Are the Moroccans aware of the Portuguese presence there?
JUDGMENT OF THE COURT (Grand Chamber)
December 21, 2016 (* 1)
"Appeal - External relations - Agreement between the European Union and the Kingdom of Morocco on liberalization measures in the fields of agriculture and fisheries - Decision authorizing the conclusion of an international agreement - Action for annulment - Admissibility - Legal standing - Territorial scope of the agreement - Interpretation of the agreement - Principle of Self-Determination - Principle of the Relative Effect of Contracts "
In Case C ‑ 104/16 P
regarding an appeal under Art. 56 of the Statute of the Court of Justice of the European Union, filed on February 19, 2016,
Council of the European Union, represented by H. Legal, A. de Elera-San Miguel Hurtado and A. Westerhof Löfflerová as Agents,
Kingdom of Belgium, represented by C. Pochet and J.-C. Halleux as authorized representative,
Federal Republic of Germany, represented by T. Henze as authorized representative,
Kingdom of Spain, represented by M. Sampol Pucurull and S. Centeno Huerta, acting as Agents,
French Republic, represented by F. Alabrune, G. de Bergues, D. Colas, F. Fize and B. Fodda, acting as Agents,
Portuguese Republic, represented by L. Inez Fernandes and M. Figueiredo, acting as Agents,
Confédération marocaine de l’agriculture et du développement rural (Comader), represented by J.-F. Bellis, M. Struys, A. Bailleux, L. Eskenazi and R. Hicheri, avocats,
Intervener in appeal proceedings,
other parties to the proceedings:
Front populaire pour la liberation de la saguia-el-hamra and du rio de oro (Front Polisario), represented by G. Devers, avocat,
Defendant at first instance,
European Commission, represented by F. Castillo de la Torre, E. Paasivirta and B. Eggers, acting as Agents,
Intervener at first instance,
THE COURT (Grand Chamber)
composed of: K. Lenaerts President, A. Tizzano Vice-President, R. Silva de Lapuerta, President of the Chamber, M. Ilešič and JL da Cruz Vilaça, Presidents of the Chamber, J. Malenovský (Rapporteur), E. Levits, J. ‑ C . Bonichot and A. Arabadjiev, the judge C. Toader, the judges C. G. Fernlund, C. Vajda, S. Rodin and F. Biltgen as well as the judge K. Jürimäe,
Advocate General: M. Wathelet,
Chancellor: V. Giacobbo-Peyronnel, Member of the Board of Directors,
on the basis of the written procedure and the oral hearing on July 19, 2016,
after hearing the Opinion of the Advocate General at the sitting on 13 September 2016
With its appeal, the Council of the European Union seeks the annulment of the judgment of the General Court of the European Union of 10 December 2015, Front Polisario v Council (T ‑ 512/12, hereinafter: judgment under appeal, EU: T: 2015: 953), with the action brought by the Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario) for partial annulment of Decision 2012/497 / EU of the Council of March 8, 2012 on the conclusion of the agreement in the form of a Exchange of letters between the European Union and the Kingdom of Morocco on measures for the mutual liberalization of trade in agricultural products, processed agricultural products, fish and fishery products, to replace Protocols 1, 2 and 3 and their annexes and to amend the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, on the one hand, and the Kingdom of Morocco, on the other hand (OJ 2012, L 241, p. 2, hereinafter: contested decision) was upheld.
United Nations Charter
Article 1 of the United Nations Charter, signed in San Francisco on June 26, 1945, provides:
"The United Nations has set itself the following goals:
In Chapter XI ("Declaration on Territories Without Self-Government") of the Charter of the United Nations, Art. 73 provides:
“Members of the United Nations who have or assume responsibility for the administration of territories whose peoples have not yet achieved full self-government subscribe to the principle that the interests of the residents of those territories shall prevail; As a sacred mandate, they undertake to promote the well-being of these inhabitants to the utmost within the framework of the system of world peace and international security established by this charter ...
