Un proceso legal que duró 12 años ha llegado a su fin. El Tribunal de Justicia de la UE ha dictaminado que los acuerdos comerciales y pesqueros entre la UE y Marruecos no pueden aplicarse al Sáhara Occidental ni a sus recursos naturales.

¿Cómo llegó el tribunal a esta conclusión? ¿Y cuáles son las principales conclusiones del tribunal? Western Sahara Resource Watch (WSRW) ha analizado las sentencias.

¿Qué se abordó? 

El 4 de octubre de 2024, el Tribunal de Justicia de la Unión Europea dictó tres sentencias:

• Dos sentencias tras los recursos interpuestos por el Consejo de la UE y la Comisión Europea contra la decisión de 2021 del Tribunal General de la UE que anula los acuerdos comerciales y de pesca entre la UE y Marruecos en el Sáhara Occidental;
• Una sentencia por un caso que el tribunal administrativo supremo francés (“Conseil d'État”) remitió para dictamen, en un caso presentado por el sindicato de agricultores franceses Confédération Paysanne que impugnaba la continua importación de tomates y melones del Sáhara Occidental por parte de las autoridades francesas, incorrectamente etiquetados como originarios de “Marruecos”.

En las dos primeras sentencias, el Tribunal Superior de la UE anuló los acuerdos comerciales y pesqueros UE-Marruecos en el Sáhara Occidental, por violar los principios de autodeterminación y el efecto relativo de los tratados. Aquí está el comunicado de prensa de la Corte sobre los acuerdos pesqueros y comerciales. El texto de la sentencia sobre el acuerdo comercial se puede encontrar aquí. El fallo sobre el acuerdo de pesca está disponible aquí.

En el caso interpuesto por el sindicato de agricultores franceses, el Tribunal dictaminó que los productos cosechados en el Sáhara Occidental deben etiquetarse como originarios de ese territorio. Se pueden encontrar más antecedentes en el comunicado de prensa del tribunal sobre el fallo, o en el mismo fallo.

Puede encontrar una cronología histórica del proceso judicial de 12 años en nuestra web. 

1. A continuación publicamos nuestro análisis jurídico de estas sentencias (de momento en inglés).
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4. What were the main findings? 
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6. 1. The Court has firmly established the position of Front Polisario to be able to bring cases on behalf of the Saharawi people, and that it has access to the Court to defend their right to self-determination.

In §90 (trade) and §116 (fish), the Court concludes that “Front Polisario is entitled to contest, before the EU judicature, the legality of an act of the Union which directly affects the legal situation of the people of Western Sahara in its capacity as holder of the right to self-determination where that act individually concerns that people or, if the act is a regulatory act, where it does not entail implementing measures.”

The Court recognises that Polisario has the capacity to be a party to legal proceedings before the EU Courts (§70 (trade), §96 (fish)) and can act on behalf of the people of Western Sahara, being one of the legitimate interlocutors in the UN process conducted to determine the future of the territory (§69 (trade), §95 (fish)) and as participating in various international fora and maintaining bilateral relations at the international level (§70 (trade), §96 (fish)).

This is an important conclusion: henceforth, it is no longer up for debate whether or not Polisario can bring cases before the EU Courts. That matter is settled.

§109 of the ruling on trade (or §138 of the ruling on the fisheries agreement) is unambiguous that Front Polisario “represents the people of Western Sahara as holder of the right to self-determination with regard to that territory”.

1. 2. The Court has confirmed the separate and distinct status of Western Sahara

Ever since the 2016 ruling of the European Court of Justice annulling the EU-Morocco trade agreement in Western Sahara, the Courts have pointed to the “separate and distinct” status of Western Sahara, in relation to any State, including Morocco, the EU Courts have kept confirming this specific status. This means that when signing a deal with Morocco, the words ‘territory of the kingdom of Morocco’ cannot be interpreted as including Western Sahara in the territorial scope of that deal.

This is no different in the latest two rulings annulling the EU-Morocco trade agreement and the fisheries agreement in Western Sahara. The ‘separate and distinct’ status is referred to in §134 (trade) and §163 (fish), almost in passing, as it is a settled matter. 

The ruling in the Confédération Paysanne case emphasizes the separate and distinct status of Western Sahara (i.e. not part of Morocco), when it concludes that products from Western Sahara must indicate only Western Sahara as their country of origin. In its ruling in the case brought by the French farmers’ union, the Court further clarifies that Western Sahara is “customs territory” for the purposes of the Union Customs Code (§87) because Union customs legislation “lays down separate codes and texts for Western Sahara and the Kingdom of Morocco” (§87), that is “MA” for Morocco and “EH” for Western Sahara, according to Annex I to Commission Implementing Regulation (EU) 2020/1470 of 12 October 2020.

