Opinion of Advocate General Ćapeta delivered on 21 March 2024.

• Jurisdiction: European Union
• Date: 21 March 2024
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 21 March 2024 (1)

Joined Cases C‑778/21 P and C‑798/21 P

European Commission

v

Front populaire pour la libération de la saguia el-hamra et du rio de oro (Front Polisario),

Council of the European Union (C‑778/21 P)

and

Council of the European Union

v

Front populaire pour la libération de la saguia el-hamra et du rio de oro (Front Polisario) (C‑798/21 P)

(Appeal – EU-Morocco Association Agreement – Sustainable Fisheries Partnership Agreement – Scope of application – Judgment of 27 February 2018, Western Sahara Campaign UK (C‑266/16, EU:C:2018:118) — ‘Consent’ of the people of Western Sahara – Principle of the relative effect of treaties – Right to self-determination)

I. Introduction

1. Can the European Union conclude, with the Kingdom of Morocco, a fisheries partnership agreement that also covers the waters adjacent to the territory of Western Sahara? If so, what obligations does the European Union have in relation to the people of that territory?

2. Those questions arise in the context of the appeals to the judgment of 29 September 2021, Front Polisario v Council (T‑344/19 and T‑356/19, EU:T:2021:640), (2) in which the General Court concluded that the European Union did not respect the rules of customary international law that the Court of Justice, in its judgments in Council v Front Polisario and in Western Sahara Campaign UK, had interpreted to bind the European Union. (3) Accordingly, the General Court annulled (4) Decision (EU) 2019/441, (5) which approved the conclusion of the Sustainable Fisheries Partnership Agreement, (6) the Implementation Protocol (7) thereto and the Exchange of Letters (8). The Council and the Commission are now appealing that judgment before the Court of Justice.

3. The present appeals must be read in the light of a set of parallel appeals questioning the validity of the Council decision approving amendments to the Association Agreement (9) with a view to extending tariff preferences to goods originating in the territory of Western Sahara as well as in the light of a preliminary reference seeking guidance on the correct country of origin labelling of products originating in the territory of Western Sahara. I deliver my Opinions in all of those cases today. (10)

4. As I also explain in my parallel Opinion of today in Commission and Council v Front Polisario, the continued struggle for self-determination of the people of Western Sahara constitutes a clear failure of the UN-led political process for which practical solutions are desperately needed.

II. Background to these proceedings

A. A short history of the Western Sahara question

5. In points 8 to 28 of my parallel Opinion in Commission and Council v Front Polisario, I explain in more detail the historical background to the Western Sahara question and the difficulties encountered by the people of that territory to exercise their right to self-determination.

6. What should be repeated or added for the purposes of the present proceedings is the following.

7. Western Sahara was colonised by the Kingdom of Spain in the 19th century.

8. In the context of the process of decolonisation, in 1963, that territory was added by the United Nations to the list of non-self-governing territories (‘NSGT’s). (11)

9. In 1966, the UN General Assembly confirmed the right of the people of Western Sahara to self-determination and invited Spain to enable and organise the exercise of that right, (12) which Spain decided to bring about through a referendum. That referendum was never held.

10. In 1969, the UN General Assembly passed Resolution 2554 (XXIV). (13) That resolution ‘reaffirms the inalienable right of the peoples of dependent Territories to self-determination and independence and to the natural resources of their Territories, as well as their right to dispose of these resources in their best interest in the light of the eighth preambular paragraph of General Assembly resolution 1514 (XV)’ and ‘requests the administering Powers and States concerned whose companies and nationals are engaged in such activities to take immediate measures to put an end to all practices which exploit the Territories and peoples under colonial rule.’

11. The status of Western Sahara as NSGT and the right of its people to self-determination were confirmed by the International Court of Justice (‘ICJ’) in its Advisory Opinion on Western Sahara. (14)

12. The Kingdom of Morocco considers the territory of Western Sahara to form part of its sovereign territory, including the waters adjacent thereto.

13. In 1975, Spain, the Kingdom of Morocco, and the Islamic Republic of Mauritania signed the Declaration of Principles on Western Sahara (also known as ‘the Madrid Accords’), (15) by which the territory of Western Sahara was partitioned between the latter two States. (16) Soon after, in January 1976, the Moroccan army entered the territory of Western Sahara.

