By Sandra Hummelbrunner and Anne-Carlijn Prickartz
Shortly before Christmas, the Court of Justice delivered its highly anticipated judgment in case C-104/16 P Council v Front Polisario, on appeal against the General Court (GC) judgment in case T-512/12 Front Polisario v Council, an action for annulment brought by Front Polisario, the national liberation movement fighting for the independence of Western Sahara. In this action, Front Polisario sought the (partial) annulment of Council Decision 2012/497/EU, which approved the conclusion of an agreement between the EU and Morocco concerning reciprocal liberalisation measures on agricultural and fishery products and amendments to the 2000 EU-Morocco Association Agreement. The main bone of contention was the application of the Liberalisation Agreement to the territory of Western Sahara, a non-self-governing territory to be decolonised in accordance with the principle of self-determination, but which is considered by Morocco to be an integral part of its sovereign territory and is largely under Morocco’s effective control.
The Front Polisario, as the internationally recognised representative of the Sahrawi people, contended that the Agreement was contrary to both EU and international law, including the principle of self-determination, international humanitarian law, and EU fundamental rights. In first instance, the GC partly concurred with Front Polisario’s submissions, annulling the contested Decision insofar as it applied to Western Sahara (for a more extensive review of the GC judgment, see our Article on Front Polisario v Council). Deciding on appeal, the Court of Justice took a different path, managing to avoid a discussion on the merits by focussing on the GC’s interpretation of the territorial scope of application of the Liberalisation Agreement as determined by Article 94 of the EU-Morocco Association Agreement, which provides for the application of the Agreements to ‘the territory of the Kingdom of Morocco’. Continue reading