The Relationship Between the EU and Western Sahara, Through the Lens of Recent Developments

https://doi.org/10.63189/ERJY5918

I. Introduction to the relationship between the EU and Western Sahara

Western Sahara is usually referred to as “Africa’s last colony.”^[1] Indeed, the former Spanish colony was occupied in 1975 by Moroccan and Mauritanian forces, and since then – although the United Nations Security Council deplored the occupation^[2] and Mauritania withdrew in 1979 – Moroccan forces have remained in the country, confronting with the Polisario Front (Popular Front for the Liberation of Saguia el-Hamra and Río de Oro), the Sahrawi nationalist liberation movement. Moreover, since 1963 Western Sahara has been on the list of “non-self-governing territories”,^[3] which – under Article 73 of the Charter of the United Nations – means that its “people have not yet attained a full measure of self-government.” Hence, numerous UN bodies have affirmed the applicability of the principle of self-determination of the people of Western Sahara,^[4] even though, in 2020, the United States of America recognised the sovereignty of Morocco over Western Sahara.^[5]

This special status of Western Sahara has had a significant impact on agreements concluded between the European Union (hereinafter: EU) and Morocco. Under the umbrella of the Euro-Mediterranean Agreement establishing an association between the EU and Morocco^[6] – signed in 1996 and into force since 1 March 2000 – several sectoral protocols were concluded, including the 2012 EU-Morocco Agreement concerning reciprocal liberalisation measures on agricultural and fishery products, approved by Council Decision 2012/497/EU^[7] (hereinafter: 2012 Decision).

 The Polisario Front sought the annulment of the 2012 Decision and brought an action before the General Court. Although the General Court admitted the action and annulled the Decision^[8], the Court of Justice – following an appeal by the Council – dismissed the action as inadmissible, emphasising that the General Court incorrectly assumed that the Association Agreement might apply to Western Sahara.^[9] Nonetheless, after this Judgment, the European Commission – with the authorisation of the Council – initiated a consultation with Morocco, and an amendment to the Euro-Mediterranean Agreement was subsequently signed, extending the tariff preferences to products originating from Western Sahara.^[10] Yet the Polisario Front brought an action seeking the annulment of this second Decision (hereinafter: 2019 Decision) as well.

II. The solutions pronounced in the so-called Polisario II case

            In its Judgment delivered on 29 September 2021, the General Court annulled the 2019 Decision, stating, among others, that “in accordance with the principle of the relative effect of treaties, the implementation of the Association Agreement in the event of the inclusion of Western Sahara in the scope of the latter must receive the consent of the people of that territory, as a third party to that agreement.”^[11] Against this Judgment both the European Commission and the Council brought an appeal, which was decided by the Court of Justice on 4 October 2024.

First of all, the Court of Justice emphasised that one must differentiate between the “population” and the “people” of a non-self-governing territory.^[12] Besides, although the Commission conducted a consultation with the “people concerned” prior to the adoption of the 2019 Decision, such a consultation is not equivalent to obtaining the consent of the people.^[13] On these grounds, the Court of Justice found that “on the basis of the principles of the right to self-determination and of the relative effect of treaties […] the consent of the people of Western Sahara to the implementation of the agreement at issue in that territory was a condition for the validity of the decision at issue and that the consultation process conducted by the Commission and by the EEAS [European External Action Service] was not capable of establishing such consent on the part of the people.”^[14] Although the Court of Justice did not exclude implicitly granted consent,^[15] it concluded that, in the present case, the requirements of such implicit consent were not fulfilled (as the agreement did not confer rights on the people of Western Sahara).^[16] Thus, the consent of the people of Western Sahara could not be presumed.^[17] Based on this reasoning, the Court of Justice dismissed the appeals and ordered that the effects of the 2019 Decision be maintained for a period of 12 months from the date of the Judgment.

