Parliamentarians called for ignoring EU Court

In a hearing in the European Parliament yesterday, parliamentarians expressed differing opinions as to whether the ruling of the EU Court should be respected or not. 

29 October 2021

Archive photo: A Saharawi refugee protesting the EU's fisheries activities in Western Sahara.  

After Monday’s hearing in the European Parliament’s International Trade Committee (INTA), the EU Court ruling annulling both the EU-Morocco Trade Agreement and Fisheries Agreement was today debated in the Parliament’s Fisheries Committee (PECH). 

Like their colleagues in INTA, PECH Members wanted clarifications from the EU Council and Commission on the road ahead.

The discussions revealed substantially differing opinions on the question of EU agreements in relation to occupied Western Sahara. The Commission expressed its disagreement with the Court ruling, stating that the “local populations (sic)" benefit from the EU-Morocco agreements. No reference was made to the fact that all Saharawi groups advocating for right to self-determination have objected to the agreements - including the UN recognised representative of the Saharawis, the Polisario Front. 

The Members of the European Parliament (MEP) were split, some underlining that time has come to move on and accept the legal loss, while others stressed that the political relationship with Morocco is more important than the legal development. 

While an EU Council representative was present at the meeting, he had not been authorised to speak – much to the dismay of the Fisheries Committee’s Chair, Pierre Karleskind (Renew, France). The EU Commission’s Department for Maritime Fisheries (DG MARE) was represented by Veronika Veits, Director for International Ocean Governance and Sustainable Fisheries.

Ms Veits stressed the importance of Morocco as a key-partner for the EU on many fronts, and that the Sustainable Fisheries Partnership Agreement (SFPA) should be seen in this context. She defended the current practice, stating that the “Sustainable Fisheries Partnership Agreement is key for both Morocco and the European Union, also in light of the fact that it has lots of economic, social and political benefits". She went on to say that the “Agreement fully takes into account the ruling of the European Court of Justice of February 2018” and that “there is nothing in the Fisheries Agreement or its Protocol which would imply the recognition of Morocco’s sovereignty or sovereign rights over Western Sahara and the adjacent waters.”

A full transcript of Ms Veits' statement to the EP Fisheries Committee is included below.

Several intervening MEPs - all from Member States with fishing licences under the Agreement - called on Council to appeal, while others stressed that the time could better be used to comply with the ruling.

