62019TJ0344
JUDGMENT OF THE GENERAL COURT (Ninth Chamber, Extended Composition)
29 September 2021 (
*1
) (
i
)
(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)
In Joined Cases T‑344/19 and T‑356/19,
Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (Front Polisario), represented by G. Devers, lawyer,
applicant,
v
Council of the European Union, represented by F. Naert, P. Plaza García and V. Piessevaux, acting as Agents,
defendant,
supported by
Kingdom of Spain, represented by S. Centeno Huerta, acting as Agent,
intervener in Cases T‑344/19 and T‑356/19
by
French Republic, represented by A.-L. Desjonquères, C. Mosser, J.-L. Carré and T. Stéhelin, acting as Agents,
intervener in Cases T‑344/19 and T‑356/19
by
European Commission, represented by F. Castillo de la Torre, A. Bouquet and A. Stobiecka-Kuik, acting as Agents,
intervener in Cases T‑344/19 and T‑356/19
and by
Chambre des pêches maritimes de la Méditerranée, established in Tangier (Morocco),
Chambre des pêches maritimes de l’Atlantique Nord, established in Casablanca (Morocco),
Chambre des pêches maritimes de l’Atlantique Centre, established in Agadir (Morocco),
Chambre des pêches maritimes de l’Atlantique Sud, established in Dakhla (Western Sahara),
represented by G. Forwood, N. Colin and A. Hublet, lawyers,
interveners in Case T‑344/19
APPLICATION, in Case T‑344/19, under Article 263 TFEU for annulment of Council Decision (EU) 2019/441 of 4 March 2019 on the conclusion of the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, the Implementation Protocol thereto and the Exchange of Letters accompanying the Agreement (OJ 2019 L 77, p. 4), and, in Case T‑356/19, under Article 263 TFEU for annulment of Council Regulation (EU) 2019/440 of 29 November 2018 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 (OJ 2019 L 77, p. 1),
THE GENERAL COURT (Ninth Chamber, Extended Composition),
composed of M.J. Costeira, President, D. Gratsias (Rapporteur), M. Kancheva, B. Berke and T. Perišin, Judges,
Registrar: M. Marescaux, Administrator,
having regard to the written part of the procedure and further to the hearing on 3 March 2021,
gives the following
Judgment
I. Background to the dispute
A. International context
1
The evolving international context relating to Western Sahara can be summarised as follows.
2
On 14 December 1960, the General Assembly of the United Nations (UN) adopted resolution 1514 (XV), entitled ‘Declaration on the granting of independence to colonial countries and peoples’, which states, inter alia, that ‘all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’, that ‘immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire’, and that ‘all States shall observe faithfully and strictly the provisions of the Charter of the United Nations … on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity’.
3
Western Sahara is a territory in north-west Africa which was colonised by the Kingdom of Spain at the end of the nineteenth century and which, by the date of resolution 1514 (XV), had become a province of Spain . In 1963, it was included by the UN in the ‘preliminary list of territories to which the Declaration on the granting of independence to colonial countries and peoples applies [General Assembly resolution 1514 (XV)]’ as a non-self-governing territory administered by the Kingdom of Spain, within the meaning of Article 73 of the Charter of the United Nations, signed in San Francisco on 26 June 1945, and is still on the list of non-self-governing territories drawn up by the Secretary-General of the United Nations on the basis of information communicated under Article 73(e) of that Charter.
4
On 20 December 1966, the UN General Assembly adopted resolution 2229 (XXI) on the question of Ifni and Spanish Sahara, in which it ‘reaffirm[ed] the inalienable right of the peoples of … Spanish Sahara to self-determination in accordance with General Assembly resolution 1514 (XV)’ and called upon the Kingdom of Spain, in its capacity as administering power, ‘to determine at the earliest possible date … 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’.
5
On 24 October 1970, the UN General Assembly adopted resolution 2625 (XXV), by which it approved the ‘Declaration on principles of international law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’, the text of which is annexed to that resolution. That declaration ‘solemnly proclaims’, inter alia, ‘the principle of equal rights and self-determination of peoples’. As regards that principle, it states, inter alia, the following:
‘By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right to freely determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.
…
The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes for implementing the right of self-determination by that people.
…
The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from that of the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or of the Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles.’
6
The Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (Front Polisario) is an organisation created in Western Sahara on 10 May 1973. In Article 1 of its constituting document, it defines itself as a ‘national liberation movement’, the members of which ‘fight for total independence and for the recovery of the sovereignty of the Saharawi people over the entire territory of the Saharawi Arab Democratic Republic’.
7
On 20 August 1974, the Kingdom of Spain informed the UN that it proposed to hold a referendum in Western Sahara under UN auspices.
8
On 13 December 1974, the UN General Assembly adopted resolution 3292 (XXIX), by which it decided, in particular, to request an advisory opinion from the International Court of Justice (ICJ) on the following questions:
‘I. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonisation by Spain a territory belonging to no one (terra nullius)?
If the answer to the first question is in the negative,
II. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?’
9
On 16 October 1975, the ICJ delivered the Advisory Opinion (see Western Sahara, Advisory Opinion, ICJ Reports 1975, p. 12; ‘the Advisory Opinion on Western Sahara’). In paragraph 162 of that opinion, it took the following view:
‘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 1514 (XV) [of the UN General Assembly] 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.’
10
In paragraph 163 of the Advisory Opinion on Western Sahara, the ICJ stated, in particular:
‘[the Court takes the view], with regard to Question I, … that Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonisation by Spain was not a territory belonging to no-one (terra nullius); … with regard to Question II, … that there were legal ties between this territory and the Kingdom of Morocco of the kinds indicated in paragraph 162 of this Opinion; [and] that there were legal ties between this territory and the Mauritanian entity of the kinds indicated in paragraph 162 of this Opinion’.
11
In a speech delivered on the day of the publication of the advisory opinion on Western Sahara, the King of Morocco stated that ‘the whole world [had] recognised that [Western] Sahara [was] in [the] possession’ of the Kingdom of Morocco and that it ‘[was] obliged to reclaim that territory peacefully’, calling, to that end, for the organisation of a march.
12
On 22 October 1975, the UN Security Council, before which the matter was brought by the Kingdom of Spain, adopted resolution 377 (1975), in which it ‘request[ed] the Secretary-General to enter into immediate consultations with the parties concerned and interested’ and ‘appeal[ed] to [those parties] to exercise restraint and moderation’. On 2 November 1975, it adopted resolution 379 (1975), in which it ‘urge[d] all the parties concerned and interested to avoid any unilateral or other action which might further escalate the tension in the area’ and ‘request[ed] the Secretary-General to continue and intensify his consultations’. On 6 November 1975, following the start of the march announced by the King of Morocco, which brought together 350000 people, and the crossing of the border between the Kingdom of Morocco and Western Sahara by them, it adopted resolution 380 (1975), in which it, in particular, ‘deplore[d] the holding of [that] march’ and ‘call[ed] upon [the Kingdom of] Morocco immediately to withdraw from the Territory of Western Sahara all the participants in [that] march’.
13
On 26 February 1976, the Kingdom of Spain informed the Secretary-General of the United Nations that, as from that date, it was terminating its presence in Western Sahara and considered itself relieved of any responsibility of an international nature concerning the administration of that territory. The list of non-self-governing territories referred to in paragraph 3 above refers, in respect of Western Sahara, to that statement, which is reproduced in the footnote to that list.
14
In the meantime, an armed conflict between the Kingdom of Morocco, the Islamic Republic of Mauritania and the Front Polisario broke out in that region. Part of the population of Western Sahara fled that conflict and found refuge in camps located on Algerian territory, close to the border with Western Sahara.
15
On 14 April 1976, the Kingdom of Morocco concluded a treaty with the Islamic Republic of Mauritania on the partition of the territory of Western Sahara and annexed the part of that territory that had been allocated to it by that treaty. On 10 August 1979, the Islamic Republic of Mauritania concluded a peace agreement with the Front Polisario, under which it renounced all territorial claims to Western Sahara. The Kingdom of Morocco took control of the territory evacuated by Mauritanian forces and proceeded to annex it.
16
On 21 November 1979, the UN General Assembly adopted resolution 34/37 on the question of Western Sahara, in which it ‘reaffirm[ed] the inalienable right of the people of Western Sahara to self-determination and independence, in accordance with the Charter of the [UN] … and the objectives of [its] resolution 1514 (XV)’, ‘deeply deplore[d] the aggravation of the situation resulting from the continued occupation of Western Sahara by Morocco’, ‘urged Morocco to join the peace process and to terminate the occupation of the Territory of Western Sahara’ and ‘recommend[ed] to that end 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, in accordance with the resolutions and declarations of the [UN]’. That resolution was followed by resolution 35/19 of 11 November 1980, in paragraph 10 of which the UN General Assembly ‘urge[d] … Morocco and the [Front Polisario], representative of the people of Western Sahara, to enter into direct negotiations with a view to arriving at a definitive settlement of the question of Western Sahara’.
17
The conflict between the Kingdom of Morocco and the Front Polisario continued until, on 30 August 1988, the parties accepted, in principle, the proposals for settlement put forward, inter alia, 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.
18
On 27 June 1990, the UN Security Council adopted resolution 658 (1990), in which it ‘approve[d] the report of the [UN] Secretary-General … which contains the … settlement proposals [referred to in paragraph 17 above] as well as an outline of the plan [for their implementation]’ and ‘call[ed] upon the two parties to cooperate fully with the [UN] Secretary-General and the current Chairman of the Assembly of Heads of State and Government of the Organisation of African Unity in their efforts aimed at an early settlement of the question of Western Sahara’. On 29 April 1991, the Security Council adopted resolution 690 (1991) establishing the United Nations Mission for the Referendum in Western Sahara (MINURSO).
19
On 6 December 1995, the UN General Assembly adopted resolution 50/33, entitled ‘Activities of Foreign Economic and Other Interests Which Impede the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples in Territories under Colonial Domination’, in which, inter alia, it ‘reaffirm[ed] the inalienable right of the peoples of colonial and Non-Self-Governing Territories to self-determination and independence and to the enjoyment of the natural resources of their Territories, as well as their right to dispose of those resources in their best interests’, ‘affirm[ed] the value of 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’, ‘reiterate[d] that the damaging exploitation and plundering of the marine and other natural resources of colonial and Non-Self-Governing Territories by foreign economic interests, in violation of the relevant resolutions of the United Nations, is a threat to the integrity and prosperity of those Territories’ and ‘invite[d] all Governments and organisations of the United Nations system to ensure that the permanent sovereignty of the peoples of colonial and Non-Self-Governing Territories over their natural resources is fully respected and safeguarded’.
20
To date, despite the exchanges and consultations organised under the auspices of the UN, the parties have not reached a settlement on the situation in Western Sahara. The Kingdom of Morocco controls the greater part of the territory of Western Sahara, while the Front Polisario controls the other part, the two areas being separated by a wall of sand built and guarded by the Moroccan army. A significant number of refugees from that territory still live in camps administered by the Front Polisario on Algerian territory.
B. The Association Agreement and the 2006 Fisheries Agreement
1.
Association Agreement
21
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, entered into force on 1 March 2000 (OJ 2000 L 70, p. 2; ‘the Association Agreement’).
22
Article 1(1) of the Association Agreement provides:
‘An association is hereby established between the Community and its Member States, of the one part, and Morocco, of the other part.’
23
Article 94 of the Association Agreement provides:
‘This Agreement shall apply, on the one hand, to the territories in which the Treaties establishing the European Community and the European Coal And Steel Community are applied and under the conditions laid down in those Treaties and, on the other hand to the territory of the Kingdom of Morocco.’
24
On 13 December 2010, in the context of the Association Agreement and pursuant to Article 16 thereof, the European Union and the Kingdom of Morocco signed, in Brussels (Belgium), the Agreement in the form of an Exchange of Letters 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 (OJ 2012 L 241, p. 4; ‘the Liberalisation Agreement’). On 8 March 2012, the Council of the European Union adopted Decision 2012/497/EU on the conclusion of the Liberalisation Agreement (OJ 2012 L 241, p. 2).
2.
2006 Fisheries Agreement
25
On 22 May 2006, the Council adopted Regulation (EC) No 764/2006 on the conclusion of the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco (OJ 2006 L 141, p. 1). Article 1 of that regulation provides: ‘The Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco is hereby approved on behalf of the Community.’
26
As is clear from its preamble and Articles 1 and 3 thereof, the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco (‘the 2006 Fisheries Agreement’) was intended to intensify the working relationship established by the Community and the Kingdom of Morocco, in particular in the context of the Association Agreement, by establishing a partnership in the fisheries sector intended to promote responsible fishing in Moroccan fishing zones and to implement Morocco’s fisheries policy effectively. To that end, that agreement established, inter alia, rules on economic, financial, technical and scientific cooperation between the parties, the conditions of access of vessels flying a flag of the Member States to Moroccan fishing zones and the arrangements for monitoring fishing activities in those zones.
27
Article 11 of the 2006 Fisheries Agreement provided that it was to apply, as regards the Kingdom of Morocco, ‘to the territory of Morocco and to the waters under Moroccan jurisdiction’. Moreover, Article 2(a) of that agreement stated that the term ‘Moroccan fishing zone’ was to be understood, for the purposes of that agreement, the protocol which accompanied it and the annex thereto as meaning ‘the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco’.
28
In accordance with Article 17 thereof, the 2006 Fisheries Agreement entered into force on 28 February 2007 (OJ 2007 L 78, p. 31).
29
The protocol originally accompanying the 2006 Fisheries Agreement was replaced by another protocol, which was in turn succeeded, in 2013, by a new protocol, signed in Brussels on 18 November 2013, which was approved on behalf of the European Union by Council Decision 2013/785/EU of 16 December 2013 on the conclusion, on behalf of the European Union, of the protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco (OJ 2013 L 349, p. 1), and which entered into force on 15 July 2014 (OJ 2014 L 228, p. 1; ‘the 2013 Protocol’).
30
Under Article 1 of the 2013 Protocol, that protocol ‘help[ed] to meet the general objectives of the Association Agreement and aim[ed] to ensure the viability of fisheries resources from ecological, economic and social points of view’.
C. Disputes relating to the Association Agreement
1.
Cases T‑512/12 and C‑104/16 P
31
By application lodged at the Court Registry on 19 November 2012 and registered under number T‑512/12, the applicant, the Front Polisario, brought an action for annulment of Decision 2012/497 (judgment of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraph 38; ‘the judgment in Council v Front Polisario’).
32
In support of its action in that case, the applicant had alleged, inter alia, a number of infringements by the Council of its obligations under international law, on the ground that it had approved, by Decision 2012/497, the application of the Liberalisation Agreement to the territory of Western Sahara (judgment in Council v Front Polisario, paragraph 44).
33
By judgment of 10 December 2015, Front Polisario v Council (T‑512/12, EU:T:2015:953), the Court annulled Decision 2012/497 in so far as it approved the application of the Liberalisation Agreement to Western Sahara, on the ground that the Council had failed to fulfil its obligation to examine all the elements of the case before the adoption of Decision 2012/497 by failing to ascertain whether the production of the products originating in that territory exported to the European Union was detrimental to the population of that territory and did not entail infringements of fundamental rights of the persons concerned (judgment in Council v Front Polisario, paragraphs 47 and 48).
34
On 19 February 2016, the Council brought an appeal against the judgment of 10 December 2015, Front Polisario v Council (T‑512/12, EU:T:2015:953).
35
By the judgment in Council v Front Polisario, ruling on the Council’s appeal, the Court of Justice set aside the judgment of 10 December 2015, Front Polisario v Council (T‑512/12, EU:T:2015:953), and dismissed the applicant’s action before the General Court as inadmissible.
36
In that regard, first, the Court of Justice upheld the second ground of appeal, alleging that the General Court erred in law in its analysis of the applicant’s standing and, more particularly, the complaint alleging that the General Court had erred in finding that the Liberalisation Agreement applied to Western Sahara (judgment in Council v Front Polisario, paragraph 126).
37
In the first place, the Court held that, in accordance with the principle of self-determination, which is applicable in relations between the European Union and the Kingdom of Morocco, Western Sahara, a non-self-governing territory within the meaning of Article 73 of the Charter of the United Nations, enjoyed a status separate from and distinct from that of any State, including that of the Kingdom of Morocco. The Court concluded that the words ‘territory of the Kingdom of Morocco’ in Article 94 of the Association Agreement could not be interpreted in such a way that Western Sahara is included within the territorial scope of that agreement (judgment in Council v Front Polisario, paragraphs 86 to 93).
38
In the second place, the Court held that it was also necessary to take account of the customary rule codified in Article 29 of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations, Treaty Series, vol. 1155, p. 331; ‘the Vienna Convention’), according to which, unless a different intention appears from a treaty or is otherwise established, that treaty is binding upon each party in respect of its entire territory. It concluded that that customary rule also precluded Western Sahara from being regarded as falling within the scope of the Association Agreement. Nevertheless, it pointed out that it also followed from that customary rule that a treaty may, by way of derogation, bind a State in respect of another territory if such an intention is apparent from that treaty or is otherwise established (judgment in Council v Front Polisario, paragraphs 94 to 98).
39
In the third place, the Court considered that the general international-law principle of the relative effect of treaties must also be taken into consideration, since, as a ‘third party’ to the Association Agreement, for the purposes of that principle, the people of Western Sahara could be affected by the implementation of that agreement in the event that the territory of Western Sahara were to fall within its scope and that implementation must receive their consent. In the absence of any manifestation of such consent, the Court concluded that the finding that the territory of Western Sahara fell within the scope of the Association Agreement was contrary to the principle of the relative effect of treaties (judgment in Council v Front Polisario, paragraphs 100 to 107).
40
In the fourth place, finding that the Liberalisation Agreement had to be regarded as a treaty subordinate to the Association Agreement, the Court inferred that the Liberalisation Agreement could not be understood as applying to the territory of Western Sahara, with the result that there was no need to include therein a clause excluding that application. According to the Court, the practice of the Council and the European Commission after the conclusion of the Association Agreement could not call that analysis into question, since that amounted to taking the view that the European Union intended to implement the Association Agreement and the Liberalisation Agreement in a manner incompatible with the principles of self-determination and of the relative effect of treaties and therefore in a way that is incompatible with the principle that treaty obligations must be performed in good faith (judgment in Council v Front Polisario, paragraphs 110 to 125).
41
Secondly, the Court gave final judgment in the matter. In particular, the Court held that, since the Liberalisation Agreement had to be interpreted, in accordance with the relevant rules of international law applicable to relations between the European Union and the Kingdom of Morocco, as meaning that it did not apply to the territory of Western Sahara, the applicant had to be regarded, in any event, in the light of the arguments on which it relied, as not having standing to bring an action for annulment of Decision 2012/497, without it being necessary to examine the other pleas of inadmissibility raised by the Council and the Commission (paragraphs 128 to 134).
2.
Case C‑266/16
42
By decision of 27 April 2016, the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) (United Kingdom), referred questions to the Court for a preliminary ruling on the validity of the 2006 Fisheries Agreement, as approved and implemented by Regulation No 764/2006, by Decision 2013/785 and by Council Regulation (EU) No 1270/2013 of 15 November 2013 on the allocation of fishing opportunities under the protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco (OJ 2013 L 328, p. 40) (judgment of 27 February 2018, Western Sahara Campaign UK, C‑266/16, EU:C:2018:118, paragraph 1; ‘the judgment in Western Sahara Campaign UK’).
43
By its first question, the referring court sought, in essence, to ascertain whether the fact that the exploitation of the natural resources in the waters adjacent to the territory of Western Sahara was permitted by the 2006 Fisheries Agreement and the 2013 Protocol rendered invalid Regulation No 764/2006, Decision 2013/785 and Regulation No 1270/2013 in the light of Article 3(5) TEU. By its second question, that court sought, in essence, to ascertain whether a litigant that has standing to bring proceedings under national law, such as the applicant in the main proceedings, was entitled to challenge the validity of acts concluding and implementing that agreement and that protocol, on the ground that the European Union was in breach of international law (judgment in Western Sahara Campaign UK, paragraphs 41, 54 and 86).
44
In that regard, in the first place, in paragraph 59 of the judgment in Western Sahara Campaign UK, the Court stated that it was apparent from the first paragraph of the preamble to the 2006 Fisheries Agreement that that agreement was a manifestation of the mutual desire of the European Union and the Kingdom of Morocco to intensify the close working relationship established between them, particularly in the context of the Association Agreement and that, as such, the 2006 Fisheries Agreement was one of a body of agreements framed by the Association Agreement. Given the existence of that body of agreements, the Court held that the concept of ‘territory of Morocco’, in Article 11 of the 2006 Fisheries Agreement, should be construed in the same way as the concept of ‘territory of the Kingdom of Morocco’, in Article 94 of the Association Agreement (judgment in Western Sahara Campaign UK, paragraph 61).
45
The Court pointed out, as it had noted in the judgment in Council v Front Polisario, that the concept of ‘territory of the Kingdom of Morocco’ had to be construed as referring to the geographical area over which the Kingdom of Morocco exercises the fullness of the powers granted to sovereign entities by international law, to the exclusion of any other territory, such as that of Western Sahara, and that the inclusion of that territory in the scope of the Association Agreement would be contrary to the principle of self-determination and the principle of the relative effect of treaties, which are applicable in relations between the European Union and Kingdom of Morocco. It concluded that the territory of Western Sahara was not covered by the concept of ‘territory of Morocco’ within the meaning of Article 11 of the 2006 Fisheries Agreement (judgment in Western Sahara Campaign UK, paragraphs 62 to 64).
46
In the second place, for the purposes of interpreting the expression ‘waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco’, the Court noted that it followed from Article 2(1) and Articles 55 and 56 of the United Nations Convention on the Law of the Sea, concluded at Montego Bay on 10 December 1982 (‘the Convention on the Law of the Sea’), that the waters over which a coastal State was entitled to exercise sovereignty or jurisdiction were limited exclusively to the waters adjacent to its territory and forming part of its territorial sea or of its exclusive economic zone (EEZ). Consequently, and in view of the fact that the territory of Western Sahara was not part of the territory of the Kingdom of Morocco, the Court concluded that the waters adjacent to the territory of Western Sahara were not part of the Moroccan fishing zone referred to in Article 2(a) of the 2006 Fisheries Agreement (judgment in Western Sahara Campaign UK, paragraphs 65 to 69).
47
In the third place, the Court stated that, with respect to the ‘waters falling within the sovereignty … of the Kingdom of Morocco’, referred to in Article 2(a) of the 2006 Fisheries Agreement, it would be contrary to the principle of self-determination and the principle of the relative effect of treaties if it were agreed that the waters directly adjacent to the coast of the territory of Western Sahara were to be included within the scope of that agreement (judgment in Western Sahara Campaign UK, paragraph 71).
48
In the fourth place, as regards the expression ‘waters falling within the … jurisdiction of the Kingdom of Morocco’ in Article 2(a) of the 2006 Fisheries Agreement, the Court noted that the Council and the Commission considered, inter alia, that the Kingdom of Morocco could be regarded as a ‘de facto administrative power’ or as an occupying power of the territory of Western Sahara and that such a description could be of relevance in order to determine the scope of the 2006 Fisheries Agreement. The Court pointed out that, without there being any need even to examine whether any joint intention of the parties to the 2006 Fisheries Agreement to give that expression a special meaning, in order to take such circumstances into account, would have been compatible with the rules of international law that were binding on the European Union, the existence of such a joint intention could not, in any event, be identified in that case since the Kingdom of Morocco had categorically denied that it was an occupying power or an administrative power with respect to the territory of Western Sahara (judgment in Western Sahara Campaign UK, paragraph 72).
49
In the fifth place, as regards the territorial scope of the 2013 Protocol, the Court found that the expression ‘Moroccan fishing zone’ was used both in the 2006 Fisheries Agreement and in the 2013 Protocol to determine the territorial scope. It considered that that expression must be understood as referring to waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco and that, consequently, it did not include the waters adjacent to the territory of Western Sahara (judgment in Western Sahara Campaign UK, paragraphs 75 to 79).
