OPINION OF ADVOCATE GENERAL
WATHELET
delivered on 13 September 2016 (1)
Case C‑104/16 P
Council of the European Union
v
Front Populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario)
(Appeal — Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco — Reciprocal liberalisation of agricultural products, processed agricultural products, fish and fishery products)
Table of contents
I — Introduction
II - Background to the dispute
III - The action before the General Court and the judgment under appeal
IV — The procedure before the Court of Justice
V — Admissibility of the appeal
A — Arguments of the parties
B — Assessment
VI — Substance of the appeal
A — Principal considerations
1. The first part of the second ground of appeal in so far as it concerns the application of the Liberalisation Agreement to Western Sahara
a) Arguments of the parties
b) Assessment
i) The status of Western Sahara as determined by Article 73 of the United Nations Charter and its consequences
ii) Non-recognition by the European Union and its Member States of the Kingdom of Morocco’s sovereignty over Western Sahara
iii) Does de facto application to the territory of Western Sahara make it ‘subsequent practice’?
iv) The relative effect of treaties (pacta tertiis nec nocent nec prosunt)
B — In the alternative
1. The first ground of appeal, alleging errors in law relating to the Front Polisario’s capacity to be a party to proceedings before the EU Courts
a) Arguments of the parties
b) Assessment
2. The second ground of appeal, alleging errors in law relating to the Front Polisario’s standing to bring proceedings
a) The first part, in so far as it concerns the nature of the contested decision
i) Arguments of the parties
ii) Assessment
b) The second part, relating to direct concern in relation to the Front Polisario
i) Arguments of the parties
ii) Assessment
– Can Council decisions on the conclusion of international agreements be of ‘direct concern’ to non-privileged applicants?
– The concepts of direct concern and direct effect
c) The third part, relating to individual concern in relation to the Front Polisario
i) Arguments of the parties
ii) Assessment
C — In the further alternative
1. The third ground of appeal, alleging an error in law relating to the General Court’s review of the discretion enjoyed by the Council in the field of external economic relations
a) Arguments of the parties
b) Assessment
2. The fourth ground of appeal, alleging that the General Court ruled ultra petita
a) Arguments of the parties
b) Assessment
3. The fifth ground of appeal, alleging errors in law relating to the application of the Charter of Fundamental Rights of the European Union and the principle of permanent sovereignty over natural resources
a) The first part, relating to the obligation to examine the question of respect for fundamental rights
i) Arguments of the parties
ii) Assessment
– The admissibility of the plea in law in the application for annulment brought by the Front Polisario alleging infringement of fundamental rights
– The complaint alleging a misinterpretation and misapplication of the Charter of Fundamental Rights
b) The second part, relating to the obligation to examine the conformity of the Liberalisation Agreement with Article 73 of the United Nations Charter and the principle of permanent sovereignty over natural resources
i) Arguments of the parties
ii) Assessment
4. The sixth ground of appeal, alleging an error in law relating to the extent of the annulment of the contested decision
a) Arguments of the parties
b) Assessment
VII - Costs
A — Principal and alternative considerations
B — In the further alternative
VIII - Conclusion
I – Introduction
1. By its appeal the Council of the European Union is seeking to have set aside the judgment of the General Court of the European Union of 10 December 2015, Front Polisario v Council (T‑512/12, EU:T:2015:953, ‘the judgment under appeal’), by which the General Court partially annulled Council Decision 2012/497/EU of 8 March 2012 on the conclusion of an Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part (2) (‘the contested decision’) ‘in so far as it approves the application of that agreement to Western Sahara’.
2. The present case is highly important in that it raises a number of difficult questions. First, the Court will have an opportunity to clarify whether an organisation like the Front Populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) has the capacity, legal interest and standing to bring proceedings in accordance with the fourth paragraph of Article 263 TFEU. In this context, the Court will have to resolve the question whether Western Sahara falls within the territorial scope of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, signed in Brussels on 26 February 1996 and approved on behalf of the Communities by Council and Commission Decision 2000/204/EC,ECSC of 24 January 2000 (3) (‘the Association Agreement’), and the Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, signed in Brussels on 13 December 2010 (4) (‘the Liberalisation Agreement’).
3. Second, the Court could be called on to clarify the depth of the judicial review conducted by the EU Courts in areas such as external economic relations where the Council enjoys wide discretion and to state its position on the facts which the Council should take into account before approving an international agreement concluded with a third country. In this context, the Court will have to address complex issues of public international law concerning the status of Western Sahara and its people’s right to self-determination.
4. It is also necessary to bear in mind the importance of the present case for the international community and the future of Moroccan and other investments in Western Sahara. This was mentioned by the Secretary-General of the United Nations (UN), Mr Ban Ki-moon, in the section entitled ‘Human rights’ of his report of 19 April 2016 on the situation concerning Western Sahara. (5)
II – Background to the dispute
5. According to Article 1 of its constituting document, the Front Polisario is ‘a national liberation movement, the fruit of the long resistance of the Sahrawi people against the various forms of foreign occupation’ and was created on 10 May 1973.
6. The historical and international context in which it was created and subsequent developments in the situation in Western Sahara are described in paragraphs 1 to 16 of the judgment under appeal.
7. As is stated in those paragraphs, Western Sahara is a territory in north-west Africa which was colonised by the Kingdom of Spain in the 19th century before becoming a Spanish province, then being added to the list of non-self-governing territories for the purposes of Article 73 of the United Nations Charter, on which it still appears. (6)
8. On 20 December 1966, the UN General Assembly adopted Resolution 2229 (XXI) on the Question of Ifni and the Spanish Sahara, reaffirming the ‘inalienable right of the people … of the Spanish Sahara to self-determination’. It requested the Kingdom of Spain, as the administering power, to ‘determine, at the earliest possible date, in conformity with the aspirations of the indigenous people of Spanish Sahara and in consultation with the Governments of Mauritania and Morocco and any other interested party, the procedures for the holding of a referendum under [UN] auspices with a view to enabling the indigenous population of the Territory to exercise freely its right to self-determination’.
9. On 20 August 1974, the Kingdom of Spain informed the UN that it proposed to organise a referendum in Western Sahara under UN auspices.
10. On 16 October 1975, following a request made by the UN General Assembly, the International Court of Justice handed down its Advisory Opinion on Western Sahara (ICJ Reports 1975, p. 12), in paragraph 162 of which it concluded that:
‘The materials and information presented to the Court show the existence, at the time of Spanish colonisation, of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara. They equally show the existence of rights, including some rights relating to the land, which constituted legal ties between the Mauritanian entity, as understood by the Court, and the territory of Western Sahara. On the other hand, the Court’s conclusion is that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of [Resolution of the UN General Assembly of 14 December 1960, 1514 (XV) on the granting of independence to colonial countries and peoples (“Resolution 1514 (XV)”)] in the decolonisation of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.’
11. On 14 November 1975, the Kingdom of Spain, the Kingdom of Morocco and the Islamic Republic of Mauritania signed a declaration under which the powers and responsibilities of the Kingdom of Spain, as the administering power in Western Sahara, would be transferred to a temporary tripartite administration.
12. In the autumn of 1975 the situation in Western Sahara deteriorated. In a speech delivered on the same day as the publication of the abovementioned Opinion of the International Court of Justice, King Hassan II of Morocco, who took the view that ‘everyone’ had recognised that Western Sahara belonged to Morocco and that ‘it only remained for the Moroccans to occupy [their] territory’, called for the organisation of a ‘peaceful march’ towards Western Sahara with the participation of 350 000 persons.
13. The UN Security Council (‘the Security Council’) called on the parties concerned and the interested parties to show restraint and moderation. It also expressed its concern with regard to the serious situation in the region with three resolutions on Western Sahara, namely Resolutions 377 (1975), 379 (1975) and 380 (1975). In the last of those resolutions, it deplored the holding of the march announced by the King of Morocco and called upon the Kingdom of Morocco immediately to withdraw from the territory of Western Sahara all the participants in the march.
14. On 26 February 1976, the Kingdom of Spain informed the UN Secretary-General that as of that date it was withdrawing its presence from Western Sahara and considered itself exempt from any responsibility of any international nature in connection with the administration of the territory.
15. In the meantime, an armed conflict had begun between the Kingdom of Morocco, the Islamic Republic of Mauritania and the Front Polisario.
16. On 10 August 1979, the Islamic Republic of Mauritania concluded an agreement with the Front Polisario under which it renounced any territorial claim to Western Sahara.
17. In its Resolution 34/37 of 21 November 1979 on the Question of Western Sahara, the UN General Assembly reaffirmed the ‘inalienable right of the people of Western Sahara to self-determination and independence’ and welcomed the Mauritanian-Sahrawi Agreement signed in Algiers on 10 August 1979 between the Islamic Republic of Mauritania and the Front Polisario. It also deeply deplored ‘the aggravation of the situation resulting from the continued occupation of Western Sahara by Morocco and the extension of that occupation to the territory recently evacuated by Mauritania’. It urged the Kingdom of Morocco to join in the peace process and, to that end, it recommended that the Front Polisario, ‘the representative of the people of Western Sahara, should participate fully in any search for a just, lasting and definitive political solution of the question of Western Sahara’.
18. The armed conflict between the Front Polisario and the Kingdom of Morocco continued until, on 30 August 1988, the parties accepted, in principle, proposals for settlement put forward, in particular, by the UN Secretary-General and providing, in particular, for the proclamation of a ceasefire and the organisation of a referendum on self-determination under UN supervision.
19. To this day, that referendum has still not been held.
20. Currently, most of the territory of Western Sahara is controlled by the Kingdom of Morocco, which claims sovereignty over Western Sahara, while the Front Polisario controls a smaller, very sparsely populated area in the east of the territory. The territory controlled by the Front Polisario is separated from that controlled by the Kingdom of Morocco by a wall of sand constructed by the latter and guarded by the Moroccan army. A large number of refugees from Western Sahara live in camps administered by the Front Polisario, situated in Algerian territory close to Western Sahara.
III – The action before the General Court and the judgment under appeal
21. By application lodged at the Registry of the General Court on 19 November 2012, the Front Polisario brought an action seeking the annulment of the contested decision and claiming that the Council should be ordered to pay the costs.
22. In support of its forms of order, the Front Polisario put forward 11 pleas in law, alleging, first, failure to state adequate reasons, second, failure to comply with the ‘principle of consultation’, third, infringement of fundamental rights, fourth, ‘breach of the principle of consistency of the policy of the European Union’, fifth, ‘breach of the fundamental values of the European Union and the principles governing its external action’, sixth, ‘failure to achieve the objective of sustainable development’, seventh, ‘incompatibility with the principles and objectives of the European Union’s external action in the area of development cooperation’, eighth, breach of the principle of protection of legitimate expectations, ninth, ‘incompatibility of the contested decision with several agreements concluded by the European Union’, tenth, incompatibility with general international law, and, eleventh, infringement of the ‘law of international liability in EU law’.
23. In defence, the Council claimed that the action should be dismissed as inadmissible or, in the alternative, as unfounded and that the Front Polisario should be ordered to pay the costs.
24. By order of the President of the Eighth Chamber of the General Court of 6 November 2013, the European Commission was granted leave to intervene in support of the form of order sought by the Council.
25. In the judgment under appeal, the General Court examined, in the first place, the arguments put forward by the Council and the Commission claiming that the action should be dismissed as inadmissible on the ground that the Front Polisario had not proved the existence of its legal personality or its capacity to institute proceedings, on the one hand, and that the contested decision was of neither direct nor individual concern to it, on the other. It rejected these two pleas of inadmissibility in paragraphs 34 to 60 and 61 to 114 of the judgment under appeal respectively.
26. In the second place, the General Court considered the pleas for annulment relied on by the Front Polisario in support of its forms of order, stating first that, in essence, it ‘relie[d] on the unlawfulness of the contested decision on the ground that it infringes European Union and international law’. (7) The General Court adds that ‘in reality, all the pleas in law in the application concern the question as to whether there is an absolute prohibition against concluding an international agreement on behalf of the European Union which may be applied to a territory in fact controlled by a non-member State, without the sovereignty of that State over that territory being recognised by the European Union and its Member States or, more generally, by all other States (“the disputed territory”) and, where relevant, the existence of discretion of the EU institutions in that regard, the limits of that discretion and the conditions for its exercise’. (8)
27. The General Court then examined each of the 11 pleas for annulment relied on by the Front Polisario and, in paragraphs 127, 139, 148, 158, 167, 172, 175, 178, 199, 211 and 214 of the judgment under appeal, rejected each of them as unfounded or, in one case, as inadmissible.
28. In that examination, it held in particular that nothing in the Front Polisario’s arguments supported the finding that ‘under EU law or international law, the conclusion of an agreement with a third State which may be applied on a disputed territory is absolutely prohibited’. (9)
29. At the same time, the General Court reserved the examination of a number of arguments relied on by the Front Polisario in support of its first, third, fifth, sixth, ninth and tenth pleas in law, which were, in its view, essentially connected with the subsidiary question of the conditions under which the EU institutions could approve the conclusion of an agreement which may be applied to a disputed territory. (10)
30. Lastly, the General Court examined this question in paragraphs 223 to 247 of the judgment under appeal. In this regard it held, in essence, that, whilst enjoying a wide discretion in connection with the conduct of the Union’s external relations, the Council had an obligation, where it intended to approve an international agreement which is applicable to a disputed territory and sought to facilitate the export to the European Union of products originating in that territory, first to examine all the relevant facts of the individual case, and in particular to ensure that the production of those products was not conducted to the detriment of the population of that territory and did not entail infringements of fundamental rights. The General Court also found that in this case the Council had failed to fulfil that obligation.