  • MEP Peter van Dalen (the Netherlands, EPP) stated that this deal offers great employment in the region” and is in the interest of “our fishermen”, in particular the pelagic fleet. “We've ended up in a discussion about the right to self-determination of a certain people, and as far as I'm concerned, in this context prevalence should be accorded to a good fisheries agreement that is to everyone's interest”. He called upon both Council and Commission to appeal, and said he understood Morocco is also ready to take that step.
  • MEP Clara Aguilera (Spain, S&D) said it was important to keep the Agreement ongoing: not just for the EU's fishing activities and particularly those of Spain, and above and beyond because it is “a significant agreement for the political relations with the kingdom of Morocco”. “I am concerned because there's a recent Court ruling which does impune what's been agreed and jeopardises the improvements made in 2019 and 2020”. In reference to the Court ruling's central conclusion that the Saharawi people ought to have consented for the deal to be legal, she raised that “there has been a consultation, and I think this was done, Ms Veits, so that this consent could be taken into account". “I am concerned about this legal recognition of the Polisario Front”. Referring to the interests of the fleet of her country, and her region, she wanted the Commission to confirm whether it is considering to appeal or not.
  • MEP Søren Gade (Denmark, Renew) stressed the importance of SFPAs as tools to support third countries in terms of financial contributions and employment. The EU vessels also benefit, he said. He expressed his concern about the ruling, as it would have a negative impact on the EU's relations with Morocco, which he called a stable partner.
  • A different position was expressed by Izaskun Bilbao Barandica (Spain, Renew), calling on her colleagues to focus on the debate at hand: “the debate on the agreement and its contents was way back some considerable time ago, so that is not the debate now. The debate today is that there is a Court ruling that states that the EU-Morocco Agreement is not correct because there is a sustantive requirement that was not met by Europe's institutions.” “The General Court holds that the role and representation of the Polisario Front means that it has a capacity to act vis-à-vis the judge”, adding that it also has “international representation as the representative of the Western Sahara people - doesn't matter whether we like that or not: this is not a matter of opinion, this is a sentence that we in Europe should be demanding be complied with". “All of us here have said that we respect the rulings from the European Courts because that is the framework we work in”. Rather than prolonging the situation further, Ms Bilbao called on the EU institutions to work to comply with the ruling.
  • Grace O'Sullivan (Ireland, Greens/EFA) was concerned that EU tax payers' money was paid to exploit the waters of a country where the local people has no say in the matter and have lived under occupation for decades. PECH ought to oversee correct implementation of the Common Fisheries Policy and international agreements, not just from an economic perspective but also in how it affects the people on the ground, she said. “In this case, 90% of the fish will be caught in the Western Sahara waters - that is my understanding - and the money will go to Morocco: essentially rewarding the occupation”. Her Group recommended against appealing, and instead called for meaningful engagement with the internationally recognised representative of the Western Sahara people. “If the Western Sahara people do not want European trawlers exploiting their waters, as they have indicated, then so be it."
  • MEP France Jamet (France, ID) said the CJEU ruling was “not defensible”. “The Polisario Front appeals to all possible jurisdictions, the same form of harassment against the kingdom of Morocco in the name of its supposed right to self-determination.”  She referred to an Resolution by the UN General Assembly of 2017 on autochtonous peoples in Brazil, Canada, etc, and said the EU also doesn't go back on agreements with e.g. Canada in relation to native peoples. She also raised the independence aspirations of the Kabylie people in Algeria. “The EU Court of Justice should have declared itself non-competent”, she said, adding that “democracy is not the same as being govered by judges.”
  • Dutch MEP Bert-Jan Ruissen (ECR) called upon Council to appeal and ensure continued access to the waters of Western Sahara.
  • João Pimenta Lopes (Portugal, The Left) said that the problems with the Agreement aren't new, and that the Court has simply confirmed them. As such, there is only one question now, he said, and that is not the one about appealing or not, but rather how to comply with the ruling - what measures are taken to sort the situation out? Mr Pimenta Lopes also asked what steps were being taken to remedy the impact of the Union's past actions on the rightful owners of the resources of Western Sahara: what is to be done in terms of reparations vis-à-vis the Saharawi people?
  • Francisco José Millán Mon (Spain, EPP), underlined that Morocco is a key partner with a privileged status, and said that the Western Sahara issue has to be solved at the level of the UN. “This is why I've always said that we should ensure that the matter of the Sahara does not have a negative impact on the bilateral relations between the EU and Morocco”, he added. “I very much regret that the Morocco SFPA should be stumbling against the same thing once again". He said all institutions were persuaded that the 2019 Agreement had solved these issues. He understood that the Council Legal Service had come out in favour of an appeal and asked the Commission whether they could confirm, and if there was a Plan B that would preserve the relations with Morocco.
  • MEP Benoît Biteau (France, Greens/EFA) underscored that no one disputes the importance of the Agreement with Morocco, but that the EU is also not discovering the problems relating to Western Sahara just now. The fact that these problems were not properly dealt with before, now had effects for the EU's relations with Morocco and with Western Sahara, he said. He called on the Union to respect the ruling, as disregarding international law will have catastrophic effect on EU diplomacy.
  • Chair of the Committee, MEP Pierre Karleskind (France, Renew) had two questions for the Commission: first, how can an agreement be reached if the Polisario do not want to be consulted, and second, how can an arrangement for EU vessels be ensured for the waters in Western Sahara?



EU Commission’s Department for Maritime Fisheries (DG MARE), Director for International Ocean Governance and Sustainable Fisheries, Ms Veronika Veits:

Opening statement:

“Thank you very much indeed, Mr Chairman, there seems to be a bit of a marathon in the Fisheries Committee. The General Court annulled the Council Decision on the Conclusion of the Sustainable Fisheries Partnership Agreement between the European Union and Morocco, its implementing Protocol and the Exchange of Letters accompanying the Agreement, as well as the Council Decision on the Allocation of Fishing Opportunities. It also annulled the Agreement between the European Union and Morocco granting tariff preferences to products of Moroccan origin in order to extent the preferences to products originating in Western Sahara. But obviously I will focus here on the fisheries agreement since the other agreement has been subject to discussion in INTA and Com Maghreb. 

What’s important to understand is that the General Court decided that the effects of those annulment decisions are maintained over – of those decisions that are being annulled are maintained over a certain period. So they are maintained either for the time that is allowed for making an appeal, so that’s two months, or in case an appeal is lodged until the time the Court takes the judgment on the appeal. And this they did in order to preserve the European Union’s external action and legal certainty over its international commitment. So that’s what we have in front of us. 

