Will the European Court derail the EU’s good relations with Morocco?

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

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EU relations with Morocco have improved in recent years. Will they be derailed by a European court ruling later this week, asks James Moran.

James Moran is the Associate Senior Research Fellow at CEPS, a think tank on EU affairs, and former principal adviser on the Middle East and North Africa at the EEAS in Brussels

On 29 September, the European Court of Justice is due to issue a ruling on whether the EU-Morocco agricultural and fisheries agreements can be applied to the non-self-governing territory of the Western Sahara, whose final status is subject to negotiations led by the United Nations.

The case has been brought by the Polisario Front, an armed group that purports to represent the Sahrawi people and has long fought for the independence of the territory, three-quarters of which is administered by Morocco. The defendants of the agreements are the Council, the Commission, France and Spain.

This is not the first time the Court has had to consider the matter. In the past, when EU agreements with Morocco were brought into question, it rejected the claim of the Polisario and concluded in essence that while the legal validity of the accords was upheld, additional conditions were necessary to extend their application to Western Sahara.

Given that precedent, some expect a similar judgement this week.

Such an outcome may not be well received in Rabat or by the European Commission, who negotiated the current agreements in 2018-19 to comply with the Court’s requirements. The Commission also evaluated positively the impact of the agreement on the local population, notably in terms of jobs and investment. An appeal seems likely.

That said, away from the legal front, the EU’s relations with Morocco have recently gone from strength to strength, with growing trade and investment links, very close cooperation on counter terrorism and the control of illegal migration, and hopes for a rebound in European tourism, a major foreign exchange earner, once the pandemic relents. Strong alignment on the green agenda, a top EU priority, provides a framework for further improvement in the future.

Moreover, Morocco’s elections last month resulted in heavy losses for the Islamist PJD, previously the largest party in the Rabat parliament. On the other hand there were substantial gains for secular parties, leading to the appointment of Aziz Akhannouch as Prime Minister.

Known as a pragmatist, with a strong business background, the new PM is likely to want to improve political and commercial ties with the EU, to the benefit of both sides. Indeed, new business-to-business links are already in the works, demonstrating European and Moroccan employers are on the same page. Akhannouch’s appointment was warmly welcomed by Josep Borrell, the EU foreign policy chief.

Added to that, in December last year, the US moved to recognise Morocco’s  sovereignty of the territory, something that is under review by the new administration, but the signs are that Washington is unlikely to change its position, given its strong alliance with Rabat and its support for Morocco’s ‘Abraham accord’ with Israel, which partially normalises its relations with Jerusalem (US recognition was a key factor in obtaining Morocco’s agreement).

The EU had been critical of the US move, as the bloc’s position is conditioned by support for the UN process, but it has by and large acquiesced, not least because of its own strong interest in maintaining good relations with Rabat and in avoiding disputes with the EU-friendly Biden administration.

Given past experience, if the ECJ ruling upholds the Polisario Front’s case it could cause a serious setback in the EU’s ties with this crucial partner in its neighbourhood.

A complete rupture in relations, while not to be excluded, seems unlikely, but a legal hurdle to solve for the European Commission and Rabat could well freeze or derail many of the ongoing cooperation initiatives and give the EU, especially the two member states with the most at stake, Spain and France, a serious headache.

Be that as it may, this is largely immaterial to the ECJ, which will pronounce on purely legal grounds, regardless of the lack of alternatives to the status quo. Whatever the result, it will have to be accommodated by the European Institutions and the member states.

One thing is certain. Until new energy is put into the UN process, the EU and Morocco will continue to have difficulties in navigating the resulting uncertainty for businesses on both sides. Opportunities for wider partnership will also continue to be lost. The question is what can be done, realistically, in terms of new initiatives.

Earlier this year, the European Council for Foreign Relations suggested a new approach, which they term a third way between independence and Moroccan sovereignty, based on the notion of ‘free association’.

While borne of good intentions, it seems improbable that either side would accept such an arrangement, especially since the PF returned to armed struggle late last year, overturning the cease fire negotiated in 1991, and levels of confidence are low at best.

The viability of a new, Polisario-run state seems unrealistic and could create more problems than it solves in terms of regional (in)stability.

On the other hand, the 2007 Moroccan plan for the future of Western Sahara foresees a high degree of autonomy for the Sahrawi people and a role for Polisario under Moroccan sovereignty, while excluding the latter’s key demand, a referendum on independence.

This plan has gained traction at the UN in recent years, attracting support from a number of countries, notably France and the US.

It will be difficult to revive the plan in its current form as a basis for a permanent settlement, given the strong opposition of Polisario and its Algerian ally and the lack of overt support from the EU, even if some of its member states are sympathetic to it.

In the meantime, it should be possible to further enhance conditions for local economic development and European investment. Improved socio-economic conditions for the Sahrawi’s, including through trade with the EU, would allow more room for negotiations.

Perhaps the arrival of an economic pragmatist at the head of the Government in Rabat will drive the process in that direction. In that event, he could almost certainly count on the support of many in the EU.

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