62019TJ0279
JUDGMENT OF THE GENERAL COURT (Ninth Chamber, Extended Composition)
29 September 2021 (
*1
)
(External relations – International agreements – Euro-Mediterranean Association Agreement EC-Morocco – Agreement in the form of an Exchange of Letters on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement – Decision approving the conclusion of the agreement – Action for annulment – Admissibility – Capacity to bring legal proceedings – Direct concern – Individual concern – Territorial scope – Jurisdiction – Court’s interpretation of international law – Principle of self-determination – Principle of the relative effect of treaties – Possibility of relying on these principles – Concept of consent – Application – Discretion – Limits – Maintenance of the effects of the contested decision)
In Case T‑279/19,
Front populaire pour la libération de la Saguia el-Hamra et du Rio de Oro (Front Polisario), represented by G. Devers, lawyer,
applicant,
v
Council of the European Union, represented by P. Plaza García and V. Piessevaux, acting as Agents,
defendant,
supported by
French Republic, represented by A.-L. Desjonquères, C. Mosser, J.-L. Carré and T. Stehelin, acting as Agents,
European Commission, represented by F. Castillo de la Torre, F. Clotuche-Duvieusart, A. Bouquet and B. Eggers, acting as Agents,
Confédération marocaine de l’agriculture et du développement rural (Comader), established in Rabat (Morocco), represented by G. Forwood, N. Colin and A. Hublet, lawyers,
interveners,
ACTION under Article 263 TFEU 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)
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 procedure and further to the hearing of 2 March 2021,
gives the following
Judgment
I. Background to the dispute
A. International context
1
Developments in the international context relating to the question of Western Sahara may be summarised as follows.
2
On 14 December 1960, the United Nations General Assembly adopted Resolution 1514 (XV), entitled ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’, which proclaims in particular 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 situated in the north-west of Africa which was colonised by the Kingdom of Spain at the end of the 19th century and had become a Spanish province by the time of Resolution 1514 (XV). In 1963, it was entered by the UN in the ‘Preliminary list of territories to which the Declaration on the Granting of Independence to Colonial Countries and Peoples [General Assembly Resolution 1514 (XV)] applies’ 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 at San Francisco on 26 June 1945. To this day it remains on the list of non-self-governing territories compiled by the Secretary-General of the UN on the basis of information transmitted under Article 73(e) of the 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 ‘reaffirms the inalienable right of the peoples of Ifni and Spanish Sahara to self-determination in accordance with General Assembly resolution 1514 (XV)’ and requests the Kingdom of Spain, as the administering Power, ‘to determine at the earliest possible date […] the procedures for the holding of a referendum under United Nations 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 was annexed to that resolution. In particular, that declaration ‘solemnly proclaims […] the principle of equal rights and self-determination of peoples’. With regard to that principle, it explicitly emphasises 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 freely to 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 of 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 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 Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles.’
6
The Front populaire pour la libération de la Saguia el-Hamra et du Rio de Oro (Front Polisario) is an organisation that was created in Western Sahara on 10 May 1973. In Article 1 of its articles of association it defines itself as a ‘national liberation movement’, whose members ‘fight for full independence and for recovery of the sovereignty of the Sahrawi people throughout the entire territory of the Sahrawi Arab Democratic Republic’.
7
On 20 August 1974, the Kingdom of Spain informed the UN that it intended to hold a referendum in Western Sahara under UN auspices.
8
On 13 December 1974, the UN General Assembly adopted Resolution 3292 (XXIX), in which it decided, in particular, to seek an advisory opinion from the International Court of Justice (ICJ) on the following questions:
‘I. Was Western Sahara (Río 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 its advisory opinion (see Western Sahara, Advisory Opinion, ICJ Reports 1975, p. 12, hereinafter referred to as the ‘Advisory Opinion on Western Sahara’). In paragraph 162 of the opinion, the ICJ held as follows:
‘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) 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, that:
‘the Court is of opinion, with regard to Question 1 […] 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 publication of the Advisory Opinion on Western Sahara, the King of Morocco stated that ‘the whole world has recognised that [Western] Sahara belonged’ to the Kingdom of Morocco and that it only remained for the Kingdom ‘to peacefully occupy that territory’; he called, to that end, for the organisation of a march.
12
On 22 October 1975, upon application by the Kingdom of Spain, the UN Security Council adopted Resolution 377 (1975), in which it ‘request[ed] the Secretary-General to enter into immediate consultations with the parties concerned and interested’ and appealed to the latter ‘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 staging of the march announced by the King of Morocco, in which 350000 people took part, and the crossing of the border between the Kingdom of Morocco and Western Sahara by the marchers, the Security Council adopted Resolution 380 (1975), in which, in particular, it ‘deplore[d] the holding of the 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 UN Secretary-General that it was putting an end to its presence in Western Sahara as of that date, declaring that it considered itself absolved of all international responsibility for the administration of that territory. The list of non-self-governing territories referred to in paragraph 3 above cites that declaration on Western Sahara, which is reproduced in a footnote.
14
In the meantime, an armed conflict between the Kingdom of Morocco and the Islamic Republic of Mauritania on the one hand and Front Polisario on the other broke out in the region. Part of the population of Western Sahara fled the conflict and found refuge in camps located in 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 partitioning the territory of Western Sahara and annexed the part of the territory apportioned to it by that treaty. On 10 August 1979, the Islamic Republic of Mauritania concluded a peace agreement with Front Polisario by which the Islamic Republic of Mauritania renounced all territorial claims to Western Sahara. The Kingdom of Morocco took control of the territory evacuated by the 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 ‘reaffirms the inalienable right of the people of Western Sahara to self-determination and independence, in accordance with the Charter of the United Nations […] and the objectives of General Assembly resolution 1514 (XV)’, ‘deeply deplores the aggravation of the situation resulting from the continued occupation of Western Sahara by Morocco’, ‘urges Morocco to join in the peace process and to terminate the occupation of the Territory of Western Sahara’ and ‘recommends to that end that [Front Polisario], the representative of the people of Western Sahara, participate fully in the search for a just, lasting and definitive solution of the question of Western Sahara, in accordance with the resolutions and declarations of the United Nations’. This resolution was followed by Resolution 35/19 of 11 November 1980, in paragraph 10 of which the General Assembly ‘urges […] Morocco and [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 Front Polisario continued until 30 August 1988, when the parties gave their approval in principle to settlement proposals made primarily by the UN Secretary-General which provided 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 ‘approves 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 ‘calls upon the two parties to co-operate fully with the Secretary-General of the United Nations 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
Down to the present day, despite UN-led consultations and discussions, the parties have yet to reach a settlement of the situation in Western Sahara. The Kingdom of Morocco controls most of the Territory of Western Sahara, while Front Polisario controls the rest, these two areas being separated by a fortified sand wall guarded by the Moroccan army. A large number of refugees from Western Sahara are still living in camps administered by Front Polisario in Algerian territory.
B. Association Agreement and Liberalisation Agreement
20
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 (hereinafter referred to as the ‘Association Agreement’), signed at Brussels on 26 February 1996, entered into force on 1 March 2000 (OJ 2000 L 70, p. 2).
21
Article 1(1) of the Association Agreement stipulates that:
‘an association is hereby established between the Community and its Member States, of the one part, and Morocco, of the other part.’
22
Article 1(2) of the Association Agreement stipulates that:
‘the aims of this Agreement are to:
–
provide an appropriate framework for political dialogue between the Parties, allowing the development of close relations in all areas they consider relevant to such dialogue,
–
establish the conditions for the gradual liberalisation of trade in goods, services and capital,
–
promote trade and the expansion of harmonious economic and social relations between the Parties, notably through dialogue and cooperation, so as to foster the development and prosperity of Morocco and its people,
–
encourage integration of the Maghreb countries by promoting trade and cooperation between Morocco and other countries of the region,
–
promote economic, social, cultural and financial cooperation.’
23
Article 16 of the Association Agreement stipulates that:
‘the Community and Morocco shall gradually implement greater liberalisation of their reciprocal trade in agricultural and fishery products.’
24
Article 94 of the Association Agreement stipulates that:
‘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.’
25
Several protocols to the Association Agreement were concluded. In particular, Protocol 1 relates to the arrangements applying to imports into the Community of agricultural products, processed agricultural products, fish and fishery products originating in Morocco (hereinafter ‘Protocol 1’), while Protocol 4 concerns the definition of originating products and methods of administrative cooperation (hereinafter ‘Protocol 4’).
26
On 13 December 2010 in Brussels, Belgium, the European Union and the Kingdom of Morocco signed the Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part (OJ 2012 L 241, p. 4, hereinafter the ‘Liberalisation Agreement’). On 8 March 2012, the Council of the European Union adopted Decision 2012/497/EU on the EU–Morocco Liberalisation Agreement (OJ 2012 L 241, p. 2).
27
As indicated in the Liberalisation Agreement and recitals 1 to 3 of Decision 2012/497, the purpose of the Agreement is the gradual implementation of greater liberalisation of reciprocal trade in agricultural products, processed agricultural products, fish and fishery products provided for in Article 16 of the Association Agreement. In particular, the Liberalisation Agreement provided for the replacement of Protocols 1, 2 and 3 of the Association Agreement by texts set out in its Annexes I and II.
28
Article 2(2) of Protocol 4 to the Association Agreement stipulates that
‘For the purpose of implementing this Agreement […] the following products shall be considered as […] products originating in Morocco:
(a)
products wholly obtained in Morocco within the meaning of Article 6 of this Protocol;
(b)
products obtained in Morocco which contain materials not wholly obtained there, provided that the said materials have undergone sufficient working or processing in Morocco within the meaning of Article 7 of this Protocol.’
29
Under Article 16 of Protocol 4, products originating in Morocco benefit from the provisions of the agreement when imported into the EU on presentation of one of the proofs of origin listed in that article.
C. Disputes relating to the Association Agreement
1.
Cases T‑512/12 and C‑104/16 P
30
By application lodged at the Registry of the General Court on 19 November 2012 and registered under case number T‑512/12, the applicant, Front Polisario, brought an action seeking annulment of Council Decision (EU) 2012/497 (judgment of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraph 38, hereinafter ‘Council v Front Polisario’).
31
In support of its action in that case, the applicant had alleged, among other things, a number of breaches on the part of the Council of its obligations under international law in that it had approved, by means of Decision 2012/497, the application of the Liberalisation Agreement to the territory of Western Sahara (Council v Front Polisario, paragraph 44).
32
In its judgment of 10 December 2015, Front Polisario v Council (T‑512/12, EU:T:2015:953), the General Court annulled Decision 2012/497 in so far as the decision approved the application of the Liberalisation Agreement to Western Sahara on the grounds 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 not verifying that the production of the products originating in Western Sahara which were exported to the European Union had not been carried out in a manner detrimental to the population of that territory and did not entail infringements of fundamental rights of the persons concerned (Council v Front Polisario, paragraphs 47 and 48).
33
On 19 February 2016, the Council appealed against the judgment of 10 December 2015, Front Polisario v Council (T‑512/12, EU:T:2015:953).
34
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.
35
In that regard, on the one hand, 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 (Council v Front Polisario, paragraph 126).
36
In the first place, the Court held that, in accordance with the principle of self-determination that applied 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 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 was included within the territorial scope of that agreement (Council v Front Polisario, paragraphs 86 to 93).
37
In the second place, the Court held that it was also necessary to take into consideration 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 on each of the parties in respect of the whole of its territory. It concluded that this customary rule also precluded Western Sahara from being regarded as coming within the territorial scope of the Association Agreement. Nevertheless, it found that it also followed from that customary rule that a treaty could, by way of derogation, bind a State in respect of another territory if such an intention was apparent from that treaty or if it was established elsewhere (Council v Front Polisario, paragraphs 94 to 98).
38
In the third place, the Court held that the general principle in international law of the relative effect of treaties must also be taken into consideration, since, as a ‘third party’ to the Association Agreement within the meaning of that principle, the people of Western Sahara could be affected by the implementation of that agreement if the territory of Western Sahara were included in its scope, and so they had to consent to such implementation. In the absence of any manifestation of such consent, the Court concluded that the finding that the territory of Western Sahara came within the scope of the Association Agreement was contrary to the principle of the relative effect of treaties (Council v Front Polisario, paragraphs 100 to 107).
39
In the fourth place, having found that the Liberalisation Agreement had to be regarded as a treaty subject 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 it was not necessary to include a clause excluding such 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 was irreconcilable with the principle of performing obligations in good faith (Council v Front Polisario, paragraphs 110 to 125).
40
On the other hand, the Court gave final judgment in the matter. In this regard, it held that, since the Liberalisation Agreement was to be interpreted in accordance with the relevant rules of international law applicable in relations between the European Union and the Kingdom of Morocco, in 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 it put forward, as having no standing to bring an action for annulment of Decision 2012/497, without there being any need to examine the other grounds for dismissal cited by the Council and the Commission (Council v Front Polisario, paragraphs 128 to 134).
2.
Case C‑266/16
41
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, in the light of Article 3(5) TEU, of acts of the Union relating to international agreements concluded by the European Union and the Kingdom of Morocco in the fisheries sector, in the context of the Association Agreement, in view of the fact that they allowed the exploitation of resources from the waters adjacent to Western Sahara (judgment of 27 February 2018, Western Sahara Campaign UK, C‑266/16, EU:C:2018:118, paragraphs 1, 41 and 54, hereinafter ‘Western Sahara Campaign UK’).
42
Particularly on the basis of the findings made in Council v Front Polisario (see paragraphs 36 to 39 above), the Court held that, since the international agreements at issue were not applicable to the territory of Western Sahara and to the waters adjacent thereto, the examination of the referring court’s first question had disclosed no evidence that might affect the validity of the European Union acts relating to Article 3(5) TEU (Western Sahara Campaign UK, paragraph 85).
3.
Orders in Cases T‑180/14, T‑275/18 and T‑376/18
43
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 General 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.
44
In particular, in the first two orders cited in paragraph 43 above, the Court relied on the judgments in Council v Front Polisario and Western Sahara Campaign UK to find that the applicant lacked standing to bring proceedings, since the agreements at issue did not apply to Western Sahara or to 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).
45
In the third of the orders cited in paragraph 43 above, the General Court held that, in accordance with Article 218(3) and (4) TFEU, the sole 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 directives to them. 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 the said decision did not affect the applicant’s legal situation and that the applicant could not therefore be regarded as being 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
46
Following the judgment in Council v Front Polisario, the Council, by decision of 29 May 2017, authorised the Commission to open negotiations, on behalf of the European Union, with the Kingdom of Morocco with a view to concluding an international agreement amending Protocols 1 and 4.
47
In the context of the authorisation to open negotiations granted to the Commission, the Council requested the Commission, first, to ensure that the people concerned by the envisaged international agreement are appropriately involved and, second, to assess the potential impact of that agreement on the sustainable development of Western Sahara, in particular the benefits for local populations and the impact of exploitation of natural resources on the territories concerned.
48
The Commission referred to the results of the consultations and its analysis concerning the issues referred to in paragraph 47 above in its report of 11 June 2018 on the benefits for the population of Western Sahara of the extension of tariff preferences to products originating in Western Sahara and on the consultation of that population on the said extension (hereinafter ‘the report of 11 June 2018’). That report accompanied the proposal relating to 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 (COM(2018) 481 final).
49
On 25 October 2018, in Brussels, the European Union and the Kingdom of Morocco signed the Agreement in the form of an Exchange of Letters 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 (hereinafter the ‘agreement at issue’).
50
On 28 January 2019, the Council adopted Decision (EU) 2019/217 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, hereinafter ‘the contested decision’).
51
In recitals 3 to 10 of the contested decision, the Council states:
‘(3)
The Union does not prejudge the outcome of the United Nations’ political process on the final status of Western Sahara and has consistently reaffirmed its commitment to resolving the dispute in Western Sahara, presently listed by the United Nations as a non-self-governing territory, large parts of which are currently administered by the Kingdom of Morocco […].
(4)
Since the Association Agreement came into force, products from Western Sahara certified to be of Moroccan origin have been imported to the Union, benefiting from the tariff preferences laid down in its relevant provisions.
(5)
However, in its judgment in Case C‑104/16 P, the Court of Justice specified that the Association Agreement covered the territory of the Kingdom of Morocco alone and not Western Sahara, which is a non-self-governing territory.
(6)
It should be ensured that the trade flows developed over the years are not disrupted, while establishing appropriate guarantees for the protection of international law, including of human rights, and sustainable development in the territories concerned. On 29 May 2017, the Council authorised the Commission to open negotiations with the Kingdom of Morocco with a view to establishing, in accordance with the judgment of the Court of Justice, a legal basis to grant the tariff preferences laid down in the Association Agreement to products originating in Western Sahara. An agreement between the European Union and the Kingdom of Morocco is the only means of ensuring that the import of products originating in Western Sahara benefits from preferential origin, given that only the Moroccan authorities are able to ensure compliance with the rules necessary for the granting of such preferences.
(7)
The Commission assessed the potential consequences of such an Agreement for sustainable development, particularly with regard to the advantages and disadvantages for the people concerned arising from the tariff preferences given to products from Western Sahara and the exploitation of the natural resources of the territories in question […].
(8)
[…] the assessment indicates that, overall, the advantages for the economy of Western Sahara arising from the granting of the tariff preferences laid down in the Association Agreement to products originating in Western Sahara, such as the powerful leverage effect it represents for economic growth and thus social development, outweigh the disadvantages raised in the consultation process, such as the extensive use of natural resources […].
(9)
It has been assessed that the extension of tariff preferences to products originating in Western Sahara will have a positive overall effect for the people concerned […].
(10)
Having regard to the considerations on consent in the ruling of the Court of Justice, the Commission, in liaison with the European External Action Service, has taken all reasonable and feasible steps in the current context to adequately involve the people concerned in order to ascertain their consent to the agreement. Wide-ranging consultations were conducted and the majority of the social, economic and political stakeholders who participated in the consultations stated that they were in favour of extending the tariff preferences in the Association Agreement to Western Sahara. Those who rejected the idea felt essentially that such an Agreement should affirm Morocco’s position on Western Sahara. However, the text of the Agreement does not imply that it recognises Morocco’s sovereignty over Western Sahara. The Union will also continue to step up its efforts in support of the process, initiated and pursued through the United Nations, working towards a peaceful resolution of the dispute.’
52
The first paragraph of Article 1 of the contested decision indicates that the agreement at issue is approved on behalf of the European Union. That agreement entered into force on 19 July 2019 (OJ 2019 L 197, p. 1).
53
The third to ninth paragraphs of the agreement at issue read as follows:
‘This Agreement is concluded without prejudice to the respective positions of the European Union with regard to the status of Western Sahara and of the Kingdom of Morocco with regard to that region.
Both parties reaffirm their support for the United Nations process and back the efforts made by the Secretary-General to reach a definitive political settlement in line with the principles and objectives of the Charter of the United Nations and based on the Resolutions of the UN Security Council.
The European Union and the Kingdom of Morocco agreed to insert the joint declaration below, after Protocol 4 to the Association Agreement.
“Joint declaration concerning the application 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 (‘the Association Agreement’)
1. Products originating in Western Sahara subject to controls by customs authorities of the Kingdom of Morocco shall benefit from the same trade preferences as those granted by the European Union to products covered by the Association Agreement.
2. Protocol 4 shall apply mutatis mutandis for the purposes of defining the originating status of the products referred to in paragraph 1, including with regard to proof of origin.
3. The customs authorities of the Member States of the European Union and of the Kingdom of Morocco shall be responsible for ensuring that Protocol 4 is applied to those products.”
The European Union and the Kingdom of Morocco reaffirm their commitment to applying the protocols in accordance with the provisions of the Association Agreement concerning respect for fundamental freedoms and human rights.
The insertion of the joint declaration is based on the long-standing special partnership between the European Union and the Kingdom of Morocco, as notably embodied in the advanced status awarded to the Kingdom of Morocco, and on the parties’ shared desire to deepen and expand the partnership.
In this spirit of partnership and in order to allow the parties to assess the impact of the Agreement, particularly on sustainable development and with regard to the advantages for the people concerned and the exploitation of the natural resources of the territories in question, the European Union and the Kingdom of Morocco have agreed to exchange information at least once a year by means of the Association Committee.
The specific arrangements for this evaluation exercise will be determined at a later date before being adopted by the Association Committee at the latest two months after the entry into force of this Agreement.’
II. Procedure and forms of order sought
54
By application lodged at the Registry of the General Court on 27 April 2019, the applicant brought the present action.
55
On 1 August 2019, the Council lodged its defence.
56
By decisions of the President of the Fifth Chamber of the General Court of 10 and 18 September 2019 respectively, the French Republic and the Commission were granted leave to intervene in support of the Council.
57
On 1 October 2019, the applicant lodged its reply.
58
By decision of 16 October 2019, the composition of the Chambers having changed, 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 case was accordingly allocated.
