Judgment — ECLI:EU:C:2013:775
Date: 2013-11-28
Language of the case: French
Court formation: Fifth Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment;Appeal - unfounded

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 (see Kadi II, paragraph 119). 65 To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent European Union authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see Kadi II, paragraph 120 and case-law cited). 66 That is because 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 (see Kadi II, paragraph 121). 67 For that purpose, there is no requirement that that authority produce before the Courts of the European Union all the information and evidence underlying the reasons alleged in the act sought to be annulled. It is however necessary that the information or evidence produced should support the reasons relied on against the person concerned (see Kadi II, paragraph 122). 68 If the competent European Union authority finds itself unable to comply with the request by the Courts of the European Union, it is then the duty of those Courts to base their decision solely on the material which has been disclosed to them, namely, in this case, the statement of reasons for the contested measure, the observations and exculpatory evidence that may have been produced by the person concerned and the response of the competent European Union authority to those observations. 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, paragraph 123). 69 If, on the other hand, the competent European Union authority provides relevant information or evidence, the Courts of the European Union must then determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person concerned (see Kadi II, paragraph 124). 70 Admittedly, overriding considerations pertaining to the security of the European Union or of its Member States or to the conduct of their international relations may preclude the disclosure of some information or some evidence to the person concerned. In such circumstances, it is none the less the task of the Courts of the European Union, before whom the secrecy or confidentiality of that information or evidence is no valid objection, to apply, in the course of the judicial review to be carried out, techniques which accommodate, on the one hand, legitimate security considerations about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need sufficiently to guarantee to an individual respect for his procedural rights, such as the right to be heard and the requirement for an adversarial process (see Kadi II, paragraph 125, and, by analogy, ZZ, paragraphs 54, 57 and 59). 71 To that end, it is for the Courts of the European Union, when carrying out an examination of all the matters of fact or law produced by the competent European Union authority, to determine whether the reasons relied on by that authority as grounds to preclude that disclosure are well founded (see Kadi II, paragraph 126, and, by analogy, ZZ, paragraphs 61 and 62). 72 If the Courts of the European Union conclude that those reasons do not preclude disclosure, at the very least partial disclosure, of the information or evidence concerned, it shall give the competent European Union authority the opportunity to make such disclosure to the person concerned. If that authority does not permit the disclosure of that information or evidence, in whole or in part, the Courts of the European Union shall then undertake an examination of the lawfulness of the contested measure solely on the basis of the material which has been disclosed (see Kadi II, paragraph 127, and, by analogy, ZZ, paragraph 63). 73 On the other hand, if it turns out that the reasons relied on by the competent European Union authority 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 (see Kadi II, paragraph 128, and, by analogy, ZZ, paragraph 64). 74 In order to strike such a balance, it is legitimate to consider possibilities such as the disclosure of a summary outlining the information’s content or that of the evidence in question. Irrespective of whether such possibilities are taken, it is for the Courts of the European Union to assess whether and to what the extent the failure to disclose confidential information or evidence to the person concerned and his consequential inability to submit his observations on them are such as to affect the probative value of the confidential evidence (see Kadi II, paragraph 129, and, by analogy, ZZ, paragraph 67). 75 In the present case, the General Court held, in paragraph 52 of the judgment under appeal, that the statement of reasons for the listing of Fulmen and of Mr Mahmoudian in the acts at issue, albeit brief, had enabled them to understand what Fulmen was accused of having done and to dispute either the truth or the relevance thereof. 76 Although Fulmen stated at the hearing that it was informed of the period relating to the matters of which it was accused – that is from 2006 to 2008 – only at the stage of the appeal proceedings, it must be noted that that period could readily be deduced from public documents, since the statement of reasons referred to the period preceding the discovery of the existence of the Qom site and Security Council Resolution 1929 (2010) indicates that the construction of the Qom plant was revealed in September 2009. 77 As regards the evidence of Fulmen’s involvement in the installation of electrical equipment on the Qom/Fordoo site, the Council, the French Republic and the United Kingdom maintained that the production of documents demonstrating that involvement was unnecessary and, in any event, not possible owing to the confidential nature of those documents and the fact that the Rules of Procedure of the General Court require their communication to the other party. 78 In that regard, since the competent European Union authority refused to produce evidence to the Courts of the European Union, it is for those Courts, as is evident from paragraph 68 of the present judgment, to base their decision solely on the material which has been disclosed to them. 79 In the present case, the only evidence available to the Courts of the European Union is the claim made in the statement of reasons for the acts at issue. It is not substantiated by the production of information or evidence, such as a summary of the content of the information in question, further details of the electrical equipment allegedly installed on the Qom site or the reasons for identifying Fulmen as having installed that equipment, and, therefore, for establishing that the allegations were well founded. 80 In the light of that fact, it must be held that Fulmen and Mr Mahmoudian were not in a position to defend themselves against the allegations and that the Courts of the European Union are not in a position to determine whether the acts at issue were well founded. 81 It is of little importance that Article 215(1) TFEU gives the Council the power to adopt general economic measures against the Islamic Republic of Iran. The measure that is subject to review by the Courts of the European Union is a targeted measure that covers not a particular economic sector but an individual undertaking on account of a specific alleged activity. 82 In the light of all those points, the General Court was right to find, in paragraph 103 of the judgment under appeal, that the Council had not adduced evidence that Fulmen was active on the Qom/Fordoo site. 83 Consequently, the appeal is unfounded and must be dismissed. Costs 84 Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs. Article 138 of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1), provides in paragraph 1 that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Article 140(1) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1), provides that the Member States and institutions which have intervened in the proceedings are to bear their own costs. 85 Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by Fulmen and Mr Mahmoudian. 86 The French Republic, the United Kingdom and the Commission, as interveners, shall bear their own costs. On those grounds, the Court (Fifth Chamber) hereby: 1. Dismisses the appeal; 2. Orders the Council of the European Union to pay the costs; 3. Orders the French Republic, the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own costs. [Signatures] * Language of the case: French.