Vienna Convention on the Law of Treaties
The last paragraph of the preamble to the Convention on the Law of Treaties concluded in Vienna on May 23, 1969 (United Nations Treaty Series, vol. 1155, p. 331, hereinafter: Vienna Convention) contains the “affirmation of the principle that the sentences of customary international law continue to apply to matters not regulated in this Convention ”.
Article 3 of the Vienna Convention ("International agreements not falling within the scope of this Convention") provides:
“This does not affect the fact that this Convention does not apply to international agreements concluded between states and other subjects of international law or to such other subjects of international law, or to international agreements that are not written in writing
Article 26 ("Pacta sunt servanda") of the Vienna Convention reads:
"If a contract is in force, it binds the contracting parties and must be performed by them in good faith."
Article 29 ("Territorial scope of contracts") of the Vienna Convention reads:
"Unless otherwise stated in the contract or otherwise determined, a contract is binding on each contracting party in respect of their entire territory."
Article 30 ("Application of successive contracts to the same object") Paragraph 2 of the Vienna Convention reads:
"If a contract determines that it is subordinate to an earlier or later contract or is not to be regarded as incompatible with this, the other contract takes precedence."
Article 31 ("General rule of interpretation") of the Vienna Convention reads:
“(1) A contract is to be interpreted in good faith in accordance with the customary meaning attached to its provisions in their context and in the light of its aim and purpose.
(2) For the interpretation of a contract, the context means apart from the wording of the contract including the preamble and appendices
(3) Apart from the context, the same must be taken into account
(4) A special meaning shall be attached to a term if it is certain that the contracting parties intended this. "
Art. 34 ("General Rule Concerning Third Countries") of the Vienna Convention reads:
"A contract does not create any obligations or rights for a third country without its consent."
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 2000, L 70, p. 2, hereinafter: Association Agreement) was signed in Brussels on February 26, 1996 and approved on behalf of the European Communities by Decision 2000/204 / EC, ECSC of the Council and the Commission of 24 January 2000 (OJ 2000, L 70, p. 1). As can be seen from the communication published in the Official Journal of the European Communities (OJ 2000, L 70, p. 228), it came into force on March 1, 2000 under Art.
Article 1 (1) of the Association Agreement reads:
"An association will be established between the Community and its Member States on the one hand and Morocco on the other."
Title II ("Free movement of goods") of the Association Agreement contains Articles 6 to 30.
Article 16 of the Association Agreement reads:
"The Community and Morocco are gradually liberalizing their trade in agricultural and fishery products."
Article 17 (1) of the Association Agreement originally read:
"For agricultural and fishery products originating in Morocco, the provisions of Protocol No. 1 and Protocol No. 2 respectively apply when they are imported into the Community."
In Title VIII ("Provisions on the institutions, general and final provisions") of the Association Agreement, Article 94 provides:
"This Agreement applies to the territories in which the Treaty establishing the European Community and the Treaty establishing the European Coal and Steel Community are applied and subject to those Treaties on the one hand and to the territory of the Kingdom of Morocco on the other."
The agreement in the form of an exchange of letters between the European Union and the Kingdom of Morocco with measures for the mutual liberalization of trade in agricultural products, processed agricultural products, fish and fishery products, to replace Protocols 1, 2 and 3 and their annexes and to amend the The Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, on the one hand, and the Kingdom of Morocco, on the other hand (OJ 2012, L 241, p. 4, hereinafter: Liberalization Agreement) was signed in Brussels on December 13, 2010 and then approved by the contested decision on behalf of the Union. As stated in it, it came into force on October 1, 2012, as can be seen from the notice published in the Official Journal of the European Union (OJ 2012, L 255, p. 1).
The aim of the liberalization agreement, as it is clear from itself and from recitals 1 to 3 of the contested decision, is the gradual liberalization of trade in agricultural and fishery products in accordance with Article 16 of the Association Agreement, which amends certain provisions and certain protocols.
