Some Recent Questions Regarding the European Union’s Public Access Fisheries Agreements

Abstract

The European Union’s (EU) exclusive competence on the conservation of fisheries resources is not restricted to the maritime waters under the sovereignty or jurisdiction of its Member States but also extends to the activities of EU fishermen and fishing vessels in the waters of third countries or on the high seas. In developing this competence, the EU has gradually forged an external fishing policy that has enabled it to negotiate fisheries agreements with third States, with a view to maintaining the activity of the EU fishing fleet, as well as to helping to supply the European market for fish. Very recently, the Court of Justice of the European Union (CJEU) case law has reflected some of the problems that have arisen during the development of this international competence held by the EU in the field of fisheries, namely, the European Commission competence to represent the EU before an international court or tribunal, as well as the problem of the EU international legal responsibility for any breach of its obligations provided by an access fisheries agreement; the scope of the competence of the EU in the field of fisheries, as well as the notion of an international fisheries agreement; and the procedure for access to fisheries resources by virtue of an international fisheries agreement.

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1 Introduction

Public access fisheries agreements, also called ‘international fisheries agreements’ or ‘sustainable fisheries partnership agreements’ in the most recent Common Fisheries Policy (CFP) reform, are one of the main manifestations of the EU’s external fisheries activity at the international level. They are therefore one of the elements that best define the EU’s international legal personality, which is explicitly provided for under Art. 47 TEU.

According to Art. 4(37) of Regulation (EU) No 1380/2013 on the current CFP, these agreements are concluded ‘with a third state for the purpose of obtaining access to waters and resources in order to sustainably exploit a share of the surplus of marine biological resources, in exchange for financial compensation from the Union, which may include sectoral support’.¹ These public access fisheries agreements are divided into tuna agreements, on the one hand,² and mixed or multi-species agreements, on the other.³ They must also be distinguished from private access agreements, which are concluded between private companies based in EU Member States and third countries.⁴

In the last 30 years, the EU has concluded more than 30 such agreements, affording its fishing fleet access to very diverse stocks in the respective partner country’s economic exclusive zone (EEZ).⁵ Undoubtedly, this fisheries treaty activity has been possible due to the EU’s exclusive international competence in this field. As is well known, in 1998 the EU concluded both the United Nations Convention of 10 December 1982 on the Law of the Sea (UNCLOS) and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof⁶ and also made a Declaration concerning its exclusive competences with regard to matters governed by the UNCLOS and that Agreement.⁷ Moreover, this exclusive competence is not restricted only to the maritime waters under the sovereignty or jurisdiction of EU Member States as, according to Art. 1(2) of Regulation (EU) No 1380/2013, it also extends to activities carried out by EU fishing vessels in the waters of third countries or on the high seas, as well as by European citizens ‘without prejudice to the primary responsibility of the flag State’.

By virtue of this competence, the EU has been able to take part in different international fora and defend its fisheries interests at the global level.⁸ As a result, for the last 30 years it has been an active actor on the international fisheries scene.⁹ Moreover, the EU fish market is the largest in the world and, at the same time, depends on both fishing imports and fishing captures in waters not under the sovereignty or jurisdiction of its Member States.¹⁰ Currently, approximately 25% of EU fishing captures are made in such waters, approximately 8% are enabled by fisheries agreements with third countries and approximately 20% are carried out in the high seas, basically in areas under the jurisdiction of regional fisheries management organisations (RFMOs).¹¹

The aim of this chapter is to present the EU’s treaty activity in the field of fisheries in light of the most relevant case law of the CJEU published in 2014 and 2015. Recent practice by EU fishing vessels has highlighted the need to look to the CJEU’s position to clarify certain pending aspects of the EU’s fisheries treaty activity on the international stage, such as, first, the issue of the European Commission’s competence to represent the EU before the International Tribunal for the Law of the Sea (ITLOS), in a case in which the fisheries treaty activity of an international organisation, amongst other issues, was analysed—Council v European Commission (C-73/14) (Sect. 2); second, the necessary legal basis for the adoption of a normative act by virtue of which a third-country fishing vessel could fish in the waters of an EU Member State, as well as the scope of the international fisheries agreements—European Parliament and European Commission v Council (joined cases C-103/12 and C-165/12) (Sect. 3); and, third, certain aspects resulting from the application of the fishing agreement signed between the EU and Morocco and its successive Protocols—Ahlström and Others (C-) and Front Polisario v Council (T-512/12) (Sect. 4). In the author’s view, all of these judgments will be very useful for the General Court in Luxembourg in case T-180/14 regarding the action for annulment brought on 14 March 2014 by Front Polisario against the Council in relation to Decision 2013/785/EU of 16 December 2013 on the conclusion of the Protocol between the EU and Morocco setting out the fishing opportunities and financial contribution provided for in the fisheries partnership agreement between the EU and that country. The Chapter will conclude with some final remarks.

