Judgment — ECLI:EU:T:2014:347
Date: 2014-06-04
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 - decision unnecessary
Origin: United Kingdom

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 Fulmen, cited in paragraph 63 above, paragraph 64 and the case-law cited). 66 To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent EU authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see Fulmen, cited in paragraph 63 above, paragraph 65 and the case-law cited). 67 That is because it is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (see Fulmen, cited in paragraph 63 above, paragraph 66 and the case-law cited). 68 In the present case, it is necessary therefore to verify, in the light of the arguments, information and evidence submitted by the Council, whether the Council was entitled to consider, when adopting the contested acts, that the applicants could be made subject to the restrictive measures on the basis of the criterion covering persons providing support for nuclear proliferation and the criterion covering persons acting on behalf of or at the direction of an entity involved in nuclear proliferation, in this case, BMI. 69 In that context, the requirement of a clear and precise legal basis precludes the adoption of restrictive measures against a natural person merely on account of the position he holds within an entity that is itself included in the lists. Such an approach would effectively be based on a presumption for which no provision has been made in the relevant legislation. Consequently, according to the case-law, the listing of a natural person on account of his links with a person or entity which is itself included in the list cannot be based on presumptions that are not substantiated by the conduct of the person concerned (see Nabipour and Others v Council, cited in paragraph 62 above, paragraph 107 and the case-law cited). 70 The fact remains that persons holding a position which gives them managerial power over entities that are providing support for nuclear proliferation or acting on behalf of or at the direction of entities involved therein, at the time when that support is provided or those actions took place, may, as a general rule, themselves be regarded as providing support for nuclear proliferation or acting on behalf of or at the direction of entities involved therein (see, to that effect, Nabipour and Others v Council, cited in paragraph 62 above, paragraphs 109 and 110). 71 However, in the present case, as the Council itself admits, unlike the companies in Nabipour and Others v Council, cited in paragraph 62 above, Melli Bank was not made subject to restrictive measures because it had itself provided support for nuclear proliferation or acted on behalf of or at the direction of BMI, but only because it was wholly owned by BMI. 72 Consequently, the fact that the applicants held positions at Melli Bank does not by itself permit the inference that they provided support for nuclear proliferation or acted on behalf of or at the direction of BMI. The Council has not submitted any additional arguments, information or evidence to support its claim that that was the case, with the result that that claim cannot be accepted. 73 Nor can it be held that there is a risk that the applicants may support nuclear proliferation or act on behalf of or at the direction of BMI in the future (see, in that regard, Case C‑348/12 P Council v Manufacturing Support & Procurement Kala Naft [2013] ECR, paragraphs 84 and 85). 74 In that regard, the Council merely relies on the alleged position of the applicants as a ‘link’ between BMI and Melli Bank, and the influence that may accordingly be exerted over them by BMI. 75 However, first, it is not disputed that Mr Sedghi has not held a position at Melli Bank since 2009, so that he cannot, in any event, serve as a ‘link’ between Melli Bank and BMI. Nor, moreover, in the absence of information or evidence that Mr Sedghi maintained links with BMI after his departure from Melli Bank, can his past appointment to Melli Bank justify a finding that he is capable of acting on behalf of or at the direction of BMI or of providing support for nuclear proliferation at its instigation in another context (see, to that effect, Nabipour and Others v Council, cited in paragraph 62 above, paragraph 114). 76 Secondly, as regards Mr Azizi, it is certainly true that at the time of the adoption of the contested acts, he held positions at Melli Bank to which he had been appointed by BMI. 77 Likewise, it should be noted that, since BMI is subject to restrictive measures because it provided support for nuclear proliferation, there is a not insignificant danger that it may exert pressure on the entities it owns, such as Melli Bank, in order to circumvent restrictive measures applying to it (see, to that effect, Joined Cases T‑246/08 and T‑332/08 Melli Bank v Council [2009] ECR II‑2629, paragraph 103, and Case T‑493/10 Persia International Bank v Council [2013] ECR, paragraph 103). Such pressure will, as a general rule, be exerted through Melli Bank’s management, including Mr Azizi. 78 However, the fact that BMI can exert such pressure does not, by itself, mean that Mr Azizi will succumb to it and will act on BMI’s behalf or at its direction, or provide support for nuclear proliferation at its instigation. 