Judgment of the Court (Grand Chamber) of 4 October 2024

– Arguments of the parties

76 The Council and the Commission submit that the General Court was incorrect to conclude, in paragraph 224 of the judgment under appeal, that Front Polisario was directly concerned by the decision at issue.

77 The Commission submits, in particular, that the General Court disregarded EU law in holding that some of the effects of the decision at issue and the agreement at issue satisfied the conditions permitting a finding that Front Polisario was directly concerned by the decision at issue, even though the agreement at issue, which that decision was intended to approve on behalf of the Union, confined itself, by amending the rules on origin, to giving preferential access within the European Union to certain products originating in Western Sahara, while taking care to recognise the separate status of that territory and leaving entirely open the outcome of the process conducted at United Nations level concerning that non-self-governing territory. The Commission therefore considers that it is the importers who, where appropriate, may assert ‘rights’ conferred by the agreement at issue and contest decisions by the customs authorities implementing that agreement before the courts of the Member States, in the event that those rights are not observed. Customs declarants must, as a general rule, however, be established in the Union. Producers from the non-member country concerned by the agreement at issue may admittedly benefit from a more open European market, but such a benefit is an ‘economic’ effect of that agreement. The effects ‘outside the European Union’ are thus not of a legal nature and are also not governed by EU law.

78 The reasoning used by the General Court to reject the institutions’ arguments was in fact intended not to establish that Front Polisario is directly concerned by the decision at issue but rather to establish that the agreement at issue is applicable to the territory of Western Sahara and thus affects the people of that territory. However, the fact that the Moroccan customs authorities are called upon to participate in the implementation of the agreement at issue as regards the issuing of certificates of origin, that exporters must comply with certain conditions in order to enable importers to benefit from preferential tariffs, or that that agreement has an impact on products from Western Sahara, in no way means that the agreement at issue has legal effects in a third territory.

79 The Council adds, in particular, that the finding, set out in paragraph 171 of the judgment under appeal, that, in view of the nature of a decision concluding an international agreement and its own legal effects, the existence of direct effects of the decision at issue on Front Polisario’s legal situation, on account of the content of the agreement at issue, cannot be excluded from the outset, is based on grounds which are vitiated by errors of law.

80 It argues that the General Court was incorrect to hold, in paragraphs 150 and 162 of the judgment under appeal, that a decision concluding an international agreement is a constituent element of that agreement and produces legal effects vis-à-vis other parties ‘in so far as it formalises the acceptance by the European Union of commitments made to them’. The decision at issue does not produce legal effects outside the internal legal order of the European Union. By that decision, the Union expressed its consent within its internal legal order, contrary to what was held by the General Court in paragraph 162 of the judgment under appeal.

81 It was the act of notification by the Union, expressly mentioned both in the last paragraph of the agreement at issue and in Article 2 of the decision at issue, that Front Polisario should have challenged before the General Court – assuming that all the conditions for admissibility were satisfied. The Council disputes that those conditions are satisfied in this instance.

82 It also disputes the finding of the General Court in paragraph 215 of the judgment under appeal that, in so far as the conclusion of the agreement at issue affects the people of Western Sahara and must obtain its consent, the decision at issue has direct effects on Front Polisario’s legal situation as the representative of that people.

83 The French Republic considers that the General Court made a series of errors of law relating to the legal effects of a decision of the Council concluding an international agreement. Like the Council, it emphasises that, while the finding, set out in paragraph 150 of the judgment under appeal, that a decision concluding an international agreement gives concrete expression to the European Union’s consent to be bound by that agreement, is accurate within the legal order of the European Union, only the act of notifying the party concerned that the internal procedures have been completed constitutes an expression, at international level, of consent to be bound by an agreement. In addition, it argues that the General Court made another series of errors of law by claiming that the legal situation of Front Polisario is directly changed by the agreement at issue itself.

84 Similarly, Comader supports, in the first place, the Council’s arguments concerning the errors of law which the General Court is alleged to have made in paragraphs 149 to 159 of the judgment under appeal, given that the decision to conclude a treaty does not entail the entry into force of that treaty. In addition, it argues that the principle of effective judicial protection is not intended to extend the rights of action of a non-European applicant to defend collective rights derived from international law. In the second place, Comader submits that, by holding, in paragraph 215 of the judgment under appeal, that Front Polisario was ‘directly’ concerned by the decision at issue, the General Court confused Front Polisario with the people of Western Sahara.

85 Front Polisario contests those arguments.

– Findings of the Court

86 As has been recalled in paragraph 63 of the present judgment, under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

87 As was recalled by the General Court in paragraph 144 of the judgment under appeal, according to settled case-law, the condition that a natural or legal person must be directly concerned by the decision which that person is contesting requires that two cumulative conditions be satisfied, namely that the measure being contested, first, directly affects the legal situation of that person and, second, leaves no discretion to the addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting solely from EU provisions without the application of other intermediate rules (see, to that effect, judgments of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci , C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 42 and the case-law cited, and of 12 July 2022, Nord Stream 2 v Parliament and Council , C‑348/20 P, EU:C:2022:548, paragraph 43 and the case-law cited).

