21 June 2018, the EU Commission briefed the European Parliament’s International Trade Committee on the trade arrangement for Western Sahara it has negotiated with Morocco. The hearing was open to the public and can be viewed here. 

The debate comes in the context of the EU Court of Justice in 2016 concluding that trade agreements with Morocco cannot include Western Sahara, unless with the explicit consent of the people of the territory. 

It was the first hearing of Parliament and Commission since the latter had actually presented the proposed trade deal on 11 June. Instead of having sought the consent of the Western Sahara people, the Commission’s proposal has been negotiated with Morocco and subsequently consulted with a dozen Moroccan organisations, state-owned companies and parliamentarians elected in Moroccan elections. 

The representatives from the Commission argued in the hearing that local stakeholders in Western Sahara had been consulted, and that a trade agreement with Morocco covering the territory is to the benefit of the population (the Commission's arguments are explained further below).

The meeting was chaired and opened by German S&D politician Bernd Lange, leading the INTA Committee. Lange underlined that his committee is “not happy” with the developments regarding the EU’s trade plans for Western Sahara. Lange stated that the committee “felt not to be properly informed”, and that the Commission’s lack of proper consultation with the parliament risks leading to a difficult relationship between the EU institutions. Lange stated that INTA will set up a fact-finding mission to Morocco and Western Sahara.

Parliamentarians from all political groups expressed critical views of the Commission’s proposal.

Klaus Buchner (German MEP of the Greens/EFA) wondered how addressing the “population” of the territory addresses the Court’s requirement to act in accordance with the wishes of the “people”. Buchner also underlined that 94 of the 112 individuals or organisations supposedly “consulted” according to the Commission have in fact never been contacted by the Commission at all, or refused taking part in a consultation process that the Court did not ask for. On the other hand, Buchner stated, organisations that don't speak for the people have been consulted. Buchner also stressed that many Saharawis – being in jail or oppressed – cannot get their voice in public domain. 

Anne-Marie Mineur (Dutch MEP of GUE/NGL) wondered why the Commission has not given the people a voice, instead of this ‘token consultation’, underlining that this will not be in line with the CJEU judgment. 

Jytte Guteland (Swedish MEP of S&D) wondered why the Commission is still focusing so much on the “benefits” to the “local population” instead of on the aspect of “consent”. After all, the Court states specifically that the aspect of benefits is not relevant. Guteland also stressed that not all of Western Sahara is currently under occupation, and that the Saharawis living elsewhere are not represented. She expressed that she "is worried” that the EU’s involvement will undermine the UN peace process, and also lead to insecurity for European businesses. 

Florent Marcellesi (Spanish MEP of the Greens/EFA) wondered how an agreement can be struck with Western Sahara without even going to the territory, without any trade statistics or any competence. Marcellesi also expressed his shock that there are talks of benefits without any statistics to back such claims. Most importantly, he underlined that the informal talk that Polisario requested from the EU Commission earlier this year was “elevated to a formal meeting” - this “hardy helps in creating trust”, Marcellesi stated. He questioned what competence the EU and Morocco, as an occupying power, have to carry out such talks. Marcellesi also asked whether the Commission could provide information on who actually owns the companies in Western Sahara that stand to benefit from the agreement - as the Commission is silent on that aspect. He stressed that a new CJEU opinion needs to be made of the proposed agreement before it can be voted on in Parliament. “You told us for 15 years that your legal services consider the trade agreement valid - the CJEU has stated clearly that it is not”, Marcellesi stated. 

Helmut Scholz (German MEP of GUE/NGL) asked the Commission why they have not gone to Western Sahara to speak with the people, because "they do not belong to Morocco". Also, Mr Scholz stated, why not have an agreement without Western Sahara, and only with Morocco - as e.g. the United States has. "Aren't all other follow-up processes much more complicated", he questioned.

