Opinion of the Advocate General — ECLI:EU:C:2018:227
Date: 2018-04-11
Language of the case: English
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment;Appeal - unfounded

summary of reasons for his inclusion on the list of restrictive measures provided by the UNSC and gave him the opportunity to comment on those reasons, following which the Commission considered that Mr Kadi’s listing was justified and thereby maintained his name to the list of restrictive measures for reasons of his association with the Al Qaeda network. (86) In other words, Mr Kadi was not de-listed in the same way as NITC. 90. Thereafter, Mr Kadi challenged the restrictive measures maintaining his listing which were annulled by the General Court. (87) On appeal to this Court in Kadi II (88) by the Commission, the Council and the United Kingdom from this successful challenge before the General Court, this Court, in dismissing the appeal, again dealt with issues concerning the judicial review of UN-implemented EU restrictive measures and whether observance of Mr Kadi’s fundamental rights required disclosure of the information and evidence relied on, since the Commission had maintained his listing on the basis of a narrative summary of reasons provided by the UNSC. (89) The Court found that, with respect to one of the reasons, although the material concerning factual allegations taking place in 1992 might have been sufficient to justify the initial listing of Mr Kadi in 2002, that same material, not otherwise substantiated, could not justify maintaining his listing after 2008 given how far apart the two measures were in time. (90) 91. Consequently, as the listing decision in Kadi I contained no reasons at all, Kadi II concerned the Court’s examination, and for the first time, of the reasons and evidence relied on by the Union institution concerned to support maintaining the listing of Mr Kadi. Therefore, in my view, the Court in Kadi II did not engage in assessment of the legality of a re-listing decision taken by the Council on the basis of reasons and factual allegations on which the EU Courts had ruled in a previous annulment action. 92. Second, OMPI II (91)was not subject to a judgment of this Court on appeal and is not binding on it. 93. That said, in that case, the designated entity brought an annulment action against the Council’s re-listing decision in the context of EU autonomous restrictive measures with a view to combating terrorism. By its first plea, the applicant argued that the re-listing decision breached Article 266 TFEU and the previous judgment, (92) by which the General Court annulled the initial listing decision due to an absence of reasons (formal defects) and infringement of the rights of the defence (procedural defects). (93) In particular, the applicant argued that the re-listing decision was based on the same national decision and the same items of evidence that were used for the previous decision and that the Council was not entitled to ‘recycle’ such matters to form the basis of the re-listing decision in view of the principles of legal certainty and legitimate expectations. (94) 94. The General Court rejected this plea, ruling that: ‘It suffices to note that the annulment of a measure for formal or procedural defects in no way prejudices the right of the institution that was the author of the measure to adopt a new measure on the basis of the same matters of law and fact as those serving as the basis for the measure annulled, provided that on this occasion it observes the formal and procedural rules whose breach gave rise to the annulment and that the legitimate expectations of the persons are duly protected.’ (95) The General Court also held that, even if it were established that the re-listing decision was based on the same national decision and the same items of evidence as the previous decision, that could have no bearing on the lawfulness of that decision and that the applicant’s legitimate expectations had been protected. (96) 95. OMPI II was thus confined to a situation in which the initial listing decision was annulled for formal and procedural defects. This is not the case in respect of the first listing at issue in this appeal, which was annulled on the substance. (97) Also, as the initial listing had not contained any reasons, OMPI II concerned a situation in which the General Court assessed the reasons and evidence set forth in the re-listing decision for the first time. 96. Third, Interporc (98) is situated within the framework of access to documents of the EU institutions, specifically the Commission on the basis of its then Code of Conduct. (99) The litigation arose because the applicant sought access to certain documents leading to the national authorities’ decision to recover import duties from it. (100) Following the rejection of the applicant’s initial request, the Secretary-General of the Commission adopted a decision rejecting its confirmatory application on the basis of the exception for protection of the public interest (court proceedings) (101) which was annulled by the General Court because the statement of reasons was inadequate. (102) 97. In the implementation of that judgment under Article 266 TFEU, the Secretary-General adopted a new decision, again rejecting the confirmatory application, but on different grounds, citing a new ground (the so-called authorship rule) (103) as well as protection of the public interest (court proceedings). (104) The applicant lodged an action for annulment against the new decision, contending, inter