88 In this instance, by its action for annulment before the General Court, Front Polisario was seeking to protect the people of Western Sahara’s right to self-determination, as already recognised by the Court of Justice in paragraphs 88, 91 and 105 of the judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973 ). It is in the light of the effects of the decision at issue and, accordingly, of the agreement at issue on the legal situation of that people, represented for the purposes of the present cases by Front Polisario, that it is necessary to examine whether the latter is directly concerned by that decision for the purposes of the case-law recalled in paragraph 87 of the present judgment.

89 Although it has not been officially recognised as being the exclusive representative of the people of Western Sahara, Front Polisario is, according to the resolutions of the highest bodies of the United Nations, including those of the United Nations Security Council referred to in paragraph 31 of the present judgment, a privileged interlocutor in the process conducted under the auspices of the United Nations with a view to determining the future status of Western Sahara. It also participates in other international fora in order to defend that people’s right to self-determination.

90 Those particular circumstances allow the finding that Front Polisario is entitled to contest, before the EU judicature, the legality of an act of the Union which directly affects the legal situation of the people of Western Sahara in its capacity as holder of the right to self-determination where that act individually concerns that people or, if the act is a regulatory act, where it does not entail implementing measures.

91 In such circumstances, the condition, laid down in the fourth paragraph of Article 263 TFEU, that a natural or legal person must be directly concerned by the decision which that person is contesting must be assessed, taking into account Article 73 of the Charter of the United Nations and the principle of effective judicial protection, in relation to the legal situation of the people of Western Sahara, represented for the purposes of the present cases by Front Polisario.

92 In this instance, the decision at issue and, by extension, the agreement at issue, satisfy, through their impact on the people of Western Sahara’s right to self-determination, the conditions recalled in paragraph 87 of the present judgment (see, to that effect, judgment of 21 December 2016, Council v Front Polisario , C‑104/16 P, EU:C:2016:973, paragraph 106 ).

93 First, as was stated, in essence, by the Advocate General in point 75 of her Opinion, the purpose of that decision is the conclusion of an international agreement which is intended to be applied to the majority of a territory in respect of which the people of Western Sahara holds the right to self-determination. It therefore necessarily has an impact on the rights of that people with regard to that territory, including the right, derived from Article 73 of the Charter of the United Nations and the customary international law principle of permanent sovereignty over natural resources, to exploit the natural riches of the territory (see, to that effect, ICJ, Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), judgment of 19 December 2005, ICJ Reports 2005, p. 168, paragraph 244).

94 In particular, although the European Union does not, by the agreement at issue, recognise the claims of the Kingdom of Morocco concerning sovereignty over the territory of Western Sahara, that agreement nonetheless recognises the legal effects, in EU law, of acts carried out in that non-self-governing territory by the competent authorities of the Kingdom of Morocco, including the customs authorities, such as those concerning the grant of certificates of origin for products originating in Western Sahara.

95 In that regard, it is necessary to reject the Commission’s argument that the fact that the agreement at issue has an impact on products originating in Western Sahara does not entail, in law, an ‘application of the agreement at issue to the territory of Western Sahara’. Indeed, the implementation of that agreement requires the presence of the Moroccan authorities in the territory of Western Sahara and the exercise by those authorities of administrative functions in that territory, with a view to the adoption of certain acts provided for by that agreement. Thus, by recognising that such acts by the Moroccan authorities have legal effects in EU law, the decision at issue directly affects the legal situation of the people of Western Sahara in its capacity as holder of the right to self-determination, regardless of whether or not the agreement at issue can be relied on against that people in international law having regard to the principle of the relative effect of treaties.

96 Second, after the entry into force of the agreement at issue, the obligation to grant preferential treatment to products originating in Western Sahara and certified as such by the Moroccan customs authorities is binding on the European Union, without there being a need for the adoption of any other additional act supplementing the decision at issue which would involve discretion on the part of the authorities tasked with the implementation of that agreement, which is, to that extent, purely automatic.

97 In that context, it is necessary to reject the line of argument put forward by the Council and the French Republic, directed against paragraphs 150 and 162 of the judgment under appeal, according to which Front Polisario’s action before the General Court should have been brought not against the decision concluding the agreement at issue, but against the act whereby the Union notified the Kingdom of Morocco of its approval of that agreement.

