Judgment — ECLI:EU:T:2014:624
Date: 2014-07-10
Language of the case: English
Court formation: Seventh Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - successful

summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P Commission v Kadi (‘Kadi II’) [2013] ECR, paragraph 119). 32 It is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded. It is necessary that the information or evidence produced should support the reasons relied on against the person concerned. If that material is insufficient to allow a finding that a reason is well founded, the Courts of the European Union shall disregard that reason as a possible basis for the contested decision to list or maintain a listing (see Kadi II, paragraphs 121 to 123). 33 However, in order to assess whether the listing of the person is well founded, it is for the Courts of the European Union, first, to determine the evidence which may be taken into consideration having regard, on the one hand, to the content of the Council’s file and to the requirements linked to the rights of the defence and the right to effective judicial protection and, on the other, any overriding considerations to do with the security of the European Union or of its Member States or with the conduct of their international relations. 34 It must be borne in mind that the legality of the contested measure may be assessed only on the basis of the elements of fact and of law on which it was adopted and not on the basis of information which was brought to the Council’s knowledge after the adoption of that measure (Case T‑63/12 Oil Turbo Compressor v Council [2012] ECR, paragraph 29). 35 Further, the Council cannot validly rely, before the Court, on evidence which was not communicated to the applicant, at its request, before the bringing of the action (Joined Cases T‑35/10 and T‑7/11 Bank Melli Iran v Council [2013] ECR, paragraphs 99 to 102). To allow such a possibility would be contrary to the fundamental right to respect for the rights of the defence and to the right to effective judicial protection (judgment of 12 December 2013 in Case T‑58/12 Nabipour and Others v Council, paragraph 79). 36 However, overriding considerations to do with the security of the European Union or of its Member States or the conduct of their international relations may preclude the disclosure of some information or some evidence to the person concerned (Kadi II, paragraph 125). 37 In such circumstances, it is then for the Council to establish that the security of the European Union or of its Member States or the conduct of their international relations would in fact be jeopardised by disclosure to the person concerned of all the incriminating information and evidence which constitute the basis for a decision on restrictive measures (see, by analogy, Case C‑300/11 ZZ [2013] ECR, paragraph 61). 38 Where the Council claims that some information is confidential, it is for the Courts of the European Union to determine whether the reasons relied on by the Council as grounds to preclude the disclosure of that information to the person or entity concerned are well founded (see, to that effect, Kadi II, paragraph 126). 39 If it turns out that the reasons relied on by the Council of the European Union do indeed preclude the disclosure to the person concerned of information or evidence produced before the Courts of the European Union, it is necessary to strike an appropriate balance between the requirements attached to the right to effective judicial protection, in particular respect for the principle of an adversarial process, and those flowing from the security of the European Union or its Member States or the conduct of their international relations (Kadi II, paragraph 128). 40 In this case, first, it must be observed that the applicant requested the Council, by letter of 6 February 2013, in other words, almost two months before the expiry of the period for bringing proceedings, to send to it the information contained in the Council’s file. However, the Council did not satisfy that request until after the bringing of this action, by letters of 19 June and 5 July 2013, that is, almost five months after that request. 41 Secondly, the Council has not pleaded any reason to do with the security of the European Union or its Member States or the conduct of their international relations which might preclude the communication of material contained in the letters of 19 June and 5 July 2013. 42 In that context, since the material contained in the letters of 19 June and 5 July 2013 was communicated to the applicant only after the bringing of this action, it cannot be taken into consideration as grounds to justify the applicant’s listing, pursuant to the case-law cited in paragraph 35 above. Further, it is clear that the material contained in the letter of 19 June 2013 and its annexes does not, in any event, constitute information which adds anything to the reasons contained in the contested acts. 43 Third, in reply to a written question from the Court, the Council stated that all the information and evidence taken into consideration, at the time of adoption of the contested measures in so far as they concerned the applicant, were communicated to the applicant as annexes to the letter of 19 June 2013. 44 It is thereby evident that the insurance contracts subsequently sent to the applicant, as annexes to the letter of 5 July 2013, were not present in the Council’s file at the time when the applicant was listed. 45 Accordingly, the applicant is correct to argue that those contracts cannot validly be relied on by the Council before the Court. Not only were those contracts not communicated to the applicant in good time, as found in paragraph 42 above, but they were also not known to the Council before the date of adoption of the contested decision and regulation. 46 For all those reasons, only the material produced in the statement of reasons in the contested decision and regulation may be taken into consideration by the Court, in order to assess whether the listing of the applicant was well founded. 47 However, since, in the statement of reasons for the listing of the applicant, the Council does no more than assert that the applicant is the main insurer of IRISL, which the applicant denies, and since the Council has not validly adduced any evidence to support that assertion, it is clear that that listing is based on an allegation which is unsupported. 48 Accordingly, the applicant’s listing must be held to be vitiated by an error of assessment. 