59
The French Republic and the Commission lodged their statements in intervention on 23 and 29 October 2019 respectively.
60
By order of 15 November 2019, Front Polisario v Council (T‑279/19, not published, EU:T:2019:808), the President of the Ninth Chamber of the General Court granted the Confédération marocaine de l’agriculture et du développement rural (Comader) leave to intervene in support of the Council.
61
On 5 December 2019, the Council filed its rejoinder.
62
On 20 December 2019 and 6 January 2020 respectively, the applicant submitted observations on the statements in intervention of the French Republic and of the Commission.
63
On 23 January 2020, Comader lodged its statement in intervention. On 17 February 2020, the applicant submitted observations on that statement.
64
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 case to a Chamber sitting in extended composition.
65
On 9 December 2020, on the basis of Article 106(1) of the Rules of Procedure, the General Court decided, of its own motion, to open the oral part of the proceedings.
66
By means of two measures of organisation of procedure, dated 17 and 18 December 2020 respectively, the Court, first, put written questions to the parties and asked the applicant and the Commission to provide it with additional information and, second, requested the parties to clarify, at the hearing, their position on certain questions of principle relevant to the present dispute.
67
The Council, on the one hand, and the applicant, the French Republic, the Commission and Comader, on the other, submitted their written replies to the Court’s questions on 24 and 25 January 2021 respectively. In those replies, the applicant and the Commission provided the requested information.
68
The oral hearing was held on 2 March 2021. The oral part of the proceedings was closed at the end of that hearing.
69
On 19 April 2021, the Commission submitted observations on the minutes of the hearing. By order of 30 April 2021, the Court reopened the oral part of the procedure in order to add those observations to the file and to invite the applicant, the Council, the French Republic and Comader to submit their observations in that regard. The Council and the French Republic, on the one hand, and the applicant and Comader, on the other, submitted their observations on 12 and 17 May 2021 respectively. The oral part of the procedure was closed on 19 May 2021, and the General Court began its deliberations. Amended minutes were sent to the parties on 22 June 2021.
70
Following the death of Judge B. 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.
71
The applicant contends that the General Court should:
–
annul the contested decision;
–
order the Council, the French Republic, the Commission and Comader to pay the costs.
72
The Council contends that the General Court should:
–
dismiss the application;
–
order the applicant to pay the costs.
73
The French Republic contends that the General Court should dismiss the action.
74
The Commission, without formally submitting any form of order, states that it supports that of the Council.
75
Comader contends that the General Court should:
–
dismiss the application;
–
order the applicant to pay the costs.
III. Law
76
It should be noted at the outset that the present dispute relates to the conclusion, on behalf of the European Union, of an agreement between the European Union and the Kingdom of Morocco, by which those parties agreed to insert, following Protocol 4 to the Association Agreement, a joint declaration entitled ‘Joint Declaration on the application 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’ (hereinafter the ‘Joint Declaration on Western Sahara’), which extends to products originating in Western Sahara that are ‘subject to control by the [Moroccan] customs authorities’ the benefit of the trade preferences granted to products of Moroccan origin exported to the European Union under Protocol 1 (see paragraph 53 above).
77
By its action, the applicant, which claims to act ‘on behalf of the Sahrawi people’, seeks annulment of the contested decision on the ground, in essence, that, by approving the agreement at issue without the consent of that people, even though that agreement applies to Western Sahara, the Council infringed the obligations of the European Union in the context of its relations with the Kingdom of Morocco under EU and international law. In particular, the applicant submits that the agreement at issue is not consistent with the case-law of the Court of Justice set out in Council v Front Polisario and Western Sahara Campaign UK, which excluded such territorial application.
78
Without formally raising an objection of inadmissibility, the Council, supported by the French Republic, the Commission and Comader, raises, primarily, two pleas of inadmissibility against the present action, alleging, first, that the applicant lacks standing to bring legal proceedings before the Courts of the European Union and, second, that it lacks standing to bring proceedings against the contested decision. In particular, in the context of those pleas of inadmissibility, they call into question the extent and exclusivity of the role claimed by the applicant vis-à-vis the people of Western Sahara. In addition, Comader, for its part, questions the validity of the authority to act that the applicant gave its lawyer. In the alternative, the Council, the French Republic, the Commission and Comader contend that the applicant’s arguments on the merits should be rejected. In particular, the Council, supported by the French Republic, submits, in essence, that, in approving the agreement at issue, it was complying with the case-law of the Court. For their part, the Commission and Comader, while endorsing that line of argument, consider, in any event, that the said case-law is not relevant to the examination of the action, particularly because it relates to the interpretation of the agreements concluded by the European Union with the Kingdom of Morocco and not to their validity. The Council, the French Republic, the Commission and Comader, moreover, consider that the principles of international law on which the applicant bases its argument cannot be relied on.
A. Admissibility of the action
1.
The Council’s first plea of inadmissibility, based on the applicant’s lack of capacity to be a party to legal proceedings
79
In support of its 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. First, the Council contends that the applicant does not have legal personality under the domestic law of a Member State. Second, the Council states that the applicant is not a subject of international law. Third, the Council submits that the applicant does not satisfy the criteria laid down by the EU Courts for 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 subject endowed with rights and obligations.
80
The Commission, the French Republic and Comader essentially put forward the same arguments as the Council. Comader further argues that the applicant does not have the autonomy necessary to act as a responsible entity in legal relations with the Sahrawi Arab Democratic Republic (SADR), which is not recognised by the UN or the European Union.
81
In support of its capacity to be a party to legal proceedings, the applicant submits 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 was confirmed in particular, it argued, 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 established 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.
82
As a preliminary point, it should be recalled that, under 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.
83
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 (see, to that effect, judgment of 6 April 2017, Saremar v Commission, T‑220/14, EU:T:2017:267, paragraph 45 and the case-law cited). The case-law, then, has already recognised the capacity of entities to be parties to legal proceedings before the EU Courts irrespective of whether they are constituted as legal persons under national law.
84
That was the case, in particular, where, on the one hand, the entity in question was sufficiently representative of the persons whose rights derived from EU law it sought to defend and had the autonomy and liability necessary to act in the framework of legal relationships governed by EU law and, on the other hand, it had been recognised by the institutions as an interlocutor in negotiations relating to those rights (see, to that effect, judgments of 8 October 1974, Union syndicale – Amalgamated European Public Service Union – and Others v Council, 175/73, EU:C:1974:95, paragraphs 9 to 17, and of 8 October 1974, Syndicat général du personnel des organismes européens v Commission, 18/74, EU:C:1974:96, paragraphs 5 to 13).
85
That was also the case where the EU institutions had treated that entity as a distinct subject with its own rights and obligations. In fact, consistency and justice require recognition of the capacity of such an entity to be a party to legal proceedings so that it can challenge measures restricting its rights or decisions unfavourable to it on the part of the institutions (see, to that effect, judgments of 28 October 1982, Groupement des Agences de voyages v Commission, 135/81, EU:C:1982:371, paragraphs 9 to 11; of 18 January 2007, PKK and KNK v Council, C‑229/05 P, EU:C:2007:32, paragraphs 107 to 112; and of 15 June 2017, Al-Faqih and Others v Commission, C‑19/16 P, EU:C:2017:466, paragraph 40).
86
It may be inferred from the judgments cited in paragraphs 84 and 85 above that the Court has sought to adapt its case-law to widely differing circumstances by rejecting an excessively formalist or rigid approach to the concept of a legal person (see, to that effect, the Opinion of Advocate General Wathelet in Council v Front Polisario, C‑104/16 P, EU:C:2016:677, point 140). Indeed, that concept cannot be interpreted restrictively, as the Court recently confirmed (judgment of 22 June 2021, Venezuela v Council(Direct effect on a third State), C‑872/19 P, EU:C:2021:507, paragraph 44). Consequently, that case-law does not preclude, in the light of circumstances different from those examined in the judgments in question, the capacity to bring legal proceedings before the EU Courts from being granted to an entity irrespective of its legal personality under national law, in particular if the requirements of effective judicial protection so require.
87
Finally, it may be inferred 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, to that effect, order of 10 September 2020, Cambodia and CRF v Commission, T‑246/19, EU:T:2020:415, paragraphs 47, 49 and 50 and the case-law cited; see also, to that effect and by analogy, order of the Vice-President of the Court of 17 May 2018, United States of America v Apple Sales International and Others, C‑12/18 P(I), not published, EU:C:2018:330, paragraph 9 and the case-law cited), which was, moreover, recently confirmed by the Court (see, to that effect, judgment of 22 June 2021, Venezuela v Council(Direct effect on a third State), C‑872/19 P, EU:C:2021:507, paragraph 53).
88
In the present case, it is not disputed that the applicant does not have legal personality under the law of a Member State or of a third State. In particular, it is apparent from the applicant’s explanations that, given the status of Western Sahara as a non-self-governing territory, the applicant intends to rely only on public international law and not on any domestic legal order. Its status as a legal person within the meaning of the fourth paragraph of Article 263 TFEU cannot therefore be established in the light of such a legal order.
89
By contrast, the parties disagree on the question of the existence of the applicant’s legal personality under public international law, in particular on the effects on that personality of the applicant’s role in the self-determination process for Western Sahara. The Council, the French Republic, the Commission and Comader hold that the applicant’s role is limited to representing the people of that territory and that the UN bodies did not intend to endow it with any other international powers, with the result that, since it is neither a State nor an international organisation, its legal personality does not confer on it any capacity to act outside that process. On the contrary, the applicant submits that it derives its international legal personality directly from the right to self-determination of that people and from the role which it has been given by those same bodies as well as by other international organisations, by third States and by the European Union.
90
It is therefore necessary to ascertain, in the light of the case-law on the concept of a legal person, referred to in paragraphs 83 to 87 above, whether the evidence relied on by the applicant, relating to the role which it plays in the self-determination process for Western Sahara, is capable of conferring on it the capacity to bring legal proceedings before the EU Courts.
91
In that regard, in the first place, it should 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 stated that the customary principle of self-determination was one of the rules of international law applying to relations between the European Union and the Kingdom of Morocco that the General Court was required to take into account. More specifically, in paragraph 105 of that judgment, the Court recalled that the ICJ had pointed out, in its Advisory Opinion on Western Sahara, that, under general international law, the population of that territory enjoyed the right to self-determination, as explained in paragraphs 90 and 91 of that judgment. In addition, it stated that the UN General Assembly, for its part, in paragraph 7 of Resolution 34/37 on the Question of Western Sahara, had recommended that the applicant, ‘the representative of the people of Western Sahara, […] participate fully in any search for a just, lasting and definitive political solution of the question of Western Sahara’ (see paragraph 16 above).
92
It therefore follows from these considerations that international law recognises that the people of Western Sahara have the right to self-determination, which it is for the EU Courts to 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. It should, moreover, be recalled that this right was confirmed by Resolution 35/19 (see paragraph 16 above) and that the applicant has been exercising it in the context of the UN-led negotiations to which the Kingdom of Morocco and itself have been parties since 1988 (see paragraphs 17 to 19 above).
93
In the context of the present plea of inadmissibility, the Council, the French Republic, the Commission and Comader do not dispute the applicant’s exercise of its right, recognised by the UN bodies, to participate in the self-determination process for Western Sahara as the representative of the people of that territory.
94
Furthermore, as the applicant states, it has entered into a number of commitments under international law in its capacity as the representative of the people of Western Sahara. First, the applicant is a party to a peace agreement concluded with the Islamic Republic of Mauritania, under which the latter waived all territorial claims to Western Sahara (see paragraph 15 above). Second, the applicant and the Kingdom of Morocco have reached agreements on a number of matters relating to the application of the UN Secretary-General’s settlement proposals that were approved by the Security Council in Resolution 658 (1990). It must be noted, however, that, as the applicant argued in its reply and as is apparent from the letters and resolutions of the UN bodies which it cites in that regard, those bodies regularly remind the Kingdom of Morocco and the applicant of their obligations under international law and thus consider that the latter, in particular, is bound by the commitments entered into under those agreements. Third, as the applicant also states, it is subject to the requirements of international humanitarian law enshrined, inter alia, in the four Geneva Conventions of 12 August 1949 and by the Protocol Additional to the Geneva Conventions of 12 August 1949 on the protection of victims of international armed conflict (Protocol I), signed on 8 June 1977, to which it acceded on 23 June 2015.
95
Moreover, the Council, the French Republic, the Commission and Comader do not dispute that, as the applicant claims, it participates in the work of the Special Committee on Decolonisation relating to the question of Western Sahara and in the joint work of the Economic Commission for Africa (ECA), established within the United Nations Economic and Social Council, and the African Union Specialised Technical Committee on Finance, Monetary Affairs, Economic Planning and Integration.
96
The applicant is therefore recognised internationally as the representative of the people of Western Sahara, even if, as the Council, the French Republic, the Commission and Comader contend, that recognition is confined to the limited framework of the self-determination process for that territory. In addition, its participation in that process implies that it has the necessary autonomy and responsibility to act in that context, which is confirmed, moreover, by its articles of association placed on the case file.
97
It is true, as the Council, the French Republic, the Commission and Comader assert in essence, that the nature and extent of the applicant’s rights and obligations are not equivalent to those of the rights and obligations of States or international organisations – which, indeed, is not disputed by the applicant. However, it must be stated that its capacity, as the representative of the people of a non-self-governing territory, to negotiate and enter into international commitments in the context of the self-determination process for Western Sahara and to participate in the work of international organisations relating to that issue lends it basic elements of legal personality (see, to that effect, Opinion of Advocate General Wathelet in the case of Council v Front Polisario, C‑104/16 P, EU:C:2016:677, point 146; see also, to that effect and by analogy, order of 11 December 1973, Générale sucrière and Others v Commission, 41/73, 43/73 to 48/73, 50/73, 111/73, 113/73 and 114/73, EU:C:1973:151, paragraph 3).
98
In the second place, the applicant rightly claims that the institutions have taken note of its role and of its representativeness. On the one hand, 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 91 above). On the other hand, the applicant provides evidence indicating that it regularly engages in exchanges with the Commission on matters relating to the situation of Western Sahara. Furthermore, although the parties disagree on the characterisation of the exchanges between the applicant and the European External Action Service (EEAS) that occurred before the conclusion of the agreement at issue, it is not disputed that those exchanges took place on 5 February 2018 and that their subject matter included the issue of the application of the Association Agreement to products originating in Western Sahara. In its report of 11 June 2018, the Commission gave an account of the applicant’s position on the proposed conclusion of the agreement at issue, referring expressly to those exchanges. So although it did not participate in the negotiations relating to the agreement at issue, the applicant is justified in maintaining that it is regarded as a legitimate interlocutor by the EU institutions on matters likely to concern that territory and that its interlocutory role includes expressing its position on the conclusion of that agreement.
99
In the third place, it should 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 91 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 and, as such, could be affected by the implementation of the Association Agreement in the event of the inclusion of the territory of Western Sahara within the scope of that agreement, which meant that the said implementation had to receive its consent in any event.
100
By the present action, the applicant seeks to defend the right to self-determination of the people of Western Sahara, 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 without its consent, contrary to what the Court held (see paragraph 77 above). Consequently, it must be held that, in this particular situation, the requirements of effective judicial protection dictate, in any event, that the applicant be recognised as having the capacity to bring an action before the General Court in order to defend that right.
101
In the light of all these 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 purpose of bringing the present action. That capacity is without prejudice to the applicant’s obligation to show that it satisfies the other conditions for admissibility and, in particular, that it has standing to bring proceedings in respect of the contested decision.
102
The arguments of the Council, the French Republic, the Commission and Comader do not call that conclusion into question.
103
In the first place, in so far as it is not disputed that the applicant was recognised by the UN bodies as the representative of the people of Western Sahara in the context of the self-determination process for that non-self-governing territory, their arguments relating to its not being the sole representative of the people of Western Sahara and to its representativeness of that people being limited to the self-determination process must, in any event, be rejected. The same applies to the arguments based on the fact that it has not been explicitly defined by the UN bodies as a national liberation movement or on the fact that it has not been given observer status with those bodies. For the same reasons, the argument that it has only ‘functional’ or ‘transitional’ legal personality must be rejected. Those arguments actually relate solely to the limits of the applicant’s role and representativeness, but they do not call their existence into question.
104
In the second place, as regards Comader’s argument relating to the applicant’s alleged lack of independence of the SADR, it must be stated that it is as the representative of the people of Western Sahara, and not as representing the SADR, that the applicant was recognised as having the right to participate in the UN-led process relating to the definitive status of that territory and that it has assumed obligations in connection with that process. In any event, as the applicant points out, it is clear from the whole of Article 31 of the SADR ‘Constitution’, cited in part by Comader in support of its argument, that the said article gives the applicant autonomy as a political organisation responsible for structuring and promoting the struggle for the independence of that territory. The evidence produced by Comader does not therefore permit the inference that the applicant’s links with the SADR deprive it of the independence and liability it requires in order to act in the context of legal relations.
105
In the third place, the applicant’s capacity to bring legal proceedings is not called into question by the alleged fact that there is no legal relationship between the applicant and the European Union or between the applicant and the Member States which would give rise to rights and obligations for the applicant and which would constitute, on the part of the European Union or the Member States, a form of ‘international recognition’.
106
In this regard, it should be borne in mind that the European Union is a union based on the rule of law in that neither its Member States nor its institutions can avoid a review of the conformity of their acts with the basic constitutional charter, namely the EU Treaty and the TFEU, and that the latter has established a complete system of legal remedies and procedures designed to permit the Court of Justice of the European Union to review the legality of acts of the institutions (see, to that effect, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 281 and the case-law cited).
107
In the present case, an action for annulment has been brought before the General Court against an EU act on which it has jurisdiction to rule under Article 256(1) and Article 263 TFEU. In addition, the applicant submits that the contested decision affects it directly and individually, as the representative of the people of Western Sahara. Finally, the institutions are required to respect the right to self-determination of that people, which the applicant seeks to defend by means of the present action. Consequently, at the stage of examining the applicant’s capacity to be a party to legal proceedings, the existence of a legal relationship between the European Union and the applicant, which must be verified as part of the examination of the direct and individual effect of the contested decision on the applicant, cannot be ruled out. That analysis cannot be called into question by the Council’s reference to paragraph 22 of the order of 3 April 2008 in Landtag Schleswig-Holstein v Commission (T‑236/06, EU:T:2008:91), which, as the applicant has pointed out, is irrelevant in the present case. That paragraph in the said order relates to the status of a subnational territorial body of a Member State as a legal person within the meaning of the fourth paragraph of Article 263 TFEU.
108
In any event, it has already been observed in paragraph 98 above that the institutions took note of the applicant’s representativeness and that they treated it as a legitimate interlocutor on the question of Western Sahara. The fact that it is not the addressee of any act of the European Union is therefore not decisive for the purposes of assessing its capacity to be a party to legal proceedings.
109
In the fourth place, contrary to what the Commission, in essence, submits, by recognising that the applicant has the capacity to be a party to legal proceedings before it, the General Court does not transform itself into a ‘quasi-international’ court which may be seized by a party to an international ‘dispute’ even if that party does not have legal personality under the law of a Member State or of a third State.
110
On the one hand, it has already been recalled that the present dispute concerns an action for annulment of an EU act. It does not concern the international ‘dispute’ to which the applicant is a party.
111
On the other hand, an international agreement or the acts of an international organisation cannot affect the allocation of powers fixed by the Treaties or, therefore, the autonomy of the EU legal system, observance of which is ensured by the Court of Justice of the European Union by virtue of the exclusive jurisdiction conferred on it by Article 19 TEU. Furthermore, it should be noted that the Charter of the United Nations does not impose the choice of a particular model for the implementation or consideration of the resolutions of UN organs on Members of the United Nations or regional organisations composed of some of them, such as the European Union, in their own domestic legal order (see, to that effect and by analogy, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 282 and 298).
112
Consequently, in the present case, it is important only that the applicant satisfy the conditions of admissibility specific to EU law, in particular the conditions arising from the concept of a legal person within the meaning of the fourth paragraph of Article 263 TFEU. Accordingly, recognition of the applicant’s capacity to bring legal proceedings in the present dispute does not have the effect of transforming the General Court into a ‘quasi-international court’, since that recognition applies strictly within the exercise of the jurisdiction conferred on it by EU law.
113
In the fifth place, as regards the Commission’s claim that the General Court is substituting itself for the institutions managing the external relations of the European Union and adopting a ‘political’ decision by recognising the applicant’s capacity to bring legal proceedings, it must be borne in mind that the exercise of the powers conferred on the EU institutions in international matters cannot escape judicial review. Moreover, the EU Courts cannot give precedence to considerations of international policy and expediency over the rules on admissibility laid down in the fourth paragraph of Article 263 TFEU without overstepping their jurisdiction (see, to that effect and by analogy, order of 25 September 2019, Magnan v Commission, T‑99/19, EU:T:2019:693, paragraphs 34 and 42 and the case-law cited).
