Above: Saharawis in Smara, occupied Western Sahara demanding their socio-economic rights. April 2016. 

The Advocate General of the Court of Justice of the EU has this morning, 13 Sept 2016, published his Opinion on the case of EU-Morocco free trade extending into Western Sahara. In it, Advocate General Melchior Wathelet considers that Western Sahara is not part of Morocco's territory and, therefore, neither the EU-Morocco Association Agreement, nor the Liberalisation Agreement are applicable to it.

The Advocate General, a senior legal advisor to the EU Court, thus issues an Opinion that surpasses the General Court's Decision of 10 December 2015, which annulled EU-Morocco free trade as applied in Western Sahara on the basis that the EU Council had failed to fulfill its obligation to thoroughly examine the effects of such trade on the rights of the people living in the parts of Western Sahara that are under Moroccan control. The Advocate General's Opinion now states that Western Sahara is simply not part of Morocco in the first place, and that agreements with Morocco therefore do not apply to the Non-Self-Governing Territory.

Download the press release from the Advocate General in English (and French), and his complete 70-page opinion. 

Accordingly, the Advocate General proposes the Court to set aside the judgment of the General Court, on the basis that the case-applicant, Frente Polisario - the internationally recognised (and UN approved) political representation of the people of Western Sahara - is not directly affected. The Court as such had originally recognised the Frente Polisario as an affected party when it comes to Western Sahara - but since these agreements cannot and should not cover Western Sahara, Polisario is not affected, according to the Advocate General now.

Should the Court later this year, in its final decision, conclude that the above-mentioned agreements are applicable to Western Sahara and that Polisario is entitled to challenge the decision, then the 10 December 2015 judgment of partially annulling the agreement in Western Sahara ought to be held, the Advocate General argues.

The main argument of the EU institutions underpinning their choice to appeal, was that the Court's conclusion from last year had to be dismissed since Polisario was said to have no legal standing in the EU Court. The Advocate General, in other words, completely dismisses that question altogether, underlining that the agreement has no application in Western Sahara, irrespective of whether Polisario has a legal standing or not. 

The Advocate General furthermore notes, "Polisario Front does not appear to be the sole representative of the people of Western Sahara in international relations because it is conceivable that Spain, the former colonial power of that territory, still has responsibilities in that regard". This echoes the opinion of the national High Court in Spain recently.

It should be noted that the Advocate General's point of departure is that EU agreements do not apply to Western Sahara. In practice, however, it seems that the EU is doing precisely that.

Half of the EU approved fish processing plants in Morocco, are in fact located in the parts of Western Sahara that Morocco has occupied since 1975. The list of EU approved producers of fishery products - an updated version was just published four days ago - includes a significant number of companies that are located in Western Sahara.

Another interesting development is taking place this week. In a day or two from now, a chemical tanker full of fish oil from Western Sahara is set to arrive in the EU with fish oil from Western Sahara. It is the best documented shipment of fisheries products, and surely the most valuable one, into the EU since the 10 December 2015 decision. 

The 10 December 2015 decision to not allow Western Sahara agricultural and fisheries products to be part of the EU-Morocco trade deal seems to be totally neglected by the EU institutions. Neither the EU, Morocco, the exporters or the importers have taken measures to respect the decision. The EU institutions did not request a suspension of the decision of the Court, and have continued as if nothing has changed. 

Western Sahara Resource Watch welcomes the Opinion of the Advocate General. “We hope this process will guide the EU to be a principled supporter of international law and human rights - not only in the cases in which it serves the EU's own interests. We call on the Commission to take immediate action to make sure no products from Western Sahara enter the Union”, stated Sara Eyckmans of Western Sahara Resource Watch. Eyckmans underlined that the EU gets a chance to act and to show its respect for the Court already this week, with the arrival of the giant cargo of fish oil in France.

On 10 December last year, the General Court of the CJEU had concluded that the EU-Morocco Free Trade Agreement ought to be annulled in so far as it applied into Western Sahara - a decision that the EU Council decided to appeal. The original case was brought on in February 2013 by the Frente Polisario, seeking the annulment of the free trade deal between the EU and Morocco, as it extended into the parts of Western Sahara that Morocco holds under military occupation.