# C_2011252EN.01001201.xml

| 27.8.2011 | EN | Official Journal of the European Union | C 252/12 |
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27.8.2011

EN

Official Journal of the European Union

C 252/12

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Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 18 February 2011 — Der Generalbundesanwalt beim Bundesgerichtshof v Mohsen Afrasiabi, Behzad Sahabi and Heinz Ulrich Kessel

(Case C-72/11)

2011/C 252/23

Language of the case: German

Referring court

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Parties to the main proceedings

Applicant: Der Generalbundesanwalt beim Bundesgerichtshof

Applicant:

Defendants: Mohsen Afrasiabi, Behzad Sahabi, Heinz Ulrich Kessel

Defendants:

Questions referred

Questions referred

| 1. | In order to make available an economic resource within the meaning of Article 7(3) of Council Regulation (EC) No 423/2007 (1), is it necessary that it can be used immediately by the listed person/entity for the purposes of acquiring funds or services? Or must Article 7(3) of Council Regulation (EC) No 423/2007 be interpreted as meaning that the prohibition on making available an economic resource indirectly encompasses the supply and installation of a functional, but not yet ready-to-use economic resource (in this case: a vacuum furnace) to a third party in Iran, who intends, at a later date, to manufacture products with that resource for a legal person, entity or body listed in Annexes IV and V to the regulation? |
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1.

In order to make available an economic resource within the meaning of Article 7(3) of Council Regulation (EC) No 423/2007 (1), is it necessary that it can be used immediately by the listed person/entity for the purposes of acquiring funds or services? Or must Article 7(3) of Council Regulation (EC) No 423/2007 be interpreted as meaning that the prohibition on making available an economic resource indirectly encompasses the supply and installation of a functional, but not yet ready-to-use economic resource (in this case: a vacuum furnace) to a third party in Iran, who intends, at a later date, to manufacture products with that resource for a legal person, entity or body listed in Annexes IV and V to the regulation?

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| 2. | Must Article 7(4) of Council Regulation (EC) No 423/2007 be interpreted as meaning that circumvention can occur only where the offender formally adapts his conduct — albeit only ostensibly — to the prohibitions arising from Article 7(1) to (3) of Council Regulation (EC) No 423/2007, with the effect that even applying the broadest interpretation that conduct is no longer covered by the prohibitions? Are the elements of the prohibitions on circumvention and on making available economic resources thus mutually exclusive? If answered in the affirmative: can conduct which would not (yet) be covered by the prohibition on making available economic resources (indirectly) nevertheless constitute circumvention within the meaning of Article 7(4) of Council Regulation (EC) No 423/2007?
  Or does Article 7(4) of Council Regulation (EC) No 423/2007 constitute a catch-all clause, under which any act is covered which is intended to lead to an economic resource being made available to a listed person or entity? |
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2.

Must Article 7(4) of Council Regulation (EC) No 423/2007 be interpreted as meaning that circumvention can occur only where the offender formally adapts his conduct — albeit only ostensibly — to the prohibitions arising from Article 7(1) to (3) of Council Regulation (EC) No 423/2007, with the effect that even applying the broadest interpretation that conduct is no longer covered by the prohibitions? Are the elements of the prohibitions on circumvention and on making available economic resources thus mutually exclusive? If answered in the affirmative: can conduct which would not (yet) be covered by the prohibition on making available economic resources (indirectly) nevertheless constitute circumvention within the meaning of Article 7(4) of Council Regulation (EC) No 423/2007?

Or does Article 7(4) of Council Regulation (EC) No 423/2007 constitute a catch-all clause, under which any act is covered which is intended to lead to an economic resource being made available to a listed person or entity?

| 3. | Does the subjective condition ‘knowingly and intentionally’ in Article 7(4) of Council Regulation (EC) No 423/2007 require on the one hand actual knowledge that the effect or objective of the activities is circumvention of the prohibition on making available economic resources and in addition a more extensive volitional component, at least in the sense that the offender approves of the possibility that circumvention of the prohibition might occur? Or must it in fact be important to the offender to circumvent the prohibition and must he to that extent act intentionally?
  Or is it not necessary that the prohibition be knowingly circumvented, it being sufficient instead that the offender merely considers circumvention possible and approves of that possibility? |
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3.

Does the subjective condition ‘knowingly and intentionally’ in Article 7(4) of Council Regulation (EC) No 423/2007 require on the one hand actual knowledge that the effect or objective of the activities is circumvention of the prohibition on making available economic resources and in addition a more extensive volitional component, at least in the sense that the offender approves of the possibility that circumvention of the prohibition might occur? Or must it in fact be important to the offender to circumvent the prohibition and must he to that extent act intentionally?

Or is it not necessary that the prohibition be knowingly circumvented, it being sufficient instead that the offender merely considers circumvention possible and approves of that possibility?

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(1)  Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1).

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