alia, that it could not be based on reasons that had not been considered in the initial decision. (105) 98. On appeal to this Court in Interporc, this argument was rejected. After taking note of the case-law on Article 266 TFEU, the Court held that, given that it followed from the first judgment that the initial decision never existed and that the Secretary-General was required, under Article 266 TFEU, to take a further decision, the General Court was correct in ruling that the Secretary-General was entitled to undertake a full review of the application for access and thus could rely in the subsequent decision on grounds other than those on which he based the initial decision, notably the authorship rule. (106) The Court further held that the possibility of a full review also implied that the Secretary-General was not supposed, in the subsequent decision, to reiterate all the grounds for refusal in order to adopt a decision correctly implementing the annulment judgment, but simply had to base his decision on those grounds that he considered, in exercising his discretion, to be applicable in the case. (107) 99. Consequently, while it could be argued that Interporc provides support for the Council’s discretion to put forward a new ground (here logistical support) to substantiate NITC’s re-listing, I take the view that there are three compelling reasons to distinguish it from this appeal. 100. First, Interporc is situated within a different context, that of access to documents of the EU institutions (and early beginnings at that), in which the EU legal framework and the Union’s objectives to be achieved are distinct from those of the Common Foreign and Security Policy (‘CFSP’) in which EU restrictive measures are situated. Moreover, the immediate consequences for the claimant’s legal position are, in my view, more serious when it comes to the imposition of restrictive measures against it. As the Court has recognised, the freezing of funds has considerable negative effects and impacts the rights and freedoms of the party concerned. (108) 101. Second, the legal arguments placed before the Court in Interporc are different from those in this appeal, and in particular there was no alleged breach of the right of an effective remedy in the Interporc case. (109) I do not find this to be all that surprising, considering that the Court’s judgment in Interporc was delivered on 6 March 2003, nearly 7 years before the Charter became binding (with the entry into force of the Lisbon Treaty on 1 December 2009) and hence at a time when the Court’s jurisprudence on the Charter had not yet been fully developed. That said, I would point out that the Court’s judgment in Interporc and some related cases have generated criticism in their own right on account of the so-called ‘infinite loop’ of litigation before the EU Courts resulting from the fact that, under this case-law, the EU institutions are entitled to rely on one ground of exception at a time, combined with the fact that the EU Courts are precluded under Article 263 TFEU from issuing orders to the institution concerned to produce the requested document. (110) 102. Third, Interporc did not concern a situation in which an institution adopted a wholly fresh decision relying on a ground that was based on factual allegations that had been expressly rejected in a previous annulment judgment. 103. On this basis, I am not convinced that the Kadi, OMPI and Interporc cases provide clear authority for the Council’s re-listing decision in this appeal. 3. The right to an effective remedy under Article 47 of the Charter in the circumstances of this appeal 104. The first paragraph of Article 47 of the Charter states that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions set down by that article. The second paragraph of Article 47 of the Charter establishes further remedial rights including that everyone has the right to a fair trial. 105. At the outset, I recall that under Article 51(1) of the Charter, the Council is bound by the provisions of the Charter. Pursuant to Article 52(3) of the Charter, the meaning and scope of the right to an effective remedy and the right to a fair trial under Article 47 of the Charter must be the same as those laid down in Articles 6(1) and 13 of the ECHR. (111) This is determined not only by the text of the ECHR, but also by the case-law of the ECtHR in the light of which Article 47 of the Charter should be interpreted. (112) 106. Accordingly, the Council is bound by Article 47 of the Charter when adopting restrictive measures, just as with any other Union measure. Moreover, the Council’s compliance with Article 47 of the Charter with respect to restrictive measures will be informed by pertinent case-law of the ECtHR on Articles 6(1) and 13 of the ECHR. The principles developed within that case-law will be analysed along with the Court’s case-law on Article 266 TFEU. (a) The Court’s case-law on Article 266 TFEU 107. As already mentioned, under Article 266 TFEU the institution whose act has been declared void under Article 264 TFEU is required to take the necessary measures to comply with the judgment annulling that act. Those measures do not relate to the elimination of that act from the Union legal order because the very annulment by the EU Courts has that effect; rather, they are concerned in particular with eradicating the consequences of the act in question which are affected by the illegalities found to have been committed. (113) 108. As the Court has held, in order for the institution