62021CJ0779_RES
Joined Cases C‑779/21 P and C‑799/21 P
European CommissionandCouncil of the European Union
v
Front populaire pour la libération de la Saguia-el-Hamra et du Rio de oro(Front Polisario)
Judgment of the Court (Grand Chamber) of 4 October 2024
(Appeals – External action – International agreements – 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 – Agreement on the amendment of Protocols 1 and 4 to that agreement – Concluding act – Allegations of infringements of international law resulting from the applicability of that second agreement to the territory of Western Sahara – Action for annulment – Admissibility – Capacity to be a party to legal proceedings – Locus standi – Condition that an applicant must, in certain cases, be directly and individually concerned by the measure in question – Principle of the relative effect of treaties – Principle of self-determination – Non-self-governing territories – Article 73 of the Charter of the United Nations – Discretion of the Council of the European Union – Customary international law – General principles of EU law – Consent of the people of a non-self-governing territory which holds a right to self-determination as a third party to an international agreement)
Action for annulment – Natural or legal persons – Acts that are of direct and individual concern to them – Direct concern – Individual concern – Criteria – Agreement between the European Union and the Kingdom of Morocco amending the protocols to the Euro-Mediterranean Agreement – Decision 2019/217 – Taking into account the actual content of the international agreement and its legal effects on a third territory – Products originating in a non-self-governing territory – Exercise of the right to self-determination – Whether the people of Western Sahara is directly and individually concerned – Conditions
(Art. 263, fourth para., TFEU; Decision 2019/217)
(see paragraphs 86-95, 99, 107, 108)
Action for annulment – Natural or legal persons – Acts of direct concern to them – Direct concern – Agreement between the European Union and the Kingdom of Morocco amending the protocols to the Euro-Mediterranean Agreement – Decision 2019/217 – Act relating only to relations between the Union and its Member States – Purely automatic implementation
(Art. 263, fourth para., TFEU; Decision 2019/217)
(see paragraph 96)
Action for annulment – Jurisdiction of the Court – Acts of the institutions – Examination of whether an international agreement concluded by the Union is compatible with the Treaties – Admissibility – Act notifying the other party of the approval of the international agreement – Lack of jurisdiction
(Art. 19(3)(b) TEU; Art. 267, first para., point (b), TFEU; Decision 2019/217)
(see paragraphs 97, 98)
International agreements – European Union Agreements – Agreements governed by international law – Treaties and third States – Negotiation and conclusion – Principle of free consent – People of a non-self-governing territory and population of that territory – Concept of population – Inhabitants of a territory – Included – Concept of people – Political unit and status of holder of the right to self-determination – Included
(Art. 21(2) TEU)
(see paragraph 129)
International agreements – European Union Agreements – Agreements governed by international law – Application of the Vienna Convention on the Law of Treaties – Treaties and third States – Negotiation and conclusion – Principle of free consent – People of a non-self-governing territory and population of that territory – Obligation to obtain the consent of that people – Consultation of the people concerned – Breach of that obligation
(Art. 21(2) TEU)
(see paragraph 130)
International agreements – European Union Agreements – Agreements governed by international law – Application of the Vienna Convention on the Law of Treaties – Treaties and third States – Negotiation and conclusion – Principles – Treaties not imposing any obligations, or conferring any rights, on third States – Scope
(Art. 21(1) TEU)
(see paragraphs 131, 132)
International agreements – European Union Agreements – Council Decision on the agreement between the European Union and the Kingdom of Morocco amending the protocols to the Euro-Mediterranean Agreement – Agreements governed by international law – Application of the Vienna Convention on the Law of Treaties – Treaties and third States – Negotiation and conclusion – Principle of free consent – People of a non-self-governing territory and population of that territory – Consultation of the population – Obligation to obtain the consent of that people – Infringement – Effects on the validity of the conclusion of the agreement – Whether the Council has discretion – Irrelevant
(Arts 3(5) and 21(1)TEU; Art. 207(1) TFEU; Agreement between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the EC-Morocco Euro-Mediterranean Association Agreement, recital 10; Decision 2019/217)
(see paragraphs 133-136, 145)
International agreements – European Union Agreements – Interpretation – Jurisdiction of the EU judicature – Conditions – Agreements governed by international law – Application of the Vienna Convention on the Law of Treaties – Treaties and third States – Principle of free consent – Requirements and legal effects in the context of the exercise by a people of its right to self-determination – Non-self-governing territory – Requirement that there be explicit consent – Error of law
(Agreement between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the EC-Morocco Euro-Mediterranean Association Agreement; Decision 2019/217)
