URU, Alm.del - 2016-17 - Bilag 67: Pressemeddelelse om dom fra EU-Domstolen, som anbefaler, at beslutningen om at stoppe frihandelsaftalen med Marokko, omstødes

Udenrigsudvalget 2016-17
URU Alm.del Bilag 67
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Court of Justice of the European Union

PRESS RELEASE No 146/16

Luxembourg, 21 December 2016

Judgment in Case C-104/16 P

Council v Front populaire pour la libération de la saguia-el-hamra et du rio de

oro (Front Polisario)

Press and Information

The Association and Liberalisation Agreements concluded between the EU and

Morocco are not applicable to Western Sahara

The Court therefore sets aside the judgment of the General Court which had found the opposite to

be the case and dismisses the action for annulment brought by the Front Polisario against the

Council's decision to conclude the Liberalisation Agreement

Western Sahara is a territory in North-West Africa, bordered by Morocco to the north, Algeria to the

north-east, Mauritania to the east and south and the Atlantic to the west. Currently, the largest part

of Western Sahara is controlled by Morocco. A smaller part of that territory, in the east, is

controlled by the Front Polisario, a movement which seeks independence for Western Sahara and

whose legitimacy has been recognized by the United Nations.

In 2012, the EU and Morocco concluded an agreement providing for reciprocal liberalisation

measures on agricultural products, processed agricultural products and fish and fishery products

(the ‘Liberalisation Agreement’). That agreement, the territorial scope of which depends on that of

the EU-Morocco Association Agreement

, was formally concluded by the EU on the basis of a

Council decision

The Front Polisario brought an action before the General Court seeking the annulment of that

decision. By its judgment, delivered on 10 December 2015

, the General Court annulled the

decision, having held, first of all, that the Association and Liberalisation Agreements were

applicable 'to the territory of the Kingdom of Morocco' and that that expression was to be

understood, in the absence of a stipulation to the contrary, as encompassing Western Sahara. The

General Court then held that, in view of the application of those agreements to Western Sahara,

Front Polisario was concerned by the Council's decision and therefore had standing to request the

annulment of the decision. Finally, the General Court held that the Council had failed to fulfill its

obligation to examine, before the conclusion of the Liberalisation Agreement, whether there was

any evidence of the 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. Dissatisfied with that judgment, the Council brought an action before the Court of Justice

seeking its annulment.

In today’s judgment,

the Court, giving judgment following an expedited procedure at the

request of the Council,

upholds the appeal and

sets aside the judgment of the General Court.

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, signed in Brussels on 26 February 1996 and

approved on behalf the Communities by Decision 2000/204 of the Council and the Commission of 24 January 2000 (OJ

2000 L 70, p. 1).

Council Decision 2012/497/EU of 8 March 2012 on the conclusion of an 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, on the one hand, and the Kingdom of Morocco, on the other hand (OJ

2012 L 241, p. 2).

T-512/12

Front Polisario v Council.

www.curia.europa.eu

URU, Alm.del - 2016-17 - Bilag 67: Pressemeddelelse om dom fra EU-Domstolen, som anbefaler, at beslutningen om at stoppe frihandelsaftalen med Marokko, omstødes

The Court observes that, in determining the territorial scope of the Liberalisation Agreement,

whose terms do not at any point refer to Western Sahara, the General Court failed to take account

of all the rules of international law applicable to relations between the EU and Morocco, as required

by the 1969 Vienna Convention on the Law of Treaties

In that regard, it notes first of all that,

in view of the separate and distinct status guaranteed to

the territory of Western Sahara under the Charter of the United Nations

and the principle of

self-determination of peoples,

it cannot be held that the term ‘territory of the Kingdom of

Morocco’, which defines the territorial scope of the Association and Liberalisation

Agreements, encompasses Western Sahara and, therefore, that those agreements are

applicable to that territory.

The General Court thus failed to draw the consequences of the status

of Western Sahara under international law.

Secondly, it is clear from international practice that,

where a treaty is intended to apply not only

to the sovereign territory of a State but also beyond it, that treaty must provide therefor

expressly,

whether it is a territory under the jurisdiction of that State or in any territory for whose

international relations the State in question is responsible. That rule therefore also precludes the

application of the Association and Liberalisation Agreements to Western Sahara.

Finally, after recalling

the principle of the relative effect of treaties under which a treaty must

neither impose any obligations or confer any rights on third States without their consent,

the Court states that, in view of the Advisory Opinion on Western Sahara handed down in 1975 by

the International Court of Justice at the request of the United Nations General Assembly

the

people of that territory must be regarded as a third party

which may be affected by the

implementation of the Liberalisation Agreement. In the present case,

it is not apparent that that

people consented to the agreement being applied to Western Sahara.

As to the fact that certain clauses in the Association and Liberalisation Agreements were applied

‘de facto’ in some cases to products originating in Western Sahara, the Court finds that

it has not

been established that such a practice is the result of an agreement between the parties to

amend the interpretation of the territorial scope of those agreements.

Moreover, a purported

intention to that effect by the EU entails conceding that it intended to implement the agreements in

a manner incompatible with the principles of self-determination and of the relative effect of treaties

as well as the requirement of good faith under international law.

Having concluded that the Liberalisation Agreement does not apply to the territory of

Western Sahara, the Court sets aside the judgment of the General Court

which had reached

the opposite conclusion and decides to adjudicate itself on the action brought by the Front

Polisario. In that regard, it notes that, since the Liberalisation Agreement does not apply to

Western Sahara, the Front Polisario is not concerned by the decision of the Council to conclude

that agreement.

The Court therefore rejects the Front Polisario's action on the ground of lack

of standing.

NOTE:

An appeal, on a point or points of law only, may be brought before the Court of Justice against a

judgment or order of the General Court. In principle, the appeal does not have suspensive effect. If the

appeal is admissible and well founded, the Court of Justice sets aside the judgment of the General Court.

Where the state of the proceedings so permits, the Court of Justice may itself give final judgment in the case.

Otherwise, it refers the case back to the General Court, which is bound by the decision given by the Court of

Justice on the appeal.

Unofficial document for media use, not binding on the Court of Justice.

The

full text

of the judgment is published on the CURIA website on the day of delivery.

Press contact: Holly Gallagher

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(+352) 4303 3355

The Vienna Convention on the Law of Treaties, concluded in Vienna (Austria) on 23 May 1969 (United

Nations Treaty

Series,

Vol. 1155, p. 331).

Advisory Opinion of the International Court of Justice on Western Sahara (ICJ

Reports

1975, p. 12).

www.curia.europa.eu

URU, Alm.del - 2016-17 - Bilag 67: Pressemeddelelse om dom fra EU-Domstolen, som anbefaler, at beslutningen om at stoppe frihandelsaftalen med Marokko, omstødes

Pictures of the delivery of the judgment are available from "Europe

by Satellite"

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