By Sandra Hummelbrunner and Anne-Carlijn Prickartz
Shortly before Christmas, the Court of Justice delivered its highly anticipated judgment in case C-104/16 P Council v Front Polisario, on appeal against the General Court (GC) judgment in case T-512/12 Front Polisario v Council, an action for annulment brought by Front Polisario, the national liberation movement fighting for the independence of Western Sahara. In this action, Front Polisario sought the (partial) annulment of Council Decision 2012/497/EU, which approved the conclusion of an agreement between the EU and Morocco concerning reciprocal liberalisation measures on agricultural and fishery products and amendments to the 2000 EU-Morocco Association Agreement. The main bone of contention was the application of the Liberalisation Agreement to the territory of Western Sahara, a non-self-governing territory to be decolonised in accordance with the principle of self-determination, but which is considered by Morocco to be an integral part of its sovereign territory and is largely under Morocco’s effective control.
The Front Polisario, as the internationally recognised representative of the Sahrawi people, contended that the Agreement was contrary to both EU and international law, including the principle of self-determination, international humanitarian law, and EU fundamental rights. In first instance, the GC partly concurred with Front Polisario’s submissions, annulling the contested Decision insofar as it applied to Western Sahara (for a more extensive review of the GC judgment, see our Article on Front Polisario v Council). Deciding on appeal, the Court of Justice took a different path, managing to avoid a discussion on the merits by focussing on the GC’s interpretation of the territorial scope of application of the Liberalisation Agreement as determined by Article 94 of the EU-Morocco Association Agreement, which provides for the application of the Agreements to ‘the territory of the Kingdom of Morocco’.
The Judgment under Appeal: The Misinterpretation of the Territorial Scope in T-512/12
According to the Court, the GC had erred in law by interpreting the Liberalisation Agreement as also applying to the territory of Western Sahara. The Court pointed out that in interpreting the territorial scope of the Agreement, the GC had failed to take into account the customary rules of treaty interpretation, as codified in the Vienna Convention on the Law of Treaties (VCLT), in particular Articles 31(3)(c), 30(2) and 31(3)(b). Firstly, the Court stated that the GC had failed to consider ‘any relevant rules of international law applicable in the relations between the parties’ when interpreting the Liberalisation Agreement (cf Article 31(3)(c) VCLT). The Court identified three relevant rules of applicable international law that the GC should have taken into consideration: the principle of self-determination, the territorial scope-rule codified in Article 29 VCLT, and the principle of the relative effect of treaties (also known as the pacta tertiis principle).
The principle of self-determination, an essential principle of international law and enforceable erga omnes (East Timor (Portugal v Australia) para 29 and cited case law), provides for the distinct and separate status of Western Sahara, which precludes an interpretation in which Western Sahara is part of Moroccan territory (Judgment para 88-93). Furthermore, the Court stated that the customary rule on the territorial scope of treaties (cf Article 29 VCLT) provides that treaties are binding upon parties in respect of their ‘entire territory’, unless a different intention appears from the treaty or is otherwise established. The phrase ‘entire territory’ should, according to the Court, be interpreted as applying to the geographical space over which a State exercises full sovereign power, thus excluding any other type of territories such as non-self-governing territories, unless the treaty expressly provides otherwise (Judgment para 94-99). Finally, the Court held that the GC, in its interpretation, should have taken into account the principle of the relative effect of treaties, since the extension of the territorial scope of the Liberalisation Agreement to Western Sahara would have necessarily affected a ‘third party’, namely the people of Western Sahara (Judgment para 100-107).
Secondly, the Court considered the GC’s finding that the omission of a clause excluding the application of the Liberalisation Agreement to the territory of Western Sahara amounted to an implicit acceptance of its applicability to that territory by the Council and the Commission. Here, the Court used the rule codified in Article 30(2) VCLT in order to declare the Liberalisation Agreement to be ‘subordinate’ to the Association Agreement, and consequently, that the provisions of the Association Agreement which have not been amended by the Liberalisation Agreement prevail in order to prevent any incompatibility between them. This means, according to the Court, that the ‘territorial clause’ of the Association Agreement (Article 94) prevails, and accordingly, that the Liberalisation Agreement could not be understood as including Western Sahara in its territorial scope, thus making the insertion of an express exclusion clause unnecessary (Judgment para 109-115).
