Il n'est "pas évident" de savoir si l'exigence de la Cour de justice européenne d'obtenir l'accord de peuple du Sahara Occidental a été respectée. Tel est le principal argument d'un nouvel avis préparé par le service juridique du Parlement européen concernant le projet de l'accord commercial UE-Maroc que la Commission tente de faire passer.

Western Sahara Resource Watch (WSRW) a obtenu une copie du document. Lisez le texte complet ci-dessous (en anglais).

Le Parlement Européen prépare actuellement sa position sur le projet d’accord commercial pour le Sahara Occidental que la Commission de l’UE a négocié avec le Maroc. L'accord prévoit la modification de deux protocoles à l'accord d'association conclu entre l'UE et le Maroc, de sorte qu'il s'applique désormais expressément au Sahara Occidental. Cette évolution découle de l'arrêt de la Cour de justice de l'Union européenne du 21 décembre 2016, concluant qu'aucun accord UE-Maroc ne pouvait être appliqué au territoire du Sahara Occidental sans le consentement explicite du peuple de ce territoire.

À mesure que différentes commissions parlementaires examinent la proposition de la Commission, les questions relatives à sa base juridique - l'obtention du consentement du peuple sahraoui - sont légion. Le 23 août 2018, le président de la commission du commerce international du Parlement européen, le socialiste allemand Bernd Lange, a demandé au service juridique du Parlement européen de clarifier la situation.

Une réponse a été fournie sous la forme d'un avis juridique du 13 septembre 2018.

L’avis juridique indique qu’il faut essentiellement satisfaire à deux critères pour appliquer légalement aux produits originaires du Sahara Occidental les droits préférentiels accordés par l’UE au Maroc : la portée territoriale de l’accord doit être explicitement énoncée, et l'extension de la portée territoriale de l'accord UE-Maroc au Sahara Occidental est subordonnée à l’accord du peuple du Sahara Occidental ".

En référence au processus de consultation de la Commission et du SEAE, l'avis indique qu'"il semble difficile de confirmer avec un degré élevé de certitude si ces mesures satisfont à l'exigence imposée par la Cour d'un consentement du peuple du Sahara Occidental, notamment compte tenu du fait que la conclusion qu'un consentement a été obtenu l'est malgré l’avis négatif exprimé par le Front Polisario."

La Commission avait souligné dans son rapport aux États membres qu'il était bénéfique pour le Sahara Occidental de mettre en place un système commercial, bien que la CJUE (§106) ait explicitement déclaré que cet argument n'était pas pertinent. Le nouvel avis juridique du Parlement rappelle qu'il n'est pas certain, selon le service juridique, que l'ensemble soit "pertinent dans l'évaluation du consentement comme l'exige la Cour".

L’avis juridique semble cependant prendre pour acquis que la Commission est honnête dans sa représentation du processus de consultation. WSRW a documenté que la Commission mentait en affirmant que 112 organisations ou individus du Sahara Occidental avaient pris part au processus. Le nombre réel n’est que de 18 et il s’agit de voix marocaines, d’organes gouvernementaux marocains, d’ONG marocaines. 94 organisations sahraouies et pro-sahraouies ont été ajoutées à la liste officielle des groupes consultés par l'UE, bien qu'elles n'aient jamais pris part à la consultation sur l'accord UE-Maroc. Parmi les organisations faussement incluses dans la liste des "consultés" se trouve notre propre association, Western Sahara Resource Watch.

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The Jurisconsult

Opinion of the Legal Service

3 SEP, 2018

Note for the attention of:
Mr Bernd LANGE, Chair of the Committee on International Trade
c/o Mr Martti KALAUS, Head of Unit

Subject: Agreement amending Protocols 1 and 4 to the Euro-Mediterranean Agreement EU-Morocco – 2018/0256 (NLE)

On 23 August 2018, the Legal Service received your request for a legal opinion on a
Proposal for modification of the EU-Morocco Trade Protocols.

