For weeks, there has been speculation as to how EU officials would deal with a complex dilemma. On one hand, the EU-Morocco current fisheries protocol is set to expire in July 2023. The EU fisheries industry and hence several EU member states have been pushing for the controversial fisheries to continue non-stop.  

But on the other hand, the legality of the fisheries agreement is still evaluated by the EU Court of Justice. The General Court in September 2021 nullified the application of the agreement in Western Sahara, concluding that fishing offshore the territory had to be ended immediately, or could be continued for the duration of an appeal process. The appeal, initiated by the EU Council and Commission, is likely to land towards the end of 2023. 

So what to do from the expiration of the protocol in July 2023 until the final appeal ruling had been issued? Would it fall within the limits set by the EU General Court to renegotiate a deal that is already nullified by the Court? 

A letter by the Dutch Minister for Agriculture of 28 March 2023 addressing the matter with the Dutch Parliament, officially and for the first time clarifies the conclusion of this dilemma. The minister refers to information from the Commission, which has now seemingly concluded that it will not start talks with Morocco for an extension of the fish deal, in spite of several EU Member States demanding it to do so.

“The Commission indicated that extending the protocol is not an option before the EU Court of Justice has ruled [in the appeal case, Ed.], because the Court has nullified the Council decision approving the fisheries protocol. A temporary interruption of fishing opportunities in Western Sahara therefore seems inevitable, according to the Commission”, the Dutch Minister wrote. The information from the Commission originates from a EU Fisheries Council meeting of 20 March, where the 27 EU Member States' Ministers for Fisheries had gathered to analyze the situation.

A translation of the paragraphs in the Dutch Minister's letter that deal with the EU-Morocco fish deal is available below.

The “inevitable” “temporary interruption of fishing opportunities in Western Sahara” stems naturally from the fact that the EU Court of Justice is at present assessing the lawfulness of the practice. 

Halting the fisheries practice would be in compliance with the EU Court rulings so far. This is the first time that the EU Commission aligns its practices with EU case-law on Western Sahara.

Sources in the EU Parliament told Western Sahara Resource Watch (WSRW) already in March that the EU Commission had stated, in a behind-closed doors exchange of views with the Parliament's Fisheries Committee on 1 March, that it would call the EU fleet home upon expiration, not seeking an extension.

Ironically, the interruption of EU fishing activities in July will coincide the beginning of the Spanish Presidency for six months. 

In September 2021, the General Court of the EU Court of Justice outlawed the application of the EU Fisheries Agreement with Morocco in occupied Western Sahara, through nullifying the EU Council's Decision concluding the Agreement and the Protocol. The Court repeated the reasons it had given in already five previous rulings that all invalidated the application of the EU agreements with Morocco in Africa's last colony: since Western Sahara is a territory that is separate and distinct from Morocco, and Morocco has no sovereignty or administering mandate over the territory, EU agreements with Morocco cannot be applied there unless with the express consent of the people of Western Sahara through their UN-recognised representation, the Polisario Front. 

The Commission and Council have earlier ignored and misrepresented court rulings on Western Sahara. See the WSRW report Above the Law. 

The Protocol operationalises the Fisheries Agreement in technical terms for a period of four years, stipulating the permitted catch volumes and fishing areas, allowed fishing techniques and financial compensation, etc.

Full statement by the Dutch Minister for Fisheries of 28 March 2023, on the “Future of the EU-Morocco SFPA Protocol (miscellaneous item)” - unofficial translation by WSRW.

"Latvia, Lithuania and Poland pleaded for an extension of the EU-Morocco Sustainable Fisheries Partnership Agreement (SFPA) Protocol. The current protocol will expire on July 17, but due to a pending court case at the European Court of Justice over the Western Sahara, negotiations for a new protocol can start at the earliest at the end of 2023. This creates a period without a legally valid fishing protocol, in which fishing is not allowed. They
expressed their concerns about the possible consequences for the sector and fish stocks when European ships have to leave this region. These Member States asked the Commission to take all possible steps to extend the protocol and ensure that fishermen in the waters of Western Sahara can continue to fish.

The Netherlands, and a number of other Member States, indicated to support an extension of the current protocol. The Commission said it was aware of the importance of the protocol and that it analyses the different possible options. The Commission indicated that extending the protocol is not an option before the EU Court of Justice has ruled, because the Court has nullified the Council decision approving the fisheries protocol. A temporary interruption of fishing opportunities in Western Sahara therefore seems inevitable, according to the Commission.

The Commissioner did mention that the protocol with neighboring country Mauritania is not fully utilized and may offer an alternative to the sector, pending a ruling on the protocol with Morocco."

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