Sweden opposes Council appeal on Western Sahara court ruling

In a move that surprised no one, the EU Council has appealed the recent EU Court of Justice stopping EU trade and fisheries in occupied Western Sahara. But Council was not unanimous. UPDATE 06.12.2021.

29 November 2021

UPDATE, 06.12.2021:

Two countries issued explanations of vote in the Council meeting. Sweden and Denmark. 

"Appeal against judgments of the EU General Court in Case T279/19, Front Polisario v Council and Joined Cases T-344/19 and T-356/19, Front Polisario v Council Approval 13455/21 JUR 

Statement by Denmark “Denmark has taken careful note of the legal assessment and recommendation of the Council Legal Service. On this basis, Denmark supports an appeal of the judgment of the General Court handed down on 29 September 2021 in Case T-279/19 and in Joined Cases T-344/19 and T-356/19 in order to obtain full legal certainty. Denmark has consistently emphasised that the concerned agreements in these cases must be consistent with the judgment of the Court of Justice handed down on 21 December 2016 in Case C-104/16 P and do not prejudge the status of Western Sahara under EU and international law. Denmark continues to support the United Nations process to find a just, lasting and mutually acceptable political solution for Western Sahara.” 

Statement by Sweden "It is important to maintain the cooperation between the EU and Morocco. Sweden highly values this cooperation. However, questions pertaining to Western Sahara must be handled with respect for international law. Sweden notes that the General Court has annulled the agricultural and fisheries partnership agreements between the EU and Morocco, with reference to international law. The ruling on 29 September is in line with past rulings by the Court of Justice and with Sweden’s position. Sweden shares the assessment of the General Court and sees no need for an appeal, as proposed by the Council Legal Service. Sweden will thus vote against an appeal by the Council of the General Court’s ruling. Sweden can accept that the question of an appeal of the court ruling is treated as a I point by COREPER II, but wants its stated position recorded.""

Western Sahara Resource Watch has learned that Sweden has voted against the EU Council's decision to appeal the September ruling of the General Court of the European Union, that annulled both the EU-Morocco agricultural agreement and the fisheries agreement insofar as they were applied to occupied Western Sahara.

The Swedish objection to the appeal is in line with the country's stated position that EU-Morocco bilateral agreements should not be extended to Western Sahara. In 2018, Sweden was the only EU Member State to object to the practice that the EU had adopted in response to previous rulings by the EU Court of Justice that had already invalidated the application of EU-Morocco deals to the last colony in Africa: the approach of inserting an amendment into the contested agreements so as to explicitely include Western Sahara in their geographical scope, without consent of the people of the territory. Sweden explained its refusal to endorse such amendments by stating that "the legal requirements from the European Court of Justice have not been met" as "vital organizations representing the people of Western Sahara have not given their consent".

The Swedish government sought support in the Parliament for it’s position to vote against the appeal, and noted that the 29 September 2021 ruling “is in accordance with previous rulings and the [Swedish] government's position, in that a treaty may not create obligations or rights for third parties without their consent and that the agreements can thus not be concluded without the consent of the people of Western Sahara. The government therefore intends to vote no to the judgments being appealed.” None of the political parties opposed this position.

That the people of Western Sahara are to consent to EU agreements affecting their land, was the conclusion that the EU Court of Justice had rendered in the appeal of the EU Council on the 2015 ruling annulling the EU-Morocco agricultural agreement in Western Sahara. It was the first of now five consecutive rulings by the EU Court of Justice that have all come to the same conclusion: as Morocco has no sovereignty or administering mandate over Western Sahara, and given the territory's separate and distinct status in relation to any other country in the world, the EU cannot include it in its deals with Morocco. So far, Council had only appealed that very first ruling by the General Court of the EU of 2015, then backed by a unanimous Council, as several Member States reportedly cited the importance of exhausting the entire legal procedure to have full clarity on the matter. 

WSRW is not aware of potential other diverging positions expressed by other EU Member States.

As a consequence of the current decision to appeal, both agreements that were subject to the September 2021 ruling - the trade and the fisheries agreement - will continue to be applied to Western Sahara until the EU Court of Justice has pronounced itself. The process is expected to take another year.

Polisario Front, the UN-recognised representative of the people of Western Sahara and other party to the EU Court cases, has condemned the decision to appeal. "It demonstrates the conspiracy of some European parties with the Moroccan occupier, to continue plundering the wealth of the Sahrawi people, and testifies to the attempt to hinder the decolonisation process", an official press text reads.

The appeal had already been approved provisionally at the level of EU Member States' Ambassadors (COREPER) on 10 November, but still required approval at Ministerial level. That was granted on 19 November during the meeting of the EU Ministers for Development. The COREPER approval came only days after the king of Morocco had issued a clear threat vis-à-vis the Union. Celebrating Morocco's invasion of Western Sahara on 6 November, the king stated that “I wish to tell those with ambiguous or ambivalent attitudes, that Morocco will not have any economic or commercial transaction with them in which the Moroccan Sahara is not included". 

The EU considers Morocco an important trade and investment partner. As pointed out by EU Commission officials in hearings in the EU Parliament in late October, Morocco is “the first trading partner in the southern neighbourhood, and the 20th overall. Trade between the EU and Morocco is worth €35 billion: the worth of goods that are exchanged. This was the figure in 2020, so it is indeed an important, sizeable relationship.”

The decision to appeal comes amid increased tension on migratory issues between the EU and Morocco. Late October, the Commission's Action Plan on Migration with partner countries was leaked - one of those partners is Morocco. The draft recommends that "a partnership of equals" be implemented with Morocco "through dialogue, responsibility sharing, mutual trust, and respect". It describes Morocco as "a major partner in the Southern Neighborhood" and qualifies the bilateral cooperation on migration as "solid and long-standing". Coming on the back of increased migratory flows from Morocco and Western Sahara to Europe, the document stresses the need for "Morocco’s reinforced commitment".

The appeal is directed against the ruling of the General Court of the European Union of 29 September 2021, annulling the EU Council's decision to extend both the EU-Morocco Agricultural Agreement and Fisheries Agreement into Western Sahara. It was the fifth consecutive ruling by the EU Court of Justice on the practice of applying EU-Morocco agreements to the territory. All those rulings concluded 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, as had been denounced at the time, inter alia by Western Sahara Resource Watch.

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