The General Court of the European Union (CJEU) declared this Wednesday illegal the commercial and fishing agreements signed between Brussels and Morocco in 2018 and 2019, respectively, for illegally including Western Sahara, a territory over which the UN does not recognize the sovereignty of the Alawite country.
The ruling agrees with the Polisario Front, who filed the appeal in Luxembourg on the grounds that Brussels and Rabat lack competence to negotiate international agreements applicable to Western Sahara instead of the population of said territory, represented by the Polisario himself.
“The requirement regarding the consent of the people of Western Sahara, in their capacity as a third party with respect to the controversial agreements, has not been respected,” says the sentence.
However, the General Court has decided temporarily maintain the effects of both agreements considering that its immediate cancellation “It could have serious consequences on the Union’s external action and call into question the legal certainty of the international commitments assumed by the Union. “In other words, both the trade agreement and the fisheries agreement will remain in force until the CJEU rules on a possible appeal in the second instance.
The ruling unleashes a new crisis between Morocco, on the one hand, and the EU and Spain, on the other, the consequences of which are unpredictable. In 2016, before a similar decision of the community justice on the Sahara, Morocco decided to officially suspend all relations with the EU, both in immigration and security matters. A rupture that lasted for months and was only resolved when the EU took steps to cushion the impact of the ruling.
The new shock comes when the wounds have not yet closed of the last crisis due to the migratory avalanche in Ceuta last May encouraged by Rabat. The European Parliament issued a unanimous condemnation against Morocco for using migrant minors as a weapon of political pressure against a Member State and the head of European diplomacy, Josep Borrell, came to evoke the possibility of suspending European aid to the Alawite country.
The current dispute dates back to 2016, when the CJEU ruled that the trade agreement between the EU and Morocco non applicable to Western Sahara, taking into account the separate and distinct status recognized for the territory under the United Nations Charter and the principle of self-determination of peoples.
Nevertheless, the sentence left open a loophole that would allow the agreement to be extended to the Sahara if a series of conditions were met. In particular, that the pact is consulted and has the consent of the local population and that it generates benefits for the Sahrawis themselves.
This jurisprudence was reiterated in a subsequent CJEU ruling in 2018, which also stated that the fishing agreement did not cover the territory of Western Sahara. The European Commission grabbed onto this burning nail to sign a new trade and fishing agreement with Morocco that do apply to Western Sahara.
The fisheries agreement is the one that most affects Spain, since 91.5% of catches are made in waters of Western Sahara. The pact allows a total of 128 EU vessels to fish in these waters, of which 92 are Spanish. In return, the EU will pay Morocco a total of 208 million euros during the four years of validity (2019-2013).
Before signing this agreement, the EU External Action Service carried out a consultation process among the local population and found that the majority supported the pact. Nevertheless, The Polisario Front did not even participate in the consultation, opposing the agreement on principle.
According to the Brussels assessment, the agreement is beneficial to the local population of the region, where there are 141 companies dedicated to the processing of fish products, on which approximately 90,000 direct and indirect jobs depend, with an approximate turnover of 450 million. Of that amount, about 240 million are exported, 60% to the EU.
Finally, the pact with Morocco makes it clear that the result of the political process on the final status of Western Sahara is not prejudged, and declares its support for the efforts of the UN to reach a political solution that allows the self-determination of the Saharawi population.
The same procedures were followed in the case of the new trade agreement between Brussels and Rabat. However, all this has not convinced the CJEU. “Nor it may be considered that the steps taken by the Union authorities before the contested agreements were concluded made it possible to obtain the consent of the people of Western Sahara with respect to those agreements, “the ruling maintains.
The decision of the General Court can still be appealed in second instance before the CJEU by any of the parties within a period of two months and ten days.
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