Opinion of the Advocate General — ECLI:EU:C:2026:233
Date: 2026-03-19
Language of the case: French

Summary of the applicable principles and legislation 
I – EU law 
17 The instruments of EU Common Foreign and Security Policy include the 
possibility, enshrined in Article 215 of the Treaty on the Functioning of the 
European Union, of taking ‘restrictive measures’, which are preventive sanctions 
imposed on third States the conduct of which threatens international peace and 
security and which have infringed principles of international law or human rights. 
Those restrictive measures, which fall within the competence of the Council of the 
European Union, may have negative consequences on third parties who are not 
designated and who are in no way responsible for the acts which led to the 
adoption of a system of financial sanctions (Court of Justice of the European 
Communities, 30 July 1996, C-84/95). 
18 They are subject to judicial review of their legality by the European courts. 
19 The regulation implements, at European level, the various resolutions adopted 
since 2014 by the United Nations Security Council concerning Yemen, which 
provide for an ‘Obligation to freeze all funds, other financial assets and economic 
resources that are owned or controlled, directly or indirectly, by the individuals or 
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entities designated by the Committee, or by individuals or entities acting on their 
behalf or at their direction, or by entities owned or controlled by them; no funds, 
financial assets or economic resources to be made available to or for the benefit of 
such individuals or entities.’ 
20 Article 2 of that regulation provides that: 
‘1. All funds and economic resources belonging to, owned, held or controlled by 
any natural or legal person, entity or body as listed in Annex I to this Regulation 
shall be frozen. 
2. No funds or economic resources shall be made available, directly or indirectly, 
to or for the benefit of natural or legal persons, entities or bodies listed in 
Annex I.’ 
21 Annex I to the regulation targets the Houthi group second-in-command, the 
Houthi military commander and the President of Yemen’s General People’s 
Congress party, the Former President of the Republic of Yemen. 
22 Implementation of the ‘restrictive measures’ adopted by the Council of the 
European Union, which are preventive sanctions imposed on third States the 
conduct of which threatens international peace and security and which have 
infringed principles of international law or human rights, gave rise to the 
publication of guidelines updated on 4 May 2018. 
23 Those guidelines include, in particular, the following provisions relating to 
‘compliance’: 
‘K. Compliance 
… 
I. Ownership and control 
… 
Control 
55b. The criteria to be taken into account when assessing whether a legal person 
or entity is controlled by another person or entity, alone or pursuant to an 
agreement with another shareholder or other third party, could include, inter alia: 
(a) having the right or exercising the power to appoint or remove a majority of 
the members of the administrative, management or supervisory body of such legal 
person or entity; 
(b) having appointed solely as a result of the exercise of one’s voting rights a 
majority of the members of the administrative, management or supervisory bodies 
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of a legal person or entity who have held office during the present and previous 
financial year; 
(c) controlling alone, pursuant to an agreement with other shareholders in or 
members of a legal person or entity, a majority of shareholders’ or members’ 
voting rights in that legal person or entity; 
(d) having the right to exercise a dominant influence over a legal person or 
entity, pursuant to an agreement entered into with that legal person or entity, or to 
a provision in its Memorandum or Articles of Association, where the law 
governing that legal person or entity permits its being subject to such agreement 
or provision; 
(e) having the power to exercise the right to exercise a dominant influence 
referred to in point (d), without being the holder of that right (including, for 
example, by means of a front company); 
(f) having the right to use all or part of the assets of a legal person or entity; 
(g) managing the business of a legal person or entity on a unified basis, while 
publishing consolidated accounts; 
(h) sharing jointly and severally the financial liabilities of a legal person or 
entity, or guaranteeing them. 
If any of these criteria are satisfied, it is considered that the legal person or entity 
is controlled by another person or entity, unless the contrary can be established on 
a case by case basis. 
55c. The fulfilment of the above criteria of ownership or control may be refuted 
on a case by case basis. 
II. Making indirectly available funds or economic resources to designated 
persons and entities 
55d. If the ownership or control is established in accordance with the above 
criteria, the making available of funds or economic resources to non-listed legal 
persons or entities which are owned or controlled by a listed person or entity will 
in principle be considered as making them indirectly available to the latter, unless 
it can be reasonably determined, on a case-by-case basis using a risk-based 
approach, taking into account all of the relevant circumstances, including the 
criteria below, that the funds or economic resources concerned will not be used by 
or be for the benefit of that listed person or entity. 