For example, the liberalization agreement Article 17 (1) of the Association Agreement amended, which now provides:
“For the agricultural products, processed agricultural products, fish and fishery products listed in Protocol No. 1 originating in Morocco, the provisions of this Protocol apply when they are imported into the European Union.
Protocol No. 1 of the Association Agreement was also amended by the Liberalization Agreement. Essentially, it now provides for ad valorem and specific tariff rates for agricultural products, processed agricultural products, fish and fishery products originating in Morocco to be abolished or reduced to certain rates insofar as these products fall under the two agreements.
According to Art. 1 of its statutes, the Polisario Front, founded on May 10, 1973, is “a national liberation movement that emerged from the longstanding resistance of the Sahrawis against various forms of foreign rule”.
The international historical context of the establishment of the Front Polisario and the further development of the situation in Western Sahara, as essentially presented in paragraphs 1 to 16 of the judgment under appeal, can be summarized as follows.
Western Sahara is an area in north-west Africa that was colonized by the Kingdom of Spain at the end of the 19th century, then became a Spanish province, and finally in 1963 was included in the list of non-self-governing territories by the United Nations According to Art. 73 of the Charter of the United Nations, in which it is listed to this day.
On December 14, 1960, the UN General Assembly passed resolution 1514 (XV) “Declaration on the granting of independence to colonial countries and peoples” (hereinafter: UN General Assembly resolution 1514 [XV]). It says, among other things: “All peoples have the right to self-determination; by virtue of this right they freely determine their political status ... Immediate steps are to be taken in the trust areas and the areas without self-government as well as in all other areas which have not yet achieved independence in order to transfer all sovereign powers to the peoples of these areas, without any Conditions or reservations, in accordance with their freely expressed will and desire ... All states must scrupulously and precisely observe the provisions of the Charter of the United Nations ... on the basis ... of respect for the sovereign rights of all peoples and their territorial integrity. "
On December 20, 1966, the General Assembly of the United Nations passed resolution 2229 (XXI), “The Question of the Ifni and Spanish Sahara Territories,” affirming the “inalienable right of the [people] of Spanish Sahara to self-determination ] ". She called on the Kingdom of Spain, as the administrating power, "as soon as possible ... to determine the modalities for the organization of a referendum, under the supervision of the [UN], so that the indigenous people of the area can freely exercise their right to self-determination".
On October 24, 1970, the General Assembly of the United Nations adopted Resolution 2625 (XXV) “Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation between States in Accordance with the Charter of the United Nations”, with which it adopted this declaration, the text of the resolution is attached as an annex, approved. The declaration states inter alia: “[Every state is obliged to respect [the right of peoples to self-determination] in accordance with the provisions of the Charter. ... According to the Charter, the territory of a colony or other non-self-governing territory has a separate and different status from the territory of the state by which it is administered; this separate and distinct status under the Charter will remain in effect until the people of the colony or non-self-governing territory have exercised their right to self-determination in accordance with the Charter and in particular with its aims and principles. "
The Kingdom of Spain informed the UN on August 20, 1974 that it intended to organize a referendum in Western Sahara under its supervision.
On October 16, 1975, the International Court of Justice, as the main judicial organ of the UN, gave an opinion on a motion made by the General Assembly of the UN in the context of its work on the decolonization of Western Sahara (Western Sahara, Expert Opinion, ICJ Reports 1975, p. 12, hereinafter: Western Sahara report). It comes to the following conclusion in marginal 162:
“According to the documents submitted to the Court and the information provided to it, legal relationships existed in the form of loyalty relationships during the Spanish colonial rule between the Sultan of Morocco and certain of the tribes living in the Western Sahara, and there were also rights, including: Certain rights to land, which established legal relationships between Mauritanian unity, as the Court understands them, and the territory of Western Sahara, but no relationship of territorial sovereignty existed between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian unity . The Court of Justice did not therefore determine the existence of legal relationships that would prevent the application of resolution 1514 (XV) [of the General Assembly of the United Nations] to the decolonization of Western Sahara, in particular the application of the principle of self-determination on the basis of something freely and unadulterated Will of the population of the area to change. ... "
To the questions put to it by the General Assembly of the UN, the International Court of Justice finally replied in the opinion as follows:
"The Court of Justice is of the opinion
that the Western Sahara (Rio de Oro and Sakiet El Hamra) was not a no man's land (terra nullius) at the time of colonization by Spain.
