidence on the Court of Justice of the European
Union’s Concept of the Average Consumer in the UCPD”, in: L. de Almeida, M. Cantero
Gamito, M. Durovic and K.P. Purnhagen (eds). The Transformation of Economic Law
(Oxford, Hart, 2019), 23 (Bits and Pieces).
35
34
Recital 18 of the UCPD tells us, following established case law,
131
that the average
consumer should not be determined via a statistical test. It is legally unclear if this
statement can also be transferred to the average consumer test in the FIR.
132
However, the FIR frequently also refers to “studies” to justify food labelling
regulation,
133
the requirement of “evidence of uniform consumer understanding”
to allow presentation of mandatory particulars in a certain way,
134
and to “sound
and scientifically valid consumer research” to justify additional energy and
nutrition presentation.
135
Such requirements sit uneasy with the normative
requirements of the standard average consumer benchmark.
136
The Court could make reference to surveys where they exist to fulfil the
requirements of art. 4(2) FIR. This still leaves several related questions
unanswered: how should the Court determine the quality of such evidence? And
what shall the Court do if such research does not exist? It may be due to these
difficult doctrinal and practical questions that both the Court and the AG ignored
the test of art. 4(2) FIR. However, it would have been more convincing if both the
131
See Gut Springenheide (C-210/96) ECLI:EU:C:1998:369, para 31; Opinion AG Fennelly
Estée Lauder Cosmetics GmbH & Co. OHG v Lancaster Group GmbH (C-220/98) [2002]
E.C.R. I-117, 30; for a more thorough account of the context of recital 18 FIR see H.
Schebesta and K. Purnhagen, “Is the ‘behavioural turn’ in consumer law taken by Dutch
courts?” (2017) Tijdschrift voor Consumentenrecht en handelspraktijken, 273.
132
Against such a transfer see Schebesta and Purnhagen, Bits and Pieces, 13-27.
133
Recital 26 FIR.
134
art. 9 (3) FIR.
135
art. 35 (1) (a) FIR.
136
Schebesta and Purnhagen, Bits and Pieces, 18.
35
AG and the Court would have taken these challenges face on, as the open-ended
interpretation of art. 3(1) FIR that results from this judgment continues a
complicated situation for business and consumers.
Article
Full-text available
This contribution briefly traces the ‘behavioural turn’ in EU Consumer law. We argue that the multilevel nature of this paradigm shift is currently underappreciating the role of national courts in giving traction to the behavioural sciences paradigm. In a jurisprudential analysis of cases applying the Unfair Commercial Practice Directive in the Netherlands in respect of the average consumer, we find that Dutch courts do not deploy behavioural insights. Instead, they use three approaches to adjudicate unfair commercial practices, which we illustrate and discuss: information-based (type and quality), duty-based (duty on the consumer or duty on the trader), and consumer effect-based.
There had been some earlier debates focussing more on health
  • M Holle
There had been some earlier debates focussing more on health, see e.g. M. Holle, "Nutrition Policy in the European Union", Wageningen Working Paper Law and Governance 2014/03.