The General Court of the European Union (CJEU) has ruled in favour of the Polisario Front’s separatists, who accuse the EU and Morocco of not having consulted them before concluding two agreements that affect the territory of Western Sahara, in two judgments handed down on Wednesday 29 September (cases T-279, 344 and 356/19). The Court annulled the two agreements between the EU and Morocco concluded in 2019 on trade and fisheries.
In 2016, the EU Court of Justice ruled that the EU-Morocco trade agreement does not apply to Western Sahara in view of its separate and distinct status under the UN Charter, and as the area is not explicitly mentioned in the agreement (see EUROPE 11694/14). In 2018, the Court made the same judgment regarding the existing fisheries agreement between the EU and Morocco (see EUROPE 11970/3).
Therefore, the EU and Morocco had renegotiated and concluded these two agreements to include the mention of Western Sahara in 2019 (see EUROPE 12178/34).
In its judgment of 29 September, the General Court recognises, first, the capacity of the Polisario Front to act before the EU judge, and second, annuls the association agreement between the EU and Morocco as well as the partnership agreement in the field of sustainable fishing.
The EU and Morocco have failed to obtain the consent of the Saharan people to conclude these two agreements that affect the inhabitants. The Court states that the consultations with the populations concerned implemented “could not result in the expression of the consent of the people of Western Sahara”.
Holding that consent is a condition for the validity of the agreements, the Court decided to annul them. However, a period of two months is provided for before the judgments take effect, in order to allow time for any appeal to be lodged. “Their cancellation with immediate effect is likely to have serious consequences for the Union’s external action”, it is stated.
Having taken note of these judgements, the High Representative of the Union for Foreign Affairs, Josep Borrell, and the Moroccan Minister of Foreign Affairs, Nasser Bourita, declared that they wanted to continue the cooperation between the two parties. “We will take the necessary steps to ensure the legal framework that guarantees the continuation and stability of trade relations between the European Union and the Kingdom of Morocco”, they said in a joint statement.
The General Confederation of Moroccan Enterprises (CGEM) regretted the Court’s decision. “This judgment could disadvantage products and producers from the Sahara, and all European and international companies that have invested there, mainly in green projects, now find their investments threatened”, said its President, Chakib Alj, in Brussels, where he met with the President of BusinessEurope, Pierre Gattaz, and the European Commissioner for Enlargement, Olivér Várhelyi, as well as MEPs.
See the Court’s judgments (in French): https://bit.ly/3idkGDJ (trade) and https://bit.ly/3ASWMEX (fisheries) (Original version in French by Léa Marchal)