Judgment — ECLI:EU:T:2016:308
Date: 2016-05-24
Language of the case: English
Court formation: Second 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 (see judgment of 28 November 2013 in Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 64 and the case-law cited). 52 The judicial review of the lawfulness of an act whereby restrictive measures are imposed on an entity extends to the assessment of the facts and circumstances relied on as justifying it, and to the evidence and information on which that assessment is based. In the event of challenge, it is for the Council to present that evidence for review by the Courts of the European Union (see judgments of 6 September 2013 in Bateni v Council, T‑42/12 and T‑181/12, not published, EU:T:2013:409, paragraph 46 and the case-law cited, and of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council, T‑489/10, EU:T:2013:453, paragraph 42 and the case-law cited). In other words, 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 necessary that the information or evidence produced should support the reasons relied on against the person concerned (see judgment of 3 July 2014 in National Iranian Tanker Company v Council, T‑565/12, EU:T:2014:608, paragraph 57 and the case-law cited). 53 In the present case it is appropriate, before examining the merits of the complaints raised in the second plea in law, referred to in paragraph 44 above, to establish what evidence may be relied upon effectively by the Council, having regard to the requirements of respect for the applicant’s rights of the defence and its right to effective judicial protection. Evidence which may be relied upon effectively by the Council 54 It is necessary to assess whether the evidence adduced by the Council in the defence in Case T‑423/13 may be relied upon effectively in support of the reasons for the applicant’s inclusion on the lists at issue, without undermining the applicant’s rights of the defence and its right to effective judicial protection. 55 In the first place, it must be recalled that, as a rule, the legality of contested measures may be assessed only on the basis of the elements of fact and 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 latter 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 (see judgment of 6 September 2013 in Bateni v Council, T‑42/12 and T‑181/12, not published, EU:T:2013:409, paragraph 51 and the case-law cited). 56 In the second place, pursuant to case-law, in the case of a subsequent decision to freeze funds, respect for the rights of the defence requires, first, that the party concerned be informed of the information or evidence in the file which, in the view of the Council, justifies maintaining its inclusion on the lists at issue, and also, where applicable, of any new evidence against it and, second, that it must be afforded the opportunity effectively to make known its view on the matter (judgment of 12 December 2006 in Organisation des Modjahedines du peuple d’Iran v Council, T‑228/02, EU:T:2006:384, paragraph 126). 57 Therefore, in the case of an initial measure whereby the funds of an entity are frozen, unless overriding considerations pertaining to the security of the European Union or of its Member States or to the conduct of their international relations preclude it, the evidence adduced against that entity should be disclosed to it either concomitantly with or as soon as possible after the adoption of the measure concerned. At the request of the entity concerned, it also has the right to make known its view on that evidence after the adoption of the measure (judgment of 6 September 2013 in Bank Melli Iran v Council, T‑35/10 and T‑7/11, EU:T:2013:397, paragraph 83 and the case-law cited). By contrast, any subsequent decision to freeze funds must be preceded by the possibility of a further hearing and, where appropriate, notification of any new incriminating evidence (judgment of 11 July 2007 in Sison v Council, T‑47/03, not published, EU:T:2007:207, paragraphs 173 and 178). 58 In the present case, it must be stated that it was only on 4 November 2013, when the defence in Case T‑423/13 was lodged before the Court, that the Council referred to the evidence, found on the Internet on 11 March 2013 and 28 October 2013, on which it considered it could justify the decision to maintain the applicant’s inclusion on the lists at issue. The evidence in question is the following: (a) the curriculum vitae of one of the applicant’s employees found on the Internet on 28 October 2013, which shows, essentially, that its owner works for the applicant, which is an agent for HDSL in the port of Jebel Ali (United Arab Emirates), and acts every time IRISL calls that port to provide it with the necessary assistance; (b) an extract from the Internet site of the Dubai Shipping Agents Association, found on the Internet on 11 March 2013, which shows that the name of the applicant’s representative corresponds to the name of the representative of Great Ocean Shipping Service; (c) the curriculum vitae of a person residing in Sharjah (United Arab Emirates), found on 11 March 2013 on the Internet site of a company established in Sharjah and stating that the person concerned worked for the applicant and Great Ocean Shipping Service from February 2010 until the present; (d) an extract from the Internet site of the Iranian Exporters’ Organisation of Mining Industrial Products and Engineering Services, found on the Internet on 28 October 2013, showing that the applicant presents itself as an agent of HDSL. 59 It must first be observed in this connection that, prior to the date on which the measures of June 2013 were adopted, the Council had available to it only the evidence found on the Internet on 11 March 2013. It is indeed for that reason that, in accordance with the case-law cited in paragraph 55 above, the other evidence found on the Internet on 28 October 2013, after the date on which the measures of June 2013 were adopted, cannot be relied upon by the Council in support of those measures. 