Top EU advisor's split decision muddies waters on Morocco trade, fisheries deals with EU

Opinions given today by the top legal advisor for Europe’s highest court threw EU-Morocco trade deals covering farm products and fish into a complex legal problem that, while acknowledges Sahrawi’s stakes in Sahara’s resources, doesn’t grant them a say in trade deals.

The Advocate General, Tamara Ćapeta, whose opinions are influential in final rulings of the Court, supported an initial ruling that annulled a €208 million fisheries agreement with Morocco that allowed European vessels to fish in the southern provinces waters because it doesn’t consider Sahara territory and its waters as “separate and distinct” from the North African kingdom.

This, according to the AG, could negatively impact the Sahrawi people’s right to benefit from their natural resources, including fish in nearby waters.

But, she said the court can’t fully address the scope of the Sahrawis’ rights to benefit from the region’s resources because the previous case didn’t explore it comprehensively, creating a situation where the EU can’t definitively rule on the specific rights and duties related to Sahrawi resource enjoyment.

Further complicating the situation, Ćapeta issued a separate opinion on a trade agreement for products imported from Morocco, saying the EU doesn’t need consent from Sahrawi people to trade with Morocco because the Polisario does not have the capacity or legitimacy to conclude such agreements.

She pointed out that the Sahrawi population has never elected Polisario and that there’s no clear evidence of their majority support.

Polisario has not been granted the status of a national liberation movement by the UN or the EU, which directly contradicts its claim as the “sole representative” of the Sahrawi people.

This opinion favors Morocco’s position, as Ćapeta suggests they can negotiate on behalf of Western Sahara due to the territory’s lack of formal representation.

In essence, Ćapeta’s decision favors Morocco because the trade agreement holds greater economic value than the fisheries agreement, whose annulment is mostly concerning for European fishermen who would lose access to Sahara waters.