Taking Locus Standing of International Actors Seriously
Joined Cases C-779/21 P and C-799/21 P (Front Polisario II)
On October 4th 2024 the Court of Justice (the Court) issued its judgement in joined cases C-779/21 P and C-799/21 P (Front Polisario II) upholding the judgement of the General Court (GC) in which GC annulled Council’s decision on the conclusion of the trade agreement between European Union and Morocco. In its landmark judgement the Court acknowledged the legal standing of Front Polisario – the liberation movement representing rights of the people of Western Sahara before the Court of Justice of the European Union (CJEU). The Court settled on a broad interpretation of EU’s procedural provisions regulating access to EU’s courts and paved the way for the international actors (including non-State entities) to access EU’s justice system. The Court’s findings concerning legal standing in Front Polisario II advance the strand of the case law in which the CJEU presents flexible and adequate approach to the interpretation of procedural rules on access to EU’s courts – and for that are worth applauding.
Western Sahara before EU’s courts
Front Polisario, an organization formed in 1973, represents interests of the indigenous people of Western Sahara (Sahrawi). Western Sahara is a territory located in northwest Africa which historically constituted a Spanish colony. In 1963 the UN included Western Sahara in the list of non-self-governing territories as a territory administered by the Kingdom of Spain. After Spain left the territory of Western Sahara, an armed conflict broke out between Morocco, Mauritania and Front Polisario, at the end of which Morocco took control of part of the disputed territory. Over the years several UN resolutions recognized and affirmed the right to self-determination of the people of Western Sahara (see inter alia here and here). In addition, in 1975, the International Court of Justice issued an advisory opinion in which it concluded there was no tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco.
The EU and Morocco maintain an established trade relationship (see: Association Agreement). In previous years, some trade agreements concluded within this framework have been contested based on allegations that they applied to the territory of Western Sahara in a manner that disregards its status. Prior to 4th October 2024, the Court issued two judgements regarding Western Sahara. In the case C‑104/16 P Front Polisario v. Council the Court dismissed the Polisario’s action against the trade agreement between the EU and Morocco on liberalisation measures on agricultural and fishery products (Front Polisario I case). In the second case C‑266/16 Western Sahara Campaign UK, the Court addressed a preliminary question on the validity of the EU-Morocco fisheries trade deals. In both cases the Court concluded that including the territory of Western Sahara within the scope of the international agreement between Morocco and EU – which territorial scope was limited by itself to the “the territory of Morocco” – would contravene rules of general international law (in particular the principle of self-determination). At the same time, the Court in process of interpretation of international agreements between EU and Morocco at issue, ignored the de facto application of these agreements to the territory of Western Sahara (see AG’s Wathelet’s opinion, C‑266/16). That interpretation was rightfully criticized in literature (see inter alia here and here).
The recent Front Polisario II case was brought to the General Court (GC) under Article 263(4) TFEU as an action to seek annulment of the Council’s decision 2019/217 approving on behalf of the EU the conclusion of the new trade agreement between the EU and Morocco. It is important to note, that Polisario’s action was directed against the EU’s act – Council’s decision, not the trade agreement between EU and third party (Morocco) and as such could solely attain the purpose of annulment of the decision, not invalidate the international agreement (as explained in C‑266/16 Western Sahara Campaign UK).
The legal standing of Front Polisario before EU courts
According to 263(4) TFEU legal persons who are individually and directly concerned by the EU’s legislative act can trigger proceedings against said act. In that respect in Front Polisario II the Court mostly followed the GC’s reasoning and established that Front Polisario enjoys legal standing before CJEU and can be a party to the legal proceedings (see analysis of the GC’s ruling here).
In its analysis regarding Polisario’s legal personality the Court underlined that the concept of “legal person” introduced in 263(4) TFEU cannot be interpreted restrictively (see: Venezuela v. Council). With regard to international actors, it should encompass both: entities recognized by EU’s institutions as negotiation parties concerning the rights stemming from the EU’s legal system and – as the Court described – “distinct subjects with its own rights and obligations”. At the same time, the Court rightfully dismissed the argument that the liberation movement would have to be recognized under the national legal order. Instead, the Court analysed Polisario’s participation in various international fora and the fact that it maintains legal relations at the international level (with particular emphasis on its role in the UN’s process on the determination of the future of Western Sahara). Consequently, the Court confirmed the Front Polisario has “sufficient legal existence to be able to be a party to legal proceedings” before EU courts. Noteworthy, the Court was frugal in words when it provided rationale for such interpretation of the term “legal person” in the specific context of the case. The Court seemed also cautious not to mention that Front Polisario enjoys international legal personality and referred rather to the vague term of “legal existence”.
Having established the legal personality of the Front Polisario, the Court had to consider whether the Front Polisario was directly and individually concerned by the contested decision. In that respect, the Court recognized the Front Polisario as the representative of the people of Western Sahara entitled to represent Sahrawi before EU courts in cases where contested legislative act concerns them directly (affects in particular their right to self-determination) and individually.
For the first time in history the Court, after analysing all of the grounds of admissibility in 263(4) TFEU, confirmed unambiguously legal standing of Front Polisario. The decision was inspired by the specific wording of the international agreement at issue. Noteworthy, in the former case of annulment – Front Polisario I, the Court in 2016 established lack of direct and individual concern on Polisario’s side, since, according to the Court, Western Sahara was not covered by the territorial scope of the EU’s and Morocco’s trade agreement under consideration (because it was limited to the “territory of Morocco”). On the other hand, disputed decision of the Council in Front Polisario II concerned the agreement between the EU and Morocco in which parties precisely stipulated that it should cover the products originating in Western Sahara. Therefore, it is non-surprising that in the presence of such wording the Court maintained that the contested decision impacted the self-determination right of the people of Western Sahara. In a similar vein the Court reiterated GC’s finding that Polisario as the representative of people of the Western Sahara can be considered individually affected by the contested decision, since the agreement between Morocco and EU clearly impacts the territory of the Western Sahara.
Annulment of the decision and its repercussions
After confirming that Front Polisario indeed had legal standing, the Court examined the merits of the case and determined that the EU institutions did not secure consent from the people of Western Sahara for the trade agreement with Morocco which was necessary for its compatibility with provisions of the international law (a matter discussed elsewhere on the Blog). Hence, Polisario succeeded in its quest to annul the EU’s decision on the conclusion of the trade agreement with Morocco. The annulment of the Council’s decision doesn’t mean, however, that the agreement itself will cease to exist. That seems in contradiction with the pacta sunt servanda principle. As AG Wathelet maintained in his opinion, given in Western Sahara Campaign UK, if the decision on the conclusion of the international agreement is annulled, the international agreement would likely remain binding, however the EU’s institutions will be obliged to “eliminate the incompatibilities between that agreement and the Treaties and with the constitutional principles stemming from those Treaties” or “denounce the agreement or withdraw from it”. One expects that that application of the judgement will be a tough nut to crack for the EU’s administration. Both the President of the Commission and the High Representative already issued a statement reiterating the intention to preserve close relations with Morrocco rather than assuring that the EU’s institutions will respect Western Sahara’s right to self-determination.
Conclusion
In Front Polisario II, the CJEU advanced the case-law concerning access of international actors to EU’s justice. The final result of the Court’s deliberations on Polisario’s standing is convincing. The broad approach to the interpretation of the term “legal person” was confirmed and reaffirmed. The procedural findings of the Court are even more prominent taking into consideration, that the action of the Front Polisario resulted in the annulment of the contested decision. The next months will show legal repercussions of the precedent-setting judgement given in Front Polisario II in context of EU’s international legal commitments.