114
It follows from all of the foregoing that the Council’s plea of inadmissibility based on the applicant’s lack of capacity to be a party to legal proceedings must be rejected.
2.
The validity of the authority to act given by the applicant to its lawyer
115
Comader expresses doubts as to the validity of the authority to act given by the applicant to its lawyer. It questions whether that authority to act may be validly signed by the applicant’s ‘political secretary’, as is the case here. Besides, the post of ‘political secretary’ is not mentioned in the extract from the applicant’s articles of association which it has presented. It asks the General Court to verify the validity of that authority to act. It submits that, in the absence of a valid authority to act, the action must be declared inadmissible on the basis, in particular, of Article 51(3) of the Rules of Procedure.
116
When questioned in that regard, in the context of the measure of organisation of procedure of 17 December 2020, first, the applicant indicated that it was not a ‘legal person governed by private law’ within the meaning of Article 51(3) of the Rules of Procedure. Second, it submits that all the actions which it has brought since 2012 were brought on the basis of authorities to act signed by its ‘political secretary’ without the validity of those authorities ever having been called into question. Third, it submits that the ‘secretariat of the political organisation’, which is headed by the signatory of the authority to act, is one of the ‘main structures of the Front’ and is the subject of Articles 119 to 130 of its articles of association. Fourth, it submits that this signatory and his or her functions are fully identified by documents which are available online. It follows from all this evidence that, as the case-law confirms, there is no doubt as to the applicant’s intention to bring the present action. In support of these arguments, the applicant provides the full text of its articles of association, approved at its 14th congress, which was held from 16 to 23 December 2015, as well as the documents available online to which it refers.
117
As a preliminary point, it should be recalled that it is for the EU Courts to examine, of their own motion, whether there exists any absolute bar to proceeding with a case, even if the grounds for inadmissibility have been raised for the first time by an intervener (see, by analogy, judgment of 14 April 2005, Sniace v Commission, T‑88/01, EU:T:2005:128, paragraph 52 and the case-law cited).
118
In this regard, it may be recalled, first, that the applicant is not a legal person governed by private law established under the law of a Member State or of a third State (see paragraph 88 above).
119
Moreover, as is apparent from paragraphs 91 to 114 above, the applicant has the capacity to be a party to legal proceedings before the Courts of the European Union as a legal person within the meaning of the fourth paragraph of Article 263 TFEU.
120
At the same time, it should be recalled that the provisions of the Statute of the Court of Justice of the European Union and of the Rules of Procedure, in particular those relating to legal persons governed by private law, such as Article 51(3) and Article 78(4) of those rules, were not conceived with a view to enabling organisations without legal personality established under national law to bring actions. In that situation, the procedural rules governing the admissibility of an action for annulment must be applied by adapting them, to the extent necessary, to the circumstances of the case (see, to that effect and by analogy, judgment of 18 January 2007, PKK and KNK v Council, C‑229/05 P, EU:C:2007:32, paragraph 114).
121
Furthermore, and in any event, it should be noted that, under Article 51(3) of the Rules of Procedure, lawyers are required, where the party they represent is a legal person governed by private law, to lodge at the Registry an authority to act given by that person. On the other hand, the Rules of Procedure do not impose any obligation on legal persons governed by private law to provide proof that the authority to act given to the lawyer has been properly assigned by an authorised representative.
122
Be that as it may, for its action to be admissible, every entity must demonstrate not only its capacity to be a party to legal proceedings but also that it has actually taken the decision to bring the action and that the lawyers who claim to represent it have in fact been instructed to do so (see, to that effect, judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others, C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 57).
123
In the present case, the authority to act given by the applicant to the lawyer, designed to comply with Article 51(3) of the Rules of Procedure, was issued in the applicant’s name and signed, on 12 April 2019, by A, designated as the ‘political secretary’ of that organisation.
124
In this regard, first of all, determining which of the applicant’s bodies are authorised to take the decision to bring the action could not, by definition, be carried out under any domestic law, since the applicant was not governed by such law. Moreover, no EU legislation has been adopted on the subject (see, to that effect, judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others, C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 58). Accordingly, it is only in the light of that organisation’s articles of association, placed on the file in the context of its reply to the General Court’s questions of 25 January 2021, that a ruling should be delivered on this question.
125
First of all, as is apparent from the applicant’s explanations and the submitted supporting documents, the content of which is not disputed, the term ‘political secretary’ must be understood as referring to the person at the head of the body named, in its articles of association, ‘Secretariat of the political organisation’. Furthermore, it is not disputed either and is, moreover, expressly apparent from those documents, that the person who signed the authority to act given by the applicant to the lawyer did in fact occupy the post of ‘political secretary’ to the applicant on the date when the action was brought.
126
Next, according to Article 92(7) of the applicant’s articles of association, the functions of the National Secretariat, which, according to Article 76 of that document, is the ‘supreme body’ of the applicant ‘during the period between the two Congresses’, include ‘representing the Front in its relations with political parties, governments, liberation movements and other organisations’. According to Article 120 of those articles of association, ‘the Secretariat of the political organisation shall implement and monitor decisions and programmes of the National Secretariat and its Bureau relating to the nature and functions of the political organisation’.
127
It may therefore be inferred from those articles in the applicant’s articles of association, 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 his or her capacity as head of that body, A was authorised to sign the authority to act which was given to the applicant’s lawyer.
128
Comader, it is true, argued at the hearing that the representative role of the ‘political secretary’ vis-à-vis international organisations such as the European Union and judicial bodies such as the General Court was not apparent from the list of tasks of the Secretariat of the political organisation set out in Articles 122 and 131 of its articles of association and that this role seemed rather to fall within the remit of the National Secretariat alone.
129
First, however – as has already been noted – determining which of the applicant’s bodies are authorised to take the decision to bring an action does not depend on rules of any domestic legal order. Account must, moreover, be taken of the nature of that organisation, which is not constituted in accordance with the legal rules that normally apply to a person governed by private law or public law under such a legal order (see, to that effect and by analogy, judgment of 18 January 2007, PKK and KNK v Council, C‑229/05 P, EU:C:2007:32, paragraph 121). On the other hand, Article 120 of the articles of association confers on the Secretariat of the political organisation the power to implement and monitor decisions and programmes of the National Secretariat, and it is not apparent from Articles 122 and 131 of those articles of association that the list of its tasks set out therein is exhaustive.
130
It must therefore be inferred from those considerations that, in the present case, A, the applicant’s ‘political secretary’, was empowered to implement the decision of the applicant’s ‘supreme body’, namely the National Secretariat, to bring the present action.
131
Moreover, it may be noted that the applicant’s lawyer, a member of the Bar of a Member State who is subject as such to a code of professional conduct, stated in the reply to the General Court’s questions of 25 January 2021 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’, which he confirmed at the hearing (see, to that effect and by analogy, judgment of 18 January 2007, PKK and KNK v Council, C‑229/05 P, EU:C:2007:32, paragraph 119).
132
It follows from all of the foregoing that Comader’s doubts as to the validity of the authority to act given by the applicant to its lawyer must be dismissed.
3.
The Council’s second ground of inadmissibility, based on the applicant’s lack of standing
133
In the second plea of inadmissibility, the Council, supported by the French Republic, the Commission and Comader, contends that the applicant, which is not an addressee of the contested decision, is not directly or individually concerned by it.
134
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 Western Sahara and therefore affects the people of that territory.
135
As a preliminary point, it should, on the one hand, 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 (see, to that effect, judgments of 9 August 1994, France v Commission, C‑327/91, EU:C:1994:305, paragraphs 14 to 17; of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 285 to 289; and Western Sahara Campaign UK, paragraphs 45 to 51). A decision concluding an international agreement constitutes an ‘act’ within the meaning of Article 263 TFEU, a concept that covers all provisions adopted by the institutions, whatever their form, which are intended to have binding legal effects (see, to that effect, order of 19 March 2019, Shindler and Others v Council, C‑755/18 P, not published, EU:C:2019:221, paragraph 36 and the case-law cited).
136
On the other hand, it should be recalled 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. Thus, although the second paragraph of that article grants the institutions and the Member States the right to challenge, by means of an action for annulment, the legality of any ‘act’ within the meaning of that article, without the exercise of that right being subject to proof of an interest in bringing proceedings or the applicant having standing to bring proceedings, the fourth paragraph of that article provides that natural and legal persons may institute proceedings against acts which are addressed to them or are of direct and individual concern to them, or against regulatory acts which are of direct concern to them and do not entail implementing measures (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraphs 53 and 54 and the case-law cited; see also, to that effect, order of 19 March 2019, Shindler and Others v Council, C‑755/18 P, not published, EU:C:2019:221, paragraphs 38 and 39).
137
In the present case, the applicant is not an addressee of the contested decision or of the agreement at issue.
138
In that regard, it should be noted on the one hand that international agreements concluded by the European Union occupy a particular position in its legal order since, under Article 216(2) TFEU, the EU institutions are bound by such agreements and, consequently, they prevail over acts of the European Union, more specifically legislative acts (see, to that effect, judgment of 18 March 2014, Z., C‑363/12, EU:C:2014:159, paragraphs 71 and 72 and the case-law cited). On the other hand, it should be emphasised that the specific detailed rules for the adoption of the contested decision, based on Article 218(6)(a)(i) TFEU, require the consent of the European Parliament and therefore reflect externally the division of powers between Parliament and the Council that applies internally with regard to the adoption of legislative acts (see, to that effect, judgment of 24 June 2014, Parliament v Council, C‑658/11, EU:C:2014:2025, paragraph 55).
139
Consequently, 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, which are not affected by the relaxation of those conditions referred to in the third limb of the fourth paragraph of Article 263 TFEU, given that the concept of a regulatory act within the meaning of that phrase excludes precisely such acts (see, to that effect, judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraphs 60 and 61, and of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraphs 23, 24 and 28).
140
It follows that it is for the applicant to show that it is directly and individually concerned by the contested decision – a requirement, indeed, which it does not dispute. It is appropriate to begin by examining whether the applicant is directly concerned.
(a)
The applicant’s direct concern
141
The Council contends 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 a contested act. In that regard, it maintains that the contested act is not addressed to the applicant and that the act does not have any legal effects on the applicant. According to the Council, the contested decision produces legal effects only with regard to the European Union or its institutions and not with regard to third parties. The Council considers, moreover, that the contested decision does not produce its effects outside the territorial scope of the Treaties. In addition, 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 General Court would have to rule on the lawfulness of the rights and obligations of the Kingdom of Morocco arising from that agreement, to which the latter gave its free and sovereign consent, a ruling which would exceed the limits of its jurisdiction. In its rejoinder, the Council adds that, even if the contested decision did 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.
142
The applicant, for its part, claims that it meets the two criteria which must be satisfied if the condition of direct concern is to be fulfilled. On the one hand, 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 its natural resources in 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, it contends, the agreement has effects on its legal situation as the one and only representative of that people. On the other hand, it asserts that, since the object of the agreement is merely to extend the geographical area covered by tariff preferences, its implementation is purely automatic and does not require the adoption of other intermediate rules.
143
The arguments of the French Republic, the Commission and Comader are essentially the same as those of the Council.
144
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 provisions without the application of other intermediate rules (see judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 66 and the case-law cited; order of 6 March 2012, Northern Ireland Department of Agriculture and Rural Development v Commission, T‑453/10, not published, EU:T:2012:106, paragraph 42).
145
It is therefore necessary to examine separately whether the applicant satisfies each of those two criteria.
(1) The applicant’s compliance with the first criterion of direct concern, according to which the contested measure must directly affect its legal situation
146
As regards compliance with the first criterion of direct concern, it may be inferred from the arguments of the Council, the French Republic, the Commission and Comader that their challenge to the existence of direct effects of the contested decision on the applicant’s legal situation essentially comprises 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, given its territorial application. The third concerns the absence of change in the applicant’s legal situation, given the limitation of its role to participation in the self-determination process for Western Sahara.
(i) 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
147
On the one hand, 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 in relation to third parties and that the alleged effects of the agreement at issue on the applicant cannot be relied on to demonstrate that its legal situation is affected by that decision. On the other hand, the Council, supported in essence by the French Republic, the Commission and Comader, asserts that a decision of that nature cannot produce legal effects other than in the European Union.
148
The applicant, for its part, submits, first, 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, is excluded from judicial review by the court and, second, that the contested decision concludes an agreement which expressly includes the territory of Western Sahara and its natural resources within its scope. Lastly, it submits that, in any event, the people of Western Sahara are affected by EU law, since the introduction into EU territory of products originating in Western Sahara with certificates of Moroccan origin disregards the separate and distinct status of that territory.
149
In this regard, 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 paragraphs 3 and 4 of that article, 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 (see order of 8 February 2019, Front Polisario v Council, T‑376/18, not published, EU:T:2019:77, paragraphs 28 and 30 and the case-law cited).
150
In fact, a decision concluding an international agreement gives concrete expression to the European Union’s consent to be bound by that agreement (see, to that effect, Opinion 2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664, point 5). It is therefore a constituent element of that agreement and, by the same token, of the act by which the other parties to the agreement in question have themselves acceded to (see, to that effect and by analogy, Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014, EU:C:2014:2303, paragraphs 39 to 41 and 65). That decision thus has legal effects on those other parties, in so far as it formalises the acceptance by the European Union of commitments it has made to them in the context of the agreement concerned.
151
Furthermore, in conformity with the customary rule codified in Article 29 of the Vienna Convention, an international agreement may, by way of derogation from the general rule that such an act binds each party in respect of its entire territory, bind a State in respect of another territory if such an intention is apparent from that agreement or is otherwise established. In that context, such an agreement is liable to affect a third party within the meaning of the general international legal principle of the relative effect of treaties, and the third party must consent to the agreement (see, to that effect, Council v Front Polisario, paragraphs 94, 98, 103 and 106).
152
Consequently, given the inseparable nature of such an international agreement and the decision to conclude it on behalf of the European Union, the effects of the implementation of that agreement on the legal situation of that third party are relevant when it comes to assessing whether the third party or its representative is directly concerned by the said decision.
153
It follows that the Council is wrong to assert that, by its very nature, the contested decision produces effects only with regard to the European Union and its institutions. For the same reasons, it is necessary to reject the French Republic’s argument that the contested decision does not, of itself, produce legal effects in relation to the applicant, since the decision is not sufficient to bring the agreement at issue into force, as its entry into force depends on its ratification in accordance with the applicable procedures. That view is based, as the applicant observes, on the premiss that the legal effects of the contested decision and of the agreement at issue are separable. For the reasons set out in paragraphs 149 to 152 above, however, this premiss is incorrect.
154
In the second place, 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 (see, to that effect, judgment of 9 August 1994, France v Commission, C‑327/91, EU:C:1994:305, paragraphs 15 to 17). Similarly, the Court of Justice has held that, in so far as the international agreements concluded by the European Union bound not only the EU institutions but also the third States party to those agreements, a request for a preliminary ruling concerning the validity of an international agreement concluded by the European Union must be understood as targeting the act by which the European Union had concluded such an international agreement (see judgment in Western Sahara Campaign UK, paragraphs 49 and 50 and the case-law cited).
155
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 in Western Sahara Campaign UK, paragraphs 48 and 51 and the case-law cited).
156
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, on which, under Article 256(1) TFEU, the Court is competent to give judgment.
157
Since such a decision constitutes an impugnable act and natural and legal persons are entitled to seek its annulment, provided that they satisfy the conditions laid down in the fourth paragraph of Article 263 TFEU, they may ask the General Court, in their action, to review the legality of that decision in the light of the actual content of the agreement approved by that decision. 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.
158
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, to that effect and by analogy, order of 24 June 2020, Price v Council, T‑231/20 R, not published, EU:T:2020:280, paragraphs 39 to 43).
159
Otherwise this would amount in practice to depriving natural and legal persons directly and individually concerned by the stipulations of the international agreement at issue of the possibility of requesting the EU Courts to review whether those stipulations are compatible with the Treaties and with the rules of international law which, in accordance with the Treaties, are binding on the European Union (see, to that effect, Western Sahara Campaign UK, paragraph 48 and the case-law cited) and hence to ascertain whether the EU was lawfully able to agree to be bound by those stipulations.
160
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. 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 useful effect.
161
In the third place, as regards the question whether the effects of the contested decision are limited to the territory of the European Union, it is necessary, first of all, to distinguish the effects of a decision based on Article 218(6) TFEU concluding an international agreement, such as the contested decision, and those of an EU measure adopted internally. With regard to the latter measure, this means that, in accordance with the relevant rules of international law, the scope of the measure must be limited, in principle, to the territories over which the European Union fully exercises its jurisdiction (see, to that effect, judgment of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraphs 123 and 124 and the case-law cited).
162
By contrast, a decision, such as the contested decision, which concludes a bilateral agreement with the Kingdom of Morocco, necessarily produces effects in the international legal order. As is apparent from paragraph 150 above, such a decision is intended to produce legal effects in the context of relations between the European Union and that third State, as a constituent element of the expression of a concurrence of wills between those two subjects of international law.
163
Furthermore, an international agreement concluded by the European Union is likely to have legal effects in the territory of the other party to the agreement or, as recalled in paragraph 151 above, in another territory, if such an intention is apparent from that agreement or is established elsewhere. Consequently, those effects may be relied on for the purpose of establishing that a natural or legal person is directly and individually concerned by the decision concluding that agreement, in so far as that decision expresses the European Union’s consent to the production of such effects by the agreement.
164
Moreover, it follows from the case-law that the analysis of the effects of an agreement, such as the agreement at issue, in a territory other than that of the European Union – and in particular a territory distinct from that of the parties to the agreement – may, in view of the provisions of that agreement and of the context in which it was concluded, be relevant for the purpose of determining whether an applicant who relies on those effects is directly concerned by the decision concluding the agreement in question.
165
In paragraphs 81, 83 and 116 of the judgment in Council v Front Polisario, the Court of Justice examined the merits of the reasoning on the basis of which the General Court, in paragraph 103 of the judgment of 10 December 2015, Front Polisario v Council (T‑512/12, EU:T:2015:953), had concluded that the Liberalisation Agreement also applied to the territory of Western Sahara, in order to determine whether that conclusion could serve as a premiss for the analysis of the applicant’s standing. At the end of its own analysis of the Association Agreement and the Liberalisation Agreement in the light of the rules of international law, the Court of Justice concluded that that interpretation could not be justified either by the wording of the Association Agreement or by that of the Liberalisation Agreement or, ultimately, by the circumstances surrounding the conclusion of those two agreements.
166
In the present case, the applicant, relying on the judgment in Council v Front Polisario, bases its argument on the application of the agreement at issue in the territory of Western Sahara 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.
167
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 other party, namely the Kingdom of Morocco, fall, in accordance with the relevant principles of international law, within the latter’s sovereign competence cannot call into question the applicant’s right to rely on such direct concern.
168
On the one hand, in the present case it is not the effects of the agreement at issue or those of its implementation in the territory of the Kingdom of Morocco, within the meaning of Article 94 of the Association Agreement, which are relied on by the applicant as evidence of its being directly concerned, but those effects which, in the applicant’s view, the agreement produces in the territory of Western Sahara.
169
On the other hand, in any event, the analysis of the applicant’s direct concern in terms of the effects of the agreement at issue in the territory of Western Sahara does not lead the General Court to rule on the lawfulness of the rights and obligations of a third State – in the present case, the Kingdom of Morocco – arising from the agreement at issue. Under the case-law (see paragraph 154 above), the General Court, in the context of the present action, cannot rule on the lawfulness of that third State’s consent to the rights and obligations arising from the agreement but only on the lawfulness of the European Union’s consent to those rights and obligations. Furthermore, paragraphs 90 and 94 of the order of 3 July 2007, Commune de Champagne and Others v Council and Commission (T‑212/02, EU:T:2007:194), cited by the Council and the French Republic in this regard, cannot call into question the considerations set out in paragraphs 161 to 165 above, which are based on the case-law of the Court of Justice subsequent to the delivery of that order.
170
In any event, as the applicant observes in essence, in so far as the agreement at issue governs the importation into the European Union of products originating in Western Sahara, the effects of that agreement, and therefore of the contested decision, in the territory of the European Union may be relied on for the purpose of demonstrating the applicant’s direct concern.
171
It follows from the foregoing that, in view of the nature of a decision concluding an international agreement and its own legal effects, the existence of direct effects of the contested decision on the applicant’s legal situation, on account of the content of the agreement at issue, cannot be excluded from the outset. The first part of the Council’s argument must therefore be rejected.
