Hi Hadie,

 

Thanks for the update.

Roy is on vacation today, but he will be here tomorrow and we could discuss his position then.

In any event, I will forward to him the information below.

 

Best regards,

Noa

 

 

 

Hi Noa

 

We understand that Roy and Tal had a discussion this morning about Psagot and the appropriateness of reaching out to Lawfare Project at the current stage. We'd be grateful if you could update us as to Roy's position.

 

Below is a summary of yesterday's inter-ministerial call about the upcoming CJEU hearing:

 

·         MFA: The decision was made not to ask Psagot to withdraw until after the elections. It is a sensitive matter and reaction of Psagot is unpredictable – we are particularly wary of negative media coverage during the election campaign. There hasn't been any real change in position as we were aware that the CJEU hearing would likely take place before the elections.  We recently spoke informally with Brooke to test the water and got the impression that currently she is not convinced that the case should be withdrawn. It will be possible to exert pressure after the elections and after the hearing.

 

·         MoJ – The benefit in withdrawing before the hearing is that the positions of Commission and the states who submitted written observations will not be publicly articulated.

 

·         MoE: There is no guarantee of being able to persuade the parties to withdraw. We should decide if this is a big enough of an economic issue and see of there is a way to soften the potential effect of a judgment. We had drafted TPs for sending to other states to encourage intervention. We should look into this again.  

 

·         MFA: We looked into this previously and concluded that the process could be damaging. There are various diplomatic considerations – diplomacy is not an endless resource. We considered that even "friendly" countries would not take a position against those of the Commission and France.

 

·         MoE: We  are concerned about the potential harm to industry and consider that it is worthwhile to try to put forward a different position.

 

·         MoJ – cautioned that the legal position is not straightforward. It is because we consider the case to be weak that the focus has been on trying to withdraw the reference.  It would be helpful to give Brooke details of those countries which have enacted enforcement measures.

 

·         MoE enquired about the position regarding the diplomatic talks with France.

 

·         MFA: Held talks with the French Minister of Economy and Agriculture about a year ago. They were very clear with regard to their position on the labelling policy. We will review again internally but believe that their position was made clear to us then and will not have changed. Will hold internal discussions about the question of approaching other states to intervene and circulate the draft TPs for comments.

 

Our view is that ultimately it is a diplomatic decision for MFA. We can't see any concrete litigation risk in approaching other states. Minor risk that it could possibly stir up unhelpful oral submissions. However, the ikelihood is that there is insufficient time for states to react - whether positively or negatively.

 

Please update us regarding the potential approach to Lawfare Project.

 

Kind regards

 

Hadie

 

 

HADIE COHEN Foreign& Counter-Terrorism Litigation Department

Department of the Deputy Attorney General (international Law)

Ministry of Justice State of Israel

Office: + 972 (0)3 763 4141

Fax: +972 (0)2 646 7799