As some scholars have rightly noted, the main questions in the case concerned who is entitled to give consent and in what form that consent should be expressed.^[18] First, from the conclusions reached by the Court of Justice, one can deduce that “it is the people of the territory who possess the right to self-determination, and not the inhabitants of that territory”;^[19] hence, the consent must be given by the former. Second, consent may, in principle, be given implicitly if two cumulative requirements are met: (i) the agreement must not impose obligations on the people concerned, and (ii) the people must receive “specific, tangible, substantial and verifiable benefit” from the exploitation of the natural resources of the territory in question.^[20] According to some scholars, recognising the possibility of implicit consent weakens the right to self-determination itself.^[21]

Overall, the above Judgment can be considered a landmark ruling, as the Court of Justice annulled, for the first time, an agreement concluded by the EU for violating international law.^[22]

III. The aftermath of Polisario II

Since, under the Judgment of the Court of Justice, the Agreement could be maintained for only 12 months, on 10 September 2025 the Council authorised the European Commission to conduct negotiations with Morocco regarding the necessary amendments. The Commission carried out these negotiations through an exchange of letters between the EU and Morocco. The Council decided on 2 October 2025 the signing of the new Agreement on behalf of the Union and its provisional application.^[23]

The new Agreement had to meet two key challenges: first, in line with the findings of the Court of Justice, it had to demonstrate that it would bring “specific, tangible, substantial and verifiable” benefits for the people of Western Sahara; and second, it needed to address the issues raised in relation to product labelling.^[24]

To meet the requirement that the benefits of the Agreement be specific, tangible, substantial, and verifiable, the EU has undertaken, within the framework of the Agreement, to “provide funding for the region focusing on key sectors, such as water including irrigation, energy, combating desertification, and water desalination in line with the principle of sustainable development.”^[25] Moreover, the EU has committed itself to “increase its humanitarian aid to the Tindouf camps” and to “support suitable programmes in sectors such as education, culture and skills.”^[26] At the same time, as some scholars have underlined, the EU’s commitments will primarily benefit not the Sahrawi population but the current settlers, approximately two-thirds of whom are of Moroccan origin.^[27] Furthermore, these commitments are “neither ‘precise’ nor ‘proportional’ to the exploitation of the territories’ natural resources.”^[28] In light of this, it is legitimate to question whether the proposed benefits truly satisfy the requirements set by the Court of Justice or whether they constitute merely a superficial solution.

To address the issue of product labelling, the Agreement stipulates that products originating from Western Sahara which are subject to controls by the Moroccan customs authorities are to receive the same trade preferences as those granted under the Association Agreement. As emphasised by the Council in its Decision, “the new Agreement […] extends bilateral tariff preferences […] to products originating in the territory of Western Sahara which are subject to controls by the Moroccan customs authorities.”^[29] This solution has also been the subject of criticism in the relevant literature.^[30]

Although the Agreement has been applied provisionally since 3 October 2025, heated debates have arisen within the European Parliament concerning its – still pending – approval. Some MEPs submitted written questions asking, among other things, whether the consent of the people of Western Sahara had been sought and which parties were consulted,^[31] as well as how the Commission justifies disregarding the judgment of the Court of Justice by concluding negotiations in just five days.^[32]

Moreover, on 16 October 2025, the Commission adopted a Delegated Regulation amending the Regulation on origin labelling for fruit and vegetables originating in Western Sahara.^[33] According to the Commission, the aim of the amendment is to align EU law with the above presented new Agreement. Under this proposal, for fruit and vegetables originating in Western Sahara that are subject to the control of Moroccan customs authorities, the indication of country origin shall be replaced by the indication of regions of origin^[34] (Laayoune-Sakia El Hamra and Dakhla-Oued Eddahab, administrative regions of Morocco, located mainly in Western Sahara). One might venture to note that this solution appears to conflict with the internationally recognised status of Western Sahara as a non-self-governing territory. During the meeting on 20 November, members of the Committee on Agricultural and Rural Development criticised the proposed amendment. In the meantime, two motions for resolution were initiated in the European Parliament objecting to the Delegated Regulation, invoking arguments of consumer protection and the integrity of the European food system.^[35] Although both motions were rejected (one of them by an extremely narrow majority of 359 votes in favour), the puzzling nature of the proposed amendment remains.

