Joined Cases T‑344/19 and T‑356/19
Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (Front Polisario)
v
Council of the European Union
Judgment of the General Court (Ninth Chamber, Extended Composition), 29 September 2021
(External relations – International agreements – Euro-Mediterranean Association Agreement EC-Morocco – Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco – Implementation protocol to the Partnership Agreement – Exchange of letters accompanying the Partnership Agreement – Conclusion decision – Regulation on the allocation of fishing opportunities among the Member States – Action for annulment – Admissibility – Capacity to bring legal proceedings – Direct concern – Individual concern – Territorial scope – Jurisdiction – The Court’s interpretation of international law – Principle of self-determination – Principle of the relative effect of treaties – Possibility of relying on those principles – Concept of consent – Implementation – Discretion – Limits – Maintenance of the effects of the contested decision)
1. Action for annulment – Natural or legal persons – Legal person – Autonomous concept of EU law – Requirement of legal personality and the capacity to bring proceedings
(Art. 263, fourth para., TFEU)
(see paragraphs 134-136)
2. Action for annulment – Natural or legal persons – Capacity to bring legal proceedings – Legal persons – Concept – Entity recognised internationally as the representative of a people of a non-self-governing territory – Included
(Art. 263, fourth para., TFEU)
(see paragraphs 141, 142, 146-148, 150, 151)
3. Judicial proceedings – Representation of the parties – Action brought by a legal person governed by private law – Power of attorney given to the lawyer – Validity – Authorisation of the bodies of the legal person governed by private law to bring an action – Taking into account the nature of the legal person – Legal person not constituted according to the usually applicable legal rules
(Rules of Procedure of the General Court, Art. 51(3))
(see paragraphs 161, 165)
4. European Union – Judicial review of the legality of the acts of the institutions – Scope – Act approving an international agreement concluded by the European Union – Included
(Art. 263 TFEU)
(see paragraph 171)
5. International agreements – European Union Agreements – Conclusion – Legal effects vis-à-vis third parties – General international-law principle of the relative effect of treaties – Agreement capable of affecting a third party
(Art. 218(6) TFEU)
(see paragraphs 182, 183)
6. European Union – Judicial review of the legality of the acts of the institutions – International agreements – Actionable measures – EU act concluding an international agreement – Review of the validity of a decision concluding such an agreement – Taking into account the actual content of the agreement – Compliance with the principle of effective judicial protection
(Art. 263 TFEU)
(see paragraphs 185-187)
7. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Whether directly concerned – Individual concern – Criteria – Sustainable Fisheries Partnership Agreement between the European Union and Morocco – Decision 2019/441 – Taking into account the actual content of the international agreement and its legal effects on a third territory – Compliance with the principle of effective judicial protection
(Art. 263, fourth para., TFEU)
(see paragraphs 188, 189, 231-233, 255, 262, 265)
8. International agreements – European Union Agreements – Interpretation – Jurisdiction of the EU judicature – Conditions – Agreements governed by international law – Application of the Vienna Convention on the Law of Treaties – Relations between States – Creation of a right for a third State from a provision of a treaty – Principles – Scope – Other subjects of international law – Included
(Arts 216 and 267, first para., (b), TFEU)
(see paragraph 308)
9. International agreements – European Union Agreements – Interpretation – Jurisdiction of the EU judicature – Conditions – Agreements governed by international law – Application of the Vienna Convention on the Law of Treaties – Treaties and third States – Principle of free consent – Requirements and legal effects
(see paragraphs 316, 317)
10. Action for annulment – Natural or legal persons – Concept of ‘regulatory act’ within the meaning of the fourth paragraph of Article 263 TFEU – Any measure of general application other than legislative acts – Council Regulation on the allocation of fishing opportunities under the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco and the implementation protocol thereto – Included
(Arts 43(3) and 263, fourth para., TFEU; Council Regulation 2019/440)
(see paragraphs 377-379)
11. Action for annulment – Natural or legal persons – Measures of direct concern to them – Whether directly concerned – Council Regulation on the allocation of fishing opportunities under the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco and the implementation protocol thereto – Act relating only to relations between the European Union and its Member States – Direct concern of the people of Western Sahara – Absence of direct concern – Purely automatic implementation
(Art. 263, fourth para., TFEU; Council Regulation 2019/440)
(see paragraphs 381-387, 390, 391)
Résumé
The General Court annuls the Council’s decisions concerning, first, the agreement between the EU and Morocco amending the tariff preferences granted by the EU to products of Moroccan origin and, secondly, their Sustainable Fisheries Partnership Agreement. However, the effects of those decisions are maintained for a certain period in order to preserve the external action of the European Union and the legal certainty of its international commitments.
