- What is ACAA?
ACAA or ‘’the Protocol on Conformity Assessment and Acceptance of Industrial Products’’ is a protocol attached to the EU-Israel Association Agreement. It seeks to facilitate access of external partner countries into the EU’s internal market through eliminating technical barriers to trade in industrial products. ACAA works as a mutual recognition agreement – in this case, the EU and Israel would agree that Israeli industrial products are produced according to the same standards as EU products and vice versa. In practice, the ACAA will allow industrial products to enter the respective markets of the parties without additional testing and conformity assessment procedures.
In practical terms, economic operators on both sides will save some time in accessing respective markets and save some costs. European and Israeli consumers will have access to a broader choice of pharmaceuticals and competition will lower prices.
At present, there is only one annex to the ACAA protocol which covers pharmaceutical products because Israel has adopted the sufficient technical legislation to adapt to European standards in this field. In the future, other annexes could be added (the next ones should be cosmetics and toys).
Negotiation on the ACAA Protocol between the EU and Israel started in early 2009. The ACAA Protocol was signed in May 2010 and has since been waiting for the assent vote of the European Parliament (EP).
- What is an assent procedure?
With the introduction of the Lisbon Treaty, the application of the assent procedure has been extended to trade agreements with third countries, increasing the powers of the EP in this field. In order for ACAA to enter into force, the Council must obtain the EP’s assent. With the assent procedure, the EP may accept or reject a proposal but cannot amend it. It can also decide to postpone the vote.
For the ACAA protocol, the assent procedure has been suspended since June 2010 (following the Israeli attack on the Gaza flotilla on 31 May 2010) based on a decision of the conference of the political coordinators of the International trade committee (INTA) and the Foreign Affairs committee (AFET) of the EP not to submit the protocol to a vote in the INTA. Members of the EP (MEP) from the EPP (European People’s Party) were the only ones willing to proceed with ACAA at the time but they were a minority. In March 2011, the Liberal (ALDE) MEPs member of INTA decided to proceed with the vote because they considered that the freeze was decided undemocratically and should be submitted to the MEPs of the INTA Committee. The decision of the Liberals allowed for the procedure for vote to continue. A new rapporteur, Vital Moreira (S&D – Progressive Alliance of Socialist and Democrats) was appointed. In his draft report, he recommends that the EP officially suspends its vote of the ACAA protocol for two years or until a successful conclusion of the Middle East peace process. [1] In the meantime, the AFET committee, which had to give an opinion on the vote of the protocol to the INTA committee, gave its green light provided that the European Commission sorts out some legal deficiencies related to the protocol. An oral question from Vital Moreira and the Chair of the AFET Committee Elmar Brok was addressed to the EU Commissioner for Trade Karel de Gucht who replied in the INTA committee on 3 July 2012 on these issues (this exchange can be found here). He however failed to provide the necessary legal guarantees (see below under 4.1 for more information).
- Why is it important for CSOs to be mobilised?
The ACAA vote in the EP is an important precedent for other agreements that need the assent vote of the EP.
In December 2008, a couple of days before the Israeli offensive on the Gaza Strip, AFET (in the previous EP legislature) referred to the situation in the OPT and adopted similar arguments (cfr arguments relating to conditionality and consistency under point 4.2 and 4.3) to suspend its vote to another protocol to the EU-Israel Association Agreement, namely the Protocol allowing Israel’s participation in certain Community programmes. It remains suspended until today, preventing Israel from participating in several community programmes[2]. The EP at the time sent a strong message to Israel that bilateral relations could not continue indifferently of Israel’s actions in the OPT. A positive vote on ACAA would definitively re-open the discussion on the Protocol allowing Israel’s participation in Community programmes[3].
Since June 2009 and the EU’s decision to freeze the upgrade, the EU has continued to sign agreements with Israel. In July 2012, the EU offered (without consultation of the European Parliament) to implement 60 new activities of cooperation in 15 different fields– based on the current Action Plan- to be implemented in the short and medium term. None of these activities are conditioned to any progress in Israel’s human rights record. While certain activities will be implemented without the assent of the EP; others might need to go through the EP for its assent vote. A positive vote on ACAA today will jeopardise any possibility to block further EU-Israel agreements going through the EP.
