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The long-awaited opinion of the Advocate General of the Court of Justice of the European Union (CJEU) on the appeal lodged by the EU to annul the September 29, 2021, judgment in favor of the Polisario has just been published.
Advocate Tamara Capeta concludes, in an opinion issued Thursday, March 21, that the CJEU should «uphold these appeals and annul the General Court's judgment», arguing that «the Court of First Instance erred in annulling the decision approving, on behalf of the European Union, a preferential tariff agreement with the Kingdom of Morocco relating to the territory of Western Sahara».
Capeta explains that «the people of Western Sahara have no official or recognized representative to bring an action on their behalf». However, she indicates that «Front Polisario fights for one of the three possible outcomes of the right to self-determination of the people of Western Sahara: the creation of an independent State». According to Capeta, this means that the Polisario «reflects the interests and wishes of (at least) part of the people of Western Sahara».
It's important to note that the CJEU's 2021 ruling «emphasized that, at international level, the Polisario is recognized as the representative of the people of Western Sahara».
Morocco's right to conclude agreements, Advocate General's view
The Advocate General observes that the EU's agreements with Morocco «do not require the consent of the people of Western Sahara. In view of the way it is organized today, this people are not in a position to express their consent alone to the conclusion of an international agreement relating to their territory».
She further clarifies that «the first judgment did not require that the Council obtain directly from the people of Western Sahara their consent, when concluding an agreement with the Kingdom of Morocco in relation to the territory of Western Sahara». Capeta stressed that, «that people cannot consent on their own to the conclusion of an international agreement relating to their territory».
#ECJ #AG Ćapeta: the #EUGeneralCourt erred in annulling the
— EU Court of Justice (@EUCourtPress) March 21, 2024
decision approving, on behalf of the #EU, a preferential tariff
agreement with the Kingdom of Morocco relating to the territory of
Western Sahara ? https://t.co/ATb3CgbPxg
The General Counsel asserts that the EU considers «the Kingdom of Morocco as the administering power of the territory of Western Sahara». Therefore, according to Capeta, «it was not contrary to the principle of the relative effect of treaties...for the European Union to accept that the Kingdom of Morocco may consent to that agreement on behalf of the people of Western Sahara».
It's important to remember that the Advocate General's conclusions are not binding on the Court of Justice. «It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible», reads the opinion.
For context, in September 2016, the former Advocate General, Melchior Wathelet, argued that «Western Sahara is not part of the territory of Morocco», and consequently, the agreements between the EU and Morocco did not apply there. The CJEU later rejected the agricultural agreement between Morocco and the EU.
