In full geopolitical turmoil, the Court of Justice of the UnionEuropean Union (CJEU) has just surprised with its long-awaited judgment of October 4, 2024. This decision, which concerns the Euro-Mediterranean agreement between the EU and Morocco, could redefine the political balances in the region and beyond. More than a simple legal decision, this is a turning point that questions the way in which international relations will be shaped in the future.
We we will not comment THE shortcuts of certain daily newspapers eager to indicate that the European Court confirms the annulment of the accords Morocco-EU fishing, even less the French daily newspaper Le Monde who titled: EU-Morocco agreements: justice rules in favor of the Polisario Front in Western Sahara.
Our attention will focus on the analysis of thejudgment C793/22 full of lessons that can help guide any subsequent steps.
A geopolitical stop
Any court decision resolves a dispute between at least two parties.
The forces present in thecase decided are instructive.
By their appeal, la Commission European and the Union CouncilEuropean asked the annulment of the judgment of the General Court of the European Union of September 29re 2021by which this one has annulled the Council’s decision of January 28, 2019, relating to the conclusion of the agreement in the form of an exchange of letters between the European Union and the Kingdom of Morocco on the modification of protocols no 1 and no 4 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part.
The European Commission was supported by the Kingdom of Spain, partye intervener in the appeal.
The European Council was supported by the Rkingdom of Belgium, the Kingdom of Spain, the Hungary, the Portuguese Republic, the Slovak Republic, parties intervening in the appeal.
The French Republic and the Moroccan Confederation of Agriculture and Rural Development (Comader), parties intervening at first instance, also concluded before the CJEU.
Supported by no one, the Polisario was reppresented by a lawyer at the Lyon bar.
In his speech of August 20, 2022, His Majesty King Mohammed VI proclaimed:
« I would like to send a clear message to everyone: the Sahara issue is the prism through which Morocco considers its international environment. It is also clearly and simply the yardstick that measures the sincerity of friendships and the effectiveness of the partnerships that it establishes.. »
Force and see that by their displayed presence, their arguments developed and their demonstrations supported before the CJEU, the European Commission, the European Council, the Belgium, l‘Spain, France, the Hungary, the Portugal and the Slovaquie showed unwavering support au Morocco.
As for the General Advocate, the Croatian Tamara Capeta concluded in the admissibility of the appeal introduit par le Polisario.
And this, even though she noted that the Polisario Front is not recognized as “ the » representative of the people of Western Sahara by the United Nations or the European Union, that it is a self-proclaimed liberation movement.
And to specify that he n’a never been elected by the people of Western Sahara to embody this role and thatit is impossible to determine with certainty if he enjoys the support of (the majority of) these people.
A stop to reasoning Also contradictorythatbold
On the one hand, pour reconnaîbeing in the Polisario the ability to take legal action before the courtsUnion decisionsat the CJEU felt that it is one of the legitimate interlocutors within the framework of the process carried out, with a view to determining the future of Western Sahara, under the aegis of the Council ofe security of the United Nations, and whose decisions bind all Member States and the institutions of the Union.
Et what, despite the fact that it has never been granted the status of “national liberation movement” by the United Nations or by the Union and its Member States.
On the other hand, to judge ineffective the argument relating to the absence of recognition of the legal personality of Polisario in the legal orders of the Member States or the fact that no court of a Member State has recognized its capacity to take legal action, the CJEU made a bold analogy, considering that it had recognized in 2021 that a third State – the Veinshe hadas a State endowed with international legal personality, should be considered as a “personnot moral ».
This is a dangerous precedent undermining the very credibility of the CJEU :
en recognizing only one entitynon-state entity, such as Polisario, may have the capacity to challenge EU acts without being formally recognized as a state or legal entity in national legal orders, the CJEU opens the door to other non-state entities or even separatist movements to challenge in court. This could lead to an increase in litigation before European courts, emanating from groups without formal legal recognition, but which claim separate status.iespecially at the international level.
Worse, the CJEU has established a parallel between the absolute principle of souverseniority and an enforceable right with uncertain contourswhat is the right to self-determination claimed by an organization with status and to limited representativeness.
In doing so, la CJUE a commission related legal errors to an erroneous interpretation and application of the law international, in terms of external relations.
A judgment lacking in effectiveness with uncertain consequences
For the CJEU, on the one hand the Polisario is individually conceivedearly by thedisputed agreement, not on ses economic effectsbut rather on the circumstance that this organization represents the people of Western Sahara as holders of the right to self-determination in relation to this territory.
But on the other, she judged the necessity of the consent of the people of Western Sahara and the identification of the Polisario Front as the entity responsible for expressing this consent, while indicating that the circumstance that a movement which presents itself as being the legitimate representative of this people opposes this agreement cannot, as such, be sufficient to call into question the existence of such presumed consent.
The composition of 13 judges chaired by a federalist (Koen Lenaerts) at the head of this jurisdiction for 12 years, would explain the extravagance of such decision which concludes in maintaining dit’s effets of the disputed agreement from October 25, 2018 for a period of twelve months from the date of delivery of this judgmentyet expired in July 2023.
This was the poor epilogue to this dispute introduced on April 27, 2019 by the Polisario.
All for that.
This judgment raises profound questions about the future of relations between the European Union and its partners in the South, but above all about the fragile balance between international law.onal interpreter and geopolitical realities.
Is this an isolated precedent or a turning point towards a new approach?e of European diplomacy?
Only time will tell, but one thing is certain: the impact of this decision will be felt far beyond the courtrooms.
Hachim FADILI: Lawyer at the Paris Bar
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