concerned to carry out its obligation under Article 266 TFEU to comply with the annulment judgment and implement it fully, that institution must have regard not only to the operative part of that judgment, but also to the grounds which led to the judgment and constitute the essential basis for it, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. (114) 109. It is equally well established in the Court’s case-law that for the purposes of carrying out its obligation under Article 266 TFEU, the institution concerned has a discretion to decide on the necessary measures that should be taken in order to give due effect to the annulment judgment depending on the particular circumstances of the case. (115) As the Court has consistently held, it is not for the EU Courts to take the place of the institution concerned in order to specify the measures to be taken to comply with their judgments. (116) Accordingly, Article 266 TFEU is also interpreted as precluding the EU Courts from issuing orders or directions to the institution concerned to remedy the illegality identified in the annulment judgment. (117) 110. Nevertheless, to my mind, on the basis of the Court’s case-law under Article 266 TFEU, it is one thing to give the institution concerned the discretion as to how it chooses to correct the illegalities identified in the annulment judgment. It is quite another for the faculty to be deployed by that institution in a manner that empties Article 47 of the Charter of its substance. (b) Pertinent case-law of the ECtHR on Articles 6(1) and 13 of the ECHR 111. Referring to the ECtHR’s decision in Hornsby v. Greece (118) in the judgment in NITC II, the General Court considered that the right to an effective remedy in the field of restrictive measures would be ‘illusory’ if the Union legal order allowed a judgment given by the EU Courts to remain inoperative to the detriment of a party, and thus the execution of a judgment of the General Court must be regarded as an integral part of the ‘trial’ for the purposes of the right to an effective remedy under Article 47 of the Charter. (119) Indeed, in Hornsby v. Greece, the ECtHR held that Article 6(1) of the ECHR embodies the ‘right to a court’ of which the right of access constitutes one aspect and that it would be inconceivable that this article should describe in detail procedural guarantees afforded to litigants — proceedings that are fair, public and expeditious — without protecting the implementation of judicial decisions. (120) 112. As regards the scope of the right to a fair hearing before a tribunal as guaranteed in Article 6(1) of the ECHR, the ECtHR ruled that this right ‘must be interpreted in the light of the Preamble to the [ECHR], which declares, among other things, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, inter alia, that where the courts have finally determined an issue, their ruling should not be called into question’. (121) The ECtHR further stated: ‘Legal certainty presupposes respect for the principle of res judicata, that is the principle of the finality of judgments. This principle insists that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case.’ (122) 113. With regard to the principle of res judicata, the ECtHR underlined that ‘in all legal systems the res judicata effects of judgments have limitations ad personam and as to material scope’ (123) and that ‘it is the State’s responsibility to organise the legal system in such a way as to identify related proceedings and where necessary to join them or prohibit the further institution of new proceedings related to the same matter, in order to circumvent reviewing final adjudications treated as an appeal in disguise, in the ambit of parallel sets of proceedings’. (124) 114. Consequently, in its case-law on Article 6(1) of the ECHR, the ECtHR has dealt with matters in which a subsequent judgment quashed an already final judgment and established a framework regarding the application of legal certainty and res judicata (finality of judgments) in which it amplified its various components. 115. For example, in Kehaya and Others v. Bulgaria, (125) the question whether the State or the applicants were the owners of the same land was re-examined in subsequent proceedings and decided differently. (126) The ECtHR considered that ‘providing a “second chance” for the State to obtain a re-examination of a dispute already determined by way of final judgments in contentious proceedings’ was ‘unbalanced and created legal uncertainty’. (127) Thus, it held that the applicants’ rights under Article 6(1) of the ECHR were jeopardised because the subsequent judgment ‘set at naught an entire judicial process which had ended in a final judicial decision … and which had, moreover, been executed’. (128) By depriving of any legal effect the final judgment in the first proceedings, the State authorities acted in breach of the principle of legal certainty inherent in Article 6(1) of the ECHR. (129) 116. Moreover, Esertas v. Lithuania (130) involved a situation in which the claims were not identical but concerned exactly the same legal relations and the same circumstances which were crucial for deciding the dispute, only the time period for such claims was different. (131) The ECtHR held that ‘a situation where the facts already determined by a final decision in one case are later overruled by the courts in a new case between the same parties, is similar to the one where, following a re-opening of the proceedings, a binding and enforceable decision is quashed in its