- What to request and why?
We call on the EP to suspend its vote on the ACAA protocol until Israel complies with its obligations under international human rights and humanitarian law, and until the legal deficiencies of the ACAA protocol, linked to its territorial application, are solved.
Below are several arguments that can be raised to oppose a vote on ACAA.
4.1 The protocol contains serious legal deficiencies that have not been resolved by the Commission
Many debates took place in the European Parliament around the legal deficiencies of the ACAA Protocol relating to the Israeli illegal settlements in the occupied Palestinian territory (OPT).
According to article 9 of the ACAA Protocol, the EU and Israel must each nominate a responsible authority which will certify the conformity of industrial products. Each party should state over which territory this authority is competent. The other party then needs to acknowledge in writing the competence of the authority.
The ACAA is a protocol to the EU-Israel Association Agreement. Therefore, it has the same territorial application as the Association Agreement, which in its article 83 states that the Agreement applies to the “State of Israel”. From an EU perspective, it is clear that the territory of Israel does not comprise the territories that have been placed under Israeli administration after 1967. However, in contravention of international law, Israel’s definition of its territory includes settlements in the OPT (Gaza and West Bank) and annexed territories (East Jerusalem and Golan Heights). The disputed interpretation of article 83 remains unresolved and neither Party has invoked the dispute settlement mechanism provided in Article 75 of the Association agreement to solve the problem.
The European Commission cannot acknowledge an Israeli responsible authority which is also responsible for the OPT. This would be in contravention of the EU treaties and EU’s obligation under international law not to recognize as lawful serious breaches of international law (i.e. illegal annexation of territory and creation of settlements in the occupied territory).[4] It would also be incompatible with the interim Association Agreement that the EU has signed with the Palestinian Liberation Organization (PLO), which recognises the competence of the PLO over the OPT[5].
When Commissioner De Gucht addressed the INTA committee on 3 July 2012, he restated the position of the European Commission that settlements are not part of Israel but failed to deliver the necessary adequate binding guarantees which would limit the scope of competence of the Israeli responsible authority to the internationally recognised territory of Israel[6]. A declaration of the Commission will not prevent Israel from implementing ACAA regarding the OPT. The EU must request from Israel to limit the territorial competence of the Israeli authority to Israel’s 1967 borders for the purpose of the ACAA agreement. This requires a re-opening of the negotiation of the ACAA agreement, something that the Commission and the Member States are reluctant to do.
As long as this substantial legal deficiency is not fixed, members of the INTA committee cannot possibly assent to the EU-Israel ACAA protocol.
It is worth noting that several MEPs use the argument that there is currently no pharmaceutical production in Israeli settlements and therefore this issue is not a “real” problem. However, it cannot be excluded that such production may take place in future. It is foreseen that the next annexes to be signed with Israel will concern cosmetics and toys, and at least in the field of cosmetics, we already know that Israeli companies operate in the settlements (Ahava).
Beyond and independently of this legal deficiency, the MEPs should postpone their vote on the ACAA agreement given the on-going deterioration of the human rights situation in Israel and the OPT[7]. Some arguments in this regard follow.
4.2 Need to ensure coherence of EU’s external action
Many MEPs (mainly the conservatives but also several MEPs from the liberal ALDE group) consider ACAA to be only a technical agreement that should be judged on its trade merits alone.
Yet postponing the vote on ACAA is a matter of respecting the principle of coherence of the EU’s external action (article 21 of the treaty of the UE), i.e. ensuring coherence between:
- The EU Common Foreign and Security Policy: cfr the regular condemnations by the EU of Israel’s violations of international human rights and humanitarian law. In the May 2012 Council conclusions on the MEPP, the EU condemned Israeli policies in the OPT which threaten to make a two state solution impossible[8]. In the EU statement following the EU-Israel Association Council meeting in July 2012, the EU also criticised Israel’s human rights record inside Israel[9]. In the EP resolution of 5 July 2012, the EP has expressed similar concerns regarding Israel’s activities in the OPT.
- The EU’s trade policy (i.e conduct of the EU’s trade, economic and technical relations with Israel).
