EU Court declares aviation deal invalid in Western Sahara
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BREAKING: the Court of Justice of the European Union has ruled that the EU-Morocco Aviation Agreement does not apply to Western Sahara.

Published 05 December 2018

30 November 2018, the Court of Justice of the European Union, declared for the fourth time that Morocco has no sovereignty over Western Sahara - this time in a ruling over the new EU-Morocco Aviation Agreement that entered into force earlier this year. 

Find the ruling on the Court's website here. (In French).

The judgment specifies that the territory of Morocco must be understood as "referring to the geographical area over which the Kingdom of Morocco exercises the full range of powers recognized to sovereign entities by international law, to the exclusion of any other territory such as that of Western Sahara". The Court adds that including Western Sahara infringes on the rules of international law that apply to the relations between the EU and Morocco, "notably the principle of self-determination referred to in Article 1 of the United Nations Charter and the principle of the relative effect of the treaties" (art. 27). "The European Union cannot validly share an intention of the Kingdom of Morocco to include the territory in question in the area of application of the Agreement" (art. 33).

The Court recognizes that Polisario could lodge the complaint, as it is individually concerned “only if the Agreement on airline services is applicable to the territory of Western Sahara” (art 25-26). 

Remarkably, the EU Council has stated to the Court, as noted in paragraph 18, “that the air service agreement does not apply to the territory of Western Sahara” – thereby dropping the EU Commission as the only EU institution defending including Western Sahara, which it had done publicly to the European Parliament in October 2017.

The agreement has been important to challenge for the Saharawis, as Morocco is normalizing its illegal presence in the territory through business ties and tourism. Morocco has particularly tried to brand the town of Dakhla as a haven for kite surfing, setting up international flight connections. Flights from Dakhla are also used to transport frozen fish from the occupied territory into Spain. 

“Airlines such as Transavia, Binter or Royal Air Maroc no longer have any legal support to carry out flights between El Aaiun or Dakhla and the European Union”, says Polisario’s representative to the UN Mission for Western Sahara, Mr Mhamed Khadad, adding that the judgment “has a much broader scope”. “No international agreement is applicable to the airspace of Western Sahara, and no authority can make decisions to give legal security to the planes who would like to transit in the territory”.

The new ruling indeed seems to have direct implications for companies such as Transavia, which opened up an airline connecting Paris to Dakhla in Western Sahara. Polisario has filed a lawsuit against Transavia with the State Prosecutor at the High Court in Paris in October this year, citing violation of the French penal code which criminalizes colonization. Transavia is one of the six companies named in the complaint lodged by Polisario, together with banks, an insurance company and a tourist agency. 

Spanish Member of the European Parliament Florent Marcellesi (Greens/EFA) reacted to the news this morning. "I welcome yet another major victory for the Saharawi people at the EU court and another shameful dressing down of the Commission by the highest EU jurisdiction. As had been repeatedly denounced by the Greens group in the European Parliament, the application of the EU Morocco aviation agreement to occupied Western Sahara was illegal. This has immediate consequences for EU carriers and EU passengers, notably from the Canary Islands who are without legal basis for flying to, from and over Western Sahara. This reckless behavior from Commission has put EU lives at risk. Greens will immediately seize the Commission for clarification of the consequences of this ruling. We also hope that this will finally wake up the Commission to the illegality of its proposed fisheries and agriculture agreements that it is trying to force though in parliament but will also face the same fate in Court, if adopted. How many more defeats in Court for the EU to finally understand that law matters, also in the conduct of external relations?"

On 24 April this year, Polisario initiated a case to halt the application of the agreement in Western Sahara, arguing that the concluding parties, Morocco and the EU, are not competent to conclude such an agreement covering the territory. 

Morocco was the first country outside Europe to sign such Aviation Agreement with the EU. The aviation deal with Morocco has been provisionally in force since December 2006. In February 2014, the EU Commission proposed an amended version of the deal, accounting for changes within the EU (three new Member States since 2006, and the Lisbon Treaty). This amendment was approved by the European Parliament in October 2017. The Member States concluded the deal on 22 January 2018.

On 16 May 2018, the Commission stated in the European Parliament that it is "currently examining if recent jurisprudence of the European Court of Justice has any implications for the Euro Mediterranean Aviation Agreement".

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Tomorrow, the European Parliament is scheduled to vote on an amendment to the EU-Morocco Aviation Agreement - without any clarifications from the EU Commission as to how the proposal aligns with the 2018 Ruling of EU Court of Justice, invalidating the application of that very Agreement to Western Sahara.

Update: the European Parliament has postponed all votes scheduled to take place on 10 March to a later date, due to the COVID-19-crisis.

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