Judgment — ECLI:EU:T:2015:43
Date: 2015-01-22
Language of the case: English
Court formation: First Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - unfounded;Action for annulment - successful

summary of reasons underpinning that measure, 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, to that effect, judgment in Council v Fulmen and Mahmoudian, paragraph 35 above, EU:C:2013:775, paragraph 64 and case-law cited). 38 To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent European Union authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see judgment in Council v Fulmen and Mahmoudian, paragraph 35 above, EU:C:2013:775, paragraph 65 and case-law cited). 39 It is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (see judgment in Council v Fulmen and Mahmoudian, paragraph 35 above, EU:C:2013:775, paragraph 66 and case-law cited). 40 In the present case, in response to the Court’s request of 24 October 2013, the Council replied, initially, by letter of 5 December 2013, that its file did not contain material other than the proposal for the adoption of restrictive measures that was previously notified to the applicant and annexed to the defence. 41 Subsequently, in its letter of 24 February 2014 and at the hearing, the Council relied on arguments based on the applicant’s letter of 4 March 2013, summarised at paragraphs 31 to 34 above. 42 In the first place, it must be noted that the proposal for the adoption of restrictive measures, annexed to the defence, contains only those allegations that were relied on in the statement of reasons for the contested measures and does not substantiate their merits with any additional material whatever. Therefore, that letter cannot, in itself, justify the adoption of restrictive measures against the applicant. 43 In the second place, it must be recalled that, in accordance with Article 46(1) of the Rules of Procedure, the defence sets out the nature of any evidence offered. 44 Pursuant to Article 48(1) of the Rules of Procedure: ‘In reply or rejoinder a party may offer further evidence. The party must, however, give reasons for the delay in offering it.’ 45 That article allows offers of evidence to be lodged outside, in particular, the circumstances referred to in Article 46(1) of the Rules of Procedure. By analogy, the Court allows certain evidence to be lodged after the rejoinder, where the person offering the evidence, was unable, before the end of the written procedure, to obtain possession of the evidence in question, or if evidence produced belatedly by the other party justifies completing the file so as to ensure observance of the rule that both parties should be heard (see, to that effect, judgment of 14 April 2005 in Gaki-Kakouri v Court of Justice, C‑243/04 P, EU:C:2005:238, paragraph 32). 46 Since it is an exception to the rules governing the lodging of evidence offered, Article 48(1) of the Rules of Procedure requires parties to give reasons for the delay in offering their evidence. That obligation implies that the court has the power to check the merits of the reasons given for the delay in lodging the evidence offered and, depending on the case, the substance of that evidence, as well as the power to disregard the evidence if the application is not sufficiently founded. The same applies, a fortiori, to offers of evidence made after the rejoinder is submitted (judgment in Gaki-Kakouri v Court of Justice, paragraph 45 above, EU:C:2005:238, paragraph 33). 47 In the present case, the applicant’s letter of 4 March 2013, which was submitted to the Court for the first time in the annex to the Council’s letter of 24 February 2014, is indeed later than the lodging of the rejoinder, which took place on 15 November 2012. 48 However, the letter was notified to the Council, at the latest, on 11 March 2013, that is to say, more than seven months before the Court’s request of 24 October 2013. 49 In those circumstances, the Council could have submitted the applicant’s letter of 4 March 2013 as evidence in its first reply to the Court’s request of 24 October 2013, lodged on 5 December 2013. That is particularly true because the request specifically asked about additional matters substantiating the merits of the grounds relied on against the applicant. 50 When asked about this point at the hearing, the Council did not present any particular reasons to justify the delay in submitting the applicant’s letter of 4 March 2013, since it merely stated that the relevant information contained in that letter had escaped the attention of its agents at the time. 51 Accordingly, under Article 48(1) of the Rules of Procedure, the applicant’s letter of 4 March 2013 may not be taken into consideration by the Court. As a consequence, the same finding is applicable to the arguments summarised in paragraphs 31 to 34 above, and based on that letter. 52 In the third place, in any event, those arguments do not establish the merits of the restrictive measures against the applicant because they do not demonstrate that the applicant had provided support for nuclear proliferation or aided other persons and entities to breach or avoid the restrictive measures against them. 53 Accordingly, the notice adopted by the applicant’s Board of Directors on 29 June 2010 does not bear out the conclusions that the Council draws from it. That notice, drafted in general and prospective terms, prohibits transactions from being carried out with entities which are the subject of restrictive measures and requires their accounts to be blocked. However, contrary to the allegations made by the Council, in the light of the text of the notice and the context of its adoption, it cannot be held that the applicant has admitted providing support for nuclear proliferation or aided other persons and entities to breach or avoid restrictive measures against them. In particular, the notice does not give rise to the conclusion that financial services had actually been provided by the applicant to the entities that were the subject of restrictive measures, or even to identify, within any degree of accuracy, the entities and services concerned. 