In Case C-386/08, (1) Advocate General(2) Bot delivered his advisory opinion to the European Court of Justice (ECJ). Bot argues that the ECJ should not extend full faith and credit (3) to the Israeli customs authorities as to the authenticity of documents of origin of goods from the occupied territories. As a consequence, Bot would impose no legal duty to accept as presumptively true(4) statements of the Israeli customs authorities regarding goods originating in the Israeli settlements in the occupied territories of the West Bank.(5) Israel asserts that goods originating in the occupied territories are Israeli and entitled to the benefits of the customs union agreement between Israel and the E.U. Though the E.U. has a customs union agreement with both Israel(6) and the P.L.O.,(7) the benefits of those agreements cannot extend to goods originating in the occupied territories unless certified by the P.L.O. Essentially, the Israeli settlements in the occupied territories fall outside of Israel-EU agreements coverage – and within the Israel-PLO agreement’s coverage. Had the certificate of origin issued from the relevant Palestinian authority the goods would almost certainly have enjoyed the exemption from custom’s duties.(8)
The case arose out of a preliminary reference to the ECJ from the German tax court (Finanzgericht) for Hamburg. Brita GmBH, a German company, contested the customs duties imposed by Germany on imported goods from settlements in the occupied territories.(9) The German court specifically asked whether the goods could be granted the benefit of the the EC-Israel or the EC-PLO agreement when certified as of Israeli origin by Israel.(10) The referring court believes that the goods, whether originating in Israel or Palestine, should be subject to the exoneration of customs duties.(11) The advocate general disagrees first, on the terms of the treaty,(12) and second because to do so would not respect the sovereignty of the relevant Palestinian authorities. The Advocate General analogizes this case to early E.C. caselaw(13) (Cyprus(14)) where a result similar to the one he advocates was found.
The Opinion, which seems persuasive, will likely influence the ECJ’s impending final decision. It is not without implications for regional stability. Free trade makes war less likely by encouraging prosperity and interdependence, by breaking down isolation. To that end, the E.U. established a partnership with the countries of the Mediterranean basin to create free trade and encourage democracy and human rights’ protection(15) via bilateral agreements following a uniform model providing for free trade.(16) For the ECJ to grant the exemption of customs duties based on Israeli rather than Palestinian authority would be an act of de facto recognition of the legitimacy of the Israeli occupation as well as ignoring the plain meaning of the treaty. Hopefully the Israeli and Palestinian authorities will coordinate and resolve their differences, somehow.
(1)Brita, GmbH v Hauptzollamt Hamburg Hafen, 29/Oct./2009 Available at: http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-386/08 (Opinion) (Hereafter: Brita, A.G.)
(2)The Advocate General is a post which has no real parallel in U.S. law. The Advocate General writes advisory opinions which can be analogized to an “amicus curiae” brief. The ECJ may or may not take the Advocate General’s opinion into account and may or may not use in reaching its final verdict. The Advocate General’s opinion has no binding authority.
(3) Brita, A.G., para. 75-77. The decision does not however use the U.S. term “full faith and credit” however the conceptual shorthand analogy holds.
(4) Brita, A.G., Para. 83-84.
(5) A similar analysis would apply to goods originating in the Gaza strip.
(6) OJ 2000 L 147, p. 3, the ‘EC-Israel Agreement’.
(7) OJ 1997 L 187, p. 3, the ‘EC-PLO Agreement’. Article 73 of the agreement states that it is to apply to the territories of the West Bank and the Gaza Strip.
(8) Brita, A.G., para. 134.
(9) Brita, A.G., para. 2.
(10) Brita, A.G., para. 5.
(11) Brita, A.G., para. 106.
(12) Brita, A.G., para 108, citing Article 83 of the EC-Israel Agreement.
(13) Anastasiou, Case C 432/92  ECR I 3087.
(14) Agreement annexed to Council Regulation (EEC) N° 1246/73 of 14 May
1973 (OJ 1973 L 133, p. 1, the ‘EEC-Cyprus Agreement’).
(15) Brita, A.G., para. 9, 10.
(16) Article 8 of the EC-Israel Agreement provides that ‘customs duties on imports and exports, and any charges having equivalent effect, shall be prohibited between the Community and Israel. This shall also apply to customs duties of a fiscal nature’.