entirety’. (132) Consequently, it ruled that such a situation may also amount to a breach of the principle of legal certainty in violation of Article 6(1) of the ECHR. (133) 117. With regard to the right to an effective remedy enshrined in Article 13 of the ECHR, the ECtHR has stressed in its case-law that, although the scope of that provision may vary depending on the nature of the applicant’s complaint under the ECHR, ‘the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities’ of the State, (134)or ‘in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred’. (135) Against this background, the ECtHR concluded that ‘irrespective of whether the final decision to be executed takes the form of a court judgment or a decision by an administrative authority, domestic law as well as the [ECHR] provides that it is to be enforced’. (136) With this conclusion, the ECtHR drew a line to the abovementioned Hornsby v. Greece case and related jurisprudence in which it developed this maxim out of the so-called ‘right to a court’ deriving from Article 6(1) of the ECHR. (137) 118. On this basis, I observe that the ECtHR’s interpretation of the right to a fair trial for the purposes of Article 6(1) of the ECHR takes into account the need to guarantee legal certainty by precluding a subsequent judgment that is deemed to give a public authority a ‘second chance’ to litigate the same issues in substance as those raised in the first judgment even in situations where res judicata is not strictly engaged. Moreover, in considering the effectiveness of the remedy in practice as well as in law, the ECtHR’s interpretation of Article 13 of the ECHR places emphasis on ensuring the enforcement of a judgment and that such a judgment must meaningfully be obtained, carried out and afford sufficient redress to the claimant. I consider that these points inform the interpretation of the right to an effective remedy under Article 47 of the Charter and its application to the re-listing decision in this appeal. (c) Application in the circumstances of this appeal 119. I therefore take the view that Article 47 of the Charter, read in the light of pertinent case-law of the ECtHR on Articles 6(1) and 13 of the ECHR, should be interpreted as curtailing a Union institution’s discretion under Article 266 TFEU to adopt measures to remedy a wrong identified in a judgment of the EU Courts in circumstances deemed to give that institution a ‘second chance’ to re-examine legal issues that were decided by the EU Courts in the previous judgment and thereby depriving litigants of their effective remedy with respect to that judgment. (138) I underscore that remedies under Article 47 of the Charter have to be effective in practice as well as in law. 120. Contrary to the Council’s submissions, such an approach is not aimed at limiting the Court’s case-law on Article 266 TFEU in the field of restrictive measures. It rather ensures, more generally, that the remedial regime established by Article 266 TFEU is fully compliant with Article 47 of the Charter. 121. Moreover, such an approach is not obviated by the availability of an action for damages to engage the EU’s non-contractual liability. (139) I acknowledge that an action for damages is in principle available to compensate a party for damage suffered as a result of unlawful acts and conduct of the Council in connection with the adoption of re-listing decisions in the field of restrictive measures. (140) Yet, an action for damages seems to me incapable of providing redress for breach of the right to an effective remedy in the circumstances of this appeal if the Council’s discretion to choose the measures it considers necessary to remedy the wrong is deemed compatible with Article 266 TFEU. Under these circumstances, the conditions for the EU’s non-contractual liability to be incurred, namely the requirement of a sufficiently serious breach of a rule of law intended to confer rights on individuals, (141) would not be satisfied. 122. That being said, in my view, there is no error of law in the General Court’s judgment in NITC II. 123. I consider that the grounds of financial support and logistical support constitute separate grounds relied on by the Council for re-listing NITC on the basis of the designation criterion under Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012, referring to the provision of support for the Government of Iran. 124. The wording ‘such as’ in Article 23(2)(d) of Regulation No 267/2012 (‘support, such as material, logistical or financial support’) indicates that the three types of support specified therein are not exhaustive (142) and thus other types of support may be covered. (143) Indeed, the EU Courts have held that this criterion refers to any support which, even though it has no actual direct or indirect connection with nuclear proliferation, is nevertheless capable, as a result of its qualitative or quantitative significance, of encouraging such development, by providing the Iranian Government with resources or facilities of, inter alia, a material, financial or logistic nature which allow it to pursue proliferation activities. (144) 125. On that basis, I take the view that NITC’s right to an effective remedy was not breached in this case because not only was the judgment in NITC I effectively enforced, but also the ground of logistical support had not been adjudicated by the General Court in that judgment. Consequently, it does not appear from the material before the Court that the Council secured a re-examination of what