98 The decision concluding an international agreement constitutes a definitive act in the internal legal order of the European Union, expressing the will of the Union to be bound by that agreement (see, to that effect, Opinion 2/00 (Cartagena Protocol on Biosafety) of 6 December 2001, EU:C:2001:664, paragraph 5 ). Such a decision constitutes, according to settled case-law recalled in paragraph 135 of the judgment under appeal, an act which is open to challenge, as the Court does not have jurisdiction to annul an international agreement (see, to that effect, judgment of 27 February 2018, Western Sahara Campaign UK , C‑266/16, EU:C:2018:118, paragraphs 45 to 51 ). By contrast, the act of notifying the other contracting party of the approval of such an agreement constitutes an implementing measure which, in principle, must be regarded as an act which is not open to challenge.

99 Having regard to the foregoing considerations, the General Court was fully entitled to hold, in paragraph 224 of the judgment under appeal, that Front Polisario was directly concerned by the decision at issue.

100 Consequently, the second ground of the appeal in Case C‑779/21 P and the first part of the second ground of the appeal in Case C‑799/21 P must be rejected as unfounded.

– Arguments of the parties

101 The Council and the Commission, like the French Republic and Comader, consider that the General Court was incorrect to conclude, in paragraph 238 of the judgment under appeal, that Front Polisario was individually concerned by the decision at issue.

102 The Commission notes, in particular, that, in paragraph 230 of the judgment under appeal, the General Court confines itself to referring to developments relating to the condition concerning whether Front Polisario was directly concerned by the decision at issue; developments which, as it has argued in connection with the second ground of the appeal in Case C‑779/21 P, are vitiated by errors of law. Similarly, the Council argues that the General Court made errors of law which also vitiate the conclusion that Front Polisario is individually concerned by the decision at issue.

103 Furthermore, the Council and the Commission both contest the rejection by the General Court, in paragraph 235 of the judgment under appeal, of the relevance of the judgment of 10 April 2003, Commission v Nederlandse Antillen (C‑142/00 P, EU:C:2003:217 ), in which the Court of Justice held that the general interest which an overseas country or territory (OCT), as an entity responsible for economic and social affairs within its jurisdiction, may have in obtaining a result that is favourable for its economic prosperity is not sufficient on its own to enable that OCT to be regarded as being individually concerned within the meaning of the fourth paragraph of Article 263 TFEU.

104 The Commission emphasises in that regard that the distinction drawn by the General Court, in paragraphs 234 and 235 of the judgment under appeal, between the situation at issue in the judgment of 10 April 2003, Commission v Nederlandse Antillen (C‑142/00 P, EU:C:2003:217 ), and that at issue in this instance is artificial and incorrect in law, as the measure being contested in that judgment of the Court of Justice concerned only OCTs, some of which are or were non-self-governing territories. It argues that it is not possible to accept that the Government of the Netherlands Antilles is not entitled to challenge an act of the Union which economically concerns its territory while Front Polisario is entitled to do so, without considering that movements which seek the independence of a territory or which are in conflict with a State have more guarantees than regional governments.

105 For its part, the Council considers that the reasons relied on by the General Court do not correspond to the argument which it had drawn from the judgment of 10 April 2003, Commission v Nederlandse Antillen (C‑142/00 P, EU:C:2003:217 ), recalling that it had argued, in its rejoinder before the General Court, that it followed from that judgment that, even assuming that Front Polisario is an entity responsible for economic issues concerning Western Sahara, quod non, that status is not sufficient for it to be capable of being regarded as being individually concerned by the agreement at issue.

106 Front Polisario contests those arguments.

– Findings of the Court

107 It is settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned, within the meaning of the fourth paragraph of Article 263 TFEU, only if the measure in respect of which annulment is sought affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed (judgment of 18 October 2018, Internacional de Productos Metálicos v Commission , C‑145/17 P, EU:C:2018:839, paragraph 34 and the case-law cited).

108 Having regard to the considerations set out in paragraphs 88 to 92 of the present judgment, it must be held that the people of Western Sahara, represented in the present cases by Front Polisario, is individually concerned by the decision at issue, in so far as the express inclusion of the territory of Western Sahara in the scope of the agreement at issue, which is binding on the European Union by virtue of the decision at issue, changes the legal situation of that people because of its status as holder of the right to self-determination with regard to that territory. That status differentiates it from all other persons or entities, including any other subject of international law.

109 The line of argument put forward by the Commission and the Council relating to the judgment of 10 April 2003, Commission v Nederlandse Antillen (C‑142/00 P, EU:C:2003:217 ), in which the Court of Justice held that the general interest which an OCT, as an entity responsible for economic and social affairs within its jurisdiction, may have in obtaining a result that is favourable for its economic prosperity is not sufficient on its own to enable that OCT to be regarded as being concerned, for the purposes of the fourth paragraph of Article 173 of the EC Treaty (now the fourth paragraph of Article 263 TFEU), must be rejected. The General Court based the finding that Front Polisario is individually concerned by the decision at issue and, by extension, by the agreement at issue, not on the economic effects of that agreement, but rather on the fact that that organisation represents the people of Western Sahara as holder of the right to self-determination with regard to that territory.