(ii) The second part of the Council’s argument, relating to the specific legal effects of the contested decision, given its territorial application
172
The Council, supported by the French Republic, by the Commission and by Comader, disputes that the contested decision and the agreement at issue have legal effects in the territory of Western Sahara. In its view, the effects of those acts in that territory are purely economic and not legal. They do not therefore create rights or obligations for the people of that territory and cannot be enforced against them. In particular, in their written replies to the questions put by the General Court in the context of the measure of organisation of procedure of 17 December 2020 and at the hearing, the Council, the Commission and Comader essentially stated that the agreement at issue applied to products originating in that territory and not to the territory itself.
173
The applicant, for its part, submits that, because of the explicit inclusion of the territory of Western Sahara and its natural resources in the scope of the agreement at issue, that agreement, and hence the contested decision, affects the people of that territory as regards their right to self-determination. Moreover, it argues, because of the introduction into the territory of the European Union of products originating in Western Sahara with certificates of Moroccan origin, the fact that the agreement concerns the people of Western Sahara follows, in any event, from EU law.
174
These arguments call for a separate analysis, on the one hand, of the question of the application of the agreement at issue to Western Sahara and, on the other hand, of the effect on the people of that territory resulting from that application.
– The application of the agreement at issue to Western Sahara
175
In this regard, in the first place, it should be borne in mind that, as stated in paragraph 76 above, the purpose of the agreement at issue is, by inserting the Joint Declaration on Western Sahara after Protocol 4, to extend to products originating in Western Sahara and exported under the control of the Moroccan customs authorities, on the basis of express stipulations, the scope of the tariff preferences initially granted under the Association Agreement to products of Moroccan origin. Such a purpose is explicitly indicated in paragraph 1 of that declaration as well as in its paragraphs 2 and 3, which stipulate, on the one hand, that Protocol 4 is to apply, ‘mutatis mutandis’, for the purpose of defining the originating status of those products and, on the other hand, that the customs authorities of the Member States and the Kingdom of Morocco are responsible for ensuring that the rules of Protocols 1 and 4 are applied to those products (see paragraph 53 above).
176
In the second place, it should be noted that, as may be inferred from the case-law, where the European Union, in the context of an international agreement, agrees to grant tariff preferences that apply to products exported into its territory according to the geographical area from which those products originate, that area determines the territorial scope of those preferences (see, to that effect, judgments of 5 July 1994, Anastasiou and Others, C‑432/92, EU:C:1994:277, paragraphs 37 and 66; of 25 February 2010, Brita, C‑386/08, EU:C:2010:91, paragraph 64; and Council v Polisario Front, paragraphs 121 and 122).
177
In the present case, although the Council and the Commission state that, in practice, the products to which the stipulations of the Joint Declaration on Western Sahara are applicable originate in the part of that territory controlled by the Kingdom of Morocco, that clarification does not call into question the fact that those stipulations are liable to apply to all products originating in Western Sahara that are exported under the control of the Moroccan customs authorities.
178
Furthermore, although, as the Council and the Commission state, tariff preferences are applied to products originating in Western Sahara when they are imported into the territory of the European Union, it follows expressly from the Joint Declaration on Western Sahara that the granting of those preferences depends on compliance with the rules of Protocol 4, including those relating to proof of origin, the application of which is ensured by the Moroccan customs authorities.
179
Consequently, the agreement at issue produces effects not only in the territory of the European Union, but also in the territories in which the Moroccan customs authorities exercise their powers, including the part of Western Sahara controlled by the Kingdom of Morocco (see, to that effect and by analogy, judgment of 25 February 2010, Brita, C‑386/08, EU:C:2010:91, paragraph 51).
180
Besides, contrary to what the Council, the French Republic, the Commission and Comader maintain, the agreement at issue does not produce solely economic effects in the territory of Western Sahara. On the one hand, it is clear that exporters established in Western Sahara whose products are capable of benefiting from the tariff preferences for which the agreement provides are required, under paragraph 2 of the Joint Declaration on Western Sahara, to comply with the rules of Protocol 4 to the Association Agreement. On the other hand, the total or partial abolition of customs duties on products which those traders export, on entry into the European Union, is exhaustively governed by Protocol 1 to the Association Agreement, so that the benefits which they may derive from it depend heavily on the application of the rules of the Association Agreement. It must therefore be held that the agreement at issue produces legal effects in respect of those traders.
181
In the third place, it is clear from the stipulations of the agreement at issue that the European Union and the Kingdom of Morocco expressed a common intention to apply that agreement to Western Sahara.
182
Indeed, on the one hand, the declarations of those parties contained in the third and fourth paragraphs of the agreement at issue can only be understood in the light of that hypothesis. Thus, according to the third paragraph of that agreement, it ‘is concluded without prejudice to the respective positions of the European Union with regard to the status of Western Sahara and of the Kingdom of Morocco with regard to that region’. Similarly, according to its fourth paragraph, ‘both parties reaffirm their support for the United Nations process’ in that territory and ‘back the efforts made by the Secretary-General to reach a definitive political settlement’.
183
On the other hand, the eighth paragraph of the agreement at issue establishes a mechanism for the mutual exchange of information between the parties, relating, inter alia, to ‘the advantages for the people concerned’ and ‘the exploitation of the natural resources of the territories in question’. In view of the definition of the area concerned by the geographical extension of tariff preferences effected by that agreement, which is limited to Western Sahara, those two expressions necessarily refer to the advantages for the population of Western Sahara and to the exploitation of the natural resources of that territory. That monitoring mechanism thus reflects the objectives of the parties to the agreement at issue of economic development of the territory in question and conservation of its natural resources.
184
This common intention of the European Union and of the Kingdom of Morocco is confirmed by recitals 5 and 6 of the contested decision, which clearly state the Council’s intention, in response to the Court’s finding that ‘the Association Agreement covered the territory of the Kingdom of Morocco alone and not Western Sahara’, to ‘[ensure] that the trade flows developed over the years’ between Western Sahara and the European Union ‘are not disrupted, while establishing appropriate guarantees for the protection of international law, including of human rights, and sustainable development in the territories concerned’ (see paragraph 51 above). Similarly, it follows from recitals 7 and 10 of the contested decision that, in order to establish those guarantees, the Commission both assessed the effects of the tariff preferences granted to products from Western Sahara on the population of that territory and of the exploitation of its natural resources and ‘[involved] the people’ of the territory ‘in order to ascertain their consent’.
185
It follows that the applicant is justified in maintaining that the agreement at issue applies to the territory of Western Sahara and that, consequently, the assertion that the said territory is directly concerned by the contested decision by virtue of the European Union’s consent to such application may be derived from that premiss.
186
This analysis is not called into question by the Court’s interpretation of the Association Agreement and the Liberalisation Agreement in paragraphs 86 to 126 of the judgment in Council v Front Polisario.
187
Indeed, in the Council v Front Polisario judgment, the Court did not rule out the possibility that a stipulation in an agreement subsequent to the Association Agreement could extend the scope of that agreement expressly to Western Sahara. It merely ruled out the possibility that, in the absence of such an express stipulation, that scope, which is limited, in principle, as regards the Kingdom of Morocco, to its own territory, could be interpreted, in the light of the applicable principles of international law, as extending to that non-self-governing territory (Council v Front Polisario, paragraphs 86, 87, 92 and 94 to 98).
188
Thus, in that judgment, the Court did not examine a dispute relating to an agreement between the European Union and Morocco, subsequent to the Association Agreement, that included an explicit stipulation providing for the extension of the scope of that agreement to Western Sahara but rather a dispute relating to an analogous agreement without such an explicit stipulation.
189
In the present case, as has just been recalled in paragraphs 175 to 184 above, the agreement at issue inserts, in the framework of the Association Agreement, a joint declaration which expressly provides for the extension to products originating in Western Sahara of the tariff preferences granted by the European Union to the Kingdom of Morocco under that agreement and which reflects the parties’ clear and unequivocal intention to establish a legal basis for such an extension. In particular, it should be noted that, unlike the Liberalisation Agreement examined by the Court (see, to that effect, the judgment in Council v Front Polisario, paragraphs 111 to 114), the agreement at issue must be regarded as derogating from Article 94 of the Association Agreement in terms of territorial scope of the latter in so far as the scope of the arrangements applicable to the importation into the European Union of agricultural products, processed agricultural products, fish and fishery products, which is the subject of Protocol 1, is concerned.
190
Furthermore, although it follows, particularly from Article 31(3)(c) of the Vienna Convention, that the provisions of a treaty must be interpreted in the light of any rule of international law applicable in the relations between the parties, that requirement cannot serve as a 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 treaties intended to give to them (see, to that effect and by analogy, judgment of 13 July 2018, Confédération nationale du Crédit mutuel v ECB, T‑751/16, EU:T:2018:475, paragraph 34 and the case-law cited).
191
In particular, the application of the interpretation principle enshrined in Article 31(3)(c) of the Vienna Convention must not be incompatible with the principle enshrined in paragraph 1 of that article, according to which a treaty must 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.
192
In addition, in the present case, an interpretation of the provisions of the Joint Declaration on Western Sahara to the effect that they do not apply to the territory of Western Sahara would have the effect of rendering that joint declaration and, by the same token, the agreement at issue devoid of all substance (see, to that effect and by analogy, judgment of 23 November 2016, Commission v Stichting Greenpeace Nederland and PAN Europe, C‑673/13 P, EU:C:2016:889, paragraph 50). As is apparent from the analysis carried out in paragraphs 175 to 184 above, the sole purpose of that agreement is the extension to products originating in Western Sahara, through that joint declaration, of the tariff preferences initially granted to products of Moroccan origin under the Association Agreement. Such an interpretation would, moreover, preclude any effective implementation of that agreement, which would not be consistent with the principle of legal certainty.
193
In any event, as has already been pointed out in paragraph 170 above, the applicant’s direct concern may result from the effects produced by the agreement at issue and the contested decision in the territory of the European Union by virtue of the granting of tariff preferences to products originating in Western Sahara when they are imported into the European Union.
– The effect of the agreement at issue on the people of Western Sahara as a third party
194
As a preliminary point, as the Court pointed out in paragraph 100 of the judgment in Council v Front Polisario, under the general international legal principle of 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. In the present case, as the General Court has already observed, in paragraph 106 of that judgment, the Court of Justice held that, in application of that principle, the people of Western Sahara had to be regarded as a ‘third party’ that might 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. In the same paragraph of that judgment, moreover, the Court of Justice concluded that such inclusion must, in any event, receive that third party’s consent, regardless of whether the implementation of the agreement is likely to harm or benefit it.
195
Those considerations may be relevant to any provision in the Association Agreement or a later agreement explicitly providing for its application to Western Sahara. Since any implementation of such an agreement in that territory would be likely to affect its people as a third party, the same applies, a fortiori, to its explicit application to that territory. As was concluded in paragraph 189 above, the agreement at issue, which postdates the Association Agreement, derogates from Article 94 of the latter in so far as it expressly extends to that territory the arrangements for imports of agricultural products to the European Union for which Protocol 1 provides.
196
In any event, it must be inferred from the case-law that the granting of tariff preferences to products originating in Western Sahara on importation into the European Union on the basis of certificates issued by the customs authorities of the Kingdom of Morocco requires the consent of the people of that territory (see, to that effect, judgment of 25 February 2010, Brita, C‑386/08, EU:C:2010:91, paragraph 52 and the case-law cited).
197
This conclusion is not called into question by Comader’s argument that the agreement at issue is not actually enforceable against the people of Western Sahara, which would mean that the applicant could not bring an action before the EU Courts.
198
In this regard, on the one hand, as is apparent from paragraph 106 of the judgment in Council v Front Polisario, whether an international agreement affects a third party, within the meaning of the principle of the relative effect of treaties, has to be answered before the question whether that third party has expressed its consent to the international agreement at issue. Consequently, even if, as Comader claims, the lack of consent on the part of the third party in question to that international agreement renders it unenforceable in this respect, that unenforceability would have no bearing on the admissibility of an action before the EU Courts designed to defend the third party’s rights that are affected by the international agreement at issue. In any case, the admissibility of an action based on the fourth paragraph of Article 263 TFEU is determined solely by the conditions laid down in that article as interpreted in the case-law. It cannot be governed by the conditions of an international agreement regulating the enforceability of the agreement against a third party in the international legal order.
199
On the other hand, it should be noted that Comader’s considerations relating to the alleged unenforceability of the agreement at issue against the people of Western Sahara are not such as to call into question the Court’s finding that the said people, as a third party, may be affected by an agreement between the European Union and the Kingdom of Morocco within the meaning of the principle of the relative effect of treaties if the agreement is implemented in Western Sahara. Furthermore, as regards the opinion of the professor of public international law on which Comader relies, it should be noted that, while it is open to the EU Courts, where appropriate, to draw inspiration from academic writings for the purpose of examining a question which has not yet been resolved by EU law (see, to that effect, judgment of 12 July 1957, Algera and Others v Common Assembly, 7/56 and 3/57 to 7/57, EU:C:1957:7, p. 115), the General Court cannot rely on such written submissions in order to call into question the interpretation of international law adopted by the Court of Justice.
200
It follows from all of the foregoing that the territorial scope of the agreement at issue includes the territory of Western Sahara and that, accordingly, the agreement is likely to affect the people of that territory and therefore to require their consent. It must therefore be ascertained whether, in the light of the role played by the applicant in the self-determination process for that territory as the representative of that people, those circumstances are such as to establish that the applicant is directly concerned.
(iii) The third part of the Council’s argument, asserting that there has been no change in the applicant’s legal situation, given that its role is limited to participation in the self-determination process for Western Sahara
201
According to the Council, the French Republic, the Commission and Comader, the role assigned to the applicant in the self-determination process for Western Sahara does not mean that the contested decision and the agreement at issue produce direct effects on its legal situation. They argue that its power of representation is limited and non-exclusive and that it is not an economic operator. They add that the contested decision and the agreement at issue are without prejudice to the outcome of that process. Accordingly, they regard any effects of the contested decision on the applicant as indirect and political at most.
202
The applicant, for its part, submits that, merely because the contested decision affects the people of Western Sahara within the meaning of paragraph 106 of the judgment in Council v Front Polisario, it produces direct legal effects on the applicant’s situation as the sole representative of the people of Western Sahara. In addition, in response to the Council’s arguments, the applicant contends that the political process towards self-determination includes ‘obviously’ economic questions relating to the exploitation of natural resources and that, in any event, the agreement at issue raises a ‘territorial’ question, so that the dispute falls fully within the framework in which the applicant carries out its mission.
203
In this regard, first of all, it is appropriate to recall the particular situation of Western Sahara that results from the development of the international context referred to in paragraphs 2 to 19 above. Although the process towards self-determination of that non-self-governing territory is still continuing, its administering Power within the meaning of Article 73 of the Charter of the United Nations, namely the Kingdom of Spain, has, since 26 February 1976, ceased to exercise any international responsibility relating to the administration of that territory, a decision of which the UN bodies took note (see paragraph 13 above). Consequently, the parties to that UN-led process are, on the one hand, the Kingdom of Morocco, which claims the exercise of sovereign rights in that territory and, on the other hand, 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 as regards the right to represent that territory and its population. In particular, as the debate between the parties in the present dispute illustrates, there is no agreement between the Kingdom of Morocco and the applicant on the question of competence to conclude an international agreement applying to that territory.
204
Next, as regards the extent to which the applicant represents the people of Western Sahara and how this affects whether the latter are directly concerned by a decision concluding an agreement between the European Union and the Kingdom of Morocco that applies explicitly to the territory of Western Sahara, it should be noted that neither in the judgments in Council v Front Polisario and Western Sahara Campaign UK nor in the orders referred to in paragraph 43 above have the EU Courts adopted a position on that question.
205
The Council, however, refers to paragraphs 183 to 194 of the Opinion of Advocate General Wathelet in Council v Front Polisario (C‑104/16 P, EU:C:2016:677). In this regard, in particular, the Advocate General stated in paragraphs 185 and 186 of the Opinion 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. The Advocate General observed that the dispute at issue in cases T‑512/12 and C‑104/16 P was not part of that political process.
206
It may, however, be inferred from paragraph 7 of Resolution 34/37 that the UN General Assembly considered it necessary that the applicant take part in negotiations with the Kingdom of Morocco on the definitive status of Western Sahara because it was a legitimate representative of the people of that territory (see paragraphs 16 and 91 above). The recognition by the UN bodies of the applicant’s role as a representative of that people thus logically precedes the recognition of its right to be a party to the process relating to the self-determination of that territory. That interpretation is confirmed by the wording of paragraph 10 of Resolution 35/19 (see paragraph 16 above).
207
Consequently, while it is true that the UN-led process in Western Sahara does not include a trade or customs component, the applicant’s participation in that process does not mean that it could not represent the people of Western Sahara in the context of an agreement between the European Union and the Kingdom of Morocco relating to such areas, since such representation is necessary in order to safeguard that people’s right to self-determination. In this regard, it should be noted that, as the applicant correctly observes, the agreement at issue raises not only trade or customs questions but also a specific territorial question concerning the applicant, in so far as it applies to the territory whose people have the right to self-determination.
208
Finally, on the question whether the applicant is the sole representative of the people of Western Sahara, it is sufficient to note, at this stage, that it is not apparent from the documents in the case file that the UN bodies, as the applicant observes in essence, have called into question the position expressed in Resolutions 34/37 and 35/19 and recognised organisations other than the applicant as being authorised to represent the people in question. Contrary to the assertions of the Commission and Comader, the fact that, in the course of monitoring the self-determination process, those bodies, in accordance with their mandate, have been maintaining relations and engaging in exchanges with organisations other than the applicant, in particular from civil society, and with the Moroccan authorities is not decisive in that regard.
209
Similarly, the question whether, notwithstanding the Kingdom of Spain’s statement of 26 February 1976, the Kingdom of Spain retained its status as the administering Power within the meaning of Article 73 of the Charter of the United Nations, a question addressed in points 187 to 192 of the Opinion of Advocate General Wathelet in Council v Front Polisario (C‑104/16 P, EU:C:2016:677), is not relevant in the present case. On the one hand, it may be inferred from paragraph 106 of the judgment in Council v Front Polisario that the Court of Justice held the people of Western Sahara to be a third party to the Association Agreement distinct from the Kingdom of Spain, capable of expressing its own consent to the implementation of that agreement or of a subsequent agreement in that territory. On the other hand, as the applicant maintains in essence, in so far as it has been recognised by the United Nations as the representative of that people and, as noted in paragraph 207 above, its participation in the process of self-determination does not preclude it from expressing its consent to an agreement applicable to the said territory, any powers retained by the Kingdom of Spain cannot, in any event, be relied on against it.
210
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 ongoing self-determination process in the territory of Western Sahara, a party which claims sovereign rights over that territory and itself concluded the said agreement on that basis, necessarily produces legal effects on the other party to that process, given the ‘conflict of legitimacy’ between those parties with regard to that territory.
211
Moreover, the statement of reasons for the agreement at issue 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 unrelated to the current process of resolving the question of self-determination in Western Sahara.
212
This is substantiated by the fact that, in the third paragraph of the agreement at issue, the parties took care to specify that the agreement was concluded without prejudice to their respective positions on the status of Western Sahara, in other words as a non-self-governing territory in the view of the European Union and as part of Moroccan territory in the view of the Kingdom of Morocco. The same is true of the reaffirmation, in the fourth paragraph of that agreement, of their support for the ‘United Nations process’. It must be inferred from this 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 that territory and as undermining the self-determination process in question and that it was necessary to provide those clarifications in order to eliminate such a risk.
213
Those concerns are also reflected in recitals 3 and 10 of the contested decision (see paragraph 51 above). In particular, the Council responds in recital 10 to those of the ‘social, economic and political stakeholders’ who participated in the consultations conducted by the Commission and by the EEAS and who ‘rejected [the extension of the tariff preferences of the Association Agreement with Western Sahara]’ because they ‘felt essentially that such an Agreement should affirm Morocco’s position on Western Sahara’. In this regard, the Council states that ‘the text of the Agreement does not imply that it recognises Morocco’s sovereignty over Western Sahara’ and that ‘the [European] Union will also continue to step up its efforts in support of the process, initiated and pursued through the United Nations, working towards a peaceful resolution of the dispute’.
214
Furthermore, although the applicant was not formally invited to take part in the consultations referred to in paragraph 213 above, exchanges between it and the EEAS concerning the agreement at issue took place on 5 February 2018, as stated above, and in its report of 11 June 2018 the Commission set out its position on the envisaged conclusion of that agreement, referring expressly to those exchanges. This position coincided with that of the ‘social, economic and political stakeholders’ referred to in recital 10 of the contested decision, in the sense that the applicant opposed the conclusion of the agreement at issue. Consequently, even if the applicant is not a party to that agreement and did not participate in the negotiations for its conclusion, which involved only the EU authorities and the Moroccan authorities, it was regarded by the institutions as a legitimate interlocutor entitled to express its point of view concerning that agreement (see paragraph 98 above).
