Open Letter: Legal basis for a Regulation prohibiting trade with the unlawful Israeli settlements (Article 207 TFEU)
The following text is published in the category of “Open Letters and Statements“.
Her Excellency Ursula von der Leyen President of the European Commission
Her Excellency Kaja Kallas High Representative of the Union for Foreign Affairs and Security Policy / Vice-President of the European Commission
His Excellency Maroš Šefčovič Commissioner for Trade and Economic Security
Berlaymont Building, Rue de la Loi 200
B-1049 Brussels, Belgium
Re: Legal basis for a Regulation prohibiting trade with the unlawful Israeli settlements (Article 207 TFEU)
Dear President von der Leyen, dear High Representative Kallas, dear Commissioner Šefčovič,
We write as scholars of EU and international law to set out why Article 207 TFEU is the correct legal basis for a Regulation prohibiting trade with the unlawful Israeli settlements, not unanimous Council action under the Common Foreign and Security Policy (CFSP).Claims that such a prohibition can only be adopted through CFSP unanimity are inconsistent with CJEU case law on the determination of the appropriate legal basis, and are grounded in political rather than legal considerations. As the Commission prepares options on trade measures concerning the settlements ahead of the July Foreign Affairs Council, any resulting proposal for a Regulation should, for the reasons set out below, be based on Article 207 TFEU.
An international legal obligation
The 2024 Advisory Opinion of the International Court of Justice (ICJ) on the Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory (OPT) confirms the unlawful nature of Israel’s occupation of the OPT and elaborates on the duties of other States with respect to the recognition and facilitation of the occupation. In that regard, it should be noted that the EU Court of Justice has ruled that, in its acts, the EU is “bound to observe international law in its entirety” (Case C-366/10 Air Transport Association of America, EU:C:2011:864). Thus, the EU is bound by the duties of non-recognition and non-assistance that the ICJ confirmed apply to the occupation. The former entails the obligation to abstain “from any recognition of its illegal presence in the [OPT]” in its diplomatic relations with Israel; the latter requires States to abstain from dealings with Israel concerning the OPT that “may entrench its unlawful presence in the territory” and “to take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the [OPT]” (2024 Advisory Opinion, 278).
The CJEU has recognised this obligation of distinction as binding under EU law. In Brita (Case C-386/08, EU:C:2010:91), the Court held that products originating in the West Bank fall outside the territorial scope of the EU–Israel Association Agreement and therefore do not qualify for the preferential tariff treatment granted to goods originating in Israel. In Psagot (Case C-363/18, EU:C:2019:954), the Grand Chamber went further, holding that foodstuffs originating in territories occupied by Israel must bear an indication of that territory of origin, and, where they come from an Israeli settlement, an indication of that provenance, reasoning grounded in part on the relevance of international humanitarian law and the EU’s duty of non-recognition. Settlement goods are thus already treated by the Court as legally and territorially distinct from goods originating in Israel.
Whereas Union policy is generally consistent with the duty of non-recognition, it is failing regarding its obligation of non-assistance. Although the EU–Israel Association Agreement does not extend to goods originating in the unlawful settlements, as the Court confirmed in Brita, a recent investigation by the Global Echo Litigation Center based on an analysis of over 30,000 export documents, Importing Occupation (June 2026), found that nearly one in five agricultural shipments bound for the EU originated in Israeli settlements were being mislabelled as Israeli-origin in order to claim the preferential treatment reserved for goods genuinely falling within the Agreement’s scope. Even where correctly labelled, however, settlement goods are not barred from the EU market: they are merely denied preferential tariff treatment and otherwise enter freely under standard customs duties.The result is that EU trade policy continues, in practice, to facilitate the economic integration of the unlawful settlements into the Union market, precisely the outcome the ICJ’s non-assistance obligation requires the EU to prevent.
Legal feasibility under EU law
There is a growing consensus that the EU must take action to restrict trade with the unlawful Israeli settlements, prompting discussions on how to do so either through the Common Commercial Policy (CCP) or the CFSP. We submit that Article 207 TFEU, falling under the CCP, is the appropriate legal basis, for three reasons.
First, CJEU case law establishing the boundary between the CCP and CFSP legal bases supports the use of Article 207 TFEU. The Court has ruled that Article 207 TFEU must be used where the measure “relates specifically to international trade in that it is essentially intended to promote, facilitate or govern trade and has direct and immediate effects on trade” (Daiichi Sankyo, 51; Opinion 2/15 (Singapore Free Trade Agreement, 36). The relevant test under this case law therefore does not turn on whether a trade measure has a foreign-policymotivation (virtually every restrictive trade measure does). A measure prohibiting trade with the unlawful Israeli settlements satisfies that test: its operative content would regulate the import of goods and services, and any foreign-policy dimension, however salient politically, would be incidental to that content rather than constitutive of it. The ECJ judgment on the Partnership Agreements with Kazakhstan (Case C-244/17, Commission v Council (Kazakhstan), in which the Court found that the relevant measures had erroneously been adopted on CFSP provisions, confirms this approach.
Second, the contrary view (that a measure addressing trade with an occupying power’s settlements is necessarily a CFSP act) does not withstand scrutiny under this case law. If it did, virtually no trade restriction adopted in response to a violation of international law could ever proceed under Article 207 TFEU, since such measures are by their nature responses to conduct the EU considers unlawful. The Court’s case law asks a narrower and more precise question: not whether the measure has geopolitical significance, but whether its operative provisions govern trade. Settlement goods restrictions meet that narrower test.
Third, EU precedent supports the use of Article 207 TFEU for measures of this kind. EU measures adopted on a CCP legal basis, despite the presence of comparable foreign-policy elements, include the thematic prohibitions on products associated with forced labour, torture, and conflict minerals, as well as the Anti-Coercion Instrument. The regulations prohibiting Russian gas imports and increasing tariffs on Russian and Belarusian agricultural goods and fertiliser were likewise adopted on the basis of Article 207 TFEU. Article 207 TFEU is therefore the appropriate legal basis to prohibit EU trade with the unlawful Israeli settlements, consistent with both CJEU case law and recent legislative practice, and required for the realisation of the EU and its Member States’ obligations under international law.
Yours faithfully,
List of signatories:
1. Alberto Alemanno, Jean Monnet Professor of EU Law, HEC Paris
2. Ramses A. Wessel, Professor of European Law, University of Groningen
3. Ignacio Garcia Bercero, Senior Fellow Bruegel, Universidad Complutense Madrid/LLM UCL London
4. Christina Eckes, Professor of European Law, University of Amsterdam
5. Jacquelyn Veraldi, Postdoctoral Researcher, Central European University Democracy Institute (Budapest)
6. Alessandra Arcuri, Professor International Economic Law, Erasmus University Rotterdam
7. Carlos Espósito, Professor of Public International Law, Universidad Autónoma de Madrid
8. Peter Van Elsuwege, Professor of EU law, Ghent University
9. Cedric Ryngaert, Professor of Public International Law, Utrecht University
10. Kristina Irion, Associate Professor, University of Amsterdam
11. Davor Petrić, Senior Assistant & Postdoctoral Researcher, University of Zagreb
12. Andrew Forde, Assistant Professor – European Human Rights Law, Dublin City University (DCU)
13. Jeff King, Professor of Law, University College London
14. Laurent Pech, Professor of Law, University College Dublin
15. Sébastien Platon, Professor of Public Law, University of Bordeaux
16. Jaka Kukavica, Assistant Professor, University of Ljubljana
17. Yussef Al Tamimi, Assistant Professor of Law, Central European University
18. Marta Morvillo, Associate Professor, University of Amsterdam
19. Gesa Kübek, Assistant Professor, University of Groningen
20. Siobhan Airey, Assistant Professor, Erasmus University, Rotterdam
21. Thomas Verellen, Assistant Professor, Utrecht University
22. Julia Emtseva, Assistant Professor of Law, HEC Paris
23. Wouter Vandenhole, Professor, University of Antwerp
24. Michiel Bot, Associate Professor of Public Law and Governance, Tilburg Law School
25. Tomaso Ferrando, Professor of EU External Relations, University of Antwerp
26. François Dubuisson, Professor, Université libre de Bruxelles (ULB)
27. Clemens Kaupa, Assistant Professor, Vrije Universiteit Amsterdam
28. Miriam Heipertz, Doctoral Researcher, University of Amsterdam
29. Chiara Raucea, Assistant Professor of EU law, Tilburg University
30. Phillip Paiement, Professor of Law, Tilburg University
31. Elif Durmuş, Postdoctoral Researcher, University of Antwerp
32. Areg Navasartian Havani, Doctoral Researcher, Université libre de Bruxelles
33. Xavier Groussot, Professor of EU Law, Lund University
34. Salomon Stefan, Assistant Professor, University of Amsterdam
35. Marco Longobardo, Research Fellow, University of Westminster
36. Chantal Meloni, Professor of International Criminal Law, University of Milan
37. Federica Violi, Professor in International Law, Erasmus University Rotterdam
38. Anne Lagerwall, Professor of International Law, Université libre de Bruxelles
39. Martijn van den Brink, Assistant Professor, Leiden University
40. Alessandro Marcia, PhD Researcher and Lecturer of EU Law, Maastricht University
41. Federico Casolari, Full Professor of EU Law, Università di Bologna
42. Guido Bellenghi, PhD researcher, Maastricht University
43. Gaetano Ancona, PhD candidate, Maastricht University
44. Matthias Goldmann, Professor of International Law, EBS University for Business and Law
45. Corten Olivier, Professor, Université libre de Bruxelles
46. Henet Cédric, Visiting Professor, UCLouvain
47. Antoine Duval, Senior Researcher, ASSER Institute/University of Amsterdam
48. Esther Van Schagen, Assistant Professor, Utrecht University
49. Alessandra Spadaro, Assistant Professor in Public International Law, Utrecht University
50. Adam Lantz, Jurist / Lawyer, Uppsala University
51. Giulia Raimondo, Senior Researcher, University of Fribourg
52. Francesca Cerulli, Postdoctoral Researcher in International Law, University of Florence
53. Michiel Van de Kasteelen, Drs., Leiden University
54. Juan Santos Vara, Full Professor of international law, University of Salamanca
55. Andrea Maria Pelliconi, Dr, University of Southampton
56. Katarzyna, Szepelak, Dr, Kraków University of Economics
57. Pedro R. Borges de Carvalho, PhD candidate, KU Leuven
58. Pietro Gargiulo, Full Professor of International Law, University of Teramo
59. Anna W Ghavanini, Professor, University of Gothenburg
60. Plixavra, Vogiatzoglou, Postdoctoral researcher, University of Amsterdam
61. Prachi Agarwal, PhD researcher, University of Amsterdam
62. Mattia Lorenzo Mozzaglia, PhD Candidate, Università degli Studi di Roma “La Sapienza”
63. Edoardo Martino, Associate Professor, University of Amsterdam
64. James Moran, Associate Senior Fellow, Centre for European Policy Studies, Brussels
65. Timothy Jacob-Owens, Early Career Fellow, University of Edinburgh
66. Tommaso Amico di Meane, Assistant Professor, Esade
67. Mario Prost, Professor of International Law, Université libre de Bruxelles
68. Anna Marhold, Dr, Leiden Law School
69. Luca Pasquet, Assistant Professor in Public International Law, Utrecht University
70. Casimiro Antonio Nigro, Business Law Senior Lecturer, University of Leeds, School of Law
71. Mateus Correia de Carvalho, Doctoral Researcher, European University Institute
72. Ysaline Reid, PhD Researcher, Universiteit Antwerpen
73. Skirmantas Bikelis, Senior researcher, Lithuanian Centre for Social Sciences
74. Olia Kanevskaia, Dr, Utrecht University
75. Michele Gigli, PhD Researcher in European Law, European University Institute
76. Celia Challet, Assistant Professor, Université Catholique de Lille
77. Andreas Piperides, Dr. Public International Law, JCU
78. Isola Clara, Macchia, PhD Researcher, European University Institute
79. Andrea Longo, Assistant Professor, NOVA University of Lisbon, NOVA School of Law
80. Stéphanie Caligara, Lawyer, Graduate Institute of International Studies and Development
81. Felicitas Benziger, Dr, University College Cork
82. Eduard Soler i Lecha, Associate Professor, Universitat Autònoma de Barcelona
83. Daria Davitti, Associate Professor of Public International Law, Lund University
84. Karolina Zbytniewska, PhD, CEU Democracy Institute; Warsaw University
85. Alexandru Soroiu, Lecturer, Maastricht University
86. Christian Dadomo, Former senior lecturer in EU law, (Formerly at) University of the West of England, Bristol
87. Samuel Carwy, PhD Candidate, Stockholm University
You can sign the open letter here.
Editorial note: The list of signatories will be updated until the Open Letter is closed.