COURT OF JUSTICE OF THE EUROPEAN UNION
Press Release No. 170/24 Luxembourg, October 4, 2024
Judgments of the Court in joint cases C-778/21 P and C-798/21 P | Commission and Council/Front Polisario as well as in joint cases C-779/21 P and C-799/21 P | Commission and Council/Front Polisario
Western Sahara: The 2019 EU-Morocco trade agreements on fisheries and agricultural products, to which the people of Western Sahara did not consent, were concluded to disregard the principles of self-determination and the relative effect of treaties.
However, the expression of this people’s consent to an agreement must apply to the territory of Western Sahara, which is not necessarily explicit but could, under certain conditions, be inferred.
The consent of the people of Western Sahara to implement the 2019 EU-Morocco trade agreements on fisheries and agricultural products concerning this autonomous territory is one of the conditions of the validity of the decisions by which the Council approved them on behalf of the Union. The European Commission and the European External Action Service (EEAS) conducted consultations before adopting these decisions. However, these consultations did not aim at the people of Western Sahara themselves but rather concerned those who found themselves on the territory, regardless of their affiliation or connection to the people of Western Sahara. With a significant portion of these people being dispersed outside this territory, these consultations could not have been likely to establish their consent.
This consent must not, however, be presumed, nor should it be hypothetical. It can be inferred only when the agreement does not impose obligations on third-party people, and when this agreement confers upon these people a clear, precise, and substantial advantage linked to the utilization of the natural resources of the territory and proportionate to the importance of this exploitation.
As the disputed agreements do not explicitly provide such an advantage, the Court confirms the annulment of the decisions of the Council by the Tribunal. This annulment will not take effect until July 2023 and is intended to allow the Union to produce its effects. Concerning the effect of the disputed decisions on treaties related to agricultural trade liberalization, the Court is extending its ruling for 12 months from today, recognizing both the significant impact an annulment would have on the Union’s international relations and the necessity of immediate annulment for legal certainty.
Western Sahara is a territory located in the north-west of Africa, bordered by the Atlantic Ocean. It is adjacent to Morocco (to the north), Algeria (to the northeast), and Mauritania (to the east and south). Since at least 1975, a conflict has persisted over the territory between Morocco and the Polisario Front, a movement fighting for the self-determination of the people of Western Sahara. Although Morocco controls most of the territory, the Polisario Front advocates for the creation of an independent state. This dispute raises important legal issues, particularly concerning the legitimacy of economic agreements concluded on behalf of this territory.
