How can the European Union uphold the judgment of the Court of Justice of the European Union (CJEU), stopping all imports from agricultural and fish products from Western Sahara into the EU? 

That is the question that follows from a statement of the Dutch government, asserting that it is unknown whether tomatoes from Western Sahara have been imported into the Netherlands, after the aforementioned judgment of 10 December 2015.

The Dutch government has been very clear on not including Western Sahara in deals with Morocco. This both applies to the EU trade agreement, as well as on its bilateral relations with Morocco. 

But honoring the decision by the Court of Justice from 10 December 2015, excluding the territory of Western Sahara from the EU-Moroccan trade pact, seems impossible, even for the Dutch. 

“The Netherlands does not have any information about the origin of Morocco’s export tomatoes. Morocco doesn’t have a system to register origin within Morocco, and Morocco does not differentiate between Morocco and the Western Sahara”, the Dutch Ministry of Foreign Affairs wrote on 20 April to Stichting Zelfbeschikking West-Sahara, who had inquired whether import was still taking place post-judgment.

On 10 December 2015, the CJEU issued a judgment in the case of the Saharawi liberation movement, the Frente Polisario, against the Council of the European Union, over the so-called EU-Morocco agriculture agreement. That agreement entered into force in October 2012, and allowed for increased volumes of agricultural and fisheries products originating in Morocco to enter the Union. But the agreement was so vague in terms of its territorial application that it allowed for the area of Western Sahara that has been under Moroccan occupation since 1975, to be included in the deal. As a result, products covered by the deal that originated in Western Sahara, not in Morocco, could enter the Union as if they were from Morocco.

The CJEU put a stop to that practice, by cancelling the agreement in its application in Western Sahara.

The EU institutions are thus facing the obligation to make sure that the judgment is implemented. But the answer given by the Dutch government questions the EU’s ability to do so.