The trial which opened on Monday October 23 at the Court of Justice of the European Union (CJEU) on the legality of the agreements concluded between Rabat and Brussels on fishing and agriculture, promises to be crucial for the future of the Euro-Moroccan partnership. The relationship between Rabat and Brussels was already erratic over the past year, notably due to allegations of corruption within the European Parliament. A negative judgment from the Strasbourg court would further weaken it by pushing Morocco to even more proactively expand its partnerships outside the European Union (EU).
This new legal adventure is part of a long battle started around ten years ago by the Polisario Front. The movement fighting for the independence of Western Sahara has continued to challenge the agreements between Europe and Morocco, arguing that their application to the Sahrawi territory contravened the provisions of international law.
The purpose of the hearings held on Monday and Tuesday is to rule on the double appeal filed by the European Commission and the European Council against the judgment of the Luxembourg court (first instance court) delivered on September 29, 2021. The latter had in effect “cancelled” two Euro-Moroccan trade agreements on agriculture and fishing on the grounds that they had ignored the “consent of the people of Western Sahara”.
The judgment was then hailed by the Polisario Front as a “triumphal victory”, while Morocco denounced it as “ideologically motivated”. As for the European executive, it was all the more disappointed as it had high ambitions for its strategic partnership with Morocco, the pivot of its neighborhood policy with the States of the Mediterranean basin. Hence the decision of the Commission and the Council – supported by France, Spain, Belgium and Hungary, who sent their own lawyers to the hearings – to challenge the judgment before the higher court, the CJEU.
The Polisario Front recognized as a “legal person”
However, the task promises to be delicate in view of European case law on the subject. “This is a dispute that has been building since 2012 and we are starting from the excellent foundations of the 2016 and 2018 judgments to take one more step and block these illegal agreements,” underlines Gilles Devers, the lawyer for the Polisario Front. In addition to the 2021 judgment, two previous judgments had in fact upheld the arguments of the independence movement.
In December 2016, the CJEU stated that the trade agreement on agriculture concluded between Morocco and the EU in the early 2000s could not automatically apply to Western Sahara, because the latter has a “status separate and distinct” due to its inclusion on the United Nations’ list of “Non-Self-Governing Territories”. The court added that Western Sahara, considered in its eyes as a “third party”, could only be covered by a Euro-Moroccan agreement if it expressed “consent”.
In February 2018, the CJEU was inspired by almost the same principles in another judgment, this time on a fishing agreement under which 128 European boats had been authorized by Morocco to fish in the fish-rich waters off the coast of Western Sahara. . The court had ruled that the “waters adjacent to the territory of Western Sahara” did not fall within “the sovereignty or jurisdiction of the Kingdom of Morocco”.
Faced with these two judgments, Rabat and Brussels had renegotiated the said agreements to expressly extend their application to Western Sahara and, in order to please the judge, had carried out “consultations of the populations concerned”.
The Polisario Front immediately filed an appeal against these amended agreements. The judgment of the Luxembourg court dated September 29, 2021 proved him essentially right. Not only does he establish the Polisario Front as a “legal person” endowed with “representativeness” giving it “the capacity to act before the Union judge”, but he considers that the “consultations” carried out in Western Sahara by the Moroccans and Europeans were devoid of the “free and authentic” character allowing the “consent of the people of Western Sahara” to be established.
In their double appeal examined Monday and Tuesday by the CJEU, the Council and the Commission contest in particular that the Polisario Front “possesses the capacity to take legal action” and that it can also “invoke the principle of self-determination” in this affair.
Negotiations with Japan, Russia and China
The court will take its time to examine the case. The Advocate General will deliver his conclusions on March 21, 2024, which suggests a final judgment around June. In the meantime, the Euro-Moroccan fisheries agreement, which expired on July 17, is not able to be renewed in the current legal uncertainty created by the contentious procedures. Spanish fishermen – who had 93 of the 128 licenses granted by Morocco to European boats – are the main victims. Madrid has already announced financial support for them.
In Morocco, the mood is one of disillusionment with a Europe mired in its internal contradictions and whose reliability is considered fragile. As if anticipating a judgment from the CJEU unfavorable to agreements with the EU, the Moroccan media have made much of the ongoing negotiations with Japan, Russia and China in recent months, in order to signal to Brussels that Rabat has of alternative solutions.