31. On the basis of those considerations the General Court concluded in paragraph 247 of the judgment under appeal that ‘the Council [had] failed to fulfil its obligation to examine all the elements of the case before the adoption of the contested decision’ and, accordingly, that the decision should be annulled ‘in so far as it approves the application of the [Liberalisation Agreement] to Western Sahara’.
IV – The procedure before the Court of Justice
32. By its appeal, lodged at the Court of Justice on 19 February 2016, the Council claims that the Court should:
– set aside the judgment under appeal;
– give final judgment in the dispute by dismissing the action, and
– order the Front Polisario to pay the costs incurred by the Council both at first instance and at the appeal stage.
33. By its response, lodged at the Court of Justice on 9 May 2016, the Front Polisario contends that the Court should:
– dismiss the appeal as inadmissible;
– in the alternative, dismiss the appeal as unfounded;
– in the further alternative, should the Court grant the form of order sought by the Council, in so far as it seeks the setting aside of the judgment under appeal, give final judgment in the dispute by annulling the contested decision on the basis of the pleas in law rejected by the General Court, and
– order the Council to pay the costs incurred by the Front Polisario both at first instance and at the appeal stage.
34. By its response, lodged at the Court of Justice on 3 May 2016, the Commission claims that the Court should grant the appeal.
35. By separate document submitted at the Court Registry when its appeal was lodged, the Council requested that the case be dealt with under the expedited procedure provided for in Article 133 of the Rules of Procedure of the Court of Justice.
36. By order of 7 April 2016, the President of the Court of Justice granted that request.
37. By decisions of the President of the Court of Justice of 2, 13, 18 and 24 May 2016, the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic and the Portuguese Republic were granted leave to intervene in the dispute in support of the form of order sought by the Council. However, the Federal Republic of Germany neither lodged a statement in intervention nor took part in the hearing.
38. By order of the President of the Court of Justice of 9 June 2016, the Confédération marocaine de l’agriculture et du développement rural (Comader) was granted leave to intervene in the dispute in support of the form of order sought by the Council.
39. A hearing was held on 19 July 2016, at which the Council, Comader, the Kingdom of Spain, the French Republic, the Portuguese Republic, the Front Polisario and the Commission made oral submissions.
V – Admissibility of the appeal
A – Arguments of the parties
40. The Front Polisario disputes the admissibility of the appeal, claiming that the Council does not have a legal interest in bringing it. In this regard, it asserts, first, that the judgment under appeal annulled the contested decision only ‘in so far as it approves the application of the [Liberalisation Agreement] to Western Sahara’. Second, it maintains that neither the Kingdom of Morocco nor the European Union is competent to conclude an agreement which applies to Western Sahara. It concludes that the Council cannot procure any advantage from the possible reintegration of Western Sahara into the scope of the Liberalisation Agreement.
41. The Council and the Commission dispute the validity of this argument, arguing, principally, that the EU institutions may bring an appeal without the need to demonstrate a legal interest in bringing proceedings and, in the alternative, that this condition is met in the present case. In addition, the Council submits that the Front Polisario’s argument concerning the inadmissibility of the appeal is itself inadmissible on the ground that it effectively requests the amendment of paragraph 220 of the judgment under appeal and that, under Article 174 of the Rules of Procedure of the Court of Justice, it has no place in a response.
B – Assessment
42. Under the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union, ‘an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions’.
43. That is clearly the case with the Council, whose position before the General Court was that the action brought by the Front Polisario was inadmissible or, failing that, unfounded.
44. Since the General Court rejected the Council’s arguments on the admissibility of the action brought by the Front Polisario and partially annulled the contested decision, the Council has been unsuccessful in part in its submissions. It is therefore entitled to bring an appeal against the judgment under appeal.
45. In any case, as the Court of Justice has ruled in the context of cases not relating to disputes between the Union and its servants, the EU institutions do not have to show any interest in order to bring an appeal against a judgment of the General Court, (11) except where they are seeking a substitution of grounds. (12)
46. It is true that the Court ruled in paragraph 46 of the judgment of 19 July 2012, Council v Zhejiang Xinan Chemical Industrial Group (C‑337/09 P, EU:C:2012:471), that it could ‘declare an appeal to be inadmissible where an event subsequent to the judgment of the General Court ha[d] removed its prejudicial effect for the appellant’, in that case the Council.
47. However, the Front Polisario does not mention any event subsequent to the judgment under appeal which might have removed its prejudicial effect. It seems simply to state that the operative part of the judgment under appeal, under which the contested decision is annulled ‘in so far as it approves the application of the [Liberalisation Agreement] to Western Sahara’, is not contrary to its view that neither the EU institutions nor the Kingdom of Morocco is competent to conclude an agreement which applies to Western Sahara. (13)
48. Even though it does not seek to challenge in any way paragraph 220 of the judgment under appeal (14) (which would, moreover, be impossible outside of a cross-appeal), this argument cannot substantiate the plea of inadmissibility raised by the Front Polisario. The plea of inadmissibility raised by the Front Polisario must therefore be rejected.
VI – Substance of the appeal
A – Principal considerations
49. Since the heart of the problem is whether or not the Liberalisation Agreement applies to Western Sahara, I will first deal with the first part of the second ground of appeal in so far as it concerns the application of that agreement. If that question is to be answered in the negative, the judgment of the General Court will have to be set aside, as it will have erred in law by relying on the opposite view and the action brought by the Front Polisario will have to be declared inadmissible in the absence of a legal interest and standing to bring proceedings.
1. The first part of the second ground of appeal in so far as it concerns the application of the Liberalisation Agreement to Western Sahara
a) Arguments of the parties
50. The Council asserts that, in ruling on the Front Polisario’s standing to bring proceedings, in paragraphs 73 to 103 of the judgment under appeal the General Court examined, as a preliminary point, whether or not the Liberalisation Agreement applied to Western Sahara. It submits that in paragraph 73 of the judgment under appeal the General Court conducted that examination on the basis of a presumption that answering that question in the affirmative automatically meant that the contested decision was likely to be of direct and individual concern to the Front Polisario. It adds that this presumption constitutes an error in law as the contested decision cannot create rights and obligations extending beyond the territorial scope of the Treaties and therefore has no legal effect on the territory of Western Sahara.
51. The Commission, for its part, submits that it cannot be inferred from the fact that the Liberalisation Agreement is applied de facto to Western Sahara (15) that there is a ‘subsequent practice’ within the meaning of Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969 (16) (‘the Vienna Convention’), which justifies an interpretation of Article 94 of the Association Agreement to the effect that it renders that agreement and the Liberalisation Agreement applicable to the territory of Western Sahara.
52. In addition, the Commission claims that it is contrary to the principle of the relative effect of treaties (pacta tertiis nec nocent nec prosunt) codified in Article 34 of the Vienna Convention, the right of the people of Western Sahara to self-determination and the absence of any express extension of those agreements to Western Sahara to consider them to be applicable to Western Sahara.
53. In response, the Front Polisario maintains that the General Court examined the question of the application of the Liberalisation Agreement to Western Sahara not with the aim of deriving from it any presumption regarding the admissibility of the action but in order to ascertain the factual and legal context in which its standing to bring proceedings should be addressed. The Council and the Commission argued extensively that that agreement was not applicable to that territory before recognising that it was actually applied to products originating there. This is one of the specific aspects which distinguish that agreement from two comparable agreements concluded by the Kingdom of Morocco with the United States of America and the Member States of the European Free Trade Association (EFTA).
b) Assessment
54. The question of the territorial scope of the Liberalisation Agreement (which depends on the territorial scope of the Association Agreement which it amended) is of paramount importance in the present case because it permeates the entire action for annulment brought by the Front Polisario, including the substantive issues, (17) going beyond its standing (and legal interest) to bring proceedings.
55. In this regard the Council claims that by deciding, in paragraph 73 of the judgment under appeal, to examine whether the Front Polisario could be directly and individually concerned by the contested decision by reason of the application or non-application of the Liberalisation Agreement to Western Sahara, the General Court ‘[made] the application of the agreement concluded under the [contested] decision in this case to a territory outside the Union a precondition for the [Front Polisario] being individually and directly concerned by that decision’. (18) In the view of the Council, this is contrary to paragraphs 90, 91 and 94 of the order of 3 July 2007, Commune de Champagne and Others v Council and Commission (T‑212/02, EU:T:2007:194), where it ruled that the decision approving an international agreement could produce effects only in the territory of the European Union.
56. In my view, this argument must be rejected for the simple reason that in the case which gave rise to the order of 3 July 2007, Commune de Champagn litigious e and Others v Council and Commission (T‑212/02, EU:T:2007:194), the territorial scope of the agreement at issue in that case was not contested. The General Court therefore simply examined whether the decision approving that agreement produced ‘binding legal effects such as to affect the interests of the applicants by bringing about a distinct change in their legal position’. (19)
57. Even though, in giving this ruling, the General Court seems to assimilate the concepts of challengeable act and standing to bring proceedings, the fact remains that in the present case the General Court was not able to rule on direct and individual concern in relation to the Front Polisario without first deciding whether or not Western Sahara fell within the territorial scope of the Association and Liberalisation Agreements. It is clear that if Western Sahara did not fall within the territorial scope of those agreements, direct and individual concern in relation to the Front Polisario would be ruled out in so far as all its arguments in this case are based on the agreements being applicable.
58. It is therefore necessary to examine the Commission’s arguments that the contested decision clearly did not bring about a change in the legal position of the Front Polisario because the Association Agreement and therefore the Liberalisation Agreement were not applicable to Western Sahara. It thus asserts that in paragraphs 88 to 104 of the judgment under appeal the General Court misinterpreted Article 94 of the Association Agreement. (20)
59. It should be stated from the outset that there is no need to take a view on the question whether the Kingdom of Morocco may conclude an international agreement applicable to Western Sahara without infringing international law, which, in my view, is not clearly established (21) and is, moreover, strongly contested by the Front Polisario.
60. For the purposes of the present case, it is sufficient to answer the separate question whether the agreements at issue are applicable to Western Sahara under Article 94 of the Association Agreement, which provides that ‘[the Association Agreement] shall apply, on the one hand, [to the territory of the European Union] and, on the other hand, to the territory of the Kingdom of Morocco’. (22)
61. I note in this respect that the terms ‘territory of the Kingdom of Morocco’ are not defined in the agreements at issue.
62. In this regard, Article 29 of the Vienna Convention provides that ‘unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory’. (23)
63. There are two different views on this subject.
64. On the one hand, despite their different motivations, the Front Polisario and the Commission take the view that Western Sahara is a non-self-governing territory within the meaning of Article 73 of the United Nations Charter and that, as such, it cannot be part of the territory of the Kingdom of Morocco within the meaning of Article 94 of the Association Agreement. Neither of them recognises the Kingdom of Morocco’s sovereignty over Western Sahara.
65. Although the Commission recognises that the Association and Liberalisation Agreements have been applied to products originating in Western Sahara, it stated at the hearing that this was merely tolerance, which it has not contested, which it could have done on the basis of Article 86 of the Association Agreement, adding that its non-recourse to that provision did not constitute proof of its acceptance.
66. On the other hand, the Council and the Kingdom of Morocco assert that the Liberalisation Agreement is applicable to Western Sahara, but for different reasons. As the General Court states in paragraph 100 of the judgment under appeal, in the opinion of ‘the Kingdom of Morocco …, Western Sahara is an integral part of its territory’.
67. As for the Council, throughout the proceedings before the Court of Justice and at the hearing, it has put forward different and even contradictory views. I will mention in this regard the most recent version of its interpretation of the scope of the agreements at issue provided by the Council in its reply at the hearing. According to this view, ‘the Council has not tacitly accepted [the Kingdom of] Morocco’s interpretation to the effect that the [Liberalisation] Agreement applies to Western Sahara as part of its territory, which could constitute evidence of indirect recognition [of its sovereignty]. It has tacitly accepted that the [Liberalisation] Agreement also applies … to a non-self-governing territory administered by the Kingdom of Morocco, which does not imply recognition, acquiescence or acceptance. The Kingdom of Morocco and the European Union are aware that they have different interpretations. They agree to disagree. They have a mutual understanding that the European Union accepts the application of the agreement to the territory of Western Sahara and [the Kingdom of] Morocco does not use this as an argument in support of its claim to sovereignty’. Its view can be briefly summarised as an ‘application without recognition’, whilst the Council adds that ‘when the Agreement was concluded …, there was no doubt among [its] members … that [the Kingdom of Morocco considered Western Sahara to be part of its territory]’. However, according to the Council, expecting the agreement at issue to be applied to Western Sahara does not mean that it takes sides on the issue of sovereignty over the territory of Western Sahara.