had been decided in the judgment in NITC I. 126. Furthermore, even though the General Court’s finding, reproduced at point 54 above, on the breadth of the Council’s power to recast the claim into one concerning logistical support might potentially generate friction with the case-law of the ECtHR on ‘second chance’ litigation (see points 112 to 116 above), no detailed submissions applying such case-law to the circumstances of this appeal have been made. 127. I also point out that the material placed before the Court in this appeal has not substantiated the allegation that the Council engaged in so-called ‘warehousing’ and thus held back legal and factual arguments at the time of the first listing for use in re-listing NITC. 128. Accordingly, I conclude that although this appeal cannot be resolved by the Kadi, OMPI and Interporc cases, and restrictive measures taken by the Council are limited by the right to an effective remedy under Article 47 of the Charter including pertinent case-law of the ECtHR on Articles 6(1) and 13 of the ECHR, I do not consider that the re-listing decision breached NITC’s right to an effective remedy under Article 47 of the Charter in the circumstances of this appeal. VI. Conclusion 129. In light of the foregoing analysis, I propose that the Court should dismiss NITC’s first ground of appeal. 1 Original language: English. 2 Judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, and of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518. 3 Judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461. 4 Judgment of 6 March 2003, Interporc Im- und Export v Commission, C‑41/00 P, EU:C:2003:125. 5 See Bank Tejarat v Council, C‑248/17 P, pending, and Islamic Republic of Iran Shipping Lines and Others v Council, C‑225/17 P, pending. 6 United Nations Security Council, Resolution 1929 (2010), adopted by the Security Council at its 6335th meeting, on 9 June 2010, recital 17. 7 European Council conclusions, EUCO 13/10, 17 June 2010, Annex II ‘Declaration on Iran’, point 4. 8 OJ 2010 L 195, p. 39. Recital 22 of that decision refers to Resolution 1929 and the potential connection between Iran’s revenues from its energy sector and the funding of its nuclear proliferation activities. 9 See Decision 2010/413, Articles 23(2), 24(2) and 25(1). 10 OJ 2012 L 19, p. 22. Recital 8 of that decision reiterates the potential connection between Iran’s revenues derived from its energy sector and the funding of its nuclear proliferation activities as underlined in Resolution 1929. 11 See Decision 2012/35, recitals 5 and 6. 12 My emphasis. 13 Decision 2012/35, Article 1(7)(a)(ii). My emphasis. Article 1(8) of that decision replaced Article 24(2) of Decision 2010/413, so as to provide that where the Council decides to subject a person or entity to the measures referred to in, inter alia, Article 20(1)(c), it must amend Annex II accordingly. 14 OJ 2012 L 88, p. 1. 15 See Regulation No 267/2012, recital 11. 16 My emphasis. Under Article 46(2) of Regulation No 267/2012, where the Council decides to subject a person, entity or body to the measures referred to in, inter alia, Article 23(2) of that regulation, it must amend Annex IX accordingly. 17 OJ 2012 L 282, p. 58. 18 Decision 2012/635, recital 5. 19 Decision 2012/635, Annex, Part B. Entities, point 31. 20 OJ 2012 L 282, p. 16. 21 Implementing Regulation No 945/2012, recital 2. 22 Implementing Regulation No 945/2012, Annex, Part B. Entities, point 31. 23 See judgment of 3 July 2014, National Iranian Tanker Company v Council, T‑565/12, EU:T:2014:608, paragraphs 16 to 18. 24 OJ 2012 L 356, p. 34. 25 Regulation No 1263/2012, Article 1(11)(a). My emphasis. 26 Judgment in NITC I, paragraph 66. The General Court rejected NITC’s second plea alleging breach of the obligation to state reasons: ibid., paragraphs 35 to 47. Having upheld the first plea, it did not examine the remaining pleas: ibid., paragraph 67. 27 Judgment in NITC I, paragraph 58. 28 Judgment in NITC I, paragraph 59. 29 Judgment in NITC I, paragraph 60. My emphasis. 30 Judgment in NITC I, paragraph 61. 31 Judgment in NITC I, paragraph 62 (referring to paragraphs 51 and 52). 32 Judgment in NITC I, paragraphs 64 to 67. 33 Judgment in NITC I, paragraph 77. 34 Judgment in NITC I, paragraph 77 (citations omitted). 35 Judgment in NITC I, paragraph 78. 36 According to the information before the Court, the date of notification of the judgment in NITC I to the parties was 9 July 2014. In light of the time limit set forth in Article 56, first paragraph, of the Statute (2 months plus 10 days for distance), the effects of the first listing were maintained in relation to NITC until 19 September 2014. 37 See judgment in NITC II, paragraphs 23 to 29. 38 Annexed to NITC’s submissions in this appeal, the supporting documents comprised: (1) article, ‘Divestment of State Companies in Iran’ (not dated, RELEX date 20 December 2013); (2) article, ‘New Labor Minister ends Saeed Mortazavi’s appointment on the Social Security Organization’s Board of Trustees’, Iran Daily Brief (dated 19 August 2013, RELEX date 16 October 2014); (3) webpage of Social Security Organization concerning membership of board of directors (access date 13 October 2014, RELEX date 16 October 2014); (4) text, ‘Social Security Law of the Islamic Republic of Iran’ (not dated, RELEX date 16 October 2014); (5) Dun & Bradstreet report on Social Security Organization (not dated, RELEX date 16 October 2014); (6) Dun & Bradstreet report on Civil Servants Pension Fund (not dated, RELEX date 16 October 2014); (7) ‘unofficial translation’ of extract from interview with former NITC Chairman Mr Soori (not dated, RELEX date 16 October 2014); (8) NITC letter to EU High Representative Baroness Ashton, ‘Statement of NITC in relation to the Lloyd’s List article dated 18 January 2012 — “NITC to be targeted by sanctions”’ (dated 19 January 2012, RELEX date 16 October 2014); and (9) webpage of NIOC, listing NITC’s activities as one of NIOC’s subsidiaries (access date 12 February 2014, RELEX date 16 October 2014). RELEX denotes the Council Working Party of Foreign Relations Counsellors. 