The present cases concern actions for annulment brought by the Popular front for the liberation of Saguia el-Hamra and Rio de Oro (Polisario Front; ‘the applicant’) against two Council decisions approving the conclusion of agreements between the European Union and the Kingdom of Morocco. (1)
The agreements approved by the contested decisions (‘the agreements at issue’) are the result of negotiations conducted on behalf of the European Union with Morocco, following two judgments delivered by the Court, (2) with a view to amending earlier agreements. The purpose of the first of those decisions was to conclude an agreement amending the protocols to the Euro-Mediterranean Association Agreement (3) on the regime applicable to imports into the European Union of agricultural products originating in Morocco, and to the definition of the concept of ‘originating products’, in order to extend to products originating in Western Sahara exported under the control of the Moroccan customs authorities the benefit of the tariff preferences granted to products of Moroccan origin exported to the European Union. The purpose of the second of those decisions was to amend the Fisheries Agreement between the European Community and Morocco (4) and, inter alia, include within the scope of that agreement the waters adjacent to the territory of Western Sahara.
By applications lodged in 2019, the applicant sought annulment of the contested decisions. Stating that it acts ‘on behalf of the Sahrawi people’, it claims, inter alia, that, by approving the agreements at issue by means of the contested decisions without the consent of that people, the Council infringed the obligations incumbent on the European Union in its relations with the Morocco under EU and international law. According to the applicant, those agreements apply to Western Sahara, provide for the exploitation of its natural resources and promote Morocco’s policy of annexing that territory. In addition, the second of those agreements also applies to the waters adjacent to that territory. In particular, the applicant submits that those agreements are not consistent with the case-law of the Court of Justice in the judgments in Council v Front Polisario and Western Sahara Campaign UK, which excluded such territorial scope.
By its judgments in judgment of 29 September 2021, Front Polisario v Council (T‑279/19, EU:T:2021:639), on the one hand, and in Joined Cases T‑344/19 and T‑356/19, on the other, the General Court annuls the contested decisions, while deciding that the effects of those decisions are to be maintained for a certain period, (5) since their annulment with immediate effect is likely to have serious consequences for the European Union’s external action and call into question the legal certainty of the international commitments to which it has consented. However, the Court dismisses as inadmissible the action brought by the applicant in Case T‑356/19 against the regulation on the allocation of fishing opportunities under the Fisheries Agreement on the ground that the applicant is not directly concerned. (6)
Findings of the Court
The admissibility of the applications
In the first place, the Court reviews whether the applicant has the capacity to bring legal proceedings before the EU Courts. According to the Council and the interveners, the applicant does not have legal personality under the domestic law of a Member State, is not a subject of international law and does not satisfy the criteria laid down by the EU Courts for the recognition of the capacity to bring legal proceedings of an entity without legal personality. In their view, the applicant is therefore not a legal person within the meaning of the fourth paragraph of Article 263 TFEU.
Referring to earlier case-law, the Court states that that case-law does not preclude the capacity to bring proceedings before the EU Courts from being conferred on an entity, irrespective of its legal personality under national law, in particular where such recognition is necessary to meet the requirements of effective judicial protection, since a restrictive interpretation of the concept of ‘legal person’ must be ruled out. Examining the question as to whether the applicant has legal personality under public international law, the Court considers that the applicant’s role and representativeness are such as to confer on it the capacity to bring legal proceedings before the EU Courts.
In that regard, the Court finds that the applicant is recognised internationally as the representative of the people of Western Sahara, even assuming that that recognition is within the limited framework of the self-determination process for that territory. In addition, its participation in that process implies that it has the necessary autonomy and responsibility to act in that context. Ultimately, the requirements of effective judicial protection mean that the applicant must be recognised as having the capacity to bring an action before the Court in order to defend the right of the people of Western Sahara to self-determination. The Court therefore concludes that the applicant is a legal person within the meaning of the fourth paragraph of Article 263 TFEU and rejects the Council’s plea of inadmissibility.
