Photo: A bus stopping along side of road between Agadir and El Aaiún / Atle Richter Schie.

In late November 2020, the EU Commission submitted a proposed amendment to the so-called Interbus Agreement, which grants Morocco the option of acceding to the EU bus cooperation. The Interbus Agreement governs traffic of passengers by coach or bus between the EU and a range of non-EU countries. 

Notably, the explanatory memorandum of the proposed Council Decision explicitly states that the agreement will only apply to Morocco and not to “the non-self-governing territory of the Western Sahara”. The text refers to the “case law of the Court in cases C-266/16, C-104/16P, T-275/18 and T-180/14”.

The referenced cases are judgments by the EU Court of Justice which all concluded that Western Sahara is not part of Morocco, and that as such, the deal that was subject to the specific court case – such as the EU-Morocco Fisheries Agreement, Trade Agreement and Aviation Agreement – cannot be applied to Western Sahara.

“This is the first time that the EU Commission proactively and explicitly excludes Western Sahara from the scope of a deal with Morocco”, says Sara Eyckmans of Western Sahara Resource Watch. “This is a most laudable initiative of the Commission, fully in line with the decisions of the Court of Justice of the EU. We expect it to be the start of an EU policy that is firmly rooted in international and EU law: one that treats Morocco and Western Sahara as two separate and distinct territories”, Eyckmans told. 

In 2020, the EU Commission had already explained that it would not appeal the EU Court of Justice’s ruling that specified the EU-Morocco Aviation Agreement could not be applied to Western Sahara. “No negotiations are envisaged in order to include the Western Sahara in an aviation agreement”, the Commission then stated. This already marked a shift in approach, as in the case of both the EU-Morocco trade deal and the EU-Morocco fisheries agreement, the EU Commission did enter into renegotiations with Morocco with a view to including a specific reference to Western Sahara in the territorial scope of the agreements.

“The explicit exclusion of Western Sahara from the Interbus Agreement's extension to Morocco does point towards progress in the EU Commission's interpretation of international and EU case law”, says MEP Tilly Metz (Luxembourg, the Greens/EFA) who is on the European Parliament's Committee for Trasport and Tourism. “Legally, there was no need to spell this out so literally: that the agreement would apply to Morocco already means that it can not be legally applied to Western Sahara. This move to go the extra mile is reminiscent of the EU's practice vis-à-vis Palestine, which is explicitly excluded from the EU's agreements with Israel.”

The EU Council - the Member States – is expected to conclude the amendment extending the Interbus Agreement to Morocco soon. A Council meeting on the subject is scheduled for tomorrow, 27 January. It is worth noting that while Council can still amend the text of the draft Decision, it cannot change the Memorandum, which contains the explicit language on not extending the proposed deal to Western Sahara.

The Interbus Agreement is open to accession by countries which are full members of the European Conference of Ministers of Transport (EMCT) - which Morocco is not, though it has an observer status. Today, the multilateral agreement includes the EU, together with Albania, Andorra, Bosnia and Herzegovina, Moldova, Montenegro, North Macedonia, Turkey and the Ukraine. The latter country might have a specific sensitivity regarding the exclusion of Western Sahara, given the situation in occupied Crimea and Dombass.

The proposal adds Morocco to a list of countries which may accede to the Interbus Agreement. Other countries already on that list are San Marino and Monaco. 

Procedurally, all contracting Parties to the Interbus Agreement will have to sign and ratify the Protocol on Morocco, before it can actually enter into force. It is expected that the EU Council will conclude on behalf of the EU in the coming weeks.