The Brief, powered by GIE — The law vs EU diplomacy

Oliver Noyan

Last week, the EU’s General Court handed the European Commission a major defeat when it struck down the EU’s fisheries agreement with Morocco on the grounds that it also, illegally, covered Western Sahara.

While the annulment of the agreements with Morocco was praised by human rights advocates, it could have serious repercussions on the Union’s diplomatic ambitions.

EU courts have already ruled on three other occasions that the EU’s fisheries and wider trade agreements with Morocco do not include the waters adjacent to Western Sahara. So, what’s the big deal then, you might ask?

Well, while earlier versions of the agreement did not explicitly mention Western Sahara, this time around, the Commission explicitly outlined that Western Sahara was to be included in the scope of the agreement. The deal was ratified by both the European Parliament and the member states.

The dispute over Western Sahara is a long-running frozen conflict. Morocco claims sovereignty over the territory. The Sarahwi independence movement, the Polisario Front, demands a referendum on independence.

Attempts by the United Nations to mediate a compromise have made glacial progress. This row will probably be almost unchanged in ten years’ time.

However, the Court’s ruling could, and perhaps should, have been foreseen.

The Court has repeatedly stated that Polisario Front is the legitimate representative of the people of Western Sahara and that no agreement can be concluded without the consent of the Sahrawi people.

The Commission tried to get around the consent question by instigating a separate consultation process with a select group of local businesses, bypassing Polisario. The Court, unsurprisingly, decided that this did not amount to consent.

International diplomacy is a messy business. Agreements that are reached behind closed doors, package deals and careful cost-benefit analyses are among the standard toolsets of every diplomatic endeavour.

In the meantime, the EU executive is stuck in a bind. It makes sense, both economically and politically, to strengthen relations with Morocco, and some member states are quite keen to do it.

Rabat, for its part, is an assertive diplomatic player. Having seen the United States change policy to recognise its sovereignty over Western Sahara, it now wants the EU to follow suit. With member states divided on the matter, that is not going to happen.

The Court does not and, indeed, should not be concerned by that. Politicised courts chart a  route that curtails the rule of law. Any signs that the Commission does not respect the rule of law would be manna from heaven for the likes of Poland and Hungary.

The question for the Commission is – particularly given that the ruling should have been expected – how it navigates this delicate balancing act, offering incentives to Morocco, and salvaging the trade agreements, while respecting the Court ruling.

It won’t be easy. When law stymies diplomacy, it rarely is.

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The Roundup

Energy Commissioner Kadri Simson says that by the end of the year, she will “propose a reform of the gas market and will review in that context issues around storage and security of supply.” Soaring gas prices have hit the poorest EU citizens hard, but Simson says there are sufficient reserves to last the winter.

And as energy prices spike across the region, Spain has imposed an ‘exceptional tax’ in an attempt to offset the rising prices. But stakeholders warn that the tax is “putting at risk future investment in renewables” needed for the production of green hydrogen.

Stakeholders have argued that the European Commission purposefully delayed the release of its controversial report on the Farm to Fork strategy until August, in order to limit fanfare and backlash. Now, EURACTIV found that the report was actually ready for publication in January.

German Agriculture Minister Julia Klöckner has urged the European Commission to require more consistent sustainability standards when negotiating future free trade agreements with third countries. ​And stakeholders insist that agricultural imports from third countries “cannot undermine the high and cost-intensive EU standards on consumer, environmental, climate and animal protection.”

Thales, a flagship French security and defence company, has announced its new partnership with Google. The company plans to create a sovereign cloud service with the “trusted cloud” label from the French government, which is set to be operational by 2023.

A consensus is forming in Brussels regarding stronger regulation for online platforms, and Facebook is at the top of the list. Following Facebook’s service outage and the publication of the ‘Facebook Files,’ policymakers are looking to tackle Facebook’s lax content moderation, the monetisation of disinformation and more.

Germany’s Greens and the liberal FDP have announced that they want to launch coalition talks with Olaf Scholz’s Social Democrats, rather than the conservative CDU/CSU, which is the party of outgoing Chancellor Angela Merkel. A coalition is not yet set in stone, but the first talks are set for Thursday.

At the Western Balkans summit in Brdo, Slovenia, Bulgarian President Rumen Radev said that the “subtle erasure” of Bulgarian identity in North Macedonia must stop before Bulgaria lifts its veto on Skopje’s EU accession negotiations. Bulgaria also insists on the preparation of a roadmap with “written guarantees,” which North Macedonia would provide in the negotiation process.

The European Commission has released a new strategy against anti-Semitism, which aims to combat antisemitic violence and online content. Leaders have made available €24 million and will create a “Europe-wide network of trusted flaggers and fact-checkers, including Jewish organizations.” 

France has announced new aid to guarantee the rights of people with intellectual disabilities, including the extension of the Handicap Compensation Benefit to people with mental health problems and cognitive or neurodevelopmental disorders. The plan will first be tested in Ardennes, Gironde, and Vosges before national implementation next February.

Courtesy: (EURACTIV)