The Advocate General of the Court of Justice of the European Union has this morning, 21 March 2024, published two Opinions in the appeal case on extending the EU-Morocco Fisheries Agreement and Trade Liberalisation Agreement into Western Sahara. 

Read the full Opinion on the Fisheries Agreement here [or download], and the full Opinion on the Trade Agreement here [or download]. 

The Opinions have been authored as part of the appeal proceedings initiated by the EU Commission and Council against the General Court rulings of September 2021, annulling the application of both the EU-Morocco trade deal and fisheries agreement in Western Sahara.

In relation to the Fisheries Agreement, Advocate General Tamara Ćapeta concludes that the EU-Morocco Sustainable Fisheries Agreement should be annulled, as had been concluded by the General Court in 2021. The Agreement “does not sufficiently respect the ‘separate and distinct’ character of the territory of Western Sahara and the waters adjacent thereto”, the Opinion reads. 

The failure to do so is “a violation of the principle of self-determination, as interpreted by the Court of Justice in its 2016 judgment”, the Court's press release reads.

In relation to the Trade Agreement, the Advocate General recalls “legal status of the people of Western Sahara under the part of public international law which binds the European Union” as the basis for the “Front Polisario’s right to bring the action for annulment in the present case”.

The Advocate General however recommends the EU Court of Justice to withhold its final judgment, and instead advocates sending the case back to the General Court. “The Court has not yet had the opportunity to explain what other obligations are incumbent on the European Union as a result of the Sahrawi people's right to self-determination”, the Opinion reads. As the General Court did not discuss this issue, it is also not part of the scope of the appeal case - therefore the referral to the General Court is advised.

While not rejecting the procedure, the Advocate General considers that the General Court's reasoning for annulling the Trade Agreement was wrong. She submits that Morocco could be considered as the de facto administering power, without taking into consideration that this matter has already been settled in previous rulings. 

“In assessing the Opinion, it remains unclear to us how the Advocate General could come to viewing Morocco as the administering power in Western Sahara”, says Sara Eyckmans of Western Sahara Resource Watch. “The United Nations consider Western Sahara as the only non-self-governing territory without an administering power. The Moroccan government does not view itself as the administering power. Previous rulings of the EU Courts have rejected the notion.”

“We look forward to the final ruling of the Court, hoping that it will land on the interpretation of Morocco's legal status in the territory, in line with the position of the UN and the previous seven rulings.” 

In another Opinion published today, in a case initiated by French farmers union Confédération Paysanne, Advocate General Ćapeta concludes that produce from the territory of Western Sahara must be labelled as from Western Sahara, and not as from Morocco. Read more on that case here. 

Read here the full text of the EU Court of Justice's Press Release on the Fisheries Agreement and on the Trade Agreement.

So far, there have been seven rulings by the EU Courts on the approach of applying EU-Morocco agreements to Western Sahara.

• In 2015, the General Court of the EU annulled the application of the EU-Morocco Trade deal in Western Sahara (T-512/12).
• In 2016, the EU Court of Justice ruled in the appeal initiated by the EU Commission on the 2015 ruling, concluding that the EU-Morocco Trade Agreement could not be applied to Western Sahara (C‑104/16 P).
• In February 2018, the EU Court of Justice ruled the EU-Morocco Fisheries Agreement to be inapplicable to Western Sahara in a case forwarded by the UK High Court (C-266/16).
• In July 2018, the EU General Court again concluded the EU-Morocco Fisheries Agreement to be invalid in Western Sahara in the case that Polisario had brought against the deal (T-180/14).
• In November 2018, the General Court of the EU rules the EU-Morocco Aviation Agreement as non-applicable to Western Sahara (T‑275/18). (Note: the EU Commission stated it would not appeal this ruling)
• In September 2021, the EU General Court issued rulings on the amended EU-Morocco Trade Agreement (T-279/19) and Fisheries Agreement (T-344/19 and T-356/19 combined).

All these rulings conclude that Western Sahara is a territory that is separate and distinct from Morocco, and that Morocco has no sovereignty or administering mandate for the territory. As such, the people of Western Sahara are a third party to the EU-Morocco agreements and should expressly consent to being affected by such agreements. 

The September 2021 ruling added that consent is to be obtained through the UN-recognised representation of the people of Western Sahara, the Polisario Front. That clarification came in response to the EU Commission's approach to the Court's previous rulings on the trade and the fisheries agreement. The Commission then proceeded to hold negotiations with Morocco with a view of amending both agreements to include the words “Western Sahara” in their geographical scope of application. Rather than seeking the consent of the people of Western Sahara, as stipulated by the Court, the Commission set up a consultation of Moroccan stakeholders. Read all about that remarkably shocking approach in the report “Above the Law”, published by WSRW in December 2020.

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