Tomorrow, the European Parliament is scheduled to vote on an amendment to the EU-Morocco Aviation Agreement - without any clarifications from the EU Commission as to how the proposal aligns with the 2018 Ruling of EU Court of Justice, invalidating the application of that very Agreement to Western Sahara.
Update: the European Parliament has postponed all votes scheduled to take place on 10 March to a later date, due to the COVID-19-crisis.
On 10 March, the European Parliament will vote on an amendment to the EU-Morocco Aviation Agreement, to account for the accession of Bulgaria and Romania - which joined the EU after December 2006, when the deal had provisionally entered into force. Tomorrow's vote is as such on a further modification to the previous revision of October 2017 of the EU-Morocco aviation agreement, that WSRW reported on at the time.
However, on 30 November 2018, the Court of Justice of the European Union (CJEU) ruled that the EU-Morocco Aviation Agreement does not apply to the territory of Western Sahara. The judgment specifies that the territory of Morocco must be understood as "referring to the geographical area over which the Kingdom of Morocco exercises the full range of powers recognized to sovereign entities by international law, to the exclusion of any other territory such as that of Western Sahara". The Court adds that including Western Sahara infringes on the rules of international law that apply to the relations between the EU and Morocco, "notably the principle of self-determination referred to in Article 1 of the United Nations Charter and the principle of the relative effect of the treaties" (art. 27). "The European Union cannot validly share an intention of the Kingdom of Morocco to include the territory in question in the area of application of the Agreement" (art. 33).
It is far from clear how that Ruling has been accounted for in the newly proposed amendment to the Agreement.
''While this file to be voted on in plenary next week is a small adjustment to an existing agreement, the implications are not. The Greens/EFA group has repeatedly asked the Commission to provide answers to questions about the legal vacuum created by the European Court of Justice ruling from November 2018 that Western Sahara is not covered by the EU-Morocco Aviation agreement, a ruling which represented a major victory for the Saharawi people", explains MEP Ciarán Cuffe (Ireland, Greens/EFA), who sits on the Parliament's Committee on Transport and Tourism.
''It is unacceptable that the Commission has failed to properly answer our questions. We are thus being asked to vote on an agreement without knowing the full implications relating to air safety, air traffic and consumer protection for EU airlines and passengers flying over Western Sahara. Why won't the Commission respond to our questions?'', Mr. Cuffe asks.
Even more remarkable is that the Parliament's leading MEP on the file, Sven Schulze (Germany, EPP), does not mention to the 2018 CJEU Ruling in his report, not even as part of the explanatory statement outlining the background and procedures relevant to the amendment. Schulze recommends Parliament to vote in favour of the amendment, describing it as "purely technical".
"It is bewildering that the EU is amending an aviation agreement so as to clarify its applicability within the EU, while the geographical scope employed on the side of the partner country is so highly questionable. Is the agreement applicable to Morocco proper, as dictated by international and European law, or also to the parts of Western Sahara that are under Morocco's military occupation? One would expect that EU lawmakers would want to have this matter clarified before voting, but apparently that is not the case", says Sara Eyckmans from Western Sahara Resource Watch (WSRW).
The amendment was passed in the European Parliament's Transport Committee with 40 MEPs in favour, 5 opposing and 4 abstentions.
WSRW has determined that there are 11 international flights per week into Western Sahara, operated by Binter Canarias and Royal Air Maroc. The flights connect Dakhla and El Aaiun to Gran Canaria. A new connection to France, via Transavia, opened in late October 2017. The UN-recognised representation of the Saharawi people, the Polisario Front, lodged a complaint against Transavia with the Paris High Court in October 2018.
BREAKING: the Court of Justice of the European Union has ruled that the EU-Morocco Aviation Agreement does not apply to Western Sahara.
“I think this incident should alert people about these EU-Morocco trade negotiations on products from Western Sahara: they are not transparent at all”, says Jytte Guteland, socialist Euro-parliamentarian from Sweden.
Opposition referred to the inclusion of Western Sahara, which they say renders the deal illegal under EU law.