The Image of European Union Law in Bilateral Relations.

• Author: Pardo, Sharon

TABLE OF CONTENTS I. INTRODUCTION 149 II. KEY CHARACTERISTICS OF COMPARATIVE LAW IN ISRAEL 153 A. The Historical and Theoretical Development of Comparative Law 153 B. Israel's Judicial Culture 164 C. The Use of Comparative Tools by Israeli Justices 172 III. A BRIEF OVERVIEW OF ISRAEL-EU RELATIONS 182 A. The 1995 EC-Israel Euro-Mediterranean Association Agreement 184 B. The EU-Israel Rules of Origin Dispute 186 C. The European Neighbourhood Policy 190 D. Key Trade, Services, and Financial Agreements 192 E. Upgrading and Updating Israeli-EU Relations 194 F. Prohibiting EU Funds to Israeli Entities in the Occupied Territories 196 G. Israel and the EU as the Ultimate "Others"? 196 IV. PRELIMINARY DESCRIPTIVE AND EMPIRICAL FINDINGS 197 V. CONCLUSION 205 "I always support the need to use European comparative law. I think it is an omission that there are only few jurists who are assisted by the developing legal system in the European [continent]." (1) I. INTRODUCTION

One cannot deny that comparative law plays an important role in Israel. Empirical studies conducted over the past few decades, which examine the identity and origins of foreign-law sources referenced by Israel's Supreme Court (ISC), found that judges routinely abandon or ignore the sources drawn from English law, preferring American-law sources instead. A number of factors can be attributed to this trend, which include, but are not limited to: the independent development of Israeli law since the establishment of the State, particularly following the severance of relations with the British legal system; changing perceptions regarding legal education; Israel's constitutional revolution; and a perceptible shift towards principles rooted in civil law. In addition, global changes, such as the development of the internet, easier access to legal materials, and the emergence of an international judicial dialogue affected the legal world in general and the perception of the judicial role in it in particular. Amongst all this, in Europe a new supranational political entity developed, which in its sixty-nine years of existence has evolved into a major actor affecting virtually all the areas of its citizens' lives--the European Union (EU).

The EU's influence on Israel is evident in numerous respects, and it appears that Israel regards itself as a key partner in many of the EU's programs and activities. (2) European influence is expressed in the daily lives of Israel's citizens and residents, in Israeli-EU relations, and in the bilateral relations between Israel and each one of the EU's member states. From the early days of its independence, the first immigrants to the Jewish state came, inter alia, from many European countries. (3) The large number of European Jewish immigrants, most of whom were Holocaust survivors, made themselves and their descendants into potential citizens of the EU, especially following the 2004 and 2007 enlargements of the EU. Today, in wake of the amendments introduced into the Spanish nationality law (2015; Law 12/2015) and the Portuguese "Law on Nationality" (2015), Jewish "laws of return," which offered citizenship to descendants of Sephardic Jews who were forced to flee the Inquisition five centuries ago, more than 50 percent of Israel's citizens (4) can be defined as "Rooted Cosmopolitans"--these are Israelis who hold or are entitled to citizenship in one of the EU's twenty-seven member states or in the United Kingdom (UK). (5)

Apart from the aspect of potential citizenship, which has come to dominate the public discourse in Israel, economics and culture play a part in Israel's perceived stake in the EU. The EU today is the largest trading partner of Israel. In addition to the strictly economic implications of trade, trading activities have legal and normative derivatives, including regulatory approval and/or mutual recognition (e.g., Agreements on Conformity Assessment and Acceptance). (6) harmonization of rules and best practices, and compliance with norms and principles undertaken within the framework of European and international covenants and organizations, such as General Agreements on Trade and Services (GATs) and the Organization for Economic Co-Operation and Development (OECD). Israel is a member of various European programs, institutions, and organizations and maintains special status in the EU's research and development programs. Given the EU's vast network of formal and informal relations, Israel is engaged with the EU in joint and reciprocal activity, ranging from the promotion of shared democratic values (7) to participation in shared professional sports leagues and the Eurovision song contest.