215
In so far, therefore, as the conclusion of the agreement at issue affects the people of Western Sahara and must obtain their consent, the contested decision has direct effects on the applicant’s legal situation as the representative of that people. In addition, to the extent that the agreement was concluded with the Kingdom of Morocco, it directly concerns the latter as a party to the self-determination process in that territory. On the one hand, it is common ground that the applicant did not consent to the conclusion of the agreement at issue. On the other hand, the applicant maintains, in the context of the present action, that the consent of the people of Western Sahara has not been validly obtained, particularly because it has not been expressed by them.
216
The arguments of the Council, the French Republic, the Commission and Comader do not call that conclusion into question.
217
On the one hand, the fact that the applicant is not an economic operator is irrelevant, in so far as it does not claim that status and does not seek to derive its direct concern from its subjection to the rules governing the granting of tariff preferences to products originating in Western Sahara but rather from the territorial scope of the agreement itself. Furthermore, 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, under appeal), on which the Council and the Commission rely in support of their arguments, it is sufficient to point out that, by judgment of 22 June 2021, Venezuela v Council(Direct effect on a third State) (C‑872/19 P, EU:C:2021:507), the Court of Justice set aside the judgment of the General Court cited by the Council on the ground that the General Court had erred in law in holding that the restrictive measures at issue did not directly affect the legal situation of the Bolivarian Republic of Venezuela and in upholding, on that basis, the second ground of inadmissibility raised by the Council (judgment of 22 June 2021, Venezuela v Council(Direct effect on a third State), C‑872/19 P, EU:C:2021:507, paragraph 73). Consequently, the Council cannot rely on the aforementioned judgment of the General Court to call into question the applicant’s direct concern. What is more, the dispute between the third State referred to above and the Council related to unilateral acts applying solely to the territory of the European Union, and the consent of a third party to those acts was not required, which makes the comparison inappropriate in any case.
218
On the other hand, the fact that the agreement at issue and the contested decision are without prejudice to the outcome of the self-determination process does not mean that those acts are not capable of altering the applicant’s legal situation as the representative of a third party to that agreement and party to that process. The same applies to the production of ‘indirect’‘political’ effects on that process.
219
It follows from all of the foregoing that the three parts of the Council’s arguments concerning the first criterion of direct concern must be rejected and that the applicant satisfies that criterion.
(2) The second criterion of direct concern, relating to the purely automatic nature of the implementation of the contested measure and to its resulting from EU rules alone
220
As regards the second criterion of direct concern, relating to the purely automatic nature of the implementation of the contested measure and to its resulting solely from EU rules, it should be noted that the Council has not put forward any specific arguments concerning that criterion.
221
In this regard, it may be noted that, as the applicant maintains, the agreement at issue merely constitutes a geographical extension of the tariff preferences already granted to the Kingdom of Morocco without any change in the volume or categories of the products covered by those preferences. Consequently, the implementation of that agreement in the territory of the European Union leaves no margin of appreciation to the authorities responsible for applying those tariff preferences because, since the products in question are products originating in Western Sahara, the tariff preferences for which the agreement at issue provides must be applied to them.
222
Moreover, as noted in paragraph 215 above, since the applicant, as the representative of the people of Western Sahara, did not consent to the conclusion of the agreement at issue, which applies to that territory, the contested decision approving that agreement immediately alters the applicant’s legal situation without the need for any further measures.
223
The Commission, it is true, disputes that the applicant’s direct concern might result from the direct effect which the agreement at issue had on individuals. It follows from the case-law, however (see paragraph 144 above), that, in order to determine whether the second criterion of direct concern is satisfied, it is necessary to resolve the question whether the implementation of the provisions of the agreement at issue is purely automatic and results from EU rules alone without the application of other intermediate rules. This question cannot be rendered irrelevant by the fact that the direct effect of those provisions is also capable of determining whether they may be relied on in essence by individuals.
224
It must therefore be concluded that the applicant is directly affected by the contested decision.
(b)
The applicant’s individual concern
225
The Council contends that the applicant’s participation in the negotiations on the status of Western Sahara cannot make it individually concerned by the contested decision and that the agreement at issue does not affect its position in those negotiations. In its rejoinder, the Council adds that, even if the applicant were responsible for the economic affairs of 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 this responsibility is not sufficient to establish that the applicant is individually concerned by the agreement at issue.
226
The Commission, the French Republic and Comader essentially put forward the same arguments as the Council.
227
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, whose representative it is, must consent to any international agreement that applies to the territory of Sahara. Accordingly, in view of the role which the applicant plays with regard to that people, in particular in the expression of its consent to be bound by treaty, it possesses attributes which distinguish it from all other persons and is thus individually concerned by the contested decision. In the reply, the applicant adds that, by proceeding with the consultations described in paragraph 48 above, the Council prevented it from exercising its competence to express the consent of the Sahrawi people and reiterates, in essence, the arguments designed to demonstrate that it is directly affected by that decision.
228
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 (judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 71 and the case-law cited).
229
In the present case, it should be noted that, as the representative of the people of a non-self-governing territory enjoying the right to self-determination, the applicant has its own powers under international law which are distinct from those of the parties to the agreement at issue. It may therefore reasonably argue, for the purposes of demonstrating that it is individually concerned by the contested decision, that the decision prevents it from exercising those powers as it sees fit.
230
First, in the examination of the applicant’s direct concern, it was concluded that the applicant’s participation in the ongoing political process in Western Sahara did not render it unable to represent the people of that territory in the context of a trade and customs agreement between the European Union and the Kingdom of Morocco which applied to that people, since that representation was necessary in order to safeguard their right to self-determination. Second, it was also noted that it was not apparent from the case material that the bodies of the United Nations had recognised other organisations than the applicant as authorised to represent the people in question. Third, contrary to what the Council, the French Republic, the Commission and Comader contend, the conclusion by the European Union of the agreement at issue with one of the parties to the self-determination process in Western Sahara raises questions which cannot be regarded as totally unrelated to that process and which therefore concern the applicant as a party to it (see paragraphs 206 to 215 above).
231
In these conditions, it must be held that the applicant is affected by the contested decision by reason of attributes which are peculiar to the applicant and which distinguish it in the same way as the addressee of that decision, as the representative of the people of Western Sahara and as a party to the self-determination process. It must therefore be able to subject that decision to review by the EU Courts so that the latter can ascertain whether the European Union was lawfully able to consent to the application of the agreement at issue to that territory.
232
These considerations are not called into question by the arguments of the Council, the French Republic, the Commission and Comader.
233
First, as regards the judgment of 10 April 2003, Commission v Nederlandse Antillen (C‑142/00 P, EU:C:2003:217), it should be noted that an appeal was brought in that case before the Court of Justice by the Commission concerning a judgment of the General Court relating to a dispute in which the Netherlands Antilles, an overseas territory linked to the European Community by an association agreement, challenged safeguard measures in respect of imports of rice originating in overseas countries and territories (OCTs). Those measures were of general application and, despite the fact that they affected the rice-milling sector in the Netherlands Antilles and the latter were the source of most imports of that product originating in the OCTs into the Community, they were not specifically aimed at imports from that particular overseas territory but at imports from all OCTs.
234
This was the context in which the Court of Justice held that the general interest which the Netherlands Antilles might have in economic prosperity within its territory and that the impact of the contested measures on the rice-processing sector, an activity that might be carried out at any time by any economic operator in any OCT, did not constitute circumstances capable of distinguishing the applicants individually (see, to that effect, judgment of 10 April 2003, Commission v Nederlandse Antillen, C‑142/00 P, EU:C:2003:217, paragraphs 66 to 79).
235
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), are therefore not comparable to those of the present case. On the one hand, the measures contested in the context of that dispute did not specifically relate to the applicants’ territory. On the other hand, the adoption of those measures did not in any event require the consent of the people of that territory.
236
Second, the reference by the Commission and the French Republic to the case-law on the individual concern of associations (see judgment of 18 January 2007, PKK and KNK v Council, C‑299/05 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), is not relevant to the present case. The individual concern of an association representing the private interests of a group of individuals or undertakings cannot be compared with that of an organisation, such as the applicant, representing the people of a non-self-governing territory.
237
Third, given the applicant’s role and the circumstances referred to in paragraph 230 above, which are sufficient to distinguish it individually in the context of the contested decision, the fact that the applicant did not participate in the negotiations conducted by the European Union with a view to concluding the agreement at issue cannot be relied on against it. Moreover, in the present action, the applicant questions the legality of the contested decision precisely because the applicant was not associated with the conclusion of that agreement for the purpose of expressing the consent of the people of Western Sahara to it.
238
It follows that the applicant is not only directly but also individually concerned by the contested decision. Accordingly, the Council’s plea of inadmissibility based on the applicant’s lack of locus standi must be dismissed, and the action must be considered on its merits.
B. Merits of the action
239
The applicant puts forward ten pleas in law in support of its action. The first plea alleges lack of competence on the part of the Council to adopt the contested decision; the second alleges breach of its obligation to verify respect for fundamental rights and international humanitarian law; the third alleges breach of the obligation to comply with the judgments of the Court; the fourth alleges infringement of fundamental rights as principles and values to guide the external action of the European Union; the fifth alleges breach of the principle of protection of legitimate expectations; the sixth alleges misapplication of the principle of proportionality; the seventh alleges infringement of the right to self-determination; the eighth alleges infringement of the principle of the relative effect of treaties; the ninth alleges infringement of international humanitarian law; and the tenth alleges breach of the European Union’s obligations under the law of international responsibility.
1.
The first plea, alleging lack of competence on the part of the Council to adopt the contested decision
240
The applicant submits that the Council, as an institution of the European Union, was not competent to adopt the contested decision, since that decision concluded an international agreement applicable to a territory falling under the sovereignty of a third people, over which neither the European Union nor its contractual partner had authority.
241
The Council submits that, by the present plea, the applicant is in fact challenging the competence of the European Union on the ground of infringement of the principle of self-determination and of the principle of the relative effect of treaties and refers to its response to the seventh and eighth pleas in law. It also points out that competence to conclude international agreements is conferred on it by Article 218(6) TFEU.
242
The Commission, for its part, submits that international law does not preclude the conclusion by the administering Power of a non-self-governing territory of an international agreement which applies to that territory. In the present case, it contends, the Kingdom of Morocco should be regarded as being the de facto administering authority of Western Sahara. The French Republic essentially takes the same view. Comader essentially endorses the Council’s response to this plea.
243
As a preliminary point, it should be recalled that, in accordance with the principle of conferral set out in Article 5(1) and (2) TEU, the European Union acts only within the limits of the powers conferred on it by the Member States in the Treaties in order to attain the objectives set out in those Treaties. With regard, more specifically, to the institutions of the European Union, Article 13(2) TEU states that each of them is to act within the limits of the powers conferred on it in the Treaties, in accordance with the procedures, conditions and objectives set out therein (judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraphs 97 and 98).
244
In the present case, as the first citation in the preamble to the contested decision indicates, the Council adopted that decision on the basis of the first subparagraph of Article 207(4) TFEU in conjunction with point (a)(i) of the second subparagraph of Article 218(6) TFEU.
245
The applicant does not dispute that the Council complied with the procedures and conditions applicable to an act adopted on the basis of the provisions of the TFEU that are referred to in paragraph 244 above. In fact, in the context of the present plea, the applicant disputes only the competence of the European Union to conclude the agreement at issue, on the ground that that agreement is applicable to a foreign territory falling under the sovereignty of the people of Western Sahara. In this regard, the applicant refers, in particular, to the general principle of law enshrined in the Latin expression nemo plus iuris ad alium transferre potest quam ipse habet.
246
In this respect, it may be noted that certain rules of international law may prevent the European Union, by reason of its status as an international organisation, from acceding to an international agreement or, at the very least, may narrowly circumscribe such accession (see, to that effect, Opinion 2/91 (ILO Convention No 170) of 19 March 1993, EU:C:1993:106, point 5, and judgment of 20 November 2018, Commission v Council(Antarctic PMI), C‑626/15 and C‑659/16, EU:C:2018:925, paragraphs 128 to 130). Similarly, in some cases international law has precluded the conclusion with a third State of treaties applicable to a non-self-governing territory, in particular on account of infringements committed in that territory by that State (ICJ Advisory Opinion of 21 June 1971 concerning the legal consequences for States of the continued presence of South Africa in Namibia (South West Africa), notwithstanding Security Council Resolution 276 (1970) – ICJ Reports 1971, p. 16, paragraphs 122 to 126).
247
In the present case, however, the applicant has not relied on any rule of international law capable of limiting the European Union’s power to conclude a bilateral agreement such as the agreement at issue by reason of its status as an international organisation. Furthermore, although the applicant considers that certain principles of customary international law preclude the European Union from concluding that agreement, it does not rely on any rule of that law, particularly any such rule resulting from a resolution of the UN Security Council or enshrined in a judgment of the ICJ that would explicitly proscribe any international agreement with the Kingdom of Morocco which applied to the territory of Western Sahara.
248
It is evident, moreover, from paragraph 98 of the judgment in Council v Front Polisario that the Court of Justice has not ruled out, in principle, the possibility that, in the light of the principles of international law applicable to relations between the European Union and the Kingdom of Morocco in the framework of the Association Agreement, the European Union would be entitled to conclude an agreement with that third State forming part of the said framework and expressly providing for its application to Western Sahara.
249
For these reasons, the first plea in law must be rejected.
250
It is appropriate to continue the examination of the merits of the action by considering the third plea.
2.
The third plea, alleging, in essence, breach of the Council’s obligation to comply with the requirements derived by case-law from the principle of self-determination and from the principle of the relative effect of treaties
251
The applicant submits that, by concluding, without its consent, an agreement with the Kingdom of Morocco which is explicitly applicable to the territory of Western Sahara, the Council disregarded the obligation to implement the judgments of the Court of Justice, an obligation that stems from Article 266 TFEU. The Court, the applicant submits, has held that the implied inclusion of that territory within the scope of the 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, an explicit application of such agreements to that territory is, a fortiori, precluded. Furthermore, in the first part of the application as well as in the preliminary considerations of the reply and in the observations on the statements in intervention, the applicant claims, 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 the requirement for the consent of the people of that territory.
252
The Council submits that, by concluding an agreement which explicitly permits the Association Agreement to produce effects in the territory of Western Sahara after obtaining the consent of the people of that territory, it has complied with the judgment in Council v Front Polisario.
253
In this regard, in the preliminary considerations of its defence, entitled ‘Horizontal questions’, the Council submits, in essence, that, since the particular situation of Western Sahara made it impossible to consult the people of that territory directly or through an institutional representative, the institutions were able to use their discretion to carry out consultations based on an objective criterion, derived from the benefits accruing to the population of that territory, and, in that respect, complied with the applicable principles of international law. In addition, the Council submits that the provisions and principles of international law that apply to administering Powers are relevant in the present case, in view of the ‘de facto administration’ of that territory by the Kingdom of Morocco, and that, in any event, the applicant has neither the legal capacity nor the administrative means to conclude a trade agreement with the European Union. Lastly, it submits that the applicant does not satisfy the conditions laid down in the case-law for relying on rules of international law and that judicial review of the contested decision in the light of the principles of customary international law is necessarily limited to a manifest error of assessment.
254
In the part of its statement in intervention entitled ‘Preliminary legal considerations’, the Commission sets out, in essence, arguments similar to those of the Council concerning the possibility of an individual relying on the principles of customary international law and the limited nature of judicial review of EU acts in the light of those principles. In addition, in the context of the seventh and eighth pleas in law, the Commission submits, on the one hand, that infringement of the right to self-determination cannot be relied on against an act of the Council and, on the other hand, that the principle of the relative effect of treaties can only render an international agreement unenforceable against a third party but cannot call its validity into question. Lastly, it submits that the applicant is mistaken as to the conclusions to be drawn from the judgments in Council v Front Polisario and Western Sahara Campaign UK. Those judgments, it argues, merely interpreted the agreements applicable to the territory of Morocco in the light of the relevant principles of international law but did not address the validity of those agreements.
255
In the part of its statement in intervention entitled ‘Preliminary considerations on the “facts”’, the Commission sets out, in essence, the same analysis as that of the Council as regards the process which led to the conclusion of the agreement at issue. It states, moreover, that the agreement does not treat products originating in Western Sahara as being of Moroccan origin but expressly refers to them as originating in that territory. Furthermore, it contends that, in the UN-led negotiation process, the applicant is not assigned the task of acting as the exclusive ‘mouthpiece’ of the people of Western Sahara.
256
The French Republic essentially concurs with the analysis produced by the Council and the Commission.
257
In the ‘Factual considerations’ part of its statement in intervention, Comader agrees, in part, with the Commission’s and Council’s analysis of the consultation process preceding the conclusion of the agreement at issue. In addition, Comader asserts that local elected representatives who participated in that consultation process are the legitimate representatives of the population of Western Sahara and enjoy democratic legitimacy. In particular, it also submits that Article 266 TFEU is not applicable to the present case. Lastly, it argues that the principle of the relative effect of treaties is not applicable to the present case and that, in any event, the agreement at issue cannot be relied on against the applicant.
258
As a preliminary point, it should be noted that the Council, the French Republic, the Commission and Comader primarily challenge the legal foundations of the present plea and that their arguments ultimately raise the question whether it is not invalid. It is therefore appropriate to examine this question before ruling, if necessary, on the merits of the said plea.
(a)
The arguments of the Council, the French Republic, the Commission and Comader alleging, in essence, that the third plea in law is invalid
259
The arguments of the Council, the French Republic, the Commission and Comader call into question the legal basis of three aspects of this plea. First, they assert that Article 266 TFEU is not applicable. Second, they assert that the judgments cited by the applicant cannot properly be relied on in order to challenge the validity of the agreements between the European Union and the Kingdom of Morocco. Third, they assert that the applicant cannot rely on the principles of customary international law, which, it alleges, have been breached in the present case.
260
In the first place, it should be recalled that, under the first paragraph of Article 266 TFEU, the institution, body or organisation whose act has been declared void or whose failure to act has been declared contrary to the Treaties is required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union.
261
According to settled case-law, the obligation laid down in Article 266 TFEU, which is applicable by analogy to judgments declaring an EU act invalid, means that the institutions concerned are required to have regard not only to the operative part of the judgment of annulment or invalidity, but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the act annulled or declared invalid (see judgment of 28 January 2016, CM Eurologistik and GLS, C‑283/14 and C‑284/14, EU:C:2016:57, paragraphs 48 and 49 and the case-law cited).
262
However, it does not follow either from the wording of Article 266 TFEU or from the case-law cited in paragraph 261 above that the obligation laid down in that article extends to the grounds of a judgment which has dismissed an action for annulment against an EU act.
263
In the present case, as has been recalled in paragraphs 34 and 40 above, in the judgment in Council v Front Polisario the Court of Justice, after setting aside the judgment of 10 December 2015, Front Polisario v Council (T‑512/12, EU:T:2015:953), gave final judgment in the matter by dismissing the applicant’s action as inadmissible for lack of standing to bring proceedings.
264
As regards the judgment in Western Sahara Campaign UK, apart from the fact that it did not call into question the validity of the contested EU acts, which was the subject of the questions referred to the Court for a preliminary ruling, suffice it to note, in any event, that it concerned an international fisheries decision and agreements whose material scope is different from that of the contested decision and the agreement at issue. Similar observations may be made, mutatis mutandis, with regard to the orders of 19 July 2018, Front Polisario v Council (T‑180/14, not published, EU:T:2018:496), and of 30 November 2018, Front Polisario v Council (T‑275/18, not published, EU:T:2018:869).
265
Consequently, as noted, in essence, by Comader, the applicant cannot, in the present case, derive from Article 266 TFEU an obligation on the part of the institutions to implement the decisions of the EU Courts which are referred to in paragraphs 263 and 264 above. In so far as it is based on the provisions of that article, the present plea must be rejected as invalid.
266
This being so, it should be noted that, according to settled case-law, there is no requirement for a party to invoke explicitly the provisions on which it bases its pleas in law, provided that the subject matter of that party’s claim and the principal matters of fact and law on which the claim is based are set out in the application with sufficient clarity. That case-law applies, mutatis mutandis, where there is an error in the identification of the provisions on which the pleas in law of an action are based (see judgment of 23 November 2017, Aurora Srl v Community Plant Variety Office – SESVanderhave (M 02205), T‑140/15, not published, EU:T:2017:830, paragraph 38 and the case-law cited).
267
In the present case, as is apparent from paragraph 251 above, the line of argument developed in support of the present plea is based on a complaint alleging, in essence, infringement by the institutions of their obligation to comply with the Court’s case-law on the interpretation of agreements between the European Union and the Kingdom of Morocco in the light of the applicable rules of international law. In this regard, when questioned at the hearing on the legal basis of that plea, the applicant stated, in essence, that, in so far as is indicated in the grounds for the contested decision that the decision was adopted in order to comply with the judgment in Council v Front Polisario, the applicant may reasonably rely on the considerations in that judgment to argue that the decision does not comply with those considerations. Moreover, that is how the Council and the Commission understood it, as illustrated by their arguments in response to those of the applicant.