14. According to a 1975 US diplomatic cable from Secretary of State H. Kissinger, as part of the negotiations surrounding the Madrid Accords, in return for its withdrawal from that territory, Spain was to be secured ‘fishing rights … in Saharan waters and 35 per cent Spanish participation in phosphate mines.’ (17)

15. On 26 February 1976, Spain informed the UN Secretary-General that it had terminated its presence in Western Sahara and renounced its position as the administering power under Article 73 of the UN Charter. (18)

16. In 1985, the European Economic Community undertook to assume responsibility for existing fisheries agreements concluded by Spain and Portugal with the Kingdom of Morocco, after their accession to the (then) Community. (19)

17. In 1988, 1992 and 2006, the European (Economic) Community entered into its own fisheries sector agreements with the Kingdom of Morocco. (20)

18. The scope of application of those agreements covered the ‘territory of Morocco and the waters under Moroccan jurisdiction’, (21) without specifically clarifying the boundary of the maritime areas covered.

19. A key component of all of those agreements was the payment of financial contributions to the Kingdom of Morocco, in part in return for the latter authorities issuing licences to EU fishing vessels. (22)

20. Separate protocols, valid for a period of four years respectively and forming an integral part of those agreements additionally laid down the fishing opportunities accorded to EU fishing vessels, their duration, and their conditions of use. (23)

21. The last protocol setting out the fishing opportunities and financial contributions (that is, the 2013 Implementation Protocol), (24) which accompanied the 2006 Fisheries Agreement, expired on 14 July 2018. (25)

22. The applicability to the waters adjacent to the territory of Western Sahara of the 2006 Fisheries Agreement and the 2013 Implementation Protocol was disrupted by the judgment of the Court in Western Sahara Campaign UK.

B. The Sustainable Fisheries Partnership Agreement

1. Procedural background

23. In 2018, the Court decided that the 2006 Fisheries Agreement did not cover the territory of Western Sahara or the waters adjacent to it because the terms ‘the territory of the Kingdom of Morocco’ and the ‘waters falling within its sovereignty or jurisdiction’ could not relate to the NSGT of Western Sahara. (26) Similarly, as regards the 2013 Implementation Protocol, the Court concluded that the term ‘Moroccan fishing zone’ did not include the waters adjacent to the territory of Western Sahara. (27)

24. In that sense, the Court aligned the interpretation of those terms with that of similar terms at issue in its judgment in Council v Front Polisario. In that judgment, the Court had concluded that the concept of the ‘territory of the Kingdom of Morocco’ could not be interpreted as extending to the territory of Western Sahara. (28)

25. After the judgment of the Court in Western Sahara Campaign UK, by decision of 16 April 2018, (29) ‘the Council authorised the Commission to begin negotiations with the Kingdom of Morocco with a view to amending the Agreement and agreeing on a new Implementation Protocol.’ (30)

26. On 14 January 2019, the European Union and the Kingdom of Morocco signed the Sustainable Fisheries Partnership Agreement, the Implementation Protocol and the Exchange of Letters, which form part of that agreement. (31)

27. The Exchange of Letters notes, in relevant part, that the European Union and the Kingdom of Morocco ‘reaffirm their support for the United Nations process and the Secretary-General’s efforts to achieve a final political solution in accordance with the principles and objectives of the [UN Charter] and on the basis of Security Council resolutions’.

28. The Exchange of Letters also stipulates that ‘the Fisheries Agreement is concluded without prejudice to the Parties’ respective positions’, which, for the European Union, means that ‘references in the Fisheries Agreement to Moroccan laws and regulations are without prejudice to its position concerning the status of the non-self-governing territory of Western Sahara, whose adjacent waters are part of the fishing zone defined in point (h) of Article 1 of the Fisheries Agreement, and its right to self-determination’ and, for the Kingdom of Morocco, entails that ‘the Sahara region is an integral part of the national territory over which it exercises full sovereignty in the same manner as for the rest of the national territory.’

29. By the contested decision of 4 March 2019, the Council approved on behalf of the European Union the Sustainable Fisheries Partnership Agreement, the Implementation Protocol and the Exchange of the Letters. Recitals 3, 5 and 7 to 11 of that decision read as follows:

‘(3) In its judgment in Case C‑266/16 in reply to a request for a preliminary ruling on the validity and interpretation of the Agreement and of the Implementation Protocol thereto, the Court...