In its opinion which you will find attached, the Legal Service has reached the
following conclusions:

a) On the basis of the judgment of 21 December 2016, it can be concluded that agreements between the Union and Morocco that intend to apply a preferential tariff to products from Western Sahara firstly have to provide explicitly for such territorial scope of application. Secondly, the extension of the territorial scope of application of EU-Morocco agreements to Western Sahara is conditional upon the consent by the people of Western Sahara. The judgment does not allow for a definitive conclusion as to whether other conditions apply.

b) The Court judgment of 21 December 2016 did not concern the ways in which the respect for EU requirements on imports should be ensured. The Amending Agreement confers on products originating in the part of Western Sahara under the control of Morocco the legal regime applicable to the products originating in Morocco. The implementation of the Liberalisation Agreement and the compliance with EU requirements by Moroccan authorities is not modified by the Amending Agreement.

c) The conclusion process reflects the steps that may reasonably be considered as available to the Union institutions in view of securing the consent of the people of Western Sahara to an agreement to be concluded with Morocco; nevertheless, it remains uncertain whether the requirement of the Court judgment in the Case C-104/16P is met.

d) According to the Commission Report on benefits for the people of Western Sahara, the Agreement can be resumed to be beneficial to the region of Western Sahara as it confers an additional right to that region. The Amending Agreement itself contains a rendez-vous clause, on the adoption of arrangements for the exchange of information between the EU and Morocco in view of assessing the beneficial effect of the Liberalisation Agreement ex post. However, it is uncertain whether these two elements are relevant in the assessment of the consent as required by the Court.

e) The Amending Agreement cannot be applied provisionally, unless the Council first adopts a decision under Article 218(5) TFEU, for which the Commission has however not made a proposal.

f) The procedure of a request for an advisory opinion under Article 218(11) TFEU does not have the effect of suspending the procedure leading to the conclusion of an international agreement. However, such a request by the European Parliament de facto suspends this procedure, provided that Parliament has not yet given its consent to the agreement.

g) Products originating from Western Sahara are, in the absence of an extension of the trade preferences under the EU-Morocco Association Agreement, subject to normal costumes tariffs as applicable in the EU under the most-favoured nation treatment.”

The Legal Service remains of course at your disposal for any further information you may require.




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Legal Service

Opinion of the Legal Service

13 SEP, 2018

LEGAL OPINION

Subject: Agreement amending Protocols 1 and 4 to the Euro-Mediterranean agreement EU-Morocco - 2018/0256 (NLE).

I. Introduction

1. On 11 June 2018, the Commission adopted proposals for Council Decisions on the signing and on the conclusion of the Agreement in the form of an Exchange of Letters amending Protocols 1 and 4 to the Association Agreement between the European Union and Morocco [1]. On 10 July 2018, Council adopted the Decision regarding the signature of the Agreement. The Amending Agreement [2], which is the result of negotiations conducted in the wake of the Court’s judgment in the Case C-104/16P [3], aims at providing a legal basis for the application of the preferential trade regime between the Union and Morocco to agricultural, processed agricultural, fish and fishery products originating in Western Sahara. In the Case C-104/16P, the Court ruled that the Liberalisation Agreement of 12010 established the preferential trade regime did not apply to the territory of Western Sahara.

2. According to the Amending Agreement, the EU and Morocco agree to attach to Protocol 4 to the Association Agreement a Joint Declaration which provides, in Paragraph 1, that “products originate in Western Sahara subject to controls by the Moroccan customs authorities shall benefit from the same trade preferences as those granted by the European Union to products covered by the Association Agreement”.

3. The Committee on International Trade is preparing its recommendation on the consent to Council's draft Decision concluding the Agreement amending Protocols 1 and 4 to the Association Agreement. In this context, the Committee Chair Mr B. Lange has, by letter of 23 August 2018, requested a legal opinion on six questions (Annex).

