EU-Morocco trade deal is valid, EU’s highest court rules
The Court therefore sets aside the judgment of the General Court which had found the opposite to be the case and dismisses the action for annulment brought by the Front Polisario against the Council’s decision to conclude the Liberalisation Agreement.
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 largest part of Western Sahara is controlled by Morocco.
A smaller part of that territory, in the east, is controlled by the Front Polisario, a movement which seeks independence for Western Sahara and whose legitimacy has been recognized by the United Nations. In 2012, the EU and Morocco concluded an agreement providing for reciprocal liberalisation measures on agricultural products, processed agricultural products and fish and fishery products (the ‘Liberalisation Agreement’).
That agreement, the territorial scope of which depends on that of the EU-Morocco Association Agreement, was formally concluded by the EU on the basis of a Council decision. The Front Polisario brought an action before the General Court seeking the annulment of that decision. By its judgment, delivered on 10 December 20153 , the General Court annulled the decision, having held, first of all, that the Association and Liberalisation Agreements were applicable ‘to the territory of the Kingdom of Morocco’ and that that expression was to be understood, in the absence of a stipulation to the contrary, as encompassing Western Sahara.
The General Court then held that, in view of the application of those agreements to Western Sahara, Front Polisario was concerned by the Council’s decision and therefore had standing to request the annulment of the decision.
Finally, the General Court held that the Council had failed to fulfill its obligation to examine, before the conclusion of the Liberalisation Agreement, whether there was any evidence of the exploitation of the natural resources of the territory of Western Sahara under Moroccan control likely to be to the detriment of its inhabitants and to infringe their fundamental rights. Dissatisfied with that judgment, the Council brought an action before the Court of Justice seeking its annulment. In today’s judgment, the Court, giving judgment following an expedited procedure at the request of the Council, upholds the appeal and sets aside the judgment of the General Court.
The Court observes that, in determining the territorial scope of the Liberalisation Agreement, whose terms do not at any point refer to Western Sahara, the General Court failed to take account of all the rules of international law applicable to relations between the EU and Morocco, as required by the 1969 Vienna Convention on the Law of Treaties4 .
In that regard, it notes first of all that, in view of the separate and distinct status guaranteed to the territory of Western Sahara under the Charter of the United Nations and the principle of self-determination of peoples, it cannot be held that the term ‘territory of the Kingdom of Morocco’, which defines the territorial scope of the Association and Liberalisation Agreements, encompasses Western Sahara and, therefore, that those agreements are applicable to that territory.
The General Court thus failed to draw the consequences of the status of Western Sahara under international law. Secondly, it is clear from international practice that, where a treaty is intended to apply not only to the sovereign territory of a State but also beyond it, that treaty must provide therefor expressly, whether it is a territory under the jurisdiction of that State or in any territory for whose international relations the State in question is responsible.
That rule therefore also precludes the application of the Association and Liberalisation Agreements to Western Sahara. Finally, after recalling the principle of the relative effect of treaties under which a treaty must neither impose any obligations or confer any rights on third States without their consent, the Court states that, in view of the Advisory Opinion on Western Sahara handed down in 1975 by the International Court of Justice at the request of the United Nations General Assembly5 , the people of that territory must be regarded as a third party which may be affected by the implementation of the Liberalisation Agreement. In the present case, it is not apparent that that people consented to the agreement being applied to Western Sahara.
As to the fact that certain clauses in the Association and Liberalisation Agreements were applied ‘de facto’ in some cases to products originating in Western Sahara, the Court finds that it has not been established that such a practice is the result of an agreement between the parties to amend the interpretation of the territorial scope of those agreements.
Moreover, a purported intention to that effect by the EU entails conceding that it intended to implement the agreements in a manner incompatible with the principles of self-determination and of the relative effect of treaties as well as the requirement of good faith under international law. Having concluded that the Liberalisation Agreement does not apply to the territory of Western Sahara, the Court sets aside the judgment of the General Court which had reached the opposite conclusion and decides to adjudicate itself on the action brought by the Front Polisario.
In that regard, it notes that, since the Liberalisation Agreement does not apply to Western Sahara, the Front Polisario is not concerned by the decision of the Council to conclude that agreement. The Court therefore rejects the Front Polisario’s action on the ground of lack of standing
September 13, 2016, 09:18 GMT | Insight) — A bilateral trade agreement between the European Union and Morocco shouldn’t have been voided by EU judges, says a legal opinion prepared for the bloc’s highest court. Their decision to scrap the 2012 accord should be reversed because they wrongly considered the contested region of Western Sahara to be part of Morocco’s territory, says today’s recommendation from Advocate General Melchior Wathelet. “International law does not permit the extension of the scope of a bilateral treaty to a territory which constitutes a third party in relation to the other parties to that treaty,” Wathelet says in his opinion (see here). “Western Sahara specifically constitutes such a territory with respect to the EU and Morocco.”
