New Court Judgement in Barcelona

On January 13, 2016, the plenary session of the City Council of Sant Quirze del Vallès —a residential city of 19,549 inhabitants— passed a decision committing itself to the boycott campaign against Israel.

The examination of the public records showed that after the preliminary recitals denouncing Israel, and a series of equally adamant reiterations —boycott activism is of course, not famed for its intellectual rigour— of breaches of International Law, the decision included a commitment of the City Council to not signing any contract, covenant or agreement with Israeli public bodies, companies or organizations, at least, until Israel would acknowledge the right of self-determination of the Palestinian people, and abide by International Law, nor with companies and organizations outside Israel, that are involved, cooperate or obtain benefits from the alleged violation of International Law or Human Rights in the Palestinian territories, explicitly targeting Israeli multinational companies Elbit Systems and Eden Springs, North-Americans Hewlett-Packard, Caterpillar and British G4S.

The boycott decision left oddly unexplored any Human Right abuses in any other country in the Middle East remained. However, it ordered that technical procedures in public procurement were to be adapted to exclude such companies from the purchase of good and the hiring of services.

The City Council was granted the BDS-approved seal that distinguished the city as a “Free Space of Israeli Apartheid”, that was to be displayed in the city’s website and in its publications. Finally, the Council agreed to engage and to foster cooperation with the BDS movement in order to ensure the proper enforcement of the boycott decision. As usual, certificates of the boycott resolution would be issued and sent to the Government, the Regional Council, Congress, the European Parliament, the Embassy of Israel, and the Palestinian Diplomatic Mission in Madrid.

Finding the above less than compelling, I filed an action on constitutional protection of civil liberties on behalf of my client claiming that any individual or company engaged in business with Israel, or simply with the most tenuous relation with Israel, would fall under the scope of the guidelines of the boycott campaign, being liable to the boycott decision. My brief added that would the boycott remain unenforced, it would be enough to dissuade any company that traded with Israel from entering any public procurement proceeding, affecting the principles of non-discrimination and competition that are preeminent in the national Act of Public Sector Procurement, and in the EU procurement directives, and the WTO Government Procurement Agreement (GPA).

On June 1, 2016, the Court number 4 of Barcelona issued a writ of injunction, ordering the City Council to refrain from enforcing the boycott decision as it had detected a possible infringement of the principle of equality before the Law, and breaches of the rights of not to being discriminated against for any reason, and of foreigners residents to enjoy in Spain the same public freedoms than nationals. The writ also stated the existence of discrimination in public procurement.

One year since the boycott decision was passed by the City Council, on January 13, 2017, the Public Court number 4 of Barcelona noticed me the final judgement, annulling the boycott against Israel. The Court regarded discriminatory and in breach of the principle of equality before the Law the blatant commitment of the City Council to abstain itself from covenants, contracts or agreements with Israeli companies on the sole base of where they are chartered, while also targeting other companies or entities that might fall under the indistinct assumption of collaboration, involvement or reaping an economic benefit from the so-called violation of International Law and Human Rights in the occupied Palestinian territory or the Golan Heights,  leaving undetermined the procedures and authorities that would have to pass judgement on such criteria.

The City Council now has a term of fifteen business days to file an appeal before the High Court of Catalonia in Barcelona.

Court Judgement in Barcelona.

The Public Court nº 3 of Barcelona issued a judgement on November 30, 2016, annulling the boycott decision passed by the City Council of Sant Adrià de Besòs —a city of 35,386 inhabitants in the metropolitan area of Barcelona. This judgement may act as a deterrent to a boycott decision on Barcelona and in other capital cities, a goal that is actively pursued by the boycott campaign in Spain.

This boycott decision proclaimed the city a ‘Free Space from Israeli Apartheid’, affiliated the Council with the Boycott, Divestment and Sanctions (BDS) campaign against Israeli, and committed the City Council to refrain from signing any contract, agreement or covenant with Israeli public bodies, companies or organizations, lest they would formally adhere to the objectives of the boycott campaign. This last boycott commitment targeted as well —here without any exemption clause— companies, institutions and organizations that might be involved, cooperate or obtain economic benefits from the alleged violations of International Law and Human Rights in the ‘Palestinian territories’ or the occupied Golan.

