Raül Romeva i Rueda

[30.08.2011]    B[0-0000/2011]
MOTION FOR A RESOLUTION
pursuant to Rule 90(6) of the Rules of Procedure

[and 72 other Members]

European Parliament resolution requesting an opinion from the Court of Justice on the compatibility of the Protocol [Renewal of Moroccan Fisheries Agreement] with the Treaties
 

The European Parliament,

–          having regard to Articles 3(5) and 21 of the Treaty on European Union,
–          having regard to Article 218(6) and (11) of the Treaty on the Functioning of the European Union,
–          having regard to Council Regulation (EC) No 764/2006 of 22 May 2006 on the conclusion of the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco (OJ L 141, 29.5.2006, p.1.1),
–           having regard to the Proposal for a Council Decision on the conclusion of a Protocol setting out the fishing opportunities and financial compensation provided for in the Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco (COM(2011) 313 final) and the request by the Council for the consent of the European Parliament,
–          having regard to Rule 90(6) of its Rules of Procedure,

A.         whereas the first Protocol on the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco expired on 28 February 2011,

B.         whereas a new Protocol setting out the fishing opportunities and financial compensation provided for in the Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco was signed on 13 July 2011,

C.         whereas the conclusion of the new Protocol requires the consent of the European Parliament before it can be finally adopted by the Council,
D.         whereas the application of the new Protocol extends to the waters off the coast of Western Sahara, which territory has been on the United Nations list of Non-Self Governing Territories since 1963,

E.         whereas, in order to comply with international law, economic activities related to the natural resources of a Non-Self-Governing Territory must be carried out for the benefit of the people of such a Territory, and in accordance with their wishes; whereas it has not been demonstrated that the Union’s financial contribution is used for the benefit of the people of Western Sahara;

F.         whereas these obligations bind not only Morocco but also the Union as the primary beneficiary of the Fisheries Partnership Agreement and its Protocol,

1.         Considers that there is legal uncertainty as to whether the new Protocol respects international law with regard to the socio-economic interests and the exploitation of the natural resources of the Non-Self-Governing Territory of Western Sahara, and thus whether it is compatible with the Treaties in this respect;

2.         Decides to seek an opinion from the Court of Justice on the compatibility of the abovementioned Protocol with the Treaties;

3.         Instructs its President to forward this resolution to the Council and the Commission for information and to take the necessary measures to obtain such an opinion from the Court of Justice.

EXPLANATORY MEMORANDUM
on
Motion for a Resolution of the European Parliament requesting an opinion from the European Court of Justice on the compatibility with the EU Treaties of the Protocol to the EU ? Morocco Fisheries Partnership Agreement

 30 August 2011

-The EU-Morocco Fisheries Partnership Agreement (FPA) and its Protocol (“FPA Protocol”) were signed in 2005 and entered into force on 28 February 2007. These agreements required the EU to pay Morocco €36 million per annum in return for access by EU vessels to the fishery resources in “waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco.”

-Western Sahara is not part of Morocco. Western Sahara has been listed as a Non-Self-Governing Territory under the Charter of the United Nations since 1963. In 1975, the International Court of Justice rejected Morocco’s claim to sovereignty over the Territory, and Morocco has never been listed, nor recognized, as the Territory’s administering power. As an illegal occupier, Morocco has no basis for exercising sovereign rights over the Territory, nor to exploit its natural resources.

-Following confirmation from the European Commission that EU vessels were using licences under the FPA to fish the waters adjacent to Western Sahara, and a declaration by the Saharawi Arab Democratic Republic (SADR) of a 200?nautical mile Exclusive Economic Zone, an opinion by the European Parliamentary Legal Service in 2009 confirmed that the application of the FPA and its Protocol to the waters off Western Sahara is inconsistent with international law (see Note 1).

-With the first FPA Protocol due to expire on 27 February 2011, the European Commission rushed in early 2011 to negotiate a renewal with Morocco. The European Parliament was not consulted during this process, despite the requirement in Article 218 TFEU that this should occur.

-A new, one?year Protocol was initialed by negotiators on 25 February 2011, and included a provision allowing its ‘provisional application’ from 28 February 2011 pending the Protocol’s entry into force (the initial Protocol expired on 27 February 2011).

-A confidential ‘ex?post evaluation’ report provided by consultants Océanic Developpement to the Commission on the operation of the FPA from 2007 to 2010 found that it was the least beneficial of all of the EU’s bilateral fisheries agreements, and that it imposes a net economic loss on the EU – it generated only €0.83 in economic activity for every one euro of the €36 million paid annually by the EU.

-Under the new Lisbon Treaty, the consent of the European Council and the European Parliament, respectively, are required for an international agreement – such as the FPA Protocol – to be concluded and to enter into force.

-On 29 June 2011, the EU Council voted by the narrowest of margins to allow the Commission to formally sign and provisionally apply the new one?year FPA Protocol. Austria, Cyprus, Denmark, Finland, the Netherlands, Sweden, and the UK all refused to support the renewal.

