This February, the Court of Justice of the European Union delivered a judgment in which, one year after the C-104/16 P Council v Front Polisario judgment, once more the EU’s trade relations with Morocco took centre stage. Whereas in Front Polisario the Court was faced with the question of the validity of the EU-Morocco Association Agreement (AA) and Liberalisation Agreement (LA), this time the Court was tasked with determining the validity of the EU-Morocco Fisheries Partnership Agreement (FPA), the 2013 Protocol thereto and the EU implementing acts in the context of a preliminary ruling procedure requested by the British High Court. The national proceedings were brought by the voluntary organization Western Sahara Campaign UK, which sought to challenge certain British policies and practices implementing the aforementioned legal acts, as far as they pertained to goods originating in and fisheries policy related to Western Sahara. As in Front Polisario, the main issue was the application of these agreements to the territory of and products originating in Western Sahara, a non-self-governing territory to be decolonised in accordance with the principle of self-determination, but considered by Morocco to be an integral part of its sovereign territory (for background, see our Article on T-512/12 Front Polisario v Council).
Given that this is the first request for a preliminary reference concerning the validity of international agreements concluded by the EU and their acts of conclusion, it also raised some new procedural questions, especially concerning the Court’s jurisdiction. In this case, the Court readily accepted that it has jurisdiction to give preliminary rulings on the interpretation and validity of all EU acts, ‘without exception’. This is noteworthy in and of itself, as it firmly establishes the Court’s jurisdiction when it comes to reviewing the EU’s international agreements in light of international law, albeit indirectly in the context of ruling on the validity of the EU act approving the international agreement in question (Judgment paras 48-51). Such jurisdiction is in line with the Court’s recent case-law that provides for the Court’s comprehensive jurisdiction, especially in light of the Court’s finding that the Treaties have created a ‘complete system’ of judicial review entrusted to the Courts of the EU (Rosneft para 66). Continue reading