(see paragraphs 141, 144, 146-149, 157)
International agreements – European Union Agreements – Interpretation – Jurisdiction of the EU judicature – Conditions – Agreements governed by international law – Application of the Vienna Convention on the Law of Treaties – Treaties and third States – Principle of free consent – Requirements and legal effects in the context of the exercise by a people of its right to self-determination – Non-self-governing territory – Implicit consent – Conditions – Specific, tangible, and substantial benefit derived from the exploitation of that territory’s natural resources – Requirement not met – Lack of consent
(Article 21(1) TFEU; Agreement between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the EC-Morocco Euro-Mediterranean Association Agreement; Decision 2019/217)
(see paragraphs 152-156, 158-160, 162)
Action for annulment – Jurisdiction of the EU judicature – Acts of the institutions – Request for examination of whether an international agreement concluded by the Union is compatible with international law – Admissibility
(Article 21(1) TFEU; Agreement between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the EC-Morocco Euro-Mediterranean Association Agreement; Decision 2019/217)
(see paragraphs 172-176)
Appeal – Appeal held to be unfounded – Judgment under appeal annulling the contested decision and maintaining the effects of that decision pending the delivery of the judgment of the Court of Justice – Effects of the contested decision maintained by the Court – Justification on grounds of legal certainty
(Article 264, second para., TFEU; Agreement between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the EC-Morocco Euro-Mediterranean Association Agreement; Decision 2019/217)
(see paragraphs 183-186)
Résumé
The Court of Justice, sitting as the Grand Chamber, dismisses, by two judgments joining (i) Cases C‑778/21 P and C‑798/21 P and (ii) Cases C‑779/21 P and C‑799/21 P, the appeals brought by the European Commission and the Council of the European Union against two judgments of the General Court which had annulled the decisions of the Council approving the conclusion of agreements between the European Union and the Kingdom of Morocco, following actions for annulment brought by the Front populaire pour la libération de la Saguia-el-Hamra et du Rio de oro (Front Polisario) against those decisions.
By Decision 2019/217, (
1
) the Council had approved the conclusion of an agreement between the European Union and the Kingdom of Morocco on the amendment of certain protocols to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part. (
2
) The Council had also approved, by Decision 2019/441, (
3
) the conclusion of a fisheries partnership agreement between the European Union and the Kingdom of Morocco and the Implementation Protocol thereto, as well as the Exchange of Letters accompanying the Agreement, and, by Regulation 2019/440, the allocation of fishing opportunities under that agreement and the Implementation Protocol thereto. (
4
) Those two decisions were taken in response to the judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973), whereby the Court of Justice had, inter alia, explained that the Euro-Mediterranean Association Agreement covered only the territory of the Kingdom of Morocco and not the non-self-governing territory of Western Sahara, and the judgment of 27 February 2018, Western Sahara Campaign UK (C‑266/16, EU:C:2018:118), in which the Court had followed a broadly similar line of reasoning with regard to fisheries agreements with the Kingdom of Morocco concerning the waters adjacent to Western Sahara.
The agreement approved by Decision 2019/217 amended the protocols to the Euro-Mediterranean Association Agreement relating to the arrangements applying to (i) imports into the European Union of agricultural products, fish and fishery products originating in Morocco and (ii) the definition of ‘originating products’, extending to products originating in Western Sahara and exported subject to controls by the Moroccan customs authorities the tariff preferences given to products of Moroccan origin exported to the European Union. The fisheries agreement between the European Communities and Morocco, (
5
) for its part, was amended to include the waters adjacent to the territory of Western Sahara within its scope.
By applications lodged in 2019 contesting those measures in three Front Polisario v Council cases (T‑279/19, T‑344/19 and T‑356/19), Front Polisario had sought the annulment of the contested decisions and the contested regulation.
The General Court, in the case which gave rise to the judgment in Front Polisario v Council (T‑279/19), (
6
) on the one hand, and in the joined cases which gave rise to the judgment in Front Polisario v Council (T‑344/19 and T‑356/19), (
7
) on the other, annulled the contested decisions and the contested regulation on the ground that the requirement relating to the consent of the people of Western Sahara had not been met. It held that the Council had not taken sufficient account of all the relevant factors concerning the situation in Western Sahara and had wrongly taken the view that it had a margin of appreciation with regard to compliance with the requirement that the people of that territory had to consent to the application of the agreements at issue in that territory, as a third party to those agreements in accordance with the principle of the relative effect of treaties in relation to the principle of self-determination.