110 Consequently, the third ground of the appeal in Case C‑779/21 P must be rejected as unfounded. Similarly, it is necessary to reject the second part of the second ground of the appeal in Case C‑799/21 P as unfounded and, accordingly, to reject that ground in its entirety.

– Preliminary observations

120 As is apparent from paragraph 251 of the judgment under appeal, Front Polisario argued, in the third plea of its action before the General Court, that, by concluding, without its consent, an international agreement with the Kingdom of Morocco which was explicitly applicable to the territory of Western Sahara, the Council had disregarded the obligation to implement the judgments of the Court of Justice; an obligation stemming from Article 266 TFEU. It argued that the Court of Justice had held that the implied inclusion of that territory in the scope of the agreements concluded between the European Union and the Kingdom of Morocco was legally impossible by virtue of the principle of self-determination and the principle of the relative effect of treaties. It followed that, a fortiori, an explicit application of such agreements to that territory was precluded. Front Polisario argued, in particular, that the conclusion of the agreement at issue was contrary to the case-law inasmuch as it did not respect the separate and distinct status of Western Sahara and the requirement for the consent of the people of that territory.

121 As was noted by the General Court in paragraph 298 of the judgment under appeal, that plea comprised, in essence, three parts, alleging, first, that it was impossible for the European Union and the Kingdom of Morocco to conclude an agreement which would be applicable to Western Sahara, second, that the separate and distinct status of that territory had been violated, in breach of the principle of self-determination, and, third, that the requirement for the consent of the people of that territory, as a third party to the agreement at issue within the meaning of the principle of the relative effect of treaties, had not been met.

122 The General Court rejected the first part of the third plea, but upheld the third part of that plea. It thus held that it was necessary, without there being a need to examine either the second part of the third plea or the other pleas of the action, to annul the decision at issue.

123 In paragraph 391 of the judgment under appeal, the General Court summarised its reasoning in response to the third part of the third plea of Front Polisario’s action as follows:

‘…in adopting [the decision at issue], the Council did not take sufficient account of all the relevant factors concerning the situation in Western Sahara and wrongly took the view that it had a margin of appreciation to decide whether it was necessary to comply with the requirement that the people of that territory must express [its] consent to the application of the agreement at issue, as a third party to that agreement, in accordance with [the Court of Justice’s] interpretation of the principle of the relative effect of treaties in relation to the principle of self-determination. In particular, first, the Council and the Commission were wrong to take the view that the current situation in that territory did not make it possible to ascertain the existence of that consent and, in particular, to do so through the agency of [Front Polisario]. Second, in taking the view that the consultation process conducted by the Commission and by the EEAS, which was not intended to obtain such consent and was not addressed to “representative bodies” of that people, had made it possible to comply with the principle of the relative effect of treaties as interpreted by [the Court of Justice] in paragraph 106 of [the judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973 )], the Council was mistaken as to both the scope of that consultation [process] and the scope of the requirement set in that paragraph. Third, the Council was wrong to consider that it could rely on the letter of 29 January 2002 from the [United Nations Legal Counsel, the Assistant Secretary-General for Legal Affairs (‘the letter of 29 January 2002 from the United Nations Legal Counsel’)] to substitute that requirement with the criteria purportedly established by that letter.’

124 It is necessary to begin by examining the appellants’ complaints concerning the consent of the people of Western Sahara by means of consultation of the representatives of the peoples of Western Sahara and the extent of the judicial review of the decision at issue and, by extension, the agreement at issue regarding that consent, including their arguments concerning the scope of the letter of 29 January 2002 from the United Nations Legal Counsel. It is then necessary to examine their complaints concerning the need for such consent and the identification of Front Polisario as the entity to which that consent is to be expressed.

– The complaints concerning the consent of the people of Western Sahara by means of consultation of the representatives of the peoples of Western Sahara and the extent of the judicial review of the decision at issue

125 It should be borne in mind that, in paragraph 106 of the judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973 ), the Court noted, in connection with interpreting the expression ‘the territory of the Kingdom of Morocco’ used in Article 94 of the Association Agreement, that the people of Western Sahara had to be regarded as a ‘third party’ within the meaning of the principle of the relative effect of treaties and that, as such, that third party could be affected by the implementation of the Association Agreement in the event of the territory of Western Sahara being included in the scope of that agreement, without it being necessary to determine whether such implementation would be likely to harm it or, on the contrary, to benefit it. It held that, in either case, that implementation had to receive the consent of such a third party. However, it was not apparent from the judgment being appealed in the case which gave rise to the judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973 ), that the people of Western Sahara had expressed such consent.

