Judgment;Abstract — ECLI:EU:T:2019:469
Date: 2019-07-02
Language of the case: French
Court formation: First Chamber
Subject matter: External relations;Provisions governing the Institutions;Common foreign and security policy
Procedure: Action for damages - successful;Action for damages - unfounded

summary table containing the method for calculating the damage it has sustained resulting from the fall in its net income. 112 With regard to evidence that actual damage was sustained, in respect of the damage resulting from a fall in its net income, first of all, it must be stated, as the Council has noted, that, in the application, the applicant makes no claim for compensation in figures for that damage as a whole. 113 As set out in paragraph 95 above, in response to a question raised in the context of the third measure of organisation of procedure, the applicant has explained that that absence of a claim for compensation in figures for the damage resulting from a fall in its net income is the result of an obvious clerical error on its part which must, therefore, be taken into account by the General Court. 114 However, first, it must be held that, although the absence of an assessment of the material damage set out under heading E.1.1.1 of the application is an objective reality, by contrast that absence does not appear, as the applicant claims, to be indicative of an obvious clerical error. 115 It is readily apparent, after all, that, in respect of the five factors which are alleged to have given rise to the damage set out under heading E.1.1.1, the statement regarding the second factor, resulting from ‘penalties paid to customers for delays’ and the third, resulting from an ‘increase in the purchase price of raw materials’, does not contain any assessment. In those circumstances, it may be considered that the lack of any assessment of the total amount of the damage set out under heading E.1.1.1 may be attributed to each of those factors resulting in the total amount of damage not being assessed. Therefore, the clerical error made by the applicant does not appear to be obvious to the point that it may be taken into account by the General Court. 116 Secondly, it should be recalled that, according to well-established case-law, whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed to it, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential submissions in law which must appear in the application. Moreover, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see judgment of 14 December 2005, Honeywell v Commission, T‑209/01, EU:T:2005:455, paragraph 57 and the case-law cited). 117 In the present case, admittedly, in its reply to the question put to it in the context of the third measure of organisation of procedure, as is noted in paragraph 95 above, the applicant makes no reference to the fact that the obvious clerical error upon which it relies may be found in the accountant’s report. 118 However, it must be pointed out that paragraphs 62 to 74 of the application, which are under heading E.1.1.1, reproduce almost word for word the passages contained in pages 9 to 13 of the accountant’s report, which appear under the title ‘Paragraph 1: Fall in net income’ in that report. A combined reading of those paragraphs of the application and those passages of the accountant’s report supports the finding that the applicant did not fully reproduce that report. Both Table 6, reproduced on pages 12 and 13 of that report, entitled ‘Impact of the fall in net income on [turnover between 2011 and 2014]’, and the conclusion, on page 13 of that report, which contains the assessment of the material damage at issue, namely EUR 2 932 367, have not been copied by the applicant. 119 However, in the light of the case-law recalled in paragraph 116 above, it is not for the Court to assess whether the fact that the applicant did not copy the table or the conclusion mentioned in paragraph 118 above is a deliberate decision on its part, under its own free will when developing its line of argument and drafting its pleadings, or a mere oversight, constituting an obvious clerical error which may be taken into account by the Court. 120 In the light of the foregoing considerations, it must be concluded that the applicant has not adduced evidence as to the actual damage alleged and therefore, without it being necessary to examine whether there is a causal link, the claim for compensation for the head of damage resulting from a ‘fall in its net income’ must be rejected as unfounded. 121 In the second place, with regard to the head of damage resulting from the cancellation of four contracts that were in progress, namely the Kamyaran & Shaked, Mahyar, 6 Trans Khouzestan and GIS Tehran projects, that the applicant estimates to be worth EUR 771 577, it is sufficient to state that the applicant has clearly adduced no evidence of the causal link between the alleged conduct and the damage. 122 The applicant merely claims that, first, since its business partners had refused to deliver to it the equipment it had to supply, it was forced to terminate four projects in Iran between 2010 and 2014 and, secondly, the adoption of the acts at issue is the only decisive factor which resulted in the contracts being terminated. 123 In support of those two claims, the applicant merely refers to Annex A.6 to the application which contains the ‘copy of project documents for the Kamyaran, Trans, Mahyar and GIS Tehran [projects]’. In the reply, it attaches in Annexes C.5, C.6 and C.7 three documents containing the margin calculation for three of the four projects and the related budget statement. 