Order — ECLI:EU:C:2015:811
Date: 2015-12-10
Language of the case: English
Court formation: Seventh Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible

summary of the argument which the appellant put forward in paragraph 5(ii) of its reply to the General Court’s questions, lodged on 6 October 2014. It should be noted that the appellant does not dispute one element of the General Court’s reasoning which led to the decision as to the inadmissibility of the application submitted to it, with the result that the second argument put forward by the appellant in its appeal is ineffective. 38 It follows from these points that the first ground of appeal is, in part, manifestly inadmissible and, in part, manifestly unfounded. The second ground of appeal 39 This ground of appeal is in four parts. 40 By the first part of the second ground of appeal, the appellant submits that the General Court made an error of law in finding that the Council had notified the acts at issue to the appellant by the letter of 19 October 2012, when that letter did not contain a statement of reasons. It notes that, under Article 46(3) of Implementing Regulation No 267/2012, ‘the Council shall communicate its decision, including the grounds for listing …’. 41 It must be noted in that regard, as the Council submits, that the letter of 16 October 2012 addressed to the appellant expressly stated that ‘the grounds for your designation appear in the relevant entries in those Annexes’. 42 Inasmuch as the appellant criticises the insufficiency of the statement of reasons, it must be held that that argument concerns the legality of the acts at issue, not the question of the inadmissibility of the action on account of its lateness which the General Court addressed in the order under appeal. It follows that that argument, which does not relate to the order under appeal, is ineffective. 43 By the second part of the second ground of appeal, the appellant argues that the General Court erred in law in holding that the notification to a person of an EU act which has also been published in the Official Journal of the European Union may have the effect of shortening the time-limit for bringing an action against that act. It takes the view that, according to the General Court’s interpretation of the judgments in Bank Melli Iran v Council (C‑548/09 P, EU:C:2011:735) and Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258), the principles of legal certainty and of the right to effective judicial protection which guarantee that legal remedies are effective are not enhanced but diminished by the fact that legal effects are conferred upon the notification of an EU act which has also been published. By the third part of the same ground, the appellant submits that, by publishing a notice concerning the acts at issue in the C-series of the Official Journal of the European Union on 16 October 2012, the Council necessarily accepted that the time-limit for bringing judicial proceedings in respect of those acts expired only after the end of the period of two months laid down in the sixth paragraph of Article 263 TFEU, the starting point of which had to be determined pursuant to Article 102(1) and (2) of the Rules of Procedure of the General Court. Accordingly, that time-limit would have started to run only from the end of the 14th day following publication in the Official Journal of the European Union, in accordance with paragraph 1 of that provision, and had to be increased by an extension on account of distance of 10 days, pursuant to paragraph 2 of that provision. Those two parts of the second ground of appeal, which both relate to the determination of the starting point of the period allowed for bringing an action, must be examined together. 44 As the Court recalled in paragraph 47 of the judgment in Bank Melli Iran v Council (C‑548/09 P, EU:C:2011:735), the principle of effective judicial protection means that the EU authority which adopts an act imposing restrictive measures against a person or entity is bound to communicate the grounds on which it is based, so far as possible, either when that act is adopted or, at the very least, as swiftly as possible after it has been adopted, in order to enable those persons or entities to exercise their right to bring an action. 45 It is for the purpose of complying with that principle that Article 24(3) of Decision 2010/413 and Article 46(3) of Regulation No 267/2012 provide that the Council is to communicate to the natural or legal person, entity or body concerned its decision to include them on a list of persons or entities subject to restrictive measures, including the grounds for listing, either directly, if the address is known, or through the publication of a notice, providing such natural or legal person, entity or body with an opportunity to present observations. 46 The Court added, in paragraphs 50 to 52 of the judgment in Bank Melli Iran v Council (C‑548/09 P, EU:C:2011:735), that if the communication of individual and specific reasons could be regarded as accomplished through publication of the decision in the Official Journal of the European Union, it is difficult to imagine why express reference is made to such communication, since that decision must be published in any event. The Council is required to communicate a decision individually in order to satisfy its obligation. 47 In paragraph 58 of the judgment in Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258), the Court held that, having regard to the individual nature of the measures by which persons or entities are entered on the lists of persons or entities to whom restrictive measures are to apply, the sixth paragraph of Article 263 TFEU would not be applied consistently if, when applied to those persons and those entities, the starting point for the calculation of the period for bringing an action for annulment was fixed as the date of publication of the measure at issue and not as the date when that measure was communicated to them. The purpose of that communication is precisely to ensure that persons to whom the measures are addressed are able to defend their rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in their applying to the EU judicature (judgment in Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 337). 48 In paragraph 59 of the judgment in Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258), the Court concluded that, while the entry into force of acts imposing restrictive measures on persons or entities is effected by their publication, the period for the bringing of an action for the annulment of those acts under the fourth paragraph of Article 263 TFEU runs, for each of those persons and entities, from the date of the communication which they must receive. 