Equipo Nizkor - The General Court annuls the Council decisions concerning, first, the agreement between the European Union and Morocco amending the tariff preferences granted by the European Union to products of Moroccan origin and, second, the Sustainable Fisheries Partnership Agreement.

General Court of the European Union
PRESS RELEASE No 166/21
Luxembourg, 29 September 2021

Judgments in Case T-279/19
and in Joined Cases T-344/19 and T-356/19
Front Polisario v Council

The General Court annuls the Council decisions concerning, first, the agreement between the European Union and Morocco amending the tariff preferences granted by the European Union to products of Moroccan origin and, second, the Sustainable Fisheries Partnership Agreement

However, the effects of those decisions are maintained over a certain period in order to preserve the European Union's external action and legal certainty over its international commitments

The present cases concern actions for annulment brought by the Front populaire pour la libération de la Saguia el-Hamra et du Rio de oro (Front Polisario) ('the applicant') against two Council decisions approving the conclusion of agreements between the European Union and the Kingdom of Morocco. |1|

The agreements approved by the contested decisions ('the agreements at issue') are the result of negotiations conducted on behalf of the European Union with Morocco to amend previous agreements in the light of two judgments delivered by the Court of Justice. |2| Firstly, the negotiations concerned the conclusion of an agreement amending the protocols of the Euro-Mediterranean Association Agreement |3| on the arrangements applying to imports into the European Union of agricultural products originating in Morocco and the arrangements concerning the definition of originating products in order to extend to products originating in Western Sahara, which are subject to export controls by the customs authorities of the Kingdom of Morocco, the tariff preferences granted to products originating in Morocco and exported to the European Union. Second, the aim was to amend the fisheries agreement between the European Community and Morocco |4| and, in particular, to include the waters adjacent to the territory of Western Sahara within its scope.

By applications lodged in 2019, the applicant requested annulment of the contested decisions. Claiming to act 'on behalf of the Sahrawi people', the applicant argues, inter alia, that by approving the agreements at issue through the contested decisions without the consent of the people of Western Sahara, the Council infringed the European Union's obligations in the context of its relations with Morocco under EU and international law. According to the applicant, those agreements apply to Western Sahara, provide for the exploitation of its natural resources and encourage the policy of annexation of that territory by Morocco. In addition, the Sustainable Fisheries Partnership Agreement applies to the waters adjacent to that territory. In particular, the applicant claims that the agreements are in breach of the Court of Justice's judgments in Council v Front Polisario (C-104/16 P) and Western Sahara Campaign UK (C-266/16), which exclude such territorial scope.

By its judgments in Case T-279/19 and the Joined Cases T-344/19 and T-356/19, the General Court annuls the contested decisions but decides that the effects of those decisions be maintained over a certain period, |5| since annulling them with immediate effect could have serious consequences on the European Union's external action and call into doubt legal certainty in respect of the international commitments to which it has agreed. On the contrary, the Court dismisses as inadmissible the applicant's action in Case T-356/19 against the regulation on the allocation of fishing opportunities under the Sustainable Fisheries Partnership Agreement, due to a lack of direct concern. |6|

Findings of the Court

Admissibility of the actions

In the first place, the Court determines whether the applicant has the legal capacity to bring proceedings before the EU Courts. According to the Council and the interveners, the applicant does not possess legal personality under the national law of any Member State, is not a subject of international law and does not satisfy the criteria laid down by the Courts of the European Union to allow an entity deprived of legal personality to be recognised as having the capacity to bring proceedings before the courts. In their view, the applicant is therefore not a legal person within the meaning of the fourth paragraph of Article 263 TFEU.

Referring to its previous decisions, the Court states that they do not preclude an entity, irrespective of its legal personality under national law, from being recognised as having capacity to bring proceedings before the EU Courts, in particular where such recognition is necessary to meet the requirements of effective judicial protection, since a restrictive interpretation of the concept of legal person must be ruled out. In examining whether the applicant has legal personality under public international law, the Court finds that the applicant's role and representativeness are capable of conferring upon it locus standi before the EU Courts.

In that regard, the Court determines that the applicant is recognised internationally as a representative of the people of Western Sahara, even if that recognition is confined to the self- determination process of that territory. Furthermore, its participation in that process implies that it has the necessary autonomy and competencies to act within that context. Ultimately, effective judicial protection requires that the applicant be regarded as having the capacity to bring an action before the Court to defend the right of the people of Western Sahara to self- determination. The Court therefore concludes that the applicant is a legal person within the meaning of the fourth paragraph of Article 263 TFEU and rejects the Council's plea of inadmissibility.

In the second place, the Court examines the Council's plea of inadmissibility alleging that the applicant does not have a legal interest in bringing proceedings. As to whether the applicant is directly concerned by the contested decisions, the Court notes that a decision on the conclusion, on behalf of the European Union, of an international agreement forms an integral part of that agreement and that, accordingly, the effects of the implementation of that agreement on the legal position of a third party are relevant to the assessment of whether that third party is directly concerned by the decision at issue. In the present case, in order to defend the rights that the people of Western Sahara derive from the rules of international law which are binding on the European Union, the applicant must be able to rely on the effects of the agreements at issue on those rights to establish that it is directly concerned. The Court takes the view that, in so far as the agreements at issue apply expressly to Western Sahara and, as regards the decision concerning the Sustainable Fisheries Partnership Agreement, to the waters adjacent to that territory, they concern the people of that territory and require the consent of its people. Consequently, the Court concludes that the contested decisions directly concern the legal situation of the applicant as a representative of the people of Western Sahara and as one of the parties to the self-determination process of that territory. Finally, the Court notes that the implementation of the agreements at issue, as regards their territorial application, is purely automatic and leaves no degree of discretion to the addressees of those agreements.

