Photo above: Siemens Gamesa has from July 2021 supplied Enel with equipment for its large Boujdour wind park.The picture is from Motril, Spain.  

The EU Court of Justice ruled on 29 September 2021 that the EU's approach to Western Sahara has been illegal. In decomposing that approach, the ruling shows clearly how fundamentally flawed the position of Italian company Enel is in relation to the territory. 

As Western Sahara Resource Watch has covered before, the EU institutions have deliberately ignored previous rulings from the EU Court, which stated that the consent of the people of Western Sahara is a prerequisite for the legality of trade or fish activities in the territory. 

Instead of seeking that consent, the Union carried out a ‘stakeholder consultation’ to assess the alleged 'benefits' to the population in the territory - which are primarily Moroccan settlers. The exercise was done in collaboration with the EU's Moroccan counterparts. 

As such, the Union only met with groups and individuals that defend the Moroccan position to the conflict, such as Moroccan parliamentarians, NGOs, business groups, government institutions etc. No effort was made to obtain permission to operate on the land from the Saharawis. 

On 29 September, the EU Court of Justice concluded such an approach to be totally irrelevant and insufficient, stressing that a 'consultation' on 'benefits' cannot substitute the consent of the people of Western Sahara - through their UN recognised representation, Polisario. 

This ruling should be particularly relevant and important for companies that have copied the EU's faulty approach. 

The most important of these is Enel, which is involved in the construction of energy projects in Western Sahara, and has over the last years engaged in similar ‘impact assessments’ or ‘consultations’. Enel was excluded from the portfolios of Norway's biggest private asset manager earlier this year, as it acts against the right to self-determination of the Saharawis. 

Enel is the company most heavily involved in construction of Moroccan energy projects in occupied Western Sahara. In a letter to WSRW only two weeks before the ruling (screenshot below), Enel described an approach that is basically identical to the EU's. Enel failed to respond to questions from WSRW as to how it could have obtained permission to operate on the land. 

In addition, the companies ENGIE and ACWA Power have taken similar approaches. Most recently, ENGIE in 2021 contracted the company Global Diligence to undertake a secretive ‘consultation’ with alleged ‘stakeholders’. WSRW and the French association APSO wrote the company on 11.01.2019 and on 09.12.2020. ENGIE responded on 13.04.2021. WSRW sent a follow-up letter on 17.05.2021, which was not responded to.

ACWA Power  allegedly also base their assessment on such studies with a consultation component. WSRW wrote to ACWA on 29.11.2016 and on 05.06.2020. No response was received.

Siemens only addresses aspect of 'benefits' but without ever mentioning the Saharawi people's right to consent. WSRW wrote Siemens AG and its affiliated companies Siemens Energy and Gamesa on 06.03.2012, 19.06.2012, 03.07.2013, 26.09.2016, 07.12.2017, 01.10.2018 and 18.02.2021 regarding the right to consent. The companies failed to respond to that aspect in their letters of 10.05.2012, 10.10.2016, 08.01.2018, 16.11.2018, 24.04.2020, 23.03.2021 and 07.04.2021. 

The commonalities of the consultation ‘studies’ undertaken by the involved companies in Western Sahara are these: 

• None of the companies have obtained consent from the Saharawi people, neither for the business agreement nor for commissioning third party firms to carry out consultation exercises.
• None of the assessments are public, nor are their terms of reference.
• Clarifications cannot be obtained from the contracted third-party consultancy agencies, who are usually not even known. The one used by Enel is not known to anyone, whereas the one used by ENGIE - Global Diligence - does not want to answer detailed questions regarding methodology.
• WSRW is not aware of a single Saharawi group or individual advocating self-determination, including the UN-recognised representation Polisario, to have ever taken part in such alleged consultations.
• WSRW is not aware of any of the consultation processes or impact studies taking into account the legal status of the territory, the legal status of the Moroccan presence on the territory, the legal rights of the Saharawi people nor the legal validity of the commercial operation they are about to assist in.
• All studies allegedly mention 'local benefits', which is irrelevant in the eyes of the EU Court.