This obligation of coherence was spelt out by the EP in its June 2011 resolution on democratisation.[10] In its resolution on the West Bank and Gaza on 5 July 2012, the EP also recommended that bilateral relations with Israel should be conducted taking into account Israel’s respect for IHL and human rights law.
By voting in favour of ACAA, the EP (as the EU has already done by signing ACAA) would send a clear message to Israel that business with the EU still goes on as usual, regardless of the deterioration in respect for IHL and human rights law. Over the last years, CSOs have raised concerns at the continued deepening of economic and technical co-operation between the EU and Israel despite the EU decision to freeze the upgrade of relations in 2009[11]. Indeed, several agreements have been signed since June 2009 with Israel (e.g. Agreement on Agricultural and Fishery products which has already led to a visible increase in bilateral trade in these sectors) or negotiation opened (EUROPOL). Most recently, during European Commission President Barroso’s visit to Israel in July 2012, an agreement to deepen scientific cooperation in the fields of energy between the EU and Israel has also been contemplated. This manifest reinforcement of relations with Israel undermines the EU’s declared stances as regards Israel’s violations of human rights and international humanitarian law. The EU’s recent decision at the Association Council meeting in July 2012 to offer Israel 60 new activities of cooperation in 15 different fields, including participation in several EU agencies, – even if based on the priorities of the current Action-Plan – only adds confusion to the message send out by the EU to Israel.
Through its assent vote on all trade agreements signed by the EU with third countries, the Lisbon Treaty has given the EP increased power to play a role in the EU’s foreign policy. It is about time that MEPs go beyond condemning Israel’s policy in the OPT and take their responsibility to translate their own positions (as expressed recently in the EP resolution on the West Bank and East Jerusalem of July 2012) into actions. If the other EU institutions have not done so, the EP should at least ensure some coherence in the EU’s external action by postponing its vote on ACAA. This would send to Israel an unequivocal message that people in Europe do not support business as usual given the current circumstances on the ground.
4.3 Need to apply the principle of positive conditionality which is at the core of EU-Israel relations
It is also a matter of respecting the principle of positive conditionality which guides the implementation by the EU of its bilateral relations with the countries in its periphery. Indeed, the European Neighbourhood Policy (which is the framework of relations between the EU and Israel as well as the other countries in the Mediterranean region and East of Europe) is based on an incentive-based approach which aims at supporting and giving advantages (including greater access to EU internal market) to countries that move quicker and further towards reform and respect for human rights. The EU and the EP have reaffirmed this principle in the context of the review of the ENP in 2010 and 2011.[12]
In its resolution of September 2008, the EP stated its belief that the upgrading of EU-Israel relations should be consistent with and linked to Israel’s compliance with all obligations under international law[13].
Based on this principle, and given the continued deterioration of the human rights situation in Israel and the OPT, the EP should postpone its vote on ACAA – which would strengthen the EU’s relations with Israel – until Israel complies with several fundamental international humanitarian law and human rights law standards, related both to the human rights situation inside Israel and Israel’s obligations towards the Palestinians living in the OPT.
4.4 While not an upgrading, ACAA is still an important strengthening of bilateral relations
MEPs are divided on whether voting in favour of the ACAA would represent an upgrade of EU-Israel relations. Many MEPs supporting ACAA (in the EPP, ECR, EFD and ALDE groups for example) consider that this is a technical agreement which is an implementation of the current Action Plan. They consider that ACAA does not represent any political upgrade of the EU-Israel relationship and is thus not in violation of EU position re the freezing of the upgrade. Others (mainly in the Greens and Socialist Party) think that it is an upgrade.
While technically speaking the entry into force of the ACAA Protocol is not an upgrading of EU-Israel relations[14], it is an important strengthening of the EU’s relations with Israel. As stated in the 2009 ENP progress report for Israel “when it [the ACAA] enters into force, this will represent Israel’s first entry into the Single Market”.[15] It will result in a much facilitated access of products from Israeli pharmaceutical companies into the European market. This would represent a commercial gain for Israeli companies that export to the EU[16] and a real enhancement of the trade partnership between the EU and Israel. Moreover, this should be seen in the context of the recent EU decision to offer Israel 60 new activities of cooperation in 15 different fields – which also purportedly fell within the scope of the current Action Plan, yet constituted an unconditional and significant strengthening of relations. In the context of ACAA, the EP can at least exercise its power as representative of European citizens to take a stand on the human rights situation, thus giving real effect to the EU’s positions.