68. In my view, following reasoning based on Article 94 of the Association Agreement alone, Western Sahara is not part of the territory of the Kingdom of Morocco within the meaning of that article for the following reasons.
i) The status of Western Sahara as determined by Article 73 of the United Nations Charter and its consequences
69. It is true that, as the Court of Justice ruled in paragraph 46 of the judgment of 5 July 1994, Anastasiou and Others (C‑432/92, EU:C:1994:277), regarding the Association Agreement between the European Union and the Republic of Cyprus, (24) ‘[the Union] must take particular account of its partner to the Agreement when interpreting and applying it’.
70. This does not mean, however, that the European Union has to accept any view of its partner on the interpretation and application of the Association Agreement, especially where its partner holds positions which have never been accepted by the international community or the European Union.
71. As Western Sahara has, since 1963, been included by the UN on its list of non-self-governing territories under Article 73 of the United Nations Charter, (25) it follows that, in that capacity, it falls within the field of application of Resolution 1514 (XV) on the granting of independence to colonial countries and peoples, (26) as the International Court of Justice ruled in paragraph 162 of its Advisory Opinion of 16 October 1975 on Western Sahara. (27)
72. In this regard, I do not concur with the point of view expressed by the General Court in paragraph 56 of the judgment under appeal, and repeated by the Council at the hearing, that ‘Western Sahara is a territory whose international status is currently undetermined’. (28) What is undetermined at present is not its status, but its future.
73. I also do not concur with the General Court’s description of Western Sahara as a ‘disputed territory’ in paragraphs 117, 141, 142, 165, 198, 205, 210, 211, 215, 217, 220, 222, 223 and 227 of the judgment under appeal.
74. Unlike in the case which gave rise to the judgment of 6 July 1995, Odigitria v Council and Commission (T‑572/93, EU:T:1995:131), (29) which used the terms ‘zone litigieuse’ in French but ‘zone in dispute’ in English (which might explain the shift in the General Court’s vocabulary in the present case), this is not a boundary delimitation dispute but is concerned with ascertaining the consequences of Western Sahara’s status as a non-self-governing territory within the meaning of Article 73 of the United Nations Charter. (30)
75. In that capacity, Western Sahara has, under the Charter, ‘a status separate and distinct from the territory of the State administering it … until the people of the … Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles’. (31)
76. Consequently, as the Commission claimed before the General Court, (32) the territorial scope of the agreements at issue cannot cover Western Sahara without an express extension, which does not exist in this case. (33)
77. In this regard, the practice of States which have or assume responsibilities for the administration of non-self-governing territories is particularly important, as they are the only States which can develop such practice. (34)
78. In this context, the practice of the United States of America, New Zealand, the French Republic and the United Kingdom of Great Britain and Northern Ireland is especially important, as they are the four States (35) on the list of administering powers maintained by the UN (36) and administer 16 of the 17 non-self-governing territories on the list annexed to the report of the UN Secretary-General. (37)
79. According to the practice of the United States of America, New Zealand and the United Kingdom, (38) which represent the majority of the administering powers and which administer the majority of the non-self-governing territories, any application of treaties or agreements to non-self-governing territories is subject to an express extension at the time of their ratification. (39)
80. Since the European Union considers Western Sahara to be a non-self-governing territory, no provision was made for the express extension of the Association and Liberalisation Agreements to it either by those agreements or at the time of their ratification by the Kingdom of Morocco.
81. Furthermore, my view is supported by the position of the United States of America, the Republic of Iceland, the Kingdom of Norway and the Swiss Confederation, which also take the view that Western Sahara does not fall within the territorial scope of the free trade agreements which they concluded with the Kingdom of Morocco, (40) even though those agreements, like the Association Agreement, do not explicitly exclude Western Sahara from their territorial scope. (41)
82. In my view it follows from the foregoing that Western Sahara cannot be part of the territory of the Kingdom of Morocco within the meaning of Article 94 of the Association Agreement. Consequently, the Association and Liberalisation Agreements are not applicable to it.
ii) Non-recognition by the European Union and its Member States of the Kingdom of Morocco’s sovereignty over Western Sahara
83. As the Council and the Commission argued before the General Court (42) and argue before the Court of Justice, the European Union and its Member States never recognised that Western Sahara was part of the territory of the Kingdom of Morocco or came under its sovereignty.
84. Furthermore, the Council does not explain at all how it might be lawfully possible to apply an agreement concluded with a country in a certain territory without recognising that that country has any legal competence or authority in that territory, all without even relying on Articles 34 to 36 of the Vienna Convention or demonstrating their application to this specific case.
85. On the contrary, in my view, applicability necessarily and inevitably implies recognition.
86. In addition, I cannot accept the Council’s argument of ‘application without recognition’, which attempts to reconcile the applicability or application of the agreements at issue to Western Sahara and the wish not to take a position on any recognition by the European Union and the Member States that Western Sahara is part of the Kingdom of Morocco. This non-recognition certainly and definitively rules out the possibility that in negotiating the Association and Liberalisation Agreements the European Union intended to make those agreements applicable to Western Sahara.
iii) Does de facto application to the territory of Western Sahara make it ‘subsequent practice’?
87. In the proceedings before the General Court, the Front Polisario relied on the existence of a practice whereby the Association and Liberalisation Agreements were applied de facto to the territory of Western Sahara, which the Council and the Commission confirmed at the hearing before the General Court (43) and repeated before the Court of Justice. (44)
88. This does not appear to be capable of extending the scope of those agreements to Western Sahara, as the General Court acknowledged in paragraph 103 of the judgment under appeal.
89. It is true that, although ‘subsequent practice’ within the meaning of Article 31(3)(b) of the Vienna Convention (45) may be taken into account as additional evidence as regards the meaning to be attributed to the text of an agreement in the light of its object and purpose, that practice is not in itself decisive. (46)
90. As the Commission asserts, the elements relating to the practice of the European Union and the Kingdom of Morocco in the application of the agreements at issue to Western Sahara examined by the General Court in paragraphs 78 to 87 of the judgment under appeal do not make it ‘subsequent practice’ within the meaning of Article 31(3)(b) of the Vienna Convention. (47)
91. In this regard I do not concur with the interpretation of international law given by the Court of Justice in its judgment of 11 March 2015, Oberto and O’Leary (C‑464/13 and C‑465/13, EU:C:2015:163), where it ruled that, ‘as is clear from the case-law of the International Court of Justice, the subsequent practice followed in the application of a treaty may override the clear terms of that treaty if that practice reflects the parties’ agreement (ICJ, Case concerning the Temple of Preah Vihear (Cambodia v Thailand ), judgment of 15 June 1962, ICJ Reports 1962, p. 6)’. (48)
92. I would note, first of all, that the International Court of Justice’s judgment in the Case concerning the Temple of Preah Vihear predates the Vienna Convention, signed in 1969. It could not therefore directly concern the interpretation of Article 31(3)(b) of that convention, as that provision did not exist at that time.
93. Second, I cannot see anywhere in that judgment that the International Court of Justice held, whether expressly or not, that the subsequent practice followed in the application of a treaty could override the clear terms of that treaty.
94. Lastly, in so far as that provision reflects a rule of customary international law, it should be noted that the International Court of Justice did not state that subsequent practice could override the clear terms of a treaty if that practice reflects the parties’ agreement.
95. On the contrary, that judgment is one of the leading judgments of the International Court of Justice on the notions of estoppel or acquiescence in international law, (49) which are notions entirely distinct from ‘subsequent practice’.
96. I do not think it is possible that ‘subsequent practice’ contrary to the ordinary meaning of the terms of an agreement can override those terms unless it constitutes a practice, which is known to and accepted by the parties and is sufficiently widespread and sufficiently long term to constitute a new agreement in itself. However, the documents in this case, examined by the General Court in paragraphs 78 to 87 of the judgment under appeal, are not sufficient to establish such practice.
97. First, the answer given on behalf of the Commission by the High Representative of the Union for Foreign Affairs and Security Policy, Vice-President of the Commission, Ms Catherine Ashton, to Parliamentary questions with the references E-001004/11, P-001023/11 and E-002315/11 (OJ 2011 C 286 E, p. 1), mentioned in paragraph 78 of the judgment under appeal, does not, as a statement, constitute a practice for the purposes of the implementation of the Association and Liberalisation Agreements. Furthermore, at the hearing the Council did not support the view expressed in that answer that the Kingdom of Morocco was the de facto administering power in Western Sahara.
98. Second, the visits made by the Commission’s Food and Veterinary Office (FVO) to Western Sahara, to which the General Court refers in paragraph 79 of the judgment under appeal, also do not constitute implementation of the agreements at issue since they are not provided for therein and cannot, in the Commission’s view, be taken into account as an indication as to interpretation, as they all relate to products entering EU territory regardless of the customs regime applicable to them.
99. Third, the fact that 140 of the Moroccan exporters approved by the Commission under the Association Agreement are established in Western Sahara, to which the General Court refers in paragraph 80 of the judgment under appeal, also does not constitute implementation of the agreements at issue, especially since those exporters are also established in Morocco, as recognised by the European Union and its Member States, and for that reason are entitled to benefit from the agreements at issue.
100. Lastly, although the Council and the Commission indicated, as the General Court noted in paragraph 87 of the judgment under appeal, that the Liberalisation Agreement had been applied de facto to Western Sahara, the extent and duration of that application are still unknown. For ‘subsequent practice’ to exist within the meaning of Article 31(3)(b) of the Vienna Convention, ‘there must be an indisputable concordance between the positions of the parties such as to establish the meaning of a treaty provision’. (50) In this case, there is no such concordance, because, as the General Court held in paragraph 100 of the judgment under appeal, ‘the Kingdom of Morocco has a totally different view’ from the European Union. (51)
iv) The relative effect of treaties (pacta tertiis nec nocent nec prosunt)
101. In the absence of an express extension, the application of the agreements at issue to Western Sahara would also be contrary to the general international law principle of the relative effect of treaties (pacta tertiis nec nocent nec prosunt) which, as the Court ruled the judgment of 25 February 2010, Brita (C‑386/08, EU:C:2010:91), (52) finds particular expression in Article 34 of the Vienna Convention.
102. Like Article 94 of the Association Agreement at issue in the present case, Article 83 of the EC-Israel Association Agreement provides that ‘it shall apply, on the one hand, [to the territory of the European Union] and, on the other hand, to the territory of the State of Israel’.
103. I would observe that, as in the present case and despite the different view of the State of Israel on this subject, the European Union and its Member States do not recognise either the sovereignty of the State of Israel over the territory of the West Bank and the Gaza Strip or its capacity to represent that territory internationally and to conclude agreements on its behalf and in its name, as the occupying power of those territories. (53)
104. Against this background, the Court ruled that products originating in the West Bank did not fall within the scope of the EC-Israel Association Agreement ‘by taking into consideration, first, the general principle of international law of the relative effect of treaties … (pacta tertiis nec nocent nec prosunt) … and, second, the fact that the European Union had also concluded an association agreement with the Palestinian Liberation Organisation (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, the latter being applicable inter alia, according to its terms, to the territory of the West Bank’. (54)
105. As Western Sahara is a non-self-governing territory within the meaning of Article 73 of the United Nations Charter, it constitutes a third party (tertius) in relation to the European Union and the Kingdom of Morocco.
106. It is true that the principle of pacta tertiis nec nocent nec prosunt is also subject to exceptions, in particular those codified in Articles 35 and 36 of the Vienna Convention relating to treaties providing for obligations or rights for third States.
107. In this case, assuming that the Liberalisation Agreement were applicable to Western Sahara, it would not confer an obligation on it, but a right to export to the European Union, under the preferential customs regime established by that agreement, products originating in its territory covered by the agreement.
108. Under Article 36 of the Vienna Convention, which concerns treaties providing for rights for third parties, a right arises for a third party only if the third party assents thereto and that assent may be presumed so long as the contrary is not indicated by that State. It must still be possible for this to be expressed, but as Western Sahara is a non-self-governing territory and as the Kingdom of Morocco does not consider itself to be bound by Article 73 of the United Nations Charter, its assent may not be presumed without prior consultation of its people or its representatives, which has not been done.
109. It follows that the exception to general principle of international law of the relative effect of treaties provided for in Article 36 of the Vienna Convention is not applicable in the present case.
110. Consequently, in ruling in paragraph 97 of the judgment under appeal that ‘the facts of the present case are different, in so far as, in the present case, the European Union has not concluded an association agreement concerning products originating in Western Sahara, or with the Front Polisario, or with any State or other entity’, the General Court drew a distinction between the present case and that which gave rise to the judgment of 25 February 2010, Brita (C‑386/08, EU:C:2010:91), but did not infer from this that the application of the agreements at issue to Western Sahara is contrary to the general principle of the relative effect of treaties.
111. On the basis of Article 94 of the Association Agreement and the principle of the relative effect of treaties, the General Court could not rely on the fact that ‘the Association Agreement … does not include any interpretation clause and no other provision which would have the result of excluding the territory of Western Sahara from its scope’. (55) Nor could it rule that the fact that the EU institutions had not insisted on including ‘a clause excluding such application into the text of the agreement approved by [the contested decision] … shows that they accept … the interpretation of the Association Agreement … according to which those agreements also apply to the part of Western Sahara controlled by the Kingdom of Morocco’. (56)
112. I therefore take the view that the first part of the second ground of appeal must be upheld in so far as it concerns the application of the Liberalisation Agreement to Western Sahara.
