Between legality and reality: Mediterranean lessons for EU external action

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

The reaction to the European Court of Justice’s latest ruling on Western Sahara shows the Union can keep calm and carry on if it focuses on what it is able to achieve instead of aiming outside of its purview, writes Elena Valenciano.   [David Stanley/ Flickr]

The reaction to the European Court of Justice’s latest ruling on Western Sahara shows the Union can keep calm and carry on if it focuses on what it is able to achieve instead of aiming outside of its purview, writes Elena Valenciano.

Elena Valenciano is a former Spanish MEP with the Socialist and Democrat group.

There was a sense of both déjà vu and surprise on 29 September, when the Court of Justice of the EU (CJEU) gave its judgment on the applicability of EU-Morocco agreements to Western Sahara.

Some were baffled by the uncertainty created, as the agreements intended to grant tariff benefits to the region and allow fishing in adjacent waters were annulled – although they will apply pending an appeal.

Others were surprised by how far the Court went in recognising the claim of the Front Polisario, an armed group that does not enjoy recognition of any EU Member States or institution.

And those, like me, were reassured by the quiet that reigned. It is the sixth ruling of the CJEU on the matter, and yet things are far from the same this time.

Apparent or not, calm defined most official reactions. The EEAS and Morocco came out together, focusing on the importance of the strategic bilateral relations and on maintaining continuity and stability – both extremely scarce in the Mediterranean these days.

This shows that we might have learned some lessons on how the EU can foster on the ground the conditions for legal and diplomatic solutions at international level.

In 2015, when the CJEU first ruled on the issue, annulling the EU-Morocco agreements in the first instance, the case caused deep diplomatic turmoil, notably the halt to the negotiations for a Deep and Comprehensive Free Trade Agreement.

The judgment was subsequently reversed on appeal, and the Court indicated that additional agreements were necessary to allow the Saharan population and economy to benefit from the tariff preferences of the EU-Morocco agreement.

In 2018-19, the EU and Morocco, including myself in the European Parliament, negotiated updated agreements to fulfil the CJEU requirements. Especially noteworthy was the work we carried out in the Parliament’s International Trade Committee, led by my political group S&D, to ask the European Commission and Morocco to go above and beyond the Court’s indications.

This resulted in parliamentary hearings with all parties, including the Polisario, a cross-party fact-finding mission to the region, as well as the establishment by Moroccan authorities of an IT system to track exports from the region – a unique tool that one cannot find in any other EU trade agreement, used by the Commission for its yearly assessment of the agreements, which showed benefits for local populations.

Now that the Court has sent everyone back to the drawing board, this might all seem for nothing. But the work done to negotiate it and put it in place, building trust between partners, was not in vain.

The focus on the stability of the Mediterranean and the continuity of strategic and socio-economic relations between the EU and Morocco, as stressed by the EEAS, several MEPs, Member States and business communities, shows that we now have our priorities and role straight.

This is the result of increased communication between all parties regarding the uncertainty set out by the Court. This positive exchange is what happens when good diplomacy is at work, connecting the dots between legal intricacies and realities on the ground. More importantly, this shows a big shift from previous instances.

After turbulent months for Morocco’s relations with Spain, and arguably Europe by extension, this shows we now understand better the Sahara issue. It is historically and crucially important but cannot be solved only in Court, through trade alone, or left to jeopardise the bigger picture of the whole EU Southern Neighbourhood.

The EU should certainly continue to support the UN peace process – and the appointment of Staffan de Mistura as the Secretary General’s new Personal Envoy gives some room for hope.

Regardless of whether the UN process may gain momentum, the question remains: what is the EU plan? For now, it seems that Brussels wants to keep calm, appeal, and carry on – and this may be exactly the zen lesson we should learn.

The EU is between a rock and a hard place, as so often in its international relations, trying to uphold a set of universal values via strict legal principles but at times lacking the capacity and competence to protect and shape them on the ground.

Concretely, the EU can only support the UN process on Western Sahara. The Commission, Council and EEAS have interpreted this as allowing the EU to sustain the socio-economic development of the region and its population by the only means available – tariff preferences granted via the only state authorities present where there is economic activity.

The Court has said – for now – that the EU did not obtain sufficient consent by the Sahraouis to do this. How to do that remains unclear, as the EU carried out consultations locally. But it cannot recognise the exclusive standing that Polisario wants because none of its Member States does.

What it can do, however, is use its trade and investment power to maintain stability and communicate with everyone to make sure that all parties understand not only the strategic risks and opportunities at stake, but also that the EU is a legal animal with several heads – so it takes time to make up its mind.

This will help everyone keep their cool and focus on shared interests in the Mediterranean.

Calm does not mean standing still and hoping for things to improve.

Whilst the CJEU and the UN do their jobs, the world continues to change, and the EU can perform its own role. From green investment to development funds, this means a lot for its Southern Neighbourhood – one of world’s most affected regions by climate change, migration flows, terrorism and socio-economic instability.

Let us all get to work: the EU may not be able to solve international diplomatic impasses yet, but it can – as it did for the part of its neighbourhood that is now an integral part of the union – create the socio-economic conditions to make legal solutions possible and viable in reality.

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