Conclusions of the CJEU's Advocate General's Office: Mentions and Omissions
Last Thursday, March 21, the Advocate General's Office of the CJEU published several conclusions, in which it pronounced itself on various issues related to the trade agreements between the EU and Morocco, with the Sahara as the main element.
The most immediate consequence, as usual in these cases, was the hasty flow of communiqués and publications of one of the parties in question, highlighting or omitting at convenience the fragments of the Advocate General's opinion that they considered appropriate. Either directly, through the classic and biased official communiqué of the Polisario, or through its usual media satellites on this side of the strait. All this in order to feed the story and sell it as their own success.
Nothing could be further from the truth. As we will see below, the opinions of the Advocate General on the issues to be discussed were much more profound than what has transpired. As the expression goes, hardly anything has been said about the "container" (the conclusions), and the "content" (the arguments put forward) has been largely omitted. We will discuss the latter later.
First of all, it should be noted that the figure of the Advocate General of the CJEU - there are 10 of them in total, from as many countries - plays a special role in the Court of Justice. Their function is to provide the judges with an impartial and independent opinion. They do not take part in the deliberations of the Court, whose judges ultimately reach the final decision. The Advocate General's opinion is not binding, although Luxembourg judges follow his recommendations - according to various sources consulted - in between 70 and 80% of cases.
A recent and notorious example of this was the Superliga vs. UEFA case (led by the position of Real Madrid and Futbol Club Barcelona). Here, while the EU Advocate General's opinion was that FIFA and UEFA did not abuse their dominant position by blocking the creation of an alternative tournament with the threat of sanctions, a year later, the CJEU held that UEFA and FIFA's rules did constitute such an abuse.
Going back to the beginning of the article, on the conclusions to the questions put to the Advocate General of the European Court in relation to Morocco and the EU, surely the vast majority of those reading these lines will not have found it difficult to find typographically rich headlines mentioning that the Advocate General of the CJEU "recommended the annulment of the EU-Morocco fisheries agreement in relation to the Sahara" (No. 53/2024: 21 March 2024). What may have been more difficult for them to find is that this lawyer, the Croatian Tamara Capeta, endorsed the legality of the EU trade agreement with Morocco (No. 54/2024: March 21, 2024), overturning the previous judgment of the court of first instance, which annulled its approval because it considered that the pact had to be endorsed by the Polisario.
According to the Advocate General, "the people of Western Sahara cannot, in their present state of organization, give this necessary endorsement on their own. That is to say, there is no elected or accepted representative who can give his consent on their behalf", in clear allusion to the Polisario, which she does not consider an official or recognized representative who can bring an appeal on their behalf, and which she defines as "an organization which only reflects the interests of a part of the population of the Sahara: those who advocate the creation of an independent State".
The lawyer of the CJEU also emphasizes in her conclusion that "the Polisario Front is a self-proclaimed liberation movement which was born to fight for a particular type of future model of governance of the territory of Western Sahara: that of the independence of that territory from the Kingdom of Morocco, as well as the creation of a sovereign and autonomous Saharawi State. However, it was never elected by the people of Western Sahara for that role, nor can it be determined with certainty that the Polisario Front has the support of the majority of the people of Western Sahara". He goes on to say that "the Polisario Front is not recognized as the representative of the people of Western Sahara by either the United Nations or the European Union. In the case of the EU, the lawyer asks "without an elected or collectively recognized representative, how can this people defend their collective right to self-determination before the EU courts?". In the case of the UN, she recalls that the much-touted by some Resolution 34/37 of the UN General Assembly of November 21, 1979 "is insufficient evidence, in itself, to establish such a claim". Surely, these statements will have stung more than one in Rabuni or Algiers. Also in Spain, of course. This is the only way to explain the omission of all these questions in the publications on the subject.
The matter did not end there. For, as a consequence of the above, the question arose as to whether the Kingdom of Morocco could give its consent to the agreement in question on behalf of the people of Western Sahara. During the explanatory memorandum arguing for her decision, the lawyer not only answered in the affirmative, but went a step further, entering into the vexed issue of the administration of the territory.
Counsel Capeta points out that "under international law, a State that de facto controls a territory has three possible legal classifications: sovereign, administrator or occupier". Therefore, the lawyer points out in her deliberations that "the political institutions of the EU do not treat the Kingdom of Morocco as an occupying power, nor as a sovereign, but rather as an administering power. I repeat, for the EU it is not an occupying power but, at the very least, an administering power.
