It's not easy keeping up with all the different legal proceedings relating to Western Sahara. For the sake of clarity, here's an overview of the different cases at the Court of Justice of the European Union.
The Polisario Front - the UN recognised representation of the people of Western Sahara - brought several actions against the EU Council before the EU Court. Their reason for trying the EU Council? The EU agreements with Morocco were being applied to the Saharawi people’s occupied homeland, Western Sahara.
There is at present one case pending with the EU Court of Justice:
On 29 September 2021, the General Court of the European Union ruled on the following three cases:
Note that cases T-344/19 and T-356/19, which both relate to the EU-Morocco Sustainable Fisheries Partnership Agreement being applied to Western Sahara, had been joined by the Court. In addition, the Court had decided that it would rule on these two cases, plus case T-279/19, on applying the amended EU-Morocco Association Agreement to Western Sahara. The Court heard the parties to the case on 2 and 3 March 2021.
On 29 September, the General Court issued a ruling in cases T‑344/19 et T‑356/19 (on fisheries) and a ruling in case T-279/19 (on trade). The Court’s press release accompanying the rulings can be accessed here.
The rulings clarified the Front Polisario’s legal personality as the internationally recognised representative of the people of Western Sahara and again confirmed that Western Sahara has a status that is separate and distinct from Morocco and, as such, should be regarded as a third party to any EU-Morocco agreement. Extending the territorial scope of any such agreement to the territory necessarily requires the consent of the people of Western Sahara through their representation, the Court repeated – adding that the consultations of the local population carried out by the EU institutions did not meet that requisite. The Court has essentially held the same line of reasoning as in 2016 and in 2018 (see below).
In all likelihood, the EU Council will appeal before the EU Court of Justice. A decision on the matter is expected before mid December 2021.
The following cases brought by Polisario against the EU Council have all been judged and thus closed. Timelines related to each of these cases are included further down below:
- Case T-512/12, brought on 18 November 2012 and calling for the annulment of the EU-Morocco Agriculture Agreement. The Council’s appeal against the Ruling in this case went on as C-104/16 P.
- Case T-180/14, brought on 14 March 2014, calling for the annulment of the EU-Morocco Fisheries Partnership Agreement.
- Case T-275/18, brought on 24 April 2018, calling for the annulment of the EU-Morocco Aviation Agreement.
- Case T-376/18, brought on 14 June 2018, calling for the annulment the Council Decision of 16 April 2018, authorising the EU Commission to renegotiate the Fisheries Protocol with Morocco.
In the UK, Western Sahara Campaign UK - a solidarity group - brought action in the UK High Court against two British government agencies: Her Majesty’s Revenue and Customs (HRMC) and the Secretary of State for the Environment, Food and Rural Affairs (DEFRA). Western Sahara Campaign UK argued that the UK was unlawfully allowing products, originating from or processed in Western Sahara, to be imported into the country under a trade agreement with Morocco.
Find timelines of key-events for each of these court cases below. In chronological order.
1. POLISARIO TRIES EU COUNCIL OVER EU-MOROCCO AGRICULTURE AGREEMENT
March 2000 – The EU-Morocco Association Agreement enters into force. A free trade area liberalizing two-way trade in goods was created.
October 2005 – The EU Council gives the EU Commission a mandate to negotiate further trade liberalization for (processed) agriculture and fishery products.
02 December 2010 – EU Council signs agriculture agreement.
12 July 2011 – The European Parliament’s rapporteur in the Agriculture Committee recommends Parliament to reject the conclusion of the proposed agri-deal issues.
26 January 2012 – The European Parliament’s International Trade Committee votes in favour of the agri-agreement, in spite of the recommendation of its own Rapporteur calling for the rejection of the agreement.
14 February 2012 – WSRW publishes the report ‘Conflict Tomatoes’, revealing the massive growth of the Moroccan agriculture industry in occupied Western Sahara and the export of the produce to the EU.
16 February 2012 – In the plenary session, the European Parliament approves EU-Morocco agriculture agreement. (369 MEPs voted in favour, 225 against and 31 abstained)
08 March 2012 – EU Council formally concludes the agriculture agreement with Morocco.
17 June 2012 – WSRW publishes the report 'Label and Liability', documenting how produce from Western Sahara ends up on the EU market, labelled as Moroccan.
12 September 2012 – EU Commission implements the new agreement.
01 October 2012 – The agriculture agreement between the EU and Morocco enters into force.
19 November 2012 – FP brings action against EU council (case T-512/12) asking for the annulment of the Council decision concluding the agriculture agreement with Morocco.
10 December 2015 – The Court of Justice of the European Union annuls the EU-Morocco agriculture agreement in so far as it applies to Western Sahara.
19 February 2016 – The EU Council appeals the Court’s decision to annul the EU-Morocco agri-deal in as far as it was applied to Western Sahara.
13 September 2016 – The Advocate General of the CJEU presents his Opinion in the appeal case C-104/16 P, in which he “considers that Western Sahara is not part of Moroccan territory and, therefore, contrary to the findings of the General Court, neither the EU-Morocco Association Agreement, nor the Liberalisation Agreement are applicable to it" (read full press release of the Court here).
21 December 2016 - The Court of Justice of the EU confirms in its final appeal the argumentation of the Advocate General and annuls the initial judgement from December 2015. The reason for annulment is that Western Sahara has no part in the application of the 2000 and 2012 agreements. The Court argued that Western Sahara has a “separate and distinct status” accorded to it “by virtue of the principle of self-determination” (art. 92), and that “the people of Western Sahara must be regarded as a ‘third party’” to the EU-Morocco Association Agreement. “As such, that third party may be affected by the implementation of the Association Agreement in the event that the territory of Western Sahara comes within the scope of that agreement, without it being necessary to determine whether such implementation is likely to harm it or, on the contrary, to benefit it. It is sufficient to point out that, in either case, that implementation must receive the consent of such a third party. In the present case, however, the judgment under appeal does not show that the people of Western Sahara have expressed any such consent.” (art. 106)
Read the Court's press release here.
