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Fishing in Troubled Waters

ECJ 27 February 2018, Case C-266/16, R (on the application of Western Sahara Campaign UK) v Commissioners for Her Majesty’s Revenue and Customs, Secretary of State for Environment, Food and Rural Affairs

Published online by Cambridge University Press:  16 November 2018

Jed Odermatt
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Case Notes
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European Constitutional Law Review , Volume 14 , Issue 4 , December 2018 , pp. 751 - 766
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© 2018 The Authors 

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Footnotes

*

Lecturer, The City Law School, City, University of London.

References

1 See Hummelbrunner, S. and Prickartz, A., ‘It’s not the Fish that Stinks! EU Trade Relations with Morocco under the Scrutiny of the General Court of the European Union’, 32(83) Utrecht Journal of International and European Law (2016) p. 19 CrossRefGoogle Scholar .

2 Opinion, ‘Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories’, James Crawford SC, para. 131, available at <www.tuc.org.uk/sites/default/files/tucfiles/LegalOpinionIsraeliSettlements.pdf>, visited 27 October 2018.

3 ECJ 21 December 2016, Case C-104/16, Council of the European Union v Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario). For commentary on this judgment, see Odermatt, J., ‘Council of the European Union v. Front Populaire pour la Libération de la Saguia-El-Hamra et Du Rio de Oro (Front Polisario)’, 111 American Journal of International Law (2017) p. 731 CrossRefGoogle Scholar ; Cannizzaro, E., ‘In Defence of Front Polisario: The ECJ as a global jus cogens maker’, 55(2) Common Market Law Review (2018) p. 569 Google Scholar .

4 Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, was signed in Brussels on 26 February 1996, OJ 2000 L 70, p. 2 (‘Association Agreement’).

5 Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco, OJ 2006 L 141, p. 4 (‘Fisheries Partnership Agreement’).

6 Protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial contribution provided for in Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, OJ 2013 L 328, p. 2 (‘2013 Protocol’).

7 Art. 3(5) TEU.

8 United Nations Convention on the Law of the Sea, signed at Montego Bay, 10 December 1982, entry into force 16 November 1994, UNTS 1833.

9 ECJ 27 February 2018, Case C-266/16, Western Sahara Campaign UK v Commissioners for Her Majesty’s Revenue and Customs, Secretary of State for Environment, Food and Rural Affairs (‘Western Sahara Campaign UK’), para. 32.

10 Western Sahara Campaign UK, supra n. 9, para. 48.

11 Western Sahara Campaign UK, supra n. 9, para. 50.

12 Western Sahara Campaign UK, supra n. 9, para. 51.

13 Art. 19(3)(b) TEU.

14 See K. Lenaerts, I. Maselis and K. Gutman, EU Procedural Law (Oxford University Press 2014) p. 459-460.

15 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980).

16 ECJ 25 February 2010, Case C-386/08, Firma Brita GmbH v Hauptzollamt Hamburg-Hafen.

17 Western Sahara Campaign UK, supra n. 9, para. 56.

18 Art. 11, Fisheries Partnership Agreement.

19 Art. 5, Fisheries Partnership Agreement, quoted by the Grand Chamber at para. 57.

20 Western Sahara Campaign UK, supra n. 9, para. 59.

21 Front Polisario, supra n. 3, para. 95.

22 In particular, the referring court asked ‘Is the [Fisheries Partnership Agreement] (as approved and implemented by Regulation No 764/2006, Decision 2013/785 and Regulation No 1270/2013) valid, having regard to the requirement under Art. 3(5) TEU to contribute to the observance of any relevant principle of international law and respect for the principles of the Charter of the United Nations and the extent to which the [Fisheries Agreement] was concluded for the benefit of the Saharawi people, on their behalf, in accordance with their wishes, and/or in consultation with their recognised representatives?: Western Sahara Campaign UK, para. 41.

23 Western Sahara Campaign UK, supra n. 9, para. 73.

24 Western Sahara Campaign UK, supra n. 9, para. 79.

25 ECJ 10 January 2018, Case C-266/16, Western Sahara Campaign UK, The Queen v Commissioners for Her Majesty’s Revenue and Customs, Secretary of State for Environment, Food and Rural Affairs, Opinion of AG Wathelet, para. 144.

