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On 27 February 2018, the Court of Justice of the European Union (‘CJEU’) handed down its judgment in Case C-266/16 Western Sahara Campaign [2018] ECLI:EU:C:2018:118.

The case concerns the legality of the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco (OJ 2006 L 141, p. 4; ‘the Fisheries Partnership Agreement’), as approved and implemented by a number of related pieces of EU legislation. The legality of these provisions was referred to the CJEU by a judgment of Blake J in R (Western Sahara Campaign) v. HMRC [2015] EWHC 2898 (Admin). Aspects of the reference were overtaken by the judgment of the CJEU in Case C-104/16 P Council v. Front Polisario [2016] ECLI:EU:C:2016:973. In that case, the CJEU held that the EU-Morocco Association Agreement is to be interpreted, in accordance with rules of international law that are binding on the European Union, as meaning that that agreement is not applicable to the territory of Western Sahara.

The Fisheries Partnership Agreement was stated to apply to “the waters under Moroccan jurisdiction”. This was defined in the Agreement as “the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco.” The Advocate General in an opinion dated 10 January 2018 concluded that the Fisheries Partnership Agreement did, on its proper construction, apply to the waters adjacent to the Western Sahara. He found that this violated a series of peremptory norms of public international law and rendered the EU legislation invalid. His Opinion contains an exceptionally detailed analysis of the interplay between EU law and public international law.

In contrast, the CJEU in its judgment has construed the expression “sovereignty or jurisdiction of the Kingdom of Morocco” in a similar way to its construction of “the territory of Morocco” for the purposes of its judgment in the Front Polisario case. It has accordingly ruled that, in order to comply with general principles of public international law which are binding on the EU legal order, it is necessary to construe the Fisheries Partnership Agreement as not applying to the waters which are adjacent to the Western Sahara.  In that way, the legislation itself can be construed conformably with EU law. It will now be for the referring Court to ascertain whether or not the United Kingdom has, in practice, complied with the relevant EU law provisions, as properly construed.

Click here for the full judgment. 

Kieron Beal QC acted for the Claimant, Western Sahara Campaign.

Brian Kennelly QC and Paul Luckhurst acted for the Defendants before the Administrative Court but did not appear before the CJEU. 

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