2 The European Commission’s Competence to Represent the EU Before the ITLOS

The judgment of the Court (Grand Chamber) of 6 October 2015 in the case Council v European Commission (C-73/14)¹² was the first decision of the Luxembourg court related to the European Commission’s capacity to present allegations before an international court without prior authorisation from the Council. In this sense, it put on the table the question of who is responsible for a breach by European fishing vessels of a fishing agreement concluded by the EU: the EU Member State acting as the flag State or the EU itself? This judgment is a doubtless part of a larger procedural action of the Council that has been encouraged by the entry into force of the Lisbon Treaty,¹³ which contains, amongst other things, a new system for the EU’s international representation through a new division of competences in the field of external action.¹⁴

Through this judgment, the Council questioned the legality of the European Commission’s Decision of 29 November 2013 regarding the submission of written comments on behalf of the EU to the ITLOS in the framework of Case No 21 on the request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC).¹⁵ In that case, the ITLOS was asked, inter alia, whether the flag State or an international agency—such as the EU—would be responsible for the violation of the fisheries legislation of a coastal State by a fishing vessel with a fishing licence granted under an international fisheries agreement signed with that coastal State.¹⁶

The Council claimed, first, infringement of the principle of conferral of powers laid down in Art. 13(2) TEU, as well as of the principle of institutional balance, and, second, infringement of the principle of sincere cooperation. With regard to the principle of conferral of powers and the principle of institutional balance, the Council stated that Art. 218(9) TFEU—which provides that it may adopt a decision establishing the EU’s positions in a body set up by an international agreement that could adopt acts having legal effects for the EU—and Art. 16(1) TEU had been infringed. As to the infringement of the principle of sincere cooperation, the Council claimed that the Commission had not submitted a proposal for a decision on the position to be adopted on behalf of the EU before the ITLOS, as required under Art. 218(9) TFEU, and also that it had not cooperated with it in good faith in the preparation of the written statement submitted to this international court in Case No 21.¹⁷

The EU submitted written statements on two occasions—on 29 November 2013 and on 13 March 2014—in the proceedings opened by the ITLOS.¹⁸ The first time the European Commission acted before the ITLOS on the basis of the decision adopted on 5 August 2013,¹⁹ without previously submitting its comments to the Council for approval, ‘despite the latter’s request’,²⁰ notifying the Council the same day (namely on 29 November 2013).²¹ As a result of this action by the Commission in late 2013, on 10 February 2014, the Council, acting under Art. 263 TFEU, filed the action for annulment addressed by the Court in this judgment.

In relation to ITLOS Case No 21, it has to be mentioned that the European Commission argued before the ITLOS that the responsibility of the flag State or ‘international agency’—as would be its case—for infringement of the national fisheries legislation of a coastal State depended on the content of the applicable international agreement and that, in the absence of such a conventional act, the general rules concerning the international responsibility of the State would apply. Specifically, it argued that the flag State of a fishing vessel operating in the EEZ of a third State would be responsible for any violations by it of the coastal State’s national legislation.²²

The Court considered, on the one hand, that Art. 335 TFEU ‘provided a basis for the Commission to represent the European Union before the ITLOS in Case No 21’²³ since, as it had ruled in its judgment Reynolds Tobacco and Others v Commission,²⁴ Art. 335 TFEU ‘is the expression of a general principle that the European Union has legal capacity and is to be represented, to that end, by the Commission’.²⁵ On the other hand, it found that the Commission had fulfilled the obligation to consult the Council before acting before the ITLOS and, therefore, had not infringed the principle of sincere cooperation, as a working paper on the allegations it wished to present to the ITLOS had been referred to the Council and revised twice.²⁶

Underlying this power struggle between the Commission and the Council is an important pronouncement by the ITLOS with profound consequences for the EU’s treaty practice in the field of fisheries, namely, the international court ultimately attributed the international responsibility for infringement of a coastal State’s legislation by a vessel flying the flag of an EU Member State and fishing under a fisheries agreement to the EU. In other words, the EU can no longer hide behind the shield of the vessel, shifting the responsibility to the flag State; instead, the EU itself must deal with the consequences of such infringements.

