Case C‑266/16

Western Sahara Campaign UK

v

Commissioners for Her Majesty’s Revenue and Customs and Secretary of State for Environment, Food and Rural Affairs

[Request for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court)]

(Reference for a preliminary ruling — Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco — Protocol setting out the fishing opportunities provided for by the agreement — Acts approving the conclusion of the agreement and of the protocol — Regulations allocating among the Member States the fishing opportunities set out by the protocol — Jurisdiction — Interpretation — Validity having regard to Article 3(5) TEU and international law — Applicability of that agreement and that protocol to the territory of Western Sahara and the waters adjacent thereto)

Summary — Judgment of the Court (Grand Chamber), 27 February 2018

1. Questions referred for a preliminary ruling—Jurisdiction of the Court—Acts of the institutions—Request to examine the compatibility with the Treaties of an international agreement concluded by the European Union—Admissibility

   (Art. 19(3)(b) TEU; Art. 267, first para., (b), TFEU]

2. International agreements—European Union Agreements—European Community—Morocco Partnership Agreement—Interpretation—Application of the relevant rules of international law

   (European Community — Morocco Partnership Agreement, Arts 2(a), 5 and 11)

3. International agreements—European Union Agreements—European Community—Morocco Partnership Agreement—Territorial scope—Non-autonomous territory of Western Sahara not falling within the sovereignty of the parties—Not included

   (European Community — Morocco Partnership Agreement, Art. 11)

4. International agreements—European Union Agreements—European Community—Morocco Partnership Agreement—Territorial scope—Waters adjacent to territory of Western Sahara—Not included—Acts of the European Union relating to the conclusion of the Fisheries Partnership Agreement and Protocol not called into question

   (Art. 3(5) TEU; European Community — Morocco Partnership Agreement, Art. 2(a) and 16, and the 2013 Protocol, Art. 1; Council Regulations No 764/2006 and No 1270/2013; Council Decision 2013/785]

1.  In that regard, Article 19(3)(b) TEU and point (b) of the first paragraph of Article 267 TFEU provide that the Court has jurisdiction to give preliminary rulings on the interpretation of EU law and the validity of acts adopted by the EU institutions. It follows from those provisions that the Court has jurisdiction to give preliminary rulings on the interpretation and the validity of acts adopted by the EU institutions, without exception (judgments of 13 December 1989, Grimaldi, C‑322/88, EU:C:1989:646, paragraph 8, and of 13 June 2017, Florescu and Others, C‑258/14, EU:C:2017:448, paragraph 30). In accordance with the Court’s settled case-law, international agreements concluded by the European Union pursuant to the provisions of the Treaties constitute, as far as the Union is concerned, acts of the institutions of the European Union (judgments of 16 June 1998, Racke, C‑162/96, EU:C:1998:293, paragraph 41, and of 25 February 2010, Brita, C‑386/08, EU:C:2010:91, paragraph 39).

   Consequently, the Court has jurisdiction, both in the context of an action for annulment and in that of a request for a preliminary ruling to assess whether an international agreement concluded by the European Union is compatible with the Treaties (see, to that effect, Opinion 1/75 (OECD Understanding — Local cost standard) of 11 November 1975, EU:C:1975:145, p. 1361) and with the rules of international law which, in accordance with the Treaties, are binding on the Union. It must be added that the international agreements concluded by the European Union are binding not only on the EU institutions, in accordance with Article 216(2) TFEU, but also on the non-Member States that are parties to those agreements. Accordingly, it must be held that, in a situation where, as in this case, the Court has received a request for a preliminary ruling concerning the validity of an international agreement concluded by the European Union, that request must be understood as relating to the EU act approving the conclusion of that international agreement (see, by analogy, judgments of 9 August 1994, France v Commission, C‑327/91, EU:C:1994:305, paragraph 17, and of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 286 and 289).

   Given the obligations incumbent on the European Union as set out in paragraphs 46 and 47 of the present judgment, the review of validity which the Court may be required to carry out in that context is nonetheless capable of encompassing the legality of that act in the light of the actual content of the international agreement at issue (see, to that effect, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 289 and the case-law cited).

   (see paras 43-45, 48-51)

2.  See the text of the judgment.

   (see para. 58)

3.  See the text of the judgment.

   (see points 62-64)

4.  Since neither the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco nor the Protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco are applicable to the waters adjacent to the territory of Western Sahara, consideration of the first question referred for a preliminary ruling has revealed nothing capable of affecting the validity of Council Regulation (EC) No 764/2006 of 22 May 2006 on the conclusion of that agreement, Council Decision 2013/785/EU of 16 December 2013 on the conclusion of that protocol, and Council Regulation (EU) No 1270/2013 of 15 November 2013 on the allocation of fishing opportunities under that protocol, in the light of Article 3(5) TEU.

   In the second place, the Fisheries Partnership Agreement is applicable not only to the territory of the Kingdom of Morocco, but also to the ‘waters falling within the sovereignty or jurisdiction’ of that State, as stated in paragraph 58 of the present judgment. The Association Agreement does not use such an expression. For the purposes of interpreting that expression, reference must be made to the Convention on the Law of the Sea, as stated in paragraph 58 of the present judgment. In that regard, it is stated in Article 2(1) of the Convention on the Law of the Sea that the sovereignty of a coastal State extends, beyond its land territory and internal waters, to an adjacent belt of sea described as the ‘territorial sea’. Further, under Articles 55 and 56 of that convention, a coastal State is to be recognised as having jurisdiction and certain rights with respect to an area beyond and adjacent to the territorial sea, that area being described as the ‘exclusive economic zone’. It follows that the waters over which a coastal State is entitled to exercise sovereignty or jurisdiction, under the Convention on the Law of the Sea, are limited exclusively to the waters adjacent to its territory and forming part of its territorial sea or of its exclusive economic zone. Consequently, and taking account of the fact that the territory of Western Sahara does not form part of the territory of the Kingdom of Morocco, as has been stated in paragraphs 62 to 64 of the present judgment, the waters adjacent to the territory of Western Sahara are not part of the Moroccan fishing zone referred to in Article 2(a) of the Fisheries Partnership Agreement.

   Unlike the Fisheries Partnership Agreement, the 2013 Protocol does not contain any specific provision that determines its territorial scope. However, various provisions of that protocol use the expression ‘Moroccan fishing zone’. That expression is the same as that to be found in Article 2(a) of the Fisheries Partnership Agreement, which states, first, that it must be understood as referring to ‘waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco’, and, second, that such a definition holds good not only for that agreement, but also for the protocol to the agreement and the annex thereto. Further, it follows from Article 16 of the Fisheries Partnership Agreement and from Article 1 of the 2013 Protocol that the protocol, the annex thereto and the appendices thereto are an integral part of that agreement. It follows that the expression ‘Moroccan fishing zone’, used in both the Fisheries Partnership Agreement and the 2013 Protocol to determine territorial scope, must be understood as referring to waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco. Consequently, and following the interpretation adopted in paragraph 73 of the present judgment, it must be held that the expression ‘Moroccan fishing zone’, for the purposes of that protocol, does not include the waters adjacent to the territory of Western Sahara.

   (see paras 65-69, 75-79, 85, operative part)