Table of Contents: Preliminary remarks: judicial review of international agreements between self-restraint and judicial activism. – II. The decision of the General Court in Front Polisario and the procedural approach. – III. The substantive approach in the decision of the Court of Justice in Front Polisario. – IV. The decision of the Court of Justice between self-restraint and activism. – V. Concluding remarks.
Abstract: In Front Polisario (judgment of 21 December 2016, case C-104/16 P, Council of the European Union v. Front Polisario [GC]), the Court of Justice was called to assess the validity of a decision that had concluded an agreement providing for reciprocal liberalisation measures on agriculture and fishery products between the EU and the Kingdom of Morocco. The agreement had been implemented by the parties as covering also products originating from Western Sahara, a non-self-governing territory militarily occupied by Morocco. In its previous case law, the Court of Justice had mainly limited to procedural aspects the judicial review of acts related to the EU’s foreign relations. In Front Polisario it took a different view, and assessed the validity of the decision also on the merits. This Insight examines the technique used by the Court of Justice, and tries to identify which reasons led it to depart from its traditional standard of judicial review.
Keywords: judicial review of political choices – external action – Council competences – CJEU competences – principle of self-determination – violation by the EU of international peremptory law.
* PhD in International Law and European Union Law, University of Rome “La Sapienza”, email@example.com.