WSRWBackground briefing: upcoming CJEU ruling on Western Sahara

On 29 September, the EU Court of Justice (CJEU) will issue a ruling that is likely to affect EU-Morocco relations - already tense at present. The CJEU ruling regarding Western Sahara – illegally occupied by Morocco – will probably bring EU-Morocco relations to a boiling point. [See release from the CJEU]

The CJEU is currently reviewing the legality of applying the EU-Morocco Trade and Fisheries Agreements to Western Sahara, following an amendment to these agreements that specifically includes Western Sahara in their territorial scope.1 As such, the ruling will cross one of the Moroccan monarchy’s red lines – the “sacred” status of occupied Western Sahara in Morocco’s foreign policy.2 The case is brought to the CJEU by Polisario, the UN-recognized representative of the people of Western Sahara.

In 2016, the CJEU had already annulled the inclusion of Western Sahara in the EU-Morocco agreement on the liberalisation of agricultural and processed fisheries products. The Court underpinned its decision by stating that Western Sahara is a territory that is “separate and distinct” from Morocco, which has no sovereignty over or mandate to administer the territory. The Court stated that Western Sahara is a third party to the EU’s relations with Morocco and can only be affected by such relations with the explicit consent of the people of Western Sahara. In 2018, the Court applied the same line of reasoning when annulling the application of the EU-Morocco Fisheries Partnership Agreement to Western Sahara.3

Yet, not much changed. The EU institutions continued applying both agreements the same way as before the CJEU rulings. In addition, the EU introduced an amendment explicitly extending their application to Western Sahara. The amendment flies in the face of the two rulings by the CJEU, and is problematic in some fundamental respects:

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