39 The General Court cited the letter specified in point 8 of note 38 in its examination of NITC’s plea alleging breach of the obligation to state reasons: see judgment in NITC I, paragraphs 10 and 34. 40 Extract from COREU CFSP/0084/14, Doc 16211/14 LIMITE, 27 November 2014, annexed to NITC’s submissions in this appeal (‘re-listing proposal’). 41 Re-listing proposal, points 1 to 6. 42 Re-listing proposal, point 7. 43 Re-listing proposal, point 8. See judgment in NITC I, paragraph 50. 44 Re-listing proposal, point 9. 45 Re-listing proposal, point 11 (citing links to news reports dated (in the order of listing) 21 June 2012, 17 April 2012, 11 December 2013, 15 November 2012, 16 April 2012 (note 43 and accompanying text above) and 11 July 2014). 46 OJ 2015 L 39, p. 18. 47 OJ 2015 L 39, p. 3. 48 Decision 2015/236, Annex, B. Entities, point 140. 49 Implementing Regulation 2015/230, Annex, B. Entities, point 140. 50 See point 25 above. 51 Judgment in NITC II, paragraph 32. 52 Council Decision (CFSP) 2015/1863 of 18 October 2015 amending Decision 2010/413 (OJ 2015 L 274, p. 174), Article 1(16). 53 Council Implementing Regulation (EU) 2015/1862 implementing Regulation No 267/2012 (OJ 2015 L 274, p. 161), Article 1. 54 Council Decision (CFSP) 2016/37 of 16 January 2016 concerning the date of application of Decision 2015/1863 (OJ 2016 L 11 I, p. 1); Information concerning the date of application of Council Regulation (EU) 2015/1861 amending Regulation No 267/2012 and Implementing Regulation 2015/1862 (OJ 2016 CI 15, p. 1). 55 Available at http://www.consilium.europa.eu/en/policies/sanctions/iran/jcpoa-restrictive-measures/. 56 China, France, Germany, the Russian Federation, the United Kingdom and the United States, with the EU High Representative. 57 See Information Note on EU Sanctions to be lifted under the Joint Comprehensive Plan of Action (JCPOA), Brussels, 16 January 2016, Last updated 3 August 2017, SN 10176/1/17 REV 1, available at note 55above. 58 Order of the President of the General Court of 16 July 2015, National Iranian Tanker Company v Council, T‑207/15 R, EU:T:2015:535 (‘order in NITC II’), paragraphs 59, 80 and 81. 59 Order in NITC II, paragraphs 43 (citing ECtHR, 13 November 2007, Ramadhi andOthers v Albania, CE:ECHR:2007:1113JUD003822202R, paragraph 48) and 50. 60 Order in NITC II, paragraphs 43 and 44. 61 Order in NITC II, paragraphs 45 and 46. 62 Order in NITC II, paragraph 47. 63 Order in NITC II, paragraphs 48 and 49. 64 Judgment in NITC II, paragraph 39. 65 Judgment in NITC II, paragraphs 45, 46, 50 and 55. 66 Judgment in NITC II, paragraph 51. 67 Judgment in NITC II, paragraph 52. 68 Judgment in NITC II, paragraph 52. 69 Judgment in NITC II, paragraph 53. 70 Judgment in NITC II, paragraph 54. 71 Judgment in NITC II, paragraphs 56 to 60. 72 Judgment in NITC II, paragraph 62. 73 Judgment in NITC II, paragraph 63. 74 Judgment in NITC II, paragraph 64. 75 Judgment in NITC II, paragraph 65. 76 Judgment in NITC II, paragraph 66. 77 Judgment in NITC II, paragraph 67. 78 In its submissions, NITC finds that this is inspired by relevant case-law in the United Kingdom in the context of civil litigation, citing as examples Henderson v. Henderson (1843) 3 Hare 100; and Johnson v. Gore Wood [2002] 2 AC 1. 79 Borrowing the words from the Opinion of Advocate General Ruiz-Jarabo Colomer in Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:36, point 2. 80 See e.g. judgments of 6 October 2014, Schrems, C‑362/14, EU:C:2015:650, paragraph 95, and of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraphs 44 to 59; see also e.g. Opinions of Advocate General Wathelet in Berlioz Investment Fund, C‑682/15, EU:C:2017:2, point 67, and of Advocate General Kokott in UBS Europe and Others, C‑358/16, EU:C:2017:606, point 77. 81 The first paragraph of Article 266 TFEU states: ‘The institution, body, office, or entity whose act has been declared void or whose failure to act has been declared contrary to the Treaties shall be required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union’. 82 See e.g. judgment of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraphs 52 and 53. See further part V.B.3(a) below. 83 Judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461 (‘Kadi I’). 84 Kadi I, paragraphs 333 to 371. 85 Kadi I, paragraphs 372 to 376. 86 See Opinion of Advocate General Bot in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:176, points 19 to 28. 87 Judgment of 30 September 2010, Kadi v Commission, T‑85/09, EU:T:2010:418. 88 Judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518 (‘Kadi II’). 89 See Kadi II, paragraphs 103 to 134. 90 Kadi II, paragraph 156. 91 Judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461 (‘OMPI II’), appeal withdrawn by order of the President of the Court of 3 June 2009, People’s Mojahedin Organization of Iran v Council, C‑576/08 P, not published, EU:C:2009:335. There was a third judgment of 4 December 2008, People’s Mojahedin Organization of Iran v Council, T‑284/08, EU:T:2008:550, appeal dismissed by judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853. 