Is it appropriate for the European Commission to change an agreement that is under judicial review?
On 7 April 2016, the European Commission formally decided to amend the Fisheries Protocol between the European Union and Morocco.
The Commission introduced two changes. First, the number and tonnage of vessels authorized to fish demersal species such as hake, was reviewed. Two types of vessels are allowed to fish for demersal species; trawlers and longliners. But as the licenses for longliners were under-used, the Moroccan side proposed a slight alteration; instead of allowing 11 longliners that could each fish a maximum of 150 gross tonnage (GT), the Moroccan authorities suggested to allow 5 longliners with a maximum 150 GT and 4 longliners with a maximum of 200 GT. This results in a slight decrease of 100 GT in the total of demersal catches by longliner vessels (from 1,650 GT to 1,550 GT). The European Commission accepted the proposal.
The second change to the Protocol consists of an increase in catches accorded to industrial pelagic trawlers. The allowed quota in sardines/sardinella has been augmented from 33% to 37%. This increase is based on scientific information by the Moroccan National Institute for Aquatic Research (INRH).
The two changes to the Protocol affect fishing activity in occupied Western Sahara, as both demersal and pelagic species are allowed to be caught south of the 29°N latitude. This only covers the southernmost waters of Morocco, but all of Western Sahara’s territorial waters.
As a result, the Protocol has been under judicial review by the Court of Justice of the European Union (CJEU) since March 2014. At that time, the Frente Polisario – the liberation movement in Western Sahara – brought a case seeking the annulment of the fish deal with Morocco as it allowed for EU fishing in the territorial waters of Western Sahara. Large parts of Western Sahara have been illegally and brutally occupied by Morocco since 1975. The International Court of Justice established in 1975 that there were no ties of sovereignty between Morocco and Western Sahara, and that the people of Western Sahara had a right to self-determination. This conclusion has been echoed in over a hundred of UN Resolutions, and no State in the world recognises Morocco's claim to the territory. The UN treats Western Sahara as a case of unfinished decolonisation.
In December 2015, the CJEU annulled the EU-Morocco Free Trade Agreement as it was applied to Western Sahara.
The question thus arises whether it is appropriate for the Commission to make changes to an agreement that is under review by the Court of Justice of the European Union. WSRW has written to the Commission, requesting clarifications.
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