60 Secondly, it is important to note that the decision to maintain the inclusion of the applicant on the lists at issue, set out in the measures of June 2013, is a decision subsequent to the restrictive measures and, pursuant to the case-law cited in paragraphs 56 and 57 above, the Council was thus required to disclose to the applicant, prior to the adoption of that decision, the information or evidence in the file which, in the view of the Council, justified maintaining that listing. 61 That finding is not called into question by the argument, raised by the Council at the hearing, that, in accordance with EU case-law, the applicant should have submitted a request for access to the file for the purposes of acquainting itself with the evidence referred to in paragraph 58 above and, since it did not do so, the Council was not required to spontaneously grant it access to the file. 62 In this connection, case-law provides that when sufficiently precise information has been disclosed, enabling the entity concerned effectively to state its point of view on the evidence adduced against it by the Council, respect for the rights of the defence does not mean that the Council must spontaneously grant access to all the documents in its 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 (see judgment of 6 September 2013 in Bank Melli Iran v Council, T‑35/10 and T‑7/11, EU:T:2013:397, paragraph 84 and the case-law cited). 63 However, in the present case, no information enabling the applicant effectively to state its point of view on the evidence adduced against it by the Council was disclosed, pursuant to the case-law cited in paragraph 57 above, prior to the adoption of the measures of June 2013. Moreover, neither the Council’s letter of 10 June 2013 (see paragraph 19 above) nor the measures of June 2013 mentioned the new incriminating evidence on which the Council relied in order to include the applicant on the lists at issue. 64 In addition, as the Council itself concedes, the new evidence referred to in paragraph 58 above is in the public domain, in so far as it is on the Internet. There was therefore no overriding consideration pertaining to the security of the European Union or of its Member States or to the conduct of their international relations precluding the disclosure of that evidence prior to the adoption of the measures of June 2013. 65 Lastly, it must be stated that, were the Council allowed to rely on the information mentioned in the defence in Case T‑423/13, that would enable it to put forward supplementary reasons, in order to complement those stated in the measures of June 2013, which would also undermine the applicant’s rights of the defence and right to effective judicial protection. Since the applicant was not in a position to know the reasons in sufficient time to, first, defend its position during the administrative procedure and, secondly, assess the justification for including it on the lists at issue and the possibility of bringing an action, it would have only the reply and the oral part of the procedure in which to set out its observations against such reasons. The principle of equality of the parties before the Courts of the European Union would accordingly be affected (see, to that effect, judgment of 6 September 2013 in Bateni v Council, T‑42/12 and T‑181/12, not published, EU:T:2013:409, paragraph 54 and the case-law cited). 66 In those circumstances, it must be held that the information disclosed for the first time in the defence in Case T‑423/13 cannot be taken into consideration by the Court, even if it enables the applicant’s inclusion on the lists at issue to be justified. Taking such evidence into consideration would undermine, first, the principle that the legality of contested measures may be assessed only on the basis of the elements of fact and law on which they were adopted and, secondly, the applicant’s rights of the defence and its right to effective judicial protection. 67 It is consequently necessary to examine whether the Council committed an error of assessment in considering that the decision to include the applicant again on the lists at issue was adequately substantiated in the absence of the evidence adduced in the defence in Case T‑423/13. The merits of the plea alleging error of assessment 68 As stated in paragraph 44 above, the applicant claims that the reasons relied on to include it on the lists at issue are erroneous and that the Council has not substantiated those reasons. 