It's not the Fish that Stinks! EU Trade Relations with Morocco under the Scrutiny of the General Court of the European Union

Author:Sandra Hummelbrunner, Anne-Carlijn Prickartz
Position:PhD Candidate and Senior Scientist, Department of Public Law, Public International Law and European Law, University of Salzburg (Austria)
Pages:19-40
Sandra Hummelbrunner and Anne-Carlijn Prickartz, ‘It’s not the Fish that
Stinks! EU Trade Relations with Morocco under the Scrutiny of the General
Court of the European Union’ (2016) 32(83) Utrecht Journal of International
and European Law 19, DOI: http://dx.doi.org/10.5334/ujiel.322
UTRECHT JOURNAL OF
INTERN
ATIONAL AND EUROPEAN LA
W
RESEARCH ARTICLE
It’s not the Fish that Stinks! EU Trade Relations
with Morocco under the Scrutiny of the General
Court of the European Union
Sandra Hummelbrunner* and Anne-Carlijn Prickartz*
The EU’s international agreements with Morocco on trade in agricultural and shery products
have drawn criticism due to their application to the disputed territory of Western Sahara, a ter-
ritory that remains on the list of non-self-governing territories to be decolonised in accordance
with the right of self-determination of the indigenous Sahrawi people. Recently, the Sahrawi
liberation movement Front Polisario brought an action for annulment before the General Court
of the European Union (GC) against the Council Decision approving the conclusion of one such
agreement, alleging multiple violations of European and international legal norms. Interestingly,
although the GC concurred by annulling the Decision insofar as it applies to Western Sahara, it
chose to exclusively base its judgment on EU fundamental rights, invoking the EU’s failure to
ensure that the fundamental rights of the Sahrawi people were not infringed by applying the
agreements to Western Sahara. By summarily setting aside Front Polisario’s other claims, several
relevant questions of applicable international and European law, which warrant further discus-
sion, remain. This article examines these questions using the GC’s judgment in Front Polisario,
thereby combining general matters of international and European law with the specic circum-
stances of the EU-Morocco relations and Western Sahara.
Keywords: European Union; International law; General Court; Front Polisario, Western Sahara;
Self-determination; Fundamental rights; EU-Morocco trade relations
I. Introduction
In December 2015, the General Court (GC) of the European Union (EU) delivered its judgment in Case
T-512/12, or Front Polisario v Council (currently under appeal before the European Court of Justice),1 an
action for annulment brought by the national liberation movement Front Polisario2 against Council Decision
2012/497/EU, which approved the conclusion of an agreement between the EU and Morocco concerning
reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery
products and introduced new protocols and amendments to the 2000 EU-Morocco Association Agreement.3
The main point of contention was the application of the contested agreement to the territory of Western
Sahara, which is largely under the effective control of Morocco but is not internationally recognised as part
* PhD Candidate and Senior Scientist, Department of Public Law, Public International Law and European Law, University of Salzburg
(Austria).
1
Case C-104/16 P Council of the European Union v Front Polisario and Commission (pending).
2
In full, FrontPopular deLiberación deSaguía el Hamra yRío deOro or Popular Front for the Liberation of Saguia el-Hamra and Río
de Oro.
3
Case T-512/12 Front Polisario v Council of the European Union, EU:T:2015:953; Euro-Mediterranean Agreement establishing an
association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the
other part [2000] OJ L70/2 (EU-Morocco Association Agreement); Council Decision 2012/497/EU of 8 March 2012 on the conclu-
sion of an Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning
reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replace-
ment of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association
between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part
[2012] OJ L241/2.
It’s not the Fish that Stinks! EU Trade Relations with Morocco under
the Scrutiny of the General Court of the European Union
20
of the Moroccan State and instead remains on the United Nations (UN) list of non-self-governing territories
to be decolonised.4
The Front Polisario, a movement created in 1973 fighting for the liberation of the Sahrawi people and
against the foreign occupation of Western Sahara, claimed infringement of several norms of EU law and
international law, most notably breaches of fundamental rights as protected by Article 67 Treaty on the
Functioning of the EU (TFEU)5 and Article 6 Treaty on European Union (TEU),6 infringement of interna-
tional agreements concluded by the EU, the right to self-determination, essential provisions of interna-
tional humanitarian law, and that the contested act was unlawful as a result of the ‘the illicit nature of the
European Union’s conduct under international law’.7 Although the GC seemed to agree in its judgment
that the application of the agreement to Western Sahara was unlawful, annulling the Decision insofar as
it applied to Western Sahara, the GC’s legal argumentation was not quite as clear. In substance, the GC
seemed to apply international legal obligations, including those of Morocco towards the Sahrawi people
under the right to self-determination and the laws of administration/occupation, but, in its argumentation
the Court invoked the EU’s failure to consider the fundamental rights of the inhabitants of the territory as
the Council’s ‘manifest error of assessment’, thus establishing the Council’s violation of its obligation to
consider all the relevant elements of the case before adopting its decision.