-The European Commission and Morocco formally signed the new FPA Protocol on 13 July 2011, and it was transmitted by the Council to the European Parliament (EP) seeking its consent. The new Protocol will be considered by the EP Fisheries Committee (PECH) in early September, with Carl Haglund (ALDE) designated as the Committee’s rapporteur.

-Article 218 (11) of the Treaty on the Functioning of the EU (TFEU) (see Note 2) allows the European Parliament (and the other EU institutions) to refer an ‘envisaged’ agreement to the European Court of Justice (ECJ) for an advisory opinion on whether it complies with the EU Treaties, including the EU’s fundamental principles and general obligations under international law, including the UN Charter (see Note 3).

-In one example, Article 218 (11) of the TFEU was used previously by the European Council to test the compatibility of the draft agreement on the European and Community Patents Court with the EU Treaties. The ECJ found that the draft agreement was incompatible with the EU Treaties.

-A referral to the ECJ needs to be triggered by a resolution of the EP (see Note 4). As explained in a letter of 15 June 2011 from EP President Jerzy Buzek to MEP Andrew Duff, one procedural avenue is for the resolution to be proposed to the plenary by one?tenth [74] of the total number of MEPs.

-On 30 August 2011, MEPs Andrew Duff (ALDE) and Raul Romeva (Greens / ALE) began circulating a proposed resolution pursuant to Rule 90(6) of the EP Rules of Procedure to the EP plenary.

NOTES

Note 1 – 2009 European Parliamentary Legal Service Opinion regarding the EU-Morocco FPA

Drawing on a legal opinion provided by the UN Legal Counsel to the UN Security Council in 2002, the European Parliamentary Legal Service in 2009 confirmed that economic activities relating to the natural resources of the Non-Self-Governing Territory of Western Sahara must be conducted for the benefit of the people of Western Sahara, and in accordance with their wishes. In other words, those seeking to engage in the exploitation of Western Sahara’s natural resources must consult with and have the prior consent of the Saharawi people or their political representatives.

As the internationally recognised representatives of the Saharawi people, the Frente POLISARIO has repeatedly protested against the application of the FPA and its Protocol to the waters adjacent to Western Sahara, including in letters to the European Commission, to EU Member States and to the United Nations Security Council. 

On the basis of its finding that the FPA was not being implemented in conformity with the principles of international law concerning the permanent sovereignty of the Saharawi people over their natural resources – principles which the EP Legal Service found that the European Member States were bound to respect – the Legal Service recommended the suspension of the FPA or the cessation of fishing by EU vessels in Western Sahara’s waters.

Despite this opinion, the European Commission has maintained that the implementation of the FPA and its Protocol was legal, claiming that there was no evidence that benefits were not flowing to the local population, and that the relevant legal obligations fall solely on Morocco as occupier to ensure that benefits under the FPA accrue to the Saharawi. This interpretation constitutes a serious misconstruction of the EU’s international legal obligations.

Note 2 – Article 218(11) TFEU

Article 218 (11) TFEU provides that “the European Parliament…may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the [EU] Treaties.” The Lisbon Treaty introduced new Articles 3(5) and 21 to the Treaty on European Union (TEU), which expressly require the EU to respect and observe “the universality and indivisibility of human rights and fundamental freedoms”, including “the principles of the UN Charter and international law.“

Note 3 – Relevant obligations under international law

Article 3 (5) TEU imposes an obligation on the EU to “contribute to […] the protection of human rights […] as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter”

Article 21 TEU provides that “the Union’s action on the international scene shall be guided by […] the universality and indivisibility of human rights and fundamental freedoms […], and respect for the principles of the United Nations Charter and international law.”

The fundamental right of the people of Western Sahara to self?determination (a referendum to choose how they wish to be governed, like in East Timor in 1999) and to exercise control over their natural resources are international legal rights of the highest order (‘jus cogens’), which the EU and its Member States are bound to respect. These rights have been codified variously within the UN Charter, the major international human rights instruments (such as the International Covenant on Civil and Political Rights) and the case law of the International Court of Justice (ICJ).

The EU’s partnership with Morocco to allow access by EU vessels to exploit the fishery resources of Western Sahara is tainted by the illegality of Morocco’s occupation and is in itself illegal. It thus raises serious questions about the EU’s compliance with the EU Treaties, in particular those provisions requiring the EU to abide by the fundamental principles of international law.

Note 4 – Relevant procedures of the European Parliament

According to Rule 90 (6) of the EP Rules of Procedure, a proposal to refer the new FPA Protocol to the ECJ for an advisory opinion on its compatibility with the EU Treaties can be brought forward to the EP plenary by: (i) a majority of the committee responsible; (ii) a political group; or (iii) at least one?tenth of the MEPs [currently 74 Members].

Once proposed to the plenary, the EP can adopt a resolution by a simple majority to refer the envisaged FPA Protocol to the ECJ for an advisory opinion on its legality. The vote on Parliamentary consent to the FPA Protocol would be suspended pending the ECJ advisory opinion.

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