69 The Council contends in reply that the inclusion of the applicant on the lists at issue, as noted in paragraph 45 above, is based on two distinct criteria: that of acting on behalf of IRISL and that of assisting the entities included on those lists in evading the sanctions relating to them. It submits that, should the Court consider the reasons in relation to the first criterion to be unsubstantiated, the applicant’s inclusion might be found to be justified on the basis of the reasons referring to the second criterion. 70 It must be recalled in this connection that, in order to justify the applicant’s inclusion on the lists at issue, the Council claims, concerning the first criterion mentioned in paragraph 69 above, that the applicant is controlled by M.M.F., who was the regional director of IRISL for the United Arab Emirates, that it acts, in its capacity as an agent of HDSL, as IRISL’s shipping agent in the port of Jebel Ali and that it issued false transport documents for IRISL and entities owned or controlled by IRISL. Concerning the second criterion mentioned in paragraph 69 above, it claims that the applicant was established to replace an entity which had been sanctioned by the EU and then wound up by court order, inasmuch as, first, the applicant and the entity in question are represented by the same person in the Dubai Shipping Agents Association and, secondly, the entity in question provided shipping agency services to HDSL and now the applicant provides those same services to the entity in question, which has been listed since 26 July 2010, thus enabling it to evade the sanctions applying to it. 71 It must be stated however that the only items of evidence adduced by the Council are those, mentioned in paragraph 58 above, which, for the reasons set out in paragraphs 59 to 66 above, cannot be taken into account. 72 Therefore, the inevitable conclusion, in the absence of any evidence which may be relied upon effectively by the Council, is that the applicant’s inclusion on the lists at issue was based purely on statements of principle, be it in relation to the reasons for its inclusion referring to the first criterion, or to those in relation to the second criterion (see paragraph 69 above). The merits of the complaint alleging an error of law 73 In the second plea in law, the applicant goes on to submit, as observed in paragraph 44 above, that there is now no legal basis for its inclusion on the lists at issue as a result of the delivery of the judgment of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council (T‑489/10, EU:T:2013:453). It raises that argument in the reply, on the grounds that the judgment in question had not yet been delivered when proceedings were initiated. In its response to the measures of organisation of procedure it further states that, in the judgment in question, the Court held that the Council had not justified IRISL’s inclusion on the lists at issue and therefore that the inclusion of entities (including the applicant) owned or controlled by IRISL or acting on its behalf was unlawful as of July 2010 (when IRISL was first included). It adds that, pursuant to the General Court’s case-law, a judgment annulling a designation ‘deletes the name of the ... entity in question retroactively from the legal order and the listing is deemed never to have existed’. According to the applicant, that principle is applicable to the present case. 74 The Council challenges the applicant’s argument and submits, inter alia, in its response to the measures of organisation of procedure, that the applicant did not in the reply, which was lodged subsequent to the delivery of the judgment of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council (T‑489/10, EU:T:2013:453), put forward any plea or argument alleging that the inclusion of IRISL and the other entities concerned on the lists at issue was deemed never to have existed at the time of the adoption of the measures of June 2013. Consequently, in the Council’s view, the Court could not examine such a plea or argument in the present case without ruling ultra petita. 75 It must be pointed out in this connection that, contrary to what is contended by the Council, the applicant in the reply did request the Court to rule on the consequences produced by the judgment of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council (T‑489/10, EU:T:2013:453) for the measures of June 2013 (see paragraph 44 above) and its observations in the response to the measures of organisation of procedure are merely a development of that argument, which has therefore been established to be admissible. 76 Moreover, a plea regarding any consequences stemming from a judgment of the Court which has the force of res judicata is, in any event, a matter of public policy, which may be raised by the EU judicature of its own motion (see, by analogy, judgment of 1 June 2006 in P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, C‑442/03 P and C‑471/03 P, EU:C:2006:356, paragraph 45). It follows that, even in the absence of the applicant’s arguments in the reply and its response to the measures of organisation of procedure, the Court would have been required to assess of its own motion the effects of the judgment of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council (T‑489/10, EU:T:2013:453) on the contested measures. 