50
In the sixth place, the Court found that the geographical coordinates of the baselines and the fishing zone of the Kingdom of Morocco required by the provisions of the 2013 Protocol were notified only on 16 July 2014. Given that the 2013 Protocol entered into force on 15 July 2014, it inferred that those geographical coordinates did not form part of the text of that protocol, as agreed by the parties. In any event, according to the Court, even if those geographical coordinates had been notified prior to the entry into force of the 2013 Protocol, they could in no way have called into question the interpretation of the expression ‘Moroccan fishing zone’ which it adopted in paragraph 79 of its judgment, nor have extended the scope of that protocol so as to include the waters adjacent to the territory of Western Sahara (judgment in Western Sahara Campaign UK, paragraphs 80 to 82).
51
That being the case, the Court answered the first question referred for a preliminary ruling to the effect that, since neither the 2006 Fisheries Agreement nor the 2013 Protocol were applicable to the waters adjacent to the territory of Western Sahara, consideration of that question had revealed nothing capable of affecting the validity of acts approving the conclusion of those agreements in the light of Article 3(5) TEU. Given that answer to the first question, it considered that there was no need to answer the second question referred for a preliminary ruling (judgment in Western Sahara Campaign UK, paragraphs 85 and 87).
3.
Orders in Cases T‑180/14, T‑275/18 and T‑376/18
52
By orders of 19 July 2018, Front Polisario v Council (T‑180/14, not published, EU:T:2018:496); of 30 November 2018, Front Polisario v Council (T‑275/18, not published, EU:T:2018:869); and of 8 February 2019, Front Polisario v Council (T‑376/18, not published, EU:T:2019:77), the Court dismissed as inadmissible the applicant’s actions against acts of the Council relating to the conclusion or amendment of various international agreements between the European Union and the Kingdom of Morocco.
53
In particular, in the first two orders cited in paragraph 52 above, the General Court relied on the judgments in Council v Front Polisario
and Western Sahara Campaign UK in order to establish that the applicant lacked standing to bring proceedings, since the agreements at issue did not apply to Western Sahara or to the adjacent waters (orders of 19 July 2018, Front Polisario v Council, T‑180/14, not published, EU:T:2018:496, paragraphs 69 to 71, and of 30 November 2018, Front Polisario v Council, T‑275/18, not published, EU:T:2018:869, paragraphs 41 and 42).
54
In the third of the orders cited in paragraph 52 above, the Court held that, in accordance with Article 218(3) and (4) TFEU, the purpose of the Council Decision of 16 April 2018 authorising the opening of negotiations with the Kingdom of Morocco with a view to amending the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco and the conclusion of a protocol implementing that agreement was solely to designate the negotiator or the head of the negotiating team of the European Union and to issue instructions to those persons. It was therefore an act producing legal effects only in relations between the European Union and its Member States and between the EU institutions. The General Court concluded that that decision did not affect the applicant’s legal position and that it could not therefore be regarded as directly concerned by that decision (order of 8 February 2019, Front Polisario v Council, T‑376/18, not published, EU:T:2019:77, paragraphs 28 and 29).
D. The contested decision and the agreement at issue
55
Following the judgment in Western Sahara Campaign UK, the Council, by decision of 16 April 2018, authorised the Commission to enter into negotiations with the Kingdom of Morocco with a view to amending the 2006 Fisheries Agreement and, in particular, to include within the scope of that agreement the waters adjacent to the territory of Western Sahara.
56
On 24 July 2018, following those negotiations, a new Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, a new protocol for the implementation of that agreement, including the annex thereto and the appendices thereto, and the Exchange of Letters accompanying the agreement at issue were initialled.
57
On 14 January 2019, the European Union and the Kingdom of Morocco signed, in Brussels, the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco (‘the Fisheries Agreement’), the implementation protocol thereto (‘the implementation protocol’) and the Exchange of Letters accompanying that agreement (‘the Exchange of Letters’) (together ‘the agreement at issue’).
58
On 4 March 2019, the Council adopted Decision (EU) 2019/441 on the conclusion of the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, the implementation protocol thereto and the Exchange of Letters accompanying the agreement (OJ 2019 L 77, p. 4; ‘the contested decision’). The first paragraph of Article 1 of that decision provides: ‘The … Fisheries … Agreement, the Implementation Protocol … and the Exchange of Letters … are hereby approved on behalf of the Union’.
59
In accordance with Article 17 of the Fisheries Agreement, that agreement, the implementation protocol and the exchange of letters entered into force on 18 July 2019 (OJ 2019 L 195, p. 1).
60
In recitals 3 to 5 and 7 to 12 of the contested decision, the Council states:
‘(3)
In its judgment in Case C‑266/16 in reply to a request for a preliminary ruling on the validity and interpretation of the Agreement and of the Implementation Protocol thereto, the Court held that neither the Agreement nor the Implementation Protocol thereto apply to the waters adjacent to the territory of Western Sahara.
(4)
The Union does not prejudice the outcome of the political process on the final status of Western Sahara taking place under the auspices of the United Nations, and it has constantly reaffirmed its commitment to the settlement of the dispute in Western Sahara, which is currently listed by the United Nations as a non-self-governing territory and administered principally by the Kingdom of Morocco. It fully supports the efforts made by the United Nations Secretary-General and his personal envoy to assist the parties in achieving a just, lasting and mutually acceptable political solution which will allow the self-determination of the people of Western Sahara as part of arrangements consistent with the purposes and principles set out in the Charter of the United Nations and enshrined in United Nations Security Council resolutions ….
(5)
It should be possible for Union fleets to continue the fishing activities they had pursued since the entry into force of the Agreement, and the scope of application of the Agreement should be defined so as to include the waters adjacent to the territory of Western Sahara. Furthermore, the continuation of the fisheries partnership is essential in order for that territory to continue to benefit from the sectoral support provided under the Agreement, in compliance with Union and international law, including human rights, and for the benefit of the people concerned.
…
(7)
The objective of the Fisheries Agreement is to enable the Union and the Kingdom of Morocco to work together more closely on promoting a sustainable fisheries policy and sound exploitation of fishery resources in the fishing zone defined in the Fisheries Agreement and supporting the Kingdom of Morocco’s efforts to develop the fisheries sector and a blue economy. It thereby contributes to achieving the objectives of the Union under Article 21 of the Treaty on European Union.
(8)
The Commission assessed the potential impact of the Fisheries Agreement on sustainable development, in particular as regards the benefits for the people concerned and the exploitation of the natural resources of the territories concerned.
(9)
In line with that evaluation, it is assessed that the Fisheries Agreement should be highly beneficial to the people concerned owing to the positive socioeconomic impact on those people, particularly in terms of employment and investment, and to its impact on the development of the fisheries sector and fish processing sector.
(10)
Equally, it is assessed that the Fisheries Agreement represents the best guarantee for the sustainable exploitation of the natural resources of the waters adjacent to Western Sahara, since the fishing activities comply with the best scientific advice and recommendations in that area and are subject to appropriate monitoring and control measures.
(11)
In view of the considerations set out in the Court of Justice’s judgment, the Commission, together with the European External Action Service, took all reasonable and feasible measures in the current context to properly involve the people concerned in order to ascertain their consent. Extensive consultations were carried out in Western Sahara and in the Kingdom of Morocco, and the socioeconomic and political actors who participated in the consultations were clearly in favour of concluding the Fisheries Agreement. However, the Polisario Front and some other parties did not accept to take part in the consultation process.
(12)
Those who did not accept to participate in the process rejected the application of the Fisheries Agreement and of the Implementation Protocol thereto to the waters adjacent to Western Sahara, because they felt essentially that those acts would affirm the Kingdom of Morocco’s position on the territory of Western Sahara. However, there is nothing in the terms of the Fisheries Agreement or of the Implementation Protocol thereto which implies that it would recognise the Kingdom of Morocco’s sovereignty or sovereign rights over Western Sahara and the adjacent waters. The Union will also continue to step up its efforts in support of the process, initiated and pursued under the auspices of the United Nations, of peacefully resolving the dispute.’
61
Under Article 1(h) of the Fisheries Agreement, for the purposes of that agreement, ‘fishing zone’ must be understood as meaning ‘the waters of the Eastern Central Atlantic Ocean between the parallels 35°47’18” north and 20°46’13” north, including the adjacent waters [to] Western Sahara, covering all management areas’. It is also stated that ‘this definition shall not affect any negotiations on the delimitation of the sea areas of coastal States bordering the fishing zone or the rights of third countries in general’.
62
Article 6(1) of the Fisheries Agreement provides: ‘With a view to guaranteeing a regulatory framework for sustainable fishing, Union vessels operating in the fishing zone shall comply with the Moroccan laws and regulations governing fishing activities in that zone, unless otherwise provided for in this Agreement …’
63
Article 12(1) to (4) of the Fisheries Agreement provides:
‘1.   The financial contribution is defined in the Protocol.
2.   The financial contribution referred to in paragraph 1 shall include:
(a)
financial compensation granted by the Union for access by Union vessels to the fishing zone;
(b)
fees to be paid by the owners of the Union vessels;
(c)
sectoral support granted by the Union towards the implementation of a sustainable fisheries policy and ocean governance, subject to annual and multiannual programming.
3.   The financial contribution granted by the Union shall be paid each year in accordance with the Protocol.
4.   The Parties shall consider the fair geographical and social distribution of the socioeconomic benefits arising from this Agreement, in particular in terms of infrastructure, basic social services, the setting-up of businesses, vocational training, and of programmes aimed at developing and modernising the fisheries sector, to ensure that this distribution benefits the relevant populations in a way that is proportionate to the fishing activities.’
64
Article 13(1) of the Fisheries Agreement provides: ‘A Joint Committee shall be set up, made up of representatives of the [p]arties. It shall be responsible for monitoring the application of this Agreement and may amend the Protocol.’
65
Article 14 of the Fisheries Agreement provides: ‘This Agreement shall apply to the territories subject, on the one hand, to the Treaty on European Union and the Treaty on the Functioning of the European Union, and on the other hand, to the laws and regulations referred to in Article 6(1) of this Agreement’.
66
Article 16 of the Fisheries Agreement provides: ‘The [implementation] Protocol and the Exchange of Letters … shall form an integral part of the Agreement …’
67
Article 6(1) and (2) of the implementation protocol provides:
‘1.   The financial compensation referred to in point (a) of Article 12(2) of the Fisheries Agreement and the fees referred to in point (b) of Article 12(2) of the Fisheries Agreement shall be subject to a fair geographical and social distribution of the socioeconomic benefits to ensure that the compensation benefits the relevant populations, in accordance with Article 12(4) of the Agreement.
2.   No later than three months after the date of application of this Protocol, the authorities of the Kingdom of Morocco shall present a method ensuring the geographical and social distribution referred to in paragraph 1 and a distribution key for the allocated amounts, which shall be examined by the Joint Committee.’
68
Article 7(1) and (2) of the implementation protocol provides:
‘1.   The sectoral support referred to in point (c) of Article 12(2) of the Fisheries Agreement shall contribute to developing and implementing sectoral policy as part of the national development strategy for the fisheries sector.
2.   No later than three months after the date of application of this Protocol, the Joint Committee shall agree on a multiannual sectoral programme and detailed implementing rules comprising, in particular:
(a)
annual and multiannual guidelines for the use of the amount granted as sectoral support in accordance with Article 12(4) of the Fisheries Agreement;
…’
69
Fishing datasheets No 3 to No 6 in Appendix 2 to the implementation protocol refer, as the southern limit of the corresponding management zone, to parallel 20°46’13’’. Fishing datasheet No 6, concerning industrial pelagic or semi-pelagic trawling and purse seining, refers to vessels with cold stores (trawlers and seiners) landing at Dakhla port.
70
The second paragraph of the Exchange of Letters states:
‘Following negotiations, the European Union and the Kingdom of Morocco have agreed as follows:
1.
With regard to Western Sahara, the Parties reaffirm their support for the United Nations process and the Secretary-General’s efforts to achieve a final political solution in accordance with the principles and objectives of the Charter of the United Nations and on the basis of Security Council resolutions.
2.
The Fisheries Agreement is concluded without prejudice to the Parties’ respective positions:
–
for the European Union, references in the Fisheries Agreement to Moroccan laws and regulations are without prejudice to its position concerning the status of the non-self-governing territory of Western Sahara, whose adjacent waters are part of the fishing zone defined in point (h) of Article 1 of the Fisheries Agreement, and its right to self-determination,
–
for the Kingdom of Morocco, the Sahara region is an integral part of the national territory over which it exercises full sovereignty in the same manner as for the rest of the national territory. Morocco considers that any solution to this regional dispute should be based on its autonomy initiative.’
E. The contested regulation
71
On 29 November 2018, the Council adopted Regulation (EU) 2019/440 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 (OJ 2019 L 77, p. 1; ‘the contested regulation’). In accordance with Article 2 thereof, that regulation entered into force on the day following its publication in the Official Journal of the European Union, which took place on the same date as the publication of the contested decision, namely 20 March 2019.
72
Article 1(1) of the contested regulation allocates the fishing opportunities established under the implementation protocol as follows:
Fishing category
Type of vessel
Member State
Licences or quota
Small-scale fishing in the north, pelagic species
Seiners < 150 gross tonnage (GT)
Spain
22
Small-scale fishing in the north
Bottom longliners < 40 GT
Spain
25
Portugal
7
Bottom longliners ≥ 40 GT < 150 GT
Portugal
3
Small-scale fishing in the south
Pole-lines < 150 GT per vessel
Total ≤ 800 GT
Spain
10
Demersal fishing
Bottom longliners ≤ 150 GT
Spain
7
Portugal
4
Trawlers ≤ 750 GT
Total ≤ 3 000 GT
Spain
5
Italy
0
Tuna fishing
Pole-and-line vessels
Spain
23
France
4
Industrial fishing for pelagic species
85 000 tonnes (t) in the first year
90 000 t in the second year
100 000 t in the third year and in the fourth year
Distribution of vessels authorised to fish:
10 vessels ≥ 3 000 GT and < 7 765 GT
4 vessels ≥ 150 and < 3 000 GT
4 vessels < 150 GT
Year 1: 85 000 t
Germany
6 871.2 t
Lithuania
21 986.3 t
Latvia
12 367.5 t
Netherlands
26 102.4 t
Ireland
3 099.3 t
Poland
4 807.8 t
United Kingdom
4 807.8 t
Spain
496.2 t
Portugal
1 652.2 t
France
2 809.3 t
Year 2: 90 000 t
Germany
7 275.4 t
Lithuania
23 279.6 t
Latvia
13, 095.0 t
Netherlands
27 637.9 t
Ireland
3 281.6 t
Poland
5 090.6 t
United Kingdom
5 090.6 t
Spain
525.4 t
Portugal
1 749.4 t
France
2 974.5 t
Years 3 and 4: 100 000 t
Germany
8 083.8 t
Lithuania
25 866.3 t
Latvia
14 550.0 t
Netherlands
30 708.8 t
Ireland
3 646.3 t
Poland
5 656.3 t
United Kingdom
5 656.3 t
Spain
583.8 t
Portugal
1 943.8 t
France
3 305.0 t
II. Procedure and forms of order sought
73
By applications lodged at the Court Registry on 10 and 12 June 2019, the applicant brought the present actions, registered under number T‑344/19 and number T‑356/19 respectively.
74
The Council lodged its defences on 19 (Case T‑344/19) and 20 September 2019 (Case T‑356/19) respectively.
75
By decision of 16 October 2019, following a change in the composition of the Chambers, pursuant to Article 27(5) of the Rules of Procedure of the General Court, the Judge-Rapporteur was assigned to the Ninth Chamber of the General Court, to which the present cases were consequently allocated.
76
On 8 November 2019, the applicant lodged its reply in Case T‑344/19. It did not lodge a reply within the prescribed time limit in Case T‑356/19.
77
By decisions of 13 November 2019, the President of the Ninth Chamber of the General Court granted the applications for leave to intervene in support of the form of order sought by the Council in both cases lodged by the Kingdom of Spain, the French Republic and the Commission.
78
By order of 10 December 2019, Front Polisario v Council (T‑344/19, not published, EU:T:2019:862), the President of the Ninth Chamber granted the application for leave to intervene in support of the form of order sought by the Council lodged in Case T‑344/19 by the Moroccan sea fisheries chambers, namely the Chambre des pêches maritimes de la Méditerranée, the Chambre des pêches maritimes de l’Atlantique Nord, the Chambre des pêches maritimes de l’Atlantique Centre and the Chambre des pêches maritimes de l’Atlantique Sud (together; ‘the CPMMs’).
79
On 8 January 2020, the Commission lodged its statements in intervention. The Kingdom of Spain and the French Republic lodged theirs on 9 January 2020.
80
On 9 January 2020, the Council lodged its rejoinder in Case T‑344/19.
81
On 4 March 2020, the CPMMs lodged their statement in intervention in Case T‑344/19.
82
On 9 March 2020, the applicant submitted its observations, first, on the statements in intervention of the Kingdom of Spain, the French Republic and the Commission in Case T‑344/19 and, secondly, on those of the Kingdom of Spain and the French Republic in Case T‑356/19. On 20 June 2020, it submitted its observations on the statement in intervention of the CPMMs in Case T‑344/19.
83
No request for a hearing was filed within the prescribed time limit in Case T‑356/19. On 22 September 2020, the applicant requested that a hearing be organised in Case T‑344/19.
84
On 23 November 2020, on a proposal from the Ninth Chamber, the General Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the cases to a chamber sitting in extended composition.
85
On 9 December 2020, on the basis of Article 106(1) of the Rules of Procedure, the General Court decided to open the oral part of the procedure. In addition, it invited the parties to comment on the joinder of the cases for the purposes of the oral part of the procedure and the final decision.
86
By two measures of organisation of procedure in Case T‑344/19 of 18 December 2020, the Court, first, put questions for written answer to the parties and asked the applicant, the Council and the Commission to provide additional information and, secondly, requested that the parties clarify, at the hearing, their position on particular questions of principle relevant to the dispute in that case.
87
On 25 January 2021, the applicant, the Council and the Commission submitted their written answers to the General Court’s questions and provided the requested information. The main parties submitted their observations on the joinder on 25 January 2021.
88
By decision of 28 January 2021, the President of the Ninth Chamber of the General Court joined the cases for the purposes of the oral part of the procedure and the final decision.
89
On 25 February 2021, on the basis of Article 85(3) of the Rules of Procedure, the applicant submitted new offers of evidence. The Commission submitted its observations on those offers on 12 March 2021, while the Council and the CPMMs submitted theirs on 15 March 2021.
90
The hearing was held on 3 March 2021. At the hearing, the Court asked the Kingdom of Spain and the Commission to provide particular elements of factual clarification in writing.
91
On 9 March 2021, the Commission submitted a request that the General Court, on the basis of the second paragraph of Article 264 TFEU, maintain the effects of the contested decision, in the event of its annulment, until a later date or, in the event of an appeal, until the Court of Justice’s decision on that appeal.
92
The Kingdom of Spain and the Commission replied, on 10 and 12 March 2021 respectively, to the General Court’s requests for factual clarification. For its part, the applicant voluntarily submitted new evidence in response to that request on 12 March 2021. The Kingdom of Spain and the Commission submitted observations on that evidence on 25 March 2021, while the Council and the CPMMs submitted their observations in that regard on 29 March and 2 April 2021 respectively. In addition, the Kingdom of Spain and the Council submitted, on 25 and 29 March 2021 respectively, observations on the Commission’s request referred to in paragraph 91 above, while the applicant and the French Republic submitted their own observations on that request on 2 April 2021. The oral part of the procedure was closed on 9 April 2021 and the cases entered the deliberation stage.
93
Following the death of Judge Berke on 1 August 2021, the three judges whose signature this judgment bears continued the deliberations, in accordance with Articles 22 and 24(1) of the Rules of Procedure.
94
The applicant claims that the Court should:
–
in Case T‑344/19, annul the contested decision;
–
in Case T‑356/19, in the event that the Court should find that the contested regulation constitutes an intermediate measure preventing it from being directly concerned by the contested decision, annul that regulation;
–
order the Council and the interveners to pay the costs.
95
The Council contends that the Court should:
–
dismiss the actions;
–
order the applicant to pay the costs.
96
The Kingdom of Spain submits that the Court should:
–
dismiss the actions;
–
make a decision as to costs.
97
The French Republic submits that the Court should dismiss the actions.
98
The Commission states that it supports the form of order sought by the Council. In addition, in Case T‑344/19, it asks the General Court to maintain the effects of the contested decision, in the event of its annulment, until a later date or, in the event of an appeal, until the Court of Justice’s decision on that appeal.
99
In Case T‑344/19, the CPMMs submit that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs.
III. Law
A. The action in case T‑344/19
100
By its action in Case T‑344/19, the applicant, who states that it acts ‘on behalf of the Sahrawi people’, seeks the annulment of the contested decision on the ground, in essence, that, by approving the agreement at issue without the consent of that people, the Council infringed the obligations incumbent on the European Union in its relations with the Kingdom of Morocco under EU and international law. The applicant claims that that agreement applies to Western Sahara and the adjacent waters, provides for the exploitation of its natural resources by EU fishing vessels and promotes the policy of annexing that territory by that third State. In particular, the applicant submits that the conclusion of that agreement is not consistent with the case-law of the Court in the judgments in Council v Front Polisario
and Western Sahara Campaign UK, which excluded such territorial scope.
101
Without formally raising a plea of inadmissibility, the Council, supported by the Kingdom of Spain, the French Republic, the Commission and the CPMMs, raises, primarily, two pleas of inadmissibility with the present action, alleging, first, that the applicant lacks capacity to bring proceedings before the EU Courts and, secondly, that it lacks standing to bring proceedings against the contested decision. In particular, in the context of those pleas of inadmissibility, the Council, supported by the French Republic, the Commission and the CPMMs, calls into question the extent and exclusivity of the role claimed by the applicant with regard to the people of Western Sahara. Moreover, the CPMMs, for their part, call into question the validity of the power of attorney which the applicant conferred on its lawyer. In the alternative, the Council, the Kingdom of Spain, the French Republic, the Commission and the CPMMs claim that the applicant’s arguments as to the substance should be rejected. In particular, the Council, supported by the Kingdom of Spain and the French Republic, submits, in essence, that, by approving the Fisheries Agreement, it complied with the case-law of the Court. For their part, the Commission and the CPMMs, while endorsing that line of argument, consider, in any event, that that case-law is not relevant to the examination of the action, in particular because it relates, as regards the agreements concluded by the European Union with the Kingdom of Morocco, to their interpretation and not their validity. Furthermore, the Council, the French Republic, the Commission and the CPMMs consider that the principles of international law on which the applicant bases its arguments cannot be relied upon.
102
As a preliminary point, first, it should be noted that the present action seeks the annulment of the contested decision, in so far as it concluded the Fisheries Agreement, the implementation protocol and the Exchange of Letters, those two instruments forming an integral part of that Fisheries Agreement, in accordance with Article 16 thereof.
103
Secondly, by judgment delivered today, Front Polisario v Council (T‑279/19), the Court is adjudicating on an action brought by the applicant seeking annulment of Council Decision (EU) 2019/217 of 28 January 2019 on the conclusion of the agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 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 (OJ 2019 L 34, p. 1). As is clear from the grounds of that judgment, in Case T‑279/19, the pleas in law and pleas of inadmissibility raised by the Council, who is the defendant and supported, inter alia, by the French Republic and the Commission, are largely based on the same legal bases and the same arguments as the pleas in law and pleas of inadmissibility raised in the present case. Consequently, the Court will examine them, where necessary, in the light of the findings in that judgment.
1.
The admissibility of certain annexes to the reply
104
In the rejoinder, the Council disputes, on the basis of Article 85 of the Rules of Procedure, the admissibility of Annexes C.1 to C.3, C.5, C.6, C.8, C.9, C.12, C.14, C.15, C.17, C.21, C.22, C.24 to C.40 and C.42 to C.53 on the ground that the late submission of that evidence is not justified. In that regard, it should be borne in mind that, under Article 85(2) of the Rules of Procedure, in reply or rejoinder a main party may produce or offer further evidence in support of his arguments, provided that the delay in the submission of such evidence is justified. However, those provisions must be read in the light of Article 92(7) of those rules, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified. Consequently, as is clear from settled case-law, evidence in rebuttal and the amplification of the offers of evidence submitted in response to evidence in rebuttal from the opposite party are not covered by the time-bar laid down in the abovementioned Article 85(2) (see the judgment of 18 September 2017, Uganda Commercial Impex v Council, T‑107/15 and T‑347/15, not published, EU:T:2017:628, paragraph 72 and the case-law cited).