The Council and the Commission have each brought an appeal against those judgments before the Court of Justice.
Findings of the Court
The admissibility of the actions for annulment brought before the General Court by Front Polisario
A. Capacity of Front Polisario to be a party to legal proceedings
In the first place, the Court of Justice recalls that any natural or legal person may, under certain conditions, 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. However, the Court has previously recognised the capacity of entities to be parties to legal proceedings before the Courts of the European Union irrespective of whether they are constituted as legal persons under national law.
Front Polisario is a self-proclaimed liberation movement which was created for the purpose of fighting for the independence, with regard to the Kingdom of Morocco, of the non-self-governing territory of Western Sahara, and for the creation of a sovereign Sahrawi State. In so far as that movement seeks precisely, relying on the exercise of the people of Western Sahara’s right to self-determination, to establish a state legal order for that territory, it cannot be required, in order to be recognised as having capacity to be a party to legal proceedings before the Courts of the European Union, to be constituted as a legal person under a particular national legal order. Furthermore, Front Polisario is one of the legitimate interlocutors in the process conducted, with a view to determining the future of Western Sahara, under the auspices of the United Nations Security Council, the decisions of which are binding on all the EU Member States and institutions. Accordingly, Front Polisario, which also maintains bilateral legal relations at international level, has sufficient legal existence to be able to be a party to legal proceedings before the Courts of the European Union. (
8
) Consequently, the Court of Justice considers that the General Court could, without erring in law, conclude that Front Polisario had the capacity to be a party to legal proceedings before the Courts of the European Union, within the meaning of the fourth paragraph of Article 263 TFEU.
B. Locus standi of Front Polisario
In the second place, the Court of Justice examines the locus standi of Front Polisario. As regards the question whether Front Polisario is directly concerned by the contested decisions and the contested regulation, the Court recalls, first of all, the two cumulative conditions which must be satisfied in that regard, namely that the measure being contested, first, directly affects the legal situation of the person in question and, second, that it leaves no discretion to the addressees who are entrusted with the task of implementing it.
The Court of Justice states, in that regard, that, by its actions for annulment before the General Court, Front Polisario was seeking to protect the people of Western Sahara’s right to self-determination (
9
) and that it is therefore in the light of the effects of the contested acts and, accordingly, of the agreements at issue on the legal situation of that people, that it is necessary to examine whether Front Polisario is directly concerned by the contested acts.
The Court of Justice recalls that, although it has not been officially recognised as being the exclusive representative of the people of Western Sahara, Front Polisario is, according to the resolutions of the highest bodies of the United Nations, a privileged interlocutor with a view to determining the future status of Western Sahara. Those particular circumstances allow the finding that Front Polisario is entitled to contest, before the EU judicature, the legality of an act of the Union which directly affects the legal situation of that people. In that regard, the contested acts and, by extension, the agreements at issue, satisfy, through their impact on the people of Western Sahara’s right to self-determination, the legal condition that a natural or legal person must be directly concerned by the decision which that person is contesting. Taking into account Article 73 of the Charter of the United Nations and the principle of effective judicial protection, that condition must be assessed, in this instance, in relation to the legal situation of the people of Western Sahara, which is represented for the purposes of the present cases by Front Polisario.
Furthermore, the decision concluding an international agreement constitutes a definitive act in the internal legal order of the European Union, expressing the will of the Union to be bound by that agreement. The Court, which does not have jurisdiction to annul an international agreement, recalls that such a decision constitutes an act which is open to challenge. By contrast, contrary to the assertions of some parties, the act of notifying the other contracting party of the approval of such an agreement constitutes an implementing measure which, in principle, must be regarded as an act which is not open to challenge.
The Court of Justice concludes from this that Front Polisario was directly concerned by the decisions at issue and that the General Court did not err in law in that regard.
As regards whether Front Polisario is individually concerned, the Court of Justice also confirms the approach adopted by the General Court, according to which, in view of the circumstances which led to the finding that Front Polisario was directly concerned, it had to be regarded as being individually concerned by the contested decisions. The Court of Justice holds, in that regard, that the people of Western Sahara, represented by Front Polisario, is individually concerned by the decision at issue, in so far as the express inclusion of the territory of Western Sahara in the scope of the agreements at issue, which is binding on the European Union by virtue of the decisions at issue, changes the legal situation of that people because of its status as holder of the right to self-determination with regard to that territory, with that status differentiating it from all other persons or entities, including any other subject of international law.
