Jed Odermatt

On 29 September 2021 the European Union’s General Court annulled Council decisions approving trade and fisheries agreements concluded between the European Union and the Kingdom of Morocco.  The judgment is the latest in an ongoing saga in which the EU’s trade agreements with Morocco have been challenged before the EU courts on the grounds that they violate international law. These agriculture and fishing agreements apply to the territory and territorial waters of Western Sahara, a non-self-governing territory occupied by Morocco, without the consent of the people of Western Sahara.

In 2019, the Council adopted a decision approving the conclusion of a sustainable fisheries partnership agreement (FPA). The preamble of that decision refers to previous judgments of the EU Court of Justice (such as Western Sahara Campaign UK): “the Court held that neither the Agreement nor the Implementation Protocol thereto apply to the waters adjacent to the territory of Western Sahara.” This Council Decision refers to steps taken by the European Commission and European External Action Service to assess whether the FPA would be for the “benefit” of the people of Western Sahara, and in compliance with the CJEU’s previous judgements:

“In view of the considerations set out in the Court of Justice’s judgment, the Commission, together with the European External Action Service, took all reasonable and feasible measures in the current context to properly involve the people concerned in order to ascertain their consent. Extensive consultations were carried out in Western Sahara and in the Kingdom of Morocco, and the socioeconomic and political actors who participated in the consultations were clearly in favour of concluding the Fisheries Agreement. However, the Polisario Front and some other parties did not accept to take part in the consultation process.” [para 11]

In a chapter on The EU’s economic engagement with Western Sahara: The Front Polisario and Western Sahara Campaign UK cases, I argued that this study and consultation carried out by the European Commission suffered serious flaws.[1] The Commission’s Report concluded that “most people now living in Western Sahara are very much in favour of the extension of tariff preferences to products from Western Sahara under the EU-Morocco Association Agreement.” However, when analysing whether the people of Western Sahara would ‘benefit’ from the Agreement, the Commission examined the question almost entirely in economic terms. It downplayed the serious concern that the agreement would have the effect of cementing the status quo and consolidating Morocco’s illegal occupation of the territory. Importantly, Front Polisario the internationally-recognized movement representing the people of Western Sahara, rejected the amendment to the EU-Morocco agreements extending tariff preferences to products from Western Sahara.

Judgment

The case was brought by Front Polisario, challenging the Council Decisions approving the EU-Morocco trade and fisheries agreements. Front Polisario argued that by concluding these agreements without the consent of the Sahrawi people, the Council infringed its obligation to respect international law. In its previous cases, the EU Court had found Western Sahara has a separate and distinct status in international law, and the EU-Morocco agreements, insofar they apply to goods originating in the territory of Western Sahara, require the consent of its people. In the present case, the General Court found that the ‘consultations’ conducted by the EU institutions could not be regarded as expressing the consent of the people of Western Sahara. It found that the Council:

“did not take sufficient account of all the relevant elements relating to the situation in Western Sahara and wrongly considered that it had a margin of appreciation in deciding whether to comply with the requirement that the people of that territory must express their consent to the application of the disputed agreement to it, as a third party…”

The Court found that the people of Western Sahara should be considered as a “third party” within the meaning of the principle of the relative effect of treaties (Article 34 of the Vienna Convention on the Law of Treaties), and thus the agreements could not impose obligations on them without their consent.

Next steps

Following the judgment, Morocco’s Foreign Minister Nasser Bourita and the EU’s High Representative for Foreign Affairs, Josep Borrell said in a joint statement that they would “take necessary measures to ensure the legal framework guaranteeing the continuation and stability of trade between the EU and Morocco”. The judgment will be appealed, and the General Court delayed the effects of its judgment pending such appeal. My analysis of the previous Front Polisario and  Western Sahara Campaign UK cases showed how the EU Court seeks to strike a careful balance. On the one hand, it sought to ensure that EU institutions exercise their power in accordance with international law. On the other hand, these judgments kept the international agreements with Morocco intact, preventing potential political fallout of annulling an agreement with the EU’s close neighbour and partner. It is possible that, on appeal, the Court will similarly find a way to maintain the legal effects of the EU-Morocco Agreements while maintaining the appearance that the EU respects international law. For instance, the Court may decide on appeal that the EU institutions had a margin of discretion when deciding how to obtain the consent of the people of Western Sahara.

Jed Odermatt, City Law School

For more information about research on the EU and international law at City Law School, visit the Institute for the Study of European Law andthe International Law and Affairs Group

[1] Commission Staff Working Document, Report on benefits for the people of Western Sahara and public consultation on extending tariff preferences to products from Western Sahara, Accompanying the document Proposal for a Council decision on the conclusion of an agreement in the form of an exchange of letters between the European Union and the Kingdom of Morocco on amending Protocols 1 and 4 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part.

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