that the area had legal relations with the Kingdom of Morocco which had the characteristics mentioned in marginal 162 of the present report;
In a speech given on the day of the report's publication, the King of Morocco stated that "all the world ... has recognized that [Western Sahara] belongs to [the Kingdom of Morocco]" and "[it is] up to [its] to recover this area peacefully ”. He therefore called for a "peace march" in which 350,000 people took part.
The UN Security Council adopted Resolution 380 (1975) on Western Sahara on November 6, 1975, in which it "noted with regret that the ... announced march had come" and "[the Kingdom of Morocco] calls on all participants in the march to withdraw immediately from the Western Sahara area ”.
On February 26, 1976, the Kingdom of Spain informed the UN Secretary-General that it would end its presence in Western Sahara on that day and that it would no longer consider itself responsible for the administration of this area internationally.
Meanwhile, an armed conflict had broken out in the region between the Kingdom of Morocco, the Islamic Republic of Mauritania and the Polisario Front.
The Islamic Republic of Mauritania concluded a peace treaty with the Polisario Front on August 10, 1979, with which it waived any territorial claims with regard to Western Sahara.
On November 21, 1979, the UN General Assembly passed resolution 34/37 on the issue of Western Sahara, in which it stated “the inalienable right of the people of Western Sahara to self-determination and independence under the Charter of the [UN] ... and the objectives of General Assembly resolution 1514 (XV) [reaffirms] "," on the aggravation of the situation caused by the continued occupation of Western Sahara by Morocco ... [is deeply saddened] "," Urges Morocco [asks] to join the peace efforts and the occupation of the Western Sahara area ”and“ to this end recommends that [the Polisario Front], as the representative of the people of the Western Sahara, unreservedly participate in all efforts to find a just, lasting and final political solution to the issue of the Western Sahara in accordance with the resolutions and declarations of the [UN]… should participate ”.
The conflict between the Polisario Front and the Kingdom of Morocco continued until, on August 30, 1988, they fundamentally agreed to the proposals for the settlement of the conflict made in particular by the UN Secretary-General. After that, inter alia a ceasefire is declared and a referendum on self-determination organized under the supervision of the UN.
The referendum has not yet been held. Currently, most of the Western Sahara is controlled by the Kingdom of Morocco, which is separated from the rest of Western Sahara, which is controlled by the Polisario Front, by a wall of sand built and monitored by the Army of the Kingdom of Morocco.
Proceedings before the court and the judgment under appeal
In an application received by the court registry on November 19, 2012, the Front Polisario brought an action for annulment of the contested decision.
He made eleven pleas in law.
The Council requested that the action be dismissed as inadmissible, or in any event as unfounded, and that the Front Polisario be ordered to pay the costs.
By order of the President of the Eighth Chamber of the General Court of 6 November 2013, the European Commission was granted leave to intervene in support of the form of order sought by the Council.
In the judgment under appeal, the Court of First Instance examined the arguments put forward by the Council and the Commission that the action was inadmissible because, on the one hand, the Polisario Front had failed to show that it was a legal person and that it was a party to the proceedings, and because the decision at issue was the Polisario Front affect others neither directly nor individually. It rejected these two objections of inadmissibility in paragraphs 34 to 60 and 61 to 114 of the judgment under appeal.