268
In this respect, it should be recalled that, according to settled case-law, the European Union is based on the rule of law, and the acts of its institutions are subject to review by the Court of their compatibility with EU law and, in particular, with the FEU Treaty and the general principles of law, and natural and legal persons must enjoy effective judicial protection (see judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 35 and the case-law cited).
269
In particular, the EU institutions are required to comply with the obligations arising from EU law, as interpreted by a judgment establishing a failure to fulfil obligations, a preliminary ruling or settled case-law on the matter (see, to that effect and by analogy, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraphs 31 and 40 and the case-law cited).
270
In the context of an action for annulment, it is therefore for the EU Courts, when hearing a plea in law to that effect, to review the conformity of the contested decision with the case-law of the Court, where the Court has inferred from EU law or from the applicable international law requirements relevant to the assessment of the legality of that decision.
271
That is true, in the present case, of the obligations arising in particular, according to the judgment in Council v Front Polisario, from the principle of self-determination and the principle of the relative effect of treaties. As is apparent from recitals 6 and 10 of the contested decision (see paragraph 51 above), the institutions negotiated and concluded the agreement at issue with a view to drawing the appropriate conclusions from that judgment by providing an explicit legal basis for the application of the preferential regime under the Association Agreement to products originating in Western Sahara, accompanied by guarantees of respect for international law and fundamental rights, in particular in order to take account of the ‘considerations on consent’ set out in paragraph 106 of that judgment.
272
It follows that, in so far as it alleges, in essence, that the Council breached its obligation to comply with the interpretation in case-law, particularly in Council v Front Polisario, of the Association Agreement in the light of the applicable rules of public international law, this plea is not invalid, notwithstanding the applicant’s incorrect reference to Article 266 TFEU.
273
In the second place, the fact that, in Council v Front Polisario, the Court interpreted the principle of self-determination and the principle of the relative effect of treaties in the context of its interpretation of the Association Agreement and the Liberalisation Agreement and not in the context of the review of the validity of those agreements is not decisive.
274
On the one hand, as follows from the case-law referred to in paragraph 269 above, the institutions are required to comply with the rules of EU law, as interpreted in the case-law, regardless of the context in which that case-law is set out. That principle is applicable to the interpretation by the Court of rules of international law, since the European Union is required, under settled case-law, to exercise its powers in accordance with international law as a whole (see judgment in Western Sahara Campaign UK, paragraph 47 and the case-law cited). Furthermore, as has been pointed out, the EU Courts have jurisdiction to determine whether an international agreement concluded by the European Union is compatible with the Treaties and with the rules of international law which, under those treaties, are binding on the European Union (see paragraphs 155 and 156 above).
275
On the other hand, as noted in paragraph 195 above, the rules inferred by the Court of Justice from the principles of international law which it interpreted in Council v Front Polisario were relevant for the purpose of determining whether the Association Agreement could lawfully apply implicitly to Western Sahara. They are, therefore, all the more relevant when it comes to examining whether it is possible to introduce into that agreement a provision explicitly providing for such territorial application. The lawfulness of the contested decision may therefore be examined in the light of those rules.
276
In the third place, as regards the possibility of relying on the principles of international law interpreted by the Court, in particular the principle of self-determination and the principle of the relative effect of treaties, it has, first of all, been repeatedly recalled that the EU Courts have jurisdiction to assess the compatibility of a decision concluding an international agreement with the rules of international law in particular, since the European Union must exercise its powers in compliance with those rules, which are binding on it under the Treaties.
277
In this regard, it must be recalled that, by virtue of Article 3(5) and Article 21(1) TEU, the European Union’s action on the international stage is based on the values and principles that have governed its creation, development and enlargement. It contributes, in particular, to the strict observance and development of international law, including respect for the principles of the Charter of the United Nations.
278
It should be added that, in accordance with Article 207(1) TFEU, and as is apparent, moreover, from recital 12 of the contested decision, the common commercial policy is conducted within the framework of the principles and objectives of the European Union’s external action, including those referred to in paragraph 277 above. The European Union has an obligation to incorporate those principles and objectives into the conduct of that policy (see, to that effect, Opinion 2/15 (Free Trade Agreement with Singapore) of 16 May 2017, EU:C:2017:376, paragraphs 142 to 147).
279
Next, it should be recalled that, in paragraphs 88 and 89 of the judgment in Council v Front Polisario, the Court held that the right to self-determination constituted a legally enforceable right erga omnes and one of the essential principles of international law and that, as such, it formed part of the rules of international law applicable to relations between the European Union and the Kingdom of Morocco, which the EU Courts were required to take into account. Moreover, in paragraphs 90 to 93 of that judgment, the Court held, on the basis of the resolutions of the United Nations General Assembly and the Advisory Opinion on Western Sahara, that the separate and distinct status of Western Sahara had to be respected in the context of relations between the European Union and the Kingdom of Morocco and that this requirement had to be taken into account in the interpretation of the Association Agreement.
280
Similarly, after recalling in paragraphs 104 and 105 of the judgment in Council v Front Polisario, on the one hand, the ICJ’s findings in the Advisory Opinion on Western Sahara, in particular the finding that the population of that territory enjoyed the right to self-determination, and, on the other hand, the UN General Assembly recommendation concerning the applicant’s participation in the quest for a solution to the definitive status of that territory, the Court, in paragraph 106 of that judgment, inferred from those sources that the people of Western Sahara must be regarded as a ‘third party’ within the meaning of the principle of the relative effect of treaties and that the implementation of the Association Agreement therefore required their consent.
281
As a result, in Council v Front Polisario the Court inferred from the principle of self-determination and from the principle of the relative effect of treaties clear, precise and unconditional obligations (see, to that effect and by analogy, judgment of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraph 55) in respect of Western Sahara in the context of relations between the European Union and the Kingdom of Morocco, namely an obligation to respect its separate and distinct status and an obligation to ensure that its people consented to the implementation of the Association Agreement in that territory. As set out in paragraph 275 above, it must be inferred that those obligations are relevant, a fortiori, to a determination of the legality of stipulations providing for the explicit application of that agreement or its protocols to that territory.
282
Accordingly, in the present case, in order to defend the rights which the people of Western Sahara derive from the principle of self-determination and the principle of the relative effect of treaties, the applicant must be able to rely on an infringement of those clear, precise and unconditional obligations in the contested decision, in so far as that alleged infringement is liable to affect that people, as a third party to an agreement concluded between the European Union and the Kingdom of Morocco (see, to that effect and by analogy, judgment of 16 June 1998, Racke, C‑162/96, EU:C:1998:293, paragraph 51).
283
Contrary to what the Council, the French Republic, the Commission and Comader suggest, the applicant’s reliance on the principle of self-determination and the principle of the relative effect of treaties does not conflict with the Court’s case-law regarding the possibility of relying on the principles of customary international law, which stems in particular from the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864).
284
In this regard, it should be recalled that, in paragraph 107 of the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), the Court held that the principles of customary international law referred to in paragraph 103 of that judgment could be relied upon by an individual for the purpose of the Court’s examination of the validity of an act of the European Union only in so far as, first, those principles were capable of calling into question the competence of the European Union to adopt that act and, second, the act in question was liable to affect rights which the individual derived from EU law or to create obligations under EU law in his or her regard. That case concerned the principle that each State has complete and exclusive sovereignty over its airspace, the principle that no State may legitimately claim to subject any part of the high seas to its sovereignty and the principle of freedom to fly over the high seas.
285
The Court therefore held that, in so far as those principles of customary international law were relied upon in the main proceedings in order for the Court to determine whether the European Union had competence to adopt Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community (OJ 2009 L 8, p. 3), and in so far as that directive was capable of creating obligations to the applicants in the main proceedings, it could not be ruled out that the latter might rely on the said principles, even though their scope appeared to be limited to the creation of obligations between States (see, to that effect, judgment of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraphs 108 and 109).
286
It should, however, be noted that the circumstances in which the Court set out the considerations referred to in paragraphs 284 and 285 above are different from the circumstances of the present case.
287
In the first place, it does not follow from the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), that clear, precise and unconditional obligations imposed on the European Union with regard to undertakings in third States such as the applicant in the main proceedings had previously been inferred from the principles of customary international law referred to in paragraph 103 of that judgment before it was delivered. Accordingly, in the context of the questions referred to the Court for a preliminary ruling in that case, the Court was asked, in essence, to review the validity of the contested act directly in the light of those principles, which were framed in general terms.
288
In the second place, the applicants in the main proceedings were air transport undertakings and trade associations of such undertakings. They were therefore individual entities for which the principles of customary international law on which they relied did not, in principle, create rights, since, as the Court pointed out in paragraph 109 of the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), those principles appeared only to create obligations between States. As the applicant stated, in essence, in its observations on the Commission’s statement in intervention and at the hearing, the situation of such individual entities is not comparable with its situation in the present case as a representative of a third party to the agreement concluded by the contested decision, deriving from the principle of self-determination and the principle of the relative effect of treaties rights on which it may rely against that decision.
289
In the third place, Directive 2008/101, the validity of which was disputed by the applicants in the main proceedings, was an act adopted in the exercise of the European Union’s internal powers, and its scope had to be limited, in principle, to the territory of the European Union. Those parties, however, relied on the very principles of customary international law referred to in paragraph 103 of the judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), in order to claim, in essence, that the European Union had disregarded its powers in reasoning that the directive could apply to parts of international flights operated outside the airspace of the Member States (see, to that effect, judgment of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraphs 121 to 130).
290
In the present case, by contrast, the contested decision was adopted not within the framework of the internal powers of the European Union but within the framework of its external action, which is based, particularly under Article 21 TEU, on compliance with the principles of the Charter of the United Nations and of international law. As stated in paragraph 247 above in the context of the first plea, alleging that the Council lacked competence to adopt the contested decision, the mere fact that the agreement at issue is applicable to Western Sahara does not, in itself, constitute an infringement by the Council of a rule of international law limiting the powers of the European Union to conclude such an agreement.
291
It follows from all of the foregoing that, in the present case, the possibility of relying on the principle of self-determination and of the principle of the relative effect of treaties cannot be assessed in the light of the considerations 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), since those considerations were based on an assessment of the particular circumstances of that case, relating to the nature of the principles of international law relied on and of the contested act and to the legal situation of the applicants in the main proceedings, which are not comparable with the circumstances of the present case. In particular, the possibility of relying on the two principles referred to above cannot be limited, in the present case, to challenging the competence of the European Union to adopt the contested decision, since, on the one hand, the applicant relies on clear, precise and unconditional obligations that were incumbent on the European Union when it adopted that decision and, on the other hand, that reliance is intended to ensure respect for the rights of a third party to the agreement where those rights are liable to be affected by the breach of the said obligations.
292
In any event, as has been pointed out in paragraphs 267, 271 and 272 above, in the context of the present plea the applicant raises a complaint alleging, in essence, a breach on the part of the Council and of the Commission of their obligation 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 and, in particular, of their obligation to comply with the judgment in Council v Front Polisario, in support of an action brought against a decision adopted in response to that judgment. Consequently, in this context, the applicant cannot be denied the right to call into question the legality of the contested decision by relying, in that complaint, on such rules of a fundamental nature when the European Union is bound by those rules and when that decision was adopted in order to comply with the Court’s interpretation of those rules (see, to that effect and by analogy, judgment of 16 June 1998, Racke, C‑162/96, EU:C:1998:293, paragraphs 48 and 51 and the case-law cited).
293
Finally, it is clear that the Commission’s and Comader’s arguments relating to the specific possibility of relying on the principle of self-determination on the one hand and the principle of the relative effect of treaties on the other must be rejected.
294
On the one hand, as regards the Commission’s argument that the principle of self-determination enshrines a ‘collective’ right opening up an essentially political process, the outcome of which is not defined in advance, it must be noted that it is not apparent from paragraphs 88 to 106 of the judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973), that those alleged specific features of the right to self-determination must be taken into account in order to monitor compliance with the clear, precise and unconditional obligations referred to in paragraph 281 above.
295
In any event, the collective nature of the right to self-determination is irrelevant, since it is precisely the third party represented by the applicant which is the holder of that right. Similarly, the argument that the right to self-determination opens up a political process the outcome of which is not determined in advance rests, ultimately, on the erroneous premiss that the people of Western Sahara do not yet enjoy the right to self-determination by reason of the fact that, at the present stage, the process relating to the definitive status of that territory has not reached its conclusion, and so the people are unable to fully exercise that right. As the Court stated in paragraph 105 of the judgment in Council v Front Polisario, however, the UN bodies have acknowledged that the population of that territory do enjoy that right, and it is precisely on this basis that the applicant has been participating in this process. Consequently, the fact that the outcome of the process is not yet determined at this stage cannot preclude the possibility of relying on that principle.
296
On the other hand, as regards the possibility of relying on the principle of the relative effect of treaties, a principle of general international law which applies to any party to an international agreement (see, to that effect, judgment of 25 February 2010, Brita, C‑386/08, EU:C:2010:91, paragraph 44), it should be noted that the considerations set out in paragraphs 197 to 199 above can be applied, mutatis mutandis, to the question whether that principle may be relied on in the present action. In particular, as the applicant states in essence, it is necessary to distinguish between the consequences of non-compliance with the principle of the relative effect of treaties in the international legal order and the consequences, in the EU legal order, of an infringement by the institutions of an obligation arising from that principle, given the jurisdiction of the EU Courts to review fulfilment of that obligation.
297
It follows from all of the foregoing that, in the context of the present plea, the applicant may properly rely on the judgment in Council v Front Polisario and on the interpretation therein of the principle of self-determination and of the principle of the relative effect of treaties in support of the present plea. Accordingly, the plea is not invalid.
(b)
The merits of the arguments relied on by the applicant in support of the present plea
298
The applicant’s argument in support of the present plea consists, in essence, of 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, second, that the separate and distinct status of that territory has been violated, contrary to the principle of self-determination, and, third, that the requirement for the consent of the people of that territory, as a third party to the agreement at issue within the meaning of the principle of the relative effect of treaties, has not been met.
(1) The first part of the third ground of appeal, alleging that it is impossible for the European Union and the Kingdom of Morocco to conclude an agreement which is applicable to Western Sahara
299
By the first part of the third ground of appeal, the applicant submits that, as is apparent 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 is impossible in law, particularly because it would infringe the principle of self-determination and the principle of the relative effect of treaties. The agreement at issue is, in fact, intended to ‘perpetuate’ the de facto application of the Association Agreement to the part of that territory controlled by the Moroccan authorities, an application which had been ruled out by the first of those judgments.
300
In this regard, as noted in paragraph 187 above, in Council v Front Polisario the Court merely ruled out the possibility that, in the absence of an express stipulation extending to the territory of Western Sahara the scope of the Association Agreement, which is limited, as regards the Kingdom of Morocco, to its own territory, the Liberalisation Agreement could be interpreted as having made that extension.
301
First of all, the Court held that, in accordance with the principle of self-determination, Western Sahara, a non-self-governing territory within the meaning of Article 73 of the Charter of the United Nations, had been recognised by the UN General Assembly and by the ICJ as having a status separate from and distinct from that of any State, including the Kingdom of Morocco. Next, as regards the rule codified in Article 29 of the Vienna Convention, the Court held, in essence, that it followed from the said rule that a treaty could bind a State in respect of another territory only if such an intention was apparent from that treaty or was otherwise established. Lastly, the Court having noted that, in accordance with the principle of the relative effect of treaties, the implementation of the Association Agreement in the event of the inclusion of Western Sahara in the scope of the latter must receive the consent of the people of that territory, as a third party to that agreement, it held that the judgment of 10 December 2015, Front Polisario v Council (T‑512/12, EU:T:2015:953), did not indicate that the people of Western Sahara had manifested such consent. It concluded that those three rules of international law prevented that non-self-governing territory from being regarded as coming within the territorial scope of the Association Agreement and the Liberalisation Agreement by virtue of any tacit agreement between the European Union and the Kingdom of Morocco (Council v Front Polisario, paragraphs 92 to 116).
302
Furthermore, the Court held that practice subsequent to the conclusion of the Association Agreement could not justify interpreting that agreement and the Liberalisation Agreement as legally applicable to Western Sahara, since, contrary to the requirements of Article 31(3)(b) of the Vienna Convention, the General Court had not pursued the question whether this practice reflected the existence of an agreement between the parties and that a purported intention on the part of the European Union to implement those agreements in a manner inconsistent with the principles of self-determination and of the relative effect of treaties would have been irreconcilable with the principle of performing treaty obligations in good faith (Council v Front Polisario, paragraphs 122 to 125).
303
The decisions of the EU Courts referred to in paragraphs 42 and 44 above, which postdate the judgment in Council v Front Polisario, followed a similar line of reasoning and referred explicitly to that judgment. The cases which gave rise to those decisions concerned agreements between the European Union and the Kingdom of Morocco which did not contain explicit stipulations extending their territorial scope to Western Sahara or to the adjacent waters (see, to that effect, Western Sahara Campaign UK, paragraphs 62, 63, 71 to 73, 79 and 83; orders of 19 July 2018, Front Polisario v Council, T‑180/14, not published, EU:T:2018:496, paragraphs 44 to 69, and of 30 November 2018, Front Polisario v Council, T‑275/18, not published, EU:T:2018:869, paragraphs 27 to 41).
304
Conversely, in that case-law the EU Courts did not rule on disputes relating to any agreements between the European Union and the Kingdom of Morocco that contained an explicit stipulation including Western Sahara within their territorial scope.
305
As has just been recalled in paragraph 301 above, however, and as the Commission and the French Republic have pointed out, moreover, the Court held in Council v Front Polisario that the rule codified in Article 29 of the Vienna Convention does not preclude a treaty from being binding on a State with regard to a territory other than its own if such an intention is apparent from that treaty. In the present case, such an intention is explicitly apparent from the wording of the Joint Declaration on Western Sahara and is supported by recital 6 of the contested decision. Contrary to what the applicant asserts, the agreement at issue cannot therefore be regarded as ‘confirming’ a practice excluded by the relevant case-law. On the one hand, the latter did not entirely rule out the possibility that an agreement between the European Union and the Kingdom of Morocco might lawfully apply to Western Sahara. On the other hand, this application does not result, in the present case, from mere ‘practice’ but from the explicit terms of the agreement at issue itself, which reflect the common will of the parties, and in particular of the European Union. The present part of the plea must therefore be rejected.
306
It is appropriate to continue the examination of the present plea by considering its third part.
(2) The third part of the third plea, alleging infringement of the requirement that the people of Western Sahara had to consent to the agreement at issue, as a third party thereto, within the meaning of the principle of the relative effect of treaties
307
By the third part of the third plea, the applicant disputes, in particular, the validity of the consultations conducted by the Commission and the EEAS and the relevance of the report of 11 June 2018, which refers, inter alia, to those consultations. Those consultations and that report were centred on the benefits of the agreement at issue, the applicant argues, whereas the only relevant criterion specified by the Court was the consent of the people of Western Sahara to that agreement. Besides, according to the applicant, those consultations, in which the institutions and the Kingdom of Morocco were not competent to engage could not have had the aim or effect of obtaining that consent, on the ground that, first, such consent could not be the product of an informal consultation process and, second, the process involved entities established under Moroccan law and did not include those of the Western Saharan people who lived outside the area controlled by the Kingdom of Morocco. In addition, in recital 10 to the contested decision, the Council had changed the nature and scope of those consultations by considering them to be an expression of the consent of the ‘people concerned’. The applicant asserted that those considerations of the Council were not consistent with Council v Front Polisario, in particular paragraph 106 of that judgment.
308
The Council, the French Republic, the Commission and Comader maintain, in essence, that the consultations which were conducted complied with the applicable principles of international law, given the particular situation of Western Sahara which made it impossible to obtain the consent of its people directly or through the applicant and given the significant margin of appreciation of the institutions (see paragraphs 252 to 257 above).
309
Examination of this part of the plea involves examining, first, the application of the principle of the relative effect of treaties to the present case, second, the manner in which the institutions intended to comply, in this instance, with what recital 10 of the contested decision calls ‘the considerations on consent in the [Council v Front Polisario] ruling’ and, third, the merits of the arguments referred to in paragraph 307 above.
(i) Application of the principle of the relative effect of treaties to the present case
310
In the first place, it should be noted that, as is apparent from paragraphs 100 to 107 of the judgment in Council v Front Polisario and contrary to what Comader maintains, the principle of the relative effect of treaties is applicable to 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 grant either rights or obligations to the people of that territory has no effect 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 that is applicable to Western Sahara such as the agreement at issue.
311
In the second place, it should be noted that, in the judgment in Council v Front Polisario, the Court did not specify the criteria for determining whether the consent of the people of Western Sahara had been given to the implementation of the Association Agreement in that territory or the method by which that consent could be expressed, since it merely found that the judgment of 10 December 2015, Front Polisario v Council (T‑512/12, EU:T:2015:953), did not indicate that that people had expressed such consent.
