Action brought on 21 December 2021 – Front Polisario v Council
(Case T-793/21)
Language of the case: French
Parties
Applicant: Front populaire pour la libération de la Saguia el-Hamra et du Rio de oro (Front Polisario) (represented by: G. Devers, lawyer)
Defendant: Council of the European Union
Form of order sought
The applicant claims that the Court should:
declare its action admissible;
annul the contested regulation;
order the Council to pay the costs.
Pleas in law and main arguments
In support of the action again Council Regulation (EU) 2021/1750 of 28 September 2021 amending Regulation (EU) 2019/440 on the allocation of fishing opportunities under the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco and the Implementation Protocol thereto (OJ 2021 L 349, p. 1), the applicant relies on a single plea in law, alleging absence of legal basis of that regulation on account of the illegality of Decision 2019/441. 1
First part, alleging lack of competence on the part of the Council to adopt Decision 2019/441, in so far as the European Union and the Kingdom of Morocco do not have competence to conclude an international agreement applicable to Western Sahara instead of the Sahrawi people, represented by the Front Polisario.
Second part, alleging failure to comply with the obligation to examine the question of respect for fundamental rights and for international humanitarian law, in so far as the Council failed to examine that question before adopting Decision 2019/441.
Third part, alleging breach, on the part of the Council, of its obligation to comply with the judgments of the Court of Justice, in so far as Decision 2019/441 disregards the grounds of the Court’s judgment of 27 February 2019, Western Sahara Campaign UK (C-266/16, EU:C:2018:118).
Fourth part, alleging breach of the essential principles and values guiding the European Union’s action on the international scene, since:
first, in breach of the right of peoples to respect for their national unity, Decision 2019/441 denies the existence of the Sahrawi people by using the expressions ‘the people of Western Sahara’ and ‘the people concerned’ instead;
second, in breach of the right of peoples to dispose freely of their natural resources, Decision 2019/441 concludes an international agreement that organises, without the consent of the Sahrawi people, the exploitation of its fishery resources by EU vessels;
third, Decision 2019/441 concludes an international agreement applicable to occupied Western Sahara, with the Kingdom of Morocco, in the context of the latter’s policy of annexation with regard to that territory and the systematic breaches of fundamental rights that maintaining such a policy entails.
Fifth part, alleging breach of the principle of protection of legitimate expectations, in so far as Decision 2019/441 is contrary to the declarations of the European Union which has consistently reiterated the need to observe the principles of self-determination and of the relative effect of treaties.
Sixth part, alleging misapplication of the principle of proportionality since, given the separate and distinct status of Western Sahara, the intangible character of the right to self-determination and the status of third party of the Sahrawi people, it was not for the Council to carry out a balancing exercise between the alleged ‘benefits’ from the Fisheries Agreement and its impact on Sahrawi natural resources.
Seventh part, alleging conflict with the Common Fisheries Policy since, in accordance with the agreement concluded by Decision 2019/441, EU vessels will be able to access the fishery resources of the Sahrawi people, without its consent, in exchange for a financial contribution paid to the Moroccan authorities, although Western Sahara waters are not Moroccan ‘waters’ for the purposes of Articles 61 and 62 of the United Nations Convention on the Law of the Sea.
Eight part, alleging breach of the right to self-determination since:
first, by using the expressions ‘the people of Western Sahara’ and ‘the people concerned’ instead, Decision 2019/441 denies the national unity of the Sahrawi people as a subject of the right to self-determination;
second, in breach of the right of the Sahrawi people to dispose freely of its natural resources, Decision 2019/441 organises, without its consent, the exploitation of its fishery resources by EU vessels;
third, in breach of the right of the Sahrawi people to respect for the territorial integrity of its national territory, Decision 2019/441 denies the separate and distinct status of Western Sahara and endorses the illegal division thereof by the Moroccan ‘Berm’.
Ninth part, alleging breach of the principle of the relative effect of treaties since Decision 2019/441 denies the Sahrawi people’s status of third party to EU-Morocco relations and imposes international obligations on the Sahrawi people concerning its national territory and its natural resources, without its consent.
Tenth part, alleging violations of international humanitarian law and international criminal law since:
first, Decision 2019/441 concludes an international agreement applicable to Western Sahara although the Moroccan occupying forces do not have jus tractatus with regard to that territory and are prohibited from exploiting its natural resources;
second, pursuant to the agreement concluded by Decision 2019/441, the European Union will subsidise Moroccan infrastructure in occupied Sahrawi territory, so that the Kingdom of Morocco may durably establish its own civilian population and its own armed forces there;
third, by using the expressions ‘the people of Western Sahara’ and ‘the people concerned’, Decision 2019/441 is endorsing the illegal transfer of Moroccan settlers to occupied Sahrawi territory.
Eleventh part, alleging breach, on the part of the European Union, of its obligations under the law of international responsibility since, by concluding an international agreement with the Kingdom of Morocco that is applicable to Western Sahara, Decision 2019/441 is endorsing serious violations of international law committed by the Moroccan occupying forces against the Sahrawi people and rendering aid and assistance in maintaining the situation arising from those violations.
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1 Council Decision (EU) 2019/441 of 4 March 2019 on the conclusion of the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, the Implementation Protocol thereto and the Exchange of Letters accompanying the Agreement (OJ 2019 L 77, p. 4).