Regarding the right of action of the Front Polisario, the court stated in paragraphs 73 to 103 of the judgment under appeal that the purpose of the contested decision was to approve the conclusion of the liberalization agreement, and then found that the agreement “also” applies to Western Sahara ". “Against the background of this result” (paragraph 104 of the judgment under appeal) it then stated in paragraphs 105 to 110 and 111 to 114 of the judgment under appeal that the contested decision was of direct and individual concern to the Polisario Front.
Second, at the beginning of the examination of the eleven grounds for invalidity of the Front Polisario in paragraphs 116 and 117 of the judgment under appeal, the General Court stated:
The court then examined the pleas in law in detail. It rejected them all. None of them had shown that there was an absolute ban on concluding an agreement with a third country that could apply to a “disputed area”.
However, the General Court excluded a number of arguments which, in its view, are related to the subsidiary question of the conditions under which the Union institutions may authorize the conclusion of such an agreement.
The General Court then finally examined this question in paragraphs 223 to 247 of the judgment under appeal. In essence, it stated that the Council had a wide margin of discretion when it came to structuring the Union's external relations, so that if it intended to approve an agreement that would apply to a “disputed area” such as Western Sahara, and with it that the export of goods originating in such an area to the Union is to be facilitated, but is obliged to examine all relevant aspects of the individual case beforehand, in particular to ensure that the production of these goods is not to the detriment of the population of the area and that fundamental rights are respected of those affected would not be injured. The Council failed to comply with that obligation in the present case.
Accordingly, in paragraph 247 of the judgment under appeal, the Court of First Instance came to the conclusion that “the Council violated its obligation to examine all the circumstances of the individual case before adopting the [contested] decision” and it annulled the contested decision , "To the extent that he approves the application [of the liberalization agreement] to Western Sahara".
Proceedings before the Court of Justice and motions by the parties
In a separate pleading, which was received at the same time as the appeal was lodged at the Registry of the Court of Justice, the Council requested that the case be subject to the expedited procedure in accordance with Articles 133 to 136 of the Rules of Procedure of the Court of Justice.
The President of the Court granted this request by order of 7 April 2016.
By decisions of 2, 13, 18 and 24 May 2016, respectively, the President of the Court of Justice granted the Kingdom of Spain, the Portuguese Republic, the French Republic, the Federal Republic of Germany and the Kingdom of Belgium to intervene in support of the form of order sought by the Council . The Federal Republic of Germany then did not take part in the written or oral proceedings before the Court of Justice, and the Kingdom of Belgium did not take part in the oral proceedings.
By order of 9 June 2016, the President of the Court of Justice granted the Confédération marocaine de l’agriculture et du développement rural (Comader) to intervene in support of the form of order sought by the Council.
The Council requests
The Front Polisario requests
The Commission requests that the appeal be allowed.
The Kingdom of Belgium, the Kingdom of Spain, the French Republic, the Portuguese Republic and Comader also apply for the appeal to be granted.
Regarding the motions to reopen the oral procedure
The oral procedure was concluded after the Advocate General's Opinion had been submitted on September 13, 2016 in accordance with Article 82 (2) of the Rules of Procedure.
By a pleading received by the Court Registry on 15 September 2016, the Council submitted that, in its opinion, the Opinion raised a point of law which it had not raised in its appeal or by any other party , namely the question of the application of the liberalization agreement to Western Sahara. In the event that this question should be relevant to the decision, he suggested that a decision should be made to reopen the oral procedure.
In a document received by the Registry of the Court of Justice on 22 September 2016, Comader requested that the oral procedure be reopened for reasons comparable to those put forward by the Council.
According to Article 252 (2) TFEU, the Advocate General has the task of producing publicly reasoned opinions in complete impartiality and independence on those cases in which his participation is required, which of course are not binding on the Court of Justice, as does the reasoning of the Opinion applies (see judgments of July 18, 2013, Commission and Others v Kadi, C ‑ 584/10 P, C ‑ 593/10 P and C ‑ 595/10 P, EU: C: 2013: 518, para. 57, and of 6 October 2015, Commission / Andersen, C ‑ 303/13 P, EU: C: 2015: 647, Rn. 33).
