Action brought on 23 June 2020 –Polisario Front v Council

(Case T-393/20)

(2020/C 279/62)

Language of the case: French

Parties

Applicant: Popular Front for the Liberation of Saguia el-Hamra and Río de Oro (Polisario Front) (represented by: G. Devers, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

—	declare its action admissible;

—	annul the contested decision;

—	order the Council to pay the costs.

Pleas in law and main arguments

In support of the action against Council Decision (EU) 2020/462 of 20 February 2020 establishing the position to be adopted on behalf of the European Union within the Association Committee set up by 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, concerning the exchange of information for the purpose of evaluating the impact of the Agreement in the form of an Exchange of Letters on the amendment of the Euro-Mediterranean Agreement (OJ 2020 L 99, p. 13), the applicant relies on a single plea in law, alleging that that decision lacks legal basis due to the unlawfulness of Decision 2019/217. That plea in law is divided into ten parts.

First part, alleging lack of competence on the part of the Council to adopt the contested decision, in so far as the European Union and the Kingdom of Morocco do not have the competence to conclude an international agreement applicable to Western Sahara instead of the Sahrawi people, represented by the Polisario Front.

2.	Second part, alleging failure to comply with the obligation to examine the question of respect for fundamental rights and for international humanitarian law, in so far as the Council failed to examine that question before adopting the contested decision.

3.	Third part, alleging breach, on the part of the Council, of its obligation to execute judgments of the Court of Justice, in so far as the contested decision disregards the grounds of the judgment of 27 February 2018, Western Sahara Campaign UK (C-266/16, EU:C:2018:118).

Fourth part, alleging breach of the essential principles and values guiding EU action on the international scene, since:

—	first, in breach of the right of peoples to respect for their national unity, Decision 2019/217 denies the existence of the Sahrawi people by using the expression ‘the people concerned’ instead;

—	second, in breach of the right of peoples freely to dispose of their natural resources, Decision 2019/217 concludes an international agreement that organises, without the consent of the Sahrawi people, the exploitation of its resources;

—

third, Decision 2019/217 concludes an international agreement applicable to occupied Western Sahara, with the Kingdom of Morocco, in the context of the latter’s policy of annexation with regard to that territory and the systematic breaches of fundamental rights that maintaining such a policy entails.

Fifth part, alleging breach of the principle of protection of legitimate expectations, in so far as the contested decision is contrary to the declarations of the European Union which has consistently reiterated the need to observe the principles of self-determination and of the relative effect of treaties.

Sixth part, alleging misapplication of the principle of proportionality since, given the separate and distinct status of Western Sahara, the intangible character of the right to self-determination and the status of third party of the Sahrawi people, it was not for the Council to carry out a balancing exercise between the alleged advantages for the economy of that territory, deriving from the granting of preferences, and the disadvantages, such as the extensive use of natural resources and in particular groundwater reserves.

Seventh part, alleging breach of the right to self-determination, since:

—	first, by using the expression ‘the people concerned’, Decision 2019/217 and the agreement concluded by that decision deny the national unity of the Sahrawi people as a subject of the right to self-determination;

—

second, while the amending agreement concluded by it organises the export of its natural resources to the European Union, which are defined as being of Moroccan origin, Decision 2019/217 denies, by its very nature, the sovereign rights of the Sahrawi people over its natural resources and deprives it of its own means of subsistence;

—

third, as regards the territorial components of the right to self-determination, on the one hand, by concluding, with the Kingdom of Morocco, an international agreement applicable to the part of Western Sahara that is under Moroccan occupation, Decision 2019/217 breaches the right of the Sahrawi people to respect for the territorial integrity of its national territory, by denying the separate and distinct status of that territory, and endorses its illegal division by the Moroccan ‘Berm’. On the other hand, by defining products from Western Sahara as being of Moroccan origin, the agreement concluded by Decision 2019/217 constitutes a breach of the separate and distinct status of Western Sahara, since it has the effect of concealing those products’ true country of origin.

Eight part, alleging breach of the principle of the relative effect of treaties since, by using the expression ‘the people concerned’, Decision 2019/217 and the agreement concluded by that decision deny the existence of the Sahrawi people, represented by the Polisario Front, as a third party to EU-Morocco relations and impose international obligations on the Sahrawi people concerning its national territory and its natural resources, without its consent.

Ninth part, alleging violations of international humanitarian law and international criminal law, since:

—	first, Decision 2019/217 concludes an international agreement applicable to Western Sahara although the Moroccan occupying forces do not have jus tractatus with regard to that territory and are prohibited from exploiting its natural resources;

—

second, by using the expression ‘the people concerned’, which has the effect of including the Moroccan settlers on the occupied Sahrawi territory, Decision 2019/217 and the agreement concluded by it endorse the transfer of populations carried out by the Kingdom of Morocco, in serious violation of the sixth paragraph of Article 49 of the Fourth Geneva Convention and Article 8(2)(b)(viii) of the Statute of the International Criminal Court;

—

third, by granting tariff preferences to ‘Moroccan’ products from Western Sahara, Decision 2019/217 creates an incentive for Moroccan settlers to remain permanently on the occupied territory in order to profit from the advantages created by the amending agreement, in serious violation of the aforementioned provisions.

10.

Tenth part, alleging breach, on the part of the European Union, of its obligations under the law of international responsibility, since, by concluding an international agreement, with the Kingdom of Morocco, that is applicable to Western Sahara, Decision 2019/217 endorses serious violations of international law committed by the Moroccan occupying forces against the Sahrawi people and renders aid and assistance in maintaining the situation created by those violations.