Several parliamentarians stressed the lack of transparency by the Commission vis-à-vis the Parliament (e.g. Emmanuel Maurel (France, S&D). Tiziana Beghin (Italy, EFDD) stressed that the Commission’s approach was not in line with the judgment, as there was no consent. Beghin also requested the Commission to clean up the consultation list as it includes organisations which have never been heard at all. She doubted the accuracy of the benefit analysis in terms of employment, as the agricultural workers in Western Sahara are seasonal workers from Morocco - not from Western Sahara.

Salvatore Cicu (Italian MEP of EPP) questioned whether the Commission today is progressing in line with judgment of the CJEU? “Are the hearings that were held sufficient and in line with the ruling of the CJEU? Because if not, then we're going to see more appeals and we're going to have the legitimacy of our actions questioned”, he stressed. 

The Commission’s explanations

The EU Commission was represented by Ms Sabine Henzler (Director international and general affairs of DG TAXUD), who explained that the Commission had a twofold aim with the modification of the EU-Morocco Trade Protocols: first, to create a legal basis for trade in products from Western Sahara, and second, in doing so, to ensure that Western Sahara exports to the EU help create socio-economic development of Western Sahara and the wider Maghreb region. 

Ms Henzler highlighted six elements from the proposal, that she considered important.
1. The proposal, according to the Commission, is in line with the ruling of the EU Court of Justice and international law. To support that claim, the Commission refers to its consultation of a wide range of stakeholders, including Polisario, and the thorough analysis of the benefits of the proposal for the economy of Western Sahara. 
[Note from WSRW: The CJEU has never stated the need for a "consultation" from "stakeholders", but rather the "consent" of the "people" - see article 106 of the Judgment.Polisario has never taken part in a consultation, as its correspondence with the EU External Action Service demonstrates. Of all groups listed as "consulted stakeholders" in annex to the Commission's document accompanying the trade proposal, 94 have never been consulted, either because they refused to take part or because they were never invited. Only 18 individuals and organisations have effectively been consulted by the Commission - all of those are Moroccan. ]
2. The draft proposal will not prejudice the EU's position on Western Sahara, nor the status of Western Sahara in the UN process. 
[Note from WSRW: Would the EU sign treaties with other occupying powers in the neighbourhood of the EU, incuding settlements or occupied lands, and use the same argument?]
3. The Commission argues that granting preferences to products from Western Sahara will be beneficial for the local population, as it would have a positive impact on the development of the Western Sahara economy and the business and investment climate in the territory. The consultation, the Commission claims, showed strong grassroots support.
[Note from WSRW: The aspect of benefits has been labeled irrelevant by the CJEU Judgment article 106. Considering that 94 of the 112 organisations enlisted in the Annex to the Commission’s proposal have never been consulted, but have explicitly condemned the EU’s plans and asked to never be part of a consultation process, it is factually incorrect to claim that the support is “strong”. Furthermore, and by its own admission, the Commission cannot present any statistics to back its claim that the agreement will be beneficial to Western Sahara. 
4. The Commission says it held a wide consultation exercise, which demonstrated broad support for the proposal. Those who objected the proposal, the Commission says, had no arguments relating to the agreement itself, but on the future political status of Western Sahara. "Thus, and I would like to underline this, their objections are based on political, rather than socio-economic reasons. And I would like to highlight what we are discussing here is a commercial policy instrument, is a trade agreement. What is striking is that the groups who rejected the extension of the tariff preferences to the Western Sahara were however not in a position to identify any adverse effects of these preferences for Western Sahara". "For the Commission, there is no contradiction between supporting economic development in the Western Sahara, and the free determination of its future status under the UN-led process. On the contrary, it can support it".
[Note from WSRW: It is odd to hear the Commission accuse others of pursuing political purpose, when the sole basis for this proposal is a political consideration: how to relaunch the stressed and damaged relations with Morocco. The proposal fails to meet the basic requirement set out by the CJEU; the consent of the people of Western Sahara. Accusing groups that point to this legal problem of having political motives, is a classic case of projection.]
5. No new preferences will be created.
[Note from WSRW: From what WSRW understands, this is incorrect. The proposal from the Commission includes an opening to create preferences for derivates of phosphate rock from Western Sahara, an industry generally blacklisted by the international investor community for being in violation of international law]
6. The proposal is important for the EU-Moroccan partnership, in economic, political, social and migration areas. It is important for relaunching the dialogue with Morocco.
[Note from WSRW: The political argument for building political partnerships with Morocco is irrelevant for the legality of entering into a business arrangement with Morocco including Western Sahara]

