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5th Mar 2024

Top court strikes down EU Western Sahara policy

  • News of the ruling was met with celebrations in the Saharawi refugee camps. (Photo: Western Sahara Resource Watch)

Africa's last colony hopes a judgment by the European Court of Justice (ECJ) will help clear obstacles to its self-determination.

The EU court ruled on Wednesday (21 December) that two EU deals with Morocco - a cooperation agreement signed in 2000, and a 2012 trade pact - don't apply to Western Sahara, a territory annexed by Rabat and kept under military control since 1975.

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  • Gilles Devers (l) and Mhamed Khadad (r) study the EU court ruling. (Photo: Charlotte Bruneau)

"This ends the EU's double language, where it officially declares that Western Sahara isn't part of Morocco, but still signs agreements with Rabat which it knows will include Western Sahara," said Mhamed Khadad, a senior member of the Polisario Front, the Saharawi liberation movement.

"The court said clearly that Western Sahara isn't part of Morocco. It is a non-autonomous territory, where Morocco is an occupying power," he told a news conference in Brussels on Thursday.

The judgment could have great consequences for EU companies operating in the occupied territories on the basis of arrangements with Rabat.

"These companies are now left without a legal framework," said Gilles Devers, the Polisario Front's lawyer.

"We have given them 15 days to either leave, or contact the legitimate representative of Western Sahara, namely the Polisario Front, and regularise their presence," he said.

Some of those that set up shop in occupied Western Sahara are Siemens and Enel, which have invested there in solar thermal plants and windmills. Another two are Idyl and Azura, two French farming companies.

The EU court said that the EU Council, representing EU governments, and the European Commission were aware that Morocco would apply the trade agreements to Western Sahara, which it considers an integral part of the kingdom.

During the process, the EU executive admitted that companies located in Western Sahara were on its list of exporters benefiting from preferential access to the EU market, and also carried out sanitary and veterinary checks of their facilities.

The court said “the EU intended to implement those agreements in a manner incompatible with the principles of self-determination” and that Saharawi people should have given their consent to the extension of the deals to Western Sahara.

Judges ordered the commission to pay the Polisario Front import taxes for Saharawi products unduly exported under the agreements during the last 16 years.

The representatives of Western Sahara say Morocco wouldn't be able to afford the occupation of Western Sahara without EU economic activities.

Saharawi celebrations

News of the ruling, which is definitive, was met with celebrations in Saharawi refugee camps in southern Algeria.

Last year, a lower court partially cancelled the 2012 EU-Morocco trade liberalisation agreement, insofar as it applied to Western Sahara, after a challenge by the Polisario Front.

It also recognised the Polisario Front as the sole legitimate representative of the Saharawi people.

The ruling had Morocco suspend diplomatic ties with the EU. They were only resumed when the EU foreign service appealed the ruling.

On Wednesday, the EU foreign service (EEAS) issued a joint statement with Morocco's government to confirm their good relations and said the EU-Morocco trade pact remained in force.

"The court found the action for annulment of the agreement brought by the Polisario Front inadmissible," they wrote in their communique.

They said the court gave the EU Council right, as it annulled the lower court's ruling.

Morocco's foreign minister delegate Nasser Bourita furthermore told Associated Press that the ruling allowed for EU-Morocco trade to resume after the lower court had put the pact on hold.

Polisario's lawyer Devers said it was good that the EU and Morocco welcomed the ruling: "They aren't contesting a ruling which says that Western Sahara isn't part of Morocco, and calls Morocco an occupying power."

"They focus on the fact that the Polisario Front's action was deemed inadmissible, which to us, is the most beautiful victory," he added, because one of the conditions to introduce a process before the EU court is that one is directly affected by the matter.

Legal standing

"The court considers the action of the Polisario Front inadmissible precisely because Western Sahara isn't part of Morocco. The agreement between Morocco and the EU doesn't concern it any more than Italy can have a say over the business of Spain," Devers said.

The court also didn't overrule the lower tribunal's recognition of the Polisario Front as the legitimate representative of Saharawi people, nor that it had the right to stand before EU courts.

Asked for clarifications by this website on Thursday, the commission couldn't say who had won the process.

"We are closely examining the full implications of the judgment. I'm afraid I cannot add more than what has been published," a spokeswoman said.

Already during the legal process, the commission cancelled upcoming inspections of companies located in Western Sahara.

"We are confident the EU will apply this ruling," said Gilles Devers.

The ECJ ruling could also have consequences for EU companies fishing the waters of Western Sahara.

Polisario Front has introduced another challenge to the 2013 EU-Morocco fisheries agreement, under which the EU pays Rabat to allow European fishermen to fish mostly the waters off Western Sahara.

The legal representatives of the Polisario Front say this is an even more apparent breach of Saharawi rights.

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