126 In this instance, it should be noted that recital 10 of the decision at issue states the following:

‘Having regard to the considerations on consent in the [judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973 )], the Commission, in liaison with [the EEAS], has taken all reasonable and feasible steps in the current context to adequately involve the people concerned in order to ascertain their consent to the agreement. Wide-ranging consultations were conducted and the majority of the social, economic and political stakeholders who participated in the consultations stated that they were in favour of extending the tariff preferences in the Association Agreement to Western Sahara. Those who rejected the idea felt essentially that such an Agreement should affirm Morocco’s position on Western Sahara. However, the text of the Agreement does not imply that it recognises Morocco’s sovereignty over Western Sahara …’

127 In that regard, it is necessary, in the first place, to recall that, as has been noted in paragraph 26 of the present judgment, following the outbreak in the 1970s of the armed conflict between, inter alia, the Kingdom of Morocco and Front Polisario, a large part of the population of Western Sahara fled that conflict and found refuge in Algerian territory. The representative of Front Polisario indicated at the hearing before the Court of Justice, without being contradicted in that regard, that, to date, of a total of around 500 000 Sahrawi, approximately 250 000 are living in refugee camps in Algeria, another quarter are living in the area of Western Sahara which is under Moroccan control, and the remaining quarter are living in other parts of the world.

128 It follows that the majority of the current population of Western Sahara is not part of the people holding the right to self-determination, namely the people of Western Sahara. That people, which for the most part has been displaced, is the sole holder of the right to self-determination with regard to the territory of Western Sahara. The right to self-determination belongs to that people, and not to the population of that territory in general, of which – according to the estimates provided by the Commission at the hearing before the Court of Justice – only 25% is of Sahrawi origin.

129 As was noted by the Advocate General in points 123 and 124 of her Opinion, there is a difference in that regard between the concept of the ‘population’ of a non-self-governing territory and that of the ‘people’ of that territory. The latter refers to a political unit which holds the right to self-determination, whereas the concept of ‘population’ refers to the inhabitants of a territory.

130 In this instance, the Commission and the EEAS conducted a consultation process with the ‘people concerned’, which, as was noted by the General Court in paragraph 337 of the judgment under appeal, encompasses, in essence, the inhabitants who are currently present in the territory of Western Sahara, irrespective of whether or not they belong to the people of that territory. As was correctly held by the General Court, in essence, in paragraph 373 of the judgment under appeal, that consultation process cannot therefore be equivalent to obtaining the consent of the ‘people’ of the non-self-governing territory of Western Sahara.

131 In the second place, it should be borne in mind that, among the relevant rules that may be relied on in the context of relations between the parties to an agreement between the European Union and a non-member country is the general international law principle of the relative effect of treaties, according to which treaties do not impose any obligations, or confer any rights, on third States (pacta tertiis nec nocent nec prosunt). That principle of general international law finds particular expression in Article 34 of the Vienna Convention, under which a treaty does not create either obligations or rights for a third State without its consent (judgment of 25 February 2010, Brita , C‑386/08, EU:C:2010:91, paragraph 44 ).

132 That principle, also referred to in paragraph 106 of the judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973 ), has a broader scope than that of a mere rule for the interpretation of international agreements. Even if, as the appellants correctly assert, an agreement affecting the rights or obligations of a third party remains, if the consent of the third party has not been obtained, unenforceable against that third party in international treaty law, the third party concerned may nonetheless be affected by the implementation of the agreement in the event that a territory with regard to which that third party has sovereignty or holds the right to self-determination is included in the scope of that agreement. Such implementation is, in that regard, liable alternatively to breach, for a State, its sovereignty over its territory and, for a people, its right to self-determination with regard to the territory to which that right relates. Thus, as was noted by the Court of Justice in paragraph 106 of that judgment, the implementation of an international agreement between the European Union and the Kingdom of Morocco in the territory of Western Sahara must receive the consent of the people of Western Sahara.

133 It follows that a lack of consent by that people to such an agreement, the implementation of which extends to that territory, is capable of affecting the validity of the act of the Union, such as the decision at issue, concluding that agreement. It should be borne in mind in that regard that, under Article 3(5) and Article 21(1) TEU, the Union’s action on the international scene is to contribute, in particular, to the strict observance and the development of international law, including respect for the principles of the Charter of the United Nations, and that, under Article 207(1) TFEU, the common commercial policy is to be conducted in the context of the principles and objectives of the Union’s external action (see, to that effect, Opinion 2/15 (Free Trade Agreement with Singapore) of 16 May 2017, EU:C:2017:376, paragraphs 142 to 147 ).

