Case C‑104/16 P

Council of the European Union

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Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario)

(Appeal — External relations — Agreement between the European Union and the Kingdom of Morocco concerning liberalisation measures on agricultural and fishery products — Decision approving the conclusion of an international agreement — Action for annulment — Admissibility — Locus standi — Territorial scope of the agreement — Interpretation of the agreement — Principle of self-determination — Principle of the relative effect of treaties)

Summary — Judgment of the Court (Grand Chamber), 21 December 2016

Actions for annulment—Natural or legal persons—Measures of direct and individual concern to them—Decision of the Council concerning the conclusion of an agreement with a third country not producing legal effects in a territory controlled by that third State, the latter’s sovereignty over that territory not being internationally recognised—Action of a movement recognised as representing the people of that territory and participating in negotiations conducted by the United Nations with a view to establishing the status of that territory—Inadmissibility

International agreements—European Union Agreements—Interpretation—Taking account of the subsequent practice on the implementation of the agreement—Scope—Extension, by the European Union judicature, of the territorial scope of an agreement without having shown the existence of a practice reflecting the existence of an agreement between the parties to that effect—Not permissible—Incompatibility with the principle that Treaty obligations must be performed in good faith

See the text of the decision. (see paras 60-65)

See the text of the decision. (see paras 68, 69)

In the context of the interpretation of 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 order to be able to draw correct legal conclusions from the absence of a stipulation excluding Western Sahara from the territorial scope of the Association Agreement, the European Union judicature was bound not only to observe the rules of good faith interpretation laid down in Article 31(1) of the Vienna Convention on the law of treaties of 23 May 1969, but also that laid down in Article 31(3)(c) of that convention, pursuant to which the interpretation of a treaty must be carried out by taking account of any relevant rules of international law applicable in the relations between the parties. In that regard, the customary principle of self-determination referred to in particular in Article 1 of the Charter of the United Nations is, as the International Court of Justice stated in its Advisory Opinion on Western Sahara, a principle of international law applicable to all non-self-governing territories and to all peoples who have not yet achieved independence. It is, moreover, a legally enforceable right erga omnes and one of the essential principles of international law. As such, that principle forms part of the rules of international law applicable to relations between the European Union and the Kingdom of Morocco, which the General Court was obliged to take into account. In view of the separate and distinct status accorded to the territory of Western Sahara by virtue of the principle of self-determination, in relation to that of any State, the Association Agreement cannot be interpreted in such a way that Western Sahara is included within the territorial scope of that agreement. (see paras 86, 88, 89, 92)

The customary rule codified in Article 29 of the Vienna Convention on the law of treaties of 23 May 1969 provides that, unless a different intention appears from the treaty or is otherwise established, that treaty is binding upon each party in respect of its entire ‘territory’. It thus follows from that rule that a treaty is generally binding on a State in the ordinary meaning to be given to the term ‘territory’, combined with the possessive adjective ‘its’ preceding it, in respect of the geographical space over which that State exercises the fullness of the powers granted to sovereign entities by international law, to the exclusion of any other territory, such as a territory likely to be under the sole jurisdiction or the sole international responsibility of that State. In that regard, it follows from international practice that, where a treaty is intended to apply not only to the territory of a State but also beyond that territory, that treaty expressly provides for it, whether it is a territory under the jurisdiction of that State, as set out, for example, in Article 2(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, or in a territory for whose international relations that State is responsible, as stipulated for example by Article 56(1) of the European Convention on Human Rights. Thus, as regards the interpretation of Article 94 of 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, under which that agreement applies ‘to the territory of the Kingdom of Morocco’, the customary rule codified in Article 29 of the Vienna Convention a priori precludes Western Sahara from being regarded as coming within the territorial scope of the Association Agreement. (see paras 94-97)

Under the general international-law principle of the relative effect of treaties, of which the rule contained in Article 34 of the Vienna Convention on the Law of Treaties of 23 May 1969 is a specific expression, treaties do not impose any obligations, or confer any rights, on third States without their consent. That principle must be taken into account in the context of the interpretation of 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, since the application to Western Sahara of that agreement would lead to that agreement affecting a ‘third party’. In its Advisory Opinion on Western Sahara, the International Court of Justice considered, on the one hand, that Western Sahara at the time of colonisation by the Kingdom of Spain was not a territory belonging to no-one (terra nullius), and, on the other, that the elements and information brought to its knowledge did not establish any tie of territorial sovereignty between that territory and the Kingdom of Morocco. In the light of that information, the people of Western Sahara must be regarded as a ‘third party’ within the meaning of the principle of the relative effect of treaties. As such, that third party may be affected by the implementation of the Association Agreement in the event that the territory of Western Sahara comes within the scope of that agreement, without it being necessary to determine whether such implementation is likely to harm it or, on the contrary, to benefit it. In those circumstances, it is contrary to the principle of international law of the relative effect of treaties to take the view that the territory of Western Sahara comes within the scope of the Association Agreement, which is applicable to relations between the European Union and the Kingdom of Morocco. (see paras 100, 103, 104, 106, 107)

Article 30(2) of the Vienna Convention on the Law of Treaties of 23 May 1969 codifies the rule that, when a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. With respect to 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, that agreement is an agreement designed to amend an earlier agreement between the European Union and the Kingdom of Morocco, namely the Association Agreement, and more specifically, the provisions of that previous agreement on the liberalisation of trade in agricultural and fisheries products. To that end, the Liberalisation Agreement amended 4 of the 96 articles of the Association Agreement, which do not include Article 94 thereof, and replaced 3 of the 5 protocols accompanying that agreement. Those amendments are exhaustive, as is confirmed by the exchange of letters between the European Union and the Kingdom of Morocco in the form of which the Liberalisation Agreement took effect. It follows that the Association Agreement and the Liberalisation Agreement constitute successive treaties concluded between the same parties and that the Liberalisation Agreement, as a later treaty relating to specific and limited aspects of a subject already governed in large part by an earlier agreement, must be regarded as subordinate to the latter. In the light of such a special connection, it must be held, in accordance with the rule codified in Article 30(2) of the Vienna Convention, that the provisions of the Association Agreement which have not been explicitly amended by the Liberalisation Agreement must prevail for the purpose of applying the latter agreement, in order to prevent any incompatibility between them. (see paras 110-113)

Under Article 31(3)(b) of the Vienna Convention on the Law of Treaties of 23 May 1969, for the purposes of the interpretation of a treaty, account must be taken, inter alia and together with the context thereof, of any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. In that context, it is for the Court of the European Union to consider whether such an application, in some cases, reflects the existence of an agreement between the parties to amend the interpretation of the treaty at issue. In that regard, the purported intention of the European Union, reflected in subsequent practice and consisting in considering an agreement to be legally applicable to a non-self-governing territory necessarily entails conceding that the European Union intended to implement that agreement in a manner incompatible with the principles of self-determination and of the relative effect of treaties, even though the European Union repeatedly reiterated the need to comply with those principles. Such implementation is necessarily incompatible with the principle that Treaty obligations must be performed in good faith, which nevertheless constitutes a binding principle of general international law applicable to subjects of that law who are contracting parties to a treaty. (see paras 120, 122-124)