92 Judgment of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council, T‑228/02, EU:T:2006:384 (‘OMPI I’), not appealed. 93 OMPI II, paragraphs 3, 50 and 52. 94 OMPI II, paragraphs 72 and 73. 95 OMPI II, paragraph 75 (referring to paragraph 65). My emphasis. 96 OMPI II, paragraph 76 (referring to paragraph 67). 97 Of note, in the judgment in NITC I, the General Court stressed, in the context of its examination of the plea concerning alleged breach of the obligation to state reasons, that NITC’s claim that its shareholders no longer maintained ties with the Iranian Government concerned the assessment of whether the grounds advanced by the Council were well founded and hence concerned the substantive legality of the listing decision. This was separate from the question whether reasons were stated for the listing which concerned an essential procedural requirement. See judgment in NITC I, paragraph 46. 98 Judgment of 6 March 2003, Interporc Im- und Export v Commission, C‑41/00 P, EU:C:2003:125 (‘Interporc’). 99 Commission Decision 94/90/EC of 8 February 1994 on public access to Commission documents (OJ 1994 L 46, p. 58), implementing the Code of Conduct concerning public access to Commission and Council documents annexed thereto. That decision was repealed by Commission Decision 2001/937/EC, ECSC, Euratom of 5 December 2001 amending its rules of procedure (OJ 2001 L 345, p. 94), to give effect to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) (‘Regulation No 1049/2001’). Of note, that regulation is based on what is now Article 15(3) TFEU, which along with Article 42 of the Charter recognises the right of access to documents of the EU institutions and bodies as a matter of primary Union law. 100 Judgment of 6 February 1998, Interporc v Commission, T‑124/96, EU:T:1998:25 (‘Interporc I’), paragraphs 9 to 13. 101 Interporc I, paragraphs 14 to 18. 102 Interporc I, paragraphs 54 to 57. This judgment was not appealed. 103 Then in effect; it was deleted in Regulation No 1049/2001. 104 Judgment of 7 December 1999, Interporc v Commission, T‑92/98, EU:T:1999:308 (‘Interporc II’), paragraph 20. 105 Interporc II, paragraph 52. 106 Interporc, paragraph 31. 107 Interporc, paragraph 32. 108 See e.g. judgments of 16 November 2011, Bank Melli Iran v Council, C‑548/09 P, EU:C:2011:735, paragraph 49, and of 28 May 2013, Abdulrahim v Counciland Commission, C‑239/12 P, EU:C:2013:331, paragraph 70 and the case-law cited. 109 I note that there was no breach of the right to an effective remedy specifically alleged in Kadi II and OMPI II either. Kadi II was concerned with the procedural safeguards underpinning the right of effective judicial protection: see Kadi II, paragraphs 97 to 165. In Kadi I, the Court found that the applicants’ right to an effective remedy had been infringed, but this was based on failure to inform them of the evidence against them and their rights of defence: see Kadi I, paragraphs 349 to 351. And although it was not raised in OMPI II, the right to an effective remedy was distinguished from the right to a fair hearing in OMPI I, paragraphs 89 and 94. 110 See Leonor Rossi and Patricia Vinagre e Silva, Public Access to Documents in the EU (Hart 2017), pp. 59 to 62, 175 to 177 and 197 to 198. Of note, with particular regard to access to documents, the EU Courts have rejected claims to reconsider its case-law precluding the EU Courts from issuing orders to the institutions in light of, inter alia, Article 47 of the Charter: see e.g. judgments of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraphs 145 to 148, and of 11 June 2015, McCullough v Cedefop, T‑496/13, not published, EU:T:2015:374, paragraphs 16 to 28. 111 Article 52(3) of the Charter; Explanations Relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17) (‘Explanations’), Explanation on Article 47, pp. 29 and 30. This is subject to Union law providing ‘more extensive protection’ pursuant to Article 52(3) of the Charter: see my Opinion in Egenberger, C‑414/16, EU:C:2017:851. 112 Explanation on Article 52, p. 33. See also e.g. judgment of 30 June 2016, Tomaand Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 41 and the case-law cited; Opinion of Advocate General Wathelet in Berlioz Investment Fund, C‑682/15, EU:C:2017:2, points 73 and 74. 113 Judgment of 7 June 2006, Österreichische Postsparkasse v Commission, T‑213/01 and T‑214/01, EU:T:2006:151, paragraph 54. 114 See e.g. judgment of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraph 35 and the case-law cited. 115 See e.g. judgments of 28 January 2016, CM Eurologistik and GLS, C‑283/14 and C‑284/14, EU:C:2016:57, paragraph 76; and of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraphs 52 and 53; Opinion of Advocate General Sharpston in Commission v McBride and Others, C‑361/14 P, EU:C:2016:25, point 70. This was emphasised in the Opinion of Advocate General Léger in Interporc, C‑41/00 P, EU:C:2002:162, points 65 to 69. 116 See Opinion of Advocate General Léger in Mattila v Council and Commission, C‑353/01 P, EU:C:2003:403, point 30 and the case-law cited. 117 See e.g. judgment of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 146. This case-law dovetails with that concerning the scope of the EU Courts’ powers under Article 263 TFEU, precluding them from issuing directions to the institutions, even where they concern the manner in which their judgments are to be complied with: see e.g. order of 26 October 1995, Pevasa and Inpesca v Commission, C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 24. 