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,

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

Developments in the international context relating to the question of Western Sahara may be summarised as follows.

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’.

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.

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’.

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.’

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’.

On 20 August 1974, the Kingdom of Spain informed the UN that it intended to hold a referendum in Western Sahara under UN auspices.

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?’

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.’

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.’

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.

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’.

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.

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.

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.

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’.

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.

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).

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.

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).

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.’

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.’

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.’

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.’

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’).

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).

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.

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.’

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.

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’).

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).

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).

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).

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.

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).

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).

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).

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).

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).

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).

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’).

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

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.

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).

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).

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.

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.

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).

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’).

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’).

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.’

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).

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’)

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

By application lodged at the Registry of the General Court on 27 April 2019, the applicant brought the present action.

On 1 August 2019, the Council lodged its defence.

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.

On 1 October 2019, the applicant lodged its reply.

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.

The French Republic and the Commission lodged their statements in intervention on 23 and 29 October 2019 respectively.

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.

On 5 December 2019, the Council filed its rejoinder.

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.

On 23 January 2020, Comader lodged its statement in intervention. On 17 February 2020, the applicant submitted observations on that statement.

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.

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.

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.

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.

The oral hearing was held on 2 March 2021. The oral part of the proceedings was closed at the end of that hearing.

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.

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.

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.

The Council contends that the General Court should:

–dismiss the application;

–order the applicant to pay the costs.

The French Republic contends that the General Court should dismiss the action.

The Commission, without formally submitting any form of order, states that it supports that of the Council.

Comader contends that the General Court should:

–dismiss the application;

–order the applicant to pay the costs.

III. Law

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).

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.

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.

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.

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.

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.

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.

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.

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).

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

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.

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).

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.

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.

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.

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).

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).

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.

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.

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.

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.

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).

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.