2. POLISARIO TRIES EU COUNCIL OVER EU-MOROCCO FPA
14 December 2011 – The European Parliament rejects the one-year extension of the Protocol to the EU-Morocco Fisheries Partnership Agreement.
5 January 2012 – EU Commission asks the EU Member States to be mandated to renegotiate a fisheries protocol with Morocco.
24 July 2013 – The EU Commission initials a new Fisheries Protocol with Morocco, which will allow EU vessels to resume fishing in the waters of Western Sahara.
13 November 2013 – A divided EU Council (COREPER) decides to back the proposed new Fisheries Protocol with Morocco. See official minutes of the meeting here. Sweden, Denmark, Finland, the UK and the Netherlands did not support the deal.
10 December 2013 – The European Parliament votes in favour of the new EU-Morocco Fisheries Protocol.
16 December 2013 – the EU Council concludes the Protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco.
14 March 2014 - FP brings action against EU Council (case T-180/14), asking annulment of Council decision concluding the FPA Protocol with Morocco.
15 July 2014 - The Protocol enters into force.
2015 - The Court decides to judge a related case from Western Sahara Campaign UK first, and on the Polisario case later. The Western Sahara Campaign UK case judgment came on 27 February 2018.
14 June 2018 - Polisario tries the decision from the Council of 16 April 2018 to open negotiations for a new fisheries agreement (case T-376/18).
19 July 2018 - Only weeks before the 4 year EU-Morocco fisheries agreement is set to expire at the end of July 2018, the Court of Justice of the European Union issues its ruling on case T-180/14 and judges the agreement to be inapplicable to Western Sahara.
3. CASE INITIATED BY WESTERN SAHARA CAMPAIGN AGAINST UK GOVERNMENT
February 2015 – Western Sahara Campaign UK brings action in the UK High Court against Her Majesty’s Revenue and Customs (HRMC) and the Secretary of State for the Environment, Food and Rural Affairs (DEFRA)
15 May 2015 - The UK High Court granted Permission by Order.
July 2015 – Substantive hearing takes place at the UK High Court.
October 2015 – the UK High Court refers the case to the Court of Justice of the European Union (case C-266/16). The UK Judge stated: “I conclude that there is an arguable case of a manifest error by the Commission in understanding and applying international law relevant to these agreements.”
September 2017 – The Court of Justice of the European Union holds a hearing on the case.
January 2018 – The CJEU Advocate General issues his Opinion on the EU-Morocco Fisheries Partnership Agreement, and calls it invalid because it is applied to Western Sahara.
27 February 2018 - The Court of Justice of the European Union judges the agreement inapplicable to Western Sahara.
Press release from the court.
25 March 2019 - The UK High Court confirms the EU ruling, and concludes that the UK government has acted unlawfully in granting preferential tariff treatment to products from Western Sahara through a deal with Morocco, and in granting fisheries quotas for fishing in Western Sahara under a fish deal with Morocco.
4. POLISARIO TRIES EU COUNCIL OVER EU-MOROCCO AVIATION AGREEMENT
December 2006 – The Aviation Agreement between the European Union and the Kingdom of Morocco enters into force.
February 2014 – The EU Commission proposes an amendment to the Agreement, accounting for changes within the EU (three new Member States since 2006, and the Lisbon Treaty)
October 2017 – The European Parliament approves the amended version of the Agreement.
January 2018 – The amended version of the Agreement is concluded by the Council.
24 April 2018 – Polisario initiates a case to halt the application of the EU-Morocco Aviation Agreement in Western Sahara (case T-275/18).
30 November 2018 - The EU Court of Justice declares the EU's aviation deal with Morocco to be invalid in Western Sahara.
5. POLISARIO TRIES EU COUNCIL ON FISH NEGOTIATIONS WITH MOROCCO
27 February 2018 – The Court of Justice of the European Union concludes that the EU-Morocco Fisheries Partnership Agreement with Morocco cannot be applied to Western Sahara, as that territory does not fall under Moroccan “sovereignty or “jurisdiction”, and is not part of “Moroccan fishing zones” – a notion used throughout the Agreement and its implementing Protocols.
16 April 2018 – The Council authorizes the Commission to open negotiations with Morocco for a modification of the territorial scope of the Fisheries Partnership Agreement (so as to include Western Sahara) and for the conclusion of a new Fisheries Protocol.
14 June 2018 – Polisario initiates a case to annul the Council Decision to commence talks with Morocco (case T-376/18).
8 February 2019 - The Court declares Polisario's request to annul aforementioned Council Decision inadmissible, as Polisario is not directly affected by it. The Decision only aims at designating who will lead the negotiations, and thus only resorts legal effects among the EU institutions, the Court argued. The Court does reaffirm that the “Saharawi people are to be regarded as enjoying the right to self-determination and as being a 'third party'" to EU-Morocco relations.
In the middle of Moroccan-Spanish maritime disputes offshore Western Sahara, Morocco is lobbying for a defender of the occupation of Western Sahara to sit at an important UN scientific body for maritime continental boundaries.
The Italian company Enel is one of the firms that have taken the exact same approach as the EU when carrying out ‘stakeholder consultations' in Western Sahara - a procedure now found invalid by the EU Court of Justice.
Yesterday, the EU Court of Justice annulled two EU-Moroccan bilateral agreements. WSRW has the following recommendations to the EU institutions.
Today, the EU Court of Justice has struck a blow to the EU’s practice of applying trade and fisheries agreements with Morocco to occupied Western Sahara.