Judgment — ECLI:EU:T:2014:606
Date: 2014-07-03
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). 62 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 however 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 (Kadi II, paragraphs 121 to 123). 63 First, it is necessary to determine the material which may validly be relied on by the Council before the Court, having regard, first, to the content of the Council’s file and, second, to the requirements linked to the rights of the defence. 64 In that regard, it must be borne in mind that the legality of the contested measures may be assessed only on the basis of the elements of fact and of law on which they were adopted and not on the basis of information which was brought to the Council’s knowledge after the adoption of those measures, even if the Council takes the view that that information could legitimately complement the grounds stated in those measures and also provide a basis for their adoption. The Court cannot accede to what is, in short, an invitation by the Council to replace the grounds on which those measures are based (Case T‑63/12 Oil Turbo Compressor v Council [2012] ECR, paragraph 29). 65 Further, the Council cannot validly rely, before the Court, on evidence which was not disclosed to the applicant, when requested by him, without infringing the rights of defence of the person concerned (Joined Cases T‑42/12 and T‑181/12 Bateni v Council [2013] ECR, paragraph 57). The right of the person concerned to be notified of the incriminating evidence implies not only his right to initial disclosure of information which is sufficiently detailed to enable him to understand why he has been listed, but also the right of access to the file. It is only on the request of the party concerned that the Council is required to provide access to all non-confidential official documents concerning the measure at issue (Case C‑548/09 P Bank Melli Iran v Council, paragraph 92, confirming the judgment in Case T‑390/08 Bank Melli Iran v Council [2009] ECR II‑3967, paragraph 97). 66 In this case, it must be observed that the applicant requested the Council, by letter of 11 March 2013, in other words, only four days before the bringing of its action before the Court, to send copies to it of the documents justifying its listing. The Council replied to that request and provided the applicant with a number of documents by letter of 10 June 2013. 67 In that regard, although the Council sent its reply only three months later, it cannot be claimed that the Council replied out of time, in so far as it would have been difficult, or impossible, for the Council to reply prior to 15 March 2013, the date when the application was lodged before the General Court. However, in any event, it is clear that the documents sent to the applicant, as annexes to the Council’s letter of 10 June 2013, contain no information or material which adds anything to the content of the contested acts. The extract from a proposal by a Member State for the listing of the applicant (document 9869/13 EXT 1, paragraph 5), like the meeting document MD 229/12 ADD 1 REV 1 RELEX and the notes of 18 December 2012 from the Council Secretariat General to the Committee of Permanent Representatives (Coreper) and to Coreper and the Council (documents 17795/12 and 17523/12 ADD 1 REV 1) do not mention anything other than what is produced in the reasons stated in the contested acts. The extract from the report of the COMEM meetings (document 10246/13), for its part, contains nothing which relates specifically to the applicant. 68 Moreover, it must be stated that some parts of the documents disclosed to the applicant were deleted for reasons of confidentiality. 69 In that regard, it must be recalled that overriding considerations to do with the security of the European Union or of its Member States or with the conduct of their international relations may preclude the disclosure of some information or some evidence to the person concerned (Kadi II, paragraph 125). 70 However, it is then for the Council to adduce evidence 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 the full detailed grounds which constitute the basis for a decision on restrictive measures (see, by analogy, Case C‑300/11 ZZ [2013] ECR, paragraph 61). 71 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). 72 If it turns out that the reasons relied on by the Council 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). 73 In this case, the Council stated, in its reply to the written questions from the Court, that the redacted passages in the documents annexed to its letter of 10 June 2013 did not concern the applicant. The Council also replied that, during discussions on the applicant’s listing, it took into consideration other information, contained in a separate confidential document, provided to it by the Member State which had proposed the listing. That Member State is however opposed to the disclosure of that information, either wholly or in part. 74 The Court must therefore hold that the Council finds itself unable to provide additional information beyond that already known to the applicant. Further, the Council has provided no explanation of its inability to disclose the information to be found in the abovementioned separate document, which it claims to be confidential. In those circumstances, the Court must base its decision solely on the material which has been disclosed to it, in other words, in this case, the indications contained in the summary of reasons and in the written pleadings of the parties (see, to that effect, Kadi II, paragraph 123). 75 However, in its written pleadings the Council produced no additional information or evidence to support the reasons stated in the contested acts to justify the adoption of restrictive measures against the applicant. In the form of a response to the observations made by the applicant, in its application, on the existence of an error of assessment, the Council has done no more than offer general statements on the nature of restrictive measures and their raisons d’être and on its powers to adopt such measures against a person or entity which, like the applicant, the Council claims assists ‘designated entities to violate the provisions of the EU regulation on Iran’ and provides ‘financial support to the Government of Iran’. 76 Consequently, the material available to the Court contains no evidence capable of supporting the Council’s claims that the applicant assisted certain entities to violate the provisions of the EU legislation concerning restrictive measures against the Islamic Republic of Iran, or provided financial support to the Government of Iran. 77 It follows that the Council has not discharged the burden of proof which rested on it under Article 47 of the Charter of Fundamental Rights, as interpreted by the Court of Justice in Kadi II (see paragraph 61 above). 78 The third plea in law must therefore be upheld. 79 It follows that the contested acts must be annulled, in so far as they concern the applicant, without there being any need to examine the first, second and fourth pleas in law. The temporal effects of the annulment of the contested acts 80 Under the second paragraph of Article 264 TFEU the General Court may, if it considers this necessary, state which of the effects of a regulation which it has declared void are to be considered as definitive. 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 (judgment of 12 December 2013 in Case T‑58/12 Nabipour and Others v Council, not published in the ECR, paragraphs 250 and 251). 81 In this case, the Court considers, for the reasons set out below, that it is necessary to maintain the temporal effects of the contested acts 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. 82 It must be recalled that 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. 83 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). 84 The annulment with immediate effect of the contested acts 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. 85 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 77 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. 86 It follows that the effects of Annex II to Decision No 2010/413, as amended by Decision No 2013/270, and of Annex IX to Regulation No 267/2012, as amended by Implementing Regulation No 522/2013, 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 87 Under Article 87(2) of the 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 Sorinet Commercial Trust Bankers Ltd 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 Sorinet Commercial Trust Bankers Ltd 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. Annuls Council Decision 2013/270/CFSP of 6 June 2013 amending Decision 2010/413, in so far as it maintained the listing of Sorinet Commercial Trust Bankers Ltd in Annex II to Decision 2010/413; 4. Annuls Council Implementing Regulation (EU) No 522/2013 of 6 June 2013 implementing Regulation No 267/2012, in so far as it maintained the listing of Sorinet Commercial Trust Bankers Ltd in Annex IX to Regulation No 267/2012; 5. Orders the effects of Annex II to Decision 2010/413, as amended by Decision 2013/270, and Annex IX to Regulation No 267/2012, as amended by Implementing Regulation No 522/2013, to be maintained as regards Sorinet Commercial Trust Bankers, 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; 6. Orders the Council of the European Union to bear its own costs and to pay the costs of Sorinet Commercial Trust Bankers. Van der Woude Wiszniewska-Białecka Ulloa Rubio Delivered in open court in Luxembourg on 3 July 2014. [Signatures] Table of contents Background to the dispute Procedure and forms of order sought by the parties Law Admissibility of the action Admissibility of the application to adapt the forms of order Substance The third plea: error of assessment The temporal effects of the annulment of the contested acts Costs * Language of the case: English.