(AGENPARL) – gio 21 marzo 2024 PRESS RELEASE No 53/24
Luxembourg, 21 March 2024
Advocate General’s Opinion in Joined Cases C-778/21 P | Commission v Front Polisario and C-798/21 P |
Council v Front Polisario
Advocate General ?apeta: the Court of Justice should annul the Council
decision concluding the Sustainable Fisheries Partnership Agreement with
the Kingdom of Morocco
In not treating the territory of Western Sahara and the waters adjacent thereto as separate and distinct from
that of the Kingdom of Morocco, the Council failed to respect the right of self-determination of the people of
Western Sahara
Western Sahara is a territory in North-West Africa, bordered by Morocco to the north, the People’s Democratic
Republic of Algeria to the north-east, the Islamic Republic of Mauritania to the east and south and the Atlantic to the
west.
In January 2019, the European Union and the Kingdom of Morocco signed the Sustainable Fisheries Partnership
Agreement (the “Fisheries Agreement”), along with the Implementation Protocol 1. That agreement was approved 2
by the Council on behalf of the European Union (the “Council decision”).
In June 2019, the Front Polisario 3, a movement supporting the right of the Sahrawi people to self-determination
sought the annulment of the Council decision before the General Court. In its action, Front Polisario claims to
represent the people of Western Sahara. It argues that the Council failed to respect the right to self-determination
of that people. In its judgment 4, the General Court annulled the Council decision. In 2021, both the Commission and
the Council brought an appeal before the Court of Justice 5.
In her Opinion, Advocate General Tamara ?apeta proposes that the Court reject these appeals and uphold
the General Court’s judgment to annul the Council’s decision. However, Advocate General proposes to base
that annulment on different reasoning.
First, the Advocate General explains that the people of Western Sahara have no official or recognised
representative to bring an action on their behalf. However, Front Polisario fights for one of the three possible
outcomes of the right to self-determination of the people of Western Sahara: the creation of an independent
State. Accordingly, Front Polisario should be viewed as reflecting the interests and wishes of (at least) part of
the people of Western Sahara.
Turning to the substance of the case, the Advocate General explains that the Fisheries Agreement and the
Implementation Protocol do not fulfil the requirement to treat the territory of Western Sahara as ‘separate
and distinct’ from that of the Kingdom of Morocco.
This is in violation of the principle of self-determination, as interpreted by the Court of Justice in its 2016
judgment in C-104/16 P Council v Front Polisario 6.
Communications Directorate
Press and Information Unit
curia.europa.eu
Furthermore, according to the Advocate General the failure to treat the two territories separately may also
have repercussions on the right of the people of Western Sahara to enjoy and benefit from their natural
resources, including the fishing resources in the waters adjacent to that territory. However, since some of those
elements, while raised before the General Court, were not dealt with, it is not for the Court of Justice to discuss the
scope of the rights and duties related to the enjoyment of natural resources of the people of Western Sahara.
NOTE: The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General
to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The
Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.
NOTE: An appeal, on a point or points of law only, may be brought before the Court of Justice against a judgment or
order of the General Court. In principle, the appeal does not have suspensive effect. If the appeal is admissible and
well founded, the Court of Justice sets aside the judgment of the General Court. Where the state of the proceedings
so permits, the Court of Justice may itself give final judgment in the case. Otherwise, it refers the case back to the
General Court, which is bound by the decision given by the Court of Justice on the appeal.
Unofficial document for media use, not binding on the Court of Justice.
The full text of the Opinion is published on the CURIA website on the day of delivery.
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Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco.
Council Decision (EU) 2019/441 of 4 March 2019 on the conclusion of the Sustainable Fisheries Partnership Agreement between the European Union
and the Kingdom of Morocco, the Implementation Protocol thereto and the Exchange of Letters accompanying the Agreement.
Frente Popular para la Liberación de Saguia El-Hamra y Rio de Oro (Popular Front for the Liberation of Saguia El-Hamra and Rio de Oro).
Judgment of 29 September 2021, Front Polisario v Council, T-344/19 and T-356/19 (Press Release n° 166/21).
These appeals are linked to the appeals in joined cases C-779/21 P and C-799/21 P, Commission and Council v Front Polisario (Press Release n°54/24).
Judgment of 21 December 2016, Council v Front Polisario, C-104/16 P (Press Release n°146/16).
Communications Directorate