In the author’s view, in its Advisory Opinion in Case No 21, the ITLOS seems, first, to accept the Commission’s assessment in considering (para 170) that the responsibility of an international organisation, as a result of the infringement of a coastal State’s fisheries legislation by a vessel flying the flag of a Member State in possession of a fishing licence obtained under a fisheries agreement depends on the existence in the agreement of specific provisions relating to liability in the case of such infringements; it stated that, in the absence of such provisions, the general rules of international law would apply, namely that the responsibility would correspond to the Member State that was the flag State.

However, the ITLOS qualified this consideration in the following paragraphs (paras 171 and 172) on the basis of the due diligence obligation applicable to the international organisation.²⁷ In this case, the Court considered that the international organisation, as the only contracting party of the fisheries agreement with the coastal State, must ensure that vessels flying the flag of a Member State respect the fishing regulations of the coastal State and do not engage in illegal, unreported and unregulated fishing (IUU fishing) in that State’s EEZ; the EU must fulfil its due diligence obligation. Otherwise, the ITLOS considered (para 173) that only the international organisation, not its Member States, will be responsible under the fisheries agreement. That is, if the international organisation fails to comply with its obligation of due diligence, the coastal State (SBFC’s Member States) may hold it liable for the infringement of fishing regulations by a fishing vessel flying the flag of one of its Member States when that vessel fishes in its EEZ within the framework of a fisheries agreement concluded between that organisation and the coastal State.²⁸

In the author’s view, this should lead to a change in the EU’s fisheries treaty activity with a view to including ‘competence clauses’ in the fisheries agreements. These clauses are intended for mixed agreements involving shared competences between the EU and its Member States, which is not the case with fisheries agreements, which are agreements affecting the EU’s exclusive competences. However, such an inclusion would result in greater security for third countries and for the EU itself. Likewise, it has to be mentioned that many of these fisheries agreements affect marine areas that are the site of abundant IUU fishing, activities that constitute internationally wrongful acts and that go beyond the scope of the pure conservation of living marine resources for which the EU has exclusive competence.

3 The Scope of the Public Access Fisheries Agreements

The judgment of the Court (Grand Chamber) of 26 November 2014 in the joined cases European Parliament and European Commission v Council of the European Union (joint cases C-103/12 and C-165/12)²⁹ addressed the legal basis for Council Decision 2012/19/EU of 16 December 2011.³⁰ This Decision had been used to adopt the Declaration on the granting of fishing opportunities in EU waters to fishing vessels flying the Venezuelan flag in the EEZ off the coast of French Guiana. Both the European Parliament (EP) and the Commission considered that the legal basis chosen by the Council was wrong. Moreover, the EP claimed that the Decision had been adopted on the basis of an incorrect procedural provision. For its part, the Commission alleged, amongst other things, that the Council had failed to respect the EP’s institutional powers when it adopted the Decision.

With the adoption of Decision 2012/19/EU, the Council sought to fill a gap in the legislation regarding the access of fishing vessels flying the Venezuelan flag to the EEZ of an EU Member State—in this case, France’s EEZ off the coast of French Guiana.³¹ The aim was to circumvent the process of negotiating and concluding an international agreement in order to respond rapidly to the need to provide an international title for access to the French Guiana waters, which had no impact for fisheries in the EU as a whole.³² Hence, the Council considered that it would be more appropriate to issue a unilateral declaration in the above terms that would fulfil the same function as a fisheries agreement, generating international rights and obligations for the affected parties.

In the author’s view, the cornerstone of this action for annulment is the legal basis used by the Council to adopt Decision 2012/19/EU, which, as noted, sought to offer a quick legal response to an activity that had existed for decades. Thus, the Council invoked Art. 43(3) TFEU in conjunction with Art. 218(6)(b) TFEU, whilst the EP and the Commission held that the contested Decision should have been adopted according to Art. 43(2) TFEU in conjunction with Art. 218(6)(a)(v) TFEU since it amounted to an international agreement for a third country—in this case Venezuela—to access and engage in fishing activities in EU waters and, therefore, required the EP’s prior approval.

