Case T‑512/12

Popular Front for the Liberation of Saguia el-Hamra and Río de Oro

(Polisario Front)

v

Council of the European Union

‛External relations — Agreement in the form of an Exchange of Letters between the European Union and Morocco — Reciprocal liberalisation of agricultural products, processed agricultural products, fish and fishery products — Application of the agreement to Western Sahara — Polisario Front — Action for annulment — Capacity to bring legal proceedings — Direct and individual concern — Admissibility — Conformity with international law — Obligation to state reasons — Rights of defence’

Summary — Judgment of the General Court (Eighth Chamber), 10 December 2015

International agreements — European Union Agreements — Effects of an agreement in the Union in the absence of an express provision in the latter making provision therefor — Examination of the validity of an EU act having regard to the provisions of the said agreement — Competence of the EU judicature — Conditions — Assessment of the validity of an EU act having regard to the Convention on the Law of the Sea of 1982 (Montego Bay Convention) — Not included

International agreements — European Union Agreements — Conclusion — Agreement with a non-member State for facilitating the export of agricultural products and producing effects on a disputed territory under the control of that State — Obligation to ensure no negative effects for the population of the territory concerned by reason of the activities producing products intended for export — Scope

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Criteria — Council Decision concerning the conclusion of an agreement with a non-member State producing effects on a disputed territory and under the control of that State — Action by an independence movement participating in UN negotiations with a view to determining the status of the said territory — Admissibility

In certain specific cases, an entity which does not have a legal personality under the law of a Member State or of a non-member State may nevertheless be regarded as a ‘legal person’ within the meaning of Article 263, fourth paragraph, TFEU and be allowed to bring an action for annulment on the basis of that provision. That is the case, in particular, where by their acts or actions, the European Union and its institutions treat the entity in question as being a distinct person, which may have rights specific to it, or be subject to obligations or restrictions. However, that presupposes that the entity in question has constituting documents and an internal structure giving it the independence necessary to act as a responsible body in legal matters. A legal person, within the meaning of the fourth paragraph of Article 263 TFEU, includes an entity which is a party to an international dispute concerning the fate of a non-self-governing territory and, as a party to that dispute, is mentioned by name in texts relating to it, including resolutions of the European Parliament, but which cannot be formally constituted as a legal person under the law of the non-self-governing territory concerned, as that law is still non-existent. In that regard, whilst it would be possible for that entity to constitute itself as a legal person in accordance with the law of a foreign State, it cannot be required to do so. Taking account of those very specific circumstances, that entity may bring an action for annulment before the Courts of the European Union even though it can only have such a personality in accordance with the law of the non-self-governing territory in question, which, however, at the present time, is not a State recognised by the European Union and its Member States and does not have its own law. (see paras 52, 53, 57, 58, 60)

The concept of ‘regulatory act’ within the meaning of Article 263, fourth paragraph, TFEU must be understood as covering all acts of general application other than legislative acts. The distinction between a legislative act and a regulatory act, according to the FEU Treaty, is based on the criterion of the procedure, legislative or not, which led to its adoption. In the case of a decision adopted following the procedure defined in Article 218(6)(a) TFEU, which provides that the Council, on a proposal by the negotiator, is to adopt a decision concluding the agreement after obtaining the consent of the European Parliament, that procedure satisfies the criteria set out in Article 289(2) TFEU and therefore constitutes a special legislative procedure. It follows that the said decision is a legislative act and, accordingly does not constitute a regulatory act. (see paras 68, 69, 71, 72)

An agreement concluded by the Council with a non-Member State in accordance with Articles 217 TFEU and 218 TFEU, constitutes, as far as the European Union is concerned, an act of one of the institutions of the Union, within the meaning of point (b) of the first paragraph of Article 267 TFEU. From the moment it enters into force, the provisions of such an agreement form an integral part of the legal order of the European Union, and, within the framework of that legal order, the EU judicature has jurisdiction to give preliminary rulings concerning the interpretation of such an agreement. In that regard, in the case of an agreement concluded by two subjects of public international law, that agreement is governed by international law and, more specifically, as regards its interpretation, by the international law of treaties. In that context, the rules laid down in the Vienna Convention on the Law of Treaties of 23 May 1969 apply, in so far as the rules are an expression of general international customary law. With regard to Decision 2012/497 on the conclusion of an 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, in the context of an interpretation in accordance with Article 31 of the Vienna Convention, the agreement the conclusion of which was approved by Decision 2012/497, placed in its context, also applies to the territory of Western Sahara or, more precisely, to the largest part of that territory which is controlled by the Kingdom of Morocco. (see paras 89, 90, 92, 98, 103)

The condition that a natural or legal person must be directly concerned by the measure forming the subject-matter of an action under Article 263 TFEU requires that two cumulative criteria be met, namely that the contested measure directly affect the legal situation of the person concerned and that it leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules. In that regard, in the case of an action directed against a decision concerning the conclusion of an international agreement concluded between the Union and its Member States with a non-member State, a provision in such an agreement must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure. In the case of an action directed against Decision 2012/497 on the conclusion of an 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, it must be stated that the agreement concluded pursuant to the contested decision has provisions containing clear and precise obligations, not subject, in their implementation or in their effects, to the adoption of any subsequent measures. Those provisions produce effects on the legal position of the whole territory to which the agreement applies and, therefore, the territory of Western Sahara controlled by the Kingdom of Morocco, in that they determine the conditions under which agricultural and fishery products may be exported from that territory to the European Union or may be imported from the European Union into the territory in question. Those effects directly concern not only the Kingdom of Morocco, but also the Polisario Front, a Sahrawi independence movement, to the extent that the definitive international status of that territory has not yet been determined and must be determined in UN-led negotiations between the Kingdom of Morocco and, specifically, the Polisario Front. For the same reason, the Polisario Front must be regarded as being individually concerned by the Decision 2012/497. Those circumstances do indeed constitute a factual situation which distinguishes the Polisario Front from all other persons and confers on it a particular attribute. In that regard, the Polisario Front is the only other participant in the UN-led negotiations between it and the Kingdom of Morocco with a view to determining the definitive international status of Western Sahara. (see paras 105, 107-111, 113)