In the second place, the Court examines the Council’s plea of inadmissibility alleging that the applicant lacks standing to bring proceedings. With regard to whether the contested decisions are of direct concern to the applicant, it states that a decision to conclude an international agreement on behalf of the European Union is a constituent element of that agreement and that, therefore, the effects of the implementation of that agreement on the legal situation of a third party are relevant for assessing whether it is directly concerned by the decision at issue. In the present case, in order to defend the rights which the people of Western Sahara derive from the rules of international law binding the European Union, the applicant must be able to rely on the effects of the agreements at issue on those rights in order to establish that it is directly concerned. The Court considers that, in so far as the agreements at issue apply expressly to Western Sahara and, as regards the second of those agreements, to the waters adjacent thereto, they affect the people of that territory and require their consent. Consequently, the Court concludes that the contested decisions produce direct effects on the applicant’s legal situation as the representative of that people and as a party to the process of self-determination in that territory. Lastly, the Court notes that the implementation of the agreements at issue, as regards their territorial application, is purely automatic and leaves no discretion to their addressees.
As regards the applicant’s individual concern, the Court finds that, in the light of the circumstances which led to the conclusion that it was directly concerned, in particular its legal situation as the representative of the people of Western Sahara and party to the self-determination process in that territory, the applicant must be regarded as affected by the contested decisions by reason of attributes which are peculiar to it and which distinguish it individually in the same way as the addressee of those decisions.
The merits of the actions
As regards the substance and, more specifically, the question as to whether the Council infringed the obligation to comply with the case-law of the Court of Justice on the rules of international law applicable to the agreements at issue, the General Court finds that, in the judgment in Council v Front Polisario, the Court inferred from the principle of self-determination and from the principle of the relative effect of treaties clear, precise and unconditional obligations in respect of Western Sahara in the context of relations between the European Union and Morocco, namely, first, compliance with its separate and distinct status and, secondly, the obligation to obtain the consent of its people in the event of the implementation of the association agreement in that territory. Therefore, the applicant must be able to plead infringement of those obligations against the contested decisions, in so far as that infringement may affect that people, as a third party to the agreement concluded between the European Union and Morocco. In that context, the General Court rejects the applicant’s argument that it is legally impossible for the European Union and Morocco to conclude an agreement expressly applicable to Western Sahara, since that situation is not excluded by international law as interpreted by the Court of Justice.
However, the General Court upholds the applicant’s argument that the requirement relating to the consent of the people of Western Sahara, as a third party to the agreements at issue, for the purposes of the principle of the relative effect of treaties, has not been complied with.
In that regard, first, the Court considers that the rule of international law, according to which the consent of a third party to an international agreement may be presumed where the parties to that agreement intended to grant it rights, is not applicable in the present case, since the agreements at issue are not intended to confer rights on that people but, rather, impose obligations on them.
Secondly, the Court notes that, where a rule of international law requires the consent of a party or a third party, the validity of that consent is a condition for the validity of the measure for which it is required, the validity of that consent itself depends on it being free and genuine and that measure is enforceable against the party or third party which has validly consented to it. However, the steps taken by the EU authorities before the conclusion of the agreements at issue cannot be regarded as having secured the consent of the people of Western Sahara to those agreements, in accordance with the principle of the relative effect of treaties, as interpreted by the Court of Justice. The General Court points out, in that regard, that the institutions’ discretion in the context of external relations did not permit them, in the present case, to decide whether or not they could comply with that requirement.
In particular, the Court finds, first of all, that, having regard to the legal scope, in international law, of the concept of ‘people’, on the one hand, and the concept of ‘consent’, on the other, the ‘consultations’ of the ‘populations concerned’ organised by the institutions could not have led to the expression of the consent of the people of Western Sahara. Thus, that approach made it possible, at most, to obtain the views of the parties concerned, without those views being a condition for the validity of the agreements at issue or binding those parties in such a way that those agreements could be enforced against them. Next, the Court considers that the various pieces of evidence relating to the particular situation of Western Sahara, relied on by the Council, do not demonstrate that it is impossible to secure, in practice, the consent of the people of Western Sahara to the agreements at issue, as a third party thereto. Lastly, the Court notes that the institutions cannot validly rely on the letter of 29 January 2002 from the UN Legal Counsel to substitute the criterion of the benefits of the agreements at issue for the populations concerned for the requirement of an expression of that consent. The Court concludes that the Council did not sufficiently take into account all the relevant factors relating to the situation in Western Sahara and wrongly considered that it had a degree of discretion in deciding whether it was necessary to comply with that requirement.