79 In that regard, it must be observed, as a preliminary point, that the restrictive measures with which the present action is concerned do not relate to the funds of Melli Bank, which have been frozen, since 2008, by virtue of restrictive measures covering that bank, but to the personal funds of Mr Azizi. Consequently, the risk of Mr Azizi using Melli Bank’s funds in order to act on behalf of or at the direction of BMI or to provide support for nuclear proliferation at its instigation — assuming that is established — is a priori immaterial in the context of the examination of the merits of the restrictive measures covered by the present action. 80 Moreover, irrespective of the question of the origin of the relevant funds, in the first place, the Council does not dispute that Mr Azizi has at all times complied with the relevant legislation and the obligations arising from the restrictive measures covering BMI and Melli Bank when performing his duties at Melli Bank. Thus, the past professional conduct of Mr Azizi, including during the period when BMI was already subject to restrictive measures, does not permit the inference that he would be likely to act on behalf of or at the direction of BMI or to provide support for nuclear proliferation at its instigation. 81 In the second place, the Council does not even claim that there is anything other than Mr Azizi’s performance of his duties at Melli Bank that would tend to show that he would be likely to succumb to the pressure exerted by BMI. 82 In the third place, it must be noted that, since Mr Azizi is a citizen of the United Kingdom residing in the United Kingdom, acting on behalf of or at the direction of BMI or providing support for nuclear proliferation at its instigation would entail an infringement by Mr Azizi of the relevant legislation, making him liable, therefore, to prosecution and penalties, including of a criminal nature. Yet the Court’s file does not contain anything from which it might be inferred that he would be prepared to run that risk, which would be particularly high as regards the use of Melli Bank’s funds, given that Melli Bank is subject to restrictive measures and its transactions therefore require the prior approval of the United Kingdom authorities. 83 In those circumstances, it must be held that the Council has not established that, as a result of any pressure that may be exerted by BMI, Mr Azizi is likely to act on behalf of or at the direction of BMI or to provide support for nuclear proliferation at its instigation in the future, using his personal funds or the funds of Melli Bank. 84 In the light of all of the above, it must be concluded that the Council wrongly concluded that it was entitled to adopt the restrictive measures concerning the applicants on the basis of the criteria covering persons providing support for nuclear proliferation or persons acting on behalf of or at the direction of an entity involved in nuclear proliferation. 85 Accordingly, the first plea in law must be upheld and the contested acts annulled in so far as they concern the applicants, without there being any need to examine the other pleas. 86 Since the application for annulment has been granted, it is not necessary to rule on the application for a declaration of inapplicability submitted in the alternative by Mr Azizi. 87 As regards the applicants’ request for measures of organisation of procedure, the Council responded to those, in part, in the observations it submitted to the Court. As to the remainder, it is not necessary for that request to be granted, since the Court has been able to determine the substance of the dispute in the light of the file as it stands. 88 Lastly, the applicants ask that the annulment of the contested acts take immediate effect, notwithstanding the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union. The Council’s view is that that request should not be granted. 89 However, it should be noted that, contrary to what is required by the case-law cited in paragraph 35 above, the request in question is not in any event liable to procure an advantage for the applicants. 90 First, since the applicants have been removed from the lists of persons covered by the restrictive measures in question, they are no longer subject to restrictions on their rights and associated freedoms. Consequently, any annulment of the contested acts with immediate effect, assuming that were compatible with the second paragraph of Article 60 of the Statute of the Court of Justice, would not be capable of changing their legal situation in that regard. 91 Secondly, the annulment of the contested acts is capable of rehabilitating the applicants and of constituting a form of reparation for any non-material harm which they may have suffered, notwithstanding the rule in the second paragraph of Article 60 of the Statute of the Court. 92 Accordingly, it is no longer necessary to rule on the request that annulment of the contested acts take immediate effect. Costs 93 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. Furthermore, under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment the costs are to be in the discretion of the Court. In the present case, since the Council has been largely unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicants. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Annuls the following, in so far as they concern Mr Ali Sedghi and Mr Ahmad Azizi: – Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran; – Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran; – Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010; 2. Declares that there is no need to adjudicate on the remainder of the action; 3. Orders the Council of the European Union to pay the costs. Kanninen Pelikánová Buttigieg Delivered in open court in Luxembourg on 4 June 2014. [Signatures] * Language of the case: English.