The association and liberalisation agreements concluded between the EU and Morocco are not applicable to Western Sahara as this territory cannot be considered to be part of the Kingdom of Morocco, the Court of Justice of the EU concluded in a ruling on Wednesday 21 December.
This ruling (case C-104/16P) marks the end of legal proceedings that have provoked strong diplomatic tension between the EU and Rabat. The action was brought by the Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario), which challenged the implementation in the territory of Western Sahara of the agreement between the EU and Morocco providing for reciprocal liberalisation measures on agricultural products, processed agricultural products and fish and fishery products.
Polisario’s first success was in having the General Court of the EU form the view in 2015 that, on the one hand, the above-mentioned agreement should not apply in the Western Sahara (see EUROPE 11450), and, on the other, the Front Polisario should be considered a representative of the Sahrawi people and thus was able to challenge international agreements (see EUROPE 11451). With the support of several member states, the Council lodged an appeal against this ruling with the Court of Justice of the EU (see EUROPE 11623) with mixed results.
Today, following an expedited procedure at the request of the Council, the Court upheld the appeal and set aside the General Court ruling. However, it did so in the way suggested by Advocate General Melchior Wathelet on 13 September of this year (see EUROPE 11623) by stating that the liberalisation agreement, quite simply, could not apply to the territory of Western Sahara.
The Court based its decision in particular on the rules of international law applicable to relations between the EU and Morocco and international practice. It said that the main error of the General Court was in failing to draw the consequences of the status of Western Sahara under international law.
Firstly, it cannot be held that the term “territory of the Kingdom of Morocco”, which defines the territorial scope of the association and liberalisation agreements, encompasses Western Sahara. The reason is that the territory of Western Sahara is guaranteed a separate and distinct status under the Charter of the United Nations and the principle of self-determination of peoples.
Thus, the Court took the view that specific mention of the territory ought to have been made in the EU-Morocco agreements if they were to apply there. The people of that territory must be regarded as a “third party” which may be affected by the implementation of the liberalisation agreement. In the present case, it is not apparent that that people consented to the agreement being applied to Western Sahara, the Court stated.
It should be noted that the Court did not rule on the legitimacy of the Front Polisario’s being considered the representative of the Sahrawi people. It only took the view that the Front Polisario lacked standing to act in this case since it was challenging an agreement which could not, in fact, apply to the territory it claimed to be the representative.
Lastly, while some products originating in Western Sahara have been imported into the EU under the agreements in question, it has not been established that such a practice is the result of an agreement between the parties to amend the interpretation of the territorial scope of those agreements. If, however, that were to be the case, the EU would be guilty of implementing the agreements in a manner incompatible with the principles of self-determination and of the relative effect of treaties as well as the requirement of good faith under international law, the Court noted.
This ruling should inform the General Court in another case (T-180/14) in which the Front Polisario is challenging the conclusion by the EU and Morocco of a protocol setting fishing opportunities.
The implications of this ruling on relations between the EU and Morocco remain to be seen, even though the liberalisation agreement remains valid, as EU High Representative for Foreign Affairs and Security Policy Federica Mogherini and Moroccan Foreign Minister Salahddine Mezouar stated in a joint press release. They noted only, firstly, that the Front Polisario action had been found inadmissible and, secondly, that the General Court ruling had been overturned as the Council of the EU had wanted. The two parties confirmed the strength of the privileged partnership they share and intend to work actively to develop it in areas of mutual interest, they said.
Green MEP José Bové (France) welcomed the Court ruling, believing it will bring an end to the “deception of European governments, and in particular the French government, siding with Morocco against the Sahrawi people and representatives”. “It goes without saying that this ruling will have an impact diplomatically and that it must be followed up with the banning of imports from Morocco of products from Western Sahara”, a measure that must “also apply to fish caught off the coast of Western Sahara by Moroccan and European Union vessels”, he said in a press release. (Original version in French by Jan Kordys)