Finally, for the sake of clarity of purpose, the City Council agreed to engage in cooperation with the BDS movement, to explicitly ensure the proper implementation of the boycott decision; elevating thus, the BDS activists to the category of arbiters of the anti-Israeli policies of the City Council.

The judgement of this Public Court of Barcelona elaborated on several of my legal arguments, rendering the boycott illegal and without effect as in breach of the most fundamental civil liberties.

- The legal reasoning states that public bodies have a duty of restraint and political neutrality, and are not to be used for the political interest of councillors.

This argument is far-reaching as it can be argued in other cases where the wording of the boycott does not include provisions that preclude Israeli companies or companies that engage in business with Israel, from public procurement; as it prevents city councils from transferring particularly inflammatory views to their own cities, avoiding the use of local councils to broadcast radical statements.

- The boycott sets unconstitutional limitations to academic freedom as it subjects every school, college, researcher, teacher, lecturer or scholar who holds a specific position on the Arab-Israeli conflict that does not match the objectives of the boycott campaign, to exclusion from any City Council funds or activities, in addition to being subjected to a decisive public campaign that will undoubtedly affect their reputation and career.

- The boycott sets a restraint on freedom of speech. The endorsement of the boycott campaign against Israel by a public body seeks to control, select and determine the free circulation of ideas in the marketplace.

- The boycott is in breach of cultural, artistic and technical freedom. Any person or organization that holds or advocates a position contrary to the objectives of the BDB campaign will see limitations set to their free will to hold any opinion, and to the right to disclose it or not. The disparity of opinions is a sine qua non condition to guarantee pluralism and the need for the free exchange of ideas that is the foundation of a democratic society. A boycott policy seeks to control, select or punish the public circulation of ideas. In doing so, it violates freedom of speech.

- Freedom of opinion and freedom of religion. Right not to be forced to disclose opinions, religion or beliefs.

The boycott decision by setting a policy of abstaining from any political, commercial, agricultural, educational, cultural, sporting or security agreement, contract or covenant with public institutions, companies and organizations until Israel recognizes the right of the Palestinian people and abides by International Law, sets a restraint which has the effect of preventing, dissuading or restricting the right to hold ideas or opinions without interference.

Both the guidelines and the exemption clause of the boycott campaign that grants relief to companies, institutions and organizations that abide by the objectives of the campaign, ask for an effort to investigate and disclose personal views, opinions and political inclinations, a task explicitly prohibited both in the Constitution of Spain and in a number of international conventions of Human Rights.

- Violation of the right to equality before the Law. The boycott is sheer discrimination that is blatantly in breach of the national Law on public procurement, the Directives of the European Union, and the International Agreements on the matter.

First Appeal Decision against the boycott to Israel

Last Thursday, the High Court of Asturias —a region in Northern Spain, bathed in the Bay of Biscay, where boycott activists are influential in several city councils– dismissed in very clear terms, the appeal submitted by the City Council of Langreo against a successful Court action brought by Angel Mas —President of ACOM. 

This is first appeal decision outside France –where economic boycotts are a felony.

The High Court of Asturias by rejecting the appeal confirms a previous judgement from a lower tribunal that had ruled the boycott decision illegal due to the lack of powers of the City Council neither to decree an international boycott nor to alter the European Directive and the national law on public procurement, and for blatant breaches of non-discrimination principles. The High Court has accepted the direct action of the petitioner, acknowledging our standing, expanding a previous constitutional doctrine on the matter that allowed any Jewish individual to sue for defamation addressed to any Jew or Jewish community, to bring any action based on discrimination or slander against Israelis.

The appellate decision agreed on the lack of power of a city council to order an international or domestic boycott, nullifying each paragraph of the boycott decision as they altogether shaped a decision by a public body that was in breach of the principles of equality before the law and non-discrimination.

As the lawyer who presented before the Court, the case against the appellant, it is a happy time. Not only the legal arguments of the High Court endorsed my brief, the decision is both persuasive and conclusive. Public bodies cannot enact the boycott against Israel without disembowelling the core civil liberties that shield us against the abuse of office. As the first ruling by a High Court in this matter, the impact of this appeal on city councils that may entertain the notion of boycotting Israel, or companies engaged in trade with Israel, could be remarkable. Councillors should now pay heed to the consequences of passing discriminatory policies or guidelines.