II. Legal Analysis

Question 1
According to the Court’s judgement in the Case C-104/16P, under which conditions would it be possible to apply tariff preferences to products originating in Western Sahara, and to ensure respect for the related EU requirements, including on food and safety standards?

The judgment in the Case C-104/16?

4. On 13 December 2010, the EU and Morocco agreed on further reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products; the so-called Liberalisation Agreement entered into force on 1 September 2013. [5] By request of 19 November 2012, the Polisario Front brought an action for annulment of Council Decision of 8 March 2012 on the conclusion of the Liberalisation Agreement, relying on the alleged application of the Agreement to the territory of Western Sahara and putting forward 11 pleas in law. On 10 December 2015, the General Court delivered its judgment in the Case T-512/12, in which it annulled Council Decision of 8 March 2012 in so far as it approved the application of the Liberalisation Agreement to Western Sahara. [6] On appeal brought by Council, the Court of Justice, by judgment of 21 December 2016 in the Case C-104/16P, set aside the General Court’s judgment and dismissed the action for annulment brought by the Polisario Front. Finding that, in light of the principles of international law applicable between the Union and Morocco, the Liberalisation Agreement could not be interpreted as applying to Western Sahara, the Court of Justice rejected the action for annulment as inadmissible, as a Council Decision concluding an international agreement that does not apply to Western Sahara could not possibly be of concern to the Polisario Front within the meaning of Article 263 TFEU.

The conditions for the application of the preferential trade regime

5. While rejecting the action as inadmissible, the Court ruled that Western Sahara “may be affected by the implementation of the Association Agreement [concluded between the EU and Morocco] 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”. For the Court, “in either case, that implementation must receive the consent” of the people of Western Sahara, third party to the Association Agreement. [7]

6. This finding, which does not explicitly address the options available to the Union in view of validly applying tariff preferences to products originating in Western Sahara, is based on the status of Western Sahara in international law. The judgment of 21 December 2016 decisively states that Western Sahara has, as a non-self-governing territory and by virtue of the principle of self-determination, a separate and distinct status in relation to that of any state, including Morocco. [8] In consequence, in light of the Court’s reasoning, applying the legal principles related to self-determination, to the territorial scope of treaties and to their effect on third parties, [9] one may identify two conditions that should guide the Union’s approach to the establishment and development of trade relations with Western Sahara through international agreements between the EU and Morocco.

7. Firstly, in accordance with the principle laid down at Article 29 of the Vienna Convention on the law of Treaties (hereafter the Vienna Convention), the definition of the territorial scope of agreements concluded between the EU and Morocco, with regard to their application in Western Sahara, cannot depend on the discretion of the parties in the implementation of these agreements. Agreements concluded between the Union and Morocco that intend to apply to Western Sahara, a third party, have to provide explicitly for such territorial scope of application. [10].

8. Secondly, in the light of the principle of relative effects of treaties on third parties reflected at Article 34 of the Vienna Convention, the extension of the territorial scope of EU-Morocco agreements to Western Sahara is conditional upon the consent of the people of Western Sahara, third party to these agreements. [11] This consent is required, regardless of whether the implementation of an agreement EU-Morocco is beneficial to or potentially harming Western Sahara.

9. These two conditions are therefore necessary requirements for what concerns the territorial scope and the effects on third parties of international agreements concluded between the Union and Morocco.

10. In addition, in respect of the scope of the principle of self-determination, the Court pointed out that it is “a legally enforceable right erga omnes and one of the essential principles of international law”, that is “applicable to relations between the European union and the Kingdom of Morocco”[12]. As a right enforceable erga omnes, it imposes on all subjects of international law, including the European Union, the obligation not to recognize as licit a situation created by infringement of this right [13]. Therefore, also because of the uncertainties as to the representation of the people of Western Sahara, [14] it is unclear whether it is possible at all to conclude an agreement covering “products originating in Western Sahara subject to controls by the Moroccan customs authorities” without breaching the obligations attached to the right to self-determination.