124 The fact remains that neither the arguments put forward in the application, which are limited to a few lines, and in the reply, nor the documents annexed to those pleadings may be regarded as being even the slightest evidence of a causal link between the alleged conduct and the damage. 125 Neither the application nor the reply contains any evidence capable of demonstrating that the measures at issue were, as the applicant claims, a determining cause of not continuing the four projects referred to in the application. Similarly, with regard to the alleged refusal by its business partners to deliver to it the equipment it needed to carry out those projects, the applicant does not provide any evidence at all of those refusals. 126 At most it states in the reply that the alleged damage cannot have been caused by the United States measures since, first, it had no relationships with United States companies, nor did it trade supplies with the United States and, secondly, in the equipment sector, the largest global suppliers are three European companies, namely Schneider, ABB and Siemens. 127 Nevertheless, such assertions cannot in any way be regarded as constituting proof that the alleged conduct is the determining cause of the damage at issue here, namely the cancellation of four contracts that were in progress in Iran. 128 It follows from the foregoing considerations that, since the applicant has adduced no evidence of a causal link, the claim for compensation for the damage resulting from the cancellation of four contracts must be rejected as unfounded. 129 In the third place, with regard to the head of damage resulting from the loss of new contracts in Iran, the applicant submits that, since it no longer had its sources of supplies and it had lost members of staff, it was unable to secure new contracts in that country during the period at issue. It must be held that, by ‘period at issue’, the applicant is referring to the period from the first listing of its name on 26 July 2010 (see paragraph 10 above) to its name being removed from the lists at issue on 19 December 2013 (see paragraph 23 above) (‘the period at issue’). It assesses the amount of the damage thus sustained at EUR 2 838 897. Once more, it must be noted at the outset that the applicant has adduced no evidence of the causal link between the alleged conduct and the damage. 130 In that respect, it merely states that, with regard to the statistics concerning investments in the electricity sector in Iran and how its market share in that sector changed, falling from 10.69% in the eight-year period prior to the measures at issue to 2.70% during the period at issue, ‘it becomes clear that the sanctions led to a significant decrease in the applicant’s market share’. 131 First of all, it is clear from the data in Table 9 of the accountant’s report that the investments in the electricity sector in Iran, after having risen from EUR 786 000 000 in 2007-2008 to EUR 1 070 785 714 in 2008-2009, have fallen since the financial year 2009/2010, falling by approximately 16.6%, and then, in the financial year 2010/2011 by approximately 10%, in the financial year 2011/2012 by approximately 33.44% and, finally, in the financial year 2012/2013 by approximately 52.7%. Accordingly, those data show that, since the financial year 2009/2010, thus before the acts at issue were adopted, investments in the electricity sector in Iran had started to decline significantly. 132 Secondly, it is clear from Table 10 of the accountant’s report that, admittedly, the applicant did not conclude any new contracts during the financial years 2012/2013 and 2013/2014. However, that same table also shows that, during the financial year 2011/2012, thus more than a year after the acts at issue were adopted, the applicant had successfully concluded contracts worth more than two times the amount of the contracts it had concluded in 2010/2011. 133 Therefore, the data in Tables 9 and 10 of the accountant’s report are not capable of providing proof of the causal link between the alleged conduct and the damage at issue. 134 Moreover, it should also be noted that the measures at issue applied only within the European Union and therefore, as such, they did not prohibit the applicant from putting itself forward in order to try and secure new contracts in Iran. The applicant has adduced no evidence to show that, at the very least, it had tendered for such contracts and that its tender had been rejected on account, in particular, as it claims, of its insufficient technical capacity and expertise. Ultimately, it does not even claim to have submitted a tender for any contracts in Iran, but merely states that it did not conclude any contracts between 2012 and 2014. 135 Finally, the applicant does not specify which sources of electrical installation supplies and which members of its staff, who had the professional experience required to perform those types of contracts, it had lost following the adoption of the acts at issue. 136 In the light of the foregoing considerations, the applicant has not proved that the adoption of the measures at issue explains why its market share in the electricity sector in Iran has fallen. Both the difficulties encountered by that sector, in relation to the fall in investments, and the lack of evidence that it had tendered for contracts in that sector may explain that decrease in market share. 137 Therefore, since the applicant has adduced no evidence of a causal link, the claim for compensation for the damage resulting from the loss of new contracts in Iran must be rejected as unfounded. 