- The European Court of Justice Verdict in a Time of Realignment - 16 June, 2025
Introduction
On October 4, 2024, the Grand Chamber of the Court of Justice of the European Union (CJEU) annulled the 2019 EU-Morocco Trade and Fishery Agreements. For the first time, the CJEU invalidated EU agreements on the grounds of the violation of international law. While the European Union tries to maintain a collaborative relationship with Rabat, it struggles with art. 73 in the United Nations Charter, which defines “territories whose people have not yet attained a full measure of self-government”. Western Sahara is among those territories included in the list, recognised since 1963.
With this landmark judgement, the Court of Justice confirmed the lack of involvement of the Polisario Front – the representative of the Saharawi Arab Democratic Republic (SADR)- during consultation. The misrepresentation raises concerns about territorial implications. The favourable ruling still leaves open the revision of the agreements between the European institutions – Council and Commission – and the Alawite reign of Morocco.
The Western Sahara dispute
Western Sahara was a Spanish colony from 1885 to 1975. After the formal retirement of Spain in February 1976, Morocco claimed the territory, based on longstanding ties with the tribes of the territory, shared religion, and language. Moreover, previous agreements with Spain, Great Britain, and the US further work as a proof of their legitimate ruling over the region. Other foundations for their claim were treaties with Spain, Great Britain and the US.
The International Court of Justice declared on 16th October 1976 that the present territory of Western Sahara is the “foundation of a Saharan people with its own well-defined character, made up of autonomous tribes, independent of any external authority” . On November 1975, the Green March took place. 350 000 volunteers occupied the region, leading to an escalation of conflict between Morocco and the Polisario Front, backed by Algeria. The war lasted until 1991, when a UN ceasefire declare the ending. Yet, during the conflict, Morocco took control over most of the territory, and maintained it by incentivizing settlements and building infrastructures.
Overall, Morocco’s claim over Western Sahara is driven by economic factors. The territory is rich in phosphates, fish stocks, oil, and gas reserves. By 2018, 94% of the catches exported to the EU (in accordance with the agreement) came from Western Sahara’s waters. Moreover, the infiltration of Morocco within the region may represent a transversal control over the region, and, especially, its natural resources. Therefore, agreements with the EU have effects that are not confined solely within the economic sphere.
The legal battle
The Polisario Front started its legal battle in November 2012. It pleaded against the EU Council Decision 2012/497/EU, the first version of the agreement on agricultural and fishery products with Morocco. The case bears similarities to their ongoing legal disputes with the EU. Without the proper involvement of the Sahrawi people in the agreements, the Council is violating International Law, namely the right to self-determination and the principle of obligations for third parties.
In December 2015, the General Court of Justice annulled the agreement. Along with it, based on the need to ensure human rights compliance, the ruling recognized the Polisario Front as the legal representative of the Sahrawi people. However, in December 2016, the CJEU overturned this decision. On the one hand, the Court acknowledged that EU-Morocco agreements could not legally apply to Western Sahara, being a separate non-self governing territory under UN Resolution 34/37. On the other, it ruled that the Polisario Front lacked legal standing in the case. The Polisario Front could not challenge the CJEU’s decision in court because it was not included in the agreements as an involved party.
To circumvent the 2016 ruling, the Council and Commission renegotiated the agreements in 2019. This time, they confirmed the proper participation of the Sahrawi people during the consultation process. However, the Polisario Front argued that these consultations were neither representative nor legitimate. In 2021, the General Court again ruled in favour of the Western Sahara territory, stating that the EU had failed to obtain the explicit concent of the Saharawi people. Indeed, the consultations took place with the current inhabitants of the territory, not specifically with people belonging to Western Sahara. Appealed by the Council and the Commission, we arrive at the final CJEU ruling in October 2024.