11. Finally, in his Opinion delivered in the Case C-104/16P, the Advocate General also addressed the respect of the “principles and rules concerning the basic rights to the human person”, another obligation erga omnes on subjects of international law, which obliges the union to “examine the impact which the international agreement at issues could have on human rights”. [15] Since the Court rejected the action as inadmissible, it did not rule on this point. However, it is noted that the Commission Report on benefits for the people of Western Sahara, accompanying the proposal on the conclusion of the Amending Agreement, contains a Section on human rights in Western Sahara, in which the impact of the extension of trade preferences is assessed in light of the human rights situation. Noting that repressive practices remain and that NGOs continue to face obstacles, the Commission pointed to the encouraging climate of reforms in recent years. [16]

The respect of EU requirements

12. Given the nature of the action and the corresponding scope of the judgement of 21 December 2016, the Court did not address arrangements concerning the respect of EU requirements on imports.

13. Paragraph 1 of the Joint Declaration to be attached to Protocol 4 to the Association Agreement provides for the extension of the preferential trade regime to “products originating in Western Sahara subject to controls by the Moroccan customs authorities”. According to Paragraph 3, “the customs authorities of the Member States of the European Union and Morocco shall be responsible for ensuring that Protocol 4 is applied to these products”.

14. The extension of the trade preferences under the Association Agreement therefore consists in conferring to products originating in the part of Western Sahara under the control of Morocco the legal regime applicable to the products originating in Morocco. The Amending Agreement does not establish a distinct customs origin for products from Western Sahara.

15. The implementation of the Liberalisation Agreement and the compliance with EU requirements by Moroccan authorities, including for what concerns products originating in Western Sahara, is therefore not modified by the Amending Agreement.

Question 2
Do the consultations with “people concerned by the EU-Morocco Association Agreement” meet the requirement set by the CJEU of expressing the consent of the people of Western Sahara?

16. In the judgement of 21 December 2016, the Court of Justice interpreted the Liberalisation Agreement and the Association Agreement in lights of principles of international law, to conclude that the Liberalisation Agreement did not cover Western Sahara. For it to be the case, such implementation should receive the consent of the people of Western Sahara. [17] However, the Court did not define how such consent should be expressed.

17. In order to comply with the Court’s judgement, the Commission conducted consultations in view of securing the consent of the people of Western Sahara. According to Recital 10 of the Commission proposal for a Council Decision on the conclusion of the Agreement amending the Liberalisation Agreement, “the Commission, in liaison with the European External Action Service, has […] ensured tat the people concerned by the Agreement have been appropriately involved by conducting consultations covering a wide range of socio-economic and political operators from The Western Saharan population.” The conclusion drawn from these consultations is that “the majority of these operators said they were in favor of extending the tariff preferences in the Association Agreement to Western Sahara”. In its Reports on benefits for the people of Western Sahara, the Commission adds that “the Moroccan authorities have consulted all national, regional and local institutions concerned, to raise awareness and obtain their approval and input”. [18] The Commission further details the method and the main findings of the consultations conducted, “to exchange views and comments on the potential benefits for the people and the economy of Western Sahara of extending the preferential treatment granted to Moroccan products to products imported from Western Sahara to the EU”. [19]

18. Since the requirements of the consent is based on the principle of the relative effect of treaties, it is in the light of the corresponding provisions in the Vienna Convention – Articles 34 to 36 – that two questions not explicitly addressed in the judgment are examined with a view to assessing whether the consultations conducted by the Commission correspond to the expression of a consent, as required by the Court of Justice.