77 Concerning the assessment of the substance of the applicant’s argument alleging an error of law by the Council, it is apparent from the case-law that the legality of an entity’s inclusion on the list of persons or entities covered by restrictive measures on the grounds of its links with another entity included on that list is conditional on the fact that, at the date of listing, that other entity must be lawfully included on that list. Pursuant to that case-law, the freezing of the funds of entities owned or controlled by an entity which has been lawfully included on the list in question, or acting on its behalf, is necessary and appropriate in order to ensure the effectiveness of the measures adopted vis-à-vis the latter entity and to ensure that those measures are not circumvented. Accordingly, if IRISL is not lawfully included on the lists at issue, the inclusion on those lists of entities acting on its behalf or providing essential services to IRISL or to other entities acting on its behalf can no longer be held to be justified by the objective of ensuring the effectiveness of the measures adopted vis-à-vis IRISL and ensuring that those measures are not circumvented (see, to that effect, judgment of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council, T‑489/10, EU:T:2013:453, paragraphs 75 to 77; see also judgment of 9 December 2014 in BT Telecommunications v Council, T‑440/11, not published, EU:T:2014:1042, paragraph 149 and the case-law cited). 78 In the present case, it is important to recall that the judgment in Islamic Republic of Iran Shipping Lines and Others v Council (T‑489/10, EU:T:2013:453), which annulled the restrictive measures against IRISL and other entities, including HDSL and SAPID, was delivered on 16 September 2013. It should be noted in this respect that the restrictive measures against IRISL were used to justify the applicant’s inclusion on the lists at issue under the first criterion mentioned in paragraph 69 above, namely that of acting on IRISL’s behalf, whereas, as is apparent on reading the measures of June 2013 (see paragraph 18 above), the restrictive measures against HDSL and SAPID were used to justify the applicant’s inclusion on those lists under the second criterion mentioned in paragraph 69 above, namely that of assisting designated entities in evading the sanctions relating to them. 79 Although the effects of the inclusion of IRISL, HDSL and SAPID on the lists at issue were maintained until the expiry of the period referred to in the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, by way of derogation from Article 280 TFEU, namely until the expiry of the period for bringing an appeal referred to in the first paragraph of Article 56 of that Statute, the fact remains that, on the expiry of that period, that listing was deleted retroactively from the legal order and deemed never to have existed (judgment of 28 May 2013 in Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 68; see also judgment of 9 December 2014 in BT Telecommunications v Council, T‑440/11, not published, EU:T:2014:1042, paragraph 149 and the case-law cited). 80 The Court may prescribe a period during which the effects of an annulment of a measure will be suspended in order to enable the Council to remedy the infringements identified by adopting, as appropriate, new general criteria for inclusion on the list of persons or entities subject to restrictive measures and new restrictive measures intended to freeze the funds of the entity concerned for the future. However, it must be pointed out that neither those new general listing criteria nor those new restrictive measures enable measures found to be illegal by a judgment of the Court to be rendered lawful (see, to that effect, judgment of 22 September 2015 in First Islamic Investment Bank v Council, T‑161/13, ECR, EU:T:2015:667, paragraph 102). 81 It follows that the suspension of the effects of the annulment of a measure does not affect the principle, set out in the case-law mentioned in paragraph 79 above, that, once the period of suspension has expired, the annulment of the measures concerned produces effects retroactively, so that the measures covered by the annulment are deemed never to have existed. 82 Thus, in the present case, inasmuch as the inclusion of IRISL, HDSL and SAPID on the lists at issue was annulled by the Court, it is no longer possible to justify the adoption and maintenance of the restrictive measures to which the applicant is subject, be it under the first criterion (alleging that the applicant acts on behalf of IRISL) or under the second criterion (alleging that the applicant assists designated entities in evading the sanctions relating to them by acting on behalf of HDSL and SAPID or by replacing Great Ocean Shipping Services to resume the activities which that company carried out for HDSL), since those criteria are subject to those entities being listed lawfully (see, to that effect, judgment of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council, T‑489/10, EU:T:2013:453, paragraphs 75 to 77; see also, by analogy, judgment of 9 December 2014 in BT Telecommunications v Council, T‑440/11, EU:T:2014:1042, paragraph 149 and the case-law cited). 