CP 240054 en

PRESS RELEASE No 54/24
Luxembourg, 21 March 2024
Advocate General’s Opinion in Joined Cases C-779/21 P | Commission v Front Polisario and C-799/21 P |
Council v Front Polisario
Advocate General Ćapeta: the General Court erred in annulling the

decision approving, on behalf of the European Union, a preferential tariff
agreement with the Kingdom of Morocco relating to the territory of
Western Sahara
In spite of what the General Court found, that decision did not run contrary to the judgment of the Court in
C-104/16 P Council v Front Polisario
Western Sahara is a territory in North-West Africa, bordered by Morocco to the north, the People's Democratic
Republic of Algeria to the north-east, the Islamic Republic of Mauritania to the east and south and the Atlantic to the
west.
In its judgment in C-104/16 P Council v Front Polisario 1, the Court concluded that the Association Agreement
between the European Union and the Kingdom of Morocco, signed in 2000 2, does not apply to the territory of
Western Sahara. In order to enable preferential treatment of products imported from that territory into the
European Union, the European Union and the Kingdom of Morocco signed in 2019 an agreement extending
expressly the preferential tariff treatment enabled by the Association Agreement also to products originating in the
territory of Western Sahara (the “Preferential Tariff Agreement”) 3. That agreement was approved 4 by the Council
on behalf of the European Union (the “Council decision”).
In April 2019, Front Polisario 5, a movement supporting the right of the Sahrawi people to self-determination sought
the annulment of the Council decision before the General Court. In its action, Front Polisario claims to represent the
people of Western Sahara. It argues that the Council failed to respect the right to self-determination of that people
and the relative effect of treaties. In its judgment 6, the General Court annulled the Council decision.
In 2021, both the Commission and the Council brought an appeal before the Court of Justice 7.
In her Opinion, Advocate General Tamara Ćapeta proposes to uphold these appeals and annul the General
Court’s judgment.
First, the Advocate General explains that the people of Western Sahara have no official or recognised
representative to bring an action on their behalf. However, Front Polisario fights for one of the three possible
outcomes of the right to self-determination of the people of Western Sahara: the creation of an independent
State. Accordingly, Front Polisario should be viewed as reflecting the interests and wishes of (at least) part of
the people of Western Sahara.
On substance, the Advocate General concludes that the Preferential Tariff Agreement treats the territory of
Western Sahara as separate and distinct from the Kingdom of Morocco, in line with the requirements arising
Communications Directorate
Press and Information Unit curia.europa.eu
from the judgment in C-104/16 P Council v Front Polisario.
However, she considers that the General Court misinterpreted the Court of Justice’s judgment in C-104/16 P
Council v Front Polisario. That judgment did not require that the Council obtain directly from the people of
Western Sahara their consent, when concluding an agreement with the Kingdom of Morocco in relation to the
territory of Western Sahara. In their current form of organisation, that people cannot consent on their own to
the conclusion of an international agreement relating to their territory.
However, under public international law, an administering power may, under certain circumstances, conclude an
international agreement on behalf of a non-self-governing territory, like that of Western Sahara.
The European Union regards the Kingdom of Morocco as the administering power of the territory of Western
Sahara. Accordingly, it was not contrary to the principle of the relative effect of treaties, as interpreted by the
Court in C-104/16 P Council v Front Polisario, for the European Union to accept that the Kingdom of Morocco
may consent to that agreement on behalf of the people of Western Sahara.
Nevertheless, the Advocate General considers that there may be other obligations resulting from the right to self-
determination of the people of Western Sahara that may be relevant when concluding an agreement with the
Kingdom of Morocco on behalf of the territory of Western Sahara. Those issues were raised before but not decided
by the General Court. For that reason, the Advocate General proposes to return the case to the General Court for it
to rule on the pleas which it did not adjudicate.
NOTE: The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General
to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The
Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.
NOTE: An appeal, on a point or points of law only, may be brought before the Court of Justice against a judgment or
order of the General Court. In principle, the appeal does not have suspensive effect. If the appeal is admissible and
well founded, the Court of Justice sets aside the judgment of the General Court. Where the state of the proceedings
so permits, the Court of Justice may itself give final judgment in the case. Otherwise, it refers the case back to the
General Court, which is bound by the decision given by the Court of Justice on the appeal.
Unofficial document for media use, not binding on the Court of Justice.
The full text of the Opinion is published on the CURIA website on the day of delivery.
Press contact: Jacques René Zammit ✆ (+352) 4303 3355.
Pictures of the delivery of the Opinion are available from “Europe by Satellite" ✆ (+32) 2 2964106.
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1
Judgment of 21 December 2016, Council v Front Polisario, C-104/16 P (Press Release Press Release n° 146/16).
2
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 (the “Association Agreement”).
3
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.
4
Council Decision (EU) 2019/217 of 28 January 2019 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.
5
Frente Popular para la Liberación de Saguia El-Hamra y Rio de Oro (Popular Front for the Liberation of Saguia El-Hamra and Rio de Oro).
6
Judgment of 29 September 2021, Front Polisario v Council, T-279/19 (Press Release n° 166/21).
7
These appeals are linked to the appeals in joined cases C-778/21 P and C-798/21 P, Commission and Council v Front Polisario (Press Release n°53/24).

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PRESS RELEASE No 54/24

Luxembourg, 21 March 2024

Advocate General Ćapeta: the General Court erred in annulling the

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