In fact, the EU takes refuge in the Madrid tripartite agreements, mentioning them and recalling that "the UN list of all non-self-governing territories pending decolonization indicates the administering colonial power of each territory; except in the case of Western Sahara". In short, according to the lawyer, for the EU, and contrary to what Polisario and its supporters insist, Spain is no longer the administering power of the territory.
The lawyer also stresses that, although Morocco considers the Sahara a sovereign territory (a status superior to that of administering power), this does not prevent the European Union from unilaterally treating the Kingdom of Morocco as the 'de facto' administering power of the territory of Western Sahara in its economic commitment to the territory. It follows that they are the administering power and therefore the one entitled to give "consent" to the implementation of an agreement concluded between two States within the territory it administers.
In short, given that the EU confers this status on Morocco, the Advocate General considers that the EU itself must accept that it is Morocco, and not the Polisario, which endorses the trade agreement on behalf of the Sahara, thus rejecting the arguments of the Polisario.
It should also be noted that the Advocate General of the EU, in order to arrive at the above conclusions, uses a wide range of case law, bibliography, resolutions, etc., in her deliberations, as can be seen in the full text published on the official website of the CJEU on 21 March last. Logically, this is a technical and professional opinion based on various sources of international law. A clarification which should not be necessary, but which is not superfluous in view of the suspicions which, in a sectarian and militant manner, this subject arouses in the circles closest to the Polisario. At the same time, those who have deliberately omitted it during these days.
Finally, the communiqué also highlights the current position of the European Union on the issue and its political resolution, stating that the process should aim at reaching 'a just, realistic, pragmatic, lasting and mutually acceptable political solution (...) based on a compromise between the parties. All this on the basis of the joint statement of the European Union and Morocco for the fourteenth meeting of the Association Council (June 27, 2019). Words that are in line with the annual resolutions of the UN Security Council, where for years now the word referendum is no longer mentioned. It should not be forgotten that half of the EU countries, including the most important ones, individually support the 2007 autonomy status for the region proposed by Morocco.
As for the other case decided by the EU Advocate General (No. 55/2024: March 21, 2024), concerning the import of products originating in Western Sahara, I will try not to say much more.
It concerned a finding arising from a preliminary ruling from the agricultural union Confédération Paysanne, through the French Council of State, concerning the labeling of food products originating in the territory of Western Sahara (melons and tomatoes), as well as the ability of member states to act unilaterally to prohibit the importation of goods from third countries, in this case Morocco.
On this issue, and as in the previous one that we detailed before, you may also have been able to read these days headlines with great typographic richness and a certain bias talking about melons and tomatoes, based on the conclusions of the lawyer on the labeling of products, but where the same conclusions were omitted in relation to the issue of the ban on imports.
Here the main point was the latter, since although the lawyer stated that tomatoes and melons originating in the Sahara must bear an express mention of this territory on their label, she also stated in a clear-cut manner that "on the basis of the Union's customs code, a member state is not authorized to unilaterally adopt a national measure prohibiting the import into its territory of fruit and vegetables from a third country, merely because they are not correctly labeled with the country of origin". In other words, EU member states cannot veto food imports. Vetoing such products is contrary to EU law, where international trade in goods is the exclusive competence of the EU, governed by uniform principles, and only the EU can issue import bans.
It is clear that in the dissemination of this issue there has been an interest in remaining tangential or incidental, whether melons or tomatoes, hiding the substance, namely: the non-banning of imports of products, regardless of how they are labeled. In fact, Abdulah Arabi, Polisario delegate in Spain mentioned at the time that "the labeling issue is one more phase of the conflict, one more evidence of the illegality of the economic agreements between Europe and Morocco". False, as we have been able to see throughout this article, these statements by Arabi are reproaches of thick strokes, very far from the reality described by the lawyer of the CJEU, Tamara Capeta. Although, as we said at the beginning, Capeta's opinions are not binding, they are taken into account in a considerable percentage by the court.
We will have to wait for the final decision of the CJEU. In the meantime, we will continue to contemplate how certain things are mentioned and omitted every time a similar issue arises. May the container not distract or obscure the value of the content. And if it does not, we will be here to mention it when others omit it.