113. By concluding in paragraph 103 of the judgment under appeal that ‘the [Liberalisation] Agreement …, placed in its context …, also applies to the territory of Western Sahara or, more precisely, to the largest part of that territory which is controlled by the Kingdom of Morocco’, (57) the General Court erred in law, which, in my view, results in the setting aside of the judgment under appeal.
114. In this case, as the state of the proceedings so permits in accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the action for annulment brought by the Front Polisario must be dismissed as inadmissible in the absence of a legal interest and standing to bring proceedings, since, if the Liberalisation Agreement is not applicable to Western Sahara, the annulment of the contested decision could neither procure an advantage to it nor be of direct and individual concern to it.
115. In the event that the Court were not to concur with my conclusion that the General Court erred in law in ruling that the Association and Liberalisation Agreements are applicable to Western Sahara, I will consider the other grounds of appeal below.
B – In the alternative
1. The first ground of appeal, alleging errors in law relating to the Front Polisario’s capacity to be a party to proceedings before the EU Courts
a) Arguments of the parties
116. The Council and the Commission claim that the General Court erred in law by concluding, based on the reasoning set out in paragraphs 34 to 60 of the judgment under appeal, that the Front Polisario should be considered as a legal person with the capacity to request the EU Courts to annul the contested decision.
117. In this regard, they state, in essence, first, that the Front Polisario does not have legal personality under the law of a Member State or of a third State. Second, they assert that it also cannot be considered a subject of international law.
118. Lastly, they submit that, although the case-law (58) relied on by the General Court in paragraphs 48 to 52 of the judgment under appeal in establishing the Front Polisario’s capacity to institute proceedings exceptionally gives access to the EU judicature to entities not having legal personality, it makes the admissibility of their action subject to the satisfaction of two cumulative conditions, the second of which is not met by the Front Polisario, namely having been treated by the European Union and its institutions as being a distinct person, which may have rights specific to it, or be subject to obligations or restrictions (see paragraphs 52 and 55 to 59 of the judgment under appeal). (59)
119. According to the Council and the Commission, the General Court should have found that the second condition was not met because the Front Polisario had not been mentioned by acts adopted by the EU institutions nor ‘recognised … as a negotiating [body]’ (60) by them.
120. In these circumstances, it then erred in law, in paragraphs 56 to 59 of the judgment under appeal, by relying on the Front Polisario’s status as the representative of the people of Western Sahara recognised by the UN General Assembly and on that entity’s participation in the UN-led negotiations on the definitive status of Western Sahara in concluding that the action was admissible.
121. In response, the Front Polisario claims, first, that it is a subject of international law in view of its status as a national liberation movement.
122. Second, it disputes that the General Court’s conclusion regarding its capacity to institute legal proceedings is vitiated by an error in law. In this regard, it submits that the Council does not challenge the General Court’s finding that its constitutional structure endows it with the necessary independence to bring proceedings as a responsible body in legal matters.
123. It also asserts, in essence, that the General Court was able to conclude that this legal capacity permitted it to bring an action before the EU Courts in this case because the Council and the Commission themselves recognise its status as the representative of the people of Western Sahara, a party to the UN negotiations on the future of that territory and the EU’s legitimate negotiating partner on this subject.
b) Assessment
124. I note that the Council and the Commission do not challenge the part of the reasoning on which the General Court based its decision that the Front Polisario had the capacity to institute judicial proceedings, even though it did not have legal personality. Thus, they do not dispute that the constituting document of the Front Polisario permits it to act as a responsible body in legal matters.
125. In some cases, EU law recognises the capacity to institute proceedings for entities which do not have legal personality. As the Court of Justice ruled in paragraph 114 of the judgment of 18 January 2007, PKK and KNK v Council (C‑229/05 P, EU:C:2007:32), ‘the Statute of the Court of Justice, in particular Article 21, the Rules of Procedure of the Court of Justice, in particular Article [120], and the Rules of Procedure of the [General Court], in particular Article [76], were not devised with a view to the commencement of actions by organisations lacking legal personality … In [an] exceptional situation, the procedural rules governing the admissibility of an action for annulment must be applied by adapting them, to the extent necessary, to the circumstances of the case’.
126. I do not concur with the position expressed by the Council in paragraph 17 of its appeal, based on the order of 3 April 2008, Landtag Schleswig-Holstein v Commission (T‑236/06, EU:T:2008:91), that ‘the capacity to bring proceedings may be conferred autonomously by EU law only when the legal position of the applicant is governed exclusively by EU law’. (61)
127. Contrary to the Council’s claim, in paragraph 22 of that order, confirmed by the order of 24 November 2009, Landtag Schleswig-Holstein v Commission (C‑281/08 P, not published, EU:C:2009:728), the General Court simply ruled that ‘where actions are brought by sub-national territorial bodies, the Court assesses whether they have legal personality on the basis of national public law’.
128. The Front Polisario is not a sub-national territorial body to which this case-law could be applied and it does not derive its capacity to be a party to legal proceedings from national law.
129. Although the fact that the Front Polisario’s constitutional structures are such as to endow it with the necessary independence to act as a responsible body in legal matters is not really disputed by the parties, the question is whether the European Union and its institutions treated the Front Polisario as being a distinct person, which may have rights specific to it or be subject to obligations or restrictions in accordance with the case-law cited in paragraph 52 of the judgment under appeal. (62)
130. It should be noted at the outset that the question of the capacity of an organisation recognised by the UN as being the representative of the people of a non-self-governing territory to be a party to legal proceedings has not yet been raised in the Court’s case-law on the capacity of entities lacking legal personality to be a party to legal proceedings. It is therefore normal that to some extent the case of the Front Polisario does not come strictly under the cases envisaged in that case-law.
131. I note in this regard that the case which gave rise to the judgment of 28 October 1982, Groupement des Agences de voyages v Commission (135/81, EU:C:1982:371), concerned a Luxembourg private limited liability company in the course of formation whose capacity to institute proceedings was challenged by the Commission. In paragraph 9 of its judgment the Court ruled that the Commission could not ‘challenge the capacity to institute proceedings of a body which it [had] allowed to take part in a tendering procedure and whose tender it [had] rejected after a comparative examination of all those who submitted tenders’.
132. In the present case the Council never allowed the Front Polisario to take part in the negotiation procedure for the Liberalisation Agreement.
133. Similarly, the case which led to the judgment of 18 January 2007, PKK and KNK v Council (C‑229/05 P, EU:C:2007:32), concerned inter alia the Kurdistan Workers’ Party (PKK), whose very existence was disputed but which had been the subject of restrictive measures adopted by the European Union.
134. The Court ruled that ‘since … the [Union] legislature took the view that the PKK retains an existence sufficient for it to be subject to the restrictive measures laid down by [the regulation] …, it must be accepted, on grounds of consistency and justice, that that entity continues to have an existence sufficient to contest this measure. The effect of any other conclusion would be that an organisation could be included in the disputed list without being able to bring an action challenging its inclusion’. (63)
135. In the present case the Front Polisario is not covered by the contested decision, which approves an international agreement concluded between the European Union and the Kingdom of Morocco.
136. Although the case of the Front Polisario does not come under the situations envisaged by the judgments of 28 October 1982, Groupement des Agences de voyages v Commission (135/81, EU:C:1982:371), and of 18 January 2007, PKK and KNK v Council (C‑229/05 P, EU:C:2007:32), it seems closer to the situation dealt with in the judgment of 8 October 1974, Union syndicale — Amalgamated European Public Service Union and Others v Council (175/73, EU:C:1974:95).
137. In paragraph 12 of that judgment, which concerned an action for annulment brought by a union without legal personality against the appointments of certain officials, the Court set out a number of factors to be taken into consideration when reviewing capacity to institute proceedings, which included the fact that ‘the [EU] institutions officially recognise it as a negotiating body on questions involving the collective interests of the staff’, that is to say, on a different (and broader) question from that to which the action relates.
138. Similarly, even though the action for annulment brought by the Front Polisario before the General Court concerns only the Council’s decision on the conclusion of the Liberalisation Agreement, the Front Polisario is one of the two negotiating partners recognised by the UN, and thus by all the EU Member States and institutions, (64) with a view to the determination of the future of Western Sahara.
139. Furthermore, by its action for annulment the Front Polisario is seeking, as the representative of the people of Western Sahara recognised by the UN, to protect the rights which that people enjoys under international law, namely its right to self-determination and to its permanent sovereignty over the natural resources (65) of Western Sahara. (66)
140. From these judgments it can be seen that the Court has wished to adapt its case-law to a wide variety of circumstances, as the reality is always more complex than was imagined by the legislators, rejecting an excessively formalistic or rigid approach.
141. This interpretation of the Court’s case-law is not called into question by the Council and the Commission’s arguments claiming that the political nature of the questions raised by the present case would lead the Court to make political rather than legal assessments.
142. I concur with the response given by the International Court of Justice to an argument of this kind put forward in a similar case: ‘the Court considers that the fact that a legal question also has political aspects, “as, in the nature of things, is the case with so many questions which arise in international life”, does not suffice to deprive it of its character as a “legal question” and to “deprive the Court of a competence expressly conferred on it by its Statute …”. Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task …’. (67)
143. For these reasons, the Front Polisario has the capacity to be a party to proceedings before the EU Courts for the purpose of the fourth paragraph of Article 263 TFEU.
144. There is therefore no need to examine whether the Front Polisario has the capacity to institute proceedings as a national liberation movement having legal personality and capacity in international law.
145. The fact that the Front Polisario does not enjoy special status as a national liberation movement within the UN General Assembly, as was the case with the PLO, does not necessarily and automatically mean, as the Council and the Commission claim, that the Front Polisario does not have legal personality in international law.
146. On the contrary, its recognition as a national liberation movement by a number of States, (68) as the representative of the people of Western Sahara by the UN General Assembly, (69) its membership of the ‘African Union’ international organisation, the conclusion of agreements with the Islamic Republic of Mauritania and the Kingdom of Morocco (70) and its undertaking to respect the Geneva Conventions of 12 August 1949 on the protection of victims of war, made in accordance with Article 96(3) of the Additional Protocol relating to the Protection of Victims of International Armed Conflicts of 8 June 1977, tend to militate in favour of recognition of the legal personality which international law confers on national liberation movements.
147. The first ground of appeal must therefore be rejected.
2. The second ground of appeal, alleging errors in law relating to the Front Polisario’s standing to bring proceedings
148. This ground of appeal has three separate parts, the first of which I have examined in part. My arguments in the alternative assume that the Court has rejected my conclusion.
a) The first part, in so far as it concerns the nature of the contested decision
i) Arguments of the parties
149. The Council asserts that the General Court erred in law by ruling in paragraphs 70 and 71 of the judgment under appeal that the contested decision was a legislative act. The Council submits that the contested decision is not a legislative act because its legal basis, namely the first paragraph of Article 207(4) in conjunction with Article 218(6)(a) TFEU, does not make explicit reference to a legislative procedure. In its view, it is not a regulatory act either, as it is not of general application. Consequently, it cannot be of direct and individual concern to a natural or legal person.
150. In response, the Front Polisario rejects the Council’s arguments, maintaining that the Council’s objective is to exclude the contested decision from the guarantees provided by the EU legal order. In its view, if the contested decision were not a legislative act, it would certainly be a regulatory act as an act of general application.
ii) Assessment
151. As the Council notes, Article 207(4) and Article 218(6)(a) TFEU, which are the legal bases of the contested decision, do not make explicit reference to an ordinary or special legislative procedure, as Articles 203, 349 and 352 TFEU do.
152. However, this is not sufficient to establish that the contested decision, the effect of which is to introduce rules of general application into the EU legal order, is not a legislative act.
153. Article 289(3) TFEU defines legislative acts as being ‘legal acts adopted by legislative procedure’, that is, the ordinary legislative procedure or the special legislative procedure.
154. Under Article 289(2) TFEU, the special legislative procedure consists in ‘the adoption … of a decision … by [the Council] with the participation of the European Parliament’.
155. Article 218(6)(a)(i) TFEU provides that ‘the Council shall adopt the decision concluding the agreement … after obtaining the consent of the European Parliament in the [case of] association agreements’.
156. I cannot see how the requirement of the prior consent of the Parliament cannot be regarded as the participation of the Parliament in the procedure.
157. The fact that Article 289(2) TFEU uses the words ‘in the specific cases provided for by the Treaties’ does not necessarily mean that every provision of the FEU Treaty which envisages the special legislative procedure must indicate it explicitly. It is sufficient that the definition given in that provision is respected.
158. This is the case a fortiori since, as the Court ruled in paragraph 55 of the judgment of 24 June 2014, Parliament v Council (C‑658/11, EU:C:2014:2025), ‘the Treaty of Lisbon required the Parliament’s consent for the conclusion of international agreements specifically in the case of agreements covering areas to which, in the internal field, the ordinary legislative procedure laid down in Article 294 TFEU applies, or the special legislative procedure, but only where that procedure requires the consent of the Parliament’.