83 Consequently, it must be held that the Council erred in law basing the decision to maintain the applicant’s inclusion on the lists at issue on reasons connected with one or other of the criteria mentioned in paragraph 82 above. 84 The second plea in law in Case T‑423/13 must therefore be upheld, as must the action in its entirety, and the measures of June 2013 annulled in so far as they relate to the applicant, without it being necessary to examine the other pleas in law of the action. Case T‑64/14 85 In Case T‑64/14, the applicant raises seven pleas in law in support of its application for annulment of the measures of November 2013. Those pleas allege, first, the absence of a legal basis for the contested measures as a result of the unlawfulness of the general listing criteria provided for by the measures of October 2013, second, breaches of the principles of protection of legitimate expectations, finality, legal certainty, ne bis in idem, res judicata and non-discrimination, third, a breach of the duty to give reasons, fourth, a violation of its rights of the defence, fifth, an error of assessment, failure to fulfil the listing criteria, failure to provide any evidence justifying the restrictive measures taken and, in essence, an error in law, sixth, the breach of its fundamental rights, namely its right to property, its freedom to conduct a business and its reputation, and, seventh, an abuse of powers by the Council. 86 It is appropriate first to examine the fifth plea in law. 87 The applicant puts forward six arguments in the fifth plea in law. First, it claims that the decision to maintain IRISL’s inclusion on the lists at issue had not yet been adopted at the time of the decision, set out in the measures of November 2013, to maintain the applicant’s inclusion on those lists. Second, it submits that it does not provide IRISL with any services at all. Third, it asserts that no decision to maintain the inclusion of HDSL on those lists had been adopted either when the applicant was relisted on them and therefore that the applicant’s inclusion, justified on the ground that it was claimed to provide essential services to HDSL, has no legal basis. Fourth, it submits that acting as an agent for HDSL cannot justify its inclusion on the lists in question and it adds, in the reply, that the explanations provided by the Council to explain the reason for its inclusion are late and insufficiently proven. Fifth, it states that there is no evidence that it has any connection with nuclear proliferation. Sixth, it submits that its employee, whose curriculum vitae the Council has produced, does not provide any services to IRISL vessels, which indeed never call at the port of Jebel Ali. 88 The Council contests the merits of the applicant’s arguments. First, it submits that IRISL and HDSL were still included on the lists at issue when the applicant was listed on them because, when the Court annulled the listing of the former companies, it also provided for the effects of the measures concerned to be maintained until the partial annulment of Regulation No 267/2012 took effect (judgment of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council, T‑489/10, EU:T:2013:453, paragraphs 80 to 83), on the expiry of the period for bringing an appeal before the Court of Justice referred to in Article 56 of the Statute of the Court of Justice of the European Union. Second, it maintains that the services provided by the applicant to HDSL, in its capacity as agent, are essential in so far as without them HDSL could not operate in the United Arab Emirates. Third, it contends that the criteria which served as a basis for including the applicant in those lists are not derived from its connection with nuclear proliferation but are the general listing criteria provided for by the measures of October 2013, set out in paragraph 25 above. Fourth, it submits that it has provided evidence for maintaining the applicant’s inclusion on those lists by producing, in particular, the curriculum vitae of one of the applicant’s employees, which states that he acts when IRISL vessels call at the port of Jebel Ali. 89 It should be noted that the applicant was included on the lists at issue on the basis of the general listing criteria provided for by the measures of October 2013, permitting the inclusion of, inter alia ‘persons or entities owned or controlled by IRISL, acting on behalf of IRISL or providing insurance or other essential services to IRISL or to entities owned or controlled by them or acting on their behalf’, for which the following reasons were given: ‘[The applicant] provides essential services to HDSL which is a designated entity acting on behalf of IRISL’. 90 The applicant’s inclusion on the lists at issue took place on 16 November 2013 and was based on the fact that it provided, as an agent, essential services to HDSL, which was an entity acting on behalf of IRISL. There were thus two interconnected strands to the justification given for that listing, the first alleging that the applicant provided essential services to HDSL and the second alleging that HDSL was an entity acting on behalf of IRISL. 91 As stated in paragraph 78 above, the inclusion of IRISL and of HDSL on the lists at issue was annulled by the Court (judgment of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council, T‑489/10, EU:T:2013:453) and, as mentioned in paragraph 79 above, since that annulment produces effects retroactively, those listings must be deemed never to have existed. 