4.5 Involvement of the Israeli pharmaceutical industry in the Occupation and the impact on the Palestinian industry
A new report by Who Profits* investigates the involvement of Israeli and multinational pharmaceutical industries in the occupation of Palestinian land. The report exposes a complex system of military and civilian laws and regulations that make the West Bank and the Gaza Strip a captive market for Israeli and International drug companies. The Palestinian market is held by binding economic agreements, subject to restrictions imposed by Israel, often in the name of security and quality control.
The dependency of the Palestinian market on the Israeli authorities has inflicted strong negative economic effects on the OPT. The politics of the occupation makes it extremely difficult for Palestinians to import raw materials and export pharmaceuticals. The Israeli Ministry of Health insisted that the import of drugs to the OPT would be allowed only for drugs registered in Israel, consequently blocking the neighbouring Arab markets. In East Jerusalem, Palestinian institutions are obligated to purchase goods produced by the occupier, due to the refusal to allow Palestinian pharmaceuticals into East Jerusalem hospitals and pharmacies. In the Gaza strip, which is under strict closure, Israel exercises control over all products that enter and leave the strip.
On the other side, all Israeli companies enjoy easy access to the Palestinian market, free of customs and checkpoint disturbances. The Israeli manufacturers and agents do not have to amend any of their products in order to sell them in the OPT. As a result, they can sell drugs that are not labelled in Arabic. Moreover, a differential pricing policy is applied by multinational companies worldwide according to the population’s socio-economic status. This policy, often called “price discrimination”, overlooks the situation in the OPT.
The situation has severe results for the local population, mainly due to higher prices of pharmaceutical products which limit the accessibility of basic healthcare.
For further details see the press release and the full report by Who Profits. For further information please contact Who Profits directly: whoprofits@gmail.com
- What is the timeline?
The INTA committee will vote on the 18th of September 2012, therefore MEPs should be lobbied ahead of this. If the outcome of the vote in INTA is positive, the issue will then be debated in the European Parliament plenary in the week of 22 October, and the European Parliament will make its final decision.
Each MEP will be able to vote according to their own conviction. So even if INTA votes in favour of ACAA, MEPs can still decide to block ACAA in Plenary in October.
- Position of the different political parties in the EP
The current balance of power is the following:
- The Socialists, the Greens and the European United Left are for the majority opposed to the agreement. Most of them support the political/human rights arguments.
- The three conservative groups (EPP, ECR and EFD) support the agreement. Their main arguments relate to the fact that it is only a technical agreement as Israeli pharmaceutical products can already access the EU market; ACAA should be judged on its trade benefits only; it is not an upgrading of EU-Israel relations; it is to the advantage of European citizens as they would have access to cheaper medicine in the context of economic recession in Europe; the EP gave its assent recently to a new agreement with Palestinians (cfr agreement re import of agricultural products) and increased ties with Israel would lead to increased leverage at the MEPP table.
- The group of the Liberals (ALDE), which is quite supportive of the Palestinian cause, is likely to vote in favour of ACAA as ALDE members consider that it is just a trade agreement.
Note that the EPP, ECR and EFD hold together 356 seats in the EP (out of 753). They therefore need the support of ALDE (85 seats) to adopt the agreement.
We should therefore particularly insist upon the members of:
– The Socialist group, in order to ensure that they will not split during the vote
– The Liberals, to convince them that trade cannot outweigh human rights and that the legal guarantees of Commissioner De Gucht are not satisfactory.
– The EPP, the ECR and the EFD might be a lost cause although some individual members of EPP might be convinced.
Note that most of the MEPs seemed to be convinced by Commissioner De Gucht’s intervention and that the legal problem (cfr 4.1 above) is solved. It is important to stress with MEPs that this is not the case and that the Commissioner did not provide adequate binding guarantees. When it comes to the political/human rights arguments, the majority of MEPs do not support these arguments and therefore we should push them forward, focusing on the ALDE and, although more challenging, on the EPP.
