Council of the European Union v Front Polisario

• Jurisdiction: European Union
• Judge: Bonichot,Rodin,Gratsias,Toader,Ilešic,Wetter,Lenaerts,Biltgen,Fernlund,Tizzano,Silva de Lapuerta,Kancheva,Arabadjiev,Malenovský,Vajda,da Cruz Vilaça,Wathelet,Levits,Jürimäe
• Docket Number: (Case T-512/12)
• Date: 21 December 2016
• Court: Court of Justice of the European Union

Court of Justice of the European Union, General Court (Eighth Chamber).

Court of Justice (Grand Chamber).

(Gratsias (Rapporteur), President; Kancheva and Wetter, Judges)

(Lenaerts, President; Tizzano, Vice-President; Silva de Lapuerta, Ilešic and da Cruz Vilaça, Presidents of Chambers; Malenovský (Rapporteur), Levits, Bonichot, Arabadjiev, Toader, Fernlund, Vajda, Rodin, Biltgen and Jürimäe, Judges; Wathelet, Advocate General)

(Case T-512/12)

(Case C-104/16 P)

Council of the European Union

and

Front Polisario 1

Human rights — Self-determination — Non-self-governing territories — Western Sahara — Moroccan claim to sovereignty — International non-recognition — National liberation movements — Front Polisario — Extent of recognition by United Nations — Principle of permanent sovereignty over natural resources — Agreement between European Union and Morocco — Decision of the Council of the European Union — Whether Council obliged to consult Front Polisario before adopting decision — Whether Council obliged to ensure the implementation of agreement not infringing fundamental rights of population of Western Sahara — Human rights under European Union law — Whether applicable to Western Sahara — Whether Front Polisario possessing legal personality

International organizations — European Union — Rights and obligations under international law — Agreement between European Union and Morocco — Whether European Union obliges to respect general international law regarding Western Sahara — Scope of European Union human rights law — Whether agreement between European Union and Morocco extending to Western Sahara — Standing of Front Polisario to challenge decision of Council of the European Union regarding Agreement

States — Sovereignty — Extent of sovereignty — Morocco — Western Sahara — International recognition of Western Sahara as a non-self-governing territory — Whether agreement between Morocco and European Union applicable to Western Sahara

Territory — Non-self-governing territory — Western Sahara — Claims by Morocco — International recognition — Status of Western Sahara before United Nations

Treaties — Application — Scope — Principle that treaty not applicable to third parties — Agreement between European Union and Morocco — Whether applicable to Western Sahara — Whether Western Sahara a third party — The law of the European Union

Summary:2The facts:—On 8 March 2012, the Council of the European Union adopted Council Decision 2012/497/EU (“the Decision”), approving the conclusion of an agreement between the European Union (“EU”) and Morocco concerning reciprocal liberalization measures on agricultural products, processed agricultural products, fish and fishery products (“the Liberalization Agreement”).3 The Liberalization Agreement introduced protocols 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, 2000 (“the Association Agreement”).

At the time the Decision was adopted, Morocco controlled most of the territory of Western Sahara and claimed sovereignty over it. However, the Front Populaire pour la liberation de la Saguia-El-Hamra et du Rio De Oro (“Front Polisario”), a movement formed in 1973 for the fight against the foreign occupation of Western Sahara, disputed Morocco's claim. Western Sahara was not internationally recognized as part of Morocco and was categorized by the United Nations as a non-self-governing territory under Article 73 of the United Nations Charter, 1945 (“UN Charter”).

Front Polisario contested the decision in so far as it approved the application of the Liberalization Agreement to Western Sahara, arguing that it contravened European Union and international law. Front Polisario adduced eleven pleas in law on the question of whether there existed an absolute prohibition against the conclusion of an international agreement on behalf of the EU, which could be applied to a territory controlled by a non-Member State, without the sovereignty of that State over that territory being recognized by the EU and its Member States or, more generally, by all other States; and, where relevant, the existence of discretion of the EU institutions in that regard, the limits of that discretion and the conditions for its exercise.