92 As stated in paragraph 32 above, IRISL and HDSL were re-included on the lists at issue on 26 November 2013, after the applicant was included on those lists on 16 November 2013. 93 It follows from the foregoing that, when the applicant was included on the lists at issue, that being the date at which the legality of the contested measures is to be assessed in accordance with the case-law cited in paragraph 55 above, IRISL and HDSL were not lawfully included on those lists. 94 It must therefore be held that, for the same reasons as those set out in paragraphs 77 to 82 above and as the applicant submits, the Council erred in law in deciding, in the measures of November 2013, to maintain the applicant’s inclusion on the lists at issue on the basis of the inclusion of IRISL and HDSL, in the absence of any lawful inclusion of those entities on the lists in question at the date of the applicant’s inclusion. 95 As stated in paragraph 77 above, in the absence of any lawful inclusion of IRISL and HDSL on the lists at issue, the applicant’s inclusion on those lists on the ground that it provided essential services to HDSL, an entity acting on behalf of IRISL, can no longer be held is justified by the objective of ensuring the effectiveness of the measures adopted vis-à-vis IRISL and HDSL and ensuring that those measures are not circumvented (see, to that effect, judgments of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council, T‑489/10, EU:T:2013:453, paragraphs 75 to 77, and 9 December 2014 in BT Telecommunications v Council, T‑440/11, not published, EU:T:2014:1042, paragraph 149 and the case-law cited). 96 That finding is not invalidated by the argument, raised by the Council in its response to the measures of organisation of procedure, to the effect that the facts mentioned in the reasoning for IRISL’s inclusion on the lists at issue were not called into question by the judgment of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council (T‑489/10, EU:T:2013:453), and that therefore, as of the date on which the general listing criteria were modified by the measures of October 2013, adopted in order to remedy the illegalities identified by that judgment, the same facts which justified IRISL’s inclusion, annulled by the Court, were brought into line with one of those general listing criteria, namely that authorising the listing of persons or entities that have evaded or violated the provisions of United Nations resolutions or EU measures. In other words, in the Council’s submission, the modification of the general listing criteria by the measures of October 2013, which took place before the applicant was included on those lists by the measures of November 2013, rendered lawful, as of the date on which the measures of October 2013 were adopted, the inclusion of IRISL and HDSL on those lists. 97 However, the fact that the Council, during the period in which the effects of the annulment ordered in the judgment of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council (T‑489/10, EU:T:2013:453) were suspended and before the applicant’s inclusion on the lists at issue by the measures of November 2013, modified, by the adoption of the measures of October 2013, the general listing criteria for the persons or entities subject to restrictive measures in order, in particular, to ensure that the inclusion of IRISL and HDSL on those lists was brought into line with those new general listing criteria, does not affect the finding that, as stated in paragraphs 79 to 81 above, on the expiry of the period during which the effects of the annulment ordered in that judgment were suspended, IRISL and HDSL’s listings, annulled by that judgment, were deleted retroactively from the legal order and deemed never to have existed. The modification of the new general listing criteria does not of itself render lawful, from that modification onwards, the inclusion of IRISL and HDSL on the lists at issue on the basis of the previous general listing criteria, and therefore cannot remedy the illegalities identified in judgment of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council (T‑489/10, EU:T:2013:453), which annulled those listings. 98 A different interpretation to that stated in paragraph 97 above would be inconsistent with the principle recalled in paragraph 55 above. Thus the elements of fact and law postdating the inclusion of IRISL and HDSL on the lists at issue cannot be taken into account for the purposes of assessing the lawfulness of those listings. 99 It follows that, as set out in paragraph 80 above, the Council could not, merely by modifying the general listing criteria by the measures of October 2013, remedy the illegalities identified by the judgment of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council (T‑489/10, ECR, EU:T:2013:453) and maintain the inclusion of IRISL and HDSL on the lists at issue. Indeed, as regards their inclusion, it must be stated that the Council did not confine itself to simply modifying those general listing criteria, but went on to make new listings based, inter alia, on the new general listing criteria. However, as stated in paragraphs 92 and 93 above, those new listings were made after the inclusion of the applicant on those lists and therefore, for the reasons set out in paragraphs 94 and 95 above, do not allow the applicant’s inclusion to be justified on the basis of the measures of November 2013. 