Let me talk a little bit about our Partnership Agreement with Morocco, and I would like to recall in this context that Morocco is a key partner for the European Union in many fronts, and not only in fisheries. So the Fisheries Partnership Agreement with Morocco needs to be seen in this wider perspective. It needs also to be recalled that our cooperation with Morocco in fisheries has a long history and as a result we have now a robust cooperation beyond the Sustainable Fisheries Partnership Agreement, multilaterally e.g. in important regional fisheries management organisations such as the General Fisheries Commission for the Mediterranean or the International Commission for the Conservation of Atlantic Tuna, and we have also a very good cooperation in the context of Sustainable Blue Economy. 

So the Sustainable Fisheries Partnership Agreement is key for both Morocco and the European Union, also in light of the fact that it has lots of economic, social and political benefits. It’s clearly benefitting the marine environment, the biodiversity and brings social-economic benefits to the population. More specifically, it gives access to around 130 vessels flying the flag of 10 Member States. It contributes to scientific research, the modernisation of coastal infrastructures, and the economic and social development of coastal communities in Morocco and in the Western Sahara. 

So, the current sustainable fisheries partnership agreement is the result of long negotiations. It entered into force on the 18th of July 2019, following the consent given by the European Parliament on the 12th,of February 2019 and the Council Decision of the 4th of March 2019 on the conclusion of the Agreement. The current Sustainable Fisheries Partnership Agreement fully takes into account the ruling of the European Court of Justice of February 2018. What had that ruling said? In 2018, the European Court of Justice had ruled that the previous Agreement from 2007 and its Protocol of Implementation were not applicable to the waters off the coast of the territory of Western Sahara. The new Agreement, the currently applicable Agreement, spells out explicitly the fishing grounds to which it applies, and this includes the waters off the coast of Western Sahara. The exchange of letters which is an integral part of the current Agreement, states each party’s respective position on the status of the territory of the Western Sahara, and there is nothing in the Fisheries Agreement or its Protocol which would imply the recognition of Morocco’s sovereignty or sovereign rights over Western Sahara and the adjacent waters. 

Importantly also in this context, the Agreement and its Protocol include provisions ensuring the fair distribution of the financial compensation amongst the population concerned. This means that this contribution benefits Western Sahara in proportion of the fishing activity that is taking place in the waters of this territory. Since the Agreement entered into force, it has been implemented smoothly, benefitting the EU fishing operations and the concerned population. In December 2020 after the first year of implementation, the joint committee under the current agreement assessed positively the fair geographical and social distribution of the socio-economic impacts of the Agreement’s financial contribution. Please be aware in this context that the conclusions from joint committee in question were sent to the European Parliament on the 4th of January this year.

So, the latest judgment of the General Court of the 29th of September 2021, is a judgment on the Agreement of fisheries and tariff preferences with Morocco, as I said. So, in essence, what does it say? The General Court ruled that the extension of the Agreement with Morocco to the territory of Western Sahara requires the consent of the population concerned. So that’s the essence of the judgment. And the Polisario Front, which the General Court considers to be the legitimate representative of the Western Sahara people did not express its consent to the proposed Agreements, and it is for that reason that the General Court concluded that the condition for an extension of the agreement to the Western Sahara was not fulfilled. So in conclusion, the judgment annulled the two Council Decisions, and as I said before, it maintains the application for the period during which an appeal could be lodged, or if an appeal is lodged, until the judgment of the Court of Justice upon such appeal. And this is to avoid the serious consequences of an annulment with immediate effect. The deadline for the introduction of an appeal expires on the 16th December. If an appeal is lodged, these effects would stand for the duration of the examination by the European Court of Justice, which usually takes around 2 years.

Should an appeal not be lodged, the immediate consequence would be that the European Union fleet would not be able to continue fishing in the waters that the Agreement covers as from mid-December, with consequences also on the financial obligations on our side as well as on the ongoing projects on the sectoral support.

I would like to stress here that the case was brought against the Council Decision. This means that it is primarily up to the Council to decide whether to lodge an appeal or not. And the Council is currently examining this option. But let me reassure you that also the Commission is carefully assessing all the elements of the judgment and exploring all the options for the way forward. We will also in the meantime continue the work on the correct application of the current agreement. For instance, we are scheduling a joint committee to take place before the end of 2021, in order to monitor and to take stock of the utilisation of the fishing opportunities and to assess the impact of the financial compensation. So in a nutshell, that is the factual situation which we are facing at the moment. Thank you very much.”

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