Regarding the legal basis for the adoption of an international fisheries agreement, this case is thought to reflect the tension of recent years, following the entry into force of the Lisbon Treaty, between the EP and the Commission, on the one hand, and the Council, on the other, in relation to the legislative procedure for the adoption of fisheries legislation. As is well known, prior to 1 December 2009, the EP had played only a marginal role in the legislative process in the field of the CFP. However, today, it has recognised legislative powers under Art. 43 TFEU.³³ Thus, Art. 43(2) TFEU provides for the ordinary legislative procedure for the adoption of provisions that are ‘necessary for the pursuit of the objectives’ of the CFP, whilst Art. 43(3) includes a reserved executive procedure for the ‘fixing and allocation of fishing opportunities’. This situation has been interpreted by part of the doctrine³⁴ as a sui generis procedure and an exception to the legislative procedure under Art. 43(2) TFEU.

At the same time, Art. 218 TFEU also reflects the significant increase in the EP’s influence in the adoption by the EU of fisheries treaties.³⁵ Art. 218(6)(b) TFEU provides that the Council, ‘on a proposal by the negotiator’, may conclude an agreement between the EU and a third country or international organisation ‘after consulting the European Parliament’, which must issue an opinion ‘within a time-limit which the Council may set depending on the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act’. On the other hand, in accordance with Art. 218(6)(a)(v) TFEU, unless it falls within the scope of the Common Foreign and Security Policy, the Council shall adopt the decision concluding an agreement between the EU and a third country or international organisation subject to the approval of the EP with respect to those agreements related to fields to which the ordinary legislative procedure applies or, where the EP’s consent is required, the special legislative procedure. Moreover, in an urgent situation or emergency, the EP and the Council ‘may […] agree upon a time-limit for consent’.

The choice of the legal basis for such a legislative act is of extraordinary importance since, if it is wrong, the concluding act could be invalidated, thereby vitiating the EU’s consent to be bound by the agreement signed.³⁶ In addition, as stated in the CJEU case law,³⁷ the choice of legal basis for an EU act must be based on objective factors amenable to judicial review, such as, in particular, the aim and content of the act.³⁸ The Court held that the purpose of the statement concerning the allocation of fishing opportunities to vessels flying the Venezuelan flag in the EEZ off the coast of French Guiana was not to ensure ‘the fixing and allocation of fishing opportunities’ in the sense of Art. 43(3) TFEU but rather to offer the Latin American country the opportunity to participate in the exploitation of fisheries resources in the EEZ of French Guiana, under the conditions set by the EU, and to ensure compliance with the requirement that the CFP provisions regarding conservation and control and other CFP regulations be met.³⁹

As for the question of the issues raised by the notion of an international agreement concluded in the field of fisheries, in the present case the EU had offered to allow a limited number of fishing vessels flying the Venezuelan flag to operate in relation to part of the surplus allowable catches in French Guiana’s EEZ.⁴⁰ The Court considered that the offer made to Venezuela was not a technical implementing measure but rather a measure involving the adoption of an autonomous decision, which should be made in the light of the EU policy interests pursued through its common policies, particularly its CFP.

In this judgment, the Court once again decided on a very broad concept of agreement. Indeed, as noted in its case law, on the one hand, it is irrelevant whether a treaty consists of a single document or several related legal instruments and, on the other hand, the term ‘agreement’ must be understood in a general sense to designate any kind of binding commitment expressed by a subject of international law regardless of its formal designation.⁴¹

In this case, Advocate General Sharpston expressed another position, moving away from this notion of ‘agreement’ and considering that the EU’s international legal personality allowed it to issue a unilaterally binding declaration. However, he noted that having the capacity to adopt a treaty ‘does not suffice to conclude that, in accordance with the principle of conferral, the EU is competent to do so’.⁴² The Advocate General further considered that there were two possibilities regarding the legal nature of the declaration made by the EU in the contested decision: either it was a unilaterally binding instrument for the EU or it was a unilateral declaration that would ‘produce legal effects only when subsequently accepted by the third State in whose favour it was made (in which case it is only one side of an international agreement)’.⁴³ Finally, the Advocate General concluded that Venezuela had not agreed to be bound by the Declaration ‘as an agreement concluded between it and the EU’.⁴⁴

