Western Sahara Resource Watch

30 May 2017

Above: The tank vessel Key Bay seen in the harbor of El Aaiun on 6 January 2017 – the first confirmed transport of goods from Western Sahara into the EU after the landmark judgment of the CJEU.

On 21 December 2016, the Court of Justice of the EU (CJEU) judged that EU-Morocco trade deals cannot include the territory of Western Sahara.

Yet, the EU Commission has been pushing hard the EU member states to ignore that judgement. And in spite of vocal opposition from the UN-recognised representative of the people of Western Sahara – the Polisario Front – this morning, EU member states gave their green light to the Commission to start talks with Morocco for Western Sahara trade.

Today, a meeting will take place between the EU parliamentarians (MEPs) from the Trade committee and the Commission, behind closed doors.

WSRW recommends MEPs to file the questions included below.

1. As regards the current situation, what is the amount of trade coming from Western Sahara on an annual basis? Can you reassure us that all products coming from Western Sahara, since the CJEU ruling are entering our country under the ISO code EH (i.e. not MA, as Moroccan products) and are not benefiting from the EU-Morocco preferential tariff (when applicable, for example to food products)?

2. The CJEU ruling requires the consent of the “people” from Western Sahara for economic activities related to this territory. How are you planning to get this consent? Can you confirm that your proposal refers to the “people” of Western Sahara and not to the “population”?

3. The CJEU ruling states that the POLISARIO Front is the legitimate representative of the WS people (para 35 and 105) and that Western Sahara is “distinct and separate” from that of Morocco. Why are you proposing to negotiate with Morocco, in relation to a territory that is outside the latter’s internationally recognised borders? Do you intend to ask for a mandate to enter into direct negotiations with the POLISARIO Front in order to get the required consent?

4. During the proceedings in front of the CJEU, the Commission stated that “the application of the Association and Liberalisation Agreements to Western Sahara could be interpreted as an infringement of its people’s right to self-determination and thus affect the legal situation of that territory, as it gives a degree of legitimacy to the Kingdom of Morocco’s claim to sovereignty” (Opinion C-104/16 P, paragraph 82). How does the Commission justify its change in position?

5. The EU-Morocco Association Agreement states that the certificates required to establish the place of origin (EUR.1 movement certificate) shall be issued by the customs authorities of the exporting country. Which customs authority will be responsible for products coming from Western Sahara? How can Morocco, acting in its sovereign capacity, deliver certificates of origin in relation to products originating in a territory that according to the UN and the CJEU are located outside of its international borders?

6. What are the safeguards that you can provide us with in order to ensure that the negotiations are in full conformity with the CJEU ruling, notably concerning the consent, in order to avoid costly and lengthy legal proceedings that the POLISARIO Front might launch against the outcome of the negotiations?