Case T‑279/19
Front populaire pour la libération de la Saguia el-Hamra et du 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 – Agreement in the form of an Exchange of Letters on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement – Decision approving the conclusion of the agreement – Action for annulment – Admissibility – Capacity to bring legal proceedings – Direct concern – Individual concern – Territorial scope – Jurisdiction – Court of Justice’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 – Application – Discretion – Limits – Maintenance of the effects of the contested decision)
1. Actions for annulment – Natural or legal persons – Legal person – Autonomous concept of EU law – Requirement of legal personality and capacity to bring legal proceedings
(Art. 263, fourth para., TFEU)
(see paragraphs 83-85)
2. Actions for annulment – Natural or legal persons – Capacity to bring legal proceedings – Legal persons – Concept – Entity internationally recognised as the representative of the people of a non-self-governing territory – Inclusion
(Art. 263, fourth para., TFEU)
(see paragraphs 91, 92, 96-101)
3. Judicial proceedings – Absolute bar to proceeding with a case – Examination by the court of its own motion – Scope – Grounds for inadmissibility raised for the first time by an intervener – Inclusion
(Rules of Procedure of the General Court, Art. 129)
(see paragraph 117)
4. Judicial proceedings – Representation of the parties – Action brought by a legal person governed by private law – Authority to act issued to a lawyer – Validity – Power of the bodies of the legal person governed by private law to bring an action – Consideration of the nature of the legal person – Legal person not constituted in accordance with the legal rules that normally apply
(Rules of Procedure of the General Court, Art. 51(3))
(see paragraphs 121, 124, 129)
5. European Union – Judicial review of the legality of acts of the institutions – Scope – Act approving an international agreement concluded by the Union – Inclusion
(Art. 263 TFEU)
(see paragraphs 135, 136)
6. International agreements – Agreements of the Union – Conclusion – Legal effects on third parties – Principle of general international law of the relative effect of treaties – Agreement likely to affect a third party
(Art. 218(6) TFEU)
(see paragraphs 149-153)
7. European Union – Judicial review of the legality of acts of the institutions – International agreements – Actionable measures – Union act concluding an international agreement – Review of the validity of a decision concluding such an agreement – Consideration of the actual content of the international agreement – Respect for the principle of effective judicial protection
(Art. 263 TFEU)
(see paragraphs 154, 155)
8. Actions for annulment – Natural or legal persons – Acts concerning them directly and individually – Direct concern – Individual concern – Criteria – Agreement between the European Union and the Kingdom of Morocco amending protocols to the Euro-Mediterranean Agreement – Decision 2019/217 – Consideration of the actual content of the international agreement and of its legal effects in a third territory – Respect for the principle of effective judicial protection
(Art. 263, fourth para., TFEU)
(see paragraphs 157, 158, 160, 229, 230, 237)
9. EU law – Principles – Acts of the institutions – Effective judicial protection – Duty of the institutions to comply with the obligations arising from EU law, as interpreted by the EU Courts – Review of conformity of the contested decision with the case-law of the Court of Justice
(see paragraphs 267-269, 273)
10. International agreements – Agreements of the Union – Interpretation – Jurisdiction of the EU Courts – 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 by a treaty provision – Principles – Scope – Other subjects of international law – Inclusion
(Arts 216 and 267, first para., point (b), TFEU)
(see paragraphs 313-316)
11. International agreements – Agreements of the Union – Interpretation – Jurisdiction of the EU Courts – 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 323-325)
Résumé
The General Court annuls the Council decisions relating, on the one hand, to the Agreement between the EU and Morocco amending the tariff preferences granted to products of Moroccan origin and, on the other hand, to their Sustainable Fisheries Partnership Agreement. The effects of those decisions, however, are maintained for a certain time in order to preserve the European Union’s external action and the legal certainty of its international commitments.
The present cases relate to actions for annulment brought by the Front populaire pour la libération de la Saguia el-Hamra et du Rio de oro (Front Polisario) (‘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 with Morocco on behalf of the Union following two judgments given by the Court of Justice (2) with a view to amending previous agreements. One of the two aims was to conclude an agreement amending the protocols to the Euro-Mediterranean Association Agreement (3) relating to arrangements 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 and exported under the control of the Moroccan customs authorities the benefit of the tariff preferences initially granted under the Association Agreement to products of Moroccan origin imported into the EU. The other aim was to amend the Fisheries Agreement between the European Communities and Morocco (4) and in particular to include the waters adjacent to the territory of Western Sahara in the scope of that agreement.
By applications lodged in 2019, the applicant sought annulment of the contested decisions. Claiming to act ‘on behalf of the Sahrawi people’, the applicant argues, 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 of the European Union in the context of its relations with the Kingdom of 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 encourage the policy of annexation of that territory by Morocco. In addition, the Fisheries Agreement applies to the waters adjacent to that territory. In particular, the applicant claims that those agreements are not consistent with the case-law of the Court of Justice set out in the judgments in Council v Front Polisario (C‑104/16 P) and Western Sahara Campaign UK (C‑226/16), which excluded such territorial application.