159. In any case, and contrary to the claim made by the Council, if the contested decision were not a legislative act, it would have to be a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU, as interpreted by the Court in paragraphs 58 and 61 of the judgment of 3 October 2003, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625), since it is, in this case, an act of general application (in that it integrates an international agreement into the EU legal order) (71) which is not a legislative act.
160. This could not assist the Council as the Front Polisario could be exempted from the obligation to prove its individual concern if it were accepted that the contested decision does not include an implementing measure.
161. Consequently, the General Court did not err in law by ruling in paragraphs 70 and 71 of the judgment under appeal that the contested decision constitutes a legislative act adopted under the special legislative procedure.
b) The second part, relating to direct concern in relation to the Front Polisario
i) Arguments of the parties
162. The Council and the Commission claim that the General Court committed a number of errors in law in holding, in paragraphs 106 to 110 of the judgment under appeal, that the contested decision was of direct concern to the Front Polisario on the ground that the Liberalisation Agreement itself contained a number of provisions producing direct effects on the legal situation of Western Sahara and concerning the Front Polisario as the negotiating partner of the Kingdom of Morocco in the UN-led negotiations to be conducted between them with a view to the resolution of the dispute over that territory.
163. In this regard, the Council asserts, in essence, that, even if it were established, the direct effect of certain provisions of the Liberalisation Agreement specifying the conditions for imports into the European Union of products originating in the territory to which that agreement is applicable does not permit the conclusion that the contested decision is of direct concern to the legal situation of the Front Polisario in accordance with the fourth paragraph of Article 263 TFEU, especially since the General Court held in the present case, in paragraph 203 of the judgment under appeal, that the agreement was not binding on that entity. The concepts of ‘direct effect ‘and ‘direct concern’ are distinct and the former is irrelevant, or at least unimportant, in the context of an examination in respect of the latter.
164. In addition, according to the Commission, the Liberalisation Agreement does not have direct effect in the European Union because it was necessary to adopt Commission Implementing Regulation (EU) No 812/2012 of 12 September 2012 amending Council Regulation (EC) No 747/2001 as regards tariff quotas of the Union for certain agricultural and processed agricultural products originating in Morocco (72) in order to implement it.
165. Lastly, legal effects on territories which are not subject to EU law are irrelevant in the context of the examination required by the fourth paragraph of Article 263 TFEU.
166. In any event, the judgment under appeal simply describes an indirect link between the purported legal effects of the provisions of the Liberalisation Agreement in the territory of Western Sahara on products originating in that territory and on their exporters or importers, on the one hand, and the Front Polisario’s participation in political negotiations to resolve a dispute over that territory, on the other. In reality, the General Court should have found that the contested decision could not, regard being had to its purpose and nature, be of direct concern to the Front Polisario and, more broadly, any other non-privileged applicant, even if it were an entity claiming the territory to which the international agreement approved by such a decision is applicable.
167. In response, the Front Polisario maintains that, given that the Liberalisation Agreement applies to products originating in Western Sahara, the General Court rightly concluded that the contested decision was of direct concern to it. In this regard, it states in particular that that decision is intended to produce legal effects and cannot therefore be considered not to be, by its nature, amenable to challenge in court. It further argues that the decision approved the Liberalisation Agreement and that, by simple reason of its adoption, it thus produced legal effects on the conditions governing exports to the European Union of products originating in Western Sahara. Lastly, it submits, in essence, that, because the UN General Assembly has recognised its status as the representative of the people of Western Sahara, because the aim of the UN negotiations on Western Sahara is to permit that people to exercise its right to self-determination and because control of natural resources is a key element of that right, the General Court could legitimately hold that the contested decision was of direct concern to its legal situation.
ii) Assessment
– Can Council decisions on the conclusion of international agreements be of ‘direct concern’ to non-privileged applicants?
168. I cannot concur with the Council’s argument that decisions on the conclusion of an international agreement adopted on the legal basis of Article 218(6) TFEU cannot, by their very nature, be challenged by non-privileged applicants such as the Front Polisario.
169. In claiming that, by their nature, such decisions cannot have direct effects and that only privileged applicants which are not required to show their legal interest in bringing proceedings may therefore bring an action for annulment against them, the Council seems to confuse the concepts of challengeable act and legal interest in bringing proceedings.
170. I would recall that ‘according to consistent case-law any measures adopted by the institutions of the European Union, whatever their form, which are intended to have binding legal effects, are regarded as actionable measures, within the meaning of Article 263 TFEU’. (73)
171. The fact that decisions on the conclusion of international agreements produce such effects has been long established in the Court’s case-law, (74) otherwise ‘exercise of the powers delegated to the [EU] institutions in international matters [would] escape judicial review, under Article [263 TFEU], of the legality of the acts adopted’. (75)
172. It therefore seems indisputable that the contested decision is challengeable.
173. The same holds for the Front Polisario’s legal interest in bringing proceedings.
174. As the Court of Justice ruled in paragraph 25 of the judgment of 17 April 2008, Flaherty and Others v Commission (C‑373/06 P, C‑379/06 P and C‑382/06 P, EU:C:2008:230), ‘according to established case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the time at which the action is brought, failing which it will be inadmissible. That purpose must continue, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it’.
175. In so far as the Association and Liberalisation Agreements might be applicable to Western Sahara, it is clear that the action for annulment is liable to procure an advantage to the Front Polisario, which asserts that the application of those agreements to Western Sahara is contrary to its people’s right to self-determination, the principle of permanent sovereignty over natural resources and Article 73 of the United Nations Charter.
– The concepts of direct concern and direct effect
176. As the General Court states in paragraph 105 of the judgment under appeal, ‘it follows from settled case-law that, in order to satisfy the requirement that the decision forming the subject matter of the proceedings must be of “direct concern” to a natural or legal person, two cumulative criteria must be met, namely, first, the contested measure must directly affect the legal situation of the individual and, second, it must leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules’.
177. Although the Council and the Commission do not deny some connection between the second criterion for the concept of direct concern and the concept of direct effect, (76) the Council disputes that the first criterion is met in the present case, whilst the Commission disputes that the second is met.
178. As regards the first criterion, namely that the contested measure must directly affect the legal situation of the individual concerned, the Council asserts that the criterion of direct concern must be examined having regard to the individual and not having regard to the territory concerned. It thus proceeds from the premiss that the legal situation of a territory cannot be affected by the provisions of an international agreement, even having direct effect, which, in its view, means that it is necessary to assess the effects on the legal situation of the individual and not on that of the territory.
179. I do not concur with the basic premiss on which the Council’s position is based.
180. First of all, the fact that the legal situation of territories can certainly be affected by the provisions of an international agreement, irrespective of whether those provisions produce a direct effect, is shown, in this case in particular, by the Advisory Opinion of the International Court of Justice of 16 October 1975 on Western Sahara, (77) in which the Kingdom of Morocco invoked, as evidence of its display of sovereignty in Western Sahara, certain international acts said to constitute recognition by other States of that sovereignty, since they referred to Western Sahara. (78)
181. As is stated in paragraph 108 of that Opinion, the International Court of Justice examined ‘whether its appreciation of the legal situation which appear[ed] from a study of the interna1 acts invoked by [the Kingdom of] Morocco [was] affected to any extent by a consideration of the international acts said by it to show that the Sultan’s sovereignty was directly or indirectly recognised as extending to [Western Sahara]’. (79) Those acts comprised a number of international agreements concluded by the Sharifian State (the former name of the Kingdom of Morocco) (80) and diplomatic correspondence concerning the interpretation of a provision of a treaty. (81)
182. Consequently, as the Commission accepts in paragraph 30 of its response, the application of the Association and Liberalisation Agreements to Western Sahara could be interpreted as an infringement of its people’s right to self-determination (82) and thus affect the legal situation of that territory, as it gives a degree of legitimacy to the Kingdom of Morocco’s claim to sovereignty. (83)
183. That being said, it is also necessary to consider the argument put forward by the Council at the hearing contesting the link between direct concern in relation to the territory of Western Sahara (if it were established) and in relation to the Front Polisario. That link was established by the General Court, in paragraph 110 of the judgment under appeal, on the basis of the Front Polisario’s participation, with the Kingdom of Morocco, in the UN-led negotiations on the future of Western Sahara.
184. In this regard, the Council asserts that ‘the General Court arbitrarily postulates an absolute identity between the territory and a person … who makes claims over it’. In its view, ‘the sequence followed by the General Court would make sense only if the Front Polisario was intrinsically entitled to defend the commercial interests of Western Sahara, which would presuppose that it is its institutional emanation recognised in international law or at least in international practice’.
185. I agree with this criticism raised by the Council in so far as the Front Polisario is recognised by the UN as the representative of the people of Western Sahara only in the political process (84) for the resolution of the question of the self-determination of the people of that territory. It is in this political context that it is the representative of the people of Western Sahara, the Kingdom of Morocco being the other party to the dispute and the Kingdom of Spain considering itself exempt since 26 February 1976 from any responsibility of any international nature in connection with the administration of Western Sahara.
186. However, the dispute at issue is not part of the political process in which the Front Polisario plays the role of representative of the people of Western Sahara which it has been recognised to hold by the UN.
187. The Council further contests the Front Polisario’s status as the exclusive representative of the people of Western Sahara. Even the Front Polisario states that it is not the only entity with the capacity to represent the people of Western Sahara as, in its view, the Kingdom of Spain is still the administering power in Western Sahara. (85)
188. It is true that since 26 February 1976 the Kingdom of Spain has considered itself exempt from any responsibility of any international nature in connection with the administration of Western Sahara. However, it cannot be categorically ruled out that, despite its withdrawal, the Kingdom of Spain has retained its status as administering power in international law and that, as such, it is the only entity to have the capacity, or indeed the obligation, to protect, including legally, the rights of the people of Western Sahara, in particular its right to self-determination and its sovereignty over the natural resources of the territory.
189. Even though there is no need to settle this point in the present case, the wording of the obligation imposed on administering powers by Article 73(a) and (b) of the United Nations Charter (86) gives me cause to doubt that they are able to release themselves from this role without having accomplished it having regard to the interests and needs of the people of the non-self-governing territory concerned.
190. This doubt is reinforced by the fact that the UN still considers that the obligation to transmit information on Western Sahara to the UN Secretary-General under Article 73(e) of the United Nations Charter applies to the Kingdom of Spain. (87)
191. Furthermore, the Ministerio Fiscal (Office of the Public Prosecutor) of the Kingdom of Spain and the Audiencia Nacional (National High Court, Spain) recognise the status of the Kingdom of Spain as the administering power in Western Sahara, which ‘as such, retains, until the end of the decolonisation period, the obligations under Articles 73 and 74 of the United Nations Charter, which include the protection, including judicial protection, of its citizens against any abuses’. (88) On this basis, the Kingdom of Spain extended its international jurisdiction in criminal matters to crimes committed in Western Sahara. (89)
192. I note that at the hearing the Spanish Government did not comment on the position of the Spanish judicial bodies and simply stated that it respected the decisions of the Spanish courts.
193. Concluding on this point, in my view the link between the contested decision and the Front Polisario seems too indirect to justify direct concern in relation to it.
194. Consequently, I consider that paragraph 110 of the judgment under appeal is vitiated by an error in law in that it recognises direct concern in relation to the Front Polisario.
195. In view of this conclusion, I will examine the second criterion for direct concern, namely that the contested decision must leave no discretion to its addressees, who are entrusted with the task of implementing it, only for the sake of completeness. In this regard I do not share the Commission’s view that it is not met in the present case on account of Implementing Regulation No 812/2012, which the Commission was required to adopt in order to implement the Liberalisation Agreement.
196. In my view, the implementation of the contested act is ‘purely automatic and resulting from EU rules without the application of other intermediate rules’. (90) Its entry in force permits the exercise of rights and the performance of obligations under the Liberalisation Agreement.
197. Implementing Regulation No 812/2012 merely updates Council Regulation (EC) No 747/2001 of 9 April 2001 providing for the management of Community tariff quotas and of reference quantities for products eligible for preferences by virtue of agreements with certain Mediterranean countries and repealing Regulations (EC) No 1981/94 and (EC) No 934/95, (91) giving a concentrated presentation (a single provision together with a summary table) of some of the main reforms introduced by the Liberalisation Agreement.
198. As is clear from Article 2 of Protocol 1 in Annex 1 to the Liberalisation Agreement, the Agreement relates to imports into the European Union ‘of agricultural products, processed agricultural products, fish and fishery products originating in Morocco’, whereas Implementing Regulation No 812/2012 seems to target only some of those products which are imported into the European Union under tariff quotas. (92) The absence of an implementing regulation would not have prevented the agreement applying, both to these products and to others.
199. At the hearing the Commission did not explain how Implementing Regulation No 812/2012 implements the Liberalisation Agreement in respect of all the other products.
200. In any case, even for products covered by Implementing Regulation No 812/2012 (for example tomatoes) for which there is a tariff quota in respect of which detailed provisions are made in that regulation, it should be noted that the Front Polisario does not claim, as an importer would do, that the tariff quota under the Liberalisation Agreement is of direct concern to it. Its complaint concerns the actual application of that agreement to Western Sahara, which has nothing to do with its possible implementation by that regulation.