54 Likewise, it is apparent, admittedly, from a table annexed to the applicant’s letter of 4 March 2013 that the applicant held accounts with the subsidiary of the Sepah Bank in Rome and with the Europäisch-Iranische Handelsbank in Hamburg, those banks being subject to restrictive measures. 55 Nevertheless, the fact that an entity holds accounts with banks subject to restrictive measures adopted against Iran does not establish, in itself, that that entity has provided support for nuclear proliferation or assisted other persons and entities to breach or avoid restrictive measures. 56 In the present case, on the one hand, the Council has not submitted information suggesting that the applicant’s accounts with the subsidiary of the Sepah bank and with the Europäisch-Iranische Handelsbank were linked, in any way, whatsoever, with nuclear proliferation or with efforts aimed at breaching the restrictive measures against those two banks or other entities or avoiding the impact of those measures on those banks or entities. 57 On the other hand, it must be pointed out that for the applicant in fact to have opened or used accounts with the Sepah Bank or the Europäisch-Iranische Handelsbank after the adoption of restrictive measures against those banks would constitute a breach of those measures. However, nothing in the table provided by the applicant indicates that the accounts in question had been opened or used after the adoption of the restrictive measures against the two banks. That hypothesis is also highly unlikely, given that the adoption of restrictive measures by the Council against a banking establishment situated in the European Union, such as the subsidiary of the Sepah Bank and the Europäisch-Iranische Handelsbank, restricts considerably the options for that establishment to carry out banking operations, including opening accounts and receiving payments from a third party. 58 Therefore, the fact that the applicant holds accounts with the subsidiary of the Sepah Bank in Rome and with the Europäisch-Iranische Handelsbank in Hamburg does not establish that the applicant provided support for nuclear proliferation or aided other persons and entities to breach or avoid restrictive measures against them. 59 In the fourth place, it is apparent from the case-file that, since the applicant was partially privatised in 2009, the Iranian state is no longer the majority shareholder of the applicant, its equity participation in the applicant being 20.4% as at 5 March 2013. Nor, failing concrete arguments on the part of the Council, does the composition of the shareholders in the applicant lead to the conclusion that the applicant provided support for nuclear proliferation or aided other persons and entities to breach or avoid restrictive measures against them. 60 In the light of all the foregoing, it must be held that the contentions relied on by the Council cannot justify the restrictive measures against the applicant. 61 The first plea must therefore be upheld and, consequently, point 2 of Table I.B of Annex I to Decision 2012/35, point 2 of Table I.B of Annex I of Implementing Regulation No 54/2012, point 105 of Table I.B of Annex IX to Regulation No 267/2012 and point 5 of Annex II to Implementing Regulation No 709/2012 must be annulled in so far as those measures concern the applicant, without it being necessary to examine the applicant’s other pleas. The temporal effects of the annulment of the contested measures 62 The applicant requests that the contested measures be annulled with immediate effect, notwithstanding the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union. In that regard, according to the applicant, the Council’s decision to include it in the list of entities which are the subject of restrictive measures, which is comparable with anti-dumping regulations imposing duties on the goods of named producers, constitutes a decision rather than a regulation, which is borne out by the fact that it must be individually notified. The applicant considers that its position is supported by the order of 19 July 2012, Akhras v Council (C‑110/12 P(R) EU:C:2012:507). Furthermore, the purpose of the second paragraph of Article 60 of the Statute of the Court, namely to avoid potentially disruptive effects connected with the possibility that the annulment of general rules might later be overturned, is not applicable to measures such as those contested in the present case. 63 The Council replies that, according to the case-law, the acts by which restrictive measures against specific persons or entities are adopted or maintained are of general application, which means that they are in the nature of a regulation and that the second paragraph of Article 60 of the Statute is applicable to them. Moreover, the Council contends that in the event that the contested measures are annulled, and in order to ensure consistency between them, it would be appropriate to maintain the effects of Decision 2012/35 until the annulment of the contested regulations takes effect. 64 It should be noted at the outset that Implementing Regulation No 54/2012, which amended the list in Annex VIII to Regulation No 961/2010, ceased to have legal effect following the repeal of that regulation by Regulation No 267/2012. Consequently, the annulment of Implementing Regulation No 54/2012 concerns only the effects which that measure produced between the date of its entry into force and the date of its repeal. 65 As regards Regulation No 267/2012 and Implementing Regulation No 709/2012, it must be recalled that under the second paragraph of Article 60 of the Statute of the Court, by way of derogation from Article 280 TFEU, decisions of the General Court annulling a regulation are to take effect only as from 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 from the date of dismissal of the appeal. 