The consent of the people of Western Sahara to the agreements at issue, and the extent of the judicial review carried out by the General Court
According to the decisions at issue, the agreements in question were approved by the Union after the Commission, in liaison with the European External Action Service, took ‘all reasonable and feasible steps … to adequately involve the people concerned in order to ascertain their consent to the [agreements]’. (
10
) However, the Court of Justice notes, in that regard, that the majority of the current population of Western Sahara is not part of the people holding the right to self-determination, namely the people of Western Sahara, which for the most part has been displaced. It adds that there is a difference between the concept of the ‘population’ of a non-self-governing territory and that of the ‘people’ of that territory. The latter refers to a political unit which holds the right to self-determination, whereas the concept of ‘population’ refers to the inhabitants of a territory.
Next, the Court recalls that, according to the general international law principle of the relative effect of treaties, treaties do not impose any obligations, or confer any rights, on third States. A third party may, in that regard, be affected by the implementation of an agreement in the event that a territory with regard to which that third party has sovereignty or holds the right to self-determination is included in the scope of that agreement. The implementation of an international agreement between the European Union and the Kingdom of Morocco in the territory of Western Sahara must therefore receive the consent of the people of Western Sahara. (
11
) Given that the Union’s action on the international scene must contribute, in particular, to the strict observance of international law, and to respect for the principles of the Charter of the United Nations, (
12
) the Court emphasises that a lack of consent by the people of Western Sahara to such agreements, the implementation of which extends to the territory of Western Sahara or to the waters adjacent thereto, is capable of affecting the validity of the acts of the Union concluding those agreements.
The need for the consent of the people of Western Sahara and the identification of Front Polisario as the entity to which that consent is to be expressed
The Court of Justice notes, first of all, that the General Court erred in law when it found that the agreements at issue, by granting the Moroccan authorities certain powers, to be exercised in the territory of Western Sahara, imposed an obligation on the people of Western Sahara. (
13
) Indeed, although the implementation of the agreements at issue means that the acts of the Moroccan authorities carried out in the territory of Western Sahara have legal effects changing the legal situation of the people of that territory, this does not however allow the finding that those agreements create legal obligations for that people as a subject of international law. In that regard, the agreements at issue do not mean that the European Union recognises the alleged sovereignty of Morocco over Western Sahara. Similarly, the people of Western Sahara is not, for example, the addressee of the fishing authorisations or other administrative acts drawn up by the Moroccan authorities in connection with the implementation of the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, which it would be required to recognise; nor is it the addressee of the measures taken by the EU authorities and by the authorities of the Member States with regard to them. The Court of Justice therefore considers that the General Court relied on an incorrect premiss when it found that the expression of the people of Western Sahara’s consent to the agreement at issue had to be explicit.
However, the Court of Justice notes that customary international law does not provide that the consent of a third party that is subject to an agreement which confers a right on that third party is to be expressed in a particular form (
14
) and does not exclude the possibility that such consent may be granted implicitly in certain circumstances. Thus, the consent of a people of a non-self-governing territory to an international agreement in respect of which it has the status of a third party and which is to be applied in the territory to which its right to self-determination relates may be presumed so long as two conditions are satisfied. First, the agreement in question must not give rise to an obligation for that people. Second, the agreement must provide that the people itself receives a specific, tangible, substantial and verifiable benefit from the exploitation of that territory’s natural resources which is proportional to the degree of that exploitation. The agreement in question must also provide for a regular control mechanism enabling it to be verified whether the benefit granted to the people in question is in fact received by that people. Fulfilment of those conditions is necessary in order to ensure that such an agreement is compatible with the principle, derived from Article 73 of the Charter of the United Nations and enshrined in customary international law, that the interests of the peoples of non-self-governing territories are paramount.
Where those two conditions are satisfied, the consent of the people concerned must be held to have been obtained. Accordingly, the fact that a movement which presents itself as the legitimate representative of that people objects to that agreement cannot, as such, be sufficient to call in question the existence of such consent. That presumption may nonetheless be reversed so long as legitimate representatives of that people establish that the system of benefits conferred on that people by the agreement in question, or the regular control mechanism which must accompany it, does not satisfy those conditions.
In this instance, the Court finds that the agreements at issue, although they change the legal situation of the people of Western Sahara in EU law with regard to the right to self-determination which that people holds, do not give rise to legal obligations for that people as a subject of international law. The first of those two conditions is therefore satisfied.