312
Moreover, it does not appear that the UN bodies adopted a position on the question of the consent of the people of Western Sahara to an international agreement that applied to that territory. In this regard, it may be noted that the letter of 29 January 2002 from the UN Legal Counsel, the Assistant Secretary-General for Legal Affairs (hereinafter ‘the letter of 29 January 2002 from the UN Legal Counsel’), to which the Council refers does not express an opinion on that issue. On the one hand, the letter addresses the question of the legality of contracts governed by private law concluded between Moroccan public bodies and oil companies with a view to prospecting for and evaluating oil resources off the coast of Western Sahara and, on the other hand, it only expresses an opinion on the need to consider the interests and wishes of the population of that territory and not on the manner in which those interests and wishes are to be considered.
313
In the third place, it was recalled in paragraph 194 above that the general international legal principle of the relative effect of treaties, of which the rule in Article 34 of the Vienna Convention is a specific expression, states that treaties must neither harm nor benefit third parties without their consent.
314
In addition, Article 35 of the Vienna Convention makes the following stipulation:
‘An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.’
315
Article 36(1) of the Vienna Convention, moreover, stipulates that
‘A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides.’
316
It may be inferred from the provisions of Articles 35 and 36 of the Vienna Convention, which set out rules for States arising from the principle in customary law of the relative effect of treaties, that, unless otherwise specified, 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 confer a right on that people and that, conversely, their consent must be explicit with regard to any obligations which those same parties intend to impose on them.
317
That conclusion cannot be called into question by the argument of the Council and the Commission that the consent requirement cannot apply in the same way to a State and to a non-self-governing territory. On the one hand, although the provisions of the Vienna Convention refer only to relations between States, the principles it codifies are capable of applying to other subjects of international law (see, to that effect, Council v Front Polisario, paragraph 100). On the other hand, it must be stated that such a distinction is not apparent from paragraph 106 of the aforementioned judgment. In that paragraph, in fact, the Court did not highlight any substantive difference between the classification of the people of Western Sahara as a ‘third party’, within the meaning of the principle of the relative effect of treaties, and the classification of a State as a ‘third State’, within the meaning of Article 34 of the Vienna Convention.
318
In the present case, it should be emphasised that the agreement at issue is not intended to confer rights on the people of Western Sahara as a third party to it.
319
On the one hand, it is the Kingdom of Morocco, as a party to the agreement at issue, which is the beneficiary of the tariff preferences granted by the European Union to products from Western Sahara. That finding is confirmed by the fact that, as the applicant points out and as the Commission states in the explanatory memorandum to the proposal relating to the conclusion of the agreement at issue, the provisions of the Joint Declaration on Western Sahara do not alter the volume or categories of products covered by Protocol 1. The tariff preferences covering products originating in Western Sahara under the control of the Moroccan authorities are therefore granted within the limit of the total volumes determined by Protocol 1 for products of Moroccan origin and only for the categories of products which are covered by the latter protocol.
320
The Kingdom of Morocco, moreover, cannot be regarded as exercising those rights on behalf of the people of Western Sahara, since, in view of its position in that territory expressed in the third paragraph of the agreement at issue, and as Comader indicates in essence, it does not intend to grant them such rights.
321
On the other hand, although the agreement at issue is capable of creating rights with regard to exporters established in Western Sahara, those effects concern only individuals and not a third party that is subject to the agreement and capable of consenting to it. Furthermore, as regards the benefits which may be derived from that agreement by the population of that territory as a whole, they are, in any case, purely socioeconomic and not legal. These benefits are, moreover, indirect and so cannot be equated with rights granted to a third party within the meaning of the relative effect of the treaties.
322
Conversely, the effect of the agreement at issue is to impose an obligation on the third party in that it grants one of the parties to that agreement competence within the territory of the third party, which the latter is not therefore entitled to exercise itself or, as the case may be, delegate (see, to that effect, judgment of 25 February 2010, Brita, C‑386/08, EU:C:2010:91, paragraph 52). The assertion made by the Council that it is not in a position to exercise such competence at this stage, given its status as a non-self-governing territory and the situation currently prevailing in that territory, cannot override that finding or the need for that third party to consent to the said obligation.
323
It follows that the principle expressed in Article 36(1) of the Vienna Convention whereby, if a right arises for a third State from a provision of a treaty, that State’s assent to the treaty is to be presumed, unless the treaty otherwise provides, is not applicable in the present case. The expression of that consent must therefore be explicit.
324
In the fourth place, as regards 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 should be noted that, as is apparent from the third paragraph of the preamble to that convention, the principle of free consent, like the principle of good faith and the rule of ‘pacta sunt servanda’, constitutes a principle of ‘universally recognised’ law, which plays a fundamental role in the law of treaties.
325
Furthermore, it should be noted that, where a rule of international law requires the consent of a party or a third party, that rule implies, first, that the expression of that consent determines the validity of the instrument for which it is required, second, that the validity of that consent itself depends on its being ‘free and authentic’ and, third, that that instrument is enforceable against a party or third party who has validly consented to it (see, to that effect, the ICJ judgment of 12 October 1984, Delimitation of the maritime border in the Gulf of Maine, ICJ Reports 1984, p. 246, paragraphs 127 to 130 and 138 to 140, and the Advisory Opinion of the ICJ of 25 February 2019, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, ICJ Reports 2019, p. 95, paragraphs 160, 172 and 174; see also, to that effect and by analogy, judgment of 23 January 2014, Manzi and Compagnia Naviera Orchestra, C‑537/11, EU:C:2014:19, paragraph 47 and the case-law cited).
326
It must therefore be held that, in principle, the consent of the people of Western Sahara, as a third party within the meaning of paragraph 106 of the judgment in Council v Front Polisario to the agreement at issue, must satisfy the same requirements and produce the same legal effects as those set out in paragraph 325 above.
327
It is in the light of those considerations that the specific steps taken by the Council and the Commission in order to comply with the requirement set out in paragraph 106 of the judgment in Council v Front Polisario must be examined.
(ii) The consultations conducted by the Council and by the Commission in order to comply with the interpretation of the principle of the relative effect of treaties adopted in Council v Front Polisario
328
As a preliminary point, it should be recalled that, in recital 10 of the preamble to the contested decision, the Council states that ‘the Commission, in liaison with the European External Action Service, has taken all reasonable and feasible steps in the current context to adequately involve the people concerned in order to ascertain their consent to the agreement’. As confirmed by the explanations provided by the Council, the Commission and the French Republic before the General Court, it was in the context of those consultations that the institutions intended to take account of the ‘considerations on consent’ set out in paragraph 106 of the judgment in Council v Front Polisario.
329
In this regard, first, it is apparent from the Council’s explanations and the report of 11 June 2018 that, in the Council decision of 29 May 2017 authorising the Commission to open negotiations with the Kingdom of Morocco in accordance with Article 218(2) TFEU, it had attached two conditions to its authorisation, one relating to the Commission’s assessment of the ‘potential impact of the agreement [for the] sustainable growth [of Western Sahara]’ and the other requiring that ‘the people concerned by the agreement have been adequately involved’.
330
Second, in the report of 11 June 2018, in which the Commission reviews the evaluation and consultations which it carried out at the Council’s request, the Commission states:
‘With no other way of directly consulting people in Western Sahara, the Commission and the EEAS consulted a broad range of Sahrawi civil society organisations, MPs, economic operators and other organisations, including [the applicant]. […] The main aim of the consultation was to exchange views and comments on the potential benefits for the people and the economy of Western Sahara of extending the preferential treatment granted to Moroccan products to products imported from Western Sahara to the EU.’
331
More specifically, in the same report of 11 June 2018, the Commission states the following:
‘The consultation carried out by the Commission and the EEAS was threefold in nature. As a party to the negotiation, the Government of Morocco carried out a broad consultation of regional elected officials, under its own institutional rules, sharing its conclusions with the Commission and the EEAS. In addition, the Commission and the EEAS wished to consult as broad a range as possible of political, socio-economic and civil society organisations likely to represent Western Sahara’s local and regional interests. Finally, there were discussions with [the applicant], which is one of the parties to the UN-led peace process.’
332
Third, in the conclusions of that same report, the Commission summed up the results of the ‘consultation exercise’ targeting the ‘people concerned’ as follows:
‘The consultation process carried out by the Commission and the EEAS shows that most people now living in Western Sahara are very much in favour of the extension of tariff preferences to products from Western Sahara under the EU-Morocco Association Agreement. A positive opinion was also expressed by Western Saharan elected representatives to national, regional and local bodies following the awareness and consultation exercise carried out by the authorities among Moroccan institutions. That opinion is shared by a large majority of grass-roots socio-economic organisations in the region.’
333
By contrast, in the conclusions referred to in paragraph 331 above, the Commission states that ‘[the applicant] rejects the amendment to the EU-Morocco Association Agreement extending tariff preferences to products from Western Sahara, not because doing so would hamper development for people living there, but essentially because including Western Sahara in the Agreement is seen as consolidating Moroccan sovereignty over the territory.’
334
Thus, as the Commission explains in its statement in intervention, it considered that, on the one hand, given the impossibility of consulting the people of Western Sahara directly or through a single ‘legitimate’ representative and, on the other hand, in the interest of ‘non-interference’ in the ‘conflict of legitimacy between [the Kingdom of] Morocco and the applicant’, ‘since neither of these parties has an exclusive claim to legitimacy’, it was up to the Commission, in liaison with the EEAS, to ‘conduct consultations that were as “inclusive” as possible’ by broadening ‘the consultation basis beyond the interlocutors promoted by one or other of the parties and extending it, as far as possible, to civil society’. The Council approved this approach in recital 10 of the contested decision, stating that the Commission, in liaison with the EEAS, had ‘taken all reasonable and feasible steps in the current context to adequately involve the people concerned in order to ascertain their consent to the agreement [at issue].’
335
A number of conclusions may be drawn from these considerations.
336
First of all, it may be inferred that the institutions did not consider it possible, in practice, to obtain the consent of the people of Western Sahara, as a third party to the agreement at issue, either directly or solely through the applicant, because of the particular situation of that territory, but did consider that, in those circumstances, by consulting ‘representative organisations’ of the ‘people concerned’ with a view to obtaining their consent to the agreement, they could nevertheless comply as far as possible with the requirements that could be inferred from paragraph 106 of the judgment in Council v Front Polisario.
337
Next, it may be inferred that the concept of ‘people concerned’ referred to by the institutions encompasses, in essence, 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, albeit without prejudice, according to the report of 11 June 2018, to ‘consultation of the opinion of the Sahrawi people living abroad as refugees’, which would be rendered possible by ‘the applicant’s inclusion among the consulted parties’. This concept therefore differs from that of the ‘people of Western Sahara’ in that, on the one hand, 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 in particular from that people’s recognised right to self-determination.
338
Lastly, as the applicant has pointed out, in essence, the consultations conducted by the Commission and the EEAS are based on an approach comparable to that required by Article 11(3) TEU and 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.
339
However, it may be emphasised that, in principle, this approach only entails canvassing the opinions of the various parties concerned and taking them into account, in particular for the adoption of a proposed act, in the interests of consistency and transparency. Thus, while the consideration of those opinions is liable to influence whether or not that act is adopted, it does not produce legal effects comparable to those arising from the expression of the consent of a contracting party or a third party that is required for the adoption of such an act.
340
Consequently, when the Council refers to the consent of the ‘people concerned’ in recital 10 of the contested decision, that concept cannot be interpreted as having the legal import described in paragraph 325 above. As is apparent from the conclusions of the report of 11 June 2018 in particular, the institutions and organisations regarded as representative of the ‘people concerned’ by the Commission and by the EEAS and consulted both by them and by the Kingdom of Morocco merely expressed an opinion in favour of the conclusion of the agreement at issue. Conversely, that opinion cannot be regarded in itself as affecting the validity of the agreement and of the contested decision or as binding on those institutions and organisations or on the ‘people concerned’ themselves and so rendering the said agreement enforceable against them. The concept of consent referred to in the contested decision must therefore be understood, in that particular context, as referring only to that favourable majority opinion. It is in the examination of the merits of this part of the plea that it will be necessary to determine whether the particular meaning which the contested decision attributes to the concept of consent is compatible with the interpretation of the principle of the relative effect of treaties adopted by the Court in paragraph 106 of the judgment in Council v Front Polisario.
(iii) Whether the particular meaning attributed to the concept of consent in the contested decision is compatible with the interpretation of the principle of the relative effect of treaties adopted by the Court in Council v Front Polisario
341
As a preliminary point, it should be noted that the arguments relied on by the applicant in support of the present part of the third plea raise the question whether, in the light of the particular situation of Western Sahara, the Council was able to exercise its discretion to interpret the requirement for the people of that territory to express their consent to the agreement at issue to mean only ascertaining the favourable majority opinion of the ‘people concerned’ through the consultations conducted by the Commission and the EEAS.
342
In this regard, in the first place it should be borne in mind that, in the context of external relations, and in particular of commercial policy, the institutions enjoy a broad margin of appreciation, given the complexity of the assessments, particularly of a political and economic nature, which they are required to make in that context (see judgment of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 40 and the case-law cited). Moreover, in the context of an association agreement such as the one at issue in the present case, which constitutes a complex contractual entity comprising several strands and reflects the common will of the parties to establish close relations and, where appropriate, to intensify them (see, to that effect, judgment of 27 February 2018, Western Sahara Campaign UK, C‑266/16, EU:C:2018:118, paragraphs 59 to 61), the institutions must be able to reconcile the various interests arising in relations with the non-member State which is a partner of the European Union and determine the most appropriate strategy in that regard (see, to that effect and by analogy, order of 25 September 2019, Magnan v Commission, T‑99/19, EU:T:2019:693, paragraph 54 and the case-law cited).
343
Furthermore, the Court has held that, since a principle of customary international law does not have the same degree of precision as a provision of an international agreement, judicial review must necessarily be limited to the question whether, in adopting the act in question, the institutions of the European Union made manifest errors of assessment concerning the conditions for applying such a principle (see, to that effect, judgment of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraph 110 and the case-law cited).
344
This being the case, the Court has held, on the one hand, that judicial review of a manifest error of assessment requires that the EU institutions which have 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 (judgment of 7 September 2006, Spain v Council, C‑310/04, EU:C:2006:521, paragraph 122).
345
On the other hand, the Court, reviewing whether the condition that a decision authorising enhanced cooperation must be adopted as a last resort had been satisfied, held that it should ascertain whether the Council, which was best placed to determine whether the Member States were in a position to put forward proposals capable of leading to the adoption of legislation for the Union as a whole, had carefully and impartially examined those aspects that were relevant to this point and whether adequate reasons had been given for the conclusion reached by the Council (see, to that effect, judgment of 16 April 2013, Spain and Italy v Council, C‑274/11 and C‑295/11, EU:C:2013:240, paragraphs 52 to 54).
346
The Court’s considerations recalled in paragraphs 344 and 345 above, set out in the context of actions, first, against a legislative act and, second, against a Council decision to authorise enhanced cooperation, taken on the basis of Article 329(1) TFEU, in other words acts whose authors enjoy particularly broad discretion, may be applied, mutatis mutandis, to an action against a decision concluding an international agreement (see, to that effect, Opinion of Advocate General Wathelet in Council v Front Polisario, C‑104/16 P, EU:C:2016:677, points 224 to 227).
347
Moreover, the discretion of the institutions may be limited, including in the context of external relations, by a legal concept establishing objective criteria and guaranteeing the degree of foreseeability required by EU law (see, to that effect, judgment of 16 July 2014, National Iranian Oil Company v Council, T‑578/12, not published, EU:T:2014:678, paragraph 123).
348
In the present case, as observed in paragraph 281 above, by inferring, on the one hand, from the principle of self-determination, in the context of relations between the European Union and the Kingdom of Morocco, that the separate and distinct status of Western Sahara must be respected and, on the other hand, from the principle of the relative effect of treaties that the people of that territory must consent to any agreement between the European Union and the Kingdom of Morocco which would be implemented on that territory, the Court set out clear, unconditional and precise obligations imposed on the institutions in relation to the third party represented by the applicant.
349
Consequently, the margin of appreciation available to the Council to conclude an agreement with the Kingdom of Morocco explicitly applying to Western Sahara is legally circumscribed by the obligations referred to in paragraph 348 above. In particular, as regards 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 of 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 the said consent could be waived without infringing that requirement.
350
In the second place, reference was made in paragraph 203 above to the particular situation of Western Sahara, a non-self-governing territory whose administering Power, within the meaning of Article 73 of the Charter of the United Nations, has opted not to exercise any international responsibility and which is the subject of a process of self-determination that is still ongoing, since the participants in that process, namely the Kingdom of Morocco and the applicant, as the representative of the people of that territory, have not reached an agreement settling the status of that territory, particularly because of a ‘conflict of legitimacy’ that is preventing progress.
351
More specifically, it may be observed in the present case that there has not been any agreement to date between those parties whereby one of them has consented to the other party exercising customs and commercial powers for that territory, particularly in the framework of an international agreement applying to those powers, such as the agreement at issue.
352
In this regard, it should be noted that the Council states in recital 6 of the contested decision that ‘an agreement between the European Union and the Kingdom of Morocco is the only means of ensuring that the import of products originating in Western Sahara benefits from preferential origin, given that only the Moroccan authorities are able to ensure compliance with the rules necessary for the granting of such preferences’. It must therefore be inferred that it was with a view to drawing the appropriate conclusions from the particular situation of Western Sahara, described in paragraphs 350 and 351 above, that the Council decided to conclude the agreement at issue with the Kingdom of Morocco, which appeared to it to be the only one of the parties to the process for the self-determination of that territory which could exercise the powers required by that agreement, an inference that is confirmed, moreover, by the arguments relating to the applicant’s inability to exercise such powers that the Council and the Commission have advanced in the present proceedings.
353
However, as noted in paragraph 336 above, the institutions also considered that the particular situation of Western Sahara did not allow them, in practice, to obtain the consent of the people of that territory, as a third party to the agreement at issue, and that it was for them to consult the local populations of that territory with a view to obtaining their opinion on the conclusion of the agreement. In particular, the institutions considered that it was not possible to consult that people directly or through a single representative, namely the applicant, and that it was for them to conduct the most inclusive possible consultation so as not to become involved in the conflict of legitimacy between the applicant and the Kingdom of Morocco.
354
That being the case, it must be held that the various items of evidence relating to the particular situation of Western Sahara on which the Council and the Commission relied in order to justify the decision referred to in paragraph 353 above cannot be accepted.
355
First, with regard to the Council’s and the Commission’s argument that the requirement of consent is not capable of being applied in the same way to a State and to a non-self-governing territory, it was noted in paragraph 317 above that the principles codified by the Vienna Convention were capable of being applied to subjects of international law other than States and that, in any event, in paragraph 106 of the judgment in Council v Front Polisario, the Court of Justice had not identified a substantive difference between the characterisation of the people of Western Sahara as a ‘third party’ within the meaning of the principle of the relative effect of treaties and the characterisation of a State as a ‘third party’ within the meaning of Article 34 of the Vienna Convention.
356
Second, with regard to the principle relied on by the Commission, enshrined in the second sentence of Article 36(1) of the Vienna Convention, according to which the assent of a third party is presumed where an agreement creates benefits or rights for that third party, it must be recalled that, for the reasons set out in paragraphs 319 to 322 above, it was noted in paragraph 323 above that this principle was not applicable.
357
Third, with regard to the argument of the Council and the Commission relating to the difficulty in identifying the members of the people of Western Sahara, it must be held, as the applicant submits, that such a difficulty cannot, in itself, constitute an obstacle to that people being able to consent to the agreement at issue. Indeed, on the one hand it does not follow from the judgment of 21 December 2016, Council v Polisario Front (C‑104/16 P, EU:C:2016:973), or from the various principles of international law interpreted in that judgment, that the consent of that people should necessarily be obtained through a direct consultation of its members. In point of fact, the applicant itself does not support such an argument; on the contrary, it asserts in its reply that the institutions have no power to carry out that kind of consultation. On the other hand, as the applicant rightly points out, the right to self-determination is a collective right and the said people have been recognised by the UN bodies as having that right, and hence as existing, irrespective of the individuals of which they are composed and their number. Moreover, it may be inferred from paragraph 106 of the abovementioned judgment that the Court implicitly regarded that people as an autonomous subject of the law, capable of expressing their consent to an international agreement, irrespective of the identification of their members.