The Council argued that Front Polisario had not proven the existence of its legal personality or its capacity to institute proceedings, and that the contested Decision was neither of direct nor individual concern to it. The Council requested the Court to dismiss the action as inadmissible or, in the alternative, as unfounded.

Judgment of the General Court (Eighth Chamber) (10 December 2015)

Held:—Council Decision 2012/497/EU was annulled in so far as it approved the application of the Liberalization Agreement to Western Sahara.

(1) Front Polisario was a “legal person” within the meaning of Article 263 of the Treaty on the Functioning of the European Union, 20074

(“the TFEU”) and could bring an action for annulment before the courts of the EU even though it did not have legal personality under the law of an EU Member State or of a non-Member State. Front Polisario had its own constitutive document and a fixed internal structure that enabled it to act as a responsible body in legal relations, demonstrated by the fact that it had participated in UN-led negotiations and signed a peace agreement with the Islamic Republic of Mauritania, an internationally recognized State. As the law of Western Sahara was still non-existent, it was impossible for Front Polisario to be formally constituted under it. Although Morocco administered almost the entire territory of Western Sahara de facto, it was a situation opposed by Front Polisario, and while it was possible for Front Polisario to constitute itself as a legal person within the laws of a foreign State, it could not be required to do so. Therefore, the law applicable to Front Polisario was to be determined in the context of the UN-led peace process, in relation to which Front Polisario was regarded as an essential participant (paras. 52–60).

(2) Under Article 263 of the TFEU, for a natural or legal person to be “directly concerned” by the measure forming the subject matter of an action, the contested measure had to have a direct effect on the legal situation of the person concerned, and its implementation had to be purely automatic, leaving no discretion to its addressees. The Liberalization Agreement had provisions containing clear and precise obligations which were not subject, in their implementation or in their effects, to the adoption of any subsequent measures. Those provisions produced effects on the legal position of the territory of Western Sahara controlled by Morocco, in that they determined the conditions of export and import of agricultural and fishery products in relation to that territory. Those effects did not only directly concern Morocco, but Front Polisario, to the extent that the definitive international status of that territory had not yet been determined. For the same reasons, Front Polisario was individually concerned by the decision (paras. 105–14).

(3) The contested Decision was supported by reasons to the requisite legal standard under Article 296 of the TFEU. In the case of a measure intended to have general application, as in the matter before the court, the statement of reasons could be limited to indicating the general situation which led to its adoption and the general objectives which it was intended to achieve (paras. 121–7).

(4) The wording of Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, 2000 (“EU Charter of Fundamental Rights”) on the right to be heard only concerned measures affecting individuals. Case law relating to the right of an individual to be heard could not be transposed to the context of a legislative process leading to the adoption of general laws which involved a choice of economic policy and applied to all operators concerned. Since the contested Decision was adopted as a result of a special legislative procedure to approve the conclusion of an agreement of general scope and application, the Council was not obliged to consult Front Polisario before its adoption (paras. 128–39).

(5) The Council's adoption of restrictive measures in respect of the situation in one country but not another was insufficient to establish a supposed “inconsistency” in EU policy (paras. 153 and 156).

(6) EU institutions enjoyed wide discretion in the field of external economic relations. Judicial review was to be limited to the question of whether the competent EU institution, by approving the conclusion of an agreement applicable to a disputed territory, made manifest errors of assessment. The EU Courts had to verify whether it had carefully and impartially examined all the relevant facts of the individual case, and whether the facts supported the conclusions reached (paras. 223–5).

(7) There was no absolute prohibition under EU or international law precluding the EU from concluding an agreement between itself and a non-Member State which could be applied on a disputed territory. However, given the fact that the sovereignty of Morocco over Western Sahara was not recognized by the EU or its Member States, or more generally by the UN, and the absence of any international mandate capable of justifying Moroccan presence on that territory, the Council should have satisfied itself that there was no evidence of an exploitation of the natural resources of the territory of Western Sahara under Moroccan control likely to be to the detriment of its inhabitants and to infringe their fundamental rights. The Council could not merely conclude that it was for Morocco to ensure that no exploitation of that nature took place. The Council had failed to fulfil its obligation to examine all the elements of the case before it adopted the contested Decision...