The fact that one party does not agree with the Opinion can therefore not be a reason in and of itself that justifies the reopening of the oral procedure, regardless of the questions examined therein (see judgments of November 22, 2012, E.ON Energie / Commission, C ‑89/11 P, EU: C: 2012: 738, Rn. 62, and of 17 September 2015, Mory et al / Commission, C ‑ 33/14 P, EU: C: 2015: 609, Rn. 26).
However, under Article 83 of the Rules of Procedure, the Court of Justice may at any time, after hearing the Advocate General, decide to reopen the oral procedure, in particular if an argument that has not been discussed between the parties is relevant to the decision.
In the present case, however, the legal arguments to which the Council and Comader refer were relied on by the Commission in the response to the appeal, namely in support of the ground of appeal put forward by the Council and the Commission against the General Court's analysis of Contact the Front Polisario's legal standing.
They were also addressed at the hearing and discussed in detail between all parties.
After hearing the Advocate General, the Court therefore does not consider it appropriate to reopen the oral procedure.
On the appeal
Arguments of the parties
The Front Polisario raises the objection that the appeal is inadmissible. The Union does not have the necessary competence to conclude an international agreement that is legally applicable to Western Sahara. The Council therefore has no interest in setting aside the judgment under appeal, which merely annulled the contested decision "in so far as it authorizes the application [of the liberalization agreement] to Western Sahara".
The Council and the Commission consider this objection of inadmissibility to be unfounded. A Union body like the Council can appeal without having to prove an interest in legal protection. In any event, the Council has such an interest in legal protection in the present case. He has an interest in the setting aside of the judgment under appeal insofar as the contested decision has thus been partially annulled.
Assessment by the Court of Justice
According to Article 56 (2) of the Statute of the Court of Justice of the European Union, an appeal can be lodged by a party who has been unsuccessful in all or part of its applications before the court.
In addition, it follows from Article 56 (3) of the Statute that, except in cases relating to disputes between the Union and its employees, the Member States and the Union institutions do not need to demonstrate an interest in legal protection in order to be able to appeal against a judgment of the court (see judgments of February 22, 2005, Commission / max.mobil, C ‑ 141/02 P, EU: C: 2005: 98, para. 48, and of December 21, 2011, France / People's Mojahedin Organization of Iran, C ‑ 27/09 P, EU: C: 2011: 853, Rn. 45).
In the present case, the Council has failed in its applications before the General Court. He therefore does not need to show an interest in legal protection in order to be able to lodge the present appeal.
The objection of inadmissibility raised by the Front Polisario against the present appeal must therefore be rejected.
To the justification
The Council, supported by the Commission, puts forward six grounds of appeal: the General Court erred in law in analyzing the party or standing of the Front Polisario (first and second grounds of appeal), the extent of the judicial review of the margin of appreciation over which it had in the In the area of external economic relations of the Union, and the prerequisites for exercising this margin of appreciation have not been correctly assessed (third ground of appeal), violated the principle ne ultra petita (fourth ground of appeal), the Charter of Fundamental Rights of the European Union and certain international laws not correctly interpreted and incorrect applied (fifth ground of appeal) and the requirements for a partial annulment of a Union act were not correctly assessed (sixth ground of appeal).
First of all, the second ground of appeal, which challenges the Court of First Instance's assessment of the Front Polisario's standing to bring an action, must be considered, in particular the arguments of the Council and the Commission on the reasoning of the General Court in paragraphs 73 to 103 of the judgment under appeal the preliminary question of whether the liberalization agreement will apply to Western Sahara.
In this regard, the court first stated in paragraphs 72 and 73 of the judgment under appeal that when examining the Front Polisario's legal standing in view of its submissions to prove it, it must first be determined whether the liberalization agreement was applicable to Western Sahara.