134 That conclusion is not affected by the Council’s margin of discretion. Indeed, as was noted by the General Court in paragraph 349 of the judgment under appeal, that margin of discretion is legally circumscribed by, on the one hand, the obligation, derived from the principle of self-determination, to respect, in the context of relations between the European Union and the Kingdom of Morocco, the separate and distinct status of Western Sahara, and, on the other, the requirement, derived from the principle of the relative effect of treaties, that the people of that territory must consent to any agreement between the European Union and the Kingdom of Morocco which would be implemented in that territory.

135 The General Court was thus fully entitled to conclude, in paragraph 349 of that judgment, that it was indeed for the Council to assess whether the current situation of that territory justified an adaptation of the way in which that consent should be expressed and whether the conditions for a finding that the people of Western Sahara had expressed such consent were satisfied, but that that institution was not free to decide whether that consent could be waived without infringing the requirement that the people of that territory must consent to such an agreement.

136 Consequently, the General Court cannot be said to have exceeded the limits of its power of review of acts of the Union forming part of the external action of the Union in the light of customary international law, as established in the case-law of the Court of Justice, as regards the assessment of the condition concerning the need for the consent of the people of Western Sahara.

137 In the third place, as regards the line of argument relating to the scope of the letter of 29 January 2002 from the United Nations Legal Counsel concerning the requirement for consent from the people of Western Sahara, that line of argument must be rejected as unfounded.

138 The General Court was correct to hold, in essence, in paragraph 385 of the judgment under appeal, that that letter does not constitute a source of EU law which can be relied on before the EU judicature, given that it is not akin, as such, either to a rule of international treaty law which is binding on the European Union or to a rule of customary international law (see, to that effect, judgment of 6 October 2020, Commission v Hungary (Higher education) , C‑66/18, EU:C:2020:792, paragraph 87 and the case-law cited).

139 It is also necessary to reject as ineffective the Commission’s line of argument relating to the comparison, made by the General Court in paragraphs 338 and 339 of the judgment under appeal, between, on the one hand, the consultation process at issue, conducted by the Commission and the EEAS, and, on the other, wide-ranging consultations with the parties concerned as referred to in Article 11(3) TEU and Article 2 of Protocol No 2 on the application of the principles of subsidiarity and proportionality, annexed to the EU Treaty and the FEU Treaty. It is sufficient to point out in that regard that, in any event, as was stated, in essence, by the General Court, such consultations, which must take place in particular before legislative proposals are submitted by the Commission, differ fundamentally, in terms of both their nature and their purpose, from the requirement, derived from customary international law, that a people holding the right to self-determination consent to the application, in the territory to which that right relates, of an international agreement in respect of which it has the status of a third party.

140 Accordingly, the General Court was fully entitled to conclude, in paragraph 391 of the judgment under appeal, first, that the Council, in taking the view that the consultation process conducted by the Commission and by the EEAS had made it possible to comply with the principle of the relative effect of treaties as interpreted by the Court of Justice in paragraph 106 of the judgment of 21 December 2016, Council v Front Polisario (C‑104/16 P, EU:C:2016:973 ), was mistaken as to both the scope of that consultation process and the scope of the requirement set out in that paragraph of that judgment of the Court of Justice and, second, that the Council had been wrong to consider that it could rely on the letter of 29 January 2002 from the United Nations Legal Counsel to substitute that requirement with the criteria purportedly established by that letter.

– The complaints concerning the need for the consent of the people of Western Sahara and the identification of Front Polisario as the entity to which that consent is to be expressed

141 As has been recalled in paragraph 123 of the present judgment, the General Court concluded, in paragraph 391 of the judgment under appeal, that, in adopting the decision at issue, the Council had not taken sufficient account of all the relevant factors concerning the situation in Western Sahara and had wrongly taken the view that it had a margin of appreciation to decide whether it was necessary to comply with the requirement that the people of that territory had to express its consent to the application of the agreement at issue to it, as a third party to that agreement, in accordance with the Court of Justice’s interpretation of the principle of the relative effect of treaties in relation to the principle of self-determination. In particular, it held that the Council and the Commission had been wrong to take the view that the current situation in the territory of Western Sahara did not make it possible to ascertain the existence of that consent.

142 More specifically, it noted, in paragraph 321 of the judgment under appeal, that, although the agreement at issue is capable of creating rights with regard to exporters established in Western Sahara, those effects concern only individuals and not a third party that is subject to the agreement and capable of consenting to it. In addition, the General Court held that, as regards the benefits which may be derived from that agreement by the population of that territory as a whole, it was necessary, in any event, to regard those benefits as ‘purely socio-economic and not legal’, and that ‘these benefits are, moreover, indirect and so cannot be equated with rights granted to a third party within the meaning of the relative effect of the treaties’. It went on to state the following in paragraph 322 of the judgment under appeal:

‘Conversely, the effect of the agreement at issue is to impose an obligation on the third party in that it grants one of the parties to that agreement competence within the territory of the third party, which the latter is not therefore entitled to exercise itself or, as the case may be, delegate (see, to that effect, judgment of 25 February 2010, Brita , C‑386/08, EU:C:2010:91, paragraph 52 ). The assertion made by the Council that it is not in a position to exercise such competence at this stage, given its status as a non-self-governing territory and the situation currently prevailing in that territory, cannot override that finding or the need for that third party to consent to the said obligation.’

