EU-Morocco relations risk hitting another rough patch after a senior lawyer said that their trade treaties do not apply to Western Sahara, a disputed territory.
Advocate-general Melchior Wathelet set out his opinion to EU judges in Luxembourg on Tuesday (13 September).
He said that “neither the EU-Morocco association agreement nor the EU-Morocco agreement on the liberalisation of trade in agricultural and fishery products apply to Western Sahara” because “Western Sahara is not part of Moroccan territory”.
His opinion is not binding, but judges follow advocates general in most cases.
If their verdict, expected in November, echoes Wathelet then the EU could see a repeat of last year’s fiasco, when Morocco severed diplomatic ties with EU institutions after an unfavourable ruling.
Western Sahara is a territory in north-west Africa, known as its last colony.
Morocco occupies most of the land and claims it as its own after a war in 1976, but according to the UN it is a “non-self-governing territory” whose people, the Sahrawi, have the “right to self-determination”.
Wathelet had been asked to pronounce on a case originally filed at the European Court of Justice (ECJ) in 2013 by the Polisario Front, the Sahrawi national liberation movement, against an annex on fish products in EU-Morocco agreements.
The Polisario Front won in December 2015, prompting the Moroccan outcry and an EU appeal.
In Wathelet’s opinion, the Polisario Front’s case and the EU appeal are no longer relevant, because the broader EU-Morocco treaties, which govern the annex, do not apply to Western Sahara.
The issue is politically explosive.
Its implications were, on Tuesday, also highlighted when a ship full of fish oil from Western Sahara, the Key Bay, rounded Spain en route to France.
French customs have decided that the shipment is not liable for tariffs, in line with the EU-Morocco trade treaties, because, the EU says, those accords remain in force despite the December 2015 ECJ ruling.
Morocco’s interior minister, Mohamed Hassad, told EUobserver last week that the EU deal, to his knowledge, has not been suspended in any part.
He also recalled Morocco's role in stemming migration to the EU and in helping Europe on counter-terrorism, in what appeared to be a veiled threat over Western Sahara’s status.
An European Commission spokesperson also said on Tuesday that the trade arrangements remained in place.
"The court [in December] had annulled the EU legal act (the decision to conclude) and not the agreement as such," the spokesperson said.
Polisario’s lawyer, Gilles Devers, told EUobserver that this was the wrong interpretation, adding that EU institutions are in “defiance” of the ECJ by continuing to enforce the trade treaties in the disputed territory.
The EU’s zealous support of Morocco has raised eyebrows among some MEPs.
Morocco and the EU said to be working together on the ECJ appeal, and France, Portugal and Spain
have spoken out in Rabat’s favour in court (Germany withdrew at last minute, and Belgium didn't send a representative to the hearing in Luxembourg).
Jose Bove, a French green MEP who was the EU parliament’s rapporteur on the EU-Morocco agreements, welcomed the advocate-general's opinion, and hoped the final ruling would put an end to "EU hypocrisy".
"The EU should immediately take measures to ensure that no products from Western Sahara illegally enter the EU market as Moroccan goods. The EU's complicity in the illegal occupation of the territory has lasted too long," Bove, who in his time voted against the EU-Morocco accords, said.
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