The court then stated that, in view of the relevant submissions by the Council, the Commission and the Polisario Front, the liberalization agreement should be interpreted (paragraphs 74 to 88 of the judgment under appeal) and that such an interpretation should be interpreted in accordance with Article 31 of the Vienna Convention Rules of general customary international law (paras. 89 to 94 and 98 of the judgment under appeal). On the other hand, the international law principle of the relative effect of treaties, which found a particular expression in Art.February 2010, Brita (C ‑ 386/08, EU: C: 2010: 91) decided that because of the peculiarities of the case on which it had to decide, it was not relevant for the interpretation of the liberalization agreement (paras. 95 to 98 of contested judgment).
Finally, in paragraphs 99 to 102 of the judgment under appeal, the court interpreted the territorial scope of the liberalization agreement. It stated:
In paragraph 103 of the judgment under appeal, the court therefore came to the conclusion that the liberalization agreement, viewed in its context, should be interpreted as meaning that it “also applies to the territory of Western Sahara”.
Arguments of the parties
The Council objects to the General Court's assumption, in paragraph 73 of the judgment under appeal, that the contested decision could automatically and directly affect the Polisario Front if the liberalization agreement were to apply to Western Sahara. This assumption is not legally correct. As the court itself ruled in the order of 3 July 2007, Commune de Champagne et al. V Council and Commission (T ‑ 212/02, EU: T: 2007: 194, paras. 90 to 94), there is no order of the Council on the conclusion of an international agreement between the Union and a third country in the territory of the other party to the agreement having all legal effects. The legal status of such a territory is determined solely by the rules which the other contracting party has enacted in the exercise of its sovereign jurisdiction. The effects that the agreement produces on the territory of the other contracting party can only be traced back to the fact that, by its sovereign decision to ratify the agreement, it had given its consent to be bound by the agreement and committed itself to the measures to take that are suitable for the fulfillment of the resulting obligations. The admission of an action for the annulment of a decision of the Council on the conclusion of an international agreement, in so far as it is directed against its effects in the territory of the other contracting party, would therefore result in the Union judge exceeding its powers by referring to the legality of the agreement Union law expresses the rights granted to a third country or the obligations it has assumed on the basis of an agreement to which the third country has freely and sovereignly consented. This is exactly what the court did in the present case, however, by making the Front Polisario's right of action dependent on the condition that the liberalization agreement applies to Western Sahara. The fact that Western Sahara is a “disputed area” under international law is irrelevant to the approach chosen by the court in the aforementioned decision. He fully embraced this approach.
The Commission contends that, inter alia, The fact, cited in paragraph 87 of the judgment under appeal, that the liberalization agreement was in fact applied to the territory of Western Sahara in certain cases could neither be considered an element of the context nor as a subsequent exercise within the meaning of Art. 31 Para. 2 and Para. 3 Letter b of the Vienna Agreement, which would justify interpreting Article 94 of the Association Agreement as meaning that the two agreements would apply to this territory without self-government. The agreements did not contain any clause expressly excluding Western Sahara from their scope. Because of the disagreement between the Union and the Kingdom of Morocco with regard to the status of this non-self-governing territory, to which the court referred in paragraph 100 of the judgment under appeal, that circumstance justified it in the light of Article 31 (3) (c) of the Vienna Convention Convention, the principle of the relative effect of contracts laid down in Article 34 of this Convention, to which the Court of Justice referred in the judgment of 25 February 2010, Brita (C ‑ 386/08, EU: C: 2010: 91), The right of the people of Western Sahara to self-determination, which the Union has repeatedly affirmed in its statements on this subject, and the constant international practice in the area of the spatial application of the Treaties, but not to assume that the agreements will apply to Western Sahara.