1. 3. The Court has unambiguously stated that the “population of Western Sahara” and the “people of Western Sahara” are not the same thing

The Court established in §128 (trade) and §157 (fish) that “a majority of the population of Western Sahara is not part of the people holding the right to self-determination, namely the people of Western Sahara. That people, which for the most part has been displaced, is the sole holder of the right to self-determination with regard to the territory of Western Sahara. The right to self-determination belongs to that people, and not to the population of that territory in general, of which - according to the estimates provided by the Commission at the hearing before the Court of Justice - only 25% is of Sahrawi origin”. 

As such, “there is a difference in that regard between the concept of the ‘population’ of a non-self-governing territory and of the ‘people’ of that territory. The latter refers to a political unit which holds the right to self-determination, whereas the concept of ‘population’ refers to the inhabitants of a territory.” (§129 (trade), or §158 (fish))

1. 4.The consultation process conducted by EEAS and Commission cannot be equivalent to obtaining the consent of the people of the non-self-governing territory of Western Sahara.
   
   In 2018-2019, the European Commission went to great lengths to try to circumvent the rulings from 2016 when the EU had lost in court. The ECJ had explicitly stated that no agreement could take place in Western Sahara without first having obtained the genuine consent by the people of the territory. However, the European Commission, in a highly questionable manner, decided to undertake a “consultation” of Moroccan settler groups to circumvent the prerequisites set by the court. The Commission’s misleading of the EU institutions was covered in the WSRW report ‘Above the Law’ in 2020. But a ‘population’ is not the same as a ‘people’. And ‘consultation’ is not equal to ‘consent’. This has never been spelled out more clearly than now.

Having eloquently formulated the difference between the ‘population’ and the ‘people’ of Western Sahara, the Court goes on to deduce in §130 (trade) and §159 (fish) that “the Commission and the EEAS conducted a consultation process with the ‘people concerned’, which [...] encompasses, in essence, the inhabitants who are currently present in the territory of Western Sahara, irrespective of whether or not they belong to the people of that territory. As was correctly held by the General Court, in essence, in paragraph 373 of the judgment under appeal, that consultation process cannot therefore be equivalent to obtaining the consent of the ‘people’ of the non-self-governing territory of Western Sahara.”

Not only did the EU institutions err in equating the ‘population’ to ‘people’, it also wrongfully considered a consultation exercise to be equivalent to the right of consent.

The Court stresses the need of obtaining ‘consent’, pointing to the principle of relative effect of treaties, i.e. that treaties cannot impose obligations or confer rights on third parties. Referring back to its judgment of 2016, concluding the people of Western Sahara to be a third party to the EU’s agreements with Morocco, the Court underlined that the implementation of such an agreement “must receive the consent of the people of Western Sahara”. (§132 (trade), §161 (fish))

The Court deems that the EU Council “was not free to decide whether that consent could be waived without infringing the requirement that the people of that territory must consent to such an agreement” (§135 trade, §164 fish).

Finally, in §140 (trade) and §169 (fish), the Court concludes that the EU Council was “mistaken” in “taking the view that the consultation process [...] made it possible to comply with the principle of the relative effect of treaties”, both in relation to the “scope of the consultation process and the scope of the requirement set out” in the Court’s 2016 judgment.

1. 5. Consent can be express, but may also be presumed under very strict conditions, aimed at preserving the right to self-determination and independence

The rulings in the appeal case differ slightly from the ruling by the General Court in 2021, in that the European Court of Justice does not agree that the expression of the people of Western Sahara’s consent to the agreement at issue has to be explicit. The Court refers to customary international law, which does not provide that the consent of a third party is to be expressed in a particular form. 

While explicit consent thus remains an option, the Court acknowledges that in the particular case of a non-self-governing people, consent can also be presumed, “so long as two conditions are satisfied” (§152 trade, §180 fish). 

These conditions are summed up in §153 (trade), and in §181 (fish):

• 1. “The agreement in question must not give rise to an obligation for that people”.

What this means: the agreement must not impose responsibilities on the people of Western Sahara, that they are to fulfill as required by the agreement. The agreement must not, e.g., demand the people of Western Sahara to undertake tasks that are required for the agreement’s implementation.