19. The first question concerns the possibility of a presumed consent as laid down in Article 36 of the Vienna Convention, [20] not addressed by the Court, which relied on Article 34 of the Vienna Convention concerning the effect of treaties on third parties. According to Article 35 of the Vienna Convention first, a treaty cannot impose obligations on a third party unless the latter has expressed its acceptation in writing. By contract, Article 36(1) provides that a treaty can validly confer rights on a third party, its assent being presumed so long as the contrary is not indicated. Therefore, and provided that it is possible to identify rights and obligations in complex bodies of rules, the Vienna Convention establishes the principle that obligations must be explicitly accepted by a third party, whereas the third party must have the possibility to disclaim rights conferred on it. For the Court, it is the general principle of international law on the relative effects of treaties, “of which the rule contained in Article 34 of the Vienna Convention is a specific expression”, that justifies the requirement of a consent expressed by Western Sahara. [21] The Court therefore did not distinguish whether the Liberalisation Agreement would confer rights or impose obligations on the third party, distinction that is on the other hand enshrined in the Vienna Convention. 

20. In light of this, it is firstly noted that the Commission has actively sought the consent of the third party, thereby allowing for the expression of acceptance or refusal to extend the preferential trade regime to products originating in Western Sahara. Such endeavour is in line with the principle laid down in the Vienna Convention, regardless of the identification of obligations imposed or of rights conferred on the third party. 

21. On the other hand, the Explanatory Memorandum to the Commission proposal on the conclusion of the Agreement concludes that “if it is clear from international law, particularly Article 36 of the Vienna Convention, that the granting of preferences is in itself no more than an additional right for the region of Western Sahara that does not include any obligations in return, and can therefore be presumed to be of benefit to the region”. [22]

22. In relation to this statement, it is reminded that the Court, in the judgement of 21 December 2016, ruled that the application of trade preferences to products from Western Sahara would require the consent of the people of Western Sahara, “without it being necessary to determine whether such implementation is likely to harm it, or on the contrary, to benefit it”, [23] that under Article 36 of the Vienna Convention, the third party to an agreement must have the possibility to disclaim rights conferred on it and that the Polisario Front has expressed a negative opinion in this regard. 

23. The second question concerns the capacity to express the consent by the third party. Whereas the 1969 Vienna Convention and the principle of the relative effects of treaties envisage the conventional relations between States, the Court of Justice, in the Case C- 104/16P, applied these principles by analogy to Western Sahara, to conclude that “the judgment under appeal [did] not show that the people of Western Sahara have expressed any such consent”. [24]

24. This conclusion is the consequence of a reasoning based to on the status of Western Sahara under international law, as a non-self-governing territory that still has to exercise its right to self-determination within the meaning of Article 73 of the UN Charter. If, according to Resolution 2625 of the UN General Assembly, [25] the holder of this right is the people of the non-self-governing territory, the Resolution addresses neither the definition of the people nor the authority and the legitimacy to represent the people. Whereas, as pointed to by the Court, [26] in 1979 the UN General Assembly identified the Polisario Front as “the representative of the people of Western Sahara” in the political process for the settlement, [27] the definition of this people on the other hand turned out to be a lasting divisive issue of the settlement process. [28]

25. In light of this, the consultations conducted by the European Commission in order to seek the consent of the Western Sahara’s people face the very difficulties that the settlement process itself entails. [29] It cannot be established with certainty whether the Union institutions are able in practice to secure the consent of the people of Western Sahara in order to meet the condition spelled out in the Court’s judgment of 21 December 2016. The legal assessment of the consent consequently follows the limits of the consultation exercise itself.

26. If, therefore, the Commission seems to have taken any steps that were available to obtain a consent and could find that “most of those interviewed by the [Commission and the EEAS] were in favour of extending the tariff preferences”, [30] Commission Staff Working Document SWD(2018) 346 final of 11.06.2018 p. 32, it seems difficult to confirm with a high degree of certainty whether these steps meet the Court’s requirement of a consent by the people of Western Sahara, also taking into consideration that the conclusion of a positive consent is reached in spite of the negative opinion expressed by the Polisario Front. [31]

Question 3
According to the agreement, and the proposed changes thereto, how does the preferential trade regime benefit to the people of Western Sahara?

