French government dilutes Court of Justice conclusion

All the versions of this article: [English] [français]

JPEG - 1.2 Mb

Western Sahara Resource Watch | 20 March 2017

French government dilutes Court of Justice conclusion

A note sent from French government to the French parliamentarians in Brussels today casts doubts on whether France has studied the judgment at all. Debate on live TV takes place now.

From 15:00 today, the Foreign Affairs Committee of the European Parliament will debate the impact and the implementation of the European Court of Justice ruling from 21 December 2016.

The court had decided that the trade agreements between the EU and Morocco cannot include products from Western Sahara.

The debate is streamed live here. [UPDATE, 16:15, debate has now ended]

Pay particular attention to the French MEPs during the debate. They have today received a particularly poor advice from Paris.

France is a key country in this. First, the French government has always been a key supporter of Morocco, both in the UN Security Council and in the EU. France has supported the occupation of Western Sahara both politically and militarily for decades. It is France who every year prevents the UN from reporting on human rights violations in the territory.

Second, France is a key importer of products from Western Sahara, both for fisheries and agriculture products. As late as on 16 March, the government of Spain underlined that a vessel that had stopped over in Canary Islands now, after the judgment, has to be duly checked upon arrival in France. The vessel arrived France in January, as the first imports into the EU after the judgement. The biggest producers of agri-products in Western Sahara are Moroccan and French.

A briefing sent today from the French government to all the French parliamentarians clearly illustrates the unwillingness of Paris to obey EU law and international law in Western Sahara.

In the note, the French government states that it wants the EU "together with Morocco, to clarify that the protocol of liberalization of agricultural products do apply to Western Sahara".

By doing that, France does not only go against the court decision, but also against the European Commission’s own clarifications vis-à-vis the top EU court.

They also make severe misreadings and contradictions in the 2-pager:

The French government systematically misplaces the "people" with the "population" of Western Sahara. These are very different concepts in Western Sahara. The judgment states that Western Sahara is excluded from the trade deal, unless the representatives of the people, i.e. Front Polisario, consent. In the French misreading, this is as following: "the application of such agreements in a non-self-governing territory requires the consent of the population of the territory".

Paris has even managed to misrepresent the key argument of the judgment:

Here is the CJEU judgement’s, key § 106: "a third party may be affected by the implementation of the Association Agreement in the event that the territory of Western Sahara comes within the scope of that agreement, without it being necessary to determine whether such implementation is likely to harm it or, on the contrary, to benefit it. It is sufficient to point out that, in either case, that implementation must receive the consent of such a third party. In the present case, however, the judgment under appeal does not show that the people of Western Sahara have expressed any such consent."

And, voilà, Paris: "Le fait que l’accord s’applique depuis toujours implicitement au Sahara occidental étend aux populations locales les bénéfices du régime de préférences tarifaires".

Remarkably, the French government insists that Western Sahara was included in the agreement in the first place ("Le fait que l’accord s’applique depuis toujours implicitement au Sahara occidental" or "Les institutions européennes examinent les conséquences qui doivent être tirées de la décision de la Cour de justice, afin de permettre la bonne application de l’accord agricole, conformément à la volonté initiale des deux Parties et à la pratique qui a toujours prévalu").

The correct is that the Commission stated before the Court of Justice that the EU never had the intention to include Western Sahara in the EU-Morocco agreement. During the proceedings, the European Commission claimed that the EU and Morocco had never intended to include Western Sahara in the scope of application of the Association and Liberalization agreements because such inclusion would have violated the right to self-determination of the Saharawi people (the references to the Commission’s opinions are made in paragraphs 82 and 79 in the judgment).

If Paris is right in its letter, then the Commission must have lied to the Court of Justice during the proceedings in Luxembourg.

The note also underlines that France had intervened before the court on the Council’s side. It should be recalled that this is not necessarily an impressive argument, as the French arguments were refuted by the court.

So far, the Commission has been silent on how the EU Member States should respond to the CJEU decision.