The EU association regime and Article 3(5) TEU – a postcolonial analysis

von ALINA FUNK

In the coming months, a CJEU decision is expected on EU trade with Western Sahara, the remaining non-self-governing territory of Africa. In 2021, the General Court (GC) reinforced the bindingness of the law of self-determination on the EU. It held that, as a people entitled to self-determination, the Sahrawi are a third party within the meaning of the pacta tertiis rule. Without their consent, they can therefore not be bound by an association agreement between the EU and Morocco. On the occasion of the upcoming CJEU appeal decision in 2024, a postcolonial analysis of the EU association regime is proposed in this (very condensed) blog post.

After introducing my understanding of a postcolonial analysis, the three main arguments are presented: firstly, the association regime was constructed to secure economic access to the (former) colonies. Second, colonial continuities remain intact in the association regime today and the case of Western Sahara perfectly illustrates such continuities. Third, Article 3(5) TEU and the existing law of economic self-determination lends itself will to transcending colonial continuities in EU trade.

A postcolonial analysis of EU trade

Reckoning with its history as well as overcoming colonial continuities in external trade is one of many challenges of the EU today. Colonial imprints have outlived the colonial times and remain intact in EU trade with formerly colonized States (see here, here and here). Fisher-Onar and Nicolaïdis thus propose a two-step-model for a postcolonial analysis of EU trade: analytically, detecting Eurocentric hierarchies and colonial continuities in EU external trade, and normatively, overcoming such continuities in both the Treaties and in practice. It is submitted here that Article 3(5) TEU is the gateway for overcoming colonial continuities in EU trade through implementing the existing law of economic self-determination.

The association regime

The association regime was constructed to secure economic access to the (former) colonies. Association had already been a tool in French colonial administration. It was considered that all colonies had different geographic, social and economic compositions and that the relation to the ‘metropolitan’ State therefore had to be varied. Until today, association agreements are the most common instrument within the Common Commercial Policy, with varying degrees of liberalization ranging from full integration into the common market to the granting of tariff preferences.

Article 198 TFEU regulates the association of the Overseas Countries and Territories (OCTs), and was already included in the Treaty of Rome. It was the blueprint for the EU association regime in place today. While receiving special treatment, the OCTs are considered non-European. The travaux préparatoire of the Treaty of Rome reveal that the term ‘people’ was deliberately avoided in the original provision of Article 198 TFEU. Instead, and until today, the people of the OCTs are referred to as inhabitants. Any claims to self-determination that could thwart the economic benefits of EU trade with these territories were delegitimized. In other words: ‘the Treaty of Rome regulates colonialism amidst decolonization.’

The case of Western Sahara

Colonial continuities remain intact in the association regime today and the case of Western Sahara perfectly illustrates such colonial continuities. Western Sahara was colonized by Spain and is still listed as a non-self-governing territory, with Spain as its administering power. One example of such continuity is that the overwhelming majority of fishing vessels granted quotas in the abundant Sahrawi waters are Spanish. Morocco has been occupying Western Sahara since 1975 and claims sovereignty over its territory, but it claims have no basis under international law and have been condemned by the UN repeatedly. Notwithstanding, the EU has concluded several association agreements with Morocco, which the latter openly applies to the territory of Western Sahara. In the latest round of amendments, the Council extended the territorial scope of the central association agreement to expressly include Sahrawi territory.

Detecting colonial continuities

In spite of all criticism, the Council justifies the extension to Western Sahara in its 2019 decision, in which the conclusion of the agreement explicitly including Western Sahara is approved. In a somewhat circular argument it held that ‘[i]t should be possible for Union fleets to continue the fishing activities they had pursued since the entry into force of the Agreement, and the scope of application of the Agreement should be defined so as to include the waters adjacent to the territory of Western Sahara.’ The Council proposed a standard of objective economic benefit – irrespective of Sahrawi consent, exploiting their resources and trading with the EU was economically beneficial for the people concerned, and therefor legal. This is another example of Eurocentric hierarchy in external trade – prioritizing economic growth at the expense of the freely expressed will. Similarly, a Commission Report found that ‘Western Sahara shows the characteristics of a market economy in expansion, and the main industries are fishing and fish processing, phosphate mining, […], trade and craft industries.’ This is both cynical and unfounded: the referenced industries are Moroccan-controlled and most NGOs included in the EU list of interview partners later reported they were never spoken to.

Article 3(5) TEU – transcendence by strict observance

Article 3(5) TEU and the law of economic self-determination lends itself to transcending continuities in EU trade. Recently, the GC has reviewed the amendments of the EU-Morocco agreements in its Front Polisario v Council decision of 2021, appealed by the Commission with a CJEU decision expected for 2024. As already introduced at the beginning, the strict-observance-obligation of Article 3(5) TEU reinforces obligations of the EU to promote the realization of the principle of equal rights and self-determination of peoples.

The Council and the CJEU are on opposite ends of the spectrum when it comes to recognizing Sahrawi self-determination. The former implies that economic benefit is the decisive standard of economic self-determination, while the latter insists on consent. The GC has demonstrated how to implement economic self-determination within EU external action, but it remains to be seen whether the CJEU will follow its lead. I submit that it seems unlikely that the appeal will be successful, seeing as the ultimate ground for invalidating the Council decision in 2021 was a ruling of the CJEU of 2016 on Sahrawi self-determination, which the GC found was not adequately implemented by the Council. Then again, the CJEU has never invalidated an EU act on account of its incompatibility with the right of self-determination. But there is always a first time.

Zitiervorschlag: Funk, Alina, The EU association regime and Article 3(5) TEU – a postcolonial analysis, JuWissBlog Nr. 13/2024 v. 29.02.2024, https://www.juwiss.de/13-2024/.

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Alina Funk, associationagreements, EU, postcolonialanalysis, selfdetermination
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