Based on its interpretation of the act as an international agreement, however, the Court decided to annul the contested Decision as it considered that it should have been adopted by virtue of Art. 43(2) TFEU in conjunction with Art. 218(6)(a)(v) TFEU. Furthermore, the Court decided to maintain the effects of the Decision, as requested by both the Commission and the Council,⁴⁵ until the adoption of a new decision in this field, under the TFEU provisions. This happened on 14 September 2015, with the adoption of Council Decision (EU) 2015/1565.⁴⁶

Although the Court agreed with the Advocate General in declaring the contested Decision null and void and in maintaining its effects until a new decision could be adopted in accordance with the provisions of Art. 43(2) TFEU in conjunction with Art. 218(6)(a)(v) TFEU, it differed in its qualification of the act, which, in the author’s view, can hardly be considered an international agreement. In so doing, the Court missed an excellent opportunity to rule, for the first time, on the EU’s capacity to issue binding unilateral acts⁴⁷ in the field of international maritime affairs.

Thus, the Court strengthened its broad and, undoubtedly, conservative interpretation of the notion of ‘international agreement’. On the one hand, this position will facilitate the conclusion of fisheries agreements; on the other, it is so permissive that it blurs the legal scope of such agreements. In keeping with the Opinion of the Advocate General, in the author’s view, the CJEU could have addressed the nature of a unilateral declaration and its applicability to the EU’s international fisheries activity. However, rather than embarking down the unexplored path of unilateral declarations, the CJEU opted to take a more prudent position, that is, to benefit from the broad notion of ‘international agreement’ that it defends in its case law and that perhaps best fits the factual context in which the case unfolded.

4 Some Aspects Arising from the Application of the Fishing Agreement Signed by the EU and Morocco and Its Successive Protocols

The activity of European fishing vessels carried out under the successive fisheries agreements concluded by the EU and Morocco⁴⁸ has sparked numerous controversies due to both possible imbalances in the allocation of rights and obligations to the parties—which have given rise to recurring criticism in the socio-economic sector of European fisheries (particularly in Spain)—and, more recently, fishing in waters off the Western Sahara coasts.⁴⁹ The CJEU examined some of the issues raised by this fisheries treaty activity on two occasions in 2014 and 2015, focusing mainly on the European fishing activity conducted in Western Sahara waters.

First, the judgment of the Court of 9 October 2014 in Ahlström and Others (C-565/13)⁵⁰ refers to a question submitted under the provisions of Art. 267 TFEU in the context of criminal proceedings before a Swedish court, in which the defendants had been accused of engaging in illegal fishing practices in Western Sahara waters between April 2007 and May 2008;⁵¹ it addresses the interpretation of the most recent fisheries agreement concluded between the EU and Morocco, which entered into force on 1 April 2007.⁵²

Second, the judgment of the EU’s General Court (GC) of 10 December 2015 in Front Polisario v Council (T-512/12)⁵³ refers to an action for annulment brought by the Front Polisario in relation to Council Decision 2012/497/EU of 8 March 2012 on the conclusion of an Agreement in the form of an Exchange of Letters between the EU and 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 EU and its Member States, on the one hand, and Morocco, on the other hand.⁵⁴ Although this second judgment raises multiple international legal issues of great significance for the Western Sahara,⁵⁵ it really addresses only a few issues related to the notion of public access fisheries agreements concluded by the EU with Morocco. The GC’s judgment in the case Front Polisario v Council (T-180/14) is expected to be more relevant for the field of public access fisheries agreements concluded by the EU with third countries, as the action for annulment brought by the Front Polisario will refer specifically to fisheries activities off the coast of the Western Sahara under the provisions of the Protocol signed between the EU and Morocco setting out the fishing opportunities and financial contribution provided for in the fisheries partnership agreement between them.⁵⁶

Regarding the judgment of 9 October 2014 in Ahlström and Others, in the author’s view the scope of the so-called ‘exclusivity clause’ that accompanies the public access fisheries agreements is perhaps the most interesting point for the purposes of this chapter. It should be noted that this clause excludes any type of fishing done by EU Member States’ vessels outside the framework of the said agreements. Consequently, the European fleet’s fishing activities in the waters covered by the agreements must be carried out solely and exclusively within the framework of the agreements.

