60 No. 73 JUSTICE “preventing the potential consequences ... of an unexpected cancellation or withdrawal of their participation by the French authorities…” This was a wise precaution, as on October 16, 2024, the French authorities informed SOGENA of their decision “to approve the participation of the Israeli delegations ... without stands or exhibition of materials.” By authorizing the presence of “Israeli delegations,” the French authorities hoped to avoid the charge of discrimination. However, upon further consideration, this precaution seemed insufficient since Israeli companies were still not allowed to display their products. SOGENA softened its position only two days later, stating that Israeli companies “could have an exhibition stand provided that their products are not used in military operations in Gaza and Lebanon.”21 At that point, it seemed that the risk of discrimination had been avoided, since the opposition to the participation by the Israeli companies was not based on their nationality, but rather the use of their equipment in military operations in Gaza and Lebanon. This reason was explained on October 21, 2024 when SOGENA transmitted the letter received from the Secretary-General for Defense and National Security to Israeli companies, which specified that It has never been a question of banning Israeli companies from participating in the EURONAVAL exhibition. Those who wish to do so can obviously attend. However, regarding the exhibition of Israeli military equipment, and in line with the position of French diplomacy to achieve peace and stability in Gaza and Lebanon, manufacturers of equipment used or potentially used in operations concerning these territories are not authorized. On the other hand, companies whose equipment is not intended to be used in Gaza and Lebanon may have stands at the exhibition.22 However, it seems that the French authorities overlooked the fact that other exhibitors, whose equipment was used in Gaza or Lebanon, were not prohibited from exhibiting. This was noted by the Court, which indeed was not convinced by these successive precautions, as a fundamental issue of discrimination remained: the French authorities did not ban “American, German, or even French companies (whose equipment) was used in operations in Gaza and Lebanon.”23 The Court concluded that “the condition of non-use of equipment in Gaza and Lebanon was never imposed on these companies. There is, therefore, a manifest discrimination based on the nationality of the companies involved.” The Court also noted that the amendment excluding SOGENA’s liability in the event of cancellation or withdrawal of their participation at the request of the French authorities had only been imposed on Israeli companies, which was also discriminatory. These “discriminations based on nationality” that only affect Israeli companies are unlawful and constitute a criminal offense.24 Such an offense is aggravated “when the discriminatory refusal ... is committed in a public venue,” which is the case with SOGENA's exhibition. The Court determined that it was SOGENA’s responsibility to immediately put an end to the harm caused by the unlawful discrimination. The Court could have limited itself to this reason alone, which was sufficient to justify its decision to suspend the enforcement of the discriminatory measures. However, it also sought to base its decision on the necessity of preventing imminent harm, and thus took into consideration the loss of investments mobilized by the Israeli plaintiff company and the expected profits from the exhibition. The decision was rendered on October 30, 2024, five days before the opening of the Exhibition, allowing Israeli companies to participate. However, the Prefect, who had raised the issue of the Court of Commerce’s lack of jurisdiction, did not accept the decision and filed an appeal which has not yet been adjudicated. This appeal, which had no effect on the EURONAVAL exhibition where Israeli companies were able to participate, is intended to deprive the Commercial Court of any jurisdiction over future exhibitions. This suggests the enduring intent of the government to ostracize Israeli entities. n Marc Lévy was formerly an attorney at the Paris and Brussels Bars. He founded the Legal Commission of LICRA, a French NGO combating racism and antisemitism. 21. Information from October 18 by SOGENA, as stated in the summary of facts in the order. 22. Copy of the letter sent to SOGENA by the SecretaryGeneral for Defense and National Security on October 18, as mentioned in the summary of facts in the order. 23. Supra note 17. 24. Supra note 10, art. 225-2 of the French Penal Code.
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