358
Fourth, as regards the need not to become involved in the ‘conflict of legitimacy’ between the applicant and the Kingdom of Morocco concerning Western Sahara which was cited by the Council and by the Commission, suffice it to note that this argument is difficult to reconcile with the fact that, as the Council itself points out, it explicitly stated in recital 10 of the contested decision that the text of the agreement at issue did not imply that it recognised the Kingdom of Morocco’s sovereignty over Western Sahara. Since the European Union cannot recognise, under international law and the Court’s interpretation of it, the Kingdom of Morocco’s claims to that territory, the institutions cannot cite the risk of becoming involved in the dispute between the applicant and that third State over those claims to justify refraining from taking the appropriate steps to assure itself of the consent of the people of that territory.
359
Fifth, irrespective of whether the consent of the people of Western Sahara can only be expressed through the applicant, the fact alleged by the Council in particular that Western Sahara is, at the present stage, a non-self-governing territory and therefore lacks the capacity to express its consent in the manner of an independent State is not decisive.
360
On the one hand, that line of argument is ultimately based on the incorrect premiss referred to in paragraph 295 above that the people of Western Sahara do not already enjoy the right to self-determination on the ground that the process relating to the definitive status of that territory has not yet been completed and that the said people are not in a position to fully exercise that right. As noted above, this premiss is not compatible with the Court’s observations regarding the recognition by the United Nations bodies of that people’s right to self-determination.
361
On the other hand, the alleged fact that the peoples of non-self-governing territories such as Western Sahara are not necessarily in a position to conclude a treaty with a view to the granting of trade preferences or of exercising the powers that such a treaty entails does not mean that they are not in a position to express their consent validly to such a treaty as a third party to it. In particular, it does not follow from the principle of the relative effect of treaties, as interpreted by the Court, that the consent of such a third party should necessarily be obtained itself by means of a treaty.
362
Sixth, the fact that the institutions consider the Kingdom of Morocco to be the ‘de facto administering Power’ in Western Sahara does not appear to preclude the need for the people of that territory to consent to the agreement at issue. In that regard, suffice it to note that, in paragraph 72 of the judgment in Western Sahara Campaign UK, the Court observed that 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.
363
Nor does it appear that the Kingdom of Morocco’s position has evolved, since, as Comader points out, that third State still considers that ‘the Sahara region is an integral part of its national territory over which [it] exercises its attributes of sovereignty to the full as it does over the rest of the national territory’. This position, which is recalled, moreover, in the third paragraph of the agreement at issue, is irreconcilable with the status of an administering Power within the meaning of Article 73 of the Charter of the United Nations, which implies, as indicated in UN General Assembly Resolution 2625 (XXV) (see paragraph 5 above) and as the applicant has pointed out, that a non-self-governing territory has a status separate and distinct from the territory of the State that administers it. In any event, even if it were accepted that the Kingdom of Morocco played the role of the ‘de facto’ administering Power with regard to Western Sahara, that circumstance could not render the consent of its people to the agreement at issue unnecessary, given their right to self-determination and the application of the principle of the relative effect of treaties.
364
Seventh, it should be recalled that, as was found in connection with the examination of the applicant’s standing, its participation in the self-determination process does not mean that it cannot represent that people in the context of an agreement between the European Union and the Kingdom of Morocco, and it is not apparent from the case materials that the UN bodies have recognised organisations other than the applicant as being authorised to represent that people (see paragraphs 207 and 208 above). Consequently, it was not impossible to obtain the people’s consent through the applicant. The argument of the Council and the Commission that this hypothesis assigns a ‘right of veto’ to that organisation over the application of the agreement at issue to that territory must be rejected. Suffice it to recall, in this regard, as stated in paragraph 349 above, that 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 contested agreement. Consequently, the claim that the applicant’s power to express that consent confers on it a ‘right of veto’ cannot justify such a decision.
365
It follows that the evidence relating to the particular situation of Western Sahara relied on by the Council and by the Commission is not such as to preclude the opportunity for the people of Western Sahara to express their consent to the agreement as a third party to it.
366
In the third place, as observed in paragraph 339 above, the sole purpose of the consultations conducted by the Commission and the EEAS was to obtain the opinion of the ‘people concerned’ on the agreement at issue and not the consent of the people of Western Sahara to it. Consequently, as the applicant rightly submits, those consultations cannot be deemed to comply with the requirements inferred by the Court from the principle of the relative effect of treaties, which is applicable to that people by virtue of their right to self-determination.
367
The argument of the Council, the French Republic, the Commission and Comader that the consultations in question comply with the relevant principles of international law cannot call this conclusion into question.
368
In this respect, on the one hand, the Council argues that the consultation carried out by the European Union was consistent with the relevant principles of international law, as it was conducted with representative bodies and with the aim of obtaining consent. In particular, the Council infers those criteria from Convention No 169 of the International Labour Organisation (ILO) Concerning Indigenous and Tribal Peoples in Independent Countries, adopted in Geneva on 27 June 1989, and from the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly on 13 September 2007. The purpose of the consultation in question, according to the Council, was therefore to ensure the widest possible participation of the bodies and organisations representing the people concerned. In that framework, it submitted, the Kingdom of Morocco had consulted, in particular, the elected representatives of the regions, who were directly elected by universal suffrage in 2015 and a significant proportion of whom came from local tribes. The Commission and the EEAS had consulted a wide range of local political and socio-political organisations and representatives of civil society as well as the applicant.
369
On the other hand, according to the Council, supported by the French Republic and the Commission, the institutions had relied on an objective criterion, namely whether or not the tariff preferences resulting from the Association Agreement for the peoples of Western Sahara were beneficial, which was consistent with the principles, a fact that could be ascertained from the UN Legal Counsel’s letter of 29 January 2002.
370
As regards the Council’s argument referred to in paragraph 368 above, suffice it to note that, as the applicant submits in essence, the criteria which the applicant infers from the aforementioned convention and declaration, namely that any consultation should be conducted with the bodies representing the people concerned and should have the aim of obtaining their consent, do not correspond to the requirements inferred by the Court from the principle of the relative effect of treaties, taken in conjunction with the principle of self-determination.
371
On the one hand, it should be noted at the outset, as has already been stated repeatedly, that the Council does not attribute to the concept of consent the legal effects that attach, in principle, to that concept in international law, since the Council does not focus, in the present case, on 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 on the favourable opinion of a majority of local people (see paragraphs 336 to 340 above).
372
Moreover, as the applicant points out in the report of 11 June 2018, the Commission does not refer to the concept of consent but merely states in its conclusions that ‘most people now living in Western Sahara are very much in favour of the extension of tariff preferences to products from Western Sahara under the EU-Morocco Association Agreement’. Similarly, it refers to the ‘positive opinion […] expressed by Western Saharan elected representatives to national, regional and local bodies following the awareness and consultation exercise carried out by the authorities among Moroccan institutions’. That opinion, it adds, is ‘shared by a large majority of grass-roots socio-economic organisations in the region’.
373
On the other hand, as explained in paragraph 337 above and as the applicant submits on several occasions in support of its action, especially in connection with this part of the plea, the concept of the ‘people concerned’ to which the institutions refer does not coincide with that of the ‘people of Western Sahara’, the substance of which implies the right to self-determination. Consequently, the institutions cannot maintain that those two concepts are equivalent in order to show that they have complied with the requirements arising from respect for that right.
374
In particular, it does not appear that the parties other than the applicant that were consulted by the Commission may be regarded as ‘representative bodies’ of the people of Western Sahara.
375
First, as regards the consultation of local elected representatives by the Kingdom of Morocco, it should be noted that, as the Commission states, those local and regional authorities have been established under the Moroccan constitutional order and that, as the applicant states, the exercise of their powers is essentially based on the Kingdom of Morocco’s claims to sovereignty over Western Sahara. Consequently, the institutions cannot consider, in any event, that the purpose of the consultations with those authorities which were conducted by that State, a party to the agreement at issue, was to obtain the consent of a third party to that agreement; at most, their purpose was to involve the local authorities and interested public bodies belonging to that State in the conclusion of the agreement.
376
The fact alleged by the Council that those elected representatives are of ‘Sahrawi origin’ is, in this regard, irrelevant, especially since, as the Commission stated in the report of 11 June 2018 and as the applicant points out, the Kingdom of Morocco does not distinguish on the basis of ethnicity or community between inhabitants of the part of Western Sahara which it controls.
377
Second, as regards the consultation by the Commission and by the EEAS of the various non-governmental organisations and economic operators referred to in the report of 11 June 2018, the Commission, when questioned in that regard by the Court in the context of a measure of organisation of procedure, stated that the EEAS and itself had relied essentially on three criteria when selecting those entities. Those criteria are: first, the actual presence of the entity in Western Sahara or its regular pursuit of activities there; second, the type of activity carried out by the entity (socioeconomic activities and activities relating to human rights); and, third, the importance or relevance of the activity carried out for the benefit of the population of Western Sahara and the recognition enjoyed by the entity within its sector of activity in Western Sahara or internationally. In its written reply, the Commission adds that most of the consulted interlocutors had stated that they were of Sahrawi origin.
378
In this regard, first, it may be noted that these selection criteria cannot be regarded as designed to select ‘representative bodies’ of the people of Western Sahara but, at most, a sample of entities engaged in activities in that territory, whether in the socioeconomic field or in the realm of fundamental rights, which are potentially beneficial to the local population. The Commission’s intimation that most of the consultees had said they were of ‘Sahrawi origin’ is irrelevant in that regard. It is apparent from the explanations given by the Commission that this origin did not constitute a criterion for selecting those entities and that, in any event, those interlocutors did not express themselves as members of the Sahrawi people but as representatives of the consulted entities.
379
On the other hand, it should be noted that those entities and bodies are, at most, representative of various grass-roots socioeconomic interests, but it is not apparent either from the report of 11 June 2018 or from the written pleadings of the Council and the Commission that those entities or bodies consider themselves or should be regarded as representative bodies of the people of Western Sahara and empowered to express the consent of that people. In any event, even if it is accepted that the criteria referred to in paragraph 368 above are applicable, it is not apparent from the case materials that they consider themselves or that they should be regarded as ‘representative bodies’ of the ‘people concerned’.
380
What is more, it should be added that the representativeness of the entities and bodies consulted by the Commission and by the EEAS is disputed by the applicant, which maintains, on the one hand, that the vast majority of the organisations that the Commission claims to have consulted in the report of 11 June 2018 did not in fact participate in that consultation (94 out of 112 organisations listed in the annex to the report) and which backs up this assertion with precise and concrete evidence. On the other hand, the applicant asserts that the vast majority of any entities consulted by the Commission are either Moroccan operators or organisations sympathetic to the interests of the Kingdom of Morocco. The Council and the Commission do not dispute the first of these assertions, and the information provided by the Commission concerning the entities that were actually consulted tends to confirm the second assertion.
381
Third, the applicant itself asserts that the meeting held in Brussels on 5 February 2018 between its representative and that of the EEAS was not, as such, part of the consultation process referred to in paragraph 377 above. In fact, the applicant challenges the very principle of that consultation process, asserting that the Commission and the EEAS lacked competence to conduct it and stating that that meeting had been organised at the applicant’s own request with the sole aim of resuming its dialogue with the Commission. For its part, the Commission states in the report of 11 June 2018 that ‘technical discussions’ took place with the applicant in its capacity as ‘an interlocutor with the UN and a party to the UN-led peace process for Western Sahara’.
382
However, in so far as the applicant’s opinion concerning the agreement at issue was nevertheless taken into account in the report of 11 June 2018, as was that of the other entities cited in that report, it must be noted, in any event, that the Commission did not consider that the applicant was a representative body of the people of Western Sahara empowered to express their consent but, at most, one of the numerous ‘parties concerned’ within the meaning of Article 11(3) TEU that the Commission was required to consult pursuant to that provision.
383
It cannot, therefore, be considered that the consultations referred to in the report of 11 June 2018 were held with ‘representative bodies’ of the people of Western Sahara, but, at most, as the applicant essentially indicates, with ‘parties concerned’ which the institutions were likely, in any event, to involve in the conclusion of the agreement at issue, in accordance with the Treaties, irrespective of the ‘considerations on consent’ in the ruling of the Court of Justice that are referred to in recital 10 of the contested decision.
384
It therefore follows from paragraphs 371 to 383 above that the consultations conducted at the request of the Council by the Commission and by the EEAS cannot be regarded as having served to obtain 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.
385
Turning to the interpretation of international law advocated by the Council – supported, in this respect, by the Commission and by the French Republic – and based on the letter of 29 January 2002 from the UN Legal Counsel (see paragraph 369 above), first, it should be noted, as recalled in paragraph 111 above, that the European Union constitutes an autonomous legal system. It follows that the institutions cannot avoid the obligation to comply with the Court’s interpretation of the rules of international law that apply to agreements relating to a non-self-governing territory by substituting for that interpretation different criteria derived from a letter from the UN Legal Counsel to the Security Council, which is, moreover, non-binding.
386
Furthermore, the opinions of the UN Legal Counsel are issued to the UN bodies in connection with the functions of the Secretariat of that international organisation under Article 98 of the Charter of the United Nations. Their scope is therefore not equivalent to that of advisory opinions delivered in accordance with Article 96 of that charter by the ICJ, the principal judicial body of the United Nations under Article 92 of that charter, which determine the law applicable to the question referred (see, to that effect, Advisory Opinion of 25 February 2019, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, ICJ Reports 2019, p. 95, paragraph 137).
387
Second, it should be noted, as pointed out in paragraph 312 above, that the letter of 29 January 2002 from the UN Legal Counsel did not concern the issue of the consent of the people of Western Sahara to an international agreement applicable to that territory but that of the legality of contracts under private law concluded between Moroccan public bodies and oil companies for the purpose of prospecting and assessing oil resources off the coasts of Western Sahara.
388
Third, it should be noted that, in his letter of 29 January 2002, the UN Legal Counsel examined the Security Council’s question on the basis of analogies with the question whether, more generally, the activities of an administering Power, within the meaning of Article 73 of the Charter of the United Nations, relating to the mineral resources of a non-self-governing territory are unlawful per se or only under certain conditions. As stated in paragraphs 362 and 363 above, the Kingdom of Morocco does not intend to be regarded as an administering Power in respect of Western Sahara and cannot be regarded as such, given its position on the status of that territory, a position which, moreover, is reflected in the preamble to the agreement at issue.
389
Fourth, it follows from the ‘Conclusions’ section of the UN Legal Counsel’s letter of 29 January 2002 that the UN Legal Counsel considers that exploitation of the natural resources of non-self-governing territories infringes the principles of international law that apply to those territories if that exploitation is undertaken in disregard of the interests and wishes of the peoples of those non-self-governing territories. Thus, even if those conclusions could be applied, by analogy, to the extension of the trade preferences granted by the European Union under the Association Agreement, it must be held that they do not support the argument of the Council, the Commission and the French Republic that the institutions complied with the applicable principles of international law. It follows expressly that the prospecting and exploitation activities carried out in Western Sahara must be consistent not only with the interests of the people of that territory but also with their will and that, failing this, they are contrary to those principles.
390
Consequently, the Council and the Commission could not, in any event, rely on the UN Legal Counsel’s letter of 29 January 2002 to argue that the agreement at issue was consistent with the principles of international law applicable to non-self-governing territories, since it was possible to regard the agreement as beneficial to the economic development of Western Sahara, irrespective of whether the consent of the people of Western Sahara had been expressed. The applicant is thus correct in maintaining that the institutions could not substitute the requirement of an expression of consent set by the Court in paragraph 106 of the judgment in Council v Front Polisario with the criterion of benefits from the agreement at issue for the people concerned.
391
It follows from all of the foregoing that, in adopting the contested decision, the Council did not take sufficient account of all the relevant factors concerning the situation in Western Sahara and wrongly took the view that it had a margin of appreciation to decide whether it was necessary to comply with the requirement that the people of that territory must express their consent to the application of the agreement at issue, as a third party to that agreement, in accordance with the Court’s interpretation of the principle of the relative effect of treaties in relation to the principle of self-determination. In particular, first, the Council and the Commission were wrong to take the view that the current situation in that territory did not make it possible to ascertain the existence of that consent and, in particular, to do so through the agency of the applicant. Second, in taking the view that the consultation process conducted by the Commission and by the EEAS, which was not intended to obtain such consent and was not addressed to ‘representative bodies’ of that people, had made it possible to comply with the principle of the relative effect of treaties as interpreted by the Court in paragraph 106 of Council v Front Polisario, the Council was mistaken as to both the scope of that consultation and the scope of the requirement set in that paragraph. Third, the Council was wrong to consider that it could rely on the letter of 29 January 2002 from the UN Legal Counsel to substitute that requirement with the criteria purportedly established by that letter. It follows that this part of the third plea is well founded and is capable of leading to annulment of the contested decision.
392
It follows from all of the foregoing that, without there being any need to examine the second part of the third plea and the other pleas in law in the application, the contested decision must be annulled.
C. The maintenance in time of the effects of the contested decision
393
Under the second paragraph of Article 264 TFEU the Court may, if it considers this necessary, state which of the effects of an act which it has declared void are to be considered as definitive.
394
In this respect, it is clear from the Court’s case-law that the effects of a contested act, in particular the decision to conclude an international agreement, may be maintained on grounds of legal certainty where the immediate effects of annulling that act would give rise to serious negative consequences (see, to that effect, judgments of 28 April 2015, Commission v Council, C‑28/12, EU:C:2015:282, paragraph 60 and the case-law cited, and of 4 September 2018, Commission v Council(Agreement with Kazakhstan), C‑244/17, EU:C:2018:662, paragraph 51).
395
In the present case, the annulment of the contested decision with immediate effect may have serious consequences for the European Union’s external action and call into question the legal certainty of the international commitments to which it has consented and which are binding on the institutions and the Member States.
396
In these circumstances, it is appropriate for the Court to apply, of its own motion, 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 delivery of the judgment of the Court of Justice on that appeal.
Costs
397
Under Article 134(1) of the Rules of Procedure, an unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
398
Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
399
In accordance with Article 138(1) of the Rules of Procedure, the French Republic and the Commission are to bear their own costs.
400
Under Article 138(3) of the Rules of Procedure, the General Court may order that an intervener other than the parties referred to in paragraphs 1 and 2 of that article is to bear its own costs.
401
In the present case, it must be decided that Comader is to bear its own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber, Extended Composition)
hereby:
1.
Annuls 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.
2.
Orders the effects of Decision 2019/217 to be maintained for a period that 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 delivery of the judgment of the Court of Justice on that appeal.
3.
Orders the Council of the European Union to bear its own costs and to pay those incurred by the Front populaire pour la libération de la Saguia el-Hamra et du Rio de Oro (Front Polisario).
4.
Orders the French Republic, the European Commission and the Confédération marocaine de l’agriculture and du développement rural (Comader) to bear their own costs.
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. Association Agreement and Liberalisation 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
II. Procedure and forms of order sought
III. Law
A. Admissibility of the action
1. The Council’s first plea of inadmissibility, based on the applicant’s lack of capacity to be a party to legal proceedings
2. The validity of the authority to act given by the applicant to its lawyer
3. The Council’s second ground of inadmissibility, based on the applicant’s lack of standing
(a) The applicant’s direct concern
(1) The applicant’s compliance with the first criterion of direct concern, according to which the contested measure must directly affect its legal situation
(i) 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
(ii) The second part of the Council’s argument, relating to the specific legal effects of the contested decision, given its territorial application
– The application of the agreement at issue to Western Sahara
– The effect of the agreement at issue on the people of Western Sahara as a third party
(iii) The third part of the Council’s argument, asserting that there has been no change in the applicant’s legal situation, given that its role is limited to participation in the self-determination process for Western Sahara
(2) The second criterion of direct concern, relating to the purely automatic nature of the implementation of the contested measure and to its resulting from EU rules alone
(b) The applicant’s individual concern
B. Merits of the action
1. The first plea, alleging lack of competence on the part of the Council to adopt the contested decision
2. The third plea, alleging, in essence, breach of the Council’s obligation to comply with the requirements derived by case-law from the principle of self-determination and from the principle of the relative effect of treaties
(a) The arguments of the Council, the French Republic, the Commission and Comader alleging, in essence, that the third plea in law is invalid
(b) The merits of the arguments relied on by the applicant in support of the present plea
(1) The first part of the third ground of appeal, alleging that it is impossible for the European Union and the Kingdom of Morocco to conclude an agreement which is applicable to Western Sahara
(2) The third part of the third plea, alleging infringement of the requirement that the people of Western Sahara had to consent to the agreement at issue, as a third party thereto, within the meaning of the principle of the relative effect of treaties
(i) Application of the principle of the relative effect of treaties to the present case
(ii) The consultations conducted by the Council and by the Commission in order to comply with the interpretation of the principle of the relative effect of treaties adopted in Council v Front Polisario
(iii) Whether the particular meaning attributed to the concept of consent in the contested decision is compatible with the interpretation of the principle of the relative effect of treaties adopted by the Court in Council v Front Polisario
C. The maintenance in time of the effects of the contested decision
Costs
(
*1
)	Language of the case: French.