European Union Responds to Adala UK on Trade Agreements and Sahrawi Consent
The European Commission’s reply of 19 February 2026 to Adala UK’s letter of 7 December 2025 is courteous in form yet notably restrained in substance. While reaffirming the European Union’s support for the United Nations-led political process concerning Western Sahara, it does not address the central legal question raised: whether Council Decision (EU) 2025/2022 complies with binding judgments of the Union’s highest court and with established principles of international law.
For a Union that defines itself as a community founded upon the rule of law, this omission is not insignificant.
The Authority of the Court of Justice
The jurisprudence of the Court of Justice of the European Union leaves little room for ambiguity. In its judgments of 21 December 2016 (Case C-104/16 P) and 4 October 2024 (Joined Cases C-779/21 P and C-799/21 P), the Court established with clarity that:
- Western Sahara is separate and distinct from the Kingdom of Morocco.
- Morocco has no recognised sovereignty or administering mandate over the territory.
- EU–Morocco agreements may apply to Western Sahara only with the free and genuine consent of the people of that territory.
These findings are binding as a matter of EU constitutional law. They are not political recommendations nor matters of diplomatic discretion. In the Union’s legal order, judicial authority is definitive.
It therefore follows that any application of EU trade or association arrangements to Western Sahara must be demonstrably consistent with this jurisprudence. A failure to articulate how such consistency is achieved inevitably invites scrutiny.
Consent Is Not a Formality
The distinction between consultation and consent is neither semantic nor procedural. It is substantive.
Consultation may involve engagement with stakeholders, economic operators, or local administrative bodies. Consent, by contrast, presupposes legitimate representation of the people concerned as a distinct legal subject.
Within the United Nations framework, the Frente Polisario is recognised as the representative of the Sahrawi people for the purposes of the peace process. Whether one finds that politically convenient is immaterial to the legal analysis. The Court required consent of the people of Western Sahara, not acquiescence of bodies established under Moroccan authority.
If the European Union maintains that the necessary consent has been obtained, it bears the responsibility of explaining the legal and methodological basis upon which that conclusion rests. Clarity in such matters is not optional; it is an essential feature of lawful governance.
Self-Determination and the Duty of Non-Recognition
The right of the Sahrawi people to self-determination is firmly embedded in the UN Charter and international covenants. It is widely regarded as possessing peremptory status in international law.
The obligation of non-recognition of situations arising from serious breaches of peremptory norms—articulated by the International Court of Justice in its 1971 Namibia Advisory Opinion—binds states and international organisations alike.
The European Union has consistently stated that it does not recognise Moroccan sovereignty over Western Sahara. However, the practical application of trade or association agreements to the territory, in the absence of clearly established consent, risks being perceived as conferring a degree of legitimacy upon a disputed administrative arrangement.
Perception in international law matters. Consistency matters rather more.
Human Rights and the Union’s External Responsibilities
The EU Charter of Fundamental Rights applies to the Union’s external action. Where EU agreements generate tangible economic and regulatory effects within a territory, the institutions are obliged to ensure that fundamental rights are neither undermined nor circumvented.
Reports from field observers point to allegations of marginalisation, constraints on political expression, and unequal distribution of economic benefit within Western Sahara. Whether every allegation is borne out or not, their existence underscores the necessity of rigorous and independent human-rights impact assessment prior to implementation.
Due diligence, to be credible, must be demonstrably thorough and transparent.
The Question of Credibility
The European Union frequently urges third countries to respect judicial independence, adhere to international law, and uphold fundamental rights. Such exhortations carry weight only insofar as the Union itself adheres scrupulously to the same standards.
The authority of the Court of Justice of the European Union is foundational to the Union’s legal identity. Any appearance of selective compliance—particularly where commercial or geopolitical interests are engaged—inevitably diminishes that authority.
The issue at stake is not solely the status of Western Sahara. It concerns the coherence of the Union’s constitutional order and the integrity of its external action.
Conclusion
The Commission’s response affirms commitment to the UN-led political process, a position entirely consonant with longstanding EU policy. Yet it leaves unaddressed the decisive legal question: how does Council Decision (EU) 2025/2022 comply with binding judicial requirements that demand the free and genuine consent of the people of Western Sahara?
Political prudence is understandable. Legal ambiguity is less so.
If the European Union is to remain credible as a defender of the rule of law and human dignity, it must provide a clear and reasoned account of how its actions in Western Sahara accord with its own Court’s jurisprudence and with the settled principles of international law.
Anything less risks undermining not only the rights of the Sahrawi people, but the very legal discipline upon which the Union rests.