A fisheries agreement between the EU and Morocco should be cancelled as it does not consider the disputed territory of Western Sahara and its waters as “separate and distinct” from the North African kingdom, an advocate general at the EU’s top Court said in an opinion issued on Thursday (21 March).

The four-year sustainable fisheries partnership agreement between the EU and Morocco, signed in 2019, involved a €208 million EU contribution in exchange for fishing opportunities, mainly used by Spanish fishermen.

However, the agreement lapsed in July 2023 amid a dispute over its legality, leaving hundreds of EU vessels without a licence to fish in Morocco’s exclusive economic zone (EEZ), which includes Western Sahara waters.

The advocate general, Tamara Ćapeta, stressed in her opinion that the EU deal did not uphold “the right of self-determination of the people of Western Sahara.” Advocates general are magistrates who advise the Court of Justice of the EU and issue non-binding opinions on legal matters, which the Court often considers in final rulings.

The former Spanish colony of Western Sahara was annexed by Morocco in 1975, leading to a long-standing conflict with the Polisario Front, which claims to represent the region’s indigenous people.

The advocate general declared that the people of Western Sahara “have no official or recognised representative” but noted that the Polisario Front should be viewed as “reflecting the interests and wishes” of at least part of the region’s population.

She added that failing to treat the two territories as different impacts the Saharawi people’s right to benefit from their natural resources, including the rich fishing banks off the region’s Atlantic coast.

Plot twist

In a surprising turn, Ćapeta’s separate opinion published the same day argued against the annulment of an EU-Morocco preferential tariff agreement that covered agricultural products, stating that consent from the people of Western Sahara was not required, and thereby contradicting a 2021 ruling from the EU’s General Court.

Ćapeta argued that under its current organisation, the population of Western Sahara cannot express their consent to the conclusion of an international trade agreement and that this may be negotiated by an “administering power,” in this case Morocco, on behalf of the territory.

Therefore, the advocate suggested to the top Court that the previous judgement be scrapped, upholding the appeals brought forward by the European Commission and Council, who challenged the 2021 decision.

Hugh Lovatt from the European Council on Foreign Relations (ECFR) viewed this opinion as positive for Morocco overall, as it supports the preferential trade deal, which holds greater economic importance for the kingdom than the fisheries agreement.

“The fisheries agreement is much more important to the EU and EU fishermen (than to Morocco),” Lovatt added, noting that in the event of a renegotiation with the EU, Morocco would try to obtain better terms.

EU fishermen regret opinion

Ćapeta’s conclusions have not been welcomed by European fishermen, represented by Europeche, who cautioned that fishing activity under EU sustainability standards would no longer be possible in the West African region if the Court followed the advocate general’s opinion.

They highlighted the significant impact on EU fishing operations, particularly the capture of sardines and tuna.

“These fisheries have been essential for bringing millions of meals a day to Africa, the EU and elsewhere, especially where there is the greatest demand for healthy and affordable food,” Europeche told Euractiv in a statement.

Europeche suggested that if the agreement with Morocco should end, the EU might rely on a similar deal with Mauritania, but only if this is “financially viable,” as certain fish species have been severely depleted by non-EU fleets.

“It is good news that the Mauritanian government has taken first steps on the basis of a new management plan,” Europeche concluded.

[Edited by Angelo Di Mambro and Zoran Radosavljevic]

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