The EU-Morocco trade deal cuts 55 percent of tariffs on imports of Moroccan agricultural and fisheries products. It also phases out 70 percent of duties on the EU’s exports of the same goods within 10 years. But the Polisario Front, a liberation movement aiming to end Moroccan presence in Western Sahara, challenged the agreement at the EU’s lower-tier General Court in Luxembourg.
The group argued that the EU should have made sure that the trade accord didn’t violate the right of the Saharawis — people of the Western Sahara — to make decisions about their own farming and fishing resources. The General Court annulled the trade pact last December, saying the EU had failed to ensure that the rights of the Saharawis were safeguarded and that the region should have been explicitly excluded from the trade deal. The EU appealed the ruling to the upper-tier Court of Justice earlier this year. In his opinion today, Wathelet says Western Sahara isn’t part of Morocco, which means the trade accord doesn’t apply to the disputed region. “The European Union and its member states have never recognized the Western Sahara is part of Morocco, or that the latter has sovereignty over that territory,” he writes. The advocate general is a member of the court who writes nonbinding recommendations on cases before the bench
September 6, 2017, 15:53 GMT | Insight) — A fisheries deal between the EU and Morocco breaks international laws because it includes occupied Western Sahara without the consent of its people, lobby group Western Sahara Campaign UK told the EU’s highest court today. The group has asked the EU Court of Justice to declare the pact invalid, saying Morocco doesn’t represent the population in Western Sahara, which has no government. Today’s case follows a 2013 challenge by Front Polisario, which seeks independence for Western Sahara, against the EU’s trade deal with Morocco. Judges upheld the agreement last December, ruling that the deal excluded Western Sahara. Much of Western Sahara is under Moroccan military occupation and the country trades the goods it obtains from the region.
Western Sahara Campaign, represented by Kieron Beal, asked the EU Court of Justice to rule on the legality of the Fisheries Partnership Agreement. The 2013 deal lets European companies fish in Moroccan and the Western Saharan waters under Morocco’s jurisdiction.
Beal said that “the question” is whether Western Sahara is considered “to be in the jurisdiction of Morocco.”
“If an EU legal measure was to recognize Morocco’s jurisdiction over Western Sahara,” Beal said, it would “in effect” be an “illegal act.”
“The mere fact of the practical administration of Morocco provides no basis” for determining the future of “another entity’s natural resources,” he said. When striking deals with third countries, the EU must comply with international laws, Beal said. “It’s therefore wrong to suggest that the EU institutions can simply accept Morocco’s statement of its own jurisdiction,” he added. “That can’t be right.” “Nowhere do these EU measures face up to the fact Western Sahara isn’t part of Morocco,” Beal told the court in Luxembourg. “There’s no mention anywhere of it at all, they don’t demarcate the territorial Western Sahara” or include “provisions for transferring benefits to its people.” Furthermore, the “EU cannot suggest” that the fisheries pact benefits the people in the region “in accordance with their wishes,” he said, because there was “no satisfactory evidence” and “no appraisal has been carried out” by the bloc.
— Fishing permits —
Jean-Francois Bellis, representing Comader, a Moroccan agricultural and development confederation, said the fisheries agreement is “clearly meant to apply to the waters of Western Sahara.” In fact, he said, “fishing permits have been granted [based] on the agreement to European vessels.” “No matter how the relationship between the EU and Morocco is viewed, there’s nothing in international law prohibiting it to enter into such an agreement,” Bellis told judges. The accord “serves to benefit the population of Western Sahara” and “the fact sovereignty over a territory is disputed shouldn’t result in depriving the people from any advantages that arise from international cooperation,” he added. The Western Sahara Campaign argues that the pact exploits and plunders the area’s natural resources. But Bellis said the accord upholds standards in conservation, promotes responsible fishing and has led to an increase in jobs stemming from EU support.
— Call for dismissal —
Fernando Castillo de la Torre argued on behalf of the European Commission that Western Sahara Campaign was effectively saying “no one could conclude an agreement for Western Sahara, full stop.” But this accord “is precisely the agreement which provides for sustainable fishery of such resources” and, “in the absence” of such a pact, “the situation could be far worse.” Castillo de la Torre acknowledged that the question of how to treat Western Sahara was controversial and that rules on how to proceed weren’t clear. But the commission had “done what we think is in the best interest of the people in that area,” he said.
The case should be dismissed, Castillo de la Torre argued, because the court “can only annul if the rules were a clear-cut breach of international law, which isn’t the case here.”On behalf of EU governments, lawyer Alvaro De Elera-San Miguel Hurtado said Western Sahara Campaign had raised points of international law, not EU law. The EU court can only rule on European law, so the lobby’s case had no standing, he said.
Western Sahara Campaign first challenged the agreement in the UK’s national court, which referred the case to Luxembourg.
The advocate general’s legal opinion on the case will be presented on Dec. 15. The court’s reference for the case is C-266/16.