The Front Polisario replied that the General Court did not examine the question of the application of the Liberalization Agreement to Western Sahara in order to infer any presumption as to the admissibility of the action, but in order to determine the factual and legal context relevant for assessing its standing. The Council and the Commission had long taken the view that the agreement did not apply to Western Sahara, but in their replies to the written questions put by the court and then at the hearing before the court finally admitted that the provisions contained in the agreement were through preferential tariff rates had actually been applied in certain cases to products originating in Western Sahara. As a result, the agreement differs significantly from the two comparable agreements that the Kingdom of Morocco has concluded with the United States of America and the European Free Trade Association (EFTA).
Assessment by the Court of Justice
As can be seen from paragraphs 73, 88 and 98 to 102 of the judgment under appeal, the conclusion reached by the court in paragraph 103 of the judgment under appeal is based on the fact that the liberalization agreement "also applies to the territory of Western Sahara ..." finds ”, not on a factual finding, but on a legal interpretation of the liberalization agreement that the court made on the basis of Art. 31 of the Vienna Convention.
Ultimately, what the Council and the Commission take before the Court of Justice on this issue have in common that the reasoning revolves around this conclusion of the General Court. The Commission believes that the liberalization agreement cannot be interpreted in such a way that it applies legally to the territory of Western Sahara. The Council contends, on the other hand, that the General Court erred in law in ruling on the legality of the rights and obligations which exist for the other party to the agreement, to which it freely and sovereignly consented. In any case, the examination of whether such a legal error actually exists presupposes that it is examined beforehand whether the conclusion reached by the court in paragraph 103 of the judgment under appeal with regard to the application of the liberalization agreement to the territory of Western Sahara is correct . If this is not the case, any rights and obligations of the other party to the agreement with regard to this area cannot be affected at all.
It must therefore be examined whether the considerations of the court, which first described the connection between the conclusion of the liberalization agreement (paragraphs 99 and 100 of the judgment under appeal), then determined the scope of the liberalization agreement on the basis of the wording of the association agreement (paragraph 101 of the judgment under appeal ), then examined the liberalization agreement itself (paragraph 102 of the judgment under appeal) and finally drew its conclusion therefrom (paragraph 103 of the judgment under appeal) are correct.
In that regard, the first point to be noted in relation to paragraph 101 of the judgment under appeal is that the court interpreted the territorial scope of the liberalization agreement there with regard to Article 94 of the Association Agreement, according to which it applies “to the territory of the Kingdom of Morocco”. It stated that the reference in that article to the territory of the Kingdom of Morocco could have been understood by the Moroccan authorities to include Western Sahara and that the Association Agreement, although the Council and the Commission were aware of that view , did not contain any interpretation clause or any other provision that would result in Western Sahara being excluded from the scope of the agreement.
The General Court took the view that, firstly, because the Kingdom of Morocco considered that Western Sahara was part of its territory, secondly, the Council and the Commission were aware of this view when the Association Agreement was concluded and, thirdly, there was no provision, which excluded Western Sahara from the territorial scope of the Agreement, it was to be assumed that the parties to the Association Agreement had tacitly agreed that the expression "Territory of the Kingdom of Morocco" within the meaning of Article 94 of the Association Agreement should be interpreted as meaning that this article also includes the Western Sahara.
In order to be able to derive the correct legal consequences from the lack of a provision that excludes Western Sahara from the territorial scope of the Association Agreement, the court, when interpreting the Agreement, not only had the rules of good faith interpretation pursuant to Art. 31 Para. 1 of the Vienna Convention, but also the rule provided for in paragraph 3 letter c of this article, according to which every relevant international law applicable in relations between the contracting parties must be taken into account (judgment of 25 February 2010, Brita, C ‑ 386 / 08, EU: C: 2010: 91, para. 43, cf. in this sense also judgment of 3 September 2008, Kadi and Al Barakaat International Foundation / Council and Commission, C ‑ 402/05 P and C ‑ 415/05 P, EU: C: 2008: 461, Rn. 291 and the case law cited).
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