27. Together with its proposal for Council Decisions on the signing and on the conclusion of the Amending Agreement, the Commission joined a Report on benefits for the people of Western Sahara, in which it concludes that the impact of trade preferences applied to products from Western Sahara would be beneficial to “all parts of the population, regardless of background, to a greater or lesser extent”. For the Commission, on the other hand, “these benefits would be compromised if exports to the EU did not enjoy the same tariff preferences as those granted to Morocco”. [32] The Report, which constitutes a tool for assessing the potentially beneficial impact of the proposed Agreement on the people of Western Sahara, does not foam part of the agreement.

28. In addition to the assessment ex ante, the Amending Agreement provides that the EU and Morocco will exchange information at least once a year by means of the Association Committee, "in order to allow the parties to assess the impact of the Agreement, particularly on sustainable development and with regard to the advantages for the people concerned and the exploitation of the natural resources of the territories in question". The arrangements for the evaluation exercise will be adopted by the Association Committee at the latest two months after the entry into force of the Amending Agreement, According to Article 83 of the Association Agreement, the Association Committee "draw(s) up its decisions by agreement between the Parties".

29. The Amending Agreement therefore contains a rendez-vous clause, on the adoption of arrangements for the exchange of information between the EU and Morocco in view of assessing the beneficial effect of the Liberalisation Agreement. However, these arrangements are limited to the assessment of the impact and do not involve specific mechanisms for remedying possible shortcomings of the effects of the trade preferences for the people of Western Sahara.

Question 4
Can the exchange of letters be provisionally applied and under which conditions?

30. The Agreement in the form of an Exchange of Letters provides that it "can be applied provisionally by mutual agreement notified by an exchange of notifications between the parties, with effect from the date of the signature authorised by the Council of the European Union".

31. In the EU legal order, the provisional application of international agreements to which the EU is a party requires, according to Article 218 (5) TFEU, a decision by the Council, acting on proposal by the negotiator.

32. The Commission proposal confirms, in the Explanatory Memorandum, that the Agreement includes the possibility of applying the Agreement provisionally; such provisional application is nevertheless not deemed necessary. [33] In light of this, the Agreement amending the Liberalisation Agreement cannot be applied provisionally, unless the Council first adopts a decision under Article 218(5) TFEU, for which the Commission has however not made a proposal.

Question 5
What is the effect of a request for an opinion from the Court under Article 218(11) TFEU on the procedure leading to the conclusion of an international agreement?

33. According to Article 218(11) TFEU, “a Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties”.

34. The request for an opinion has formally no suspensory effect on the procedure for the adoption of international agreements. If, in spite of a request for an opinion on the compatibility of an international agreement with the Treaties, this international agreement is concluded by Council while the request is still pending, then the request becomes devoid of purpose [34].

35. Nevertheless, when Parliament’s consent is foreseen in accordance with Article 218(6) TFEU, the conclusion of this international agreement cannot validly proceed before Parliament has approved the decision on the conclusion. Parliament’s Rules of Procedure reflect this sequence, as Rule 108(6) RoP provides that, “if Parliament approves the proposal to seek an opinion from the Court of Justice, the vote on request for consent or opinion shall be adjourned until the Court has delivered its opinion”. In consequence, if Parliament submits a request to the Court in accordance with the procedure laid down at Rule 108(6) RoP, the procedure for the consideration of the consent is on hold in the European Parliament. Since Council cannot validly adopt a decision concluding an international agreement without Parliament’s consent when such procedure is applicable, the procedure of request for an advisory opinion de facto suspends the procedure leading to the conclusion of an international agreement.

Question 6
In the absence of an explicit extension of the scope of the Protocols, which tariffs are applied to products originating in Western Sahara?