105
In the present case, it is sufficient to note that, as is apparent from the parts of the reply which refer to it, the evidence contained in the annexes contested by the Council enables a response to the arguments by which the latter, in the defence, claims, first, the validity of the consultations conducted by the Commission and the European External Action Service (EEAS) with a view to obtaining the consent of the people of Western Sahara and, secondly, the applicant’s lack of capacity to be a party to legal proceedings and lack of standing to bring proceedings. Therefore, the time-bar laid down in Article 85(2) of the Rules of Procedure does not apply to that evidence, which is therefore admissible. It follows that the Council’s plea of inadmissibility with regard to that evidence must be dismissed.
2.
Admissibility of the action
106
Before examining the Council’s pleas of inadmissibility and the doubts expressed by the CPMMs, it must be observed that the subject matter of the present action raises other issues of admissibility, on which it is for the Court to rule of its own motion. Those issues relate, first, to the premiss on which the applicant bases its standing to bring an action, namely that the territorial scope of the agreement at issue includes Western Sahara and its adjacent waters and, secondly, to the scope of the claims for annulment of the contested decision.
(a)
The territorial scope of the agreement at issue
107
It is clear from the pleas and arguments put forward in the application that the present action is based on the premiss that the agreement at issue applies to Western Sahara and the adjacent waters. In particular, as regards the admissibility of the action, the applicant relies on the alleged fact that, as the representative of the people of Western Sahara, it is directly and individually concerned by the contested decision by reason of that agreement’s territorial application.
108
It is therefore necessary to ascertain, as a preliminary point, whether the premiss on which the applicant bases its standing to bring an action with regard to the contested decision is correct.
109
In that regard, in the first place, it should be noted that, according to the wording of Article 1(h) of the Fisheries Agreement, the fishing zone, for the purposes of that agreement, concerns the ‘waters of the Eastern Central Atlantic Ocean between the parallels 35°47’18” north and 20°46’13” north, including the adjacent waters [to] Western Sahara’, without prejudice to the rights of third States, in particular coastal States bordering that fishing zone (see paragraph 61 above).
110
Moreover, as pointed out in paragraph 69 above, fishing datasheets No 3 to No 6, which appear in Appendix 2 to the implementation protocol, refer, as the southern limit of the management zone covered by those datasheets, to parallel 20°46’13’’ and fishing datasheet No 6 refers to vessels landing at Dakhla port, which is in Western Sahara.
111
It follows from the wording of those provisions that the geographical coordinates referred to therein include both the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco and the waters adjacent to Western Sahara, as is illustrated, moreover, by the charts reproduced in point 66 of the Opinion of Advocate General Wathelet in Western Sahara Campaign UK (C‑266/16, EU:C:2018:1), as well as by points 66 to 69 of that Opinion. In a written reply to a question put to it by the Court, the Commission confirmed that the delimitation of the fishing zones on those charts corresponded, in essence, to the limits of the management areas set out in the fishing datasheets referred to in paragraph 110 above.
112
In the second place, it must be observed that Article 12 of the Fisheries Agreement, first, provides that a ‘financial contribution’ is to be paid, including, inter alia, under paragraph 2 of that article, ‘sectoral support granted by the Union’ and, secondly, requires the parties to that agreement, under paragraph 4 thereof, to examine ‘the fair geographical and social distribution of the socioeconomic benefits arising from [that] Agreement’‘to ensure that this distribution benefits the relevant populations in a way that is proportionate to the fishing activities’ (see paragraph 63 above).
113
The provisions referred to in paragraph 112 above are laid down, in particular, in Articles 6 and 7 of the implementation protocol. Article 6(2) of that protocol provides, inter alia, that the authorities of the Kingdom of Morocco are to present a method ensuring the geographical and social distribution of the socioeconomic advantages in question and a distribution key for the allocated amounts, which is to be examined by the Joint Committee established by Article 13 of the Fisheries Agreement. In addition, Article 7(2) of the protocol provides that no later than three months after the date of application of that protocol, that Joint Committee is to agree on a multiannual sectoral programme and detailed implementing rules.
114
In the third place, under Article 14 of the Fisheries Agreement, entitled ‘Area of application’, the Fisheries Agreement applies to the territories subject, first, to the EU Treaty and the FEU Treaty and, secondly, ‘to the laws and regulations referred to in Article 6(1) [of that] Agreement’, that is to say, according to the wording of that article, the Moroccan laws and regulations applicable to fishing activities (see paragraphs 62 and 65 above).
115
In the fourth place, point 1 of the second paragraph of the Exchange of Letters states that, ‘with regard to Western Sahara’, the European Union and the Kingdom of Morocco ‘reaffirm their support for the United Nations process’. Point 2 of the second paragraph of the Exchange of Letters states that ‘the Fisheries Agreement is concluded without prejudice [to their] respective positions’, ‘for the … Union, … concerning the status of the non-self-governing territory of Western Sahara’ and, ‘for the Kingdom of Morocco, [concerning] the Sahara region [as] an integral part of the national territory over which it exercises full sovereignty’ (see paragraph 70 above).
116
In the fifth place, it is expressly stated in recitals 3 and 5 of the contested decision (see paragraph 60 above) that, following the delivery of the judgment in Western Sahara Campaign UK, by which ‘the Court held that neither the [2006 Fisheries Agreement] nor the [2013] Protocol [were applicable] to the waters adjacent to the territory of Western Sahara’, the conclusion of the agreement at issue is intended to enable ‘Union fleets’ to ‘to continue the fishing activities they had pursued’, to ‘include [in the scope of the Agreement]’ those waters and to permit, by the ‘continuation of the fisheries partnership’, ‘that territory’ to ‘continue to benefit from the sectoral support provided under the Agreement, in compliance with Union and international law, including human rights, and for the benefit of the people concerned’.
117
Consequently, first, it follows expressly from the provisions of the agreement at issue as a whole and from the recitals of the contested decision that the purpose of that agreement, confirmed by the intention of the parties thereto, is to allow the European Union’s fishing fleets to carry out their fishing activities in an area which includes both the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco and the waters adjacent to Western Sahara. Secondly, it also follows that that agreement applies both on the territory of the Kingdom of Morocco and on that of Western Sahara, at least the part of that territory controlled by that third State, to which, under Article 6(1) of the Fisheries Agreement, Moroccan ‘laws and regulations’‘shall apply’. In particular, the same is true of its provisions concerning financial compensation, which include sectoral support from which the ‘people’ of that territory are likely to benefit in proportion to the fishing activities in the adjacent waters.
118
That analysis is not called into question by the Court’s interpretation of the scope, first, of the Association Agreement and the Liberalisation Agreement in paragraphs 86 to 126 of the judgment in Council v Front Polisario and, secondly, of the 2006 Fisheries Agreement and the 2013 Protocol in paragraphs 59 to 82 of the judgment in Western Sahara Campaign UK (see paragraphs 36 to 40 and 44 to 51 above).
119
It follows from paragraphs 86 to 126 of the judgment in Council v Front Polisario and paragraphs 59 to 82 of the judgment in Western Sahara Campaign UK that an agreement between the European Union and the Kingdom of Morocco concluded within the framework of the whole convention that is the Association Agreement cannot be interpreted as implicitly including, within its territorial scope as defined in Article 94 of that agreement, the territory of Western Sahara (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 187). Moreover, it follows from paragraphs 73 and 79 of the judgment in Western Sahara Campaign UK that a fisheries agreement between those two parties and its implementation protocol concluded in that context, which refer to the ‘Moroccan fishing zone’, defined as referring to the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco, cannot be interpreted as including in that Moroccan fishing zone the waters adjacent to Western Sahara.
120
By contrast, in the judgments in Council v Front Polisario
and Western Sahara Campaign UK, the Court did not rule on the conclusions to be drawn from a provision in an agreement between the European Union and the Kingdom of Morocco expressly providing that its scope extends to the territory of Western Sahara and the adjacent waters. In particular, as the Commission and the French Republic point out, the Court did not rule out, in principle, the possible validity of such an explicit inclusion of that territory and of those waters within that scope (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 187 and 188).
121
Moreover, the requirement arising, in particular, from Article 31(3)(c) of the Vienna Convention, that the provisions of a treaty must be interpreted in the light of any rules of international law applicable in the relations between the parties, cannot serve as the basis for an interpretation of such provisions which runs counter to their wording, where the meaning of those provisions is clear and it is also established that that meaning corresponds to the interpretation which the parties to the treaty had intended to give to them. Aside from the fact that the implementation of that requirement must be consistent with the principle laid down in Article 31(1) of that convention, according to which a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose, that implementation cannot have the consequence of altering the substance of the rights and obligations to which the European Union and the Kingdom of Morocco mutually consented in the context of the agreement at issue (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 190 to 192).
122
Since the purpose of the agreement at issue is, in particular, to provide a legal framework for the inclusion of the waters adjacent to Western Sahara in the fishing zone authorised for EU vessels and, consequently, for the application to the territory of Western Sahara of the financial contribution granted by the European Union in proportion to the activities of those vessels, it must necessarily be concluded that, by that agreement, the parties intended to derogate from Article 94 of the Association Agreement in so far as the territorial scope of the legal regime applicable to those activities and that contribution is concerned. That article limits, as regards the Kingdom of Morocco, the scope of the Association Agreement to the territory of the latter (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 189).
123
The premiss on which the applicant bases its standing to bring proceedings with regard to the contested decision, namely that the contested decision approves an agreement between the European Union and the Kingdom of Morocco which expressly applies to the territory of Western Sahara and the adjacent waters, is therefore correct.
(b)
Scope of the claims for annulment
124
The Court notes that, in the present action, the applicant disputes, by its pleas and arguments, the legality of the contested decision solely on the ground that it approves the application of the agreement at issue to the territory of Western Sahara and the adjacent waters, which the applicant confirmed, in essence, at the hearing in response to a question from the Court on that subject. Thus, by those pleas and arguments, the applicant does not seek to challenge the lawfulness of the application of those instruments to the territory of the Kingdom of Morocco or to the waters falling within the sovereignty or jurisdiction of that third State; that application is therefore not called into question in the present dispute.
125
However, it is clear from the wording of the application, in particular its introduction and conclusion, that, in the form of order sought, the applicant seeks the annulment of the contested decision, without expressly limiting the scope of that annulment to the approval, by that decision, of the application of the agreement at issue to Western Sahara and the adjacent waters.
126
When questioned at the hearing on the scope of the form of order sought, the applicant stated that its action sought, primarily, the annulment of the contested decision in so far as it approved the application of the agreement at issue to Western Sahara and the adjacent waters and, in the alternative, if the Court were to find that that territorial application was not severable from that agreement as a whole, the annulment of the contested decision in its entirety.
127
In that regard, it must be observed that, according to settled case-law, the partial annulment of an EU act is possible only if the elements whose annulment is sought may be severed from the remainder of the act. In that regard, it has been repeatedly held that the requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance. Consequently, review of whether elements of an EU act are severable requires consideration of the scope of those elements in order to assess whether their annulment would alter the spirit and substance of the act (see judgment of 9 November 2017, SolarWorld v Council, C‑204/16 P, EU:C:2017:838, paragraphs 36 and 37 and the case-law cited).
128
As is apparent from paragraphs 109 to 117 above, by the contested decision, the Council, on behalf of the European Union, expressed the consent of the latter to an agreement with the Kingdom of Morocco, the provisions of which apply without distinction, first, to the territory of that third country and to the waters under its sovereignty or jurisdiction and, secondly, to Western Sahara and the adjacent waters. In particular, it must be observed that, although the Fisheries Agreement expressly includes the latter waters in the fishing zone, its definition and the management areas referred to in the fishing datasheets set out in Appendix 2 to the implementation protocol do not imply a delimitation of fishing activities according to whether they take place in those waters or in Moroccan waters. Similarly, the provisions of that agreement and of the implementation protocol relating to the financial contribution, in particular sectoral support, do not differentiate between the part of that contribution paid for activities located in Moroccan territory and the part paid for activities located in the abovementioned non-self-governing territory.
129
Consequently, it must be inferred that the consent given, on behalf of the European Union, by the contested decision to the agreement at issue applying to Western Sahara and the adjacent waters is not severable from the consent given, by that decision, to that agreement as a whole. Thus, annulment of that decision only in so far as it approved the application of that agreement to that non-self-governing territory and to those waters would alter the spirit and substance of that act.
130
Moreover, it should be borne in mind that the applicant is not entitled, in principle, to alter the original subject matter of the application by substituting the forms of order sought in the application with forms of order sought for the first time at the hearing (see, to that effect and by analogy, judgments of 27 January 2000, Mulder and Others v Council and Commission, C‑104/89 and C‑37/90, EU:C:2000:38, paragraph 47 and the case-law cited, and of 21 April 2005, Holcim (Deutschland) v Commission, T‑28/03, EU:T:2005:139, paragraph 45 and the case-law cited). In the present case, it must be observed that only the head of claim which it put forward at the hearing in the alternative, seeking annulment of the contested decision in its entirety, corresponds to the wording of the form of order sought in the application.
131
Therefore, the applicant’s principal head of claim, at the hearing, seeking partial annulment of the contested decision in so far as it approves the application of the agreement at issue to Western Sahara and the adjacent waters must be rejected as inadmissible. It is therefore necessary to examine only the form of order sought by the applicant, as set out in the application and reiterated, in the alternative, at the hearing, that seeks annulment of the contested decision in its entirety.
(c)
The Council’s first plea of inadmissibility, alleging the applicant’s lack of capacity to bring legal proceedings
132
In support of the first plea of inadmissibility, the Council submits that the applicant is not a legal person, within the meaning of the fourth paragraph of Article 263 TFEU, with the capacity to bring legal proceedings before the EU Courts. In the first place, it submits that the applicant does not have legal personality under the domestic law of a Member State. In the second place, it states that the applicant is not a subject of international law. In the third place, it submits that the applicant does not satisfy the criteria laid down by the EU Courts for the purpose of recognising the capacity to bring legal proceedings of an entity that does not have legal personality and, in particular, the condition that the entity in question must be treated by the European Union as a distinct person endowed with rights and obligations.
133
The French Republic, the Commission and the CPMMs essentially put forward the same arguments as the Council. The CPMMs further submit that the applicant does not have the necessary independence to act as a responsible entity in legal relations, in the light of its relations with the Sahrawi Arab Democratic Republic (SADR), which is not recognised by the UN or the European Union.
134
In support of its capacity to bring legal proceedings, the applicant claims that it is a national liberation movement, deriving its rights and obligations directly from international law by reason of the separate and distinct status of Western Sahara and the right to self-determination of the Sahrawi people. That status is confirmed, in particular, by its capacity to conclude agreements and by its recognition as the sole representative of that people by the UN General Assembly. As a subject of international law, it satisfies, a fortiori, the criteria laid down by the case-law for determining whether an entity without legal personality may be regarded as a legal person within the meaning of the fourth paragraph of Article 263 TFEU.
135
As a preliminary point, it must be recalled that, in accordance with the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
136
Next, according to the case-law, although the concept of legal person in the fourth paragraph of Article 263 TFEU implies, in principle, the existence of legal personality, which must be determined in the light of the national law under which the legal person in question was constituted, it does not necessarily coincide with those specific to the different legal orders of the Member States. Thus, the case-law has already recognised the capacity of entities to bring legal proceedings before the EU Courts irrespective of whether they are constituted as a legal person under national law (see judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 83 and the case-law cited).
137
In particular, that was the case where, first, the entity in question had sufficient representative character with regard to the persons whose rights, derived from EU law, it sought to defend and the independence and responsibility necessary to act in the context of legal relationships governed by EU law and, secondly, had been recognised by the institutions as an interlocutor in negotiations relating to those rights (see judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 84 and the case-law cited).
138
That has also been the case where the EU institutions have treated that entity as a distinct subject with its own rights and obligations. Consistency and justice require recognition of the capacity of such an entity to be a party to legal proceedings to challenge measures restricting its rights or decisions unfavourable to it on the part of the institutions (see judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 85 and the case-law cited).
139
It must be added, in contexts which are different from those of the judgments referred to in paragraphs 137 and 138 above, that the case-law does not preclude an entity from being recognised as having capacity to bring legal proceedings before the EU Courts, 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 (see judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 86 and the case-law cited).
140
Finally, it is also apparent from the case-law that subjects of public international law, such as non-member States, are legal persons within the meaning of EU law (see judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 87 and the case-law cited).
141
In the present case, as in the case which gave rise to the judgment delivered today, Front Polisario v Council (T‑279/19), while the parties agree on the fact that the applicant does not have legal personality under national law, they disagree as to whether the applicant has legal personality under public international law, and in particular on the impact of the applicant’s role in the self-determination process of Western Sahara on that personality and whether or not its representativeness is limited in respect of the people of that territory (judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 88 and 89).
142
It is therefore necessary to ascertain, in the light of the case-law on the concept of legal person referred to in paragraphs 136 to 140 above, whether the applicant’s role and representativeness are capable of conferring on it the capacity to bring legal proceedings before the EU Courts (judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 90).
143
In that regard, in the first place, it must be recalled that, in paragraph 89 of the judgment in Council v Front Polisario, on which the applicant relies in the present action, the Court of Justice stated that the customary principle of self-determination formed part of the rules of international law applicable to relations between the European Union and the Kingdom of Morocco, which the Court of Justice was obliged to take into account. More specifically, in paragraph 105 of that judgment, the Court recalled that the ICJ noted, in its advisory opinion on Western Sahara, that the population of that territory enjoyed the right to self-determination under general international law, as set out in paragraphs 90 and 91 of that judgment. Moreover, it stated that, for its part, the UN General Assembly had, in paragraph 7 of resolution 34/37 on the question of Western Sahara, recommended that the applicant, ‘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’.
144
It is thus apparent from those considerations that international law confers on the people of Western Sahara a right to self-determination, which the EU Courts must take into account, and that, on the basis of that right, the applicant, as the representative of that people, was recognised by the UN General Assembly as having the right to participate ‘fully’ in the search for a political solution to the question of the definitive status of that territory. Furthermore, it should be borne in mind that that right was confirmed by resolution 35/19 (see paragraph 16 above) and that the applicant took part in the negotiations under the aegis of the UN, to which the Kingdom of Morocco and it have been parties since 1988 (see paragraphs 17, 18 and 20 above) (judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 92).
145
In the context of the present plea of inadmissibility, the Council, the French Republic, the Commission and the CPMMs do not dispute the exercise, by the applicant, of its right to participate in the self-determination process of Western Sahara, as the representative of the people of that territory, a status recognised by the UN bodies (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 93).
146
Moreover, as the applicant submits, it is subject to a certain number of commitments under international law as the representative of the people of Western Sahara, in particular under the peace agreement concluded with the Islamic Republic of Mauritania (see paragraph 15 above), agreements it has reached with the Kingdom of Morocco on particular matters relating to the application of the proposals for a regulation of the United Nations Secretary-General and of the four Geneva Conventions of 12 August 1949 and of the Protocol additional to the Geneva Conventions of 12 August 1949 on the protection of victims of international armed conflicts (Protocol I), signed on 8 June 1977, to which it acceded on 23 June 2015 (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 94).
147
Moreover, the Council, the French Republic, the Commission and the CPMMs do not dispute that, as the applicant claims, it participates in the work on the question of Western Sahara of the Special Committee on the situation with regard to the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, established by the United Nations General Assembly, and in the joint work of the Economic Commission for Africa (ECA), established within the United Nations Economic and Social Committee, and the Specialised Technical Committee on finance, monetary affairs, economic planning and integration (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 95).
148
The applicant is therefore recognised internationally as a representative of the people of Western Sahara, even if, as the Council, the French Republic, the Commission and the CPMMs maintain, that recognition is within the limited framework of the self-determination process of that territory. In addition, its participation in that process implies that it has the necessary autonomy and responsibility to act in that context, which is confirmed, moreover, by its constituting document attached to the file. The fact that, as the Council, the French Republic, the Commission and the CPMMs submit, the applicant’s rights and obligations are not equivalent to those of States or international organisations, a fact which, moreover, is not disputed, is not decisive in that regard (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 96 and 97).
149
In the second place, the applicant rightly claims that the institutions took note of its role and representativeness. First, in paragraph 105 of the judgment in Council v Front Polisario, the Court itself took note of the recognition by the UN General Assembly of that representativeness (see paragraph 143 above). Secondly, the applicant provides evidence indicating that it regularly communicates with the Commission on matters concerning the situation of Western Sahara. Moreover, in the context of the consultations referred to in recital 11 of the contested decision (see paragraph 60 above), the EEAS proposed an exchange of views with the applicant concerning the agreement at issue, as is apparent from the Commission’s assessment report on the benefits for the population of Western Sahara of the Sustainable Fisheries Agreement between the European Union and the Kingdom of Morocco and its implementation protocol and on the consultation of that population, by the Commission, accompanying the proposal for a Council Decision of 8 October 2018 on the signing, on behalf of the European Union, of the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, the implementation protocol thereto and the Exchange of Letters accompanying the agreement (SWD(2018) 433 final; ‘the report of 8 October 2018’). The applicant is therefore justified in claiming that it is regarded as a legitimate interlocutor by the EU institutions on matters likely to concern that territory, including in order to express its position on the conclusion of the agreement at issue (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 98).
150
In the third place, it must be recalled that, in paragraph 106 of the judgment in Council v Front Polisario, the Court held that, in the light of the information set out in paragraph 105 of that judgment (see paragraph 143 above), the people of Western Sahara had to be regarded as a ‘third party’ within the meaning of the principle of the relative effect of treaties, who, as such, could be affected by the implementation of the Association Agreement in the event that the territory of Western Sahara falls within the scope of that agreement, meaning that that implementation had, in any event, to receive its consent (judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 99).
151
Moreover, in paragraphs 63 and 64 of the judgment in Western Sahara Campaign UK, the Court took into account the considerations in the judgment in Council v Front Polisario, in particular those in paragraphs 105 and 106 thereof, to conclude that the scope of the 2006 Fisheries Agreement could not be interpreted as including the territory of Western Sahara without infringing the principle of self-determination and the principle of the relative effect of treaties. Similarly, in paragraphs 69 to 73 of that judgment, taking into consideration the provisions of the Convention on the Law of the Sea, the Court inferred from that conclusion that it would be contrary to those principles to hold that the waters adjacent to that non-self-governing territory fall within the sovereignty or jurisdiction of the Kingdom of Morocco for the purposes of that fisheries agreement.
152
By the present action, the applicant seeks to defend the right of the people of Western Sahara to self-determination, on the ground, in essence, that the contested decision fails to respect that right in that it approves the conclusion of an agreement with the Kingdom of Morocco which applies to that territory and to the adjacent waters, without its consent, contrary to the ruling of the Court of Justice (see paragraph 100 above). Consequently, it must be held that, in that particular situation, the requirements of effective judicial protection mean that, in any event, the applicant’s capacity to bring an action before the General Court in order to defend that right must be recognised (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 100).
153
In the light of all those circumstances, the applicant must be classified as a legal person, within the meaning of the fourth paragraph of Article 263 TFEU, having the capacity to be a party to legal proceedings before the EU Courts for the purposes of bringing the present action, without prejudice to its obligation to demonstrate that that action satisfies the other conditions of admissibility and, in particular, that it has standing to bring proceedings (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 101).
154
The arguments of the Council, the French Republic, the Commission and the CPMMs do not call that conclusion into question.
155
First, the alleged circumstances relating to the fact that the applicant is not the sole representative of the people of Western Sahara and that its representativeness is limited to the self-determination process are not, in any event, decisive in the light of the facts recalled in paragraphs 143 to 149 above. The same is true of the fact that the UN bodies did not expressly define it as a national liberation movement and did not confer on it observer status and of the argument that its legal personality is, at most, ‘functional’ or ‘transitional’ (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 103).
156
Secondly, as regards the CPMMs’ argument alleging that the applicant is not independent of the SADR, in view of the fact that the applicant is a party to the self-determination process as an autonomous political organisation and not as a representative of the SADR and that, in any event, the text cited by the CPMMs in support of their argument recognises that independence, that argument must be rejected (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 104).