201. Consequently, I consider that the second criterion for direct concern set out in paragraph 105 of the judgment under appeal is met in the present case.
c) The third part, relating to individual concern in relation to the Front Polisario
202. I will examine this third part only in the event that the Court finds that the contested decision is of direct concern to the Front Polisario.
i) Arguments of the parties
203. The Council and the Commission maintain that the General Court erred in law in holding in paragraphs 111 and 113 of the judgment under appeal that the Front Polisario was individually concerned by the contested decision on the ground that it participated in international negotiations with a view to resolving the dispute over Western Sahara and that, as such, it was in a situation which distinguished it from all other persons. Even accepting that such a situation exists, the General Court’s reasoning does not establish how, having regard to its purpose, the contested decision affects the Front Polisario in any way for the purposes of the case-law. On the contrary, its participation in the UN-led negotiations demonstrates a simple general political interest which does not have any substantive or procedural link with the contested decision and the Liberalisation Agreement, the latter relating solely to commercial and customs matters.
204. On the other hand, the Front Polisario claims that paragraphs 111 and 113 of the judgment under appeal rightly hold that the contested decision is of individual concern to it. In this regard, it submits, first of all, that it is established and undisputed that it has the status of the representative of the people of Western Sahara and that, as such, it is the only negotiating partner of the Kingdom of Morocco in the UN-led negotiations. Second, it explains that the purpose of those negotiations is not to find a simple political solution to a territorial dispute, as the Council and the Commission state, but to permit the people of Western Sahara to exercise its right to self-determination. Lastly, it maintains that the Liberalisation Agreement applies to Western Sahara and to its natural resources, control over which forms part of that right.
ii) Assessment
205. Even though the present case is not covered by the Court’s case-law cited by the Commission concerning the standing to bring proceedings, against a Commission decision on State aid, of a party other than the Member State to which that decision is addressed, (93) there is nothing, in principle, to prevent the Front Polisario satisfying the criterion for individual concern, even though, on account of the special circumstances distinguishing it, there is no precedent for its case which the Court has already had the opportunity to examine.
206. Against this background, I cannot agree with the Commission’s view that paragraph 113 of the judgment under appeal runs counter to the judgment of 10 April 2003, Commission v Nederlandse Antillen (C‑142/00 P, EU:C:2003:217), (94) because the position of the Front Polisario is not at all comparable to the position of the Netherlands Antilles.
207. In paragraphs 66 to 67 of that judgment, the Court ruled that, even though most imports of rice originating in the OCTs into the European Union came from the Netherlands Antilles, not only did that sector constitute only 0.9% of the Netherlands Antilles’ gross national product, but also the Netherlands Antilles were not the only rice-producing OCT concerned by the regulations at issue.
208. On this basis, the Court ruled in paragraph 68 of that judgment that the regulations at issue had not had serious consequences in a significant sector of the economy of the Netherlands Antilles as distinct from every other OCT and that they had not been affected by the provisions in question by reason of attributes distinguishing them from all other OCTs to which those regulations also apply.
209. The situation of the Front Polisario is far removed from that of the Netherlands Antilles. Whilst the Court ruled in paragraph 69 of that judgment that ‘the general interest which an OCT, as an entity responsible for economic and social affairs within its jurisdiction, may have in obtaining a result that is favourable for its economic prosperity is not sufficient on its own to enable it to be regarded as being … individually concerned’, the Front Polisario’s role does not relate at all to economic and social affairs.
210. Its role, as set out in Article 8 of its constituting document, is much broader and essentially consists in leading the people of Western Sahara, of which it is the representative recognised by the UN, (95) to exercise its right to self-determination.
211. However, for the same reasons as I gave in points 185 to 194 of this Opinion, I do not think that individual concern in relation to the Front Polisario can be accepted on the basis of the above considerations.
212. Consequently, the General Court erred in law by ruling in paragraph 113 of the judgment under appeal that the contested decision is of individual concern to the Front Polisario.
213. Paragraphs 110 to 114 of the judgment under appeal should therefore be set aside, which, in my view, results in the setting aside of that judgment.
214. In this case, as the state of the proceedings so permits in accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the action for annulment brought by the Front Polisario must be dismissed as inadmissible in the absence of direct and individual concern.
215. In the event that the Court were not to take the view that the General Court erred in law in ruling that the contested decision was of direct and individual concern to the Front Polisario, I will consider the other grounds of appeal below.
C – In the further alternative
1. The third ground of appeal, alleging an error in law relating to the General Court’s review of the discretion enjoyed by the Council in the field of external economic relations
a) Arguments of the parties
216. The Council and the Commission assert that the General Court erred in law in holding in paragraph 225 of the judgment under appeal that the wide discretion conferred on the Council for the conclusion of economic agreements with third countries was offset by an obligation first to examine all the relevant facts of the individual case.
217. In this regard they dispute, first of all, the very principle of such an obligation, as it can be regarded as a procedural guarantee provided by EU law in return for the discretion available to the decision-making authority in administrative procedures for the implementation, in individual cases, of the EU rules applicable in technical areas involving complex assessments. In the light of its rationale, this procedural guarantee cannot be transposed to the exercise of the wide discretion enjoyed by the Council in the adoption of legislative or normative acts, even though account must also be taken of information available in this context. In any event, in a political field such as the conclusion of international agreements, judicial review of the wide discretion conferred on the legislature should be limited to verifying that the action taken was not manifestly inappropriate in relation to the objective pursued.
218. Second, the Council and the Commission submit that the General Court committed errors in law in setting out the detailed arrangement for implementation of the prior examination obligation laid down in the judgment under appeal. That judgment linked it to the existence of doubts over respect for the rights of the people of Western Sahara, as attested by a report produced by the council of the Front Polisario, rather than establishing the infringement of a rule of law or the existence of a manifest error of assessment. In addition, such a report cannot, in view of its origin, be regarded as valid proof.
219. In the view of the Front Polisario, the prior examination obligation highlighted by the General Court forms part of the fundamental guarantees which must be provided, within a Union based on the rule of law, where an EU institution enjoys discretion, and in particular, therefore, in the field of the European Union’s external economic relations. In addition, this obligation is connected with the general principle of sound administration, whose respect must be ensured, according to the case-law of the European Court of Human Rights, (96) not only in administrative procedures but also in procedures leading to the adoption of normative acts. That obligation helps to enable the Council to exercise its discretion in full knowledge of the facts, without limiting at all its extent, and to permit the court to satisfy itself that its exercise has not been vitiated by a manifest error of assessment.
b) Assessment
220. According to settled case-law, ‘the Union legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. [The Court] concluded from this that the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue’. (97)
221. In this regard, as has been recognised by the EU Courts, its institutions enjoy a wide discretion in the field of external economic relations, which includes the Association and Liberalisation Agreements. (98)
222. It is true that, as the Council and the Commission assert, the case-law on which the General Court relied in paragraph 225 of the judgment under appeal (99) in finding the existence of a general obligation for the EU institutions to examine ‘carefully and impartially all the relevant facts of the individual case … which support the conclusions reached’ prior to the adoption of the act at issue is not relevant in the field of external economic relations. That case-law imposes an obligation to that effect on the EU institutions where, in an administrative procedure, (100) they intend to adopt a decision affecting the interests of a natural or legal person. (101)
223. However, I do not think that the General Court’s reference to the judgments of 21 November 1991, Technische Universität München (C‑269/90, EU:C:1991:438), and of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803), rather than the case-law cited in point 220 of this Opinion, affects its conclusion because the principles applicable in administrative procedures are applicable mutatis mutandis to legislative procedures.
224. It is settled case-law that, although the Union legislature enjoys broad political discretion when it weighs different general interests in the adoption of a legislative or regulatory act, it is always bound by the obligation to take into account all the relevant ‘basic facts’ and available ‘facts’. (102) In this context the Court must determine that the discretion has actually been exercised (103) and that the measure adopted is not manifestly inappropriate. (104)
225. I consider that the judgment of 16 April 2013, Spain and Italy v Council (C‑274/11 and C‑295/11, EU:C:2013:240), is particularly important in this regard because it concerned a Council decision authorising enhanced cooperation under Article 329(1) TFEU, which, like the contested decision, belongs to what the Commission has called the ‘hard core of the EU institutions’ discretion’.
226. When it reviewed the lawfulness of that decision, the Court of Justice reproduced almost verbatim the principle set out in the judgments of 21 November 1991, Technische Universität München (C‑269/90, EU:C:1991:438, paragraph 14), and of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803, paragraph 57), and reiterated by the General Court in paragraph 225 of the judgment under appeal, ruling that ‘in exercising its review of whether the condition that a decision authorising enhanced cooperation must be adopted only as a last resort has been satisfied, [the Court] should therefore ascertain whether the Council has carefully and impartially examined those aspects that are relevant to this point and whether adequate reasons have been given for the conclusion reached by the Council’. (105)
227. If the Council is subject to these requirements when it acts in a legislative capacity, it is difficult to imagine that it would not be when it has recourse to a special legislative procedure for the conclusion of an international agreement. (106)
228. For the same reasons as are given in point 142 of this Opinion, the references made by the Commission in paragraphs 12 to 14 of its rejoinder to the political nature of the question of Western Sahara cannot prevent the limited review which the Court must perform in the field of international relations, in which the EU institutions enjoy broad discretion. (107)
229. For these reasons, I consider that the General Court did not err in law in ruling in paragraph 225 of the judgment under appeal that ‘where [an] EU institution enjoys a wide discretion, in order to verify whether it has committed a manifest error of assessment, the Courts of the European Union must verify whether it has examined carefully and impartially all the relevant facts of the individual case, facts which support the conclusions reached’.
230. Lastly, I also do not concur with the Commission’s position that, rather than linking the prior examination of the relevant facts to the existence of doubts over respect for the rights of the people of Western Sahara, as attested by a report produced by the council of the Front Polisario, the General Court should have established the infringement of a rule of law or the existence of a manifest error of assessment.
231. I note that the General Court based the partial annulment of the contested decision on a combination of several pleas in law raised by the Front Polisario, including the first plea alleging failure to state adequate reasons. (108)
232. Against this background, the General Court ruled first that, prior to the adoption of the contested decision, the Council had an obligation to conduct an examination of all the relevant facts (109) and in particular, in this case, to take account of the impact which the conclusion of the Liberalisation Agreement could have on the human rights of the people of Western Sahara and on exploitation of the natural resources of that territory. (110)
233. On that basis, the General Court ruled in paragraph 244 of the judgment under appeal that ‘it does not follow either from the Council’s arguments or from the evidence that it attached to the file that it carried out [such] an examination’.
234. It therefore stopped before examining and a fortiori determining the question whether the contested decision entailed or contributed to an infringement of human rights in Western Sahara or exploitation of its natural resources in contravention of international law. For this reason the case-law cited by the Commission (111) concerning review of the lawfulness of an act of the European Union having regard to the principles of customary international law is not applicable in this case.
235. Nor did the General Court express a view on the veracity of the allegations contained in the report by the Front Polisario’s lawyer, the probative value of which is contested by the Commission. The General Court simply noted that ‘the Council has not made any specific comment and has not denied them, which suggests that it did not consider whether the exploitation of the natural resources of the part of Western Sahara under Moroccan control was for the benefit of the population of that territory’. (112)
236. As the Council did not comply with its obligation to conduct an examination of all the relevant facts before adopting the contested decision in a field where it enjoys broad discretion, the General Court ruled, in essence, that it was impossible for it to carry out its judicial review in order to determine whether or not the contested decision was manifestly inappropriate. (113) By ruling to that effect it did not err in law.
237. Consequently, the third ground of appeal must be rejected.
2. The fourth ground of appeal, alleging that the General Court ruled ultra petita
a) Arguments of the parties
238. The Council and the Commission claim that the General Court erred in law in its judgment in examining, in paragraphs 227 and 241 of the judgment under appeal, whether the Council had failed to fulfil its obligation to examine all the relevant facts of the case before adopting the contested decision and by partially annulling that decision on that ground in paragraph 247 of that judgment. Contrary to the statement made in paragraph 226 of the judgment and paragraph 125, to which it refers, the Front Polisario did not raise any plea in law on this subject. In ruling on this question, the General Court thus raised of its own motion a plea in law which was not a matter of public policy and, moreover, without first hearing the Council.
239. The Front Polisario contests the merits of this ground of appeal, claiming in essence, first, that the General Court did not rule ultra petita because its application did seek the annulment of the contested decision in so far as it had approved the application of the Liberalisation Agreement to Western Sahara, second, that the ground for annulment on which the operative part of the judgment under appeal was based was not raised of the Court’s own motion but was raised in paragraphs 78 to 85 of its application lodged with the General Court and, lastly, that, although the arguments in this regard were relied on in connection with a plea in law alleging a failure to state adequate reasons, it was for the EU Courts to restore their proper legal classification.
b) Assessment
240. As the Front Polisario asserts in paragraphs 77 to 85 of its application lodged with the General Court, it challenged the validity of the contested decision on grounds of failure to state adequate reasons in its first plea for annulment.