143 The General Court inferred from this, in paragraph 323 of the judgment under appeal, that the principle expressed in Article 36(1) of the Vienna Convention whereby, if a right arises for a third State from a provision of a treaty, that State’s assent to the treaty is to be presumed, unless the treaty otherwise provides, was not applicable in the case at hand and that the expression of that consent therefore had to be explicit.

144 However, the reasoning of the General Court as set out in paragraphs 322 and 323 of the judgment under appeal is vitiated by an error of law.

145 In that regard, it is true that, as has been held in paragraphs 132 to 135 and paragraph 140 of the present judgment, the General Court was correct to conclude, in essence, that, on the basis of the principles of the right to self-determination and of the relative effect of treaties, as interpreted by the Court of Justice, the consent of the people of Western Sahara to the implementation of the agreement at issue in that territory was a condition for the validity of the decision at issue and that the consultation process conducted by the Commission and by the EEAS was not capable of establishing such consent on the part of that people.

146 On the other hand, it incorrectly interpreted the agreement at issue when it held, in essence, in paragraph 322 of the judgment under appeal, that the effect of that agreement was to impose an obligation on the people of Western Sahara by granting the authorities of the Kingdom of Morocco certain powers, to be exercised in the territory of Western Sahara.

147 Indeed, although the implementation of the agreement at issue means that the acts of the Moroccan authorities carried out in the territory of Western Sahara have legal effects as described in paragraphs 94 to 96 of the present judgment, changing the legal situation of the people of that territory, the fact that that agreement recognises those authorities as having certain administrative powers which are exercised in that territory does not however allow the finding that that agreement creates legal obligations for that people as a subject of international law.

148 In that regard, as is emphasised in the agreement at issue, that agreement does not mean that the European Union recognises the alleged sovereignty of the Kingdom of Morocco over Western Sahara. The people of Western Sahara is not, moreover, the addressee of the certificates of origin or other administrative acts drawn up by the Moroccan authorities in connection with the implementation of that agreement, which it would be required to recognise; nor is it the addressee of the measures taken by the EU authorities and by the authorities of the Member States with regard to them. Moreover, in so far as it is apparent from the agreement at issue that it applies only to products originating in Western Sahara which are subject to controls by the customs authorities of the Kingdom of Morocco, the conclusion of that agreement does not prevent the Union from providing, where appropriate, for separate arrangements which would apply to products originating in Western Sahara which are not subject to controls by those authorities, including products originating in the part of the territory of Western Sahara controlled by Front Polisario.

149 It follows that the General Court relied on an incorrect premiss in order to find, in paragraph 323 of the judgment under appeal, that the expression of the people of Western Sahara’s consent to the agreement at issue had to be explicit.

150 However, it should be borne in mind that, if the grounds of a decision of the General Court reveal an infringement of EU law, but the operative part of that decision can be seen to be well founded on other legal grounds, that infringement is not capable of leading to the setting aside of that decision and a substitution of grounds must be made (judgment of 17 January 2023, Spain v Commission , C‑632/20 P, EU:C:2023:28, paragraph 48 and the case-law cited).

151 It is therefore necessary to verify whether the operative part of the judgment under appeal, inasmuch as it annulled the decision at issue, can be seen to be well founded on legal grounds other than those vitiated by the error identified in paragraphs 146 to 149 of the present judgment.

152 In that regard, it should be noted that customary international law does not provide that the consent of a third party that is subject to an agreement which confers a right on that third party is to be expressed in a particular form (see, to that effect, judgment of the Permanent Court of International Justice of 7 June 1932, ‘Free Zones of Upper Savoy and the District of Gex’, PCIJ Reports 1927, Series A/B, No 46, p. 148). It follows that customary international law does not exclude the possibility that such consent may be granted implicitly in certain circumstances. Thus, in the particular case of a people of a non-self-governing territory, the consent of that people to an international agreement in respect of which it has the status of a third party and which is to be applied in the territory to which its right to self-determination relates may be presumed so long as two conditions are satisfied.

153 First, the agreement in question must not give rise to an obligation for that people. Second, the agreement must provide that the people itself, which cannot be adequately represented by the population of the territory to which the right of that people to self-determination relates, receives a specific, tangible, substantial and verifiable benefit from the exploitation of that territory’s natural resources which is proportional to the degree of that exploitation. That benefit must be accompanied by guarantees that that exploitation will be carried out under conditions consistent with the principle of sustainable development so as to ensure that non-renewable natural resources remain abundantly available and that renewable natural resources, such as fish stocks, are continuously replenished. Lastly, the agreement in question must also provide for a regular control mechanism enabling it to be verified whether the benefit granted to the people in question under that agreement is in fact received by that people.