- What can CSOs do?
There are mainly two actions that would be needed to have an effective campaign on ACAA.
7.1 Write to your MEPs (see attached as Annex I a template letter that you can use)
– The advocacy should in the first phase primarily focus on the members of INTA. The main targets in INTA are the:
– Coordinators (they coordinate the position of their party):
– CASPARY, Daniel (EPP) daniel.caspary@europarl.europa.eu
– LANGE, Bernd (S&D) bernd.lange@europarl.europa.eu
– KAZAK, Metin (ALDE) metin.kazak@europarl.europa.eu
– JADOT, Yannick (Greens) yannick.jadot@europarl.europa.eu
– SCHOLZ, Helmut (GUE) helmut.scholtz@europarl.europa.eu
Shadow rapporteurs (they write a report summarising the issue for their party):
– ANDRIKIENĖ, Laima Liucija (EPP), laimaliucija.andrikiene@europarl.europa.eu
– SCHAAKE, Marietje (ALDE), marietje.schaake@europarl.europa.eu
– ZAHRADIL, Jan (ECR), jan.zahradil@europarl.europa.eu
– JADOT, Yannick (Greens) yannick.jadot@europarl.europa.eu
– SCHOLZ, Helmut (GUE) helmut.scholtz@europarl.europa.eu
INTA’s Chair and vice-chairs:
– MOREIRA, Vital: Chair (S&D) vital.moreira@europarl.europa.eu
– MUSCARDINI, Cristiana : Vice-Chair (ALDE) Cristiana.muscardini@europarl.europa.eu
– STURDY, Robert : Vice-Chair (ECR) Robert.sturdy@europarl.europa.eu
– ZALEWSKI, Paweł :Vice-Chair (ALDE) pawel.zalewski@europarl.europa.eu
– JADOT, Yannick : Vice-Chair (GREEN) yannick.jadot@europarl.europa.eu
As every vote counts, it is important also to lobby the other members of INTA.
If there are no MEPs from your country, it is still important to contact other MEPs as they can influence their party line and will have a say in the second stage through their vote in the EP plenary.
In the second stage (after the vote in INTA) the advocacy should broaden to all MEPs:
Full list of MEPs with their email addresses: http://www.europarl.europa.eu/meps/en/full-list.html.
You can also make a selection by country or political groups here: http://www.europarl.europa.eu/meps/en/search.html.
7.2 Get media attention to increase pressure on MEPs
As MEPs have so far already received several letters and e-mail, sending further letters might not be enough. It is important to try to get some attention in the mainstream media in your country (articles, op-ed) to increase the pressure on the MEPs.
We are currently drafting a media toolkit with a template press release, an op-ed and a background note for journalists. They will be available later in the week.
[1] Vital Moreira’s report is available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2F%2FEP%2F%2FNONSGML%2BCOMPARL%2BPE-483.808%2B01%2BDOC%2BPDF%2BV0%2F%2FEN
[2] Israel currently only participates in the European Framework Program for Research and the Competitiveness and Innovation Framework Program. Community programmes in which Israel has expressed an interest include CUSTOMS 2013, CULTURE 2007, SESAR, Intelligent Energy Europe part of the Competitiveness and Innovation framework Programme, Public Health program and MEDIA 2007.
[3] Note that the Protocol will also be pushed forward in the EP in the context of HORIZON 2020. Indeed, for Israel to be able to participate in Horizon 2020 (successor of the 7th Framework program on research), the Protocol needs to be adopted.
[4] Cfr ICJ Advisory Opinion on the Wall, available at http://www.icj-cij.org/docket/files/131/1671.pdf
[5] Cfr the Brita case, available at http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30db2e7d91e3fa6541e9a86cb35d130e0965.e34KaxiLc3qMb40Rch0SaxuKbx10text=&docid=72406&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=956085
[6] “Upon receipt of the Israeli notification of its responsible authority, the Commission will expressly state that acknowledgement is granted only on the basis that the territory covered by the responsible authority does not include the territories brought under Israeli administration in 1967”, speech of Commissioner de Gucht in INTA on 3 July 2012, available at http://www.europarl.europa.eu/sides/getDoc.dotype=CRE&reference=20120703&secondRef=ITEM-012&language=EN
[7] For an overview and update on IHL and human rights violations committed by Israel in the OPT and in its own territory, see the document accompanying this briefing on Israeli violations of IHL and human rights in the OPT and in Israel.