241. In paragraph 79 of that application, the Front Polisario claims that ‘the Council … had … an obligation to take into account the entire legal and factual context to ensure that the text of the agreement could not infringe international law in any way or undermine the rights of the Sahrawi people’.
242. In this regard, in paragraphs 125 to 127 of the judgment under appeal, the General Court rejected the first plea in law only partially, reserving the examination of the Front Polisario’s complaint that the Council had not examined the relevant facts of the individual case before adopting the contested decision. The General Court conducted that examination in paragraphs 226 to 247 of the judgment under appeal.
243. Furthermore, the General Court reserved the examination of a number of arguments relied on by the Front Polisario in support of its third plea in law (infringement of fundamental rights), its fifth plea in law (breach of the fundamental values of the European Union and the principles governing its external action), its sixth plea in law (failure to achieve the objective of sustainable development), its ninth plea in law (incompatibility of the contested decision with several agreements concluded by the European Union) and its tenth plea in law (incompatibility of the contested decision with international law), in so far as they sought to challenge the exercise by the Council of its broad discretion. (114)
244. For those reasons I do not think that the General Court ruled ultra petita in examining whether the contested decision had to be preceded by an examination of all the facts of the individual case.
245. Consequently, the fourth ground of appeal must be rejected.
3. The fifth ground of appeal, alleging errors in law relating to the application of the Charter of Fundamental Rights of the European Union and the principle of permanent sovereignty over natural resources
a) The first part, relating to the obligation to examine the question of respect for fundamental rights
i) Arguments of the parties
246. The Commission claims, first, that the complaint alleging the infringement of the Charter of Fundamental Rights of the European Union, which was accepted by the General Court, had not been raised in a comprehensible manner in paragraphs 111 to 115 of the application at first instance.
247. The Council and the Commission submit, second, that the General Court’s reasoning in paragraphs 227, 228, 230 and 231 of the judgment under appeal is based on a misinterpretation and misapplication of the Charter of Fundamental Rights. In this regard they state that the General Court does not conclude that the contested decision or the Liberalisation Agreement contain a provision contrary to fundamental rights, but complains that those acts permit exports to the European Union of products obtained in conditions which are likely to affect the fundamental rights of the people of Western Sahara and, as such, to encourage indirectly the infringement of some of the rights enshrined in the Charter of Fundamental Rights. They also assert that such reasoning effectively makes the lawfulness of acts of the European Union dependant on conduct imputable to third countries with which it concludes international agreements. Lastly, they submit that this reasoning results in an extraterritorial effect being conferred on the Charter of Fundamental Rights, in contravention of Article 51 thereof, which should be understood as meaning that the EU institutions are required to respect fundamental rights within the territorial scope of EU law, as defined by Article 52 TEU and Article 355 TFEU, and not, with some exceptions, outside that scope.
248. Third and last, the Council and the Commission assert that the question of respect for human rights is taken into account, for the purposes of the Union’s external action, in a procedural framework other than that defined by the General Court. Under Article 21 TEU and Article 205 TFEU, promotion and support for human rights constitute, respectively, a principle and an objective underlying the Union’s action on the international scene. As such, they should be taken into consideration by the Council in the conduct of the European Union’s external relations, whilst being able to be weighed with other principles and objectives on the basis of the broad discretion conferred on that institution. In practice, the human rights situation in a third country should be regarded as a political matter which could lead the Council to avail itself of the surveillance clauses laid down in the international agreements concluded by the European Union, once those agreements have entered into force. On the other hand, respect for human rights constitutes neither an element subject to a prior examination of the kind defined by the General Court in paragraphs 228, 241 and 244 of the judgment under appeal nor a substantive requirement governing the conclusion of an international agreement.
249. The Front Polisario disputes the existence of errors in law, claiming, in essence, that the merits of the pleas challenged by the Council and the Commission had to be assessed in the light of the specific legal and factual context in which the General Court gave its ruling. In this regard the General Court found, first, that Western Sahara was outside the frontiers of the Kingdom of Morocco, as recognised by the UN, the EU and its Member States, second, that the Kingdom of Morocco also did not have any international mandate to administer it, and third, that, supported by the Council and the Commission, the Liberalisation Agreement approved by the contested decision therefore applied to a non-self-governing territory.
250. The General Court then held that in the specific case where an international agreement concluded by the European Union is applicable to a disputed territory, the question of fundamental rights is of particular importance. Lastly, it concluded that this question had to be examined by the Council before the adoption of the decision. This approach is consistent with Article 51 of the Charter of Fundamental Rights as that article requires the Council to respect fundamental rights when it exercises its powers under the Treaties, as it did in this case. It is also consistent with Article 205 TFEU, Article 21 TEU and the provisions of the Association Agreement requiring respect for human rights in this case.
251. Furthermore, the Front Polisario submits that the Charter of Fundamental Rights must be considered to be applicable both ratione personae and ratione materiae, because many Sahrawis born during the ‘provincialisation’ period for Western Sahara under the Kingdom of Spain are Spanish nationals and because the existence of infringements of their fundamental rights has been officially established by many UN documents and by the European Court of Human Rights.
ii) Assessment
– The admissibility of the plea in law in the application for annulment brought by the Front Polisario alleging infringement of fundamental rights
252. I do not share the Commission’s view that the third plea in law in the application for annulment brought by the Front Polisario alleging infringement of fundamental rights is inadmissible because it is incomprehensible.
253. It is clear from paragraphs 96 to 101 and 111 to 115 of the Front Polisario’s application at first instance that in its view the contested decision entailed the infringement of the fundamental rights of the people of Western Sahara, in particular Articles 6, 17, 37, 47 and 53 of the Charter of Fundamental Rights, as it helps to perpetuate the Moroccan presence in Western Sahara.
– The complaint alleging a misinterpretation and misapplication of the Charter of Fundamental Rights
254. Under Article 3(5), Article 21(1), first subparagraph, (2)(b), and (3) and Article 23 TEU and Article 205 TFEU, human rights and their protection are among the principles and essential values of the European Union which must guide its action on the international scene.
255. As the Court recently ruled with regard to an international agreement approved by a Council decision, (115) the legal basis of which was Article 37 TEU in conjunction with Article 218(5) and (6) TFEU, ‘compliance [with the principles of the rule of law, human rights and human dignity] is required of all actions of the European Union, including those in the area of the CFSP, as is clear from the provisions, read together, set out in the first subparagraph of Article 21(1), Article 21(2)(b) and (3) TEU, and Article 23 TEU’. (116)
256. Furthermore, it is settled case-law that the Union must respect international law in the exercise of its powers. (117) It follows that, if it is not to be devoid of any practical purpose, the question of the conformity of the agreement at issue with international law must be taken into account in the prior examination of all the relevant facts to be conducted by the institutions before concluding an international agreement.
257. In addition to the obligation under EU law to examine the general human rights situation in the other party to the international agreement, and more specifically to study the impact which that agreement could have on human rights, international law requires actors in international law, in particular States and international organisations, to respect peremptory norms of international law (jus cogens) and erga omnes obligations.
258. In this regard, the International Court of Justice has ruled that ‘by their very nature, [erga omnes obligations] “concern of all States” and, “in view of the importance of the rights involved, all States can be held to have a legal interest in their protection”‘. (118) On that basis it ruled that ‘all States are under an obligation not to recognise the illegal situation resulting from the [infringement of the erga omnes obligation and] are also under an obligation not to render aid or assistance in maintaining the situation created by such [infringement]’. (119)
259. Consequently, before concluding international agreements, the EU institutions must ensure compliance with the very short list of peremptory norms of international law (jus cogens) (120) and erga omnes obligations, (121) which include ‘the outlawing of acts of aggression, and of genocide, [and] the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination’ (122) and the right to self-determination. (123)
260. It should be noted in this regard that the Council does not deny that the general human rights situation in the other party to an international agreement is one of the elements to be taken into account at the time of the negotiation and the conclusion of the agreement. However, in paragraphs 32 and 82 of its application at first instance, the Front Polisario complained that the Council did not conduct an assessment of the impact of the Liberalisation Agreement on human rights prior to the conclusion of that agreement.
261. Since the human rights situation in Western Sahara is one of the points of dispute between the Front Polisario and the Kingdom of Morocco and for that reason was the subject of an examination by the UN Secretary-General in his annual reports on Western Sahara, (124) it cannot be claimed that there was no cause for an impact assessment.
262. In my view, neither the Council nor the Commission nor any of the interveners puts forward a convincing reason why, given these requirements, the EU institutions are not required, before the conclusion of an international agreement, to examine the human rights situation in the other party to the agreement and the impact which the conclusion of the agreement at issue could have there in this regard.
263. I note that the Council and the Commission have set the bar very high for themselves by deciding to ‘insert human rights in Impact Assessment, as and when it is carried out for legislative and non-legislative proposals … and trade agreements that have significant economic, social and environmental impacts’. (125)
264. It is therefore hardly surprising that the European Ombudsman found, by her decision of 26 February 2016 in Case 1409/2014/MHZ on the European Commission’s failure to carry out a prior human rights impact assessment of the free trade agreement between the European Union and the Socialist Republic of Vietnam, (126) that the Commission’s failure to provide valid reasons to justify its refusal to carry out such an assessment constituted maladministration.
265. It is true that, as the Council and the Commission observe, Articles 2, 3 and 90 of the Association Agreement and the Joint Declaration relating to Article 90 of the Agreement annexed to the Final Act of that agreement permit the European Union to comply with its ongoing obligation to respect and promote respect for human rights throughout the life of the agreement, of which they constitute an ‘essential element’. (127)
266. However, as the European Ombudsman states in paragraph 24 of her decision of 26 February 2016 in Case 1409/2014/MHZ, for the impact assessment to have a significant effect, it should be carried out before the international agreement at issue is concluded, as it is in the period of the negotiation of the agreement that the European Union can best promote its values and objectives, including respect for and protection of human rights.
267. Contrary to the submission made by the Council and the Commission, the obligation to carry out an assessment of the impact of the Liberalisation Agreement on human rights does not effectively make the lawfulness of acts of the European Union dependant on legal acts of a third State such as the Kingdom of Morocco.
268. As the General Court ruled in paragraph 231 of the judgment under appeal, ‘if the European Union allows the export to its Member States of products originating in that other country which have been produced or obtained in conditions which do not respect the fundamental rights of the population of the territory from which they originate, it may indirectly encourage such infringements or profit from them’.
269. Even if the existence and the enforceability of such a principle in EU law were disputed, it is clear that international law imposes a clear obligation on the European Union and its Member States not to recognise an illegal situation resulting from the infringement of principles and rules concerning fundamental rights and not to render aid or assistance in maintaining the situation created by that infringement. To that end, the EU’s institutions and its Member States must examine the impact which the international agreement at issue could have on human rights.
270. As regards the claim made by the Council and the Commission that, in relying on Articles 1 to 3, 5, 15, 16, 17, 31 and 32 of the Charter of Fundamental Rights in paragraph 228 of the judgment under appeal, the General Court conferred on its provisions an extraterritorial effect contrary to Article 51 thereof, it should be noted at the outset that, as is acknowledged by the Kingdom of Belgium and the Commission, fundamental rights may, in some circumstances, produce extraterritorial effects. That is certainly the case where an activity is governed by EU law and carried out under the effective control of the EU and/or its Member States but outside their territory. (128)
271. However, since in this case neither the European Union nor its Member States exercise control over Western Sahara and Western Sahara is not among the territories to which EU law is applicable, there can be no question of applying the Charter of Fundamental Rights there, even though, as the Front Polisario claims, a number of Sahrawis are Spanish nationals.
272. Accordingly, although the General Court correctly ruled in paragraph 228 of the judgment under appeal that ‘the Council must examine, carefully and impartially, all the relevant facts in order to ensure that the production of goods for export … [does not entail] infringements of fundamental rights [of the population of Western Sahara]’, it was not able, however, to rely on provisions of the Charter of Fundamental Rights. Paragraph 228 of the judgment under appeal is therefore vitiated by an error in law.
273. Nevertheless, if the grounds of a judgment of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the annulment of that judgment, and a substitution of grounds must be made. (129)
274. That is the case here, as the fact that the General Court referred to the Charter of Fundamental Rights does not affect the EU institutions’ obligation under EU law and international law (130) to examine, before adopting the contested decision, the human rights situation in Western Sahara and the impact which the conclusion of the agreement at issue could have there in this regard.
275. I would point out in this respect that the arguments relating to the discretion enjoyed by the EU institutions and the facts which they must take into account, which are accepted by the General Court as grounds for the partial annulment of the contested decision, were based on a combination of a number of pleas in law raised by the Front Polisario, in particular the pleas alleging failure to state adequate reasons, infringement of fundamental rights, breach of the fundamental values of the Union’s external action (Article 21 TEU and Article 205 TFEU) and infringement of international law.
276. Against this background, the General Court should have referred to the principles and rules concerning the basic rights of the human person (131) which, according to the case-law of the International Court of Justice, constitute erga omnes obligations in international law whose protection must be ensured by States, which must refrain from rendering aid or assistance in maintaining situations created by their infringement. (132)
277. It is true that the Court ruled in paragraph 107 of the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), that ‘the principles of customary international law … may be relied upon by an individual for the purpose of the Court’s examination of the validity of an act of the European Union in so far as, first, those principles are capable of calling into question the competence of the European Union to adopt that act … and, second, the act in question is liable to affect rights which the individual derives from EU law or to create obligations under EU law in his regard’.