36. According to the Commission Report on the benefits for the people of Western Sahara, “without tariff preferences, Western Saharan products would be subject to normal custom tariffs (as applicable in the EU under the most-favoured nation clause), without privileged access to the EU market”. [35]

37. This statement, which implies that it is possible to identify products originating in Western Sahara, is the logical consequence of the Union’s political decision to grant tariff preferences to products originating in Western Sahara, combined with the fact that Morocco controls a large part of the territory. In this sense and according to the Explanatory Memorandum of the Commission proposal on the conclusion of the Amending Agreement, “an agreement between the European Union and the Kingdom of Morocco is the only means of ensuring that the import of products originating in Western Sahara can benefit from preferential origin, given that only the Moroccan authorities are able to ensure compliance with the rules necessary for the granting of such preferences”. [36]

38. Given the situation in the part of Western Sahara controlled by Morocco, the extension of the trade regime under the EU-Morocco Agreement is indeed, in practice, the only possible way to grant preferences to products from tis part of Western Sahara. Theoretically though, it may be reflected on whether, in the case of trade with a non-self-governing territory, listed as a developing territory, which is not member of the WTO, other types of instruments for granting trade preferences on a unilateral basis would be available.


III. Conclusions

39. The Legal service reaches the following conclusions:

a) On the basis of the judgment of 21 December 2016, it can be concluded that agreements between the Union and Morocco that intend to apply a preferential tariff to products from Western Sahara firstly have to provide explicitly for such territorial scope of application. Secondly, the extension of the territorial scope of application of EU-Morocco agreements to Western Sahara is conditional upon the consent by the people of Western Sahara. The judgment does not allow for a definitive conclusion as to whether other conditions apply.

b) The Court judgment of 21 December 2016 did not concern the ways in which the respect for EU requirements on imports should be ensured. The Amending Agreement confers on products originating in the part of Western Sahara under the control of Morocco the legal regime applicable to the products originating in Morocco. The implementation of the Liberalisation Agreement and the compliance with EU requirements by Moroccan authorities is not modified by the Amending Agreement.

c) The consultation process reflects the steps that may reasonably be considered as available to the Union institutions in view of securing the consent of the people of Western Sahara to an agreement to be concluded with Morocco; nevertheless, it remains uncertain whether the requirement of the Court judgement in the Case C-104/16P is met.

d) According to the Commission Report on benefits for the people of Western Sahara, the Agreement can be presumed to be beneficial to the region of Western Sahara as it confers an additional right to that region. The Amending Agreement itself contains a rendez-vous clause, on the adoption of arrangements for the exchange of information between the EU and Morocco in view of assessing the beneficial effect of the Liberalisation Agreement ex post. However, it is uncertain whether these two elements are relevant in the assessment of the consent as required by the Court.

e) The Amending Agreement cannot be applied provisionally, unless the Council first adopts a decision under Article 218(5) TFEU, for which the Commission has however not made a proposal.

f) The procedure of a request for an advisory opinion under Article 218(11) TFEU does not have the effect of suspending the procedure leading to the conclusion of an international agreement. However, such a request by the European Parliament de facto suspends this procedure, provided that Parliament has not yet given its consent to the agreement.

g) Products originating from Western Sahara are, in the absence of an extension of the trade preferences under the EU-Morocco Association Agreement, subject to normal customs tariffs as applicable in the EU under the most-favoured nation treatment.



