Polisario has a case, but it should be pursued when the time is right, Court implies.
On 8 February this year, the Court of Justice of the European Union issued its ruling on case T 376/18, initiated by Polisario in June 2018. Polisario had sought the annulment of the decision of the EU Council to mandate the European Commission to start negotiations with Morocco for a new Fisheries Agreement that would expressly apply to the waters of Western Sahara.
The Court has declared Polisario's request inadmissible, as it is not directly affected by the Council's decision. The Court argues in paragraphs 26-29 that the sole purpose of the Council decision is to designate who will lead the negotiations. As such, the Court says, it only produces legal effects for the EU institutions themselves - not for Polisario, which is thus not directly affected by this particular decision.
The Court however does reaffirm in paragraph 30 its earlier rulings which underscore the cornerstone principle of self-determination and regard Western Sahara as a third party to the EU-Morocco relations. "Indeed, if, of course, the Saharawi people are to be regarded as enjoying the right to self-determination and as being a "third party" within the meaning of the principle of the relative effect of the treaties (decision of 21 December 2016, Council / Polisario Front , C-104/16 P, EU: C: 2016: 973, paragraphs 90 to 92 and 106), the fact remains that any possible allocation of the applicant's legal position must be assessed in the light of the content of the agreement on which the negotiations initiated under the contested decision." (unofficial translation by WSRW)
In February 2018, the Court had invalidated the application of the EU-Morocco Fisheries Agreement to the waters of Western Sahara, as the territory is not part of Morocco. The Court stated that including the waters of Western Sahara - where in practice over 90% of EU fishing took place under the agreement with Morocco - is a violation of international law (paragraph 83).
Since, the EU Commission has negotiated a new Fisheries Agreement with Morocco - one that expressly includes Western Sahara in its geographical scope of application. That Agreement has been approved by the EU Council (the 28 Member States) in December 2018 and by the EU Parliament on 12 February 2019.
Polisario has announced further legal proceedings.
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