278. However, what is at issue is not the lawfulness of the contested decision having regard to the principles of international law, but its lawfulness in respect of the failure, before its adoption, to take into account all the relevant factors, including its compatibility with international human rights law. The conditions set out in paragraphs 107 to 110 of the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), concerning the possibility of relying on rules of customary international law are not therefore applicable. (133)
279. Consequently, the first part of the fifth ground of appeal must be rejected.
b) The second part, relating to the obligation to examine the conformity of the Liberalisation Agreement with Article 73 of the United Nations Charter and the principle of permanent sovereignty over natural resources
i) Arguments of the parties
280. The Council and the Commission claim that, by criticising the Council, in paragraphs 228, 231, 241 and 244 of the judgment under appeal, for failing to examine the conditions for the exploitation of the natural resources of Western Sahara before adopting the contested decision, the General Court ultimately demands that it verifies that third countries with which it intends to conclude international agreements which may be applied to non-self-governing territories, in this case the Kingdom of Morocco, fulfil the obligations under Article 73 of the United Nations Charter. However, this reasoning is vitiated by three sets of errors in law.
281. First, Article 73 of the United Nations Charter in itself imposes obligations only on members of the United Nations which have or assume responsibilities for the administration of non-self-governing territories. That is not the case with the European Union. In addition, the possibility that the Kingdom of Morocco might not comply with its obligations under that provision as the de facto administering power in Western Sahara is not capable of altering the scope of that article by imposing a verification obligation on the EU institutions where they intend to conclude an agreement with that country. On the contrary, such delicate political questions fall within the sole competence of the UN Security Council.
282. Second, Article 73 of the United Nations Charter does not meet the conditions under which an individual may rely on it in legal proceedings in order to contest the legality of an act of the European Union.
283. Third and last, the General Court misinterpreted customary international law, as it did not cite any legal basis requiring the EU institutions to verify that the other party to the agreement has complied with the principle of permanent sovereignty over natural resources and the primacy of the interests of the inhabitants of non-self-governing territories. Similarly, it did not cite any legal basis from which it can be inferred that, in the absence of such verification, the agreement concluded by the European Union may indirectly encourage the infringement of those principles.
284. In any case, the General Court exceeded the limits of its judicial review since, in view of the imprecision of these principles, it should have concluded that no manifest error of assessment justified the annulment of the contested decision, rather than imposing an unprecedented procedural obligation on the Council.
285. In response, the Front Polisario asserts that it is irrelevant to criticise the General Court for reviewing the conformity of the contested decision with Article 73 of the United Nations Charter since reference is made to that provision only in reasoning seeking to determine whether the Council had an obligation to examine the conditions for the exploitation of the natural resources of Western Sahara before adopting the contested decision.
286. In addition, that reasoning is free from errors in law as the principle of customary international law of permanent sovereignty over natural resources is linked to the right to self-determination, which itself constitutes a norm of jus cogens with erga omnes effects. Consequently, each State must ensure that it is complied with.
ii) Assessment
287. It should be noted at the outset that the question at the heart of the second part of the fifth ground of appeal is not whether the contested decision complies with Article 73 of the United Nations Charter, the right to self-determination and the principle of permanent sovereignty over natural resources but simply whether the Council had to take these factors into account before adopting the contested decision.
288. In this regard, the arguments made by the Council and the Commission concerning the fact that these norms of public international law do not satisfy the conditions under which an individual may rely thereon in legal proceedings in order to contest the legality of an act of the European Union, as set out in the Court’s case-law, must be rejected. (134)
289. It must therefore be examined whether the General Court correctly ruled in paragraph 241 of the judgment under appeal that, in the examination of all the relevant facts, ‘the Council … should have satisfied itself that there was no evidence of an exploitation of the natural resources of the territory of Western Sahara under Moroccan control likely to be to the detriment of its inhabitants and to infringe their fundamental rights’.
290. It is settled case-law that the Union must respect international law in the exercise of its powers. (135) This requirement applies to all the Union’s external action, including the negotiation and conclusion of international agreements. (136)
291. The fundamental principles applicable to non-self-governing territories are set out in Article 73 of the United Nations Charter, according to which ‘members [of the UN] which have or assume responsibilities for the administration of [such] territories recognise the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost … the well-being of the inhabitants of these territories’.
292. Aside from their obligation under Resolution 1514 (XV) to assist the peoples of such territories to exercise their right to self-determination, administering powers must also comply with the principle of the permanent sovereignty of those peoples over the natural resources of their territories, (137) which has been recognised by the International Court of Justice as a principle of customary international law. (138)
293. In the case of non-self-governing territories, the principle of permanent sovereignty over natural resources essentially means that the administering power may not, without breaching its obligations under the United Nations Charter, deprive the peoples of non-self-governing territories of the exercise of their legitimate rights over the natural resources of those territories or subordinate the rights and interests of those peoples to foreign economic and financial interests. (139) On the other hand, foreign economic investment undertaken in collaboration with the peoples of the non-self-governing territories and in accordance with their wishes in order to make a valid contribution to the socio-economic development of the territories is consistent with that principle. (140)
294. Article 73 of the United Nations Charter and the principle of permanent sovereignty over natural resources have never been regarded as peremptory norms of international law (jus cogens) or erga omnes obligations. (141) Consequently, the possibility of an infringement of Article 73 of the United Nations Charter and the principle of permanent sovereignty over natural resources cannot establish the liability of the European Union as the obligation not to recognise as legal a situation resulting from a serious infringement of an erga omnes obligation and not to render aid or assistance in maintaining that situation (142) does not apply.
295. The necessary corollary of the fact that Article 73 of the United Nations Charter and the principle of permanent sovereignty over natural resources are not erga omnes obligations is that they can be infringed only by those who are bound by those provisions, which does not include the European Union and its institutions. In this regard, if they were applicable to Western Sahara, the Association and Liberalisation Agreements merely establish a favourable customs regime for exports of products originating in Western Sahara to the European Union. As such, those agreements do not concern the exploitation of natural resources, whether in Morocco or in Western Sahara.
296. It is true that the possibility that products originating in that territory can benefit from that regime may encourage exploitation of the natural resources of Western Sahara. However, such exploitation is not in itself contrary to international law, but depends on whether it complies with the principle of the primacy of the interests of its inhabitants enshrined in Article 73 of the United Nations Charter and the principle of permanent sovereignty over natural resources. The Kingdom of Morocco alone is able to ensure that such exploitation is in accordance with international law.
297. As the liability of the European Union cannot be established, even if the exploitation of the natural resources of Western Sahara proved to be contrary to Article 73 of the United Nations Charter and the principle of permanent sovereignty over natural resources, the General Court erred in law in ruling in paragraphs 229 to 246 of the judgment under appeal that the impact of the Liberalisation Agreement on this principle was a relevant fact which had to be taken into account by the Council before concluding that agreement and that this question did not only concern the Kingdom of Morocco. Those paragraphs must therefore be annulled.
298. However, this error cannot have consequences for the remainder of the judgment under appeal since, as I explained in points 254 to 279 of this Opinion, the General Court correctly ruled that the Council had failed to fulfil its obligation to examine, before adopting the contested decision, the human rights situation in Western Sahara and the impact which the conclusion of the agreement at issue could have there in this regard.
299. Consequently, the second part of the fifth ground of appeal must be rejected as ineffective.
4. The sixth ground of appeal, alleging an error in law relating to the extent of the annulment of the contested decision
a) Arguments of the parties
300. The Council and the Commission assert that the General Court made two errors in law in paragraph 247 of the judgment under appeal in annulling the contested decision in so far as it approves the application of the Liberalisation Agreement to Western Sahara. In the absence of any explicit reference to Western Sahara in that agreement, no element in this regard can be severed from that decision. In addition, the judgment under appeal would, in short, unilaterally alter the territorial scope of the Liberalisation Agreement and, therefore, the spirit and substance of the contested decision. The Kingdom of Morocco would never have accepted the agreement if the EU institutions had included in it a clause explicitly excluding its application to Western Sahara.
301. The Front Polisario contends that the element annulled by the General Court is severable from the remainder of the contested decision and alters neither its spirit nor its substance because Western Sahara is a non-self-governing territory with internationally recognised borders and is distinct from the Kingdom of Morocco under both international law and EU law. It also maintains that this severability is confirmed by the repeated claims of the Council and the Commission that the Liberalisation Agreement remains in force and continues to produce effects vis-à-vis the Kingdom of Morocco despite the annulment ordered by the General Court.
b) Assessment
302. The examination of this ground of appeal also forms part of the arguments I am making in the alternative, namely in the event that the Court decides that the Liberalisation Agreement applies to the territory of Western Sahara and also concludes that the Council infringed its obligation to examine all or some of the relevant facts prior to the contested decision. In my view, however, a partial annulment of the contested decision would not seem objectionable in this case.
303. It should be recalled that the General Court’s decision to annul the contested decision partially stems from the ambiguity of the position of the Council and the Commission, according to which the Liberalisation Agreement is not applicable to Western Sahara but is applied to it de facto, an ambiguity on which the General Court based direct and individual concern in relation to the Front Polisario.
304. Having established unlawfulness in the procedure (143) for the adoption of the contested decision which vitiates it only in so far as the Liberalisation Agreement applies to Western Sahara, the General Court annulled the contested decision ‘in so far as it approves the application [of the Liberalisation Agreement] to Western Sahara’.
305. According to settled case-law, ‘[partial] annulment is possible only in so far as the elements whose annulment is sought may be severed from the remainder of the act … The Court has repeatedly ruled that that requirement of severability is not satisfied where the partial annulment of an act would have the effect of altering its substance … Review of whether the contested provisions are severable requires consideration of their scope, in order to be able to assess whether their annulment would alter the spirit and substance of the decision challenged ...’. (144)
306. In these circumstances, contrary to the claim made by the Council, in annulling the contested decision in so far as it approves the application of the Liberalisation Agreement to Western Sahara, the General Court did not contest the Council’s power to conclude an agreement applicable to Western Sahara with the Kingdom of Morocco, but the fact that the Council approved its conclusion without first examining all the relevant facts of the individual case.
307. By the partial annulment, the General Court also did not alter the spirit and substance of the contested decision as the partial annulment is linked to matters relating solely to the territorial scope of the Liberalisation Agreement and not its merits.
308. The sixth ground of appeal must therefore be rejected.
VII – Costs
309. Under Articles 137 and 184(2) of its Rules of Procedure, where the Court itself gives final judgment in the case, it is to make a decision as to costs.
310. Under Article 138(1) of those Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
A – Principal and alternative considerations
311. As, in my view, the Front Polisario must be unsuccessful in the appeal for the reasons I have given, principally, in points 54 to 114 of this Opinion and, in the alternative, in points 185 to 194 and 211 of this Opinion, it must be ordered to bear its own costs and to pay those incurred by the Council and the Commission, both at first instance and at the appeal stage.
312. In that case, pursuant to Article 140(1) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the Member States which have intervened in the proceedings are to bear their own costs.
313. The Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic and the Portuguese Republic must therefore be ordered to bear their own costs.
314. Under Article 140(3) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the Court may order an intervener, other than the Member States, the EU institutions, States which are parties to the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) and States which are parties to EFTA to bear their own costs.
315. As Comader has not made an application in this regard, it must be ordered to bear its own costs.
B – In the further alternative
316. In the event that the Court of Justice did not concur with my view that the Association and Liberalisation Agreements are not applicable to Western Sahara and ruled that the contested decision was of direct and individual concern to the Front Polisario, the appeal would have to be dismissed for the reasons I have given in points 116 to 308 of this Opinion.
317. Under Article 138(1) and (2) and Article 184(1) of the Rules of Procedure, the Council and the Commission, which would have been unsuccessful in their submissions, would each have to bear their own costs and pay those incurred by the Front Polisario both at first instance and at the appeal stage.
318. My observations regarding the costs incurred by the interveners in the appeal in points 312 to 315 of this Opinion are also valid here.
VIII – Conclusion
319. In the light of the above considerations, I propose that the Court:
Principally and in the alternative
– set aside the judgment of the General Court of the European Union of 10 December 2015, Front Polisario v Council (T‑512/12, EU:T:2015:953), by which it annulled Council Decision 2012/497/EU of 8 March 2012 on the conclusion of an Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, in so far as it approves the application of that agreement to Western Sahara;
– dismiss the action for annulment brought by the Front Populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) as inadmissible;
– order the Front Populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) to pay the costs incurred by the Council of the European Union and the European Commission both at first instance and at the appeal stage; and
– order the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Portuguese Republic and the Confédération marocaine de l’agriculture et du développement rural (Comader) to bear their own costs.
In the further alternative
– dismiss the appeal as unfounded;
– order the Council of the European Union and the European Commission each to bear its own costs and to pay the costs incurred by the Front Populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) both at first instance and at the appeal stage, and
– order the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Portuguese Republic and the Confédération marocaine de l’agriculture et du développement rural (Comader) to bear their own costs.