The criteria to be taken into account include, inter alia: 
(a) the date and nature of the contractual links between the entities concerned 
(for instance sales, purchase, or distribution contracts); 
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(b) the relevance of the sector of activity of the non-listed entity for the listed 
entity; 
(c) the characteristics of the funds or economic resources made available, 
including their potential practical use by, and ease of transfer to, the listed entity; 
(d) An economic resource will not be considered to have been for the benefit of 
a listed person or entity merely because it is used by a non-listed person or entity 
to generate profits which might be in part distributed to a listed shareholder. 
55e. It is to be noted that the indirect making available of funds or economic 
resources to listed persons or entities may also include the making available of 
these items to persons or entities which are not owned or controlled by listed 
entities.’ 
24 The Court of Justice of the European Union (CJEU) has stated that the expression 
‘made available’ has a wide meaning: rather than denoting a specific legal 
category of act, it encompasses all the acts necessary under the applicable national 
law if a person is effectively to obtain full power of disposal in relation to the 
property concerned (CJEU, 11 October 2007, C-117/06, Möllendorf and 
Möllendorf-Niehuus, paragraph 51, on the interpretation of Article 2 of Regulation 
No 881/2002 imposing certain specific restrictive measures directed against 
certain persons and entities associated with Usama bin Laden, the Al-Qaida 
network and the Taliban). 
25 It held that it was for the national court to ascertain, for the purpose of concluding 
that an economic resource had indirectly been made available, whether the 
director of the company to which that resource was to be delivered had acted on 
behalf, under the control or on the instructions of the listed company and had 
intended to use the asset in question for its benefit (CJEU, 21 December 2011, 
C-72/11, Criminal proceedings against Mohsen Afrasiabi and Others, 
paragraphs 52 and 53, on the interpretation of Article 7(3) of Council Regulation 
(EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran). 
26 It explained that payments could constitute the indirect making available of funds 
for the benefit of a person whose name was on the list in Annex III to the 
regulation only provided that it is possible for those funds to be passed on to that 
person or for that person to have the ability to dispose of them, in the light, inter 
alia, of the existence of financial or legal links between the beneficiary of the 
funds and such a person (CJEU, 17 January 2019, C-168/17, SH v TG, on the 
interpretation of Article 5(2) of Council Regulation (EU) No 204/2011 of 2 March 
2011 and Article 17 of Council Regulation (EU) No 2016/44 of 18 January 2016 
concerning restrictive measures in view of the situation in Libya and repealing 
Regulation No 204/2011). 
27 Finally, concerning the implementation of Council Regulation (EC) No 423/2007 
of 19 April 2007 concerning restrictive measures against Iran, the CJEU stated 
that, in interpreting that regulation, the wording and object of United Nations 
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Security Council Resolution 1737 (2006) of 23 December 2006 imposing 
restrictive measures on Iran had to be taken into account. It noted that it was 
apparent from that resolution that those measures [were] intended to be preventive 
in that they sought to prevent a risk of proliferation sensitive nuclear activities in 
that State (CJEU, 11 November 2021, C-340/20, Bank Sepah v Overseas 
Financial Limited and Oaktree Finance Limited, paragraphs 53 and 54). 
II – National law 
28 In accordance with Article 1518 of the Code of Civil Procedure, an international 
arbitral award delivered in France is subject only to an action for annulment. 
29 The powers of the court hearing the action for annulment are set out in 
Article 1520 of the Code of Civil Procedure, which provides: 
‘An action for annulment is available only in the following cases: 
… 
5° Where the recognition or enforcement of the award is contrary to international 
public policy.’ 
30 According to Article 1527(2) of the Code of Civil Procedure, the dismissal of the 
action for annulment grants leave for enforcement of the arbitral award or of those 
of its provisions which are not declared unlawful by the court. 
31 It is for the court hearing the action for annulment to determine, specifically, 
whether the incorporation of an arbitral award into the French legal system clearly 
infringes international public policy […] [reference to national case-law]. 
Grounds for the reference for a preliminary ruling 
32 The main question raised by the appeal concerns the criteria for determining the 
existence of an indirect making available [of funds or economic resources] for the 
purposes of the abovementioned regulation. More specifically, the issue is 
whether payment, pursuant to the arbitral award, of the sums owed to the Ministry 
of Oil and Mines of Yemen and to YOGC would indirectly result in those sums 
being made available to natural or legal persons, entities or bodies listed in 
Annex I. 
33 The Ministry of Oil and Mines of Yemen and YOGC, creditors of the sums owed 
by DNO, Petrolin and MOE pursuant to the award, are not included in that list. 