Regarding the second condition, the Court finds that any benefit for the people of Western Sahara which displays the characteristics previously listed is manifestly absent from the agreements at issue. It also states that, while an agreement should, in the future, benefit the people of Western Sahara in accordance with those requirements, the possibility that that agreement might also benefit the inhabitants of that territory in general is not such as to prevent a finding of presumed consent on the part of that people.
Whether international law can be relied upon
The Court recalls that the European Union is bound, when exercising its powers, to observe international law, and that the Court therefore has jurisdiction, in the context of an action for annulment, to assess the compatibility with the rules of international law of an international agreement concluded by the European Union. In accordance with the Treaties, those rules are binding on the Union, and the review by the Court of the validity of the act by which the European Union has concluded such an international agreement is capable of encompassing the legality of that act in the light of the actual content of the international agreement in question. (
15
) Thus, the General Court could correctly consider that the principle of self-determination and the principle of the relative effect of treaties could be relied upon in connection with the review of the validity of the decisions at issue.
Conclusion
As none of the grounds raised in support of the appeals brought by the Council and the Commission have been accepted by the Court of Justice, that court dismisses those appeals in their entirety.
Maintaining the effects of the decisions at issue in the event that the appeals submitted by the Council and the Commission are dismissed
In Joined Cases C‑778/21 P and C‑798/21 P, the judgment under appeal had maintained the effects of the decision at issue in those cases pending the delivery of the present judgment. However, as the implementation protocol to the agreement at issue in those cases expired on 17 July 2023 and the fisheries agreement does not itself authorise access by Union vessels to the ‘fishing zone’ concerned, the Court rules that the claims submitted in the alternative by the Commission and the Council, requesting that the effects of that decision be maintained, have become devoid of purpose.
In Joined Cases C‑779/21 P and C‑799/21 P, the agreement concluded by the decision at issue in those cases entered into force on 19 July 2019. As the annulment of that decision, without its effects being maintained for a limited period, would be liable to give rise to serious negative consequences for the external action of the European Union and to call in question the legal certainty of the international commitments to which it has agreed and which are binding on the institutions and the Member States, the Court decides that the effects of that decision are to be maintained for a period of 12 months from the date of delivery of the judgment.
(
1
)	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).
(
2
)	Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, signed in Brussels on 26 February 1996 (OJ 2000 L 70, p. 2).
(
3
)	Council Decision (EU) 2019/441 of 4 March 2019 on the conclusion of the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, the Implementation Protocol thereto and the Exchange of Letters accompanying the Agreement (OJ 2019 L 77, p. 4).
(
4
)	Council Regulation (EU) 2019/440 of 29 November 2018 on the allocation of fishing opportunities under the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco and the Implementation Protocol thereto (OJ 2019 L 77, p. 1) (‘the contested regulation’).
(
5
)	Fisheries Partnership Agreement between the European Communities and the Kingdom of Morocco (OJ 2006 L 141, p. 4).
(
6
)	Judgment of 29 September 2021, Front Polisario v Council (T‑279/19, EU:T:2021:639).
(
7
)	Judgment of 29 September 2021, Front Polisario v Council (T‑344/19 and T‑356/19, EU:T:2021:640).
(
8
)	The Court specifies in that regard that the question whether that entity may legitimately represent the interests of the people of Western Sahara concerns its locus standi in the context of an action for annulment concerning the decision at issue, and not its capacity to be a party to legal proceedings before the EU judicature.
(
9
)	See judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973, paragraphs 88, 91 and 105).
(
10
)	Recital 10 of Decision 2019/217 and recital 11 of Decision 2019/441.
(
11
)	See judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973, paragraph 106).
(
12
)	Article 3(5) and Article 21(1) TEU.
(
13
)	Judgments of 29 September 2021, Front Polisario v Council (T‑279/19, EU:T:2021:639, paragraphs 322 and 323), and of 29 September 2021, Front Polisario v Council (T‑344/19 and T‑356/19, EU:T:2021:640, paragraph 318).
(
14
)	See judgment of the Permanent Court of International Justice of 7 June 1932, ‘Free Zones of Upper Savoy and the District of Gex’ (PCIJ Reports 1927, Series A/B, No 46, p. 148).
(
15
)	Judgment of 27 February 2018, Western Sahara Campaign UK (C‑266/16, EU:C:2018:118, paragraphs 47 to 51).