European Court of Justice annuls agreements in Western Sahara

On 29 September, the European Court of Justice struck down the EU's trade and fisheries agreements with Morocco in occupied Western Sahara, deemed to be in breach of international law.

Published 12 October 2021

The press release from the European Court of Justice on 29 September states explicitly that Front Polisario is the correct entity to represent the people of Western Sahara before European courts.

The court also made it clear that the Sahrawi people's right to consent has not been respected. It clearly states that the EU cannot replace the demand for "consent" from the Sahrawi people with an argument that they get "benefits" from the agreements.

"In view of the legal definitions of ‘people’ and ‘consent’ in international law, the ‘consultations’ conducted by the [EU] institutions with the ‘people concerned’ did not amount to an expression of the consent of the people of Western Sahara," the European Court of Justice said in its press release.

Read the text of the ruling in cases T-344/19 and T-356/19 (on fisheries) here. The judgment in case T-279/19 (on trade) can be found here.

"This is a victory for justice and the people of Western Sahara. We hope that the EU Member States will finally follow the court's rulings and exclude Western Sahara from the entire EU's relations with Morocco. It is high time that the EU ceases to be part of the problem in Africa's last colony, and becomes part of the solution, says Sylvia Valentin, head of the Western Sahara Resource Watch (WSRW).

WSRW urges the governments of Sweden, Germany, Denmark, Ireland, and Finland to remember the reservations they had about the now-canceled agreements - and their reference to the importance that the agreements comply with EU case law.

As the Court has once again clarified that Western Sahara cannot enter into agreements with Morocco, the WSRW urges these governments to take the lead in ensuring that EU policies and practices are finally adjusted to comply with current EU case law.

Although the verdict of September 29 was a great victory for the Sahrawi people, it was not unexpected. In essence, this is a stronger worded version of judgments from the European Court of Justice in 2016 and 2018. In 2016, the EU Supreme Court ruled that Western Sahara cannot be part of the EU's trade agreement with Morocco unless there is the express consent of the people in the territory. In 2018, the Court reached the same conclusion on the fisheries agreement between the EU and Morocco and annulled its validity in Western Sahara.

Yet nothing changed in practice. The EU continued to apply both its trade agreement and its fisheries agreement with Morocco in Western Sahara in precisely the same way as before the court decisions - with a tiny difference: the previously implicit inclusion of the territory had now become explicit, by introducing a slight change to the agreements -Sahara is mentioned as part of the scope of the agreements. This change was negotiated with Morocco, not with the UN-recognized representative of the people of Western Sahara, the Front Polisario.

Instead of seeking the consent of the actual people in the territory, the European Commission held a series of exchanges with 18 Moroccan operators and politicians who - not surprisingly - argued that an agreement with Morocco would be beneficial - an argument that the European Court of Justice considered irrelevant.

The list of "consulted stakeholders" that the Commission shared with the European Parliament and Council while applying for approval contained blatant lies: apart from the Moroccan groups mentioned, it listed 94 groups - including the WSRW - that had never participated in the consultation process.

A letter signed by 89 Sahrawi organizations condemning the European Commission's lack of respect for their right to self-determination was presented as if these groups had been consulted. The European Commission abused an informal meeting that Front Polisario had requested. Nothing in the emails of the EEAS (EU "Foreign Ministry") indicated that they were in the process of holding consultations on the proposed trade agreement for Western Sahara.

Even though the agreements and processes involved in establishing them did not follow international or EU case law, the revised trade and fisheries agreements covering Western Sahara were approved and entered into force. The many protests from the Sahrawis were not even considered in the whole process.

The EU ignored both its own court and the only party that should formally and legally have a decisive voice in this matter: the Sahrawi people. Finally, the EU’s highest court corrected that mistake.

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