Front Polisario asks EU court to stop renegotiation of EU-Morocco fisheries deal
Applicant: Front populaire pour la libération de la Saguia el-Hamra et Rio de oro (Front Polisario) (represented by: G. Devers, lawyer)
Defendant: Council of the European Union
Form of order sought: The applicant claims that the General Court should: Declare its action admissible; Annul the contested decision; Order the Council to pay the costs.
Pleas in law and main arguments
In support of the action against the Council’s decision of 16 April 2018, authorising the Commission to open negotiations, on behalf of the European Union, for the purposes of amending the Fisheries Partnership Agreement and concluding a Protocol with the Kingdom of Morocco (decision not published in the Official Journal of the European Union), the applicant relies on ten pleas in law.
- First plea in law, alleging a lack of authority on the part of the Council to adopt the contested decision, in so far as the European Union and the Kingdom of Morocco lack competence to negotiate international agreements including Western Sahara, for and on behalf of the people of that territory as represented by the Front Polisario.
- Second plea in law, alleging a failure to fulfil the obligation to examine all the relevant aspects of the present case, in so far as, when adopting the contested decision, the Council failed to take account of the case-law of the Court on the question of Western Sahara.
- Third plea in law, alleging a failure to fulfil the obligation to examine the question of respect for fundamental rights and international humanitarian law, in so far as it is apparent from the contested decision that the Council failed to consider the question of respect for fundamental rights and international humanitarian law.
- Fourth plea in law, alleging a breach of the rights of the defence in so far as the Council failed to engage in any discussion with the Front Polisario, the sole representative of the people of Western Sahara, prior to the adoption of the contested decision.
- Fifth plea in law, alleging a breach, on the part of the Council, of its obligation to execute the judgments of the Court, in so far as the contested decision disregards the grounds of the Court’s judgments in Cases C-104/16 P and C-266/16.
- Sixth plea in law, alleging a breach of the essential principles and values guiding the Union’s action on the international stage, since (i) the decision denies the existence of the people of Western Sahara in substituting the words ‘populations concerned’ therefor; and (ii) it authorises the opening of negotiations with the Kingdom of Morocco in the context of the latter’s annexationist policy with regard to Western Sahara and the systematic breaches of fundamental rights that maintaining such a policy entails.
- Seventh plea in law, alleging a breach of the right to self-determination, since (i) the decision denies the existence of the people of Western Sahara with regard to the right to self-determination and upsets the national unity of that people; and (ii) it authorises the opening of negotiations with the Kingdom of Morocco in breach of the separate and distinct status of Western Sahara and the permanent sovereignty of the people of that territory over its natural resources.
- Eighth plea in law, alleging a breach of the principle of the relative effect of treaties, in so far as the contested decision denies the people of Western Sahara, represented by the Front Polisario, standing as a third party in EU-Morocco relations.
- Ninth plea in law, alleging a breach of international humanitarian law and international criminal law since (i) the negotiations, authorised by the contested decision, are being conducted in the context of the Kingdom of Morocco’s annexationist policy with regard to Western Sahara; and (ii) by using the words ‘populations concerned’, that decision endorses the illegal transfer of Moroccan colonists to occupied Sahraouian territory.
- Tenth plea in law, alleging breach of the Union’s obligation not to recognise illegal situations since, in authorising negotiations with the Kingdom of Morocco with regard to Western Sahara, the contested decision ratifies the serious breaches of international law committed by the Moroccan occupying forces against the people of Western Sahara.
EU Commission seeks amendment to fisheries partnership with Morocco
COLLEGE MEETING: The Commission Proposes to Amend the EU-Morocco Fisheries Partnership Agreement and Renew Its Protocol
Following the ruling of the Court of Justice of the European Union on February 27, the Commission today adopted a proposal for a Council decision authorizing it to negotiate with Morocco to amend the current EU-Morocco Fisheries Partnership Agreement and to renew the protocol.
The aim is to maintain and further develop the fisheries partnership between the EU and Morocco by concluding an agreement and protocol that are environmentally sustainable, economically viable, and fully compliant with international and European law. Morocco is a close partner of the EU, benefiting from “advanced status” under the European Neighbourhood Policy and the EU-Morocco Association Agreement.
Today’s proposal seeks to improve fisheries governance, notably by strengthening the monitoring, control, and surveillance of fishing activities in the region.
Continuity of the agreement will benefit both parties:
- For Morocco: It provides support for its “Halieutis” strategy aimed at the sustainable development of the fisheries sector, thanks to the significant financial contribution provided under the protocol.