157
Thirdly, as regards the argument that there is no legal relationship between the applicant and the European Union or between the applicant and the Member States from which it could derive rights and obligations and which could constitute, on the part of the European Union or the Member States, a form of ‘international recognition’, it is sufficient to note that, in the present case, the General Court has before it an action for annulment against an EU act, on which it has jurisdiction to rule, by which the applicant claims to be directly and individually concerned as a representative of the people of Western Sahara and that, by the present action, it seeks to defend the right of that people to self-determination, which the institutions are bound to respect. Consequently, the existence of a legal relationship between the European Union and the applicant, which it will be necessary to ascertain in the context of the examination of its direct and individual concern, cannot be excluded at this stage. In any event, in so far as the institutions took note of the applicant’s representativeness and treat it as a legitimate interlocutor as regards the question of Western Sahara, the fact that it is not the addressee of any EU act producing legal effects is not decisive (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 105 to 108 and the case-law cited).
158
Fourthly, contrary to what the Commission claims, the recognition of the applicant’s capacity to bring legal proceedings before the Court does not transform the latter into a ‘quasi-international’ court. First of all, the present dispute does not concern the international ‘dispute’ to which the applicant is a party, but an action for annulment of an EU act. Next, in so far as it is solely for the Court to ascertain whether the applicant satisfies the conditions of admissibility specific to EU law, and in particular those arising from the concept of ‘legal person’, the admission of its action is made within the strict framework of the exercise of the jurisdiction conferred on the Court by EU law. Finally, since the exercise of the powers conferred on the EU institutions in international matters cannot escape judicial review, recognition of the applicant’s capacity to bring proceedings before the courts cannot have the consequence that the Court takes the place of the institutions managing the external relations of the European Union and adopts a ‘political’ decision. Moreover, the Court cannot give priority to considerations of international policy and expediency over the rules on admissibility laid down in the fourth paragraph of Article 263 TFEU (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 109 to 113 and the case-law cited).
159
It follows from all the foregoing that the Council’s plea of inadmissibility based on the applicant’s lack of capacity to bring proceedings before the courts must be rejected.
(d)
Validity of the power of attorney conferred by the applicant on its lawyer
160
The CPMMs express doubts as to the validity of the power of attorney conferred by the applicant on its lawyer. They question whether that power of attorney can be validly signed by the applicant’s ‘political secretary’, as it has been in the present case. They ask the Court to verify the validity of that power of attorney. They submit that, if it is invalid, the action must be declared inadmissible on the basis of Article 51(3) of the Rules of Procedure.
161
When questioned in that regard, in the context of the measure of organisation of procedure of 18 December 2020, first, the applicant states that it is not a ‘legal person governed by private law’ within the meaning of Article 51(3) of the Rules of Procedure. Secondly, it submits that all the actions which it has brought since 2012 were brought on the basis of powers of attorney signed by its ‘political secretary’, without the validity of those powers of attorney ever having been called into question. Thirdly, the ‘secretariat of the political organisation’, the head of which is the signatory of the power of attorney, forms part of the ‘Front’s main structures’ and is the subject of Articles 119 to 130 of its constituting document. Fourthly, that signatory and his functions are clearly identified by documents available online. It states that it follows from all of those elements that, in accordance with the case-law, there is no doubt as to the applicant’s intention to bring the present action. In support of those arguments, the applicant provides the full text of its constituting document, approved at its fourteenth Congress, held from 16 to 23 December 2015, and the documents available online, to which it refers.
162
In the present case, it must be observed that, like the power of attorney of the lawyer submitted by the applicant in the case which gave rise to the judgment delivered today, Front Polisario v Council (T‑279/19), the document of 20 May 2019 which it submitted in the present case and to which the CPMMs refer appears to be a power of attorney conferred on its lawyer in order to bring an action for annulment in its name, issued in its name and signed by A, designated as the ‘political secretary’ of that organisation. Moreover, the CPMMs express doubts as to the validity of that power of attorney in the same way as the Confédération marocaine de l’agriculture et du développement rural (Comader), an intervener in the case which gave rise to that judgment, and the applicant, in the present case, submitted observations in that regard with the same content as those which it submitted in that case (judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 115, 116 and 123).
163
In that regard, first of all, it must be observed that, irrespective of the conditions laid down in Article 51(3) of the Rules of Procedure, every entity must demonstrate not only its capacity to bring proceedings but also that it has indeed made the decision to bring the action and that the lawyers who claim to represent it have in fact been authorised to do so (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 120 to 122 and the case-law cited).
164
In the present case, it follows from paragraphs 143 to 159 above that the applicant has the capacity to bring proceedings before the EU Courts. Nevertheless, it is necessary to verify that there can be no doubt that it actually decided to bring the action, since that question may, in any event, be examined by the Court of its own motion (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 117 and 119).
165
First, as is apparent from the applicant’s explanations and the documents provided in support, the content of which is not disputed, the expression ‘political secretary’ must be understood as referring to the person at the head the body named, in its constituting document, as the ‘Secretariat of the political organisation’. Moreover, it is clear from those documents that the person who signed the power of attorney conferred by the applicant on the lawyer did in fact occupy the post of ‘political secretary’ to the applicant at the time when the action was brought, which is also not disputed (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 125).
166
Secondly, according to Article 92(7) of the applicant’s constituting document, the National Secretariat, which is, according to Article 76 thereof, ‘the supreme body’ of the applicant ‘during the period between the two Congresses’, has the function, inter alia, of ‘representing the Front in its relations with political parties, governments, liberation movements and other organisations’. According to Article 120 of that constituting document, ‘the Secretariat of the political organisation shall implement and monitor the decisions and programmes of the National Secretariat and its Bureau in line with the nature and functions of the political organisation’ (judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 126).
167
It can therefore be inferred from the applicant’s constituting document, as the applicant confirmed at the hearing, that the implementation of decisions of the National Secretariat in its relations with governments and other organisations, in particular with the European Union, may fall within the competence of the Secretariat of the political organisation and that, in that capacity, A was authorised to sign the power of attorney of the applicant’s lawyer (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 127).
168
It must be added that, although the representative role of the ‘political secretary’ to international organisations such as the European Union or courts, such as the Court, is not apparent from the list of tasks of the Secretariat of the political organisation in Articles 122 and 131 of the applicant’s constituting document, Article 120 thereof confers on that body the power to implement and monitor decisions and programmes of the National Secretariat and it is not apparent from Articles 122 and 131 that the list of its tasks is exhaustive (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 128 and 129 and the case-law cited).
169
It must therefore be inferred from those considerations that, in the present case, A, the applicant’s ‘political secretary’, was authorised to implement the decision of the applicant’s ‘supreme body’, namely the National Secretariat, to bring the present action. Moreover, in the answer to the General Court’s questions of 25 January 2021, the applicant’s lawyer, a member of the bar of a Member State and, as such, subject to a professional code of ethics, stated that the applicant had ‘indeed intended to bring [the action]’ and that ‘its determination to secure effective compliance with the judgments of the Court of Justice [was] total’ (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 130 and 131 and the case-law cited).
170
It follows from all of the foregoing that the CPMMs’ doubts as to the validity of the power of attorney conferred by the applicant on its lawyer must be dismissed.
(e)
The Council’s second plea of inadmissibility, alleging that the applicant lacks standing to bring proceedings
171
In the context of the second plea of inadmissibility, the Council, supported by the Kingdom of Spain, the French Republic, the Commission and the CPMMs, submits that the applicant, which is not an addressee of the contested decision, is not directly or individually concerned by it.
172
The applicant, for its part, submits that it is directly and individually concerned by the contested decision, in that the agreement at issue applies to the territory of Western Sahara and the adjacent waters and therefore affects the people of that territory.
173
As a preliminary point, first, it must be borne in mind that, according to settled case-law, an act such as the contested decision, which approves an international agreement concluded by the European Union, may be challenged. Secondly, it must be borne in mind that Article 263 TFEU makes a clear distinction between the right of appeal of the EU institutions and Member States and that of natural and legal persons, the fourth paragraph of that article providing that the latter may institute proceedings against an act addressed to them or which is of direct and individual concern to them, or against regulatory acts which are of direct concern to them and do not entail implementing measures (judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 135 and 136 and the case-law cited).
174
In the present case, the applicant is not an addressee of the contested decision or of the agreement at issue. In view of the particular position of international agreements in the legal order of the European Union and the legal basis of the contested decision, namely Article 218(6)(a)(i) TFEU, which requires, for the adoption of such a decision, the consent of the European Parliament, the applicant’s action against the contested decision cannot be made subject to less stringent conditions of admissibility than those applicable to an action against legislative acts. It is therefore for the applicant to show that it is directly and individually concerned by the contested decision, which, moreover, it does not dispute (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 137 to 140 and the case-law cited).
175
It is appropriate to rule on the present plea of inadmissibility, starting with the examination of whether the applicant is directly concerned.
(1) The applicant’s direct concern
176
The Council submits that the applicant does not satisfy the criteria laid down by the case-law for determining whether a natural or legal person is directly concerned by the contested act. In that regard, first, as regards the first of those criteria, it maintains that the applicant is not an addressee of the contested act and that that act does not produce legal effects with regard to it. In the first place, according to the Council, the contested decision produces legal effects only vis-à-vis the European Union or its institutions and not vis-à-vis third parties. In the second place, it considers that the contested decision does not produce its effects outside the territory covered by the Treaties. In the third place, it submits that, by relying on the effects of the agreement at issue on a territory outside the European Union in order to determine whether the applicant is directly concerned, the Court would have to rule on the lawfulness of the rights and obligations of the Kingdom of Morocco arising from that agreement, to which that third country consented, freely and at its absolute discretion, which would exceed its powers. Secondly, as regards the second of those criteria, it states that that agreement and the Exchange of Letters do not themselves produce legal effects vis-à-vis third parties and require implementation by the implementation protocol, which itself requires additional implementing measures. In the rejoinder, the Council adds that, even if the contested decision were to produce effects outside the territory of the European Union, the agreement at issue is only capable of affecting operators active in the economic sectors concerned.
177
For its part, the applicant claims that it is directly concerned by the contested decision. It submits that it meets the two criteria which must be satisfied in order to fulfil the condition of direct concern. First, it infers from the judgment in Council v Front Polisario that, in so far as the contested decision concludes an agreement which expressly includes the territory of Western Sahara and the adjacent waters and their natural resources within its scope without the consent of the people of that territory, that agreement directly affects the latter, as a third party to the agreement. For that reason alone, that agreement has effects on its legal position, as the sole representative of that people. Secondly, it states that the contested regulation, which was adopted prior to the contested decision and which merely extends the fishing opportunities provided for in Article 3(1) of the implementation protocol, cannot be regarded as an intermediate measure interfering with its direct concern.
178
The Kingdom of Spain, the French Republic, the Commission and the CPMMs put forward, in essence, the same arguments as those of the Council.
179
As a preliminary point, it should be recalled that, according to settled case-law, the condition that a natural or legal person must be directly concerned by the decision under appeal, as specified in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be satisfied. The first is that the contested EU measure must directly affect the legal situation of the individual. The second is that it must leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting solely from EU rules without the application of other intermediate rules (see judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 144 and the case-law cited).
180
It is therefore necessary to examine separately whether the applicant satisfies each of those two criteria.
(i) Does the applicant satisfy the first criterion of direct concern, according to which the contested measure must directly affect its legal position?
181
As regards the question as to whether the first of the criteria for direct concern is satisfied, it may be inferred from the arguments of the Council, the Kingdom of Spain, the French Republic, the Commission and the CPMMs that their challenge to the existence of the contested decision’s direct effects on the applicant’s legal position comprises, in essence, three parts. The first is based on the intrinsic legal effects of a decision to conclude an international agreement on behalf of the European Union. The second relates to the specific legal effects of the contested decision in the light of its territorial application. The third concerns the absence of any change to the applicant’s legal position, in view of its role which is limited to participating in the self-determination process of Western Sahara (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 146).
– The first part of the Council’s argument, relating to the intrinsic legal effects of a decision concluding an international agreement on behalf of the European Union
182
First, the Council, supported by the French Republic, submits, in essence, that a decision to conclude an international agreement on behalf of the European Union does not produce effects vis-à-vis third parties and that the alleged effects of the agreement at issue on the applicant cannot be relied on to demonstrate that its legal position is affected by that decision. Secondly, the Council, supported, in essence, by the French Republic and the Commission, states that a decision of that nature cannot produce legal effects other than in the European Union.
183
For its part, the applicant claims that the contested decision, in so far as it concludes the agreement at issue, is inseparable from that agreement, unless such an act, which is open to challenge, were to be removed from the scope of a judicial review of its lawfulness. Furthermore, the applicant submits that, in any event, it is not disputed that the territorial scope of the agreement at issue, approved by the contested decision, includes the territory of the people of Western Sahara and the adjacent waters and their natural resources. According to the applicant, the Council’s reference to the free and sovereign consent of the Kingdom of Morocco calls into question the jurisdiction of the EU Courts to review the contested decision.
184
In the first place, it should be noted that a decision concluding an international agreement, which is based on Article 218(6) TFEU, cannot be confused with decisions adopted on the basis of Article 218(3) and (4) TFEU, which relate to the conduct of international negotiations and therefore, in principle, produce legal effects only in relations between the European Union and its Member States and between the EU institutions. That decision, however, gives concrete expression to the European Union’s consent to be bound by that agreement. It is therefore a constituent element of that agreement and produces legal effects on the other parties thereto, in so far as it formalises the European Union’s acceptance of the commitments it has made to them (see judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 149 and 150 and the case-law cited).
185
Moreover, where the international agreement concluded by such a decision binds the parties with regard to a territory other than their territory under the conditions laid down by international law, that agreement is liable to affect a third party within the meaning of the general principle of international law of the relative effect of treaties. Consequently, the effects of the implementation of that agreement on the legal position of that third party are relevant for assessing whether that third party is directly concerned by the decision concluding that agreement, adopted on behalf of the European Union (see judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 151 and 152 and the case-law cited).
186
It follows that the Council is wrong to assert that, by its very nature, the contested decision produces effects only vis-à-vis the European Union and its institutions. For the same reasons, the French Republic’s argument that the contested decision does not, in itself, produce legal effects in relation to the applicant, since it is not sufficient, in itself, to cause the disputed agreement to enter into force, must be rejected (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 153 and the case-law cited).
187
In the second place, it must be observed that an international agreement concluded by the European Union binds not only the EU institutions but also the third States which are parties to those agreements. That is why, as the French Republic itself points out, an action for annulment brought against an international agreement must be understood as being directed against the decision which concluded it on behalf of the European Union. Similarly, the Court has held that a request for a preliminary ruling concerning the validity of an international agreement concluded by the European Union must be construed as relating to the act by which the European Union had concluded such an international agreement (see judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 154 and the case-law cited).
188
However, in view of the Court’s competence, in the context of both an action for annulment and a request for a preliminary ruling, to determine whether an international agreement concluded by the European Union is compatible with the Treaties and with the rules of international law which bind the European Union, it has been held that the review of the validity of a decision concluding an international agreement by the Court, in the context of a question referred for a preliminary ruling, is capable of affecting the legality of that act in the light of the actual content of the international agreement in question (see judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 155 and the case-law cited).
189
These considerations apply to any action for annulment brought by a legal person, within the meaning of the fourth paragraph of Article 263 TFEU, against a decision concluding an international agreement, such as the present action. Any other interpretation would lead, as the applicant essentially observes, to extensive exemption of the contested decision from review of its substantive legality, which would be incompatible with the principle of effective judicial protection (see judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 156 and 157 and the case-law cited).
190
Consequently, the examination of whether a natural or legal person is directly and individually concerned by such a decision must take into account, where appropriate, the effects produced on that person’s legal situation by the international agreement concluded pursuant to that decision (see judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 158 and the case-law cited).
191
In the present case, it has been found that, given its role as the representative of the people of Western Sahara, the applicant had the capacity to be a party to legal proceedings before the EU Courts in order to defend the rights which that people derived from the rules of international law by which the European Union was bound. (see paragraph 152 above). The applicant, as it argues in essence, must therefore be able to rely, for the purpose of establishing its direct and individual concern, on the effects of the agreement at issue on those rights, otherwise the effective judicial protection of those rights would be deprived of much of its effectiveness (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 160 and the case-law cited).
192
In the third place, as regards the territorial scope of the contested decision, it must be observed, first, that it is intended to produce legal effects in the context of relations between the European Union and the Kingdom of Morocco as a constituent element of the expression of a concurrence of wills of those two subjects of international law and, consequently, necessarily produces effects in the international legal order. Secondly, as may be inferred from the case-law, the legal effects of that agreement on the territory of the other party to the agreement or on a third territory are likely to be relevant for the purposes of establishing whether a natural or legal person is directly and individually concerned by the contested decision, since that decision expresses the European Union’s consent to the agreement producing such effects (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 161 to 165 and the case-law cited).
193
In the present case, the applicant, relying on the judgments in Council v Front Polisario
and
Western Sahara Campaign UK, bases its argument on the application of the agreement at issue on the territory of Western Sahara and the adjacent waters and on the status as a third party to the agreement, within the meaning of the relative effect of treaties, of the people of that territory in order to claim that it is directly concerned by the contested decision, as the representative of that people (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 166).
194
The fact that, as the Council and the French Republic point out, the effects of the agreement and its implementation in the territory of the Kingdom of Morocco fall within the latter’s sovereign competence is irrelevant.
195
First, in the present case, the applicant does not rely on the effects of the agreement at issue on the territory of Morocco or on the waters over which the Kingdom of Morocco exercises its sovereignty or jurisdiction, for the purposes of the judgment in Western Sahara Campaign UK (see paragraphs 44 to 50 above), but the effects which it produces on a third territory and on the waters adjacent thereto. Secondly, in accordance with the case-law, the General Court is not ruling on the lawfulness of the Kingdom of Morocco’s consent to the rights and obligations arising from that agreement, but only on the lawfulness of the European Union’s consent to those rights and obligations (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 168 and 169 and the case-law cited).
196
It follows from the foregoing that, in view of the nature of a decision concluding an international agreement and its own legal effects, it cannot be ruled out from the outset that the contested decision has direct effects on the applicant’s legal position, on account of the content of the agreement at issue. The first part of the Council’s argument must therefore be dismissed.
– The second part of the Council’s argument, concerning the specific legal effects of the agreement at issue, in view of its territorial application to Western Sahara and the adjacent waters
197
The Council, the Commission and the CPMMs dispute, in essence, the fact that the contested decision and the agreement at issue produce legal effects vis-à-vis the applicant, by reason of the application of that agreement to the territory of Western Sahara and the waters adjacent thereto. First, the Fisheries Agreement is said to require the adoption of its implementation protocol and other additional measures in order to produce legal effects vis-à-vis third parties. Secondly, the effects of those acts on that territory are said to be purely economic and not legal. They therefore do not create any rights or obligations for the people of that territory and cannot be enforced against that people.
198
For its part, the applicant submits that, because of the express inclusion of the territory of Western Sahara and the adjacent waters and their natural resources in the scope of the agreement at issue, that agreement and therefore the contested decision concern the people of that territory in the light of its right to self-determination. Moreover, it submits that the measures implementing that agreement are irrelevant since that inclusion is, in itself, contrary to the principle of self-determination and the principle of the relative effect of treaties and produces legal effects on that people, which concerns the applicant directly, as a representative of that people.
199
In that regard, it should be recalled, as a preliminary point, that, as noted in paragraphs 109 to 123 above, the premiss on which the applicant bases its standing to bring proceedings, namely that the contested decision approves an agreement between the European Union and the Kingdom of Morocco which expressly applies to the territory of Western Sahara and the adjacent waters, is correct.
200
It must therefore be ascertained only whether, because the agreement at issue applies to the territory of Western Sahara and the adjacent waters, the contested decision may be considered to concern the people of that territory.
201
In that regard, first, it must be observed that, as recalled in paragraph 150 above, in paragraph 106 of the judgment in Council v Front Polisario, the Court held that the people of Western Sahara had to be regarded as a ‘third party’ within the meaning of the principle of the relative effect of treaties, who may be affected by the implementation of the Association Agreement in the event that the territory of Western Sahara comes within the scope of that agreement. Secondly, in the same paragraph of that judgment, the Court inferred from this that such inclusion, in any case, had to receive that third party’s consent, both in the event that such implementation is likely to harm it and where it is likely to benefit it. Thirdly, in paragraph 63 of the judgment in Western Sahara Campaign UK, the Court referred, inter alia, to paragraph 106 of the judgment in Council v Front Polisario to support its view that the 2006 Fisheries Agreement could not apply to the territory of Western Sahara without infringing the principle of self-determination and the principle of the relative effect of treaties. Fourthly, in paragraph 69 of the judgment in Western Sahara Campaign UK, it inferred from the interpretation of the concept of ‘waters falling within the sovereignty or jurisdiction’, referred to in that fisheries agreement, in the light of the Convention on the Law of the Sea, that, taking account of the fact that the territory of Western Sahara did not form part of the territory of the Kingdom of Morocco, as had been stated in paragraphs 62 to 64 of that judgment, the waters adjacent to it were not part of the fishing zone defined by that agreement.
202
It must therefore be inferred from the case-law that the considerations set out in paragraph 106 of the judgment in Council v Front Polisario are relevant with regard to the provisions of the agreement at issue, which, while forming part of the same body of agreements as the Association Agreement, expressly applies to the territory of Western Sahara and the waters adjacent thereto. Consequently, that territorial application of the agreement at issue may concern the people of that territory and require its consent (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 194 and 195).
203
That analysis is not called into question by the arguments put forward by the Council, the Commission and the CPMMs.
204
In the first place, with regard to the arguments concerning the need for implementing measures in order for the agreement at issue to produce legal effects vis-à-vis third parties, it must be observed, first of all, that, as noted in paragraphs 125 and 131 above, the applicant seeks the annulment of the contested decision in its entirety. That decision concludes the Fisheries Agreement as well as the implementation protocol and the Exchange of Letters, as those two instruments also form an integral part of that agreement (see paragraph 102 above). Consequently, the fact, on which the Council relies, that the production of legal effects vis-à-vis third parties by the Fisheries Agreement requires the involvement of the implementation protocol is irrelevant.
205
Secondly, as the applicant points out, the inclusion, by the Fisheries Agreement, of Western Sahara and its adjacent waters in the territorial scope of that agreement and the implementation protocol follows solely from the provisions of that agreement and that protocol relating to that scope, read in the light of the Exchange of Letters (see paragraphs 109 to 117 above).
206
The effective exercise by the European Union and the Kingdom of Morocco of the reciprocal rights and obligations to which they have consented by the Fisheries Agreement and the implementation protocol requires the adoption of various implementing measures both with regard to the grant of fishing rights to EU vessels and with regard to, first, the payment, in its various forms, of the financial contribution referred to in Article 12 of that agreement and, secondly, the use to which that contribution is put, inter alia, that of sectoral support.
207
However, first, it must be noted that, in the present case, the very fact that the agreement at issue establishes a legal regime governing fishing rights and financial compensation applicable to Western Sahara and the adjacent waters concerns the people of that territory, as a third party to that agreement, within the meaning of the principle of the relative effect of treaties and irrespective of its actual implementation. Similarly, the people of Western Sahara are concerned by reason of the mere fact that that agreement confers on the European Union and the Kingdom of Morocco reciprocal rights and obligations relating to that legal regime in that territory and those waters.
208
Secondly, and in any event, it is clear, in particular, from the wording of Article 1(h) of the Fisheries Agreement that the inclusion of Western Sahara and its adjacent waters in the territorial scope of that agreement and the implementation protocol is unconditional. The inclusion of those waters in the fishing zone defined by that agreement is not subject to any particular limitation.
209
Lastly, it is true that, as is clear from Chapter II of the annex to the implementation protocol and the fishing datasheets in Appendix 2 to that protocol, the European Union and the Kingdom of Morocco distinguished, within the fishing zone, management areas subject to specific limits. Accordingly, that chapter confers on the Kingdom of Morocco the task of determining the exact coordinates of those management areas and any areas within them where fishing is banned, since the abovementioned fishing datasheets set only the maximum limits for those management areas.
