EU-Israel drugs pact contains legal pitfall
MEPs have rubber-stamped a trade deal with Israel despite a warning by their own legal services that it might clash with EU law.
The European Parliament in Strasbourg on Tuesday (23 October) passed the so-called Acaa (Agreement on Conformity Assessment and Acceptance of Industrial Products) pact by 379 votes against 230 with 40 abstentions.
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Under the deal, most drugs certified by EU or Israeli authorities can be sold in both territories without getting new permission from the other side.
Israel is a big exporter of medicines, such as Copaxone, a multiple sclerosis drug, and Lipitor, a blood pressure pill.
The fact some of them are produced on occupied Palestinian land is not a problem for Acaa.
Whether the drug is made in Israel, China or the US, Israeli officials can go and inspect the producer and approve the drug without implying any extension of Israeli sovereignty.
The legal description of the Israeli body which certifies drugs for Acaa purposes could be a stumbling block, however.
EU parliament lawyers spelled out their views in a 10-page analysis dated 16 March this year.
They said that if Israel's Acaa regulator - most likely its health ministry - is described as having jurisdiction over occupied land then the EU cannot recognise it and cannot implement the trade deal.
Israel could say its Acaa regulator is only valid for Israel proper. "If Israel nominates the responsible authority ... to be competent in the whole of Israel, which in Israel's definition of territory includes territories which came under Israeli administration in 1967, then the commission is not in a position to acknowledge that nomination, but may request that the nomination clearly limits the competence of the nominated responsible authority so as not to cover those territories," the parliament lawyers noted.
But this would amount to political suicide for Prime Minister Benjamin Netanyahu.
EUobserver on Wednesday asked the commission if the parliament lawyers have a point.
Its experts said Israel can certify drugs no matter where they are made but they said nothing on how to designate the Israeli regulator.
When asked again, trade spokesman John Clancy said: "I really don't see the confusion ... This issue was discussed in detail with the European Parliament. The latter accepted this approach by giving its consent to Acaa."
For Charles Shamas, a campaigner at the Brussels and Ramallah-based NGO the Mattin Group, and for Franziska Brantner, a German Green MEP, the commission response is no surprise.
"They have been trying to avoid answering this question for the past six months in the hope they can fudge the agreement in some way," Shamas said.
"Unless somebody takes them to [the EU's] court in Luxembourg, they will probably manage it," Brantner added.
The Green, Socialist, Liberal and far-left GUE groups in parliament had tabled a declaration to be attached to Acaa on the regulator issue.
But it fell by the wayside because the centre-right EPP group did not like it and the Liberal and Socialist groups started bickering over Acaa in general.
The legal problem also got buried by debate on Acaa political symbolism.
In a week in which Israel opted to build another 797 settler units, left-leaning MEPs said Acaa amounts to EU appeasement. Meanwhile, centre-right MEPs and pro-Israeli lobbyists, such as the American Jewish Committee, said Acaa is about "saving lives."
"The opposition [to Acaa] is based on political signals - do we do another thing with Israel or not? A lot of people [MEPs] don't understand the legal issues," Shamas said.