118 ECtHR, 19 March 1997, Hornsby v. Greece, CE:ECHR:1997:0319JUD001835791, paragraphs 40 and 41. 119 Judgment in NITC II, paragraph 61. 120 Hornsby v. Greece, paragraph 40. See also e.g. ECtHR, 25 July 2017, Panorama Ltd and Miličić v. Bosnia and Herzogovina, CE:ECHR:2017:0725JUD006999710, paragraph 62 and the case-law cited. 121 See e.g. ECtHR, 28 October 1999, Brumărescu v. Romania, CE:ECHR:1999:1028JUD002834295, paragraph 61; 24 July 2003, Ryabykh v. Russia, CE:ECHR:2003:0724JUD005285499, paragraph 51; 21 April 2016, Chengelyan and Others v. Bulgaria, CE:ECHR:2016:0421JUD004740507, paragraph 31 and the case-law cited. 122 ECtHR, 6 December 2005, Popov v. Moldova (No. 2), CE:ECHR:2005:1206JUD001996004, paragraph 45 (citations omitted); see also e.g. 27 October 2016, Vardanyan and Nanushyan v. Armenia, CE:ECHR:2016:1027JUD000800107, paragraph 67 and the case-law cited. 123 See e.g. ECtHR, 12 January 2006, Kehaya and Others v. Bulgaria, CE:ECHR:2006:0112JUD004779799, paragraph 66; 16 January 2014, Brletić v. Croatia, CE:ECHR: 2014:0116JUD004200910, paragraph 43. 124 ECtHR, 13 November 2007, Driza v. Albania, CE:ECHR:2007:1113JUD003377102, paragraph 69. 125 ECtHR, 12 January 2006, Kehaya and Others v. Bulgaria, CE:ECHR:2006:0112JUD004779799. 126 Kehaya and Others v. Bulgaria, paragraphs 59 to 60, 62, 67 and 68. 127 Kehaya and Others v. Bulgaria, paragraph 69. 128 Kehaya and Others v. Bulgaria, paragraph 70. 129 Kehaya and Others v. Bulgaria, paragraph 70. 130 ECtHR, 31 May 2012, Esertas v. Lithuania, CE:ECHR:2012:0531JUD005020806. 131 Esertas v. Lithuania, paragraphs 23 and 24. 132 Esertas v. Lithuania, paragraph 25. 133 Esertas v. Lithuania, paragraph 25. 134 ECtHR, 27 June 2000, İlhan v. Turkey, CE:ECHR:2000:0627JUD002227793, paragraph 97; see also e.g. 12 September 2012, Nada v. Switzerland, CE:ECHR:2012:0912JUD001059308, paragraph 207 and the case-law cited. 135 ECtHR, 26 October 2000, Kudła v. Poland, CE:ECHR:2000:1026JUD003021096, paragraphs 157 and 158; see also e.g. 16 January 2018, Ciocodeică v. Romania, CE:ECHR:2018:0116JUD002741309, paragraph 88 and the case-law cited. Of note, Article 35(1) of the ECHR, which sets out the rule on exhaustion of domestic remedies, is based on the assumption reflected in Article 13 of the ECHR, with which it has a ‘close affinity’, that there is an effective domestic remedy available in respect of the alleged breach of a party’s ECHR rights: see Kudła v. Poland, paragraph 152. The ECtHR considers that a remedy which is dependent on discretionary action of the State authorities cannot be regarded as effective within the meaning of Article 35(1) of the ECHR: see e.g. ECtHR, decision of 29 June 2004, B. and L. v. The United Kingdom, CE:ECHR:2004:0629DEC003653602, p. 9; 29 April 2008, Burden v. The United Kingdom, CE:ECHR:2008:0429JUD001337805, paragraph 40 and the case-law cited. 136 ECtHR, 13 November 2007, Ramadhi and Others v. Albania, CE:ECHR:2007:1113JUD003822202R, paragraph 49. See also e.g. ECtHR, 3 February 2009, Nuri v. Albania, CE:ECHR:2009:0203JUD001230604, paragraph 8; 3 February 2009, Hamzaraj v. Albania (No. 1), CE:ECHR:2009:0203JUD004526404, paragraph 26. 137 See note 120 above. See also e.g. ECtHR, 31 July 2012, Manushaqe Puto and Others v.Albania, CE:ECHR:2012:0731JUD000060407, paragraphs 72, 90 and 94 (citing Hornsby v. Greece, paragraph 40). 138 It should be noted that the exercise of the rights enshrined in Article 47 of the Charter is always subject to justified limitations as provided for in Article 52(1) of the Charter. See e.g. Kadi II, paragraph 101. 139 See Articles 268 and 340, second paragraph, TFEU. 140 See e.g. judgment of 13 December 2017, HTTS v Council, T‑692/15, EU:T:2017:890 (action for damages rejected); and Bateni v Council, T‑455/17, pending; see also, in that regard, judgment of 18 September 2015, HTTS and Bateni, T‑45/14, not published, EU:T:2015:650, paragraph 66. 141 See e.g. judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraphs 29 and 30. 142 It may be useful to note that not all language versions of Article 23(2)(d) of Regulation No 267/2012 are the same. The majority refers to the term support at the beginning of the enumeration of examples for providing support (‘support, such as material, logistical or financial support’). Yet, some versions (see e.g. the Estonian, Finnish and German versions) immediately mention the three examples of material, logistical or financial support. This appears to lend further weight to the position that the grounds of financial and logistical support are separate and that the General Court did not decide on the merits of ‘support’ in general, but rather on the ground of financial support in the judgment in NITC II. 143 See e.g. judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraph 84; order of 4 April 2017, Sharif University of Technology v Council, C‑385/16 P, not published, EU:C:2017:258, paragraph 68. 144 Judgment of 28 April 2016, Sharif University of Technology v Council, T‑52/15, EU:T:2016:254, paragraphs 54, 59 and the case-law cited (appeal dismissed by order of 4 April 2017, Sharif University ofTechnology v Council, C‑385/16 P, not published, EU:C:2017:258). See also e.g. judgments of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraphs 79 to 81, and of 8 September 2016, Iranian Offshore Engineering & Construction v Council, C‑459/15 P, not published, EU:C:2016:646, paragraph 58 and the case-law cited.