Implications
The annulment is a symbolic victory for Western Sahara. For years, the Council and the Commission prioritized economic benefits over the Saharawi people’s right to self-determination. This stance on the agreements was further reinforced by Morocco’s use of migration as leverage to pressure EU policy changes.
Nonetheless, the Grand Chamber ruling also set the minimum conditions for third-party consent under International Law. Indeed, if the people of non-self governing territories “receive a specific, tangible, substantial, and verifiable benefit from the exploitation of the territory,” along with the guarantee of the region’s sustainable development, and “regular control mechanisms” to verify that these benefits are actually perceived, the agreements would be compatible with International Law. Therefore, as long as economic benefits are guaranteed, further compliance of the representative of the Western Sahara’s people is not required. The consequences could lead to increased legitimization of Morocco’s claim of the territory, through the presence of private companies.
On the other hand, the annulment is expected to have harsh economic consequences on Morocco. Besides losing 40 millions per years in European funds, agricultural exports from Western Sahara will lose prefential access to the EU markets. Moreover, further implications to other bilateral agreements can potentially reduce Western Sahara’s economic appeal for Rabat.
Compared to the past, Morocco’s reaction was quite different. In 2016, after the 2015 CEJU ruling, the Kingdom suspendend diplomatic relations with the EU. Whereas, back to these days, the Ministry of Foreign Affairs stated to not be threatened by the decision. He declared that the Kingdom was not consulted during the proceedings. Moreover, Rabat reiterated that it would only comply with further agreements, only if they respect its territorial integrity and national unity.
“Rashad Hussain King Mohammed VI- Morocco” by Rashad Hussain is licensed under CC BY 2.0.
International Backing for Morocco’s Claim
The dispute occurred while the Polisario Front faced diminishing recognition. In 2020, Morocco normalised relations with Israel, via the mediation of Donald. J. Trump. The historic agreement comes with the official recognition of Moroccan sovereignty over Western Sahara by the United States. In 2023, Israel followed suit, becoming the second country to recognize Moroccan sovereignty over Western Sahara.
In 2022, Spanish Prime Minister, Pedro Sánchez, formally announced Spain’s support of the Moroccan initiatives for autonomy proposed in 2007. The Autonomy Plan recognised Western Sahara as an autonomous region, but under the Kingdom of Morocco. Emmanuel Macron shared the same position in 2024, during a visit to Morocco. This affirmation in parliament did not come without consequences from Algeria, which withdrew its ambassadors from Paris.
Conclusion
The CJEU ruling represents a legal but partial victory for the Sahrawi People. Given shifting geopolitical alliances, the chances of Western Sahara’s universal recognition as a separate entity are narrowing. Moreover, EU institutions appear fragmented. While the Commission and the Council seek to maintain friendly ties with Morocco, the kingdom leverages Europe’s growing interests and needs – anti-migration and energy supply– to advance its claim of sovereignty over Western Sahara. In this landscape, the CJEU remains the only EU body consistently siding with the Saharawi people.
Questions
- Will Trump take further steps to solidify U.S. recognition of Moroccan sovereignty over Western Sahara during his second term?
- How might the EU’s formal stance on Western Sahara evolve given Spain and France’s pro-Moroccan positions?
- Will the EU Council and Commission reconsider their approach and ensure proper involvement of the Western Sahara population in future negotiations?
Reading suggestion
- Odermatt, Jed. Whose Consent?: On the Joined Cases C-779/21 P, Commission v Front Polisario and C-799/21 P, Council v Front Polisario. VerfBlog. 5 October 2024.
- Suárez-Collado, Ángela, and Davide Contini. The European Court of Justice on the EU-Morocco agricultural and fisheries agreements: an analysis of the legal proceedings and consequences for the actors involved. The Journal of North African Studies, 27(6), 1160–1179. 21 April 2021.
- Fernández-Molina, Irene. Morocco-EU relations: Navigating sovereignty concerns and growing interdependence. Italian Institute for International Political Studies. 23 July 2024.