See the text of the decision. (see paras 121, 122)

See the text of the decision. (see paras 132-137)

No absolute prohibition derives, either from the provisions of Article 6 TEU or from those of the Charter of Fundamental Rights of the European Union, which precludes the EU from concluding an agreement with a third State on trade in agricultural products, processed agricultural products, fish and fishery products which may also be applied to a territory controlled by that third State, even though its sovereignty over that territory has not been internationally recognised. The conclusion of an agreement between the European Union and a non-member State which may be applied on a dispute territory is not, in any case, contrary to EU law or international law with which the European Union must comply. However, whilst no such prohibition arises from the Charter of Fundamental Rights, the fact remains that the protection of fundamental rights of the population of such a territory is of particular importance and is, therefore, a question that the Council must examine before the approval of such an agreement. In particular, as regards an agreement to facilitate, inter alia, the export to the European Union of various products originating in the territory concerned, the Council must examine, carefully and impartially, all the relevant facts in order to ensure that the production of goods for export is not conducted to the detriment of the population of the territory concerned, or entails infringements of fundamental rights, including, in particular, the rights to human dignity, to life and to the integrity of the person, the prohibition of slavery and forced labour, the freedom to choose an occupation and right to engage in work, the freedom to conduct a business, the right to property, the right to fair and just working conditions and the prohibition of child labour and protection of young people at work. If the European Union allows the export to its Member States of products originating in that other country which have been produced or obtained in conditions which do not respect the fundamental rights of the population of the territory from which they originate, it may indirectly encourage such infringements or profit from them. That consideration is all the more important in the case of a territory which is administered by a non-member State but not included in the recognised international frontiers of that non-member State. In circumstances where the sovereignty of that non-member State over the territory it administers is not recognised by the European Union or its Member States, or more generally by the UN, and in the absence of any international mandate capable of justifying the presence of the said non-member State on that territory, the Council, in the examination of all the relevant facts of the present case, with a view to exercising its wide discretion as to whether or not to conclude an agreement with the non-member State which may also apply to the disputed territory, must satisfy itself that there is no evidence of exploitation of the disputed territory under the control of the non-member State likely to be to the detriment of its inhabitants and to infringe their fundamental rights. The Council cannot merely conclude that it is for the said non-member State to ensure that no exploitation of that nature takes place. (see paras 146, 220, 227, 228, 231, 232, 241)

Article 7 TFEU cannot be used to support an argument that an EU act must be annulled because it is contrary to the principle laid down by that provision that EU policies be consistent. The various policies of the European Union derive from different provisions of the founding treaties and acts adopted pursuant to those provisions. The supposed inconsistency of an act with the policy of the European Union in a given area necessarily implies that the act concerned is contrary to a provision, a rule or a principle which governs that policy. That fact alone, if it were established, would be sufficient to lead to the annulment of the act concerned, without it being necessary to rely on Article 7 TFEU. In that regard, an argument based on the adoption by the European Union of restrictive measures with regard to the situation in other countries is also insufficient to establish a supposed inconsistency in European Union policy, since the Council has discretion in that matter. Therefore, it cannot be criticised for inconsistency on the ground that it adopted restrictive measures with regard to the situation in one country and not in another. (see paras 153, 156)

The EU institutions enjoy a wide discretion in the field of external economic relations. In that regard, concerning the question whether or not to conclude with a non-member State an agreement which will apply to a disputed territory, to allow the EU institutions such discretion appears even more justified because the rules and principles of international law applicable in the area are complex and imprecise. It follows that judicial review must necessarily be limited to the question whether the competent EU institution, by approving the conclusion of an agreement applicable to a disputed territory, made manifest errors of assessment. That being the case, in particular where EU institution enjoys a wide discretion, in order to verify whether it has committed a manifest error of assessment, the EU judicature must verify whether it has examined carefully and impartially all the relevant facts of the individual case, facts which support the conclusions reached. (see paras 164, 223-225)

See the text of the decision. (see para. 177)

In conformity with the principles of international law, EU institutions which have power to negotiate and conclude an international agreement are free to agree with the third States concerned what effect the provisions of the agreement are to have in the internal legal order of the contracting parties. Only if that question has not been settled by the agreement does it fall to be decided by the competent Courts of the European Union, in the same manner as any question of interpretation relating to the application of the agreement in the European Union. However, a Court of the European Union can examine the validity of an act of EU law in the light of an international treaty only where the nature and the broad logic of the latter do not preclude it. Where the nature and the broad logic of the treaty in question permit the validity of the act of EU law to be reviewed in the light of the provisions of that treaty, it is also necessary that the provisions of that treaty which are relied upon for the purpose of examining the validity of the act of EU law appear, as regards their content, to be unconditional and sufficiently precise. Such a condition if fulfilled where the provision relied upon contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure. In that regard, as regards the UN Convention on the Law of the Sea of 10 December 1982 (the Montego Bay Convention), the broad logic of that convention prevent the Courts of the European Union from being able to assess the validity of an EU measure in the light of that convention. (see paras 181, 184, 185, 195)