26 Western Sahara Campaign, supra n. 9, para. 81.

27 See Odermatt, J., ‘The Use of International Treaty Law by the Court of Justice of the European Union’, Cambridge Yearbook of European Legal Studies (2015) pp. 136–137 Google Scholar .

28 Opinion of AG Wathelet, supra n. 25, para. 75.

29 ECJ 30 September 2003, Case C-140/02, Anastasiou and Others v Minister of Agriculture, Fisheries and Food.

30 See Talmon, S, ‘The Cyprus Question Before the European Court of Justice’, 12 European Journal of International Law (2001) p. 727 CrossRefGoogle Scholar .

31 Brita, supra n. 16.

32 ECJ 24 November 1992, Case C-286/90, Anklagemyndigheden v Peter Michael Poulsen and Diva Navigation Corp.

33 See for example ECJ 21 December 2011, Case C-366/10, Air Transport Association of America and Others v Secretary of State for Energy and Climate Change (‘ATAA’), para. 101: ‘Under Article 3(5) TEU, the European Union is to contribute to the strict observance and the development of international law. Consequently, when it adopts an act, it is bound to observe international law in its entirety, including customary international law, which is binding upon the institutions of the European Union’.

34 ATAA, supra n. 33, para. 107.

35 Opinion of AG Wathelet, supra n. 25, para. 92.

36 Case of the Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America) [1954] ICJ Reports p. 19.

37 Monetary Gold, supra n. 36, p. 17.

38 Case Concerning East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 102, paras. 28 and 34.

39 Zamir, N., ‘The Applicability of the Monetary Gold Principle in International Arbitration’, 33 Arbitration International (2017) p. 523 CrossRefGoogle Scholar .

40 Opinion of AG Wathelet, supra n. 25, para. 57.

41 Case T-180/14, Front Polisario v Council; Case T-275/18 Front Polisario v Council. See ‘Polisario initiates new law suit against EU-Morocco fish deal’ Western Sahara Resource Watch, 18 June 2018.

42 G. Van der Loo, ‘The Dilemma of the EU’s Future Trade Relations with Western Sahara: Caught Between Strategic Interests and International law?’ CEPS Commentary, 28 April 2018, available at <www.ceps.eu/system/files/GVdL_WesternSahara.pdf>, visited 27 October 2018.

43 Proposal for a Council Decision on the conclusion of the agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part (11 June 2018) and Proposal for a Council Decision relating to the signature, on behalf of the European Union, of the Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part (11 June 2018).

44 Commission Staff Working Document, Report on benefits for the people of Western Sahara and public consultation on extending tariff preferences to products from Western Sahara (2018) p. 31.

45 ‘This proposal is presented following the ruling by the Court of Justice of the European Union of 27 February 2018 in Case C-266/16 (Western Sahara Campaign UK) by which the Court holds that the waters adjacent to the territory of Western Sahara are not part of the fishing zone referred to in the Fisheries Agreement’. Explanatory Memorandum, Recommendation for a Council Decision to authorise the Commission to open negotiations on behalf of the European Union for the amendment of the Fisheries Partnership Agreement and conclusion of a Protocol with the Kingdom of Morocco (21 March 2018).

46 Annex to the Recommendation for a Council decision to authorise the Commission to open negotiations on behalf of the European Union for the amendment of the Fisheries Partnership Agreement and the conclusion of a Protocol with the Kingdom of Morocco.

47 See Statement by Sweden: ‘In view of the rejections to the consultation process and/or the draft agreement, and particularly the objections of Polisario, the official representative of the people of Western Sahara in the UN process, Sweden is not satisfied that the outcome of the consultation process can be said to constitute the free and informed consent of the people of Western Sahara’. Summary Record, Permanent Representatives Committee, 11 and 13 July 2018 <data.consilium.europa.eu/doc/document/ST-11441-2018-INIT/en/pdf>, visited 27 October 2018.