[8] The EU referred to the acceleration of settlements construction since the end of the 2010 moratorium and Israel’s recent decision regarding some outposts; continued evictions and house demolitions in the OPT; worsening living conditions and serious limitations to the economic development of the Palestinian population, in particular in Area C; the continued construction of the Wall in occupied land; the transfer of Bedouin communities; and the continued closure of the Gaza Strip. The resolution is available at http://www.europarl.europa.eu/sides/getDoc.dotype=TA&reference=P7-TA-2012-0298&language=EN&ring=B7-2012-0375
[9] The EU refers to discrimination towards the Palestinian Arab minority in Israel; Israel’s excessive recourse to administrative detention without charge; the attacks to freedom of association and expression and the attempts to challenge the independence of the Supreme Court. The statement is available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/132046.pdf
[10] Report of the Committee on Foreign Affairs on EU external policies in favour of democratisation, 16 June 2011 (A7-0231/2011). It states that “the objectives of the common commercial policy should be fully coordinated with the EU’s overall objectives; … that, pursuant to Article 207 of the Treaty on the Functioning of the European Union, the EU’s common commercial policy must be conducted “in the context of the principles and objectives of the Union’s external action”, and that, pursuant to Article 3 of the Treaty on European Union, it must contribute, inter alia, to sustainable development, the eradication of poverty and the protection of human rights”.
[11] In June 2009, following the Israeli war on Gaza in 2008-2009 and the lack of commitment of the new Netanyahu government towards a two state solution, the EU decided to freeze the upgrading of its relations with Israel.
[12] See Joint Communication of the EEAS and the Commission of May 2011 available at http://ec.europa.eu/world/enp/pdf/com_11_303_en.pdf; the Council conclusions available at http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/122917.pdf and European Parliament report of November at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2011-0576+0+DOC+XML+V0//EN
For further information on this principle and the need for the EU to apply positive conditionality to EU-Israel relations through the elaboration of benchmarks based on human rights law and IHL see EMHRN/APRODEV report p. 33-35 and 55-58 available at http://www.euromedrights.org/en/publications-en/emhrn-publications/emhrn-publications-2012/11425.html
[13] OJ C 295 E, 4.12.2009, p. 47.
[14] When freezing the upgrade, the EU stated that the current Action Plan remains the reference document for EU’s relations with Israel and therefore the EU’s bilateral cooperation can continue in all priority areas set out in that Action Plan[14]. The EU-Israel Action Plan of 2005 included a commitment to “accelerate progress towards bilateral negotiations leading to an ACAA”. Negotiations on ACAA were launched prior to the EU’s decision to freeze the upgrading of its relations with Israel and signed in May 2010 after the decision about freezing.
[15] The annual Progress Reports published by the EEAS analyse the implementation by the Neighbourhood Country of its Action Plan. Implementation of the ENP in 2009: Progress Report Israel, COM (2010) final, available at http://ec.europa.eu/world/enp/pdf/progress2010/sec10_520_en.pdf.
[16] According to some information coming from MEPs in favour of ACAA, the two-way trade in medicines between the EU and Israel amounted to €1.21 billion between 2008 and 2010. http://www.europolitics.info/social/europe-needs-access-to-high-quality-and-affordable-medicines-art326458-26.html. According to MEP Graham Watson (opposed to ACAA): “By removing the EU approval procedure for Israel’s pharmaceutical products the ACAA is removing a non-tariff trade barrier. The value of this trade incentive was estimated to be €1 billion in 2007”. We have no official estimates from the European Commission.
* Who Profits from the Occupation is a research project of the Coalition of Women for Peace dedicated to exposing the commercial involvement of Israeli and international companies in the continuing Israeli control over Palestinian and Syrian land.