On 4 October 2024, the Court of Justice of the European Union (CJEU) delivered judgments in Front Polisario (joined cases C‑778/21 P and C-798/21 P and joined cases C‑779/21 P and C-799/21 P).
These judgments concern appeals brought by the European Commission and the Council of the EU against judgments of the General Court of the EU annulling EU decisions related to agreements between the EU and Morocco involving the Western Sahara territory.
The EU and Morocco have maintained commercial relations for two decades through the EU-Morocco Euro‑Mediterranean Association Agreement (EUMAA), which creates a free trade area between the EU and Morocco, and through the Sustainable Fisheries Partnership Agreement (SFPA).
In 2019, the EU and Morocco agreed that the EUMAA and SFPA would cover the territory and adjacent waters of Western Sahara.This agreement was enacted in Council Decisions 2019/441 and 2019/217 (Decisions).
Western Sahara is a former Spanish colony that has been a disputed territory since Spain withdrew from the territory in 1975. Morocco claims sovereignty over the territory, while the Sahrawi people, represented by the Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (Front Polisario), seek its independence.
Front Polisario challenged the Decisions before the General Court. Front Polisario argued that these agreements violated international law by including the territory of Western Sahara and its adjacent waters without the consent of its people.
The General Court agreed with Front Polisario and found that the Decisions do not respect international law principles, in particular the requirement for the consent of the Sahrawi people. On that basis, the General Court annulled the Decisions. The General Court further found that the EU’s decision to extend tariff preferences to products originating from Western Sahara in the EUMAA is inconsistent with international law, in particular with the right to self-determination of the Sahrawi people.
On appeal, the CJEU upheld the General Court’s findings. The CJEU also emphasised that the EU must ensure that any agreements between the EU and Morocco do not apply to Western Sahara without the explicit consent of its people. Specifically, the CJEU considered that Western Sahara is a non-self-governing territory in the sense of Article 73 of the United Nations Charter. This implies that Western Sahara’s people must have the benefit of exploiting the territory’s natural resources, including fisheries in adjacent waters. Overall, the CJEU reiterated the importance of respecting international law and the principle of self-determination. It remains to be seen how the EU institutions will seek to implement the CJEU’s judgments. In a joint statement issued on 4 October 2024, Commission President von der Leyen and EU High Representative/Vice‑President Borrell already emphasised that the EU will firmly continue to strengthen its relations with Morocco.