34 DNO and Petrolin submit that the control or ownership, by a person or entity 
targeted by the restrictive measures, of a person to whom those funds are made 
available is not a necessary condition, for the purposes of Article 2(2) of the 
regulation interpreted in the light of paragraphs 55d and 55e of the guidelines 
published by the Council, in order to establish such an indirect making available 
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of funds to the sanctioned person or entity. They take the view that other 
circumstances may establish an indirect making available [of funds or economic 
resources] and that it is sufficient, in that regard, to demonstrate the existence of a 
risk, of a possibility of payment of the funds to sanctioned persons, or of use of 
the funds for their benefit. 
35 The Ministry of Oil and Mines of Yemen and YOGC maintain primarily that the 
Court of Appeal, having assessed the evidence put before it at its absolute 
discretion, considered that there was no serious, specific and consistent evidence 
that funds had indirectly been made available to persons subject to restrictive 
measures. 
36 The Advocate General is of the opinion that the concept of ‘indirect[ly] making 
available’ [funds or economic resources] is a broad one and that its existence does 
not necessarily require it to be shown that the Ministry of Oil and Mines of 
Yemen and YOGC in fact act ‘on behalf, under the control or on the instructions’ 
of the persons targeted by the restrictive measures and that they intend to use the 
funds in question for the benefit of those persons. 
37 The factual situation described by the judgment under appeal essentially raises 
questions concerning the burden of proof in a context of uncertainty as regards the 
political situation in the country concerned. 
38 It is necessary to determine whether Article 2(2) of Regulation (EU) 1352/2014 of 
18 December 2014 concerning restrictive measures in view of the situation in 
Yemen must be interpreted, in the light of the guidelines published by the 
Council, updated on 4 May 2018, as meaning that the indirect making available 
[of funds or economic resources] may be understood as making funds available to 
public entities not targeted by the restrictive measures, if it is established that the 
persons targeted by those measures exercise, within those entities, an influence 
which competes with that of the legitimate Government not targeted by those 
measures. 
39 Where the existence of that competing influence is established, the question arises 
as to whether Article 2(2) of the regulation must be interpreted as meaning that the 
entities to which the funds are paid are presumed to be controlled by the persons 
targeted by the restrictive measures. If the answer is in the affirmative, does that 
presumption allow for contrary evidence to be adduced? In that regard, is the fact 
that the legitimate Government, which is not targeted by the restrictive measures, 
does not cooperate with the persons targeted by those measures relevant? 
40 Where the evidence adduced before the national court does not make it possible to 
assess whether it is the legitimate Government or the persons targeted by the 
sanctions which have decisive influence within the entity to which the funds are 
made available, the Court [of Appeal] asks whether the mere reasonable risk that 
targeted persons may ultimately benefit from all or part of those funds provides a 
sufficient basis for applying the sanctions. 
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41 Since the interpretation of Regulation (EU) No 1532/2014, on which the answer to 
these questions depends, is not so obvious as to leave no room for reasonable 
doubt, it is necessary, in accordance with Article 267 of the Treaty on the 
Functioning of the European Union, to refer the questions set out in the operative 
part to the Court of Justice of the European Union for a preliminary ruling. 
ON THOSE GROUNDS, the Court: 
Having regard to Article 267 of the Treaty on the Functioning of the European 
Union; 
REFERS the following questions to the Court of Justice of the European Union: 
(1) Must Article 2(2) of Council Regulation (EU) No 1352/2014 of 18 December 
2014 concerning restrictive measures in view of the situation in Yemen be 
interpreted, in the light of the guidelines published by the Council, updated on 
4 May 2018, as meaning that the indirect making available [of funds or economic 
resources] may be understood as making funds available to public entities not 
targeted by the restrictive measures, if it is established that the persons targeted by 
those measures exercise, within those entities, an influence which competes with 
that of the legitimate Government not targeted by those measures? 
(2) Where the existence of that competing influence is established, is Article 2(2) 
of Regulation (EU) No 1352/2014 to be interpreted as meaning that the entities to 
which the funds are paid are presumed to be controlled by the persons targeted by 
the restrictive measures? If the answer is in the affirmative, does that presumption 
allow for contrary evidence to be adduced? In that regard, is the fact that the 
legitimate Government, which is not targeted by the restrictive measures, does not 
cooperate with the persons targeted by those measures relevant? 
(3) Where the evidence adduced before the national court does not make it 
possible to assess whether it is the legitimate Government or the persons targeted 
by the sanctions which have decisive influence within the entity to which the 
funds are made available, does the mere reasonable risk that targeted persons may 
ultimately benefit from all or part of those funds provide a sufficient basis for 
applying the sanctions? 
STAYS the proceedings on the appeal pending the decision of the Court of Justice 
of the European Union […]. 
[…] [customary formulas].