In this regard, it has to be mentioned that the exclusivity clause is the most important issue to be addressed by the Court in this case. The Court was essentially asked whether Art. 6 of the fisheries agreement concluded by the EU with Morocco in 2006 must be interpreted as precluding any possibility for EU vessels to carry out fishing activities in waters under the sovereignty or jurisdiction of Morocco on the basis of a licence issued by Moroccan authorities without the intervention of the EU’s competent authorities.

It should also be stressed that the aforementioned Art. 6 stipulates that EU fishing vessels ‘may fish in Moroccan fishing zones only if they are in possession of a fishing licence issued under this Agreement. The exercise of fishing activities by Community vessels shall be subject to the holding of a licence issued by the competent Moroccan authorities at the request of the competent Community authorities’. Moreover, ‘[f]or fishing categories not covered by the Protocol [setting out the fishing opportunities and financial contribution provided for in the Fisheries Agreement (‘the Protocol”)], licences may be granted to Community vessels by the Moroccan authorities’. However, the granting of such licences is dependent on the receipt of a favourable opinion from the European Commission. Furthermore, the potential access by EU vessels to a third country’s waters will be determined under a bilateral public access fisheries agreement concluded by the EU with the said third country, and only then, on the one hand, will the Council be responsible for granting fishing opportunities according to the provisions of the agreement and, on the other, will the Commission be able to grant fishing licences to EU Member States for them to grant to vessels flying their flag.

With regard to fisheries, amongst other things, the exclusivity clause seeks to prevent EU vessels from fishing outside the framework of a public access fisheries agreement⁵⁷ or failing to contribute to the long-term conservation of fisheries resources, as stated in the second written statement it submitted to the ITLOS on behalf of the EU on 13 March 2014 in Case No 21.⁵⁸

The Court found that ‘it cannot be accepted that Community vessels should be able to access Moroccan fishing zones in order to carry out fishing activities’ through the conclusion of a specific contract ‘with a Moroccan company holding a licence issued by the Moroccan authorities to Moroccan owners […] or by using any other legal instrument in order to access those fishing zones for the purpose of carrying out such activities there outside the scope of the Fisheries Agreement and, consequently, without the intervention of the competent European Union authorities’.⁵⁹ Therefore, the aforementioned Art. 6 excludes any possibility for EU vessels to carry out fishing activities in the fishing areas of a third country with which the Union has concluded a public access fisheries agreement on the basis of a licence issued by the authorities of that country without the intervention of the competent EU authorities.

In the author’s view, this judgment reinforces the value of the public access fisheries agreements concluded by the EU with more than 30 countries as necessary instruments for responsible and sustainable fishing; they contain the same obligations for the EU vessels fishing in third-country waters as those imposed on all EU fishing vessels fishing in EU waters. In so doing, the EU is seeking to prevent European vessels from changing their flag or fishing under a private access fisheries agreement. In such a context, the EU would not be able to hold fishing vessels that infringe the international, EU and national legislation regarding fish stocks conservation accountable.

Regarding the GC’s judgment of 10 December 2015 in Front Polisario v Council, it is considered that the ninth plea in law used by Front Polisario in this case is the most relevant for the field of fisheries. It has to be underlined that Front Polisario relied, on the one hand, on the Association Agreement between the EU and Morocco and, on the other hand, on the principles of UNCLOS; the fisheries Agreement or its most recent Protocol did not receive special attention in this case.

In relation to the Association Agreement, Front Polisario claimed that this treaty infringed ‘the right to self-determination and the rights which derive from that, in particular, sovereignty over natural resources and the primacy of the interests of the inhabitants of Western Sahara’.⁶⁰ With respect to the UNCLOS, Front Polisario argued that, according to the provisions of this Convention, the people of Western Sahara had sovereignty over, firstly, the waters adjacent to the coast of Western Sahara and, secondly, the infringement of the basic criterion resulting from the UNCLOS, the Association Agreement, the Protocol 4 of the fisheries partnership agreement concluded by the EU with Morocco in 2006 and the Agreement of an exchange of letters concerning the provisional application of the Agreement on cooperation in the sea fisheries sector between the European Community and Morocco initialled in Brussels on 13 November 1995.⁶¹