In other words, the court limits the role of Morocco to purely administrative functions, devoid of any sort of sovereignty. The court does not specifically apply the wording of “occupation” in its ruling, but what it states here is in line with the law of occupation. 

• 2. “The agreement must provide that the people itself, which cannot be adequately represented by the population of the territory to which the right of that people to self-determination relates, receives a specific, tangible, substantial and verifiable benefit from the exploitation of that territory’s natural resources which is proportional to the degree of that exploitation. That benefit must be accompanied by guarantees that that exploitation will be carried out under conditions consistent with the principle of sustainable development so as to ensure that non-renewable natural resources remain abundantly available and that renewable natural resources, such as fish stocks, are continuously replenished. Lastly, the agreement in question must also provide for a regular control mechanism enabling it to be verified whether the benefit granted to the people in question under that agreement is in fact received by that people.”

What this means: the lion’s share of the benefits obtained through the agreement are for the people, not the population, of Western Sahara, and these benefits ought to match a set of criteria.

So if the agreement creates no obligations, but rather benefits, strictly conditioned to preserve self-determination, for the people - not the population - of Western Sahara, consent could be presumed.

The Court argues that for both the trade deal and the fisheries deal, consent could not be presumed.

• Consent could not be presumed for the contested trade agreement, the Court submits in §160 (trade). In §158 (trade), the Court concludes that ”any benefit for the people of Western Sahara [...] is manifestly absent from the agreement at issue”. It adds in §159 (trade) that “the agreement at issue is not intended to confer rights on the people of Western Sahara as a third party to that agreement”, rather “it is the Kingdom of Morocco, as a party to the agreement at issue, which is the beneficiary of tariff preferences granted by the EU to products originating in Western Sahara”.
• In the ruling on the fisheries agreement (§186), the Court also points out that “any benefit for the people of Western Sahara [...] is manifestly absent from the agreement at issue”. In the next paragraph, the Court explains that the “fishing rights granted under the Fisheries Agreement in the waters adjacent to Western Sahara are for the benefit of the EU and its Member States. Moreover, the management of fishing activities in those waters, in particular in connection with the definition of management areas applicable to those waters, is carried out by the Moroccan authorities under their national laws and regulations” and that “the various components of the financial contribution are paid to the Moroccan authorities”. In addition, the Court explains in §188 that “the scope of the agreement at issue is established by reference to a single ‘fishing zone’, defined as covering essentially the entirety of the waters adjacent to the Kingdom of Morocco and those adjacent to the territory of Western Sahara. However, the definition of that ‘fishing zone’ does not distinguish between the waters adjacent to the territory of the Kingdom of Morocco and the waters adjacent to the territory of Western Sahara”. “Accordingly, the agreement at issue does not establish what share of the Union’s fishing rights corresponds to the waters adjacent to the Kingdom of Morocco and what share of those rights corresponds to the waters adjacent to the territory of Western Sahara” (§189).

In relation to the fisheries agreement, the Court recognises that “that agreement lays down the requirement for a ‘fair geographical and social distribution’ of the socioeconomic benefits arising from the financial contribution paid by the European Union to the Kingdom of Morocco” (§190). “However, [...] the provisions of the agreement at issue do not indicate in what manner the principle of fair geographical and social distribution of the financial contribution is implemented differently in the territory of Western Sahara and in the territory of the Kingdom of Morocco. In any event, that agreement does not provide for any financial contribution to be granted for the benefit, specifically, of the people of Western Sahara” (§191). “It follows that the people of Western Sahara cannot be presumed to have given its consent to the application of the agreement at issue with regard to the waters adjacent to that territory” (§192).

The Court has added in §156 (trade) and §184 (fish) that presumed consent can be reversed if legitimate representatives of the people establish that the benefits do not satisfy the criteria set out in §153 (trade) or §181 (fish). This reaffirms Polisario’s right to bring cases. 

This paragraph also states that it is for the EU Court to determine whether the deal adequately preserves the right of the people of Western Sahara to self-determination and to permanent sovereignty over the natural resources of the territory. Therefore, in the case of new agreements based on the allegedly presumed consent of the Saharawi people, judicial review by EU courts will apply with full force. To the contrary, the Court will assess very carefully and thoroughly whether the proposed agreement matches the restrictive criteria laid down in the 2024 rulings. 

 

C. When does it take effect?

Trade ruling. 

