Analysis and Reflections: A Constitutional Reading of the Judgment in European Commission v Front populaire pour la liberation de la Saguia-el-Hamra et du Rio de oro (Front Polisario) (C-778/21 P and C-798/21 P)

Front Polisario, a nationalist liberation movement of the disputed territory of Western Sahara, challenged the conclusion of agreements between the European Union (EU) and Morocco that have effects also on Western Sahara. Because the Sahrawis’ consent, either explicit or implicit, was not obtained by the EU during the negotiations of those agreements, these cannot be lawfully concluded by the EU. The judgment is the last of a series of decisions by the Court of Justice of the European Union (CJEU) on the territory of Western Sahara. This analysis provides a constitutional reading of the judgment, interpreting it from the perspective of the EU as an autonomous legal order, governed by a hierarchy of sources and by selective openness to international law.