49 In the light of all the foregoing, the contested decision and regulation must be annulled, in so far as they concern the applicant, and there is no need to examine the other pleas in law put forward by the applicant. The temporal effects of the annulment of the contested regulation and decision 50 In their written pleadings, neither the applicant nor the Council expressed any view on the temporal effects of any annulment of the contested regulation and decision. 51 In response to a question from the Court, the Council claimed, at the hearing, that the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, which provides that a regulation may remain in force after its annulment, until the expiry of the period for bringing an appeal or, if an appeal has been brought in that period, until the dismissal of the appeal by the Court of Justice, must apply in this case, in accordance with the principle of legal certainty. The Council argued that it was necessary to ensure that, in the event that an appeal was brought before the Court of Justice and that Court set aside the judgment of the General Court, first, no economic loss should be suffered by third parties and, second, the applicant should not, following the judgment of the General Court, remove its assets, which would deprive any appeal of any value. 52 The applicant requested, at the hearing, that the annulment of the contested regulation and decision should take effect immediately. The applicant argued that the listing of a person or entity has the nature of an individual decision. 53 That request of the applicant cannot be accepted. 54 There is no need to examine whether the decision to include the name of the applicant in the lists at issue has the nature of a regulation for the purposes of the second paragraph of Article 60 of the Statute of the Court of Justice, since it is sufficient to observe that under the second paragraph of Article 264 TFEU the Courts of the European Union may, in any event, state, where it is considered necessary, which of the effects of the act which they have declared void are to be considered as definitive. In that regard, it follows from the case-law that the General Court may decide, on the basis of that provision, the date when its annulling judgments are to take effect (see, to that effect, Nabipour and Others v Council, paragraphs 250 and 251). 55 In the circumstances of this case, the Court considers, for the reasons set out below, that it is necessary to suspend the effects of this judgment until the date of expiry of the period for bringing an appeal stated in the first paragraph of Article 56 of the Statute of the Court of Justice or, if an appeal has been brought within that period, until the dismissal of the appeal. 56 The nuclear programme pursued by the Islamic Republic of Iran is a source of serious concerns at both the international and European levels. That is the background to the Council’s gradual extension of the number of restrictive measures adopted against that State, in order to hinder the development of activities which jeopardise peace and international security, in the context of implementation of United Nations Security Council resolutions. 57 Consequently, the applicant’s interest in ensuring that this annulling judgment should take effect immediately must be weighed against the objective of general interest pursued by the European Union’s policy in relation to restrictive measures against the Islamic Republic of Iran. The adjustment of the temporal effects of the annulment of a restrictive measure may thus be justified by the need to ensure that the restrictive measures are effective and, in short, by overriding considerations to do with security or the conduct of the international relations of the European Union and of its Member States (see, by analogy with there being no obligation to inform the person or entity concerned beforehand of the grounds for an initial listing, Case C‑27/09 P France v People’s Mojahedin Organization of Iran [2011] ECR I‑13427, paragraph 67). 58 The annulment with immediate effect of the contested regulation and decision in so far as they concern the applicant would enable the applicant to transfer all or part of its assets outside the European Union, without the Council being able if appropriate to apply in good time Article 266 TFEU with a view to correcting the irregularities identified in this judgment, and consequently the effectiveness of any freezing of assets in relation to the applicant which might, in the future, be decided on by the Council might be seriously and irreversibly prejudiced. 59 As regards the application of Article 266 TFEU in this case, it must be observed that the annulment by this judgment of the applicant’s listing stems from the fact that the reasons stated for that listing are not supported by sufficient evidence (see paragraph 47 and 48 above). Although it is for the Council to decide on what measures to adopt to comply with this judgment, a further listing of the applicant cannot automatically be ruled out. In the course of a further review, the Council has the possibility of again listing the applicant on the basis of reasons which are supported to the requisite legal standard. 60 It follows that the effects of the contested decision and regulation must be maintained as regards the applicant, until the date of expiry of the period for bringing an appeal or, if an appeal is brought within that period, until the dismissal of the appeal. Costs 61 Under Article 87(2) of the Court’s Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party’s pleadings. Since the Council has essentially been unsuccessful, it must be ordered to pay the costs of the present proceedings, in accordance with the form of order sought by the applicant. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Annuls Council Decision 2012/829/CFSP of 21 December 2012, amending Decision 2010/413/CFSP concerning restrictive measures against Iran, in so far as it listed Moallem Insurance Co. in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP; 2. Annuls Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran, in so far as it listed Moallem Insurance Co. in Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010; 3. Orders the effects of Decision 2012/829 and Implementing Regulation No 1264/2012 to be maintained as regards Moallem Insurance Co. until the date of expiry of the period for bringing an appeal stated in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union or, if an appeal has been brought within that period, until the dismissal of the appeal; 4. Orders the Council of the European Union to bear its own costs and to pay the costs of Moallem Insurance Co.. Van der Woude Wiszniewska-Białecka Ulloa Rubio Delivered in open court in Luxembourg on 10 July 2014. [Signatures] * Language of the case: English.