138 In the light of all the foregoing considerations, the claim for compensation for financial and operational damage must be rejected as unfounded. (ii) Commercial or structural damage 139 As regards, in essence, the commercial or structural damage for which it seeks compensation, the applicant claims, first, that its inclusion in the lists at issue resulted in its relations with its banks and its privileged partners being interrupted. Secondly, in order to avoid ‘a domino effect of sanctions’, its inclusion in the lists at issue required it to reduce the structure of the group, by the compulsory sale of its shareholdings, including three majority holdings, in six other Iranian companies. 140 The Council, supported by the Commission, contends that the claim for compensation for commercial or structural damage allegedly sustained in Iran should be rejected. 141 In the first place, with regard to the breakdown of its commercial relations with the bank Tejarat and six privileged partners, Omicron on the one hand and five other companies on the other, which are said to have been caused by the acts at issue, it is true that the applicant acknowledges that the termination of those partnerships had an impact on its business which is already included in the calculation of the fall in its net income and has already been put forward in the financial and operational damage section. However, in respect of the damage claimed here, it also relies on damage that occurred after the sanctions were annulled and that relates, in essence to the prospects of restoring those privileged partnerships. The loss of those privileged partnerships, irrespective of the profits that were not realised during the period at issue, resulted in it sustaining a loss which it estimates to be EUR 1 026 974. 142 In response to a question put by the Court, first in the third measure of organisation of procedure and, secondly, at the hearing, the applicant stated that it was abandoning its claim for compensation for damage related to the breakdown of relations with Tejarat, which was noted in the minutes of the hearing. Therefore, the examination of the damage resulting from the termination of business relations is limited to the six privileged partnerships on which the applicant relies. 143 In this respect, first, with regard to the termination of relations with Omicron, for which the applicant claims to have been the exclusive distributor since 2003 and which, following the adoption of the acts at issue, granted exclusive distribution rights to another Iranian company, the applicant assesses the damage sustained at EUR 526 974, which is said to correspond to an annual margin that it would have achieved over a three-year period, at a rate of 22% applied to an annual average of regular sales assessed at EUR 798 449. 144 As far as evidence of the damage is concerned, it should be noted that, in the present case, the applicant is claiming compensation for a future loss of earnings that it calculates using three-year projections. 145 It must be pointed out that the applicant does not adduce any evidence of profits that were not realised following the termination of the contractual relationship at issue. At most, it simply relies on the application of a net profit margin of 22%, applied to an annual average of regular sales that it assesses at EUR 798 449. 146 First, neither the application, nor the accountant’s report even, or the evidence it has submitted demonstrate how the ‘regular sales at an annual average of EUR 798 449’, on which the applicant relies, have been calculated. Nevertheless, that figure forms the basis of its calculation of the amount of the alleged damage. Secondly, the applicant has also not adduced any evidence capable of demonstrating that it would actually achieve the net profit margin of 22% on which it relies. At most, it claims that that margin, as is clear from the footnote to paragraph 86 of the application, ‘was calculated … on the biggest sale and by taking into account 30% of costs’, but it is not possible to determine the documents on which the applicant relies in order to adduce evidence as to the actual damage at issue. 147 In the light of the foregoing considerations, it must be concluded that, with regard to the termination of trade relations with Omicron, the applicant has not adduced evidence of actual and certain damage. 148 Therefore, without it being necessary to determine whether the evidence of a causal link has been adduced, the claim for compensation for damage related to the termination of its trade relations with Omicron must be rejected as unfounded. 149 Secondly, with regard to privileged partnerships with five other companies, the applicant estimates the cost of restoring those trade relations to be EUR 100 000 per case. 150 In that regard, at the outset, as far as evidence of the damage is concerned, it is sufficient to note that the applicant has adduced no evidence to prove that the relations with the five companies concerned already existed before the acts at issue were adopted and to demonstrate the nature of those relations. Moreover, the fact remains that, once more, the applicant relies on a future and hypothetical expense the valuation of which is purely arbitrary and at a flat rate. Therefore, the damage alleged, resulting from the termination of business relations with the five companies listed in paragraph 141, is neither actual nor certain. 151 It follows from the foregoing that the claim for compensation for damage resulting from the disruption of relations between the applicant and Omnicron and its five other privileged partners must be rejected as unfounded. 