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 pro