210
Moreover, only the fishing categories referred to in fishing datasheets No 3 to 6 are concerned by management areas whose limits include the waters adjacent to Western Sahara (see paragraph 110 above).
211
However, it follows from the provisions referred to in paragraphs 208 and 209 above that the Kingdom of Morocco’s discretion concerns the precise delimitation of the management areas and zones in which fishing may be prohibited, but not the fishing zone itself. The mere fact that those provisions authorise the Kingdom of Morocco to decide whether the management areas for the abovementioned fishing categories may include the waters adjacent to Western Sahara concerns the people of that territory.
212
Moreover, as Advocate General Wathelet notes in point 69 of his Opinion in Western Sahara Campaign UK (C‑266/16, EU:C:2018:1), the border between Western Sahara and the Kingdom of Morocco is at parallel 27°42’N (Pointe Stafford). In the light of the coordinates relating to the limits of the management areas referred to in fishing datasheets No 4 and No 6, it must be inferred, first, that most of the area between the limits of the management area referred to in the first of those datasheets corresponds to the waters adjacent to Western Sahara and, secondly, the area included within the limits of the management area covered by the second of those datasheets is wholly included within those waters. Moreover, those limits are defined within the framework of the instruments approved by the contested decision and are therefore not dependent on subsequent implementing measures.
213
Similarly, under the principle of proportionate distribution of the benefits arising from fishing activities set out in Article 12(4) of the Fisheries Agreement, the parties undertake to ensure that the relevant people, including those of Western Sahara, enjoy those benefits in a way that is proportionate to the fishing activities in the area defined by that agreement, which includes the waters adjacent to that territory, without providing for any exception to that principle.
214
In that regard, as is clear from the explanations and evidence put forward by the applicant, fish resources are particularly abundant in the waters adjacent to Western Sahara. Furthermore, in the report of 8 October 2018, the Commission states that, in 2012, that territory provided 78% of the total fishing catches made in Moroccan waters and the waters adjacent to the territory in question. Likewise, it is also apparent from that report that 66% of the amount of sectoral support for the period from 2014 to 2018 was paid to the part of Western Sahara controlled by the Kingdom of Morocco. It may therefore be inferred that, in accordance with the principle recalled in paragraph 213 above, the share of the total volume of fishing catches in the fishing zone defined by the agreement at issue represented by catches made in the waters adjacent to Western Sahara is capable of justifying the payment of a significant amount of sectoral support for the benefit of the fishing sector of that non-self-governing territory.
215
As it is clear from, in particular, Article 12(4) of the Fisheries Agreement and Articles 6(2) and 7(2) of the implementation protocol, consideration of the fair geographical and social distribution of the financial contribution, and in particular of the sectoral support, falls within the joint competence of the parties to the agreement at issue. More specifically, it follows from Articles 4 and 6 to 8 of that protocol and from Chapter 1(E) of the annex thereto that, as the applicant has pointed out, the payments corresponding to that financial contribution are made to the Kingdom of Morocco and that the latter is responsible for its use under the supervision of the Joint Committee established by Article 13 of the Fisheries Agreement.
216
Consequently, as the applicant rightly claims, the effect on the people of Western Sahara and the obligation to require its consent arise solely from the provisions of the agreement at issue and the implementation protocol, irrespective of additional implementing measures. In particular, it may be noted that, as is apparent from United Nations General Assembly resolution 50/33 (see paragraph 19 above) and as the applicant has stated, that body has reiterated the right of the peoples of non-self-governing territories to enjoy the natural resources of their territories, to dispose of those resources in their best interests, in particular their marine resources, and the need to ensure that the permanent sovereignty of the peoples of those territories over those resources is fully respected and safeguarded. Furthermore, in points 130 to 134, 145 and 146 of his Opinion in Western Sahara Campaign UK (C‑266/16, EU:C:2018:1), Advocate General Wathelet found that that right was relevant in the context of an agreement between the European Union and the Kingdom of Morocco concerning the exploitation of the fish resources of Western Sahara and that breach of the right of the people of that territory to freely dispose of such natural resources constituted a breach of its right to self-determination.
217
In the second place, with regard to the argument alleging that the effects of the agreement at issue on the territory of Western Sahara are purely economic and not legal in nature, it is sufficient to note that, the mere fact that it applies on that territory and its adjacent waters means that the Fisheries Agreement and the implementation protocol, read in the light of the Exchange of Letters, produce legal effects vis-à-vis the people of that territory, as a third party to the agreement, within the meaning of the relative effect of treaties, for the reasons set out in paragraphs 201 to 216 above. In addition, first, it may be noted that the provisions of those instruments and their annexes lay down detailed and unconditional rules concerning the delimitation of the fishing zone and the management areas and concerning the obligations and limitations which must be observed in connection with fishing activities, which are applicable to the waters adjacent to that territory. The same applies with regard to the provisions of those instruments relating to the amount of financial compensation, its composition and the fair geographical and social distribution of the socioeconomic benefits of the agreement at issue which define the legal framework within which part of that financial compensation will be allocated to support economic activities in the territory in question. Those provisions are therefore capable of producing legal effects on the operators which receive funding arising from that compensation, in particular the sectoral support, including those carrying on their activities in that territory (see, to that effect and by analogy, order of 10 December 2019, Front Polisario v Council, T‑344/19, not published, EU:T:2019:862, paragraphs 24 to 35).
218
In the third place, with regard to the alleged fact that the agreement at issue does not create rights or obligations with respect to the people of Western Sahara, it is sufficient to note at this stage that, irrespective of whether the parties to that agreement intended to grant rights to the people of Western Sahara, that agreement expresses the intention of the parties, namely the European Union and the Kingdom of Morocco, to adopt and implement a legal regime for the exploitation of the fish resources of the waters adjacent to that territory and for the distribution of the financial contribution, inter alia, for the benefit of activities in that territory. The rules established by that legal regime are therefore binding on that third party to the agreement in question, in so far as they apply to that territory, in particular the rules relating to the competence of the parties to that agreement and their public authorities with regard to its implementation. In particular, those rules prevent that people from freely deciding how they will exploit the fish resources and distribute the benefits arising therefrom. The agreement at issue therefore has the effect of imposing obligations on them (see, to that effect and by analogy, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 322 and the case-law cited).
219
In the fourth place, with regard to the argument that the agreement at issue, in any event, is not enforceable against the people of Western Sahara, first, it is sufficient to note that the admissibility of an action for annulment is determined solely by the conditions laid down in the fourth paragraph of Article 263 TFEU, as interpreted by the case-law. Secondly, as regards the opinion of the professor of public international law on which the CPMMs rely, it should be noted that the General Court cannot rely on such written submissions in order to challenge the Court of Justice’s interpretation of international law (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 198 and 199 and the case-law cited).
220
In the fifth place, the effect on the people of Western Sahara of the provisions of the agreement at issue which are applicable to the waters adjacent to that non-self-governing territory and the need to require its consent are not called into question by the Commission’s preliminary remarks in its statement in intervention, according to which the ‘exact’ legal relationship between a non-self-governing territory and the waters situated off its coast is not ‘clearly’ regulated by international law, and in particular by the Convention on the Law of the Sea.
221
First of all, it must be observed that, as the applicant rightly points out, the Convention on the Law of the Sea is an expression of the current state of customary international maritime law, as is apparent, in particular, from the case-law of the ICJ (see, to that effect, judgment of the ICJ of 12 October 1984, Delimitation of the maritime boundary in the Gulf of Maine area, ICJ Reports 1984, p. 246, paragraph 94).
222
In that regard, it follows expressly from paragraph 1(a) of Resolution III of the Final Act of the Third United Nations Conference on the Law of the Sea of 30 April 1982, cited by the Commission, that, in the case of a non-self-governing territory, ‘provisions concerning rights and interests under the Convention shall be implemented for the benefit of the people of the territory with a view to promoting their well-being and development’. It must therefore be inferred that each time the provisions of the Convention on the Law of the Sea refer to the rights or interests of the States parties to that convention, they are applicable by analogy to the rights and interests of the people of non-self-governing territories and must be implemented if not by them at least for their benefit. As to paragraph 1(b) of that resolution, which is also cited by the Commission, it must be observed that, as the applicant notes in its observations on that institution’s statement in intervention, that paragraph does not apply to Western Sahara, since it refers to the case of a ‘dispute … between States over the sovereignty of a [non-self-governing] territory’. The differences between the Kingdom of Morocco and the applicant concerning that territory cannot be regarded, in view of the latter’s status, as a ‘dispute … between States’.
223
However, with regard to the rights relating to the exploitation of natural resources located in the waters adjacent to those non-self-governing territories, Resolution III of the Final Act of the Third United Nations Conference on the Law of the Sea must be interpreted in the light of the principle of permanent sovereignty over those resources and the principle of self-determination from which it derives (see paragraph 216 above), in the sense that the exercise of those rights for the benefit of those peoples by a third party, for example the administering power, cannot take place unless they are given the opportunity to express their intentions in that regard.
224
In particular, it must be observed that, as the Court recalls in paragraphs 6 to 9 of the judgment in Western Sahara Campaign UK, the Convention on the Law of the Sea defines, inter alia, the rights of the coastal State over the territorial sea and the EEZ. In that regard, first, Article 2(1) of that convention provides that the sovereignty of a coastal State extends, beyond its land territory and internal waters, to an adjacent belt of sea, described as the ‘territorial sea’. Under Article 2(3) thereof, the sovereignty over the territorial sea is exercised subject to that convention and to other rules of international law. Secondly, Article 55 of that convention provides that ‘the exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this [p]art, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this [c]onvention’. Article 56(1)(a) of that convention provides, inter alia, that, ‘in the exclusive economic zone, the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil’.
225
Thus, it follows from the foregoing that non-self-governing territories are likely to be recognised as having rights, in particular as regards the exploitation of natural resources, over the belt of sea adjacent to that territory, defined by the Convention on the Law of the Sea as the territorial sea, and over the belt of sea extending beyond that first area, within the limits of the rights granted to coastal States over the EEZ by that convention and without prejudice to the delimitation of the sea areas of coastal third States and their rights.
226
In the present case, it must be observed that Article 1(h) of the Fisheries Agreement includes in the fishing zone the ‘adjacent waters [to] Western Sahara’ without specifying whether that latter concept corresponds only to the definition of the territorial sea, within the meaning of the Convention on the Law of the Sea, or extends to the belt of sea beyond it, within the limits of the rights granted to coastal States over the EEZ by that convention. In any event, since that article states that the definition of ‘fishing zone’ is not to affect any negotiations on the delimitation of the sea areas of coastal States bordering the fishing zone or the rights of third countries in general, it must be considered that the people of Western Sahara may be recognised as having rights over the exploitation of natural resources in the waters adjacent to that territory, within the meaning of the Fisheries Agreement.
227
Next, as the applicant points out and as is apparent from the case-law of the ICJ and the Permanent Court of Arbitration (PCA), maritime rights are governed by the principle of customary international law according to which ‘the land dominates the sea through the projection of the coasts or the coastal fronts’, that is to say, more specifically, that maritime rights derive from the coastal State’s sovereignty over the land, as the maritime territory forms the inseparable appurtenance of the land territory (see, to that effect, PCA, 23 October 1909, Grisbådarna Case (Norway, Sweden), Reports of International Arbitral Awards, Vol. XI, p. 159, ICJ, judgments of 8 October 2007, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), judgment, ICJ Reports 2007, p. 659, paragraph 126, and of 3 February 2009, Maritime Delimitation in the Black Sea (Romania v. Ukraine), judgment, ICJ Reports 2009, p. 61, paragraph 77).
228
As is apparent from the applicant’s explanations, the United Nations General Assembly implicitly applies that principle to non-self-governing territories, inter alia, where, in resolution 50/33, it declares that ‘the damaging exploitation and plundering of the marine … resources’ of non-self-governing territories ‘is a threat to the integrity and prosperity of those territories’ and ‘invites all Governments and organisations of the United Nations system to ensure that the permanent sovereignty of the peoples of [those territories] over their natural resources is fully respected and safeguarded’ (see paragraph 19 above). It therefore assumes that the natural resources situated in maritime territory forming the inseparable appurtenance of the land part of those non-self-governing territories come under the permanent sovereignty of the peoples of those territories.
229
Moreover, as the applicant points out, the application of that principle to non-self-governing territories can also be inferred from the international practice of the European Union, as is illustrated by the Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part, signed in Brussels on 24 February 1997 (OJ 1997 L 187, p. 3). Article 1(m) of Protocol 3 to that agreement concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation defines the ‘territories’ of the parties as follows: ‘“territories”, includes territorial waters’.
230
Finally, it should be noted that, in the judgment in Western Sahara Campaign UK, the Court implicitly applied those principles to Western Sahara and the waters adjacent thereto.
231
The Court held, first, that the waters over which a coastal State was entitled to exercise sovereignty or jurisdiction, under the Convention on the Law of the Sea, were limited exclusively to the waters adjacent to its territory and forming part of its territorial sea or of its EEZ and, secondly, that, taking account of the fact that the territory of Western Sahara did not form part of the territory of the Kingdom of Morocco, the waters adjacent to the territory of Western Sahara were not part of the Moroccan fishing zone (judgment of 27 February 2018, C‑266/16 Western Sahara Campaign UK, EU:2018:118, paragraphs 68 and 69).
232
It may therefore be inferred from this that the Court took the view that the rights over the waters adjacent to Western Sahara had to follow the rights over the land part of that non-self-governing territory and, in particular, those of its people.
233
Therefore, it follows from the foregoing that, contrary to the Commission’s submissions, the rights of a coastal State enshrined in the Convention on the Law of the Sea, and in particular the rights relating to the exploitation of natural resources in the zones defined by that convention, including fish resources, may be exercised for the benefit of the people of non-self-governing territories with a sea coast, like Western Sahara, without prejudice to the rights of bordering coastal States.
234
In any event, in so far as the agreement at issue applies not only to the waters adjacent to Western Sahara but also to the territory of Western Sahara itself, its people are affected by the territorial application of that agreement, irrespective of the relationship between that territory and those adjacent waters.
235
It follows from all of the foregoing that, since the territorial scope of the agreement at issue includes the territory of Western Sahara and the adjacent waters, that agreement is likely to concern the people of that territory and therefore to require its consent.
– The third part of the Council’s argument, concerning the absence of any change in the applicant’s legal position, in view of its role which is limited to participating in the self-determination process of Western Sahara
236
According to the Council, the Kingdom of Spain, the French Republic, the Commission and the CPMMs, the role conferred on the applicant in the self-determination process of Western Sahara does not mean that the contested decision and the agreement at issue directly affect its legal position. Its power of representation is limited and is not exclusive and it is not an economic operator. Moreover, the contested decision and the agreement at issue are without prejudice to the outcome of that process. Thus, the effects of the contested decision on the applicant are, at most, indirect and political.
237
For its part, the applicant submits that, on the sole basis that the contested decision affects the people of Western Sahara, within the meaning of paragraph 106 of the judgment in Council v Front Polisario, it has direct legal effects on its position as the sole representative of the people of Western Sahara. Furthermore, it submits that the political process of self-determination ‘obviously’ includes economic issues and issues relating to the exploitation of natural resources and that, in any event, the agreement at issue raises a ‘territorial’ question, with the result that the dispute falls fully within the framework in which it carries out its mission.
238
In that regard, first of all, the specific situation of Western Sahara, resulting from the evolution of the international context set out in paragraphs 2 to 20 above, must be borne in mind. Although the process of self-determination of that non-self-governing territory is still ongoing, its administrating power, for the purposes of Article 73 of the United Nations Charter, namely the Kingdom of Spain, has, since 26 February 1976, ceased to exercise any responsibility of an international nature in connection with the administration of that territory, which has been noted by the UN bodies (see paragraph 13 above). Consequently, the parties to that process, conducted under the aegis of that organisation, are, on the one hand, the Kingdom of Morocco, which claims to exercise sovereign rights over that territory and, on the other, the applicant, as the representative of the people of that territory. Thus, as the Commission states, in essence, in its statement in intervention, there is a ‘conflict of legitimacy’ between the Kingdom of Morocco and the applicant with regard to the ‘representativeness’ of that territory and its people (judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 203).
239
Secondly, as regards the extent of the applicant’s representativeness in relation to the people of Western Sahara and its impact on the applicant being directly concerned by a decision concluding an agreement between the European Union and the Kingdom of Morocco which applies expressly to that territory and the adjacent waters, it must be observed that neither in the judgments in Council v Front Polisario
and
Western Sahara Campaign UK nor in the orders referred to in paragraph 52 above have the EU Courts taken a position on that issue (see, to that effect and by analogy, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 204).
240
By contrast, the Council refers to points 183 to 194 of the Opinion of Advocate General Wathelet in Council v Front Polisario (C‑104/16 P, EU:C:2016:677), in which the Advocate General stated that, in his view, the applicant was recognised by the UN as the representative of the people of Western Sahara only in the political process for the resolution of the question of the self-determination of the people of that territory and that the dispute at issue was not part of that political process (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 205).
241
However, it may be inferred from paragraph 7 of resolution 34/37 and paragraph 10 of resolution 35/19 (see paragraph 16 above) that the recognition, by UN bodies, of the applicant’s representativeness in relation to the people of Western Sahara logically precedes the recognition of its right to be a party to the process of the self-determination of that territory and that it is precisely because of that representativeness that those bodies considered that it had that right. Consequently, while it is true that that process does not include a component relating to the management of the territory’s fish resources and the distribution of the benefits arising therefrom, the applicant’s participation in that process does not mean that it may not represent that people in the context of a fisheries agreement between the European Union and the Kingdom of Morocco, since that agreement applies to that territory and the waters adjacent thereto and, accordingly, concerns the people in question (see, to that effect, judgment delivered today, Front
Polisario v Council, T‑279/19, paragraphs 206 and 207).
242
Moreover, as is clear from the resolutions of the UN General Assembly on this issue and the Opinion of Advocate General Wathelet in Western Sahara Campaign UK (C‑266/16, EU:C:2018:1) (see paragraph 216 above), the right of the peoples of non-self-governing territories and in particular the people of Western Sahara to freely dispose of their natural resources is an integral part of their right to self-determination.
243
Finally, as regards the exclusivity of the applicant’s representativeness in relation to the people of Western Sahara, it is sufficient to note at this stage that it is not clear from the documents in the file that, as the applicant points out, in essence, the UN bodies, called into question the position expressed in resolutions 34/37 and 35/19 and recognised organisations other than itself as authorised to represent the people in question. Contrary to the claims made by the Commission and the CPMMs, the fact that, in the context of the monitoring of the self-determination process, those bodies, in accordance with their mandate, have relationships and exchanges with organisations other than the applicant, in particular from civil society, and with the Moroccan authorities, is not decisive in that regard. Similarly, the status as the administering power, for the purposes of Article 73 of the United Nations Charter, of Western Sahara which may have been retained by the Kingdom of Spain, notwithstanding its declaration of 26 February 1976, cannot, in any event, preclude the applicant from expressing the consent of the people of that territory (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 208 and 209).
244
In any event, it should be noted that the conclusion, by the European Union, of the agreement at issue with one of the parties to the process of self-determination in the territory of Western Sahara, which claims sovereign rights over that territory and its adjacent waters and, as is apparent from the Exchange of Letters (see paragraphs 70 above), which itself concluded that agreement on that basis, necessarily produces legal effects on the other party to that process, in the light of the ‘conflict of legitimacy’ between those parties in respect of that territory (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 210).
245
Moreover, the reasons for the Exchange of Letters and the recitals of the contested decision indicate that the parties themselves, and in particular the European Union, are aware that the conclusion of that agreement is not entirely unrelated to the ongoing process of self-determination in Western Sahara.
246
This is evidenced by the fact that, in the second subparagraph of paragraph 1 of the Exchange of Letters, the parties ‘reaffirm their support for the United Nations process’ and, in paragraph 2, state that the conclusion of the Fisheries Agreement is without prejudice to their respective positions concerning the status of Western Sahara and its adjacent waters, namely, on the one hand, for the European Union, that it is a non-self-governing territory with a right to self-determination and, on the other, for the Kingdom of Morocco, that it is an ‘integral part’ of its national territory. Moreover, the European Union states that, although the waters adjacent to that territory are part of the fishing zone defined in Article 1(h) of the Fisheries Agreement, ‘references in the Fisheries Agreement to Moroccan laws and regulations are without prejudice to its position’. Similarly, the Kingdom of Morocco states that it considers that ‘any solution to this regional dispute should be based on its autonomy initiative’.
247
It must therefore be inferred that the parties considered that the conclusion of the agreement at issue was liable to be interpreted as reflecting a common position on the status of Western Sahara and as undermining the process of self-determination in question and that it was necessary to provide those clarifications in order to eliminate such a risk (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 212).
248
Those concerns are also reflected in recitals 4 and 12 of the contested decision (see paragraph 60 above). In particular, in recital 12, the Council responds to the applicant and ‘some other parties’ who ‘did not accept to take part in the consultation process’ and who rejected ‘the application of the Fisheries Agreement and of the Implementation Protocol thereto to the waters adjacent to Western Sahara’ because they ‘felt essentially that those acts would affirm the Kingdom of Morocco’s position on the territory of Western Sahara’. In that regard, the Council states that ‘there is nothing in the terms of the Fisheries Agreement or of the Implementation Protocol thereto which implies that it would recognise the Kingdom of Morocco’s sovereignty or sovereign rights over Western Sahara and the adjacent waters’ and that ‘the Union will also continue to step up its efforts in support of the process, initiated and pursued under the auspices of the United Nations, of peacefully resolving the dispute’.
249
Moreover, although, as the Council notes in recital 11 of the contested decision, the applicant did not accept to take part in the consultations referred to in paragraph 248 above, it is clear from the report of 8 October 2018 that ‘an invitation for a meeting had been sent to [it] in order to hear its opinion on extending the [agreement at issue] to the adjacent waters [to] Western Sahara’. Consequently, even though the applicant is not a party to that agreement and did not participate in the negotiations with a view to its conclusion, which involved only the EU authorities and the Moroccan authorities, it was regarded by the institutions as a legitimate negotiating partner to express its views on that agreement (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 214).
250
Consequently, in so far as the conclusion of the agreement at issue affects the people of Western Sahara and requires its consent, the contested decision has direct effects on the applicant’s legal position as the representative of that people. Moreover, in so far at that agreement was concluded with the Kingdom of Morocco, it concerns the applicant directly as a party to the process of self-determination in that territory. First, it is established that the applicant did not consent to the conclusion of the agreement at issue and, secondly, it submits, in the present action, that the consent of the people of Western Sahara has not been validly obtained on account, in particular, of the fact that it did not express that consent itself (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 215).
251
The fact that the applicant is not an economic operator is irrelevant since it does not claim that status and does not seek to assert that it is directly concerned as a result of the application to it of the rules laid down by the contested agreement, but rather as a result of the territorial scope of that agreement itself. More specifically, as regards the comparison between the present case and the case which gave rise to the judgment of 20 September 2019, Venezuela v Council (T‑65/18, EU:T:2019:649), relied on by the Council and the Commission in support of their arguments, in addition to the fact that, by judgment of 22 June 2021, Venezuela v Council (Whether a third State is affected) (C‑872/19 P, EU:C:2021:507), the Court of Justice set aside the judgment of the General Court cited by the Council, it must be noted that the dispute at issue in that case between that third State and the Council concerned unilateral acts applying solely within the territory of the European Union and that the consent of a third party to those acts was not required. That comparison is therefore, in any event, irrelevant (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 217).
252
Furthermore, the claim made by the Council that the agreement at issue and the contested decision are without prejudice to the outcome of the process of self-determination does not mean that those acts are not capable of altering the applicant’s legal position, as a representative of a third party to that agreement and as a party to that process (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 218).
253
It follows from all the foregoing that the three parts of the arguments put forward by the Council, the Kingdom of Spain, the French Republic, the Commission and the CPMMs relating to the first criterion of direct concern must be dismissed and that the applicant satisfies that criterion.
(ii) The second criterion of direct concern, relating to the fact that the implementation of the contested measure is purely automatic and results solely from EU rules
254
As recalled in paragraph 176 above, the Council submits that the agreement at issue requires implementing measures in order to produce legal effects vis-à-vis third parties, whereas the applicant submits that, on the sole basis that the contested decision concludes an agreement applicable to the territory of Western Sahara and the waters adjacent thereto, it is of direct concern to it, without the need for implementing measures.
