Lexology | 5 September 2017
Western Sahara Trade Dispute to be heard in the Court of Justice of the European Union
WSCUK is an independent voluntary organisation founded in 1984 with the aim of supporting the recognition of the right of the Saharawi people of Western Sahara to self-determination and independence and to raise awareness of the unlawful occupation of Western Sahara.
It issued proceedings against DEFRA and HMRC arguing that the UK was unlawfully allowing products, originating from or processed in Western Sahara, to be imported into the UK under a trade agreement with Morocco.
Solicitor Rosa Curling of law firm Leigh Day, acting for WSCUK, claims this is unlawful and that it is clear that Moroccan territorial jurisdiction does not extend to the territory of Western Sahara or to the territorial sea adjacent to Western Sahara.
Therefore, goods and products produced in Western Sahara should not to be treated as originating from Morocco for the purposes of preferential tariffs or any other benefits conferred upon Moroccan products by the European Union.
The same is true in relation to fishing quotas allocated in the seas located off the coast of Western Sahara.
The court has called for an oral hearing in the Grand Chamber, before the full court of 15 judges. It is rare for the whole court to hear a case before it, indicating the complexity and importance of the issues involved in this case.
A number of state parties and EU institutions are expected to make submissions to the court at the hearing, as Interested Parties in the proceedings. These include submissions on behalf of the Moroccan Confederation of Agriculture and Rural Development (COMADER), the Kingdom of Spain, the French Republic, Portugal, the Council of the European Union and the European Commission.
Neither HMRC nor DEFRA are expected to provide submissions to the Court.
The case was referred to the CJEU, from the UK High Court, in early 2016 following a hearing in October 2015. In the High Court judgment handed down on 20 October 2015 the Hon Mr Justice Blake said:
“I conclude that there is an arguable case of a manifest error by the Commission in understanding and applying international law relevant to these agreements.”
John Gurr, of the Western Sahara Campaign UK, said:
“The Western Sahara Campaign is looking forward to its day in the Court of Justice of the European Union - it is time the court considered the legality of UK trade with Western Sahara. The injustices that the Saharawi have suffered for over 40 years of occupation by Moroccan forces have been compounded by the refusal of the international community to enforce international law.
“We are confident that as no nation recognises Moroccan claims to Western Sahara that any trade agreements that the European Union makes with Morocco (and which therefore apply to the United Kingdom) cannot be applied to items traded from the Western Sahara until the status of the territory has been decided through a referendum of self-determination.”
Rosa Curling, of law firm Leigh Day who is representing WSCUK, said:
“I am delighted for my clients that the court will consider oral submissions on their case. This demonstrates the importance of this case and that the court is keen to ensure that all the evidence can be presented and considered by the court.”
WSCUK’s case will be presented to the court by Kieron Beal QC. The judgment in the case is not expected to be received at the one-day hearing, but rather to be handed down at a later date.