As to whether the applicant is individually concerned, the Court finds that, having regard to the circumstances which resulted in the conclusion that it was directly concerned, in particular its legal position as a representative of the people of Western Sahara and a party to the self-determination process of that territory, the applicant must be regarded as concerned by the contested decisions by reason of certain special characteristics that differentiate it in a way similar to that of an addressee of those decisions.

The merits of the actions

As regards substance and, more specifically, the question of whether the Council has infringed the obligation to comply with the case-law of the Court of Justice concerning the rules of international law applicable to the agreements at issue, the General Court finds that, in the judgment in Council v Front Polisario, the Court of Justice inferred from the principle of self-determination and the principle of the relative effect of treaties clear, precise and unconditional obligations towards Western Sahara in the context of its relations with Morocco, namely both to respect its separate and distinct status and to secure the consent of its people in the event of the implementation of the Association Agreement in that territory. Therefore, the applicant must be able to invoke the violation of those obligations against the contested decisions in so far as that violation may concern the people of Western Sahara, as a third party to the agreement concluded between the European Union and Morocco. In that respect, the Court rejects the argument put forward by the applicant that it would be impossible for the European Union and Morocco to conclude an agreement which applies to Western Sahara, since that possibility is not precluded by international law as interpreted by the Court.

On the contrary, the Court upholds the applicant's argument that the requirement relating to the consent of the people of Western Sahara, as a third party to the agreements at issue, for the purposes of the principle of the relative effect of treaties, has not been respected.

In that regard, the Court considers that the rule of international law, according to which the consent of a third party to an international agreement may be presumed where the parties to that agreement intended to confer rights on it, is not applicable in the present case, since the agreements at issue are not intended to confer rights on the people of Western Sahara, but to impose obligations on them.

Moreover, the Court notes that, where a rule of international law requires the consent of a party or a third party, the expression of that consent is a precondition for the validity of the act for which it is required, the validity of that consent itself depends on its being free and genuine, and the act must be enforceable against the party or third party having validly consented to it. However, the steps taken by the EU authorities before the conclusion of the agreements at issue cannot be regarded as having secured the consent of the people of Western Sahara to those agreements in accordance with the principle of the relative effect of treaties, as interpreted by the Court of Justice. The General Court states, in that regard, that the institutions' discretion in external relations did not allow them, in this case, to decide whether they could meet that requirement.

In particular, the Court finds, first, that in view of the legal definitions of 'people' and 'consent' in international law, the 'consultations' conducted by the institutions with the 'people concerned' did not amount to an expression of the consent of the people of Western Sahara. That approach made it possible, at most, to obtain the opinion of the parties concerned, although that opinion did not determine the validity of the agreements at issue or bind those parties in such a way that those agreements could be enforced against them. Next, the Court considers that the various factors relating to the specific situation in Western Sahara, relied on by the Council, do not show that it would be impossible, in practice, to secure the consent of the people of Western Sahara to the agreements at issue, as a third party to those agreements. Lastly, the Court notes that the institutions cannot validly rely on the letter of 29 January 2002 from the UN Legal Counsel to substitute the criterion of the benefits of the agreements at issue for the populations concerned for the requirement of the expression of such consent. The Court concludes that the Council did not sufficiently take into account all the relevant factors relating to the situation in Western Sahara and wrongly considered that it had a degree of discretion in deciding whether to comply with that requirement.

NOTE: An action for annulment seeks the annulment of acts of the institutions of the European Union that are contrary to European Union law. The Member States, the European institutions and individuals may, under certain conditions, bring an action for annulment before the Court of Justice or the General Court. If the action is well founded, the act is annulled. The institution concerned must fill any legal vacuum created by the annulment of the act.

NOTE: An appeal, limited to points of law only, may be brought before the Court of Justice against the decision of the General Court within two months and ten days of notification of the decision.

The full text of the judgments in the Case T-279/19 and in Joined Cases T-344/19 and T-356/19 is published on the CURIA website on the day of delivery

[Source: General Court of the European Union, Press release n°166/21, Luxembourg, 29Sep21]

Notes:

1. 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), and Council Decision (EU) 2019/441 of 4 March 2019 on the conclusion of the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, the Implementation Protocol thereto and the Exchange of Letters accompanying the Agreement (OJ 2019 L 77, p. 4); 'the contested decisions'. [Back]

2. Judgments of 21 December 2016, Council v Front Polisario (C-104/16 P; see Press Release No 146/16) and of 27 February 2018, Western Sahara Campaign UK (C-266/16; see Press Release No 21/18). In those judgments, the Court stated that the Association Agreement is applicable only to the territory of Morocco and not to Western Sahara, and that neither the Fisheries Agreement nor the Protocol thereto are applicable to the waters adjacent to the territory of Western Sahara. [Back]

3. 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 L 70, 2000, p. 2). [Back]

4. Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco (OJ L 141, 2006, p. 4). [Back]

5. Namely, a period not exceeding the two-month period for lodging an appeal or the date of delivery of the judgment of the Court ruling on any such appeal. [Back]

6. Council Regulation (EU) 2019/440 of 29 November 2018 on the allocation of fishing opportunities under the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco and the Implementation Protocol thereto (OJ 2019, L 77, p 1). [Back]

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