The Polisario II judgment: tensions with International Law and with the EU Political Institutions

On 4 October 2024, the Court of Justice rendered a landmark ruling in Polisario II (C‑779/21 P and C‑799/21 P). The case was brought by Front Polisario, a self-determination movement of the Sahrawi people of Western Sahara. Western Sahara is a non-self-governing territory which since 1975 has been occupied and largely controlled by Morocco. While the UN and the International Court of Justice recognises the right to self-determination of Western Sahara, the Sahrawi people never had the chance to exercise this right and its legal personality remains contentious in the international plane (Naili (2022)). The CJEU has never had to deal directly with this conflict or the issue of statehood, but has addressed it indirectly in cases concerning the practice of importing products from Western Sahara to the EU under the EU-Morocco Association Agreement.

The EU-Morocco Association Agreement (AA) has been applied to products imported from Western Sahara. This practice was challenged by Front Polisario in a series of cases. When the Court of Justice decided in 2016 (C-104/16 P) and 2018 (C-266/16) that the EU-Morocco AA could not possibly apply to Western Sahara, as this would be in violation of international law, the Council and Commission interpreted it in a minimalistic and instrumental manner. In 2019, the Council concluded amendments to the EU-Morocco AA as well as a new Sustainable Fisheries Partnership Agreement (SFPA) that expressly foresees its application to the waters of Western Sahara. The ratification of these new agreements was struck down by the General Court in 2021 (T-279/19; T-344/19 and T-356/19). The Court of Justice upheld this ruling on appeal in Polisario II. However, the reasoning it applied differs in part from that of the General Court. Polisario II is a salient ruling for international law and for European politics. Other blog posts have already launched debates about the implications of this judgment for consent and the law of occupation in international law. Building upon that, we highlight two controversies remaining relating to this judgment – tensions with international law and with European political institutions.