49 It follows from Article 24(3) of Decision 2010/413 and Article 46(3) of Regulation No 267/2012, referred to in paragraph 45 of the present order and interpreted in the light of the judgments in Bank Melli Iran v Council (C‑548/09 P, EU:C:2011:735) and Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258), that where the address of a person or entity subject to restrictive measures is known to the Council, the latter must send it an individual communication, and it is the receipt of that communication that causes the period for the bringing of an action for annulment to run. 50 The General Court did not therefore err in law in ruling, in paragraph 29 of the order under appeal, that the Council is not free to choose arbitrarily the means of communication to the persons concerned of acts imposing restrictive measures. Similarly, it correctly held, in paragraph 33 of that order, that the fact that some of the restrictive measures were published immediately in a notice in the Official Journal of the European Union cannot enable the persons and entities concerned, to whom those measures were already communicated individually, to choose the starting point of the period for bringing proceedings by opting for the date of the publication of the notice, increased by 14 days, in accordance with Article 102(1) of the Rules of Procedure of the General Court. 51 The periods prescribed for instituting proceedings are mandatory and are not subject to the discretion of the parties (judgment in Muller-Collignon v Commission, 4/67, EU:C:1967:51, p. 372). The rules in that respect must be applied by the Court in such a way as to safeguard legal certainty and equality of persons before the law (judgment in PKK and KNK v Council, C‑229/05 P, EU:C:2007:32, paragraph 101). 52 In the present case, the appellant’s address appeared both in the decision at issue and in the regulation at issue. It follows that the restrictive measures concerning the appellant had to be communicated to it individually, the receipt of such communication causing the period for the bringing of an action for annulment of those measures to run. The appellant is thus wrong to take the view that the period for bringing an action against those measures began to run from the end of the 14th day following the publication of the general notification notice in the Official Journal of the European Union. 53 Consequently, contrary to the appellant’s submissions, the individual communication had the effect not of shortening the period for bringing an action for annulment, but of causing it to run as regards the appellant. Furthermore, the effective legal remedies are not diminished by an individual notification which, unlike the publication of a general notification notice in the Official Journal of the European Union, gives greater assurance that the person or entity subject to restrictive measures has been made aware of the acts imposing those measures. 54 It follows that the General Court did not err in law in finding, in paragraph 34 of the order under appeal, that since the acts at issue had been communicated directly to the appellant, the period for bringing an action began to run, in the appellant’s case, from the date of receipt of that communication. 55 By the fourth part of the second ground of appeal, submitted in the alternative, the appellant submits that should the Court rule, in accordance with its case-law, that the date of receipt of the letter of 19 October 2012 is to be regarded as the point of departure for the calculation of the deadline for bringing an action against the acts at issue, it would have to be held that, at the material time, the case-law that could lead to such a conclusion had not yet been issued by the Court. It submits in particular that the judgment in Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258) was not delivered until 23 April 2013, that is after the action for annulment was lodged on 8 January 2013. The doubt as to the application of the rules for calculating the time-limit for bringing proceedings had led the appellant to make an excusable error. 56 In that regard, the General Court did not err in law when it pointed out, in paragraph 35 of the order under appeal, that, according to the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, ‘no right shall be prejudiced in consequence of the expiry of a time-limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure’, and that it is for the party concerned to establish, first, that abnormal circumstances, unforeseeable and outside his control, made it impossible for him to comply with the time-limit for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU and, secondly, that he could not guard against the consequences of those circumstances by taking appropriate steps without making unreasonable sacrifices. 57 Nor did the General Court err in law in paragraph 36 of that order when it found that, in the present case, the appellant had not invoked any particular circumstance which was such as to prevent it from bringing its action in a timely manner. 58 In any event, as the General Court recalled in paragraph 37 of the order under appeal, the obligation to communicate the listing measures directly to the persons and entities concerned had clearly been demonstrated by the Court of Justice in paragraphs 47 and 52 of the judgment in Bank Melli Iran v Council (C‑548/09 P, ECR, EU:C:2011:735) in relation to the right to effective judicial protection. The judgment in Gbagbo and Others v Council (C‑478/11 P to C‑482/11 P, EU:C:2013:258) merely confirmed that case-law. 59 That obligation was, moreover, expressly laid down in Article 24(3) of Decision 2010/413 and in Article 46(3) of Regulation No 267/2012, which made clear that where the address of a person or entity subject to restrictive measures is known to the Council, the latter must send it an individual communication. As is evident from the information concerning the appellant contained in the acts at issue, the appellant’s address was referred to therein and was therefore known to the Council. 60 The appellant could not therefore have been in any doubt as to the fact that the acts at issue concerning it had to be brought to its attention by an individual communication and that it was the receipt of that communication that would start time running for the purposes of the prescribed time-limit for bringing proceedings. 61 The General Court thus correctly held that the acts at issue had been brought to the appellant’s attention by an individual communication, the date of receipt of which was the starting point for the period allowed for bringing proceedings against those acts laid down by the fourth paragraph of Article 263 TFEU. 62 It follows from all of these considerations that the second ground of appeal is manifestly unfounded. 63 The appeal must therefore be dismissed in its entirety. Costs 64 Under Article 137 of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. 65 Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 66 Since the Council has applied for costs and Naftiran Intertrade Co. (NICO) Sàrl has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Council. On those grounds, the Court (Seventh Chamber) hereby orders: 1. The appeal is dismissed. 2. Naftiran Intertrade Co. (NICO) Sàrl shall bear its own costs and shall pay those incurred by the Council of the European Union. [Signatures] * Language of the case: English.