66 Acts which establish individual restrictive measures, such as Regulation No 267/2012 and Implementing Regulation No 709/2012, resemble, simultaneously, both measures of general application, in that they impose on a category of addressees determined in a general and abstract manner a prohibition of, inter alia, making available funds and economic resources to persons and entities named in the lists contained in their annexes, and also a bundle of individual decisions affecting those persons and entities (see, by analogy, judgment of 23 April 2013 in Gbagbo v Council, C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 56). 67 In that context, the fact that the persons and entities upon whom restrictive measures are imposed by Regulation No 267/12 are expressly named in Annex IX of that regulation, as amended by the Implementing Regulation No 709/2012, does not mean that those measures are not of general application within the meaning of the second paragraph of Article 288 TFEU or that they are not to be classified as a regulation (see, by analogy, judgment of 3 September 2008 in Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 241). 68 The prohibition of making available funds and economic resources to the persons or entities concerned is addressed to whoever might actually hold the funds or economic resources in question (see, by analogy, judgment in Kadi and Al Barakaat International Foundation v Council and Commission, paragraph 67 above, EU:C:2008:461, paragraph 244). 69 Furthermore, the fact that Regulation No 267/2012, including Annex IX thereto and the measures amending it, is indeed a regulation is borne out by the fact that the second paragraph of Article 51 thereof provides that it is to be binding in its entirety and directly applicable in all Member States, which corresponds to the effects of a regulation as provided for in Article 288 TFEU (see, by analogy, judgment of 16 November 2011 in Bank Melli Iran v Council, C‑548/09 P, EU:C:2011:735, paragraph 45). 70 As regards the applicant’s submissions, the nature of Regulation No 267/2012 and of Implementing Regulation No 709/2012 being simultaneously both that of a regulation and a decision serves to differentiate those measures from anti-dumping regulations. Indeed, that explains why the listing of person or entity in Annex IX to Regulation No 267/2012 must be communicated individually. 71 Furthermore, it must be observed that in paragraph 29 of the order in Akhras v Council, paragraph 62 above (EU:C:2012:507), the President of the Court of Justice did not closely examine the applicability of the second paragraph of Article 60 of the Statute to the regulations imposing restrictive measures, since he did no more than state that, while the arguments submitted on that point by the applicant in the case giving rise to that order did not appear to be ‘unfounded’, they were, nevertheless, ineffective. 72 Accordingly, it must be held that the second paragraph of Article 60 of the Statute of the Court is applicable to Regulation No 267/2012 and to Implementing Regulation No 709/2012, having regard to the fact that those measures are regulatory in nature and even though they simultaneously have aspects in the nature of a decision. Consequently, those measures may not be annulled with immediate effect. 73 Consequently, the Council has a period of two months, extended on account of distance by 10 days, as from the notification of this judgment, in which to remedy the infringements established by adopting, if appropriate, new restrictive measures with respect to the applicant. In the present case, the risk of serious and irreparable harm to the effectiveness of the restrictive measures imposed by Regulation No 267/2012 does not appear sufficiently great, having regard to the considerable impact of those measures on the applicant’s rights and freedoms, to warrant maintaining the effects of that regulation with respect to the applicant for a period exceeding that laid down in the second paragraph of Article 60 of the Statute of the Court of Justice (see, by analogy, judgment of 16 September 2011, in Kadio Morokro v Council, T‑316/11, EU:T:2011:484, paragraph 38). 74 Lastly, as regards the temporal effects of the annulment of Decision 2010/413, as amended by Decision 2012/35, 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 as definitive. In the present case, if the dates when the annulment of Regulation No 267/2012 and Implementing Regulation No 709/2012 and that of Decision 2010/413, as amended by Decision 2012/35, take effect were to differ, that would be likely seriously to jeopardise legal certainty, since those two acts impose identical measures on the applicant. Consequently, the effects of Decision 2010/413, as amended by Decision 2012/35, must be maintained as regards the applicant until the annulment of Regulation No 267/2012 and of Implementing Regulation No 709/2012 takes effect (see, by analogy, judgment in Kadio Morokro v Council, paragraph 73 above, EU:T:2011:484, paragraph 39). Costs 75 Under Article 87(2) 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, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Annuls, in so far as they concern Bank Tejarat : – Point 2 of Table I.B in Annex I to Council Decision 2012/35/CFSP of 23 January 2012, amending Decision 2010/413/CFSP on restrictive measures against Iran; – Point 2 of Table I.B in Annex I to Council Implementing Regulation (EU) No 54/2012 of 23 January 2012, implementing Regulation (EU) No 961/2010 on the adoption of restrictive measures against Iran; – Point 105 of Table I.B in Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 on the adoption of restrictive measures against Iran and repealing Regulation (EU) No 961/2010; – Point 5 of Annex II to Council Implementing Regulation (EU) No 709/2012 of 2 August 2012, implementing Regulation No 267/2012. 2. Dismisses the remainder of the action. 3. The effects of Council Decision 2010/413/CFSP of 26 July 2010 on restrictive measures against Iran and repealing the common position 2007/140/CFSP, as amended by Decision 2012/35, are maintained as regards Bank Tejarat until the annulment of Regulation No 267/2012 and Implementing Regulation No 709/2012 takes effect. 4. Orders the Council of the European Union to pay the costs. Kanninen Pelikánová Buttigieg Delivered in open court in Luxembourg on 22 January 2015. [Signatures] * Language of the case: English.