Council of the European Union v Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario).
Date: 2016-12-21
60


In that regard, it follows from the second paragraph of Article 252 TFEU that it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which require his involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (see judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 57, and of 6 October 2015, Commission v Andersen, C‑303/13 P, EU:C:2015:647, paragraph 33).
61


Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions examined in that Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (see judgments of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 62, and of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 26).
62


That said, Article 83 of the Rules of Procedure allows the Court at any time, after hearing the Advocate General, to order the reopening of the oral part of the procedure, in particular where the case is to be decided on the basis of an argument which has not been debated between the parties.
69


Moreover, it is apparent from the third paragraph of Article 56 of that statute that, in order to bring an appeal against a judgment of the General Court, in a case not relating to a dispute between the European Union and its servants, Member States and EU institutions do not have to show any interest (see judgments of 22 February 2005, Commission v max.mobil, C‑141/02 P, EU:C:2005:98, paragraph 48, and of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 45).
86


It must be pointed out that, in order to be able to draw correct legal conclusions from the absence of a stipulation excluding Western Sahara from the territorial scope of the Association Agreement, in interpreting that agreement, the General Court was bound not only to observe the rules of good faith interpretation laid down in Article 31(1) of the Vienna Convention but also that laid down in Article 31(3)(c) of that convention, pursuant to which the interpretation of a treaty must be carried out by taking account of any relevant rules of international law applicable in the relations between the parties (judgment of 25 February 2010, Brita, C‑386/08, EU:C:2010:91, paragraph 43; see also, 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 291 and the case-law cited).
88


In that regard, it should be noted, first of all, that the customary principle of self-determination referred to in particular in Article 1 of the Charter of the United Nations is, as the International Court of Justice stated in paragraphs 54 to 56 of its Advisory Opinion on Western Sahara, a principle of international law applicable to all non-self-governing territories and to all peoples who have not yet achieved independence. It is, moreover, a legally enforceable right erga omnes and one of the essential principles of international law (East Timor, (Portugal v Australia), judgment, ICJ Reports 1995, p. 90, paragraph 29 and the case-law cited).
89


As such, that principle forms part of the rules of international law applicable to relations between the European Union and the Kingdom of Morocco, which the General Court was obliged to take into account.
90


In accordance with that principle, as specified by United Nations General Assembly Resolution 2625 (XXV), referred to in paragraph 26 of the present judgment, ‘the territory of a colony or other Non-Self-Governing Territory has, under the [UN] Charter, a … separate and distinct [status]’.
91


In particular, the UN General Assembly, in its various resolutions on Western Sahara, repeatedly expressed its concern in respect of ‘enabling the indigenous population of the Territory to exercise freely its right to self-determination’, as the International Court of Justice noted in paragraphs 62, 64 and 68 of its Advisory Opinion on Western Sahara.
92


In view of the separate and distinct status accorded to the territory of Western Sahara by virtue of the principle of self-determination, in relation to that of any State, including the Kingdom of Morocco, the words ‘territory of the Kingdom of Morocco’ set out in Article 94 of the Association Agreement cannot, as the Commission maintains and as the Advocate General essentially pointed out in points 71 and 75 of his Opinion, be interpreted in such a way that Western Sahara is included within the territorial scope of that agreement.
93


In the present case, although the General Court found, in paragraph 3 of the judgment under appeal, that Western Sahara had been included since 1963 on the list of non-self-governing territories within the meaning of Article 73 of the UN Charter, it did not, however, draw the consequences of the status of Western Sahara under international law as regards the inapplicability of the Association Agreement to that territory.
95


It thus follows from that rule, placed in the context of the interpretation of Article 94 of the Association Agreement, that a treaty is generally binding on a State in the ordinary meaning to be given to the term ‘territory’, combined with the possessive adjective ‘its’ preceding it, in respect of the geographical space over which that State exercises the fullness of the powers granted to sovereign entities by international law, to the exclusion of any other territory, such as a territory likely to be under the sole jurisdiction or the sole international responsibility of that State.
100


Finally, under the general international-law principle of the relative effect of treaties, of which the rule contained in Article 34 of the Vienna Convention is a specific expression, treaties do not impose any obligations, or confer any rights, on third States without their consent (see judgment of 25 February 2010, Brita, C‑386/08, EU:C:2010:91, paragraphs 44 and 52).
103


However, contrary to what the General Court held, the principle of the relative effect of treaties had to be taken into account in the context of such an interpretation, since the application to Western Sahara of the Association Agreement, concluded between the European Union and the Kingdom of Morocco, would have led to that agreement affecting a ‘third party’.
104


It should be recalled that in its Advisory Opinion on Western Sahara, to which the General Court itself referred in paragraph 8 of the judgment under appeal, the International Court of Justice considered that, on the one hand, Western Sahara ‘at the time of colonisation by [the Kingdom of] Spain was not a territory belonging to no-one (terra nullius)’, and, on the other, that the elements and information brought to its knowledge ‘[did] not establish any tie of territorial sovereignty’ between that territory and the Kingdom of Morocco.
105


More specifically, in that regard, the International Court of Justice noted, in its Advisory Opinion on Western Sahara, that the population of that territory enjoyed the right to self-determination under general international law, as set out in paragraphs 90 and 91 of the present judgment, it being understood that the General Assembly of the UN, in paragraph 7 of its Resolution 34/37 on the question of Western Sahara, cited in paragraph 35 of the present judgment, recommended that the Front Polisario, ‘the representative of the people of Western Sahara, should participate fully in any search for a just, lasting and definitive political solution of the question of Western Sahara’, as noted by the General Court in paragraph 14 of the judgment under appeal and recalled by the Commission before the Court.
106


In the light of that information, the people of Western Sahara must be regarded as a ‘third party’ within the meaning of the principle of the relative effect of treaties, as stated in substance by the Advocate General in point 105 of his Opinion. As such, that third party may be affected by the implementation of the Association Agreement in the event that the territory of Western Sahara comes within the scope of that agreement, without it being necessary to determine whether such implementation is likely to harm it or, on the contrary, to benefit it. It is sufficient to point out that, in either case, that implementation must receive the consent of such a third party. In the present case, however, the judgment under appeal does not show that the people of Western Sahara have expressed any such consent.
107


In those circumstances, it is contrary to the principle of international law of the relative effect of treaties to take the view that the territory of Western Sahara comes within the scope of the Association Agreement, which is applicable to relations between the European Union and the Kingdom of Morocco.
123


Moreover, the purported intention of the European Union, reflected in subsequent practice and consisting in considering the Association and Liberalisation Agreements to be legally applicable to the territory of Western Sahara, would necessarily have entailed conceding that the European Union intended to implement those agreements in a manner incompatible with the principles of self-determination and of the relative effect of treaties, even though the European Union repeatedly reiterated the need to comply with those principles, as the Commission points out.
124


Such implementation would necessarily be incompatible with the principle that Treaty obligations must be performed in good faith, which nevertheless constitutes a binding principle of general international law applicable to subjects of that law who are contracting parties to a treaty (see, to that effect, judgments of 16 June 1998, Racke, C‑162/96, EU:C:1998:293, paragraph 49, and of 23 January 2014, Manzi and Compagnia Naviera Orchestra, C‑537/11, EU:C:2014:19, paragraph 38).
132


As is apparent from the grounds set out in paragraphs 83 to 125 of the present judgment, the Liberalisation Agreement must, however, be interpreted, in accordance with the relevant rules of international law applicable to relations between the European Union and the Kingdom of Morocco, as meaning that it does not apply to the territory of Western Sahara.