Documents considered by the Committee on 2 May 2018 Contents

8Fisheries Agreement with Morocco

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny. Drawn to the attention of the Foreign Affairs, and Environment, Food and Rural Affairs Committees

Document details

Recommendation for a Council Decision authorising the Commission to open negotiations on behalf of the European Union for amendment of the fisheries Partnership Agreement and conclusion of a protocol with the Kingdom of Morocco

Legal base

Article 218 paragraphs 3 and 4, TFEU;—


Environment, Food and Rural Affairs

Document Number

(39587), 7246/18 + ADD 1, COM (18) 151

Summary and Committee’s conclusions

8.1Relations between the EU and Morocco relating to fishing are governed under two pillars:

8.2These arrangements have been challenged by the organisations representing the Western Sahara. Two CJEU Grand Chamber cases97 have decided that the Association Agreement and the Fisheries Partnership Agreement (including its implementing Protocol) did not apply to the Western Sahara. Both cases interpreted the relevant agreements in accordance with the rules of international law which require (a) recognition that the people of Western Sahara are entitled to self-determination and (b) that obligations can only be imposed upon states (in this case Western Sahara) with their consent.

8.3This recommendation seeks authority for the Commission to negotiate an amendment to the current Fisheries Agreement and a new Protocol implementing it, the current one expiring in July this year.

8.4Essentially the negotiating mandate seeks to maintain the existing fishing arrangements with Morocco whereby EU ships have access to the waters of Western Sahara. The Commission is reported98 as relying on the earlier caselaw as giving room to the EU to extend the fisheries regime to the Western Sahara. That caselaw recognises that in some circumstances international treaties can expressly have effect beyond the internationally recognised territory of a state party. However, this alone would not meet the other objections of the CJEU set out above. The other provisions of the negotiating mandate, as outlined below, seek to meet these objections.

8.5The current agreement gives UK vessels a share in the quota to catch small pelagic, dimersal and highly migratory species although UK vessels have not taken advantage of this agreement for a number of years.

8.6The Government clearly has doubts that the negotiating directives, if converted into an agreement, will meet the requirements of the CJEU.

8.7We share the Government’s concern that the provisions in the negotiating directives intended to meet the requirements of the CJEU will not achieve this aim. No doubt any further agreement with Morocco that covers fishing opportunities in Western Sahara waters will give rise to further litigation.

8.8Given that the recommendation is likely to be adopted anyway, and that this matter is likely to be litigated again, we clear it from scrutiny. We draw this Report to the attention of the Foreign Affairs Committee, and the Environment, Food and Rural Affairs Committee, for its potential legal implications.

Full details of the documents

Recommendation for a Council Decision authorising the Commission to open negotiations on behalf of the European Union for amendment of the fisheries Partnership Agreement and conclusion of a protocol with the Kingdom of Morocco: (39587), 7246/18 + ADD 1, COM (18) 151.

The Explanatory Memorandum of 16 April 2018

8.9In his Explanatory Memorandum the Minister (George Eustice) identifies the substantive items in the proposed negotiating mandate designed to reflect the judgments of the CJEU:

“a. provision for access to the waters covered by the current Agreement and Protocol and to the waters adjacent to the non-self-governing Territory of Western Sahara.

“b. support for the efforts of the United Nations Secretary-General to find a solution providing for the self-determination of the people of Western Sahara consistent with the principles and purposes of the Charter of the United Nations and inclusion of a review clause in the light of a mutually acceptable political solution being found;

“c. a clause on the consequences of violations of human rights and democratic principles;

“d. mechanisms to ensure an understanding of the geographic and social distribution of the socio-economic benefits arising from the Agreement and Protocol in order to allow the EU Commission to ensure that both benefit to the people concerned;

“e. a requirement that the EU Commission assess the potential implications of the Agreement and its Protocol for sustainable development, in particular as regards the benefits for the people concerned and the exploitation of natural resources of the territories concerned;

“f. provision that the EU Commission should ensure that the people concerned by the Agreement have been adequately involved.”

8.10The Minister expresses the qualms of the Government in the following terms:

“The proposed mandate intends that a future Agreement and Protocol should extend to the waters adjacent to the Western Sahara and that the benefits of the exploitation of the resources found in those waters to be shared by the Western Sahrawi people. At this time the method of ensuring this is not clear.

“A careful assessment of the final negotiated outcome will be necessary in order to ensure it is fully in line with international law and that there has been an acceptable degree of involvement of the people of Western Sahara.

“Defra, FCO and HMRC, are watching the proposed mandate with interest, and have been consistent that the status of Western Sahara is undetermined and to be resolved through the UN process. Given insufficient time for scrutiny, the UK will abstain in this vote, and the Commission will likely be able to start negotiations for a new Agreement and Protocol—in line with international law and the ruling of the CJEU—regardless.”

Previous Committee Reports


97 Case C-973/2006P. and Case C-266/16.

98 Politico 4 April 2018: The Commission argues that another decision by the European Court of Justice, from 2016, allows it to extend the deal south of Morocco’s recognized borders. “The EU’s position is that it is possible to extend this agreement to Western Sahara under certain conditions,” said a Commission spokesperson.

Published: 8 May 2018