• The EU and Morocco have a 1 year period to phase out the application of their trade agreement to Western Sahara.
• The Court recognised that it “would be liable to give rise to serious negative consequences for the external action of the European Union and to call in question the legal certainty of the international commitments to which it has agreed and which are binding on the EU institutions and the Member States” (§185 trade).
• “Consequently, it is necessary to order, for reasons of legal certainty, that the effects of the decision at issue are to be maintained for a period of 12 months from the date of delivery of the present judgment” (§186). That means that the EU institutions have until 4 October 2025 to accommodate for the court ruling in relation to imports from occupied Western Sahara.

Fisheries ruling. The protocol already expired on 17 July 2024. As such, the EU fisheries have already ended.

Labeling ruling. This has taken immediate effect.

D. What are the implications?

It is really too early to be precise at this point. Yet, here are some first reflections. 

1. Implications for the EU and its member states

First, the EU needs to immediately start to technically adapt to the situation where it can no longer treat Western Sahara as part of Morocco in its trade relations with Morocco. 

Does point 6 above leave the door open for the EU to conclude a new trade agreement with Morocco that can be extended into Western Sahara? In theory, yes. In practice, the conditions set by the Court will make the endeavour nearly impossible. It is highly unlikely that the Moroccan government will be open to cooperate with the EU in making sure that Saharawis - and not Moroccan settlers - were to be the near only beneficiary to trade deals in Western Sahara. 

Following Article 36 (1) of the 1969 Vienna Convention on the Law of treaties, on which the Court relies, “[a] right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right [...] to the third [parties]”. 

Therefore, beyond the very strict regime laid down by the Court, presumed consent would require that the EU and Morocco to “intent” to accord rights to the Saharawi people. Given the official position of Moroccan authorities, it seems unlikely that they will accept to grant rights, under that agreement with the EU, to the Saharawi people, as Morocco has been denying the Saharawi’s right to self determination and even their very existence as a “people” - not simply as “populations concerned” - for decades.

It is worth noticing the interesting scenarios painted by think tank European Council on Foreign Relations (ECFR) - that through inclusion of Polisario in these resources talks, the EU could be a contributing factor in actually moving the conflict forward towards a resolution. 

It is worth noting also that Polisario’s lawyers after the 2021 ruling suggested that the Saharawis could be asking for damages from the illegal application of the EU-Moroccan trade deals on the Saharawi territory. The EU needs to take this real scenario into account. As shown by the Commission itself, the amount of plundered products amounts to millions of Euros annually.

1. Implications for private companies

Morocco partners with a large number of private companies on the occupied territory, in disregard of the principles outlined in the rulings. Three elements are worth pointing out: 

• All companies operating on Moroccan contracts in the territory of Western Sahara face an increased legal risk. How big a risk? This will surely depend on many factors, including the jurisdiction in the country of origin of the company, whether the company is European and what nature of involvement in Western Sahara the company is engaged in. The risk could be seen as bigger when the company is involved in sectors covered by the rulings. Overall, the principle of relative effect is not specific to international treaties but is a general principle of contract law that applies to all legal undertakings, regardless of which legal systems they are rooted in. The right to consent of the Saharawi people must be observed at all times by all, including private companies. To the contrary, imposing obligations on the Saharawi people without their consent could be a source of civil and criminal liability before the domestic courts in the State of incorporation.
• Companies that import agricultural and fisheries products into the EU need to make immediate adjustments. First, they need to ensure that their products from Western Sahara are labelled as from Western Sahara, and not as from Morocco. Secondly, they need to prepare for a situation when no tariff preference will be granted on imports from 4 October 2025 onwards. There is a real risk that producers in Western Sahara from now on will increasingly export to the European market via Morocco. As a consequence, retailers and importers should therefore be increasingly skeptical of the veracity of certificates of origin and phytosanitary certificates accompanying certain fisheries and agricultural products originating from “Morocco”.
• Lastly, the companies’ reputational risk has increased. So far, some of the larger companies that have won bigger contracts in the territory have invented peculiar “stakeholder consultations” with the “local population” in order to legitimise their operations and investments. This applies for instance to the work that the French company Global Diligence undertook for Engie prior to the latter’s participation in a large agricultural land development programme in the occupied territory. With the new rulings, this approach is totally shot down. The argument that benefits to a local population in an occupied territory is fundamentally different from a consent from the people of that territory, is unequivocally supported by the court. Equally, arguments of a so-called social licence, make no sense in light of the EU Court elaborations. As such, WSRW expects that companies such as Enel or Engie will stop referring to such fake processes from its ESG-reports. If insisting on going against the principles of international law outlined by the ECJ, companies like Global Diligence should start answering questions as to whether it would have carried out similar consultations with Russian settlers in Ukraine.

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