Western Sahara Campaign UK, R (on the application of) v HM Revenue and Customs

A national court should ordinarily refer an EU-law validity challenge to the CJEU where there is a credible arguable case and the CJEU has exclusive competence to determine the validity of the measure. The domestic court need not finally resolve difficult questions of international law at the reference stage.

An EU institution’s broad discretion in external relations does not permit indifference to an unlawful occupation or to the internationally recognised limits of a state’s territory. Where agreements may apply to natural resources in a non-self-governing territory, issues concerning self-determination, consultation, representation and benefit to the territory’s people may disclose an arguable manifest error requiring a reference.

The claimant, a voluntary organisation supporting the self-determination of the Saharawi people, brought two related judicial review claims. One challenged HMRC’s treatment of goods originating in Western Sahara as Moroccan goods for preferential tariff purposes. The other challenged DEFRA’s intended application of the 2006 EU-Morocco Fisheries Partnership Agreement to fishing in Western Saharan waters.

The claims concerned the validity and interpretation of EU measures. The parties accepted that only the CJEU could determine their legality, but disputed whether the domestic court should refer questions under Article 267 TFEU. The defendants argued that the issues were matters of public international law, that the CJEU might decline jurisdiction, and that the Commission could not arguably have made a manifest error.

1. Reference to the CJEU. The court ordered a reference under Article 267 TFEU. The claimant’s challenge was real and genuine, and the validity of the disputed EU measures was decisive of both claims. There were no disputed facts requiring determination by the national court. The CJEU had exclusive competence to decide the legal issues.
2. Applicable threshold. The court was not required to decide the international-law questions finally. It was sufficient that the challenge was credibly arguable and could not confidently be said to be bound to fail. The court applied the approach in R v International Stock Exchange ex parte Else [1993] QB 534.
3. Territorial scope and international law. The court distinguished an unresolved boundary dispute from the present situation. In Odigitria AAE v Council of the European Union and Commission of the European Communities T-572/93, the Community’s agreements did not require it to resolve a dispute about the location of a sovereign boundary. Here, however, Morocco’s claim to sovereignty over Western Sahara was not recognised by the international community or the EU. The issue was whether an EU body committed to the UN Charter could contract with an administering power concerning territory outside its recognised boundaries.
4. Arguable manifest error. The CJEU’s approach in Air Transport Association of America and others v Secretary of State for Energy and Climate Change Case C-366/10 showed that customary international law could be relevant to the validity of EU acts, subject to review for manifest error. The court accepted that the Commission might reasonably conclude that occupation did not automatically prevent agreements concerning natural resources. But the absence of clear consideration of who represented the Saharawi people, whether consultation or consent was required, and whether benefits were directed to the indigenous population raised an arguable case of manifest error.
5. Delay and standing. Delay did not bar the reference. The claims concerned an alleged continuing breach, and no substantial hardship, prejudice or detriment to good administration had been shown. The claimant had standing in English law, despite not being an exporter or fishing-licence applicant.
6. The parties were given an opportunity to agree the questions. The court identified a possible distinction between the Fisheries Agreement’s reference to waters under Moroccan sovereignty or jurisdiction and the Association Agreement’s reference to Moroccan territory.

This was a first-instance judicial review decision. The judgment records that permission had been granted by Walker J on 23 April 2015. The High Court directed a reference to the CJEU under Article 267 TFEU; no lower-court judgment was under appeal.