This judgement has various positive contributions in this field. Thus, the General Court remembers that in the case Intertanko and Others, the Court of Justice held that ‘the nature and the broad logic of that convention prevent the Courts of the European Union from being able to assess the validity of an EU measure in the light of that convention’⁶² and also reiterates ‘that the EU institutions enjoy a wide discretion as regards whether it is appropriate to conclude an agreement with a non-member State which will be applied on a disputed territory’.⁶³ Although the General Court considers correct the Council’s argument of not being liable for any actions committed by a country, which has an agreement concluded with the EU,⁶⁴ the EU underlines the special situation of the Western Sahara, ‘which is in fact administered by a non-member State, in this case the Kingdom of Morocco, although it is not included in the recognised international frontiers of that non-member State’, and also the fact that Morocco neither has any mandate granted by the United Nations or by another international body for the administration of the Western Sahara territory nor transmits to the United Nations information relating to that territory, according to Art. 73(e) of the United Nations Charter.⁶⁵ Finally, the General Court has decided to annul the provisions of Council Decision 2012/497/EU referring to Western Sahara.

In the author’s view, this judgment is only the first judicial step regarding the EU–Morocco relations that affect Western Sahara in the field of fisheries. This decision has already been the subject of an appeal before the Court. We are referring to the case Council v Front Polisario (C-104/16 P), which has been brought before the Court on 11 March 2016. It has to be mentioned that on 7 April 2016, the President of the Court has ordered this case to be judged through the accelerated procedure in accordance with Art. 133 of the Court’s Rules of Procedure and on 13 September 2016 the Advocate General in this case has published his Opinion. Finally, on 21 December 2016 the Court of Justice has published its judgment in this case, deciding to set aside the judgment of the General Court of 10 December 2015 as well as to dismiss the action brought by the Front Polisario as inadmissible.⁶⁶

In addition, the General Court will have to publish its judgment in the case Front Polisario v Council (T-180/14). In this case, Front Polisario relies on 12 pleas in law in support of its action for annulment of Council Decision 2013/785/EU of 16 December 2013 on the conclusion, on behalf of the European Union, of the Protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco.⁶⁷ It claims that the contested Decision, amongst other things, is contrary to the objectives of the CFP and also represents an infringement of the UNCLOS provisions as Morocco sets fishing quotas for waters not under its sovereignty, as well as authorises EU vessels to exploit fisheries resources that are under the sole sovereignty of the Sahrawi people.

5 Final Remarks

Despite the EU’s extensive experience with fisheries treaty activity at the global level, recently the CJEU’s intervention has been needed to shed light on several relevant issues in this field.

Thus, the judgment in the case Council v Commission (C-73/14) solved a jurisdictional problem, reasserting the exclusive nature of the EU’s competences with regard to the conservation and management of living marine resources and, therefore, the European Commission’s right to explain the EU’s position on issues affecting fisheries resources before an international court. It likewise highlighted the issue of the EU’s possible international legal responsibility for infringements of the provisions of public access fisheries agreements.

In the joined cases Parliament and Commission v Council (C-103/12 and C-165/12), the Court considered, first, that public access fisheries agreements should be adopted according to Art. 43(3) TFEU in conjunction with Art. 218(6)(a)(v) TFEU, thereby strengthening the EP’s role in the field of fisheries. Second, the judgment found that a unilateral declaration made by the EU regarding part of the surplus allowable catches in the EEZ of one of its Member States that is later accepted by a third country should be considered part of an agreement concluded by the EU and the said country on the authorisation of exploitation under the conditions set out in the declaration. This legal solution is consistent with the CJEU’s classic case law, which has interpreted public access fisheries agreements broadly; however, it also represents a missed opportunity to address the international scope of a unilateral declaration made by the EU in relation to these issues.

Finally, in Ahlström and Others (C-565/13) and Front Polisario v Council (T-512/12), the CJEU handed down two interesting judgments on various extremely important aspects of the public access fisheries agreement (including the corresponding Protocol) concluded between the EU and Morocco. In the first one, the Court showed the EU’s clear position, regarding the exclusivity clause as a tool to reinforce the role of the public access fisheries agreement in achieving responsible and sustainable fisheries in the waters under the jurisdiction of a third country and also for fighting the reprehensible practice of fishing under private fisheries agreements that encourages overexploitation of resources for profit motives. And, in the second one, the General Court has made the first step forward in the international recognition of the special situation that Western Sahara is living under the de facto control of Morocco, although this African country does not any legitimacy on Western Sahara under international law.