Ms Henzler stated that the Commission suggest concluding this agreement with Morocco, as it is the only practical way. There are no other institutions or bodies that could ensure preferential treatment or collaboration with the EU customs authorities, according to the Commission. And, Ms Henzler added, both parties will meet at least once a year to evaluate whether there is a need for improvements for the Western Sahara population.
[Note from WSRW: it is not a valid argument to enter into an agreement with Morocco just because they are occupying Western Sahara. Note also that the annual meetings Ms Henzler refers to - in the framework of a so-called Joint Committee - will be closed-door meetings of the EU with Morocco - again; the people of Western Sahara will not even have a voice in this arrangement affecting their territory.]

Mr Fernando Perrau de Pinninck (DG TAXUD, unit for trade facilitation, rules of origin and international coordination) presented a report on benefits to Western Sahara. He boasted having a variety of sources for an analysis of the benefits to Western Sahara: internal sources, EU delegations, consultations with interested parties and Moroccan sources, etc. The report focused on agriculture, fisheries and phosphates. The agricultural sector consists today of 6,500 exploitations, resulting in 35,000 jobs. There are plans to expand production for up to 5 times. There is an impact on water resources, but new techniques will minimize the use of those underground resources, Mr Perrau de Pinninck argued. The fish processing sector consists of 141 establishments authorised to export to the EU. A production worth an estimated €450 million. Exports to the EU are worth an annual €100 to €200 million. There are no raw phosphate exports from Western Sahara to the EU, but there are planned investments to produce fertilsers and phosphoric acid "that could be destined to the European Union". The economic impact of the agreement is summarised as enabling exports of agricultural and fisheries products from Western Sahara to the EU under preferential treatment, thus maintaining/restoring jobs. The agreement would also prompt investments that would result in job creation and economic development. Having no agreement would disadvantage Western Sahara as compared to neighbouring countries, said Mr Perrau de Pinninck, adding that future investments in the affected sectors could be compromised. Economic activity would then also be displaced to Morocco proper, Mr Perrau de Pinninck concluded.

Mr Vincent Piket of the EU External Action Service stated that the CJEU does not say that it is impossible to include Western Sahara in the EU trade agreement with Morocco, but it needs to be made explicit and meet certain conditions. The first condition is regarding international law and the UN process. "Whatever we do, in the framework of this negotiation and the framework of this agreement, shall not prejudice that UN process. It shall not favour one party or the other party in the framework of the negotiations, and it shall not prejudice the outcome of the UN process". This is formulated explicitly in the proposal, Mr Piket stated. The second condition relates to consent of the people of Western Sahara, and is - dixit Mr Piket - the more complex matter because the UN process has not been concluded. "To whom to we speak?" The EEAS thus chose three tracks: first, the elected representatives from Western Sahara in the Parliament of Morocco and the regional councils and chambers of the concerned regions. The second major track was the consultation with the Polisario Front ("there were a couple of topics on the agenda but 90% of the time was spent on the discussion about the agriculture amendment. The key-question presented by me was wither Polisario favoured this approach. The answer was negative for primarily political reasons that they can explain better than I." And a third category has been a whole array of non-state actors: local organisations, human rights NGOs socio-economic bodies, etc. at meetings in Rabat and Brussels. Again the question was whether the interlocutors favoured our approach and the conclusion was positive. A number of interlocutors rejected the invitation, but those we spoke with were very positive. The EEAS is convinced that this broad approach that it has spoken with the people it needed to speak with in relation to consent.