100 It follows that the fifth plea in law must be upheld and the measures of November 2013 annulled, in so far as they apply to the applicant, without it being necessary to examine the other pleas in the action or the plea of illegality concerning the general listing criteria provided for by the measures of October 2013. The effects of the partial annulment of the contested measures 101 As regards Implementing Regulation No 522/2013, by which the applicant was included on the list in Annex IX to Regulation No 267/2012, that regulation no longer produces legal effects as a result of the adoption of Regulation No 1154/2013. Consequently, the annulment of Implementing Regulation No 522/2013, in so far as that measure relates to the applicant, concerns only the effects which that measure produced between the date on which it entered into force and the date of adoption of Regulation No 1154/2013. 102 As regards Decision 2013/270, by which the applicant was included on the list in Annex II to Decision 2010/413, the effects of its annulment are, in so far as that measure concerns the applicant, immediate and definitive. 103 So far as concerns the temporal effects of the annulment of Regulation No 1154/2013, under the second paragraph of Article 60 of the Statute of the Court of Justice, by way of derogation from Article 280 TFEU, the annulment of that regulation, in so far as that measure relates to the applicant, is to take effect only as of the date of expiry of the period for bringing an appeal referred to in the first paragraph of Article 56 of that Statute or, if an appeal has been brought within that period, as of the date of dismissal of the appeal (see, by analogy, judgments of 16 September 2011 in Kadio Morokro v Council, T‑316/11, not published, EU:T:2011:484, paragraph 38, and of 6 September 2013 in Good Luck Shipping v Council, T‑57/12, not published, EU:T:2013:410, paragraph 74). 104 So far as concerns Decision 2010/413, as amended by Decision 2013/661, it must be recalled that, under the second paragraph of Article 264 TFEU, the General Court may, if it considers it necessary, state which of the effects of the act which it has declared void are to be considered definitive (see, to that effect, judgments of 6 September 2013 in Europäisch-Iranische Handelsbank v Council, T‑434/11, EU:T:2013:405, paragraph 220, and Good Luck Shipping v Council, T‑57/12, not published, EU:T:2013:410, paragraph 75). 105 In this connection, if the date on which the partial annulment of Regulation No 1154/2013 amending Annex IX to Regulation No 267/2012 and that on which Annex II to Decision 2010/413, as resulting from Decision 2013/661, take effect were to differ, that would be likely to seriously jeopardise legal certainty, since both those acts impose identical measures on the applicant. 106 The effects of Annex II to Decision 2010/413, as resulting from Decision 2013/661, must therefore be maintained as regards the applicant until the partial annulment of Regulation No 1154/2013 on Annex IX to Regulation No 267/2012 takes effect (see, by analogy, judgments of 11 December 2012 in Sina Bank v Council, T‑15/11, EU:T:2012:661, paragraph 89, and 6 September 2013 in Good Luck Shipping v Council, T‑57/12, not published, EU:T:2013:410, paragraph 76). Costs 107 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 Council has been unsuccessful in both of the Joined Cases T‑423/13 and T‑64/14, it must bear its own costs and be ordered to pay those incurred by the applicant, in accordance with the form of order sought by the latter. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1. Annuls the following measures, in so far as they concern Good Luck Shipping LLC: – Council Decision 2013/270/CFSP of 6 June 2013 amending Decision 2010/413/CFSP concerning restrictive measures against Iran; – Council Implementing Regulation (EU) No 522/2013 of 6 June 2013 implementing Regulation (EU) No 267/2012 on restrictive measures against Iran; – Council Decision 2013/661/CFSP of 15 November 2013 amending Decision 2010/413/CFSP concerning restrictive measures against Iran; – Council Implementing Regulation (EU) No 1154/2013 of 15 November 2013 implementing Regulation (EU) No 267/2012 on restrictive measures against Iran; 2. Orders that the effects of Decision 2013/661 be maintained as regards Good Luck Shipping until the annulment of Regulation No 1154/2013 takes effect; 3. Orders the Council of the European Union to bear its own costs and to pay the costs incurred by Good Luck Shipping. Martins Ribeiro Gervasoni Madise Delivered in open court in Luxembourg on 24 May 2016. [Signatures] Table of contents Background to the dispute Procedure and forms of order sought Law Case T‑423/13 Evidence which may be relied upon effectively by the Council The merits of the plea alleging error of assessment The merits of the complaint alleging an error of law Case T‑64/14 The effects of the partial annulment of the contested measures Costs * Language of the case: English.