The case thus brings with it a number of questions relating to the EU, EU law, and international law: Is
international law binding on the EU, and if so, what is its effect both on the EU legal order and on the EU
institutions? Can an individual —or, as in Front Polisario, an ‘autonomous entity’ not a legal person— invoke
these international norms, and if so, before which Court and through which kind of proceedings? This
article examines these questions from both a general and a specific viewpoint, using (the answers to) the
general questions to analyse the Front Polisario case and the reasoning of the GC. To this end, the article first
provides an overview of the legal and historical background of the Western Sahara dispute (Part II), moves
on to the binding force and effect of international law on the EU and the EU legal order and the applicable
principles of international law (Part III), then discusses the ramifications of EU’s international agreements’
incompatibility with international and/or EU law (Part IV), and concludes with some considerations and
future prospects of the Western Sahara situation and the EU’s role and obligations (Part V).
II. Background of the Dispute
A. Historical Background
In 1963, the UN Special Committee on Decolonization declared Western Sahara,8 a Spanish colony since
1884,9 a ‘non-self-governing territory to be decolonised’ in accordance with UN General Assembly (UNGA)
Resolution 1514 (XV).10 Two years later, the UNGA adopted Resolution 2072 (XX), in which it requested
Spain, as the administering power, to decolonise the territory.11 In subsequent resolutions, the UNGA repeat-
edly invited Spain to organise a referendum on the self-determination of the Sahrawi people under the
auspices of the UN.12 However, when the Spanish administration eventually announced to organise a ref-
erendum in the first half of 1975,13 Morocco and Mauritania put a spoke in the wheel by raising histori-
cal claims towards the territory of Western Sahara.14 Upon their request, the UNGA decided to obtain an
4
UNGA ‘Report of the Committee on Information from Non-Self-Governing Territories’ UN GAOR 18th Session Supp No 14 (1963)
UN Doc A/5514, Annex III.
5
Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/01 (TFEU).
6
Consolidated version of the Treaty on European Union [2008] OJ C115/13 (TEU).
7
Front Polisario (n 3) para 115.
8
Until the termination of Spain’s presence in the territory in 1976, most of the official UN documents referred to ‘Spanish Sahara’
instead of ‘Western Sahara’. For reasons of legibility the designation ‘Western Sahara’ is used throughout the paper.
9
cf Western Sahara (Advisory Opinion) (1975) ICJ Rep 12, 77.
10 See UN Doc A/5514 (n 4) Annex III: List of Non-Self-Governing Territories under Chapter XI of the Charter at 31 December 1962
classified by geographical region; Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514
(XV) (14 December 1960) (adopted by 89 votes to none; 9 abstentions).
11 UNGA Res 2072 (XX) (17 December 1965).
12 UNGA Res 2229 (XXI) (20 December 1966); UNGA Res 2354 (XXII) (19 December 1967); UNGA Res 2428 (XXIII) (18 December
1968); UNGA Res 2591 (XXIV) (16 December 1969); UNGA Res 2711 (XXV) (14 December 1970); UNGA Res 2983 (XXVII) (14
December 1972); UNGA Res 3162 (XXVIII) (14 December 1973). The OAU Council of Ministers called on Spain to hold a self-
determination referendum, see the Organization for African Unity (Council of Ministers) ‘Resolution on the Situation in Territories
under Portuguese Domination – Other Territories’ (OAU Rabat 1972) CM/Res 272 (XIX).
13 UNGA ‘Letter dated 20 August 1974 from the Permanent Representative of Spain to the United Nations addressed to the Secretary-
General’ (20 August 1974) UN Doc A/9714.
14 Even though Morocco and Mauretania, which share borders with Western Sahara, supported self-determination for Western Sahara
until the early 1970s, as both states genuinely believed that if given the chance the Sahrawi people would opt to join them, this

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