Lastly, the Court discussed the GC’s interpretation of the role of subsequent practice in interpreting the Liberalisation Agreement, the rule of interpretation codified in Article 31(3)(b) VCLT. In its judgment, the GC had concluded that the subsequent de facto application of the Association Agreement and the Liberalisation Agreement to the territory of Western Sahara had to be interpreted as subsequent practice in the sense of Article 31(3)(b) VCLT, justifying the interpretation of the territorial scope of the Agreements as including Western Sahara. The Court, however, reached a different conclusion, stating that the GC had failed to consider all the elements of the ‘subsequent practice rule’, especially the requirement that an ‘agreement’ on the interpretation of the agreement had been established between the parties. In the opinion of the Court, the mere instances of de facto application could not be interpreted as establishing such an agreement on interpretation of the territorial scope. The GC thus erred in law in holding that such subsequent practice justified an interpretation in which the Agreements were legally applicable to Western Sahara (Judgment para 117-125).
In finding that the GC had incorrectly interpreted the territorial scope of the Association Agreement and the Liberalisation Agreement, which the GC had used as a pivotal element in considering Front Polisario’s standing, the Court allowed the Council’s appeal and set aside the GC’s judgment. Giving the final judgment in the matter, the Court declared Front Polisario’s action to be inadmissible, since the Agreements could not be interpreted as applying to Western Sahara, leaving them with a lack of standing under Article 263 TFEU (Judgment para 133).
Circumventing the Issue of the de facto Application to Western Sahara
In its judgment, the Court largely followed the principal considerations of Advocate-General Wathelet, who proposed focussing on the territorial scope of the Agreements in question (Opinion of AG Wathelet, para 54-115). By concentrating on the legal interpretation of the GC, the Court could avoid a consideration of the claims brought by Front Polisario, which included potentially valid accusations relating to the violation of fundamental principles of EUlaw and international law. In addition, by solely focussing on the GC’s interpretation of the Agreements, the Court was able to circumvent the instances of de facto application by both Morocco and the Council and Commission, since the Court’s conclusion of legal inapplicability to Western Sahara made these instances factual anomalies falling outside the scope of appeal. At the same time, it follows from this conclusion that the instances of de facto application are then, in fact, illegal, since the Agreements could not have been interpreted as legally applicable to Western Sahara and Western Saharan products.
Interestingly, the Court only briefly touches upon this issue, by stating that it could not have been the EU’s intention to implement the Agreements contrary to international law, stopping just short of declaring that the EU could not possibly (intentionally) violate international law (Judgment para 123-124). Although the legality of the factual application is not directly addressed, it necessarily follows from the conclusion of legal inapplicability of the Agreements to Western Sahara that any future application, de facto or otherwise, is out of the question. Thus, the Court essentially came to the same result as the GC, since both judgments lead to the inapplicability of the Agreements to Western Sahara (a finding that will most likely also have an effect on case C-266/16 UK Western Sahara Campaign, a preliminary reference currently before the Court).
The Court’s Method of Treaty Interpretation
One of the main differences between the two courts, however, is the method employed to come to these results. Whereas the GC primarily relied on EU law to come to the partial annulment, the Court fully based its argumentation on customary international rules of treaty interpretation, applying these rules to the GC’s argumentation. It thereby indirectly included in its argumentation substantive rules of international law by using them as tools of interpretation (especially via Article 31(3)(c) VCLT), declaring the GC’s failure to do so an error in law (Judgment para 86, 97, 107). This line of argument, then, seems to lead to a duty – under EU law – to interpret treaties in accordance with international law: after all, the GC’s legal interpretation of the Agreement in which it failed to take international law into account led to an error in law.
In addition, the Court’s interpretation and application of the principle of the relative effect of treaties proved interesting in and of itself, seeing that it designated the ‘people of Western Sahara’ as a ‘third party’, thereby extending the application of the customary pacta tertiis principle to non-State parties, as it had done before in the case C-386/08 Brita (Brita para 52). The Court therefore chose an interpretation of the customary pacta tertiis principle that extends beyond the scope of the principle codified in Article 34 VCLT, which explicitly refers to third States.
The judgment in Council v Front Polisario offers an astute way out of a difficult and politically sensitive issue looming over the EU-Morocco trade relations. By limiting the legal application of the Association Agreement and the Liberalisation Agreement to the internationally recognised territory of Morocco, the Court firmly placed these trade relations within the confines of international law, all the while avoiding the thorny subject of the de facto application, thereby letting the Council and the Commission of the hook.
Nevertheless, in the face of the Court’s explicit exclusion of Western Sahara, the Council and the Commission should both be able to draw their conclusions with regard to the legality of these factual applications. It remains to be seen what effect this judgment will have on the EU-Morocco trade relations: whereby the GC’s partial annulment would have required the renegotiating of the Agreements, the Court’s judgment requires no further EU action – at least not from a legal standpoint. And although the Front Polisario lost its appeal and was denied standing, it does not leave the Court room empty handed: the inapplicability of the Agreements to Western Sahara and the explicit confirmation of its distinct status under international law is after all, effectively, the result they sought to achieve in the first place.