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PUSL.- On 16 July the Council adopted a decision on the extension of tariff preferences in the Association Agreement with Morocco in Western Sahara. According to the Commission, the decision is in line with the judgment of the Court of Justice of the EU on the liberalization agreement on agricultural and other products of 21 December 2016.
As a reminder, on 29 May 2017, the Council authorized the Commission to open negotiations with a view to providing a legal basis for granting preferences to products originating in Western Sahara following the judgment of 21 December 2016 in the case C-104/16 P 3
, in which the Court of Justice of the European Union had ruled that the Association Agreement and the liberalization agreement concluded between the EU and Morocco did not apply to Western Sahara.
Two rounds of negotiations took place. The first was held on June 15 and 16, 2017, the second on July 18, 2017. The Chief Negotiators initiated the draft agreement on January 31, 2018.
This decision is motivated according to the European Commission by two main objectives.
On the one hand, the agreement would ensure that products from Western Sahara could be exported to the EU with trade preferences and thus “favor” the development of Western Sahara. Therefore, such measures should prevent Western Sahara from being in an unfavorable competitive situation, and thereby lose investment opportunities, compared to neighboring countries, which benefit from tariff preferences in different ways (association agreements or framework of the Generalized System of Preferences) “.
On the other hand, it should allow the EU to strengthen its partnership with Morocco. Finally, this amended agreement should also show “the way forward for the EU-Morocco fisheries agreement in the coming months”.
This new agreement would thus make it possible to regularize the application – de facto – before December 21, 2016, the date of the CJEU ruling, of preferences to Moroccan Western Sahara certified products. No new commercial preference will be granted to Morocco, as well as to Western Sahara in relation to those which it actually enjoyed before 21 December 2016, “the objective being simply to extend the geographical area covered by the preferences and not to ‘change the volume or the products covered by the preferences’.
This analysis of the European Commission, which, it must be remembered, holds the monopoly of the legislative initiative, does not answer at all to the judgment of the Court.
Admittedly, the decision voted recalls, in its recitals, that the Union considers Western Sahara as a non-autonomous territory, and that it has never recognized any sovereignty over Western Sahara.
The conclusion should therefore be simple: Western Sahara can not be part of the territory of the Kingdom of Morocco within the meaning of Article 94 of the Association Agreement. Therefore, association and liberalization agreements should not be applicable to it.
However, the decision voted on a proposal from the Commission violates this very simple conclusion, which has already been induced by the reasoning of the CJEU in its aforementioned judgment.
The Commission is still diverting the rules of international law, at least for the moment, according to it, and pending a settlement of the conflict within the UN framework.
By limiting the scope of the amendment of the Agreement to products already enjoying a tariff preference, the Commission proposes a singular and dangerous reading for at least three reasons.
On the one hand, that reading amounts to admitting that the Union’s intention is to implement those agreements in a manner incompatible with the principles of self-determination and the relative effect of the Treaties – even though the EU reiterates the need to respect these principles.
On the other hand, the interpretation that the economic development of Western Sahara would increase the economic income of the “population” would only strengthen the occupation of the territory of Western Sahara by pushing Moroccan citizens to settle in the occupied territory. In doing so, the EU would support the Moroccan occupation.
Finally, this reading only validates the Moroccan policy of massive violation of Saharawi human rights in the occupied territories, which is clearly contrary to the EU Charter of Fundamental Rights and Article 6 of the Treaty on European Union which obliges the institutions to respect human rights “when they implement Union law”.
In this regard, the Commission, in its voted proposal, stated:
“In general, with regard to the expected impact of an extension of tariff preferences to Western Sahara products on the human rights situation in that territory, it is appropriate to reason by analogy with the effect of the EU-Morocco Association Agreement on the situation of human rights in Morocco as the agreement promotes regulatory convergence towards EU standards in various fields, there is an indirect positive effect , particularly with regard to working conditions (eg safety measures), labor legislation (eg child protection), phytosanitary measures or consumer protection “.
This summary motivation, which is supposed to meet the requirements of the transversal social clause in Article 9 TFEU
, does not take into account the massive violations documented by NGOs such as Amnesty International or Human Rights Watch.
There is no doubt that a real and detailed examination of this “subject” would have led to another conclusion.
Indeed, according to publicly available geopolitical sources, Saharawis living in occupied territory continue to be targeted for repression; that the Moroccan authorities often use excessive force, and initiate criminal prosecution of political motives against the protesters; that these sources also highlight the practice of torture and ill-treatment of Saharawi activists in detention.
The Commission also did not consider it useful to question the social and economic apartheid suffered by Saharais living in the occupied territory or the discrimination and violence against Saharawi children, which is also widely documented.
The Commission, guardian of the Treaties, no longer plays its role when it comes to avoiding disrupting “the flow of trade”. Should the general principles of legal certainty and legitimate expectations that require a degree of stability for economic operators be used to validate an illegal practice that is contrary to international law?
The Union should finally take an example of the position of States such as the United States of America, the Republic of Iceland, the Kingdom of Norway and the Swiss Confederation, which consider that Western Sahara does not fall within the scope of application of their free trade agreements with the Kingdom of Morocco.
The Council has forwarded the decision to the European Parliament, pursuant to Article 218 of the Treaty on the Functioning of the European Union, for the purpose of obtaining its consent.
The European Parliament may, if it so wishes, submit a request for an opinion to the CJEU, even if the conclusions of the case initiated by the Polisario Front are perfectly clear.
Finally, it should be pointed out that the judgment delivered on 27 February 2018 by the Court of Justice of the European Union in Case C-266/16
concerns the Fisheries Partnership Agreement
between the European Union and Morocco, is a separate topic
from the issue of market access referred to in the Association Agreement and therefore from that decision. However, it seems that the Commission which will conduct the negotiations by mandate of the Council would already find common ground with Morocco, last 20th of July.
The same problem will therefore arise again: when will the EU stop encouraging the Kingdom of Morocco to violate human rights?