[1] Proposal for a Council Decision relating to the signature, on behalf of the European Union, of the Agreement in the form of Exchange Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, COM(2018) 479 final, 11.06.2018, and Proposal for a Council Decision on the conclusion of the agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member states, of the other part, and the Kingdom of Morocco, of the other part, COM(2018) 481 final, 11.06.2018.
[2] Council Decision regarding the signature, on behalf of the Union, of the Agreement in the forms of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, doc. 1059/18 of 10.07.2018
[3] Judgment of 21 December 2016, Polisario v Council, C-104/16P, ECLI:EU:C:2016:973
[4] Pending the accomplishment of the formalities relating to the signature of the Agreement, Council has not requested Parliament’s consent yet.
[5] Council Decision of 8 March 2012 on the conclusion of an Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, on the other part. OJ L 241 of 07.09.2012, p.2.
[6] Judgment of 10 December 2015, Polisario v Council, T-512/12, ECLI:EU:T:2015:953.
[7] Judgment of 21 December 2016, Polisario v Council, C-104/16P, paragraph 106.
[8] Judgment of 21 December 2016, Polisario v Council, C-104/16P, paragraph 92.
[9] Judgment of 21 December 2016, Polisario v Council, C-104/16P, paragraph 94 to 107.
[10] Judgment of 21 December 2016, Polisario v Council, C-104/16P, paragraph 94 to 99.
[11] Judgment of 21 December 2016, Polisario v Council, C-104/16P, paragraph 106.
[12] Judgement of 21 December 2016, Polisario v Council, C-104/16P, paragraphs 88 and 89.
[13] International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports, 2004, p. 136, paragraph 159.
[14] See below Question 2.
[15] Opinion of 13 September 2016, Polisario v Council, C-104/16P, ECLI:EU:C:2016:677, paragraphs 259 and 269.
[16] Report on the benefits for the people of Western Sahara and public consultation on extending tariff preferences to products from Western Sahara, Commission Staff Working Documents SWD (2018) 346 final of 11.06.2017, p. 10.
[17] Judgement of 21 December 2016, Polisario v Council, C-104/16P, paragraph 106.
[18] Commission Staff Working Document SWD(2018) 346 final of 11.06.2018,p.1
[19] Commission Staff Working Document SWD(2018) 346 final of 11.06.2018,p. 10.
[20] References to the 1969 Vienna Convention on the law of treaties between States are made to the extent that the provisions reflect principles of customary international law, binding on the Union.
[21] Judgment of 21 December 2016, Polisario v Council, C-104/16P, paragraph 100.
[22] COM(2018) 481 final, 11.06.2018, p. 7.
[23] Judgment of 21 December 2016, Polisario v Council, C-104/16P, paragraph 106.
[24] Judgment of 21 December 2016, Polisario v Council, C-104/16P, paragraph 106.
[25] Resolution A/RES/25/2625, 24.10.1970, see Annex, Declaration on principles of international
law concerning friendly relations and co-operation among States in accordance with the Charter of the United Nations.
[26] Judgment of 21 December 2016, Polisario v Council, C-104/16P, paragraph 105.
[27] Resolution A/RES/34/37, 21.11.1979, paragraph 7.
[28] The settlement proposals of 1998 envisaged the identification of an indigenous population, see Resolution S/RES/658(1990), 27.06.1990, paragraph 2 and document S/21360, 18.06.1990, Report of the Secretary-General on the situation concerning Western-Sahara, p.9. The peace plan of 2003, on the other hand, integrated a part of the population on the basis of continued residence. See Resolution S/RES/1495(2003), paragraph 1 and document S/2003/565, 23.05.2003, Report of the Secretary-General on the situation concerning Western Sahara, p. 14.
[29] Commission Staff Working Document SWD(2018) 346 final of 11.06.2018, p. 9.
[30] Commission Staff Working Document SWD(2018) 346 final of 11.06.2018, p. 32.
[31] Commission Staff Working Document SWD(2018) 346 final of 11.06.2018, p. 31.
[32] Commission Staff Working Document SWD(2018) 346 final of 11.06.2018, p. 3.
[33] COM(2018) 579, final, 11.06.2018, p. 4.
[34] See the removal from the register of the request for an Opinion 1/04, OJ C 69 of 19.03.2005, p. 12, after Council adopted its decision concluding the PNR Agreement with the US, in spite of Parliament’s request for an opinion.
[35] Commission Staff Working Document SWD (2018) 346 final of 11.06.2018, p. 1.
[36] COM(2018) 481 final, 11.06.2018, p. 3.