Judges at the European Court of Justice (ECJ) decided in a judgement made on Tuesday 27 February in Case C-266/16 that the Fisheries Agreement concluded between the EU and Morocco is valid in so far as it is not applicable to Western Sahara and its adjacent waters. The judges are therefore not following conclusions made by Advocate General Melchior Wathelet on Wednesday 10 January (see EUROPE 11936).
Western Sahara is a territory in Africa. The greater part of Western Sahara is occupied by Morocco, while a smaller part in the east, is controlled by the Front Polisario, a movement which seeks to achieve independence for Western Sahara. This movement is considered legitimate by the United Nations and Morocco’s sovereignty over the Western Sahara is not recognised by the international community.
The EU and Morocco have concluded several agreements between them, such as an association agreement in 1996, a fisheries agreement in 2006 and a liberalisation agreement for processed agricultural products, fish and fisheries products in 2012 (see EUROPE 10570).
On 10 December 2015, the General Court of the European Union annulled the decision concluding this latter agreement on 8 March 2012 (see EUROPE 11450). The Court subsequently contradicted the General Court and approved the agreement on 21 December 2016, judging that this stipulated that this was not applicable to Western Sahara (see EUROPE 11694). These decisions, however, did not have any connection to the fisheries agreement in this regard.
The British based Western Sahara Campaign (WSC) brought the matter to the British courts in an effort to ensure that the recognition of the fisheries agreement and legal acts for its implementation were invalid, given that they applied to the territory and waters of the Western Sahara. The High Court of Justice then filed a preliminary ruling to the ECJ, calling on it to establish whether an association could contravene the validity of Union acts for non-respect of international law and whether the fisheries agreement is valid.
On the second question, indicating that the fisheries agreement is applicable to the territory of Morocco and therefore only the geographical area where this state exercises its sovereign competencies, the Court believes the agreement could not apply to the territory of Western Sahara without violating international law, particularly with regard to the principle of self-determination. This agreement does not apply to the adjacent waters of Western Sahara either because they are not covered by the sovereignty or jurisdiction of Morocco.
Finally, the judges considered that the scope of the territorial application of the protocol to the fisheries agreement, which mentions “the Moroccan fishing area" on several occasions, excludes the adjacent waters of the territory of the Western Sahara.
Consequently, given that neither the fisheries agreement or joint protocol to this agreement apply to these same waters, ECJ judges conclude that these legal acts are valid.
On the first question, given that the Union has not, in this regard, violated international law, the Court considers that there is no case to respond to.
This judgement is in continuity with that of 2016. With this judgement, the judges contradict conclusions arrived at by the Advocate General, who took on-board similar arguments to those used in the decision of the General Court on 10 December 2015 mentioned above. Although it is slightly different, their reasons are in this regard, part of the continuity with those on 21 December 2016 (see EUROPE 11694).
“Victory of the Sahraouis”. The WSC welcomes the ruling made by the Court and in a press release dated this Tuesday, refers to a “victory of the Sahraouis”. They add that, “this judgement clarifies the fact that European trawlers should immediately cease to fish in the waters of the Western Sahara”. In response to a question during a press conference, Catherine Rey, the spokesperson for the Commission, asserted that the Commission was respecting and examining the ruling made by the ECJ.
Mogherini and Bourita determined to maintain cooperation. EU High Representative for Foreign Affairs and Security Policy Federica Mogherini, and the Moroccan Minister for Foreign Affairs and Cooperation, Nasser Bourita, emphasised in joint press release that they had taken note of the judgement. Without going into details of this judgement, the joint press release explained that, “The two parties remain determined to maintain their co-operation in the fisheries domain”. They add that, “in this regard, they express their determination to negotiate instruments necessary for the fisheries partnership”.
The two parties, “point out that the spirit of close overriding the process for adapting the agricultural agreement, created a precious reservoir of trust for deepening the partnership”. The declaration also points out that the EU and Morocco have agreed to maintain stability in their trade relations.
Mogherini and Bourita also reaffirmed their support for the efforts made by the UN Secretary-General to reach a permanent political solution on the question of Western Sahara. (Original version in French by Lucas Tripoteau and Camille-Cerise Gessant)