154 Fulfilment of those conditions is necessary in order to ensure that such an agreement is compatible with the principle, derived from Article 73 of the Charter of the United Nations and enshrined in customary international law, that the interests of the peoples of non-self-governing territories are paramount. It thus contributes to the Union’s action on the international scene being based, as provided for in Article 21(1) TEU, on the principles of the Charter of the United Nations and of international law.

155 In the event that the two conditions set out in paragraph 153 of the present judgment are satisfied, the consent of the people concerned must be held to have been obtained. The fact that a movement which presents itself as the legitimate representative of that people objects to that agreement cannot, as such, be sufficient to call in question the existence of such presumed consent.

156 That presumption of consent may nonetheless be reversed so long as legitimate representatives of that people establish that the system of benefits conferred on that people by the agreement in question, or the regular control mechanism which must accompany it, does not satisfy the conditions set out in paragraph 153 of the present judgment. It is, where appropriate, for the EU judicature to determine that question, with a view to assessing, in particular, whether that agreement adequately preserves the right of the people in question to self-determination or the permanent sovereignty over natural resources which derives from that right and from Article 73 of the Charter of the United Nations. It is also open to the Commission, the Council, the European Parliament, and any Member State to obtain, even before an agreement between the European Union and the Kingdom of Morocco providing for such a system of benefits is signed or concluded, the opinion of the Court regarding the compatibility of the envisaged agreement with the provisions of the Treaties, in particular Article 21(1) TEU.

157 In this instance, regarding the first of the two conditions set out in paragraph 153 of the present judgment, that condition must be regarded as satisfied. For the reasons set out in paragraphs 147 and 148 of the present judgment, the agreement at issue, although it changes the legal situation of the people of Western Sahara in EU law with regard to the right to self-determination which that people holds in respect of that territory, does not give rise to legal obligations for that people as a subject of international law.

158 Regarding the second condition, it must be pointed out that any benefit for the people of Western Sahara which displays the characteristics listed in paragraph 153 of the present judgment is manifestly absent from the agreement at issue, as can be seen from, inter alia, the answers given by the Commission to the questions put by the Court of Justice at the hearing before that court.

159 In particular, as was correctly stated by the General Court in paragraphs 318 and 319 of the judgment under appeal, the agreement at issue is not intended to confer rights on the people of Western Sahara as a third party to that agreement. It is the Kingdom of Morocco, as a party to the agreement at issue, which is the beneficiary of the tariff preferences granted by the European Union to products originating in Western Sahara under that agreement. In addition, the Commission explained at the hearing before the Court of Justice that the effect of that agreement was to include products originating in Western Sahara in the scope of the Association Agreement and thus to place them on an equal footing, as regards tariff preferences, with Moroccan products, as well as with products originating in Algeria and Mauritania, which also benefit from tariff preferences.

160 It follows that the people of Western Sahara cannot be presumed to have given its consent to the application of the agreement at issue in that territory.

161 It should be specified that the possibility of presumed consent in accordance with paragraphs 152 to 155 of the present judgment cannot be called in question by the fact that Article 73 of the Charter of the United Nations, relating to non-self-governing territories, refers to the ‘peoples’ and the ‘inhabitants’ of those territories and defines as a ‘sacred trust’ the obligation to promote their well-being to the utmost, thereby covering, in the case of Western Sahara, a part of the ‘peoples’ of that territory which is not included in the ‘people’ of Western Sahara. In that regard, it is considered as being essential in Resolution 2703 (2023) of the United Nations Security Council, referred to in paragraph 31 of the present judgment, that negotiations progress in order that the quality of life of the inhabitants of Western Sahara improve in all respects. While an agreement should, in the future, benefit the people of Western Sahara in accordance with the requirements set out in paragraph 153 of the present judgment, the possibility that that agreement might also benefit the inhabitants of that territory in general is not such as to prevent a finding of presumed consent on the part of that people.

162 Having regard, in addition, to the finding in paragraph 145 of the present judgment that the consultation process conducted by the Commission and by the EEAS was not capable of establishing such consent on the part of that people, the conclusion of the General Court, in paragraph 391 of the judgment under appeal, that, in adopting the decision at issue, the Council had not taken sufficient account of all the relevant factors concerning the situation in Western Sahara and that the Council and the Commission had been wrong to take the view that the current situation in that territory did not make it possible to ascertain the existence of consent on the part of the people of Western Sahara to the agreement at issue, must be held to be well founded.

163 The fourth ground of the appeal in Case C‑779/21 P and the fourth ground of the appeal in Case C‑799/21 P must therefore be rejected as unfounded.