152 In the second place, the applicant submits that it has had to sell its shares in a number of Iranian companies in order to avoid ‘a domino effect of sanctions’. It states that, as it is unable to estimate the amount of the financial loss as a result of those forced sales and the reduction in its capacity, it has merely calculated the expenditure required to restore those shareholdings. In that regard, it estimates the costs of prior auditing and legal fees to be EUR 30 000 in respect of the majority shareholdings and EUR 5 000 in respect of the minority shareholdings, thus a total amount of EUR 105 000. In an annex to the reply, it attaches an estimate for services to monitor those companies for the purposes of restoring a group of the same size. 153 As far as evidence of that damage is concerned, it is again readily apparent that the damage alleged in this instance is purely hypothetical and future. The applicant has adduced no evidence capable of justifying the two amount types claimed in respect of the cost of prior auditing and the legal fees that would necessarily be incurred in order to buy back the majority and the minority shareholdings. Moreover, it must be noted that, in that regard, the applicant has itself acknowledged, in paragraph 11 of the application, that it is unable to assess the amount of the financial loss resulting from the forced sales at issue on the one hand and the reduction in its capacity on the other. A valuation of the company shareholdings that it claims to have been forced to sell is essential in order to assess the damage allegedly sustained. Even if the applicant had decided to sell its shares in a number of Iranian companies in order to avoid ‘a domino effect of sanctions’, this cannot, in itself, be sufficient to provide proof of the existence of damage. Furthermore, the applicant does not explain why it has been unable to carry out that assessment of the damage on which it relies. 154 With regard to the causal link, it must be pointed out that the applicant has adduced no evidence that the shares that it held in a number of Iranian companies were sold as a result of any measure linked to the adoption of the acts at issue. In addition, it does not set out the skills and technologies within the companies in which it held shares which could have led to a risk of ‘a domino effect of sanctions’. At most, it is apparent from the text under Table 16 on page 22 of the accountant’s report, a page to which the applicant refers in paragraph 91 of the application, that the shares sold had initially been purchased either to expand the applicant’s offerings to complementary products and services, or to exert an influence in undertakings that could have generated opportunities in the market. Nevertheless, although that description in general terms of its investment choices reflects relatively common business strategy choices, those choices do not explain why the applicant claims that it had to sell its shareholdings in the Iranian companies concerned. 155 In the light of the foregoing considerations, as it has not adduced evidence of the damage and of the causal link, the claim for compensation for damage resulting from the forced sale of the applicant’s shareholdings in a number of Iranian companies, in order to avoid ‘a domino effect of sanctions’, must be rejected as unfounded. 156 It follows from all of the findings above that the claim for compensation for the material damage allegedly sustained in Iran must be rejected as unfounded. (3) The material damage allegedly sustained in Europe and the existence of a causal link 157 With regard to the material damage allegedly sustained in Europe, the applicant claims that, after the measures at issue were imposed, it sustained damage relating, first of all, to its direct stake in the capital of Codefa Connectique S.A.S. (‘Codefa’), a company incorporated under French law, secondly, to the loss of assets it had entrusted to an Austrian company known as SED and, finally, to the postponement of a number of research and development projects it had launched, since 2007, in cooperation with several European companies. 158 The Council contests the applicant’s arguments regarding material damage allegedly sustained in Europe. 159 In the first place, with regard to the claim for compensation for the damage sustained by the applicant in respect of it selling its shareholding in its French subsidiary, Codefa, it assesses that damage to be EUR 244 109 in respect of the transaction, to which it adds EUR 30 000 of transaction costs. In the reply it states that that sale may have enabled other shareholders to limit the damage related to Codefa that they sustained. In that regard, as an annex to the reply, it attaches an invoice for fees that allegedly relates to the audit prior to the sale. 160 First, as far as evidence of the damage is concerned, it is true that the applicant cites financial difficulties encountered by Codefa which were allegedly caused by the acts at issue, which justified its decision to sell its shareholding in that company. When it sold those shares, the applicant suffered as a result of their decline in value, in respect of which it is claiming compensation. However, first, it must be pointed out that, although the applicant claims to have invested EUR 232 490 in purchasing shares in that company, it is apparent from the wording used in the application that, since 2010, it had not paid the vendor the balance of EUR 155 000 in connection with that purchase. Secondly, with regard to the invