27 Fall 2021 understood as“the fact not of preventing, but of making it more difficult for a professional to carry out an activity contributing to the production, distribution or consumption of wealth by means of a particular denigration or various pressures on potential clients.”5 This analysis is identical to that made by the Criminal Chamber of the Court of Cassation in its decision of September 28, 2004.6 On the other hand, the call for a boycott of products imported from a country is prohibited by Articles 23 and 24 of the Law of July 29, 1881, on the freedom of the press, which makes it a criminal offense to provoke discrimination based on belonging to a nation. Article 24(8) provides that “Those who (…) have provoked discrimination (...) against a person or group of persons on the grounds (...) of their membership (...) of a particular nation (…), shall be punished by one year’s imprisonment and a fine of 45,000 euros, or by one of these two penalties only.” Although this law has been amended several times since its enactment, it remains in force to the present day. In addition to this body of law, French justice ministers have instructed prosecutors since 2010 to use antidiscrimination laws to prosecute BDS activists. In a circular dated February 12, 2010,7 the Minister of Justice, Mrs. Michèle Alliot-Marie, indicated that any call for a boycott of a state’s products was likely to constitute an offense of “public provocation to discrimination” and asked public prosecutors to ensure“firm and consistent” repression of such actions. She called on prosecutors to systematically and specifically prosecute calls to boycott Israeli products. This circular was completed and clarified by a circular from her successor, Mr. Michel Mercier, dated May 15, 2012.8 In doing so, the French public authorities have been a forerunner in the criminalization of BDS activists: other countries have adopted similar measures, mostly with a purely declarative and non-normative scope, such as in Germany in 2019, where the Parliament adopted a resolution qualifying the BDS movement as antisemitic; as well as in Spain and the UK. Call for a boycott as a “means of expressing protesting opinions,” according to the European Court of Human Rights In the Baldassi case, the applicants were part of the “Collectif Palestine 68,”which had implemented the BDS campaign locally. In 2009 and May 2010, they filled up three shopping carts with products which they believed to originate from Israel, displayed them in a hypermarket in full view of customers, and distributed leaflets. In 2010, they also presented a petition for the signature of the hypermarket’s customers, urging it to stop selling products imported from Israel. The Colmar public prosecutor brought the applicants to the Mulhouse criminal court, in particular for having provoked discrimination based on the origin and membership of a group of people, an offense provided for in Article 24(8) of the Law of July 29, 1881. In two judgments of December 15, 2011, the Mulhouse criminal court discharged the applicants. But in 2013, the Colmar Court of Appeal overturned these acquittals and declared the applicants guilty of the criminal offense of provocation to discrimination.9 Based on a recent ruling of the French Supreme Court (“Court of Cassation”),10 the Court of Appeal considered that, by their action, the applicants had caused discrimination against products coming from Israel. They incited customers not to buy goods because of the origin of the producers and suppliers from a specific nation, Israel, and this 5. Paris Court of Appeal, June 16, 2008. 6. Cass. Crim. Sept. 28, 2004, no. 03-87.450: Mr.Willem, mayor of the municipality of Séclin, had announced his intention to ask the municipality’s catering services to stop buying products from the State of Israel. In so doing, according to the French courts, he encouraged them to take account of the origin of these products and, consequently, to hinder the economic activity of Israeli producers, calling for a boycott to be imposed because of their association with the State of Israel. This case was referred to the European Court of Human Rights, which found that such a sentence was compatible with Article 10 of Convention (Willem v. France, no. 10883/05, ECtHR, July 16, 2009). 7. Circular of the Ministry of Justice of Feb. 12, 2010, addressed to the public prosecutors at the courts of appeal, CRIM-AP no. 09-900-A4. 8. Circular of the Ministry of Justice of May 15, 2012, CRIMAP no. 2012-034-A4. 9. Colmar Court of Appeal, Nov. 27, 2013, no. 01122 and 01129 (two judgments). 10. Cass. Crim. May 22, 2012, no. 10-88.315: according to the Court of Cassation, the dissemination of statements urging people to stop buying products from the State of Israel in order to protest against the policy of the government of that country against the Palestinian people, incites people to take account of the origin of these products and, consequently, constitutes the offense of incitement to racial discrimination punishable by Article 24(8) of the Law of July 29, 1881 on freedom of the press.
RkJQdWJsaXNoZXIy MjgzNzA=