Israel's legal and legislative environment has traditionally relied heavily on the laws of European countries, whether directly or indirectly, in light of the fact that, during the founding years of the country, many Israeli judges and legal scholars were born in European countries and some were educated in Europe. (8) Despite intermittent disputes, over the years Israel and the EU have developed a deep and a comprehensive relationship. Against the backdrop of studies that have examined both the ISC's predisposition to refer to foreign law in its rulings and the enhancement of Israel-EU economic and cultural ties, this Study seeks to examine the convergence between Israeli and EU jurisprudence.

The Study's review of the rulings of Israel's Supreme Court justices, which will be analyzed and discussed in the sequel Article, attests to the normative importance the Israeli Court bestows on the sources of EU law. One prominent example is found in the Noach case, (9) which discusses the legality of force-feeding geese. In his comprehensive opinion, Judge Grunis dedicates, for the first time in ISC history, an entire chapter in the ruling entitled "The Legal Situation in Europe." (10) Another example, which is found in one of the most important constitutional rulings of the past years, known as the Privatization of Prisons case, (11) also testifies to the importance of European law. In this case, the Court President Justice Beinisch noted that there was no discussion in either EU courts or the European Court of Human Rights (ECHR) on the issue of the constitutionality of prison privatization. (12) This reference to the absence of such discussion in EU law shows that, on topical and innovative issues, the Supreme Court justices refer to the experience of other legal systems, including that of the EU. The president also notes that, in certain cases, even the Union's legal system failed to cope with similar challenges to those facing the Israeli Court. The Supreme Court justices often make passing references to the sources of EU law as a "window into what occurs in [legal] systems abroad." However, a careful reading of these references indicates that sometimes, even though the reference appears incidental, it is used in a discreet way to strengthen domestic law. In addition, as will be illuminated in the sequel Article, precisely because of the development of EU legislation and case law, Israeli Supreme Court justices devote entire chapters in their rulings to a comparative review of European law and Israeli law. (13)

The Study examines, for the first time, through integrated empirical-descriptive research, the status of EU law in ISC rulings. Unlike previous studies on the effects of foreign law that focus on the "leading" legal systems--Anglo-American common law and continental civil law--this Article offers a new perspective on how a supranational legal system serves as a source of reference for the interpretation and criticism of Israeli law in myriad areas. Through a specifically constructed database, the Study, as laid out in the two Articles, covers all rulings and decisions made during the period of time between 1980--the first time the ISC referred to any normative source of EU law--and 2016. This database, which will be described in detail in the sequel Article, includes all ISC references to the normative sources of EU law, including treaties, regulations, directives, and the rulings of the Court of Justice of the European Union (CJEU). The Study uses the methodology known in academic literature as Citation Analysis to examine each reference. The Study focuses solely on supranational EU law rather than the diffusion of norms drawn from the national laws of individual EU member states. It demonstrates that the status of EU law has risen in ISC deliberations. In its current rulings, some of which have far-reaching implications, the ISC refers to various sources of EU law, while drawing interpretive and conceptual inspiration from the EU's legal system.

In the field of public law, constitutional law cases are found to be the most frequently referenced. In the field of private law, the Article finds that EU law is referenced most frequently in intellectual property cases. The overall trend indicates that, while the increase in the number of rulings referencing sources of EU law is positive and relatively stable over time, the positive qualitative increase in the scope of the references in each period examined is more pronounced--positive with a higher trajectory of growth. The compilation of data presented in the Study indicates that interpretive and conceptual approaches reflected in Israeli jurisprudence are edging toward ideas rooted in the European legal system.

Part II of this Article begins with a brief presentation of the historical and theoretical development of comparative legal research. It outlines the ideas underlying this discipline and traces the rise of its prestige in recent decades in light of growing global judicial discourse. The Part then describes how the judicial culture has developed in Israel. The Part discusses the judicial culture's impact on Israeli legislation, as well as the impact of the justices' origins on their rulings, as articulated in the local research literature. Finally, Part II...