Does the European Union have to take into account the interests of third parties when it enters into an international agreement? According to the General Court of the European Union, the answer to this question is in the affirmative.
In its decision of 10 December 2015 (Case T-512/12) (decision in French), the Court annulled a decision by the EU Council to adopt the 2010 EU-Morocco Agreement on agricultural, processed agricultural and fisheries products, an agreement that covered also the area of Western Sahara. The area of Western Sahara is widely regarded as occupied, its inhabitants denied their right to exercise their right to self-determination and enjoy their natural resources. The Polisario Front (Frente Popular de Liberación de Saguía-el-Hamra y Río de Oro) represents the Saharawi People since the occupation in 1975. It brought the action against the Council, claiming that the inclusion of Western Sahara under the ambit of the agreement was a breach of EU law and international law.
The Court first accepts the standing of the Polisario Front to institute the proceedings against the Council. It regards the Polisario front as “a legal person” under Art. 263(4) TFEU and as having “direct and individual concern” in the decision it challenges. In explaining its finding, the Court notes that “the Polisario Front is the only other party involved in the negotiations conducted under the auspices of the UN between it and the Kingdom of Morocco for the determination of the definitive international status of Western Sahara.” (para. 113).
On substance, the Court rejects all of Polisario’s arguments against the lawfulness of the agreement: there is “nothing in the applicant’s pleas and arguments to support the conclusion that it is absolutely forbidden by EU law or by international law to conclude with a third State an agreement that would likely be applied in a disputed territory.” (para. 215).
But the court continues to examine the discretion exercised by the Council when adopting the agreement. While the court accepts that the Council has wide margin of appreciation in adopting trade agreements, it states that the Council had the duty to consider, prior to the adoption of the agreement, the possible consequences of the implementation of the agreement (para. 226). The court emphasizes possible violations of the EU Charter of Fundamental Rights:
[I]t is nonetheless true that the protection of fundamental rights of the people of such a territory is of particular importance and is, therefore, issue that the Council should consider before approving such an agreement. [...] In particular, in the case of an agreement to facilitate, inter alia, exports to the Union of various products from the territory in question, the Council must examine carefully and impartially all the relevant elements to ensure that the production of products destined for export activities is not conducted at the expense of the population of the territory in question or implicate violations of fundamental rights, including the rights to human dignity, life and personal integrity (Articles 1 to 3 of the [EU] Charter of Fundamental Rights), the prohibition of slavery and forced labor (Article 5 of the [EU] Charter of Fundamental Rights), professional freedom (Article 15 of the [EU] Charter of Fundamental Rights), business freedom (Article 16 of the [EU] Charter of Fundamental Rights), the right to property (Article 17 of the [EU] Charter of Fundamental Rights), the right to fair and equitable working conditions the prohibition of child labor and protection of young people at work (Articles 31 and 32 of the [EU] Charter of Fundamental Rights).” (paras. 227-228).
It is of no importance that the EU will not be directly responsible for such violations. Indirect encouragement or benefits are also proscribed: “if the EU allows exports to its Member States of products originating in that country that were manufactured or produced under conditions that violate the fundamental rights of the population of the territory from which they come, it might indirectly encourage such violations or benefits therefrom.” (para. 229)
The Court then goes on to refer to the additional concern that Morocco’s control over Western Sahara raises. It emphasizes that this “consideration is particularly important in the case of a territory, such as the Western Sahara, which is administered in fact by a third country […] while not being included in the internationally recognized borders of that third State.” (para. 232).
This additional concern gives rise to the Council’s proactive duty to actively ensure the rights of the inhabitants. The Council “had to satisfy itself that there was no evidence of exploitation of natural resources of the territory of Western Sahara under Moroccan control that may come at the expense of its people and to undermine their human rights. [The Council] cannot limit itself to consider that it is incumbent on the Kingdom of Morocco to ensure that no exploitation of this nature occurs.” Therefore the fact that the Polisario front did not provide any evidence of actual violations was regarded as immaterial: the burden to inquire about violations was on the Council.
Given that the Council “failed in its obligation to examine, before the adoption of the contested decision, all the elements of the case” the Court annuls the Council’s decision to adopt the agreement with respect to the part that approves its applicability to Western Sahara (para. 247).
While Western Sahara is special case, the general message that is encapsulated in paras. 227-228 above seems relevant to all agreements: The EU must consider the potential violations of fundamental rights of non-EU nationals in non-EU territory that may be facilitated by the agreements or that the EU may benefit from. The extension of standing to challenge EU acts to third parties is also noteworthy.
See also Geraldo Vidigal, Trade Agreements, EU Law, and Occupied Territories (2): The General Court Judgment in Frente Polisario v Council and the Protection of Fundamental Rights Abroad, EJIL Talk!, December 11, 2015.