- For the EU operators: Including artisanal fishers from several Member States, it offers access to the fishing opportunities provided by the amended agreement and renewed protocol.
The EU proposal includes an extension of the agreement to the Western Sahara under certain conditions. The proposal and annex are available online
February 27, 2018, 09:06 GMT | Official Statement) — MLex Summary: The Court of Justice of the EU ruled that Western Sahara and the waters surrounding it aren’t included in the Fisheries Agreement between the bloc and Morocco. The court said that the deal only applies to the territory of Morocco, which doesn’t include Western Sahara under international law. Morocco claims Western Sahara is part of its territory.
Court of Justice of the European Union PRESS RELEASE No 21/18 Luxembourg, 27 February 2018 Judgment in Case C-266/16
The Queen, on the application of Western Sahara Campaign UK v Commissioners for Her Majesty’s Revenue and Customs and Secretary of State for Environment, Food and Rural Affairs:
The Fisheries Agreement concluded between the EU and Morocco is valid in so far as it is not applicable to Western Sahara and to its adjacent waters Western Sahara is a territory in North-West Africa, bordered by Morocco to the north, Algeria to the north-east, Mauritania to the east and south and the Atlantic to the west. Currently, the greater part of Western Sahara is occupied by Morocco, which considers it to be an integral part of its territory. A smaller part of that territory, in the east, is controlled by the Front Polisario, a movement which seeks to achieve the independence of Western Sahara.
The EU and Morocco successively concluded an association agreement in 1996, a partnership agreement in the fisheries sector (‘the Fisheries Agreement’)1 in 2006 and a liberalisation agreement with respect to agricultural and fisheries products in 2012. The Fisheries Agreement is supplemented by a protocol setting out the fishing opportunities which it lays down, and expires in July 2018. By judgment of 21 December 2016,3 the Court of Justice, hearing an appeal in the dispute between the Front Polisario and the Council of the European Union and the European Commission, held that the association agreement and the partnership agreement concluded between the EU and Morocco had to be interpreted, in accordance with international law, as meaning that they were not applicable to the territory of Western Sahara. That case did not, however concern the Fisheries Agreement, and consequently the Court gave no ruling on the validity of that agreement in its judgment.
The Western Sahara Campaign (WSC) is an independent voluntary organisation whose aim is to support the recognition of the right of the people of Western Sahara to self-determination. WSC claims, before the High Court of Justice (England and Wales), Queen’s Bench Division (Administrative Court) that the Fisheries Agreement and the acts approving and implementing that agreement5 are invalid in so far as that agreement and those acts apply to the waters adjacent to the territory of Western Sahara. WSC consequently considers that the United Kingdom authorities are acting unlawfully in providing for implementation of that agreement and, in particular, issuing licences to fish in the waters at issue. In those circumstances, the High Court of Justice sought to ascertain from the Court of Justice, inter alia, whether the Fisheries Agreement was valid under EU law. This is the first time that a request has been made under the preliminary ruling procedure for a review of validity formally covering international agreements concluded by the EU. In today’s judgment, the Court holds, in the first place, that it has jurisdiction to assess the validity of acts approving the conclusion of international agreements concluded by the EU and, in that context, to assess whether such agreements are compatible with the treaties and the rules of international law which bind the EU. The Court examines, in the second place, the validity of the Fisheries Agreement. It notes that the British court seeks to determine whether the opportunity to exploit the natural resources in the waters adjacent to the territory of Western Sahara is compatible with EU law and international law. Such a question presupposes that those waters are included with the territorial scope of the Fisheries Agreement. Therefore, the Court first establishes the validity of that premiss. In that regard, the Court notes, first of all, that the Fisheries Agreement is applicable to the “territory of Morocco”, an expression equivalent to the concept of “territory of the Kingdom of Morocco” in the Association Agreement. As the Court has previously held in its judgment of 21 December 2016, that concept itself refers to the geographical area over which the Kingdom of Morocco exercises its sovereign powers under international law, to the exclusion of any other territory, such as that of Western Sahara. In those circumstances, if the territory of Western Sahara were to be included within the scope of the Fisheries Agreement, that would be contrary to certain rules of general international law that are applicable in relations between the EU and Kingdom of Morocco, inter alia the principle of self-determination. The Court notes, next, that the Fisheries Agreement is applicable to “waters falling within the sovereignty or jurisdiction” of the Kingdom of Morocco. In accordance with the UN Convention on the Law of the Sea,6 the waters over which a coastal State is entitled to exercise sovereignty or jurisdiction are limited exclusively to the waters adjacent to its territory and forming part of its territorial sea or of its exclusive economic zone. The Court therefore holds that, taking account of the fact that the territory of Western Sahara does not form part of the territory of the Kingdom of Morocco, the waters adjacent to the territory of Western Sahara are not part of the Moroccan fishing zone referred to in the Fisheries Agreement. Lastly, the Court examines the territorial scope of the Protocol to the Fisheries Agreement. Although that Protocol does not contain any specific provisions on that subject, the Court states that several of its provisions use the expression “Moroccan fishing zone”. That expression is the same as that to be found in the Fisheries Agreement, which defines it as “waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco”. The Court concludes that the “Moroccan fishing zone” under the Protocol does not include the waters adjacent to the territory of Western Sahara. The Court therefore holds that, since neither the Fisheries Agreement nor the Protocol thereto are applicable to the waters adjacent to the territory of Western Sahara, the EU acts relating to their conclusion and implementation are valid. NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.
