Judgment — ECLI:EU:T:2015:646
Date: 2015-09-18
Language of the case: English
Court formation: Seventh Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - unfounded

summary of the pleas in law relied on, and that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure (see, by analogy, judgment of 20 November 1990 in Hanning v Parliament, T‑37/89, ECR, EU:T:1990:49, paragraph 38). 115 In the present case, the Court notes that, in the application in Case T‑373/14, the applicant did not raise any plea alleging infringement of its rights of defence by the Council in adopting the decision to maintain the applicant’s name on the lists at issue. Accordingly, since the argument put forward by the applicant in that respect in the reply is not based on any new matter that has come to light in the course of the procedure, and that argument cannot be regarded as amplifying a complaint made previously in the application, it must be rejected as being inadmissible because it is out of time. 116 In the light of the foregoing, all the pleas alleging infringement of the rights of the defence must be rejected. Pleas alleging an error of assessment 117 In the applicant’s view, there is no basis at all for the entry and maintenance of its name on the lists at issue. 118 In the reply in Case T‑156/13, the applicant submits, first of all, that no evidence has been presented to establish that it was providing financial resources to the Government of Iran. Next, it maintains that, even if it were considered to be owned by the Iranian State through NIOC, that would not support the conclusion that the applicant forms part of the Iranian State. Lastly, in the applicant’s view, the Council did not provide any evidence regarding the risk that the applicant had been used by NIOC to make and receive payments. 119 The Council contends that the applicant’s designation is justified in that it is controlled by NIOC and provides a substantial source of revenue for the Iranian Government. According to the Council, the applicant’s argument that it has no activities and does not have any funds within the European Union is not relevant for the purpose of challenging the inclusion of its name in the lists at issue. 120 First of all, it must be observed that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights requires, in particular, that, as part of the review of the lawfulness of the grounds which are the basis of the decision to list or to maintain the listing of a given person, the Courts of the European Union are to ensure that that decision is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the 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 (judgment in Kadi II, cited in paragraph 70 above, EU:C:2013:518, paragraph 119). 121 It is the task of the competent EU 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 (judgment in Kadi II, cited in paragraph 70 above, EU:C:2013:518, paragraphs 121 to 123). 122 Next, it must be pointed out that, given the not insignificant danger that an entity identified as providing support to the Government of Iran may exert pressure on the entities it owns or controls in order to circumvent the effect of the fund-freezing measures applying to it, by encouraging them either to transfer their funds to it, directly or indirectly, or to carry out transactions which it cannot itself perform by reason of the freezing of its funds, Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012 require a fund-freezing measure to be adopted against those entities owned or controlled by an entity identified as providing support to the Government of Iran, and the Council has no discretion in that regard (see, to that effect, judgment in Melli Bank v Council, cited in paragraph 79 above, EU:C:2012:137, paragraphs 39 and 58). 123 Accordingly, when adopting a decision under Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012, the Council must assess the circumstances of the case in order to determine which entities are entities that are owned or controlled. By contrast, the nature of the activities of the entity concerned and any lack of a link between those activities and the provision of support to the Government of Iran are not relevant criteria in that context, since the reason for the adoption of a fund-freezing measure against the entity that is owned or controlled need not be that that entity is itself directly providing support to the Government of Iran (see, to that effect, judgment in Melli Bank v Council, cited in paragraph 79 above, EU:C:2012:137, paragraphs 40 to 42). 124 Lastly, it is also settled case-law that, where the share capital of an entity is wholly owned by an entity providing support to the Government of Iran, the listing criterion laid down in Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012 is satisfied (see, to that effect, judgment in Melli Bank v Council, cited in paragraph 79 above, EU:C:2012:137, paragraph 79). 125 It follows that the adoption of restrictive measures against an entity wholly owned by an entity considered to be providing support to the Government of Iran is not a consequence of an assessment by the Council as to the risk that the wholly-owned entity might be led to circumvent the effect of the measures adopted against the parent entity, but is the direct result of the implementation of the relevant provisions of Decision 2010/413 and Regulation No 267/2012 (see, to that effect, judgment of 20 February 2013 in Melli Bank v Council, T‑492/10, ECR, EU:T:2013:80, paragraph 57). 