33Amendment of the EU-Morocco Association Agreement
|
Committee’s assessment |
Legally and politically important |
|
Cleared from scrutiny |
|
|
Document details |
(a) Proposal for a Council Decision relating to the signature on behalf of the European Union, of the Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to 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; (b) Proposal for a Council Decision on the conclusion of the agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to 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 |
|
Legal base |
(a) Article 207 in conjunction with Article 218(5) TFEU; (b) Article 207 in conjunction with Article 218(6)(i) and the first subparagraph of Article 218(8) TFEU |
|
Department |
Foreign and Commonwealth Office |
|
Document Numbers |
(a) (39896), 9966/18 + ADD 1, COM(18) 479; (b) (39897), 9967/18 + ADD 1, COM(18) 481 |
Summary and Committee’s conclusions
33.1The EU-Morocco Association Agreement is the basis for granting trade preferences for goods imported into the EU, particularly fish and fish products. It has been used de facto for granting preferences for goods originating from Western Sahara. This was challenged before the Court of Justice of the European Union by the Front Polisario and on 21 December 2016 the Grand Chamber delivered its judgment352 that the Association Agreement did not include within its territorial scope the Western Sahara. In similar vein the Grand Chamber delivered a judgment on 27 February 2018353 that the Fisheries Partnership Agreement between the EU and Morocco did not apply to Western Sahara.
33.2The essence of the judgments was that the international agreements entered into by the EU had to be interpreted in accordance with overlapping broader international law principles, namely (a) the principle of self-determination given expression in Article 1 of the UN Charter as applied to Western Sahara by an advisory opinion of the International Court of Justice, and (b) the principle of the relative effect of treaties, given a specific expression in Article 34 of the Vienna Convention on the Law of Treaties under which treaties do not impose any obligations, or confer any rights, on third States without their consent.
33.3The object of these proposals is to enable the Association Agreement to form the legal basis for EU trade preferences by expressly providing for the application of protocols 1 and 4 to Western Sahara. With a view to compliance with the CJEU’s 2016 judgment the Commission and the EU’s External Action Service have sought to consult with “a wide range of socio-economic and political” operators from the Western Sahara population.354 Their conclusions are that the inclusion of Western Sahara in the Association Agreement with Morocco as proposed would have a positive impact on the Western Sahara economy. However, the Polisario Front and a number of non-governmental organisations expressed negative views on the basis that these tariff preferences maintain the status quo of Moroccan occupation (as they see it).
33.4In his Explanatory Memorandum of 28 June 2018 the Minister for Europe and the Americas (Sir Alan Duncan) indicated that:
- the UK supported efforts to reach a lasting solution;
- the exercise of assessing the effect of the proposals on the people of Western Sahara was “in line” with paragraph 106 of the CJEU’s 2016 judgment, and the proposals would provide a legal basis for granting preferences to products from Western Sahara, with a view to respecting obligations of the 2016 CJEU judgment; and
- the UK would look to transition the Agreement into bilateral arrangements it is making with Morocco for Brexit.
33.5By letter of 13 July the Minister informed us that he was intending to override scrutiny on 16 July 2018.
33.6We clear these documents from scrutiny as in policy terms they seek to maintain the status quo. We take no issue with the override of scrutiny.
33.7However, we consider that there remains a question whether the consultation exercise undertaken to support these proposals meets the underlying objections of the CJEU which centre on respect for the principle of self-determination and respect for the principle of the relative effect of treaties. Arguably the proposals neither advance the self-determination of the Western Sahara, nor secure the consent of the Western Sahara as a state party. This is a matter already litigated twice before the CJEU. Further litigation on these proposals may have the effect of impeding the UK’s aspiration to transition these proposals into any post-Brexit UK-Morocco agreement.
Full details of the documents
33.8(a) Proposal for a Council Decision relating to the signature on behalf of the European Union, of the Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement establishing and association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco of the other part: (39897), 9966/18 + ADDs 1–2, COM(18) 479; (b) Proposal for a Council Decision on the conclusion of the agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to 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: (39897), 9967/18 + ADDs 1–2, COM(18) 481.
Previous Committee Reports
None.
352 Case C-104/16 P.
353 Case C-266/16.
354 Recital 10 of each proposal.
Published: 18 September 2018