255
In that regard, it must be observed that, in accordance with the case-law referred to in paragraph 179 above, the second criterion of direct concern requires that the contested measure leaves no discretion to its addressees, in the light of the automatic nature of its implementation, which results from EU rules without the application of other intermediate rules.
256
In the present case, in the context of the examination of the first criterion of direct concern, it was noted in paragraphs 204 to 216 above that the effect on the people of Western Sahara and the obligation to require its consent arise solely from the provisions of the Fisheries Agreement and the implementation protocol, read in the light of the Exchange of Letters, all three of which were approved by the contested decision, irrespective of additional implementing measures. In particular, as the applicant submits, the contested regulation in Case T‑356/19 cannot prevent it from being directly concerned by the contested decision, since that regulation is a technical measure relating to a specific aspect of the implementation protocol, namely the allocation of fishing opportunities granted under that protocol.
257
Moreover, according to settled case-law, the second criterion of direct concern is met where the possibility for addressees not to give effect to the EU measure is purely theoretical and their intention to act in conformity with it is not in doubt (see judgment of 4 December 2019, PGNiG Supply & Trading v Commission, C‑117/18 P, not published, EU:C:2019:1042, paragraph 30 and the case-law cited).
258
In the present case, in so far as the agreement at issue was concluded precisely with the objective of enabling EU vessels to resume their fishing activities in the waters adjacent to Western Sahara and the people of that territory to benefit from the corresponding financial contribution, it must be held that the intention of the EU authorities and those of the Kingdom of Morocco not to give effect to the commitments resulting therefrom is purely theoretical.
259
Therefore, it must be concluded that the applicant is directly concerned by the contested decision.
(2) Is the applicant individually concerned?
260
The Council submits that the applicant’s participation in the negotiations on the status of Western Sahara is not capable of distinguishing it individually in relation to the contested decision and that the agreement at issue does not affect its position in those negotiations. In the rejoinder, it adds that, even assuming that the applicant is responsible for economic affairs in Western Sahara, it follows, in particular, from paragraph 69 of the judgment of 10 April 2003, Commission v Nederlandse Antillen (C‑142/00 P, EU:C:2003:217), that that competence is not sufficient to establish that it is individually concerned by the agreement at issue.
261
The Commission, the French Republic, the Kingdom of Spain and the CPMMs essentially put forward the same arguments.
262
The applicant submits that it is individually concerned on the ground that it follows from paragraphs 100 to 106 of the judgment in Council v Front Polisario that the people of Western Sahara, of whom it is the representative, must consent to any international agreement which is applicable to the territory of Western Sahara. Thus, in view of the role it states that it plays in relation to that people, in particular in expressing its consent to be bound by treaty, it has specific attributes which differentiate it from all other persons and therefore the contested decision is of individual concern to it. In the reply, it adds that, by carrying out the consultations referred to in recital 11 of the contested decision, the Council prevented it from exercising its powers to express the consent of the Saharawi people and essentially reiterates the arguments put forward in order to demonstrate that it is directly concerned by that decision.
263
According to settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of those factors, distinguishes them individually just as in the case of the person addressed (see judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 228 and the case-law cited).
264
In the present case, as the representative of the people of a non-self-governing territory enjoying the right to self-determination, the applicant has, under international law, its own powers which are distinct from those of the parties to the agreement at issue. It may, therefore, reasonably argue, for the purpose of demonstrating that it is individually concerned by the contested decision, that that decision prevents it from exercising those powers as it sees fit (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 229).
265
In the context of the examination of whether the applicant is directly concerned, it was held that, in so far as the conclusion of the agreement at issue affected the people of Western Sahara and involved obtaining its consent, the contested decision directly affected the applicant’s legal position as a representative of that people and as a party to the process of self-determination in that territory (see paragraphs 241 to 250 above). Consequently, the applicant must be regarded as being concerned by the contested decision by reason of attributes which are peculiar to it and which distinguish it individually in the same way as the addressee of that decision. (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 230 and 231).
266
The circumstances of the dispute which gave rise to the judgment of 10 April 2003, Commission v Nederlandse Antillen (C‑142/00 P, EU:C:2003:217), relied on by the Council, the Commission and the CPMMs, are not comparable to those in the present case. First, the measures challenged in that dispute did not specifically refer to the territory of the applicants. Secondly, and in any event, the adoption of those measures did not require the consent of the people of that territory (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 233 to 235).
267
The case-law concerning the individual concern of an association (see judgment of 18 January 2007, PKK and KNK v Council, C‑229/05 P, EU:C:2007:32, paragraph 70 and the case-law cited, and order of 3 April 2014, ADEAS v Commission, T‑7/13, not published, EU:T:2014:221, paragraph 32 and the case-law cited), cited by the Commission and the French Republic, is also not relevant since the individual concern of an association which defends the private interests of its members cannot be compared to that of an entity representing the people of a non-self-governing territory. Furthermore, having regard to the applicant’s role and the circumstances set out in paragraphs 241 to 250 above, which are sufficient to distinguish it individually in relation to the contested decision, the fact that it did not participate in the negotiations with a view to concluding the agreement at issue cannot be relied on against it (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 236 and 237).
268
It follows that the applicant is not only directly, but also individually concerned by the contested decision. Accordingly, the Council’s plea of inadmissibility alleging that it does not have locus standi must be dismissed and the substance of the action must be examined.
3.
The merits of the application
269
In support of its action, the applicant raises 11 pleas in law. The first alleges that the Council lacked competence to adopt the contested decision; the second alleges infringement of its obligation to verify compliance with fundamental rights and international humanitarian law; the third alleges infringement of the obligation to execute the judgments of the Court; the fourth alleges breach of fundamental rights as principles and values which must guide the external action of the European Union; the fifth alleges breach of the principle of the protection of legitimate expectations; the sixth alleges misapplication of the principle of proportionality; the seventh alleges failure to comply with fisheries policy; the eighth alleges breach of the right to self-determination; the ninth alleges breach of the principle of the relative effect of treaties; the tenth alleges violations of international humanitarian law and the eleventh alleges breach, on the part of the European Union, of its obligations under the law of international responsibility.
(a)
The first plea in law, alleging that the Council lacked competence to adopt the contested decision
270
The applicant submits that the Council, as an EU body, lacked competence to adopt the contested decision since that decision concerned the conclusion of an international agreement applicable to a territory falling within the sovereignty of a third people, in respect of which neither the European Union nor the other contracting party had authority.
271
The Council submits that, by the present plea in law, the applicant is in fact challenging the competence of the European Union on the ground of breach of the right to self-determination and breach of the principle of the relative effect of treaties and refers to its response to the eighth and ninth pleas in law. Moreover, it notes that the competence to conclude international agreements is conferred on it by Article 218(6) TFEU.
272
For its part, the Commission submits that international law does preclude the conclusion, by the administering power of a non-self-governing territory, of an international agreement applying to that territory. In the present case, the Kingdom of Morocco should be regarded as the de facto administering authority of Western Sahara. The French Republic essentially takes the same view. The CPMMs agree in essence with the Council’s response to this plea.
273
In that regard, it is sufficient to note that, in the present case, it is not apparent from the evidence relied on by the applicant or the documents in the file that the conclusion of the agreement at issue should be precluded on account of the European Union’s status as an international organisation or a rule of international law expressly prohibiting such a conclusion, arising, inter alia, from a Security Council resolution or a judgment of the ICJ. Moreover, it must be recalled, as may be inferred from paragraph 98 of the judgment in Council v Front Polisario and paragraphs 70 to 72 of the judgment in Western Sahara Campaign UK, that the Court did not rule out in principle, that the European Union and the Kingdom of Morocco may conclude an international agreement which is applicable to the territory of Western Sahara or to the waters adjacent thereto (see, to that effect and by analogy, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 247 and 248 and the case-law cited).
274
For those reasons, the first plea in law must be dismissed.
275
It is appropriate to continue the examination of the merits of the action by analysing the third plea in law.
(b)
The third plea in law, alleging, in essence, infringement, by the Council, of the obligation to comply with the requirements inferred from the case-law of the principle of self-determination and the principle of the relative effect of treaties
276
The applicant submits that, by concluding an agreement with the Kingdom of Morocco that expressly applies to the territory of Western Sahara and the adjacent waters without its consent, the Council has infringed the obligation to comply with the judgments of the Court arising from Article 266 TFEU. It states that the Court held that the explicit inclusion of that territory in the scope of agreements concluded between the European Union and the Kingdom of Morocco is legally impossible, by virtue of the principle of self-determination and the principle of the relative effect of treaties. The applicant infers from this that, for the same reasons, the express application of such agreements to that territory and the adjacent waters is, a fortiori, precluded. Moreover, in the first part of the application and the preliminary remarks in the reply and in the observations on the statements in intervention, the applicant submits, in particular, that the conclusion of the agreement at issue is contrary to the case-law in that it does not respect the separate and distinct status of Western Sahara and it was adopted without the consent of the people of that territory to that agreement.
277
The Council submits that, by concluding an agreement which expressly includes within its scope the waters adjacent to Western Sahara, after having obtained the consent of the people of that territory, it has complied with the judgments in Council v Front Polisario
and Western Sahara Campaign UK.
278
More specifically, in the preliminary remarks in the defence, entitled ‘Horizontal questions’, in the first place, the Council submits that the consultations conducted by the Commission and by the EEAS, the purpose of which was to ensure the widest possible participation of the representative bodies and organisations of the peoples concerned, without prejudice to the outcome of the process of self-determination, made it possible to obtain their consent, in accordance with the judgment in Council v Front Polisario and in compliance with the relevant principles of international law. In the second place, it submits that the current situation in Western Sahara does not allow for direct consultation of the people concerned or for consultation through an institutional representative of the people of that territory. In the third place, the institutions were able to make use of their discretion to carry out consultations based on an objective criterion, derived from the benefits for the people of that territory and, in that respect, complied with the applicable principles of international law. In the fourth place, in the rejoinder, the Council states that only the Kingdom of Morocco, which is the de facto administrative authority in the territory of Western Sahara, had the legal capacity and administrative and customs resources to conclude a fisheries agreement with the European Union. In the fifth place, it states that the applicant does not satisfy the conditions laid down in the case-law to rely on rules of international law.
279
The Commission, in essence, sets out the same analysis as that of the Council with regard to the process that led to the conclusion of the agreement at issue and the possibility of relying on principles of international law as well as the judicial review of decisions concluding those agreements. In connection with the eighth and ninth pleas in law, it also specifically challenges the possibility of relying on the principle of self-determination and the principle of the relative effect of treaties. It adds, in paragraph 1.2 of its preliminary remarks, that the agreement at issue is consistent with the principles of public international law enshrined in Article 73 of the United Nations Charter and Resolution III of the Final Act of the Third United Nations Conference on the Law of the Sea. It submits, in essence, that those provisions do not preclude the management of the resources of the waters adjacent to Western Sahara by the Kingdom of Morocco and by the European Union within the framework of an international agreement, since that management takes account of the interests of the people of that territory and the applicant’s arguments would create a legal vacuum in the governance of those waters. Moreover, the Convention on the Law of the Sea does not use the concept of consent. Finally, it submits that the applicant misunderstands the consequences to be drawn from the judgments in Council v Front Polisario
and Western Sahara Campaign UK, which merely interpreted the agreements applicable to the territory of the Kingdom of Morocco and the waters under its sovereignty or jurisdiction in the light of the relevant principles of international law, but did not concern the validity of those agreements.
280
The Kingdom of Spain and the French Republic essentially put forward similar arguments to those raised by the Council and the Commission with regard to the application of principles of international law, judicial review of the contested decision and the validity of the consultations carried out by the Commission and the EEAS.
281
The CPMMs agree, in part, with the Council’s analysis of the consultation process which preceded the conclusion of the agreement at issue. In addition, they claim that locally elected representatives, who participated in that consultation, are the legitimate representatives of the people of Western Sahara and enjoy democratic legitimacy. Furthermore, with regard specifically to the third plea in law, they submit, inter alia, that Article 266 TFEU is not applicable in the present case. Finally, in connection with the ninth plea in law, they submit that the principle of the relative effect of treaties is not applicable and that, in any event, the agreement at issue is not enforceable against the applicant.
282
As a preliminary point, it must be observed that part of the line of argument put forward by the Council, the French Republic, the Commission and the CPMMs ultimately raises the question of the effectiveness of the present plea. That question must therefore be examined before a decision is taken, if necessary, on the merits of that plea in law.
(1) The arguments put forward by the Council, the French Republic, the Commission and the CPMMs relating to the ineffective nature of the third plea in law
283
The arguments put forward by the Council and the interveners call into question the legal basis of the present plea in law in three respects. First, they state that Article 266 TFEU is not applicable. Secondly, the judgments cited by the applicant cannot effectively be relied on in order to challenge the validity of agreements between the European Union and the Kingdom of Morocco. Thirdly, they state that the applicant cannot rely on the principles of customary international law which it alleges have been breached in the present case.
284
In the first place, with regard to the applicability of Article 266 TFEU, it should be noted that, in today’s judgment in Front Polisario v Council (T‑279/19), the Court held that, in its third plea, which was based on the same legal grounds as the present plea in law, the applicant could not infer from Article 266 TFEU an obligation on the part of the institutions to execute the judgments in Council v Front Polisario
and Western Sahara Campaign UK or the orders of the Court referred to in paragraph 52 above, inter alia, since none of those decisions of the EU Courts led to the annulment of an EU measure or found such a measure to be invalid. It concluded that, in so far as it was based on the provisions of that article, that plea was ineffective (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 262 to 265 and the case-law cited).
285
However, in so far as the line of argument put forward in support of that plea was based on a complaint alleging, in essence, breach, by the institutions, of their duty to comply with the case-law of the Court of Justice concerning the rules of international law applicable to the agreement at issue in that case, the General Court found that the applicant could effectively rely on that breach since, in the context of an action for annulment, the EU Courts have jurisdiction to review the compatibility of the contested measure with the case-law of the Court of Justice and that the decision challenged in the case at issue was adopted specifically with a view to drawing conclusions from that case-law and in particular the judgment in Council v Front Polisario. It therefore concluded that, notwithstanding the incorrect reference to Article 266 TFEU, the third plea in law, in so far as it is based, in essence, on the abovementioned complaint, is not ineffective (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 267 to 272).
286
In so far as, in the context of the present plea in law, the applicant refers to the enforcement of the same decisions of the EU Courts as those relied on in the case which gave rise to today’s judgment in Front Polisario v Council (T‑279/19), the present plea in law must be dismissed, in so far as it is based on Article 266 TFEU, for the same reasons as those set out in paragraph 284 above.
287
However, it must be observed that, as is clear from paragraph 276 above, in the context of the present plea in law, the applicant is relying, in essence, on the breach, by the institutions, of their duty to comply with the case-law of the Court of Justice on the interpretation of agreements between the European Union and the Kingdom of Morocco in the light of the applicable rules of international law, set out in the judgments in Council v Front Polisario
and Western Sahara Campaign UK. Furthermore, as is clear from recitals 3 and 5 of the contested decision (see paragraph 116 above), the agreement at issue was negotiated and concluded by the institutions with a view to drawing conclusions from the second of those judgments, which had excluded the application of the 2006 Fisheries Agreement and the 2013 Protocol to the territory of Western Sahara and the adjacent waters, on the ground that this would be contrary to the principle of self-determination and the principle of the relative effect of treaties, as interpreted in the first of those judgments. It follows that, for reasons similar to those set out in paragraphs 267 to 272 of today’s judgment in Front Polisario v Council (T‑279/19), the present plea in law, in so far as it alleges that breach, is not ineffective.
288
In the second place, the arguments put forward by the Commission and the CPMMs alleging that, in the judgments in Council v Front Polisario
and Western Sahara Campaign UK, the Court of Justice interpreted the principle of self-determination and the principle of relative effect in the context of the interpretation of the agreements at issue in those cases and not the review of their validity must be dismissed. First, the institutions are required to comply not only with the interpretation of the rules of EU law adopted by the Court of Justice, but also with the interpretation of the rules of international law which bind the European Union and the EU Courts have jurisdiction to assess whether an agreement concluded on behalf of the European Union is compatible with that interpretation. Secondly, the rules of international law interpreted by the Court of Justice in those cases, which were relevant when ruling on whether such an agreement, concluded with the Kingdom of Morocco, implicitly applied to Western Sahara, are all the more relevant when examining the legality of a provision in an agreement between the same parties which expressly provides for such territorial application (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 273 to 275).
289
In the third place, with regard to the possibility of relying on the principle of self-determination and the principle of the relative effect of treaties, it may be recalled that, in the context of an agreement concerning commercial policy, concluded, on behalf of the European Union, in order to comply with the interpretation of those principles adopted by the Court of Justice in its judgment in Council v Front Polisario, the General Court found that, in that judgment, the Court of Justice had inferred from the interpretation of the Association Agreement in the light of those principles clear, precise and unconditional obligations in the context of the European Union’s relations with the Kingdom of Morocco, namely, first, respect for the separate and distinct status of Western Sahara and, secondly, the obligation to secure the consent of its people in the event of the implementation of the Association Agreement in that territory (see judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 281 and the case-law cited).
290
The Court inferred from that finding that, in order to defend the rights that the people of Western Sahara derived from the principle of self-determination and the principle of the relative effect of treaties, the applicant had to be able to plead infringement of those clear, precise and unconditional obligations against the decision that was challenged in the case which gave rise to the judgment delivered today in Front Polisario v Council (T‑279/19), in so far as an alleged infringement of that kind may affect that people, as a third party to the agreement concluded between the European Union and the Kingdom of Morocco. Moreover, it considered that the case-law relating to the possibility of relying on principles of customary international law set out in paragraphs 107 to 109 of the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), did not preclude that conclusion. It found that the considerations set out in those paragraphs were based on an assessment of the particular circumstances of the case relating to the nature of the principles of international law relied on and that of the contested act, as well as the legal situation of the applicants in the main proceedings, which were not comparable to those in Case T‑279/19 (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 282 to 291 and the case-law cited).
291
Similarly, the Court considered that the conclusion set out in paragraph 290 above was not called into question by the arguments put forward by the Commission and Comader concerning the specific possibility of relying on, first, the principle of self-determination and, secondly, the principle of the relative effect of treaties. In the first place, with regard to the principle of self-determination, the Court considered that, in any event, the fact that the right enshrined in that principle was a collective right and the fact that it opened up a process with no defined outcome had no bearing on the case as the third party representing the applicant was precisely the holder of that right and effectively enjoyed it, irrespective of the outcome of the ongoing process. In the second place, with regard to the principle of the relative effect of treaties, the Court considered, in essence, that the fact that the agreement on tariff preferences may not be binding on the people of Western Sahara at international level could not prevent the applicant from relying on that principle before the EU Courts (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 293 to 296 and the case-law cited).
292
The considerations set out in paragraphs 289 to 291 above are applicable to the possibility of relying the principle of self-determination and the principle of the relative effect of treaties against the contested decision, in the light of the applicability of those principles in connection with a fisheries agreement concluded between the European Union and the Kingdom of Morocco, established by the Court of Justice in paragraphs 63 to 72 of the judgment in Western Sahara Campaign UK.
293
In any event, in the context of the present plea in law, the applicant raises a complaint alleging, in essence, infringement by the institutions of their obligation to comply with the case-law of the Court on the interpretation of agreements between the European Union and the Kingdom of Morocco in the light of the applicable rules of international law and, in particular, of their obligation to comply with the judgment in Western Sahara Campaign UK, in support of an action brought against a decision adopted in order to draw conclusions from that judgment. Consequently, in that context, the applicant cannot be denied the right to challenge the legality of the contested decision by relying on those rules, which are fundamental in nature, in the context of that complaint, whereas the European Union is bound by those rules and that decision was adopted in order to comply with the Court’s interpretation of them (see, by analogy, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 292 and the case-law cited).
294
Therefore, in the context of the present plea in law, the applicant may effectively rely on the judgments in Council v Front Polisario
and Western Sahara Campaign UK and on the interpretation therein of the principle of self-determination and the principle of the relative effect of treaties in support of the present plea in law. This plea in law is therefore not ineffective.
(2) The merits of the arguments put forward by the applicant in support of the present plea in law
295
The applicant’s arguments in support of the present plea in law are, in essence, in three parts, alleging, first, that it is impossible for the European Union and the Kingdom of Morocco to conclude an agreement which is applicable to Western Sahara and the waters adjacent thereto, secondly, breach of the separate and distinct status of that territory, contrary to the principle of self-determination and, thirdly, infringement of the requirement that the people of that territory must consent to the agreement at issue as a third party to that agreement, within the meaning of the principle of the relative effect of treaties.
(i) The first part of the third plea in law, alleging that it is impossible for the European Union and the Kingdom of Morocco to conclude an agreement which is applicable to Western Sahara and the waters adjacent thereto
296
By the first part, the applicant submits that, as is clear from the judgments in Council v Front Polisario
and
Western Sahara Campaign UK, the application of an agreement between the European Union and the Kingdom of Morocco to Western Sahara and the adjacent waters is legally impossible due to the fact, in particular, that it breaches the principle of self-determination and the principle of the relative effect of treaties. More specifically, with regard to the judgment in Western Sahara Campaign UK, the applicant states that, in paragraph 72 of that judgment, the Court ruled out such an agreement on the ground that, in any event, the Kingdom of Morocco had categorically refused to consider itself as anything other than sovereign in relation to that territory. The agreement at issue is in fact intended to ‘perpetuate’ the de facto application of the 2006 Fisheries Agreement and its protocols to the part of the territory in question controlled by that third country and the adjacent waters, which had been excluded by the abovementioned judgment.
297
The Council, supported by the French Republic, the Commission and the CPMMs, submits that the judgments cited in paragraph 296 above did not exclude the application of the agreements between the European Union and the Kingdom of Morocco to Western Sahara.
298
In that regard, it is sufficient to note that, in the case-law relating to agreements concluded on behalf of the European Union with the Kingdom of Morocco in the context of the Association Agreement, the EU Courts did not rule on disputes relating to agreements between the European Union and the Kingdom of Morocco containing a provision expressly including Western Sahara in the territorial scope of that agreement. Thus, in the context of that case-law, the Court of Justice and the General Court merely held that the applicable rules of international law precluded that non-self-governing territory from being regarded as implicitly falling within the territorial scope of an agreement between the European Union and the Kingdom of Morocco, whereas that scope was expressly limited, as far as that third country was concerned, to its territory or waters under its sovereignty or jurisdiction (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 300 to 304 and the case-law cited).
299
Moreover, as recalled in paragraphs 301 and 305 of today’s judgment in Front Polisario v Council (T‑279/19), in paragraphs 94 to 98 of the judgment in Council v Front Polisario, the Court found that the rule codified in Article 29 of the Vienna Convention did not preclude a treaty from binding a State in respect of a territory other than its own if such an intention appears from the treaty.
300
It must therefore be concluded that, contrary to the applicant’s submissions, the agreement at issue may not be regarded as ‘confirming’ a practice excluded by the case-law. First, that case-law did not entirely rule out the possibility that an agreement between the European Union and the Kingdom of Morocco could lawfully apply to Western Sahara or the adjacent waters. Secondly, that application does not result, in the present case, from a mere ‘practice’, but from the express terms of the agreement at issue itself, reflecting the common intention of the parties, and in particular of the European Union (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 305 and the case-law cited).
301
Those considerations are not called into question, in the present case, by paragraph 72 of the judgment in Western Sahara Campaign UK (see paragraph 48 above). In that paragraph of that judgment, the Court merely rejected the possibility put forward by the Council and the Commission that the waters adjacent to Western Sahara could be considered as falling within the jurisdiction of the Kingdom of Morocco, as a ‘de facto’ administrative power or occupying power of that territory, since the Kingdom of Morocco had ‘categorically’ denied those classifications. However, in the same paragraph, the Court did not rule out the possibility that those waters might be included in a fisheries agreement between the European Union and the Kingdom of Morocco which expressly distinguishes them from the waters falling within the sovereignty or jurisdiction of that third State.
302
The first part of the third plea in law must therefore be dismissed.
303
The third part of the present plea in law must now be analysed.