IV. Conclusions

            Recent events have greatly influenced relations between the EU and Western Sahara. The 2024 Judgment of the Court of Justice emphasises that the Agreement concluded between Morocco and the EU cannot be extended to Western Sahara without the consent of the “people” of the non-self-governing territory, even if such consent may, under certain circumstances, be implicit. Although the two parties subsequently adopted a new Agreement, its wording remains problematic and difficult to interpret as compliant with the ruling of the Court of Justice. In addition, in light of the new Agreement, the European Commission proposed some amendments to the rules on origin labelling for fruit and vegetables originating in Western Sahara. These amendments are difficult to reconcile with the internationally recognised status of Western Sahara and the right to self-determination of the people of the territory; moreover, they also raise concerns regarding consumer protection.

^[1] Smith, 2019, p. 117.

^[2] Resolution 380/1975 of 6 November 1975 of the United Nations Security Council.

^[3] Resolution 1514 (XV) of 14 December 1960 of the United Nations General Assembly and Report of the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples.

^[4] See for example the Resolution 2229 (XXI) of 20 December 1960 of the United Nations General Assembly or Advisory Opinion of 16 October 1975 of the International Court of Justice (paragraph 162).

^[5] Petrangeli, 2025, p. 3.

^[6] See 2000/204/EC, ECSC: Council and Commission Decision of 24 January 2000 on the conclusion of 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.

^[7] 2012/497/EU: Council Decision of 8 March 2012 on the conclusion of an Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments 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.

^[8] Judgment of the General Court of 10 December 2015, Case T-512/12 Front Polisario v. Council.

^[9] Judgment of the Court of Justice of 21 December 2016, Case C-104/16 P Council v. Front Polisario. Paragraph 99.

^[10] 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.

^[11] Judgment of the General Court of 29 September 2021, Case T-279/19 Front Polisario v. Council. Paragraph 301.

^[12] Judgment of the Court of Justice of 4 October 2024, Cases C-779/21 P and C-799/21 P Commission v. Front Polisario and Council v. Front Polisario. Paragraph 129.

^[13] Ibid., Paragraph 130.

^[14] Ibid., Paragraph 145.

^[15] Ibid., Paragraph 152.

^[16] Ibid., Paragraph 159.

^[17] Ibid., Paragraph 160.

^[18] Odermatt, 2024.

^[19] Odermatt, 2024.

^[20] Judgment of the Court of Justice of 4 October 2024, Cases C-779/21 P and C-799/21 P Commission v. Front Polisario and Council v. Front Polisario. Paragraph 152.

^[21] Petrangeli, 2025, p. 4.

^[22] Odermatt, 2024.

^[23] Council Decision (EU) 2025/2022 of 2 October 2025 on the signing, on behalf of the Union, and provisional application 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.

^[24] Petrangeli, 2025, p. 5.

^[25] 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.

^[26] Ibid.

^[27] Petrangeli, 2025, p. 5.

^[28] Petrangeli, 2025, p. 5.

^[29] Council Decision (EU) 2025/2022 of 2 October 2025. Paragraph (16).

^[30] Petrangeli, 2025, p. 5

^[31] Question for written answer E-003920/2025 to the Commission, Oihane Agirregoitia Martínez (Renew)

^[32] Question for written answer E-004255/2025 to the Commission, Isabel Serra Sánchez (The Left), Irene Montero (The Left), Jussi Saramo (The Left), Catarina Martins (The Left).

^[33] Commission Delegated Regulation amending Delegated Regulation (EU) 2023/2429 as regards origin labelling for fruit and vegetables originating in the non-self-governing territory of Western Sahara.

^[34] Ibid.

^[35] Motion for a resolution on the Commission delegated regulation of 16 October 2025 amending Delegated Regulation (EU) 2023/2429 as regards origin labelling for fruit and vegetables originating in the non-self-governing territory of Western Sahara proposed by Jorge Buxadé Villalba, Mireia Borrás Pabón on behalf of the PfE Group; Motion for a resolution on the Commission delegated regulation of 16 October 2025 amending Delegated Regulation (EU) 2023/2429 as regards origin labelling for fruit and vegetables originating in the non-self-governing territory of Western Sahara Carmen Crespo Díaz, Herbert Dorfmann on behalf of the PPE Group.