126 In the present case, it must be borne in mind that the main reason for the Council’s inclusion of the applicant’s name in the lists at issue is that the applicant was set up and controlled by an entity providing support to the Government of Iran, in this instance, NIOC. The other reasons mentioned in the contested measures are linked to that main reason or are merely a consequence thereof (see paragraphs 78 and 79 above). The applicant does not dispute the fact that it was set up and is wholly owned by NIOC, nor the fact that NIOC is subject to restrictive measures on the ground that it provides financial resources to the Government of Iran. 127 In accordance with the principle derived from the case-law mentioned in paragraph 124 above, it must therefore be concluded that the entry of the applicant’s name on the lists at issue was justified in the light of the criterion laid down in Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012. On the basis of that criterion, the Council was not in fact required to demonstrate that the applicant itself directly provided financial support to the Government of Iran or that there was a risk that it might be used by NIOC to make or receive payments, that risk being presumed in a case such as this. 128 Furthermore, as the Council points out, the fact that the applicant is established in Switzerland and is not, therefore, subject to EU legislation on Iran, is not relevant for the purpose of challenging the restrictive measures taken against it. The Council can decide to freeze funds and economic resources within the territory of the European Union in respect of any entity, regardless of where it is established, provided that it fulfils one of the listing criteria laid down by Decision 2010/413 and Regulation No 267/2012. It must be noted that none of those listing criteria requires the entity whose funds the Council proposes to freeze to be established within the European Union. 129 As regards the justification for the decision maintaining the applicant’s designation, since the applicant does not dispute its ownership or control by NIOC in Case T‑373/14 either, it must be concluded that the entry of its name on the lists at issue remained justified when that decision was adopted. 130 In the light of the foregoing, the pleas alleging an error of assessment must therefore be rejected as unfounded. Sixth plea in Case T‑156/13, alleging infringement of the right to property 131 The applicant claims that the contested measures restrict its ability to conclude contracts and are contrary to the principle of proportionality. 132 It adds that the breach of procedural requirements and, in particular, of the obligation to provide reasons for the contested measures de jure triggers a breach of its right to property. 133 The Council contends that the fund-freezing measures pursue a legitimate aim, namely to maintain international peace and security, and are proportionate. 134 In the first place, it should be noted that the Council has fulfilled its procedural obligations, in particular by notifying to the applicant the reasons for the entry of its name on the lists at issue (see paragraphs 88 to 116 above). An infringement of the right to property cannot, therefore, in this instance result from a breach of one of those procedural obligations. 135 In the second place, it should be noted that the applicant has not established in what respect the restrictive measures to which it is subject infringed its right to property. 136 First of all, it must be borne in mind that the fund-freezing measures adopted by the Council apply only to funds that are within the territory of the European Union. Since the applicant itself states that it has no funds in accounts within the European Union, the measures taken against it cannot infringe its right to property in so far as it would thereby be deprived of certain funds. 137 Next, the applicant does not provide any explanation as to how the freezing of its funds within the European Union, where it claims to have none, would be capable of restricting its ability to conclude contracts with possible commercial partners. It is apparent from its arguments that the alleged disruption of its commercial relations is more a consequence of the application of Articles 8 and 9 of Regulation No 267/2012, which prohibit the provision to any Iranian entity (even one not included in the lists of persons or entities subject to restrictive measures) of certain goods and services intended for the oil and gas sectors, and of Article 41 of that regulation which prohibits any circumvention of those provisions, rather than of the fund-freezing measures to which the applicant is subject. However, the applicant cannot challenge the lawfulness of Articles 8, 9 or 41 of Regulation No 267/2012 in the context of the present action, since none of those articles constitutes the legal basis of the contested measures. 138 In the third place, in any event, even if the restrictive measures adopted in respect of the applicant restricted its right to property or its right to carry out an economic activity by limiting its ability to conclude contracts, it has been held that, in view of the prime importance of the preservation of international peace and security, interference with the rights referred to above that arises from the listing of entities owned or controlled by an entity providing support to the Iranian Government are necessary and appropriate for the purpose of exerting pressure on that government in order to oblige it to cease its nuclear proliferation activities (see, to that effect, judgment in Melli Bank v Council, cited in paragraph 79 above, EU:C:2012:137, paragraph 61). Consequently, in the present case, such interference cannot be regarded as disproportionate to the ends sought. 139 In those circumstances, the sixth plea in law in Case T‑156/13 must be rejected as unfounded. 140 It follows from all the foregoing considerations that the actions in Joined Cases T‑156/13 and T‑373/14 must be dismissed in their entirety. Costs 141 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Council. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Dismisses the action; 2. Orders Petro Suisse Intertrade Co. SA to bear its own costs and to pay those incurred by the Council of the European Union. Van der Woude Wiszniewska-Białecka Ulloa Rubio Delivered in open court in Luxembourg on 18 September 2015. [Signatures] * Language of the case: English.