1 OJ 2006 L 141, p. 4. The conclusion of that agreement was approved by Council Regulation (EC) No 764/2006 of 22 May 2006 (JO 2006, L 141, p. 1).
2 OJ 2013 L 328, p. 2. The conclusion of that protocol was approved by Council Decision 2013/785/EU of 16 December 2013 (JO 2013, L 349, p. 1).
3 Case: C-104/16 P Council v Front Polisario, see Press Release No 146/16.
4 The Front Polisario is however challenging the legality of the Fisheries Agreement Protocol before the General Court (Case T-180/14). The General Court has stayed proceedings in that case until the Court has given judgment in the WSC case.
5 In addition to the acts referred to in footnote 1 and 2, WSC also disputes the validity of Council Regulation (EU) No 1270/2013 of 15 November 2013 on the allocation of fishing opportunities under the 2013 Protocol (OJ 2013 L 328, p. 40)
6 The United Nations Convention on the Law of the Sea, concluded at Montego Bay on 10 December 1982 (United Nations Treaty Series, Vol. 1833, 1834 and 1835, p. 3), entered into force on 16 November 1994. Its conclusion was approved on behalf of the Community by Council Decision 98/392/EC of 23 March 1998 (OJ 1998 L 179, p. 1)
Western Sahara dispute invalidates EU-Morocco fisheries deal, EU legal opinion says
The 2012 agreement cannot represent the population in Western Sahara, which has no government, Advocate General Melchior Wathelet said in his non-binding opinion, published today (see here). Morocco claims sovereignty over the territory and occupies large parts of it, including almost all of the coast, but its claims aren’t widely recognized. UK-based activist group Western Sahara Campaign, or WSC, brought the case to the EU Court of Justice via the UK courts, seeking annulment of the Fisheries Partnership Agreement between the EU and Morocco because it included Western Sahara. In particular, WSC took issue with the deal granting preferential tariff treatment to products originating in Western Sahara that are certified as products originating in Morocco. It also disputes the UK authorities’ right to issue licenses to fish in the waters adjacent to Western Sahara. In today’s opinion, Wathelet said the people of Western Sahara had not freely expressed a will to join the pact, nor did they benefit from its financial gains. Wathelet noted that catches in the waters adjacent to Western Sahara accounted for a large portion of fishing included in the pact, meaning it should rightly “benefit almost exclusively the people of Western Sahara.” However, the money went to Morocco, whose government has almost full discretion over its use. The Advocate General said the agreement didn’t contain “the necessary legal safeguards” to ensure the fishing rights are “for the benefit of the people of Western Sahara.” He therefore recommended that the court declare the agreement invalid.
— Previous challenge —
In 1996 the EU and Morocco concluded an association agreement, which liberalized areas of bilateral trade. In 2006 they signed a partnership agreement in the fisheries sector, and in 2012 a liberalization agreement on agricultural and fishery products.
Today’s case follows an unsuccessful challenge launched by the Front Polisario in 2013, which seeks independence for Western Sahara, against the EU’s trade deal with Morocco. EU judges upheld the agreement in December 2016, ruling that the deal excluded Western Sahara (see here). Separately, the European Commission has this week requested permission from EU governments to open negotiations with Morocco to update rules linked to the implementation of the fisheries deal (see here). This is a routine matter, as the implementation protocol is due to expire in July 2018. Nonetheless, the protocol seeks to ensure that the agreement’s principles and standards are in line with international and EU law. The court’s reference for today’s case is C-266/16