By its judgments in Case T‑279/19, 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 but rules that the effects of those decisions are to be maintained over a certain period, (5) since annulling them with immediate effect could have serious consequences for the European Union’s external action and call into question the legal certainty of the international commitments to which the European Union has agreed. On the other hand, the General Court dismisses as inadmissible the applicant’s action in Case T‑356/19 against the regulation on the allocation of fishing opportunities under the Sustainable Fisheries Partnership Agreement for lack of direct concern. (6)
Findings of the General Court
Admissibility of the action
In the first place, the General Court determines whether the applicant has the legal capacity to bring proceedings before the EU Courts. According to the Council and the interveners, the applicant does not possess legal personality under the national law of any Member State, is not a subject of international law and does not satisfy the criteria laid down by the Courts of the European Union that would allow an entity deprived of legal personality to be recognised as having the capacity to bring proceedings before the courts. In their view, the applicant is therefore not a legal person within the meaning of the fourth paragraph of Article 263 TFEU.
Referring to previous case law, the General Court states that it does not preclude an entity, irrespective of its legal personality under national law, from being recognised as having capacity to bring proceedings before the EU Courts, 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 rejected. Examining whether the applicant has legal personality under public international law, the General Court finds that the applicant’s role and representativeness are capable of conferring upon it locus standi before the EU Courts.
In this regard, the General Court observes that the applicant is recognised internationally as a representative of the people of Western Sahara, even if that recognition is confined to 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. Finally, effective judicial protection requires that the applicant be regarded as having the capacity to bring an action before the General Court to defend the right of the people of Western Sahara to self-determination. The General Court therefore finds 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 General Court examines the Council’s second plea of inadmissibility based on the applicant’s lack of standing. As to whether the applicant is directly concerned by the contested decisions, the General Court notes that a decision on the conclusion, on behalf of the European Union, of an international agreement forms an integral part of that agreement and that, accordingly, the effects of the implementation of that agreement on the legal position of a third party are relevant to the assessment of whether that third party is directly concerned by the decision at issue. In the present case, in order to defend the rights that the people of Western Sahara derive from the rules of international law which are binding on 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 General Court takes the view that, in so far as the agreements at issue apply explicitly to Western Sahara and, as regards the second of those agreements, to the waters adjacent to that territory, they concern the people of that territory and require the consent of its people. Consequently, the General Court finds that the contested decisions directly concern the legal situation of the applicant as a representative of the people of Western Sahara and as one of the parties to the self-determination process in that territory. Finally, the General Court notes that the implementation of the agreements at issue, as regards their territorial application, is purely automatic and leaves no degree of discretion to the addressees of those agreements.
As to whether the applicant is individually concerned, the General Court finds that, having regard to the circumstances which resulted in the conclusion that it was directly concerned, in particular its legal position as a representative of the people of Western Sahara and a party to the self-determination process in that territory, the applicant must be regarded as concerned by the contested decisions by reason of certain special characteristics that differentiate it in a similar way to that in which the addressee of those decisions would be differentiated.
The merits of the actions
As regards substance and, more specifically, the question of whether the Council has infringed the obligation to comply with the case-law of the Court of Justice concerning 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 of Justice inferred from the principle of self-determination and the principle of the relative effect of treaties clear, precise and unconditional obligations towards Western Sahara in the context of its relations with Morocco, namely both to respect its separate and distinct status and to secure the consent of its people in the event of the implementation of the Association Agreement in that territory. Accordingly, the applicant must be able to rely on the violation of those obligations against the contested decisions in so far as that violation may concern the people of Western Sahara, as a third party to the agreement concluded between the European Union and Morocco. In this context, the General Court rejects the applicant’s argument that it would be legally impossible for the EU and Morocco to conclude an agreement that was explicitly applicable to Western Sahara, because that hypothesis is not ruled out by international law as interpreted by the Court of Justice.
On the other hand, the General Court upholds the applicant’s argument asserting that the requirement for the consent of the people of Western Sahara, as a third party to the agreements at issue within the meaning of the principle of the relative effect of treaties, has not been met.
In this respect, on the one hand, the General Court holds that the rule of international law whereby the consent of a third party to an international agreement may be presumed if the parties to that agreement intended to confer a right on that third party is not applicable in the present case, as the agreements at issue make no provision for conferring rights on the people in question but, by contrast, impose obligations on them.
On the other hand, the General Court stresses that, where a rule of international law requires the consent of a party or a third party, the expression of that consent determines the validity of the instrument for which it is required, the validity of that consent itself depends on its being free and authentic, and the said instrument is enforceable against a party or third party who has validly consented to it. However, the actions taken by the EU authorities prior to the conclusion of the agreements at issue cannot be regarded as having served to obtain 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 specifies, in this respect, that the discretion of the institutions in the context of external relations did not allow them, in the present case, to decide whether or not to fulfil that requirement.
In particular, the General Court notes, first of all, with regard to the legal scope of the concept of ‘people’ in international law, on the one hand, and to the concept of ‘consent’, on the other, the ‘consultation’ of the ‘people concerned’ organised by the institutions could not have culminated in the expression of consent by the people of Western Sahara. This approach thus served at best to canvass the opinion of the parties concerned, but that opinion does not determine the validity of the agreements at issue or bind the parties in such a way as to render the agreements enforceable against them. Next, the General Court holds that the various items of evidence relating to the particular situation of Western Sahara on which the Council relies do not demonstrate that it would be impossible in practice to obtain the consent of the people of Western Sahara to the agreements at issue as a third party to those agreements. Lastly, the General Court notes that the institutions could not validly rely on the letter of 29 January 2002 from the UN Legal Counsel to substitute the requirement of that expression of consent with the criterion of benefits from the agreements at issue for the people concerned. The General Court finds that the Council did not take sufficient account of all the relevant evidence concerning the situation in Western Sahara and wrongly took the view that it had a margin of appreciation to decide whether it was necessary to comply with the aforesaid requirement.