(ii) The third part of the third plea in law, alleging infringement of the requirement that the people of Western Sahara had to consent to the agreement at issue as a third party to it, within the meaning of the principle of the relative effect of treaties
304
By the third part of the third plea in law, the applicant, both in the application and in the reply, disputes the validity of the consultations conducted by the Commission and the EEAS and the relevance of the report of 8 October 2018 which refers to them, inter alia. Those consultations and that report are said to focus on the benefits of the agreement at issue, whereas the only relevant criterion, set out by the Court, is the consent of the people of Western Sahara. Moreover, those consultations, in respect of which the institutions and the Kingdom of Morocco were not competent, in the applicant’s view, could not have had the objective or effect of obtaining that consent, in particular since, on the one hand, such consent cannot emerge from an informal consultation process and, on the other, that consultation process concerned entities established under Moroccan law and did not include the part of those people living outside the zone controlled by the Kingdom of Morocco. Furthermore, in recital 11 of the contested decision, the Council changed the nature and scope of those consultations by making them a manifestation of the consent of the ‘people concerned’. According to the applicant, those considerations of the Council are not consistent with the judgments in Council v Front Polisario
and Western Sahara Campaign UK, and in particular paragraph 106 of the first of those judgments.
305
The Council, the Kingdom of Spain, the French Republic, the Commission and the CPMMs submit, in essence, that the consultations which took place comply with the applicable principles of international law, having regard to the specific situation in Western Sahara, which does not allow the consent of its people to be secured directly, and to the broad discretion enjoyed by the institutions (see paragraphs 277 to 281 above).
306
Examination of this part of the plea involves examining, first, the application of the principle of the relative effect of treaties in the present case, secondly, the way in which the institutions intended, in the present case, to comply with the ‘considerations set out in the [judgment in Western Sahara Campaign UK]’, in accordance with recital 11 of the contested decision and, thirdly, the merits of the line of argument recalled in paragraph 304 above.
– The application of the principle of the relative effect of treaties to the present case
307
First of all, it should be recalled that, contrary to the CPMMs’ submissions and as is apparent from paragraphs 100 to 107 of the judgment in Council v Front Polisario and paragraphs 63, 69, 71 and 72 of the judgment in Western Sahara Campaign UK, the principle of the relative effect of treaties is applicable in the present case. In particular, the alleged fact that, in view of its position on Western Sahara, the Kingdom of Morocco did not intend to either confer rights or impose obligations on the people of that territory has no bearing on the applicability of that principle in the context of the interpretation, by the EU Courts, in the light of international law, of an agreement between the European Union and the Kingdom of Morocco, which is applicable to Western Sahara and the waters adjacent thereto, such as the agreement at issue (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 310).
308
The application, in the present case, of the principle of the relative effect of treaties is also not called into question by the Commission’s preliminary remarks concerning the allegedly unresolved nature under international law of the relationship between a non-self-governing territory and its adjacent waters and, in particular, by its remarks concerning the absence of any reference to the concept of consent in the Convention on the Law of the Sea, especially in Resolution III of the Final Act of the Third United Nations Conference on the Law of the Sea.
309
It suffices to recall, as stated in paragraph 233 above, that it follows from the analysis of the principles of customary law enshrined in the Convention on the Law of the Sea and the provisions of that convention, as interpreted, inter alia, by the Court (see paragraphs 221 to 232 above), that the rights of the coastal State in the Convention on the Law of the Sea, and in particular the rights relating to the exploitation of fish resources in the zones defined by that convention, may be exercised for the benefit of the peoples of non-self-governing territories with a sea coast, like Western Sahara. However, if the rights of the peoples in question are exercised for their benefit by third States, those peoples, in accordance with the principle of self-determination and the principle of the relative effect of treaties, must express their consent to those rights being exercised by the third States. In any event, as has already been noted repeatedly in this judgment, the agreement at issue applies not only to the waters adjacent to that territory, but also to the land.
310
Secondly, in the absence of any indication by the Court or a position being taken by the UN bodies on the criteria for expressing the consent of the people of Western Sahara, it must be recalled that, under the general principle of international law on the relative effect of treaties, of which the rule contained in Article 34 of the Vienna Convention is a specific expression, treaties do not impose any obligations, or confer any rights, on third States without their consent (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 311 to 313).
311
In that regard, it may be inferred from Articles 35 and 36 of the Vienna Convention that the consent of the people of Western Sahara to the agreement at issue may be presumed only if the parties to that agreement intended to accord that people a right, so long as the contrary is not indicated and that, by contrast, that consent must be express with regard to the obligations which those same parties intend to impose on that people. Apart from the fact that the principles codified by the Vienna Convention with regard to treaty relationships between States are capable of applying to other subjects of international law, paragraph 106 of the judgment in Council v Front Polisario does not indicate a difference in content between the concept of ‘third party’ applied by the Court of Justice to the people in question and the concept of ‘third State’ within the meaning of that convention (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 314 to 317 and the case-law cited).
312
Irrespective of the fact that, in the present case, the applicant refused to participate in the consultations conducted by the Commission and the EEAS before the agreement at issue was concluded, it must be noted that the latter does not grant any right to the people of Western Sahara, as a third party to that agreement, and that its consent cannot therefore be presumed in accordance with the principle set out in Article 36(1) of the Vienna Convention (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 318 and 323).
313
First, the fishing rights granted under the Fisheries Agreement in the waters adjacent to Western Sahara are for the benefit of the European Union and its Member States. Moreover, the management of fishing activities in those waters, in particular in connection with the definition of management areas applicable to those waters, is carried out by the Moroccan authorities under their national laws and regulations, in accordance with Article 6(1) of that agreement.
314
Secondly, as stated in paragraph 215 above, the various components of the financial contribution are paid to the Moroccan authorities, as is clear from Article 4(4) and Article 8(3) of the implementation protocol and Point E of Chapter I of the annex to that protocol. Moreover, under Article 4(2) and Articles 6 to 8 of the implementation protocol, that contribution is allocated by the authorities of the Kingdom of Morocco, under the supervision of the Joint Committee established by Article 13 of the Fisheries Agreement, which is composed of representatives of that third State and the European Union, and in accordance with the principle of fair geographical and social distribution, set out in Article 12(4) thereof.
315
As is apparent from the Exchange of Letters (see paragraph 70 above), the Kingdom of Morocco exercises those responsibilities on the basis of its position that ‘the Sahara region is an integral part of the national territory over which it exercises full sovereignty in the same manner as for the rest of the national territory’.
316
In that regard it may be noted, in particular, that it is not clear from the provisions of the Fisheries Agreement or the implementation protocol and its annexes and appendices that the principle of fair geographical and social distribution of the financial contribution is implemented differently on the territory of Western Sahara and on the territory of Morocco, within the meaning of Article 94 of the Association Agreement.
317
Thus, the Kingdom of Morocco does not assume its responsibilities and powers under the agreement at issue, as far as the territory of Western Sahara and the adjacent waters are concerned, with a view to exercising the rights of the people of that territory for the benefit of that people. As is clear from its position as expressed in the Exchange of Letters and as, in addition, is noted by the CPMMs (see paragraph 307 above), it does not intend to confer any rights on that people in respect of the exploitation of fish resources in those waters and the distribution of the benefits arising therefrom. Moreover, the rights that the agreement may create for operators established in that territory concern individuals and not a third party which must consent to it. As for the benefits for the people of that territory which may result from the agreement, these are purely socio-economic effects, which are, moreover, indirect, and cannot be treated in the same way as rights (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 320 and 321).
318
However, in so far as it grants one of the parties power over the territory of a third party, which that third party is therefore not entitled to exercise itself or, if appropriate, to delegate the exercise thereof, the agreement at issue imposes on the third party concerned, as the applicant points out, an obligation, irrespective of the fact, alleged by the Council, that, at that stage, it is not entitled to assume those powers itself or through its representative. Its consent to the agreement at issue must therefore be express (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 322 and 323).
319
Finally, with regard to the content and scope of the concept of consent, as used in Articles 34 to 36 of the Vienna Convention and referred to in paragraph 106 of the judgment in Council v Front Polisario, it must be recalled that, as is clear from third recital of that convention, the principle of free consent is a ‘universally recognised’ principle which plays a fundamental role in the law of treaties. Moreover, it must be observed that, where a rule of international law gives effect to the principle of free consent, that rule implies, first, that the expression of the consent of a party or of a third party is a condition for the validity of the measure for which it is required, secondly, that the validity of that consent itself depends on it being ‘free and authentic’ and, thirdly, that that measure is enforceable against the party or third party which has validly consented to it (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 324 and 325 and the case-law cited).
320
The consent of the people of Western Sahara, as a third party to the agreement at issue, within the meaning of paragraph 106 of the judgment in Council v Front Polisario, must therefore, in principle, satisfy the same requirements and produce the same legal effects as those set out in paragraph 319 above (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 326).
321
It is in the light of those considerations that is now necessary to examine the specific steps taken by the Council and the Commission to comply with the requirements inferred by the Court of the principle of the relative effect of treaties.
– The consultations undertaken by the Council and the Commission to comply with the interpretation of the principle of the relative effect of treaties adopted in the judgments in Council v Front Polisario and Western Sahara Campaign UK
322
In the first place, it must be recalled that, in recital 11 of the contested decision, the Council stated that ‘the Commission, together with the [EEAS], [had taken] all reasonable and feasible measures in the current context to properly involve the people concerned in order to ascertain their consent’. In addition, the Council stipulated in that recital that, ‘extensive consultations [had been] carried out in Western Sahara and in the Kingdom of Morocco, and the socioeconomic and political actors who [had] participated in the consultations were clearly in favour of concluding the … agreement [at issue]’, but that, ‘however, the [applicant] and some other parties [had] not accept[ed] to take part in the consultation process’. As may be inferred from those statements, it is that ‘consultation process’ which, according to the Council, enabled compliance with the ‘considerations set out’ in the judgments in Council v Front Polisario
and Western Sahara Campaign UK, in particular those in paragraph 106 of the first of those judgments.
323
In the second place, as is apparent from the defence and the supporting documents, the Council attached negotiating directives to its decision of 16 April 2018 authorising the opening of negotiations with the Kingdom of Morocco with a view to amending the Fisheries Partnership Agreement and the conclusion of a protocol implementing that agreement. Those directives provided, inter alia, first, that ‘the Commission [had assessed] the potential implications of the [agreement at issue], in particular as regards the benefits for the people concerned and the exploitation of natural resources of the territories concerned’ and, secondly, that that institution ‘[had to] ensure that, [in accordance with the judgments by the Court,] at the time of its proposal for signature and conclusion, the people concerned by the agreement [had] been adequately involved’.
324
In the third place, in the report of 8 October 2018, the Commission stated, with regard to the second of the negotiating directives mentioned in paragraph 323 above:
‘With no other way of directly consulting the people of Western Sahara, the Commission and the EEAS consulted a broad range of Sahrawi civil society organisations, MPs, economic operators and other organisations …
The main aim of the consultations was to exchange views and comments on the potential benefits for the people and the economy of Western Sahara of concluding [the agreement at issue].
Although the [applicant] was invited by the EEAS and the Commission to hold consultations in Brussels, no positive reply was received … Similarly, civil society organisations which expressed their views against the extension of the [agreement at issue] to the waters adjacent to Western Sahara were invited to Brussels, but none of them accepted the invitation.
Moreover, the Moroccan authorities have carried out their own consultations with the national, regional and professional bodies concerned by the [agreement at issue].’
325
The Commission stated in the report of 8 October 2018:
‘The objective of that tripartite approach was to be as inclusive, substantive and credible as possible, in an extremely complex political and legal context.
From the outset, it was made clear that the consultation process was not intended to determine the definitive political and constitutional status of the territory of Western Sahara, but to ascertain whether the people concerned by the agreement were in favour of extending [the 2006 Fisheries Agreement] to the waters adjacent to Western Sahara.’
326
In the fourth place, in the report of 8 October 2018, the Commission takes stock of those consultations by concluding that ‘the first part [of the consultations], consisting of consultations carried out by the Moroccan authorities, found widespread support for the new sustainable fisheries partnership, including its extension to the waters adjacent to the territory of Western Sahara’ and that, ‘as regards the results of the consultations conducted by the EEAS and [itself], very strong support for the extension of the [agreement at issue] to the waters adjacent to Western Sahara was also observed’. Furthermore, it states that ‘[the applicant] and a number of other sympathetic actors refused to take part in the consultation process without putting forward any arguments against [the agreement at issue]’, taking the view that ‘[that] refusal appears to be linked to political reservations [in relation to] the issue of the final status of Western Sahara’.
327
Thus, as the Commission explains in its statement in intervention, it and the EEAS took the view that, ‘by virtue of their principle of political neutrality and non-interference, [they] had to conduct consultations which were as “inclusive” as possible without taking sides’ in the ‘conflict of legitimacy between [the Kingdom of] Morocco and the applicant’. Thus, in so far as ‘each of the parties to the UN process (Kingdom of Morocco and [the applicant]) claimed for its own account to be the exclusive representative of the people concerned by the agreement’, they considered that ‘favouring [the] interpretation [of one of those parties] would inevitably have led to the European Union taking sides in the political dispute’ and that ‘recognising the [applicant] as the only negotiating partner would have contravened the general approach of the European Union, which [had] never recognised the organisation in question as anything other than one of the “parties” to the UN process’. Thus, starting from the principle that ‘none [of those] [p]arties had the prerogative of legitimacy’, the Commission and the EEAS adopted the solution of ‘broadening the basis of consultation beyond the interlocutors promoted by one or other of the [p]arties, by extending it, as far as possible, to the civil society concerned by the agreements and its representatives’.
328
In that regard, first of all, it may be inferred from those considerations that the institutions took the view that it was not possible, in practice, to obtain, directly or solely through the applicant, the consent of the people of Western Sahara, as a third party to the agreement at issue, on account of the particular situation of that territory, but that, however, the consultation of the ‘people concerned’ in order to obtain their ‘consent’ to that agreement made it possible, in view of that situation, to comply as far as possible with the requirements which could be inferred, in particular, from paragraph 106 of the judgment in Council v Front Polisario (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 336).
329
Secondly, it may be inferred from this that the concept of ‘people concerned’ to which the institutions refer essentially encompasses the inhabitants who are currently present in the territory of Western Sahara, irrespective of whether or not they belong to the people of that territory, without prejudice to the ‘consultation of the opinion of the Sahrawi people living abroad as refugees’ which, according to the Commission, allowed ‘the applicant to be included among the parties consulted’. Thus, that concept differs from that of the ‘people of Western Sahara’, on one hand, in that it can encompass all the local people who are affected, beneficially or adversely, by the application of the agreement at issue in that territory while, on the other hand, it does not possess the political import of the second concept which stems, inter alia, from that people’s recognised right to self-determination (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 337).
330
Lastly, as the applicant has pointed out, in essence, the consultations conducted by the Commission and by the EEAS are based on an approach which is comparable to that required by Article 11(3) TEU and by Article 2 of Protocol No 2 to the TFEU on the application of the principles of subsidiarity and proportionality, according to which the Commission must consult widely with the parties concerned, especially before proposing legislative acts. Moreover, as illustrated by the various extracts from proposals for the conclusion of fisheries agreements on behalf of the European Union, produced by the applicant, the latter has systemised that practice in the context of such proposals (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 338).
331
However, such an approach requires, in principle, only that the opinions of the various parties concerned are gathered and taken into account, in particular for the adoption of the proposed measure, but such consideration does not produce legal effects which are comparable to the expression of the consent of a third party, which is required for the adoption of a measure of that kind. Consequently, the expression ‘[consent of] the people concerned’, contained in recital 11 of the contested decision, cannot be interpreted as covering the legal content of the concept of consent set out in paragraph 319 above. In particular, as is apparent from the conclusions of the report of 8 October 2018, the concept of consent referred to in the contested decision must be understood, in this particular context, as referring only to the favourable majority opinion of the institutions and organisations considered by the Commission and the EEAS to be representative of those people and which were consulted both by the Commission and the EEAS and by the Kingdom of Morocco. That opinion cannot in itself be regarded as a condition for the validity of the agreement at issue and the contested decision and as binding on those institutions and those organisations or the ‘people concerned’ themselves, with the result that that agreement would be enforceable against them (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 339 and 340).
332
It is in the examination of the merits of this part of the plea in law that it will be necessary to ascertain whether the particular meaning given to the concept of consent by the contested decision, as defined in paragraph 331 above, is compatible with the Court’s interpretation of the principle of the relative effect of treaties.
– Consideration of the particular meaning given to the concept of consent in the contested decision compatible with the Court’s interpretation of the principle of the relative effect of treaties in the judgments in Council v Front Polisario and Western Sahara Campaign UK
333
This part of the third plea in law essentially raises the question whether, in the light of the particular situation of Western Sahara, the Council was able to use its discretion to interpret the requirement of the consent of the people of that territory to the agreement at issue as requiring only that the favourable majority opinion of the ‘people concerned’ be obtained.
334
In that regard, in the first place, it must be recalled that, while the case-law recognises that the institutions have a broad margin of discretion in areas which involve complex assessments, in particular of a political and economic nature, such as external relations and fisheries policy, the judicial review of a manifest error of assessment requires that the EU institutions which adopted the act in question must be able to show before the EU Courts that in adopting the act they actually exercised their discretion, which presupposes the taking into consideration of all the relevant factors and circumstances of the situation the act was intended to regulate. Moreover, the institutions’ discretion may be limited, including in the context of such areas, by a legal concept establishing objective criteria (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 342 to 347 and the case-law cited).
335
In the present case, the Council’s discretion to conclude an agreement with the Kingdom of Morocco which applies expressly to Western Sahara and the adjacent waters is legally circumscribed by the clear, precise and unconditional obligations inferred by the Court from the principle of self-determination and the principle of the relative effect of treaties with regard to such agreements. In particular, with regard to the requirement that the people of that territory consent to such an agreement, it was indeed for the Council to assess whether the current situation in that territory justified an adaptation of the way in which that consent should be expressed and whether the conditions were satisfied for a finding that the people had expressed themselves. However, it was not for the Council to decide whether that consent could be waived without infringing that requirement (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 348 and 349).
336
In the second place, the specific situation of Western Sahara and, in particular, the ‘conflict of legitimacy’ between the two parties to the process of self-determination, namely the Kingdom of Morocco and the applicant, has been noted in paragraph 238 above. In particular, it must be observed that, to date, there is no agreement between those parties whereby one of them has consented to the other party exercising, for the benefit of that non-self-governing territory, the powers required by an international agreement with the European Union which applies to it, in particular with regard to the management of fish resources in the waters adjacent to that territory (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 350 and 351).
337
In that respect, as is clear from recitals 5 and 10 of the contested decision (see paragraph 60 above), the Council considered that the only way, first, for EU fleets to be able to continue the fishing activities in the waters adjacent to Western Sahara and, secondly, for that territory and its people to continue to benefit from the sectoral support provided under the agreement and to guarantee the sustainable exploitation of the fish resources in those waters was to conclude a new fisheries agreement with the Kingdom of Morocco. As can be inferred from the arguments put forward by the Council and the Commission, they consider that that third country, unlike the applicant, is able to exercise the powers required by that agreement (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 352).
338
However, as is clear from paragraph 328 above, the institutions also considered that the specific situation of Western Sahara did not in practice make it possible to obtain the consent of the people of that territory, as a third party to the agreement at issue, directly or through the applicant, and that it was for them to conduct consultations which were as inclusive as possible with the local people so as not to become involved in the conflict of legitimacy between the applicant and the Kingdom of Morocco (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 353).
339
That said, the various factors relating to the specific situation of Western Sahara put forward by the Council and the Commission to justify the decision referred to in paragraph 338 above cannot be accepted.
340
First, as regards the Council’s and the Commission’s argument that the consent requirement cannot apply in the same way to a State as to a non-self-governing territory, this must be rejected for the reasons already set out in paragraph 311 above.
341
Secondly, the argument of the CPMMs that the people concerned implicitly consented to the rights conferred by the agreement at issue by benefiting from the financial contribution that has been applied de facto to Western Sahara for several years must, in any event, be rejected for the reasons set out in paragraphs 312 to 317 above.
342
Thirdly, as regards the argument of the Council and the Commission concerning the difficulty in identifying the members of the people of Western Sahara. It must be observed, as the applicant submits, that the right to self-determination is a collective right and that that people has been recognised by the United Nations bodies as having that right and, hence, as existing, irrespective of the individuals of which they are composed and their number. Next, it may be inferred from paragraph 106 of the judgment in Council v Front Polisario that the Court implicitly regarded the people of Western Sahara as an autonomous subject of law capable of expressing their consent to an international agreement irrespective of the identification of their members. Consequently, it cannot be inferred from the principle of self-determination and the principle of the relative effect of treaties, as interpreted by the Court of Justice, that the consent of that people should necessarily be obtained through direct consultation of its members. The difficulty relied on by the institutions cannot therefore, in itself, constitute an obstacle to the expression of that consent (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 357).
343
Fourthly, with regard to the need not to become involved with the ‘conflict of legitimacy’ between the applicant and the Kingdom of Morocco concerning Western Sahara, invoked by the Council and by the French Republic, it is sufficient to note that, since the European Union cannot, in accordance with international law and the Court’s interpretation of it, recognise the Kingdom of Morocco’s claims to that territory, the institutions cannot refrain from taking the appropriate steps with a view to securing the consent of the people of that territory by invoking a risk of interfering in the dispute between the applicant and that third country concerning those claims (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 358).
344
Fifthly, the Council’s argument that, at this stage, Western Sahara is a non-self-governing territory and therefore does not have the capacity to express its consent in the same way as an independent State must be rejected. That argument is ultimately based on the erroneous premiss that the people of Western Sahara do not already enjoy the right to self-determination because the process relating to the definitive status of that territory has not been completed, which is contrary to the recognition of that right by UN bodies, established by the Court in its judgment in Council v Front Polisario. Next, with regard to the alleged inability of the applicant and the people it represents to conclude a treaty on fisheries or to exercise the powers which it entails, it cannot be inferred from the principle of the relative effect of treaties, as interpreted by the Court, that the consent of the people in question, as a third party to the agreement at issue, should necessarily be secured by means of a treaty (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 295 and 359 to 361).
345
Sixthly, the fact that the institutions consider the Kingdom of Morocco to be the ‘de facto administrative power’ of Western Sahara does not appear to be a factor which is capable of precluding the need for the people of that territory to consent to the agreement at issue. Since the Kingdom of Morocco, for its part, has ruled out the exercise of such powers and claims sovereign rights over that territory, its position is irreconcilable with the status as the administrative power. In any event, even if it were accepted that the Kingdom of Morocco plays such a role, de facto, with regard to the territory in question, that factor cannot render redundant the need to obtain the consent of the people of that territory to the agreement at issue, in the light of the principle of self-determination and that of the relative effect of treaties (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 362 and 363).
346
Seventhly, in connection with the examination of the applicant’s standing to bring proceedings, it was held that its participation in the process of self-determination of Western Sahara did not mean that it could not represent that people in the context of an agreement between the European Union and the Kingdom of Morocco andalso that it was not apparent from the documents in the file that UN bodies had recognised organisations other than itself as authorised to represent that people (see paragraphs 241 and 243 above). Consequently, it was not impossible to obtain that people’s consent through the applicant. The Council’s and the Commission’s argument that that hypothesis assigns a ‘right of veto’ to that organisation over the application of the agreement at issue to that territory and its adjacent waters must be rejected. Suffice it to recall in that regard that, as was noted in paragraph 335 above, it was not for the Council to decide whether it was possible to dispense with the consent of the people of Western Sahara in order to conclude the agreement at issue. Consequently, the alleged fact that the applicant’s power to express such consent would confer on it a ‘right of veto’ in that regard cannot justify such a decision (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 364).
347
It follows that the factors relating to the specific situation of Western Sahara relied on by the Council and the Commission are not such as to exclude the possibility for the people of Western Sahara to express its consent to the agreement as a third party.
348
In the third place, as noted in paragraph 331 above, the sole purpose of the consultations conducted by the Commission and by the EEAS was to obtain the opinion of the ‘people concerned’ with regard to the agreement at issue and not the consent of the people of Western Sahara to that agreement. Consequently, as the applicant rightly submits, those consultations cannot be considered to comply with the requirements inferred by the Court of the principle of self-determination and the principle of the relative effect of treaties (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 366).
349
The argument put forward by the Council, supported by the Kingdom of Spain, the French Republic, the Commission and the CPMMs, that the consultations in question comply with the relevant principles of international law, cannot call that conclusion into question.
350
In that regard, the Council submits, first, that the consultation conducted by the European Union complies with the relevant principles of international law since it was conducted with bodies representing the people concerned and with the aim of obtaining consent. The Council derives those criteria in particular from Convention No 169 of the International Labour Organisation (ILO) on Indigenous and Tribal Peoples, adopted in Geneva on 27 June 1989, and the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly on 13 September 2007. Thus, the purpose of the consultation in question was to ensure the widest possible participation of the representative bodies and organisations of the people concerned. In that context, the Kingdom of Morocco consulted, in particular, the regional representatives, elected by direct universal suffrage in 2015, a significant part of whom are from local tribes. The Commission and the EEAS consulted a wide range of local political and socio-political organisations and representatives of civil society, as well as the applicant.
351
Secondly, according to the Council, the institutions relied on an objective criterion, namely whether or not the Fisheries Agreement was beneficial for the people of Western Sahara, which is consistent with the principles that can be drawn from the letter of 29 January 2002 from the UN Legal Counsel.
352
With regard to the Council’s argument referred to in paragraph 350 above, it is sufficient to note that the criteria which the Council infers from that convention and from that declaration, namely that all consultations must be conducted with bodies representing the people concerned and with the aim of obtaining their consent, do not correspond to the requirements of the principle of self-determination and the principle of the relative effect of treaties inferred by the Court (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 370).
353
First, it should be noted that, as has already been stated repeatedly, the Council does not attribute to the concept of consent the legal effects that attach, in principle, to that concept in international law, since it does not focus, in the present case, to the consent of a third party to the agreement at issue, within the meaning of paragraph 106 of the judgment in Council v Front Polisario, but to the favourable opinion of the majority of local people (see paragraphs 328 to 331 above). Moreover, as the applicant points out, in the report of 8 October 2018, the Commission does not refer to the concept of consent. Thus, it refers only to the ‘support’ of the entities consulted by the Moroccan authorities for the conclusion of the agreement at issue and to the ‘very strong support’ of its ‘interlocutors’ and those of the EEAS for ‘the inclusion of the adjacent waters [to] Western Sahara’ (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 371 and 372).
354
Secondly, it should be recalled that, as the applicant submits, the concept of ‘people concerned’, to which the institutions refer, does not coincide with the concept of ‘people of Western Sahara’, which involves the right to self-determination (see paragraph 329 above). In particular, in the first place, it must be recalled that the purpose of the consultations with local and regional authorities carried out by the Kingdom of Morocco, a party to the agreement at issue, could not have been to obtain the consent of a third party to that agreement, but, at most, to involve the local authorities and the public bodies concerned which are under the jurisdiction of that State in the conclusion of that agreement. In the second place, it must be observed that the entities and bodies consulted by the Commission are, at most, representative of various socio-economic and civil society interests, without those entities or bodies considering themselves or having to be regarded as representative bodies of the people of Western Sahara and authorised to express its consent, which is confirmed, moreover, by the criteria for the selection of those entities or bodies, set out by the Commission in its written replies of 25 January 2021 to questions put by the General Court in the context of a measure of organisation of procedure (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 373 to 379).
355
Furthermore, with regard to the applicant’s arguments concerning the links between the entities and bodies consulted by the Commission and the EEAS and the Moroccan authorities, it follows from the details provided by the Commission in its written replies of 25 January 2021 concerning the status and activities of those entities and bodies that the majority of them are either public bodies governed by Moroccan law which carry out their activities under the supervision of those authorities or Moroccan independent authorities and that a significant proportion of those public bodies have national competence.
356
In addition, as the Commission itself states in the report of 8 October 2018, the applicant and the associations which share the applicant’s views refused to take part in the consultations it had organised.
357
However, first, it must be observed that it is not disputed that, as the applicant states in the reply, it made known its opposition to the conclusion of the agreement at issue. In particular, in a letter to the EEAS dated 7 June 2018, it stated, in essence, that, in the light of the principles, in its view, laid down by the Court, namely, inter alia, the separate and distinct character of Western Sahara and the requirement, as the sole criterion, of the consent of that people, it could not accept that those exchanges took place with a view to ‘possible coverage of Western Sahara in agreements negotiated between the [European Union] and the Kingdom of Morocco’ and in the context of a project referring to the ‘Southern provinces’ and taking into account the opinion of the ‘local people’ through the EEAS and the Moroccan institutions. Consequently, even though the applicant did not agree to take part in the consultations organised by the Commission and the EEAS, it was for the Commission and the Council to take due account of its position, particularly since, unlike the other entities consulted, it could legitimately be regarded as a ‘representative body’ of the people in question.
358
Secondly, it should be noted that, as the applicant states, in essence, the report of 8 October 2018 does not take into account the public statement of 28 November 2018, adopted by 95 ‘Saharawi civil society NGOs’ and annexed to the application, in which those organisations asked the Council and the Parliament not to adopt the agreement at issue which, in their words, seeks to ‘plunder’ the fish resources of the people of Western Sahara and ‘unlawfully to include Western Sahara in its territorial scope’.
359
It must therefore be concluded that those consultations and the findings obtained from them in the report of 8 October 2018 reflect the point of view of Moroccan institutions and public bodies rather than civil society organisations in Western Sahara. Moreover, the report of 8 October 2018 does not take the applicant’s point of view into account, even though it had made known precisely the reasons why it opposed the conclusion of the agreement at issue.
360
In any event, as the applicant has argued, those consultations were held not with ‘representative bodies’ of the people of Western Sahara, but, at most, with ‘parties concerned’ which the institutions were, moreover, likely to associate with the conclusion of the agreement at issue, in accordance with the treaties, irrespective of the ‘considerations’ of the Court referred to in recital 11 of the contested decision (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 383).
361
It follows from paragraphs 353 to 360 above that the consultations carried out at the request of the Council by the Commission and the EEAS cannot be regarded as having secured the consent of the people of Western Sahara to the agreement at issue, in accordance with the principle of the relative effect of treaties, as interpreted by the Court of Justice (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 384).
362
Turning now to the interpretation of international law defended by the Council on the basis of the letter of 29 January 2002 from the UN Legal Counsel, supported in that regard by the Commission and the French Republic, it should be noted, first, that the institutions cannot avoid the obligation to comply with the Court’s interpretation of the applicable rules of international law by substituting that interpretation for different criteria derived from such a letter, which, moreover, does not have an equivalent scope to that of advisory opinions of the ICJ; secondly, that that letter concerned the question of the legality of the private law contracts concluded between Moroccan public bodies and oil companies and not the legality of international agreements concluded by the Kingdom of Morocco; thirdly, that that letter was based on analogies with the question of the legality of the activities of an administering power in relation to the mineral resources of a non-self-governing territory, whereas, in the present case, the third country in question cannot be regarded as a power of that kind; and, fourthly, that, in any event, it expressly follows from the conclusions of that letter that the applicable principles of international law require not only that the exploitation of the natural resources of such a territory is in accordance with the interests of the people of Western Sahara, but also that it is in accordance with its wishes (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 385 to 389).
363
Consequently, the Council and the Commission cannot, in any event, rely on the letter of 29 January 2002 from the UN Legal Counsel in order to prove that the consultations conducted were in accordance with the applicable principles of international law. The applicant is therefore right to argue that the institutions could not substitute the requirement of the expression of that consent, set out by the Court in paragraph 106 of the judgment in Council v Front Polisario, for the criterion of the benefits of the agreement at issue for the people concerned (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 390).
364
It follows from all the foregoing that, by adopting the contested decision, 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 margin of discretion in deciding whether it was necessary to comply with the requirement that the people of that territory had to express its consent to the agreement at issue being applied to that territory, as a third party to that agreement, in accordance with the interpretation adopted by the Court of the principle of the relative effect of treaties in relation to the principle of self-determination. In particular, first, the Council wrongly considered that the current situation in that territory did not make it possible to secure the consent of that people and, in particular, through the applicant. Secondly, in considering that the consultations conducted by the Commission and the EEAS enabled it to comply with the principle of the relative effect of treaties as interpreted by the Court, in particular in paragraph 106 of the judgment in Council v Front Polisario, the Council misunderstood both the scope of those consultations and that of the requirement set out in that paragraph. Thirdly, the Council wrongly considered that it could substitute that requirement with the criteria purportedly set out in the letter of 29 January 2002 from the UN Legal Counsel. It follows that the present part of the third plea in law is well founded and is capable of leading to the annulment of the contested decision (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraph 391).
365
It follows from all the foregoing that, without there being any need to rule on the admissibility of the new offers of evidence by the applicant and the evidence it submitted spontaneously following the hearing (see paragraphs 89 and 92 above) and without there being any need to examine the second part of the third plea in law and the other pleas in the application, the contested decision must be annulled.
4.
The maintenance of the effects of the contested decision for a certain time
366
Under the second paragraph of Article 264 TFEU the Court may, if it considers it necessary, state which of the effects of an annulled act are to be considered as definitive.
367
In that regard, it is clear from the case-law that the effects of a contested act, inter alia the decision concluding an international agreement, may be maintained, even automatically, on grounds of legal certainty, where the immediate effects of its annulment would give rise to serious negative consequences (see, to that effect, judgment delivered today, Front Polisario v Council, T‑279/19, paragraphs 394 and 396 and the case-law cited).
368
In the present case, it is sufficient to note that annulment of the contested decision with immediate effect could have serious consequences on the European Union’s external action and jeopardise legal certainty in respect of the international commitments to which it has agreed and which are binding on the institutions and the Member States. The applicant’s observations on the Commission’s request that the Court apply the second paragraph of Article 264 TFEU cannot call that finding into question.
369
In those circumstances, it is necessary to apply the second paragraph of Article 264 TFEU by maintaining the effects of the contested decision for a period which may not exceed the period referred to in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union or, if an appeal has been brought within that period, until the Court has given judgment on that appeal.
B. The action in Case T‑356/19
370
As a preliminary point, it must be observed that, as stated in paragraph 177 above, in Case T‑344/19, the applicant submits, in order to show that it is directly concerned by the contested decision, that the contested regulation cannot be interpreted as an intermediate measure such as to prevent it from being directly concerned by the contested decision.
371
However, in the present case, the applicant states that, should the Court consider that the contested regulation constitutes an intermediate measure of that kind, it is bringing the present action in the alternative.
372
When asked at the hearing about the effect on the present action of it being directly concerned by the contested decision in Case T‑344/19, should the Court find that the contested regulation does not preclude such direct concern, the applicant stated that, in its view, that would mean that it would not be entitled to bring the present action and, in any event, the action would become devoid of purpose. That said, it should be noted that the applicant did not ask the Court to declare that the action had become devoid of purpose.
373
Moreover, it must be observed that, although the annulment of the contested decision, by the present judgment, is liable to impede the proper implementation of the contested regulation (see, to that effect and by analogy, judgment of 4 September 2018, Commission v Council (Agreement with Kazakhstan), C‑244/17, EU:C:2018:662, paragraph 51), it does not in itself have the effect of rendering that regulation invalid. Furthermore, the legal basis for that regulation, which was adopted prior to the adoption of that decision, is not that decision itself but the implementation protocol and, in particular, the provisions of Article 3 thereof relating to the fishing opportunities granted to vessels flying the flag of Member States, which it seeks to implement (see paragraphs 71 and 72 above). Consequently, the applicant’s claims for annulment of that regulation retain their purpose and must be ruled upon.
374
Without formally raising a plea of inadmissibility, the Council raises two pleas of inadmissibility against the present action, alleging, first, that the applicant lacks capacity to bring legal proceedings and, secondly, that it lacks standing to bring proceedings against the contested measure.
375
The Council’s second plea of inadmissibility must be examined.
376
The Council claims that the applicant is not directly and individually concerned by the contested regulation. First, it submits that the regulation produces legal effects only in respect of Member States and not in respect of other persons. In any event, the applicant does not carry on any activity in the economic sector concerned and does not claim to do so. The effects of that regulation on its situation are merely indirect and political. Secondly, it states that that measure requires the adoption of intermediate measures by Member States and that the latter have the option of not using all of the fishing opportunities allocated to them. Furthermore, the Council submits that the contested regulation does not concern the applicant by reason of circumstances in which it is differentiated or attributes peculiar to it, inter alia, on account of its participation in the negotiations on the status of Western Sahara, which have nothing to do with the subject matter of the present dispute.
377
For its part, the applicant submits that it is directly and individually concerned by the contested regulation. As regards, in the first place, it being directly concerned, it submits that, in so far as the purpose of that regulation is to distribute, among the Member States, the fishing opportunities which directly concern the exploitation of the fish resources of the people of Western Sahara, it affects that people and therefore directly affects its own legal position as the sole representative of that people. Moreover, the implementation of that regulation is said to be purely automatic. As regards, in the second place, individual concern, it states that, as is clear from the case-law of the Court, only the people of Western Sahara can consent to an international agreement which is applicable to its territory and natural resources. It its view, that right includes the right of the people in question to object to the allocation, without its consent, of opportunities to fish its fishery resources. However, given its role in expressing that consent, it states that it has attributes which are peculiar to it and which differentiate it from all other persons, and therefore the contested regulation is of individual concern to it.
378
The Kingdom of Spain, the French Republic and the Commission, in essence, support the Council’s arguments. The Commission states, however, that, in its opinion, the contested regulation, in view of its limited effects, does not even produce indirect or political effects on the applicant’s situation. The Kingdom of Spain points out, for its part, that the applicant is not deprived of its right to effective judicial protection, which it may, where appropriate, exercise in respect of the measures implementing that regulation.
379
As a preliminary point, it must be stated at the outset that the conditions governing the admissibility of an action brought by a natural or legal person against the contested regulation must be determined in the light of the specific nature of that act, and not in the light of the nature of the contested decision in Case T‑344/19.
380
In that regard, it must be observed that, unlike a decision concluding an international agreement, such as the contested decision in Case T‑344/19, the contested regulation, which was adopted in order to implement the agreement at issue in the European Union, is not a constituent element of the expression of the joint intentions of subjects of international law, but an act of general application adopted within the framework of the European Union’s internal competences, which is binding in its entirety and directly applicable in all Member States, in accordance with the definition of the term ‘regulation’ in the second paragraph of Article 288 TFEU.
381
In so far as it allocates the fishing opportunities provided for in Article 3 of the implementation protocol, the contested regulation applies to objectively determined situations and has legal effects for categories of persons envisaged generally and in the abstract (see, to that effect and by analogy, judgment of 10 March 2020, IFSUA v Council, T‑251/18, EU:T:2020:89, paragraph 35).
382
The contested regulation is based on Article 43(3) TFEU, which refers neither to the ordinary legislative procedure, nor to the special legislative procedure and, in addition, provides for the adoption of measures by the Council without mentioning the participation of the Parliament. Such a regulation therefore cannot constitute a legislative act (see, to that effect, judgment of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraphs 58 to 62). Consequently, such an act of general application, which is not a legislative act, is a regulatory act, which merely requires verification, in accordance with the third limb of the fourth paragraph of Article 263 TFEU, that it is of direct concern to the applicant and does not entail implementing measures (see, to that effect, judgments of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria MontessoriandCommission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraphs 22 and 28 and of 10 March 2020, IFSUA v Council, T‑251/18, EU:T:2020:89, paragraphs 32 to 36 and the case-law cited).
383
In that regard, as mentioned in paragraph 179 above, the condition of direct concern must be examined in the light of two criteria, namely, first, the contested EU measure must directly affect the applicant’s legal position and, secondly, 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.
384
With regard to the first of those criteria, it must be observed that the contested regulation seeks only to allocate among the Member States the fishing opportunities specified in Article 3 of the implementation protocol.
385
Thus, the contested regulation is not, in itself, capable of producing effects on the fixing of those fishing opportunities, and even less so on the determination of the fishing zone covered by the Fisheries Agreement as a whole or the management areas established within that fishing zone according to the different fishing categories that apply.
386
Moreover, such an act, adopted in the exercise of the European Union’s internal competences, concerns only relations between the European Union and its Member States and not relations between the European Union and the Kingdom of Morocco or its relations with the people of Western Sahara. While the fixing of fishing opportunities for vessels flying the flag of Member States in the fishing zone established by the Fisheries Agreement involves an exchange of reciprocal rights and obligations between the parties to that agreement, the allocation of those opportunities among the Member States is a purely internal matter for the European Union, which does not fall within the competence of the abovementioned third State and cannot in itself affect that people.
387
It is true, as the applicant states, the fishing opportunities allocated among the Member States by the contested regulation are likely to concern the exploitation of fish resources in the waters adjacent to Western Sahara, at least those relating to fishing categories 3 to 6 referred to in the corresponding fishing datasheets.
388
However, that exploitation of the fish resources of Western Sahara is not in itself the result of the allocation of those fishing opportunities among the Member States in the contested regulation, but the determination of the fishing zone and the limits of the management areas within that zone, in the agreement at issue, which includes the waters adjacent to that territory.
389
Therefore, even though the applicant rightly submits, on the one hand, that the exploitation of the fish resources of Western Sahara concerns the people of that territory and, on the other, that that exploitation concerns the applicant itself, as a legitimate representative of that people, it cannot be inferred from those submissions, however, that the contested regulation directly affects its legal position in that respect. Therefore, the first criterion of direct concern is not met in the present case.
390
Moreover, as regards the second criterion, admittedly, contrary to the Council’s assertions, the contested regulation, in itself, does not require the adoption of any intermediate measure since the allocation of fishing opportunities among the Member States is purely automatic and results directly from Article 1(1) of that regulation.
391
However, it must be noted that, because of the other measures needed in order to implement the agreement at issue, including its implementation protocol, the effect of the contested regulation on the exploitation of the fish resources covered by that agreement can, in any event, be only very indirect.
392
As the Council states, the right of a vessel flying the flag of a Member State concerned to exploit the fish resources covered by the agreement at issue is, in addition, subject to an authorisation procedure governed by Articles 10 and 11 of Regulation (EU) 2017/2403 of the European Parliament and of the Council of 12 December 2017 on the sustainable management of external fishing fleets, and repealing Council Regulation (EC) No 1006/2008 (OJ 2017 L 347, p. 81). That procedure requires the adoption of measures by the Member States, the Commission and the Kingdom of Morocco. Furthermore, as the Council also points out, it follows from Article 12 thereof that the Member States have the option of not using all of the fishing opportunities allocated to them.
393
In any event, as held in paragraph 259 above, the applicant is directly concerned by the contested decision in Case T‑344/19 in so far as that decision concludes the agreement at issue and that agreement applies to Western Sahara and the adjacent waters, irrespective of the measures adopted by the European Union to implement it. Thus, a measure implementing that agreement, such as the contested regulation, plays no role in the application of that agreement to the waters adjacent to the territory in question and therefore to its fish resources, which follows automatically and without the adoption of intermediate rules from the provisions of that agreement.
394
It follows from the foregoing that the applicant is not directly concerned by the contested regulation. Consequently, the present action is inadmissible and must be dismissed as such.
Costs
395
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
396
Since the Council has been unsuccessful in Case T‑344/19, it must be ordered to pay the costs of the proceedings in that case, in accordance with the form of order sought by the applicant.
397
Since the applicant has been unsuccessful in Case T‑356/19, it must be ordered to pay the costs of the proceedings in that case, in accordance with the form of order sought by the Council.
398
In accordance with Article 138(1) of the Rules of Procedure, the Kingdom of Spain, the French Republic and the Commission shall bear their own costs.
399
Under Article 138(3) of the Rules of Procedure, the General Court may order an intervener other than those referred to in paragraphs 1 and 2 to bear his own costs.
400
In the present case, it is appropriate to decide that the CPMMs shall bear their own costs in Case T‑344/19.
On those grounds,
THE GENERAL COURT (Ninth Chamber, Extended Composition)
hereby:
1.
Annuls Council Decision (EU) 2019/441 of 4 March 2019 on the conclusion of the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, the Implementation Protocol thereto and the Exchange of Letters accompanying the Agreement;
2.
Maintains the effects of Decision 2019/441 for a period which may not exceed the period referred to in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union or, if an appeal has been brought within that period, until the Court of Justice has given judgment on that appeal;
3.
Dismisses the action in Case T‑356/19;
4.
Orders the Council of the European Union to bear its own costs and to pay those incurred by the Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (Front Polisario) in Case T‑344/19;
5.
Orders the Front Polisaro to bear its own costs and to pay those incurred by the Council in Case T‑356/19;
6.
Orders the Kingdom of Spain, the French Republic and the European Commission to bear their own costs;
7.
Orders the Chambre des pêches maritimes de la Méditerranée, the Chambre des pêches maritimes de l’Atlantique Nord, the Chambre des pêches maritimes de l’Atlantique Centre and the Chambre des pêches maritimes de l’Atlantique Sud to bear their own costs in Case T‑344/19.
Costeira
Gratsias
Kancheva
Delivered in open court in Luxembourg on 29 September 2021.
[Signatures]
Table of contents
I. Background to the dispute
A. International context
B. The Association Agreement and the 2006 Fisheries Agreement
1. Association Agreement
2. 2006 Fisheries Agreement
C. Disputes relating to the Association Agreement
1. Cases T‑512/12 and C‑104/16 P
2. Case C‑266/16
3. Orders in Cases T‑180/14, T‑275/18 and T‑376/18
D. The contested decision and the agreement at issue
E. The contested regulation
II. Procedure and forms of order sought
III. Law
A. The action in case T‑344/19
1. The admissibility of certain annexes to the reply
2. Admissibility of the action
(a) The territorial scope of the agreement at issue
(b) Scope of the claims for annulment
(c) The Council’s first plea of inadmissibility, alleging the applicant’s lack of capacity to bring legal proceedings
(d) Validity of the power of attorney conferred by the applicant on its lawyer
(e) The Council’s second plea of inadmissibility, alleging that the applicant lacks standing to bring proceedings
(1) The applicant’s direct concern
(i) Does the applicant satisfy the first criterion of direct concern, according to which the contested measure must directly affect its legal position?
– The first part of the Council’s argument, relating to the intrinsic legal effects of a decision concluding an international agreement on behalf of the European Union
– The second part of the Council’s argument, concerning the specific legal effects of the agreement at issue, in view of its territorial application to Western Sahara and the adjacent waters
– The third part of the Council’s argument, concerning the absence of any change in the applicant’s legal position, in view of its role which is limited to participating in the self-determination process of Western Sahara
(ii) The second criterion of direct concern, relating to the fact that the implementation of the contested measure is purely automatic and results solely from EU rules
(2) Is the applicant individually concerned?
3. The merits of the application
(a) The first plea in law, alleging that the Council lacked competence to adopt the contested decision
(b) The third plea in law, alleging, in essence, infringement, by the Council, of the obligation to comply with the requirements inferred from the case-law of the principle of self-determination and the principle of the relative effect of treaties
(1) The arguments put forward by the Council, the French Republic, the Commission and the CPMMs relating to the ineffective nature of the third plea in law
(2) The merits of the arguments put forward by the applicant in support of the present plea in law
(i) The first part of the third plea in law, alleging that it is impossible for the European Union and the Kingdom of Morocco to conclude an agreement which is applicable to Western Sahara and the waters adjacent thereto
(ii) The third part of the third plea in law, alleging infringement of the requirement that the people of Western Sahara had to consent to the agreement at issue as a third party to it, within the meaning of the principle of the relative effect of treaties
– The application of the principle of the relative effect of treaties to the present case
– The consultations undertaken by the Council and the Commission to comply with the interpretation of the principle of the relative effect of treaties adopted in the judgments in Council v Front Polisario and Western Sahara Campaign UK
– Consideration of the particular meaning given to the concept of consent in the contested decision compatible with the Court’s interpretation of the principle of the relative effect of treaties in the judgments in Council v Front Polisario and Western Sahara Campaign UK
4. The maintenance of the effects of the contested decision for a certain time
B. The action in Case T‑356/19
Costs
(
*1
)	Language of the case: French
(
i
)	The wording in paragraph 318 has been amended since it was first put online.