Case C-266/16, Western Sahara Campaign – fish from occupied waters

What is to be done where the EU concludes import and customs agreements with sovereign non-EU countries that exercise jurisdiction over ‘occupied’ areas of territory? Should an importing EU Member State classify ‘occupied’ goods as originating in the sovereign state or not?

Background
From 1975, the Kingdom of Morocco has exercised its jurisdiction over territory known as Western Sahara. In the Western Sahara live the Saharawi, a people seeking self-determination.

In 1984, a voluntary organisation was set up to promote their cause, the Western Sahara Campaign. It has brought a legal action against the UK.

The organisation contends that two UK ministries of state are unlawfully applying EU law to imports of fish. For while the UK’s ministries for tax and customs (HMRC) and rural affairs (DEFRA) classify the imports of fish as originating from Morocco, and thus free from tariffs, the fish are being taken from the territorial waters of Western Sahara.

At the heart of organisation’s legal argument is a challenge to the validity of the EU’s preferential customs and fisheries agreements with Morocco. The organisation contends that these EU’s agreements are illegal because they fail to distinguish between goods and activities arising in the sovereign territory of Morocco, from those which are produced in Western Sahara.

That legal argument has been rejected by the UK ministries, which point out that this is a matter of public international law so the CJEU will decline jurisdiction to adjudicate a preliminary reference.

Mr Justice Blake of the Queen’s Bench Division (Administrative Court) decided to make a preliminary reference to the CJEU.

Questions Referred
The questions have yet to be published on the Curia website.

Update – 18 July 2016
According to today’s Official Journal (OJ [2016] C260/39), the Queen’s Bench Division (Administrative Court) has asked:

1. In the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, on the one part, and the Kingdom of Morocco, on the other part (OJ 1170/2 18 March 2000) (‘the Association Agreement’), approved, by Commission and Council Decision 2000/204/EC […], ECSC, do the references to ‘Morocco’ in Articles 9, 17 and 94 and Protocol 4 refer only to the sovereign territory of Morocco as recognised by the United Nations and the European Union (‘EU’) and therefore preclude products originating in Western Sahara from being imported into the EU free of customs duties pursuant to the Association Agreement?

2. If products originating in Western Sahara may be imported into the EU free of customs duties pursuant to the Association Agreement, is the Association Agreement valid, having regard to the requirement under Article 3(5) of the Treaty on European Union to contribute to the observance of any relevant principle of international law and respect for the principles of the United Nations Charter and the extent to which the Association Agreement was concluded for the benefit of the Saharawi people, on their behalf, in accordance with their wishes and/or in consultation with their recognised representatives?

3. Is the Fisheries Partnership Agreement between the EU and the Kingdom of Morocco (as approved and implemented by Council Regulation 764/2006 […], Council Decision 2013/785/EU […], and Council Regulation 1270/2013 […]) valid, having regard to the requirement under Article 3(5) of the Treaty on European Union to contribute to the observance of any relevant principle of international law and respect for the principles of the United Nations Charter and the extent to which the Fisheries Partnership Agreement was concluded for the benefit of the Saharawi people, on their behalf, in accordance with their wishes, and/or in consultation with their recognised representatives?

4. Is the Claimant entitled to challenge the validity of EU acts based on alleged breach of international law by the EU, having regard, in particular, to:
a) the fact that, although the Claimant has standing under national law to impugn the validity of the EU acts, it does not assert any rights under EU law; and/or
b) the principle in Case of the Monetary Gold Removed from Rome in 1943 (lCJ Reports 1954) that the International Court of Justice may not make findings that impugn the conduct of, or affect the rights of, a State that is not before the Court and has not consented to be bound by the decisions of the Court.

Update – 15 September 2016
The CJEU is already hearing a case about the Western Sahara, Case C-104/16 P Council v Polisario Front. Advocate General Wathelet’s Opinion was handed to the court on 13 September 2016.

Update – 10 January 2017
On 21 December 2016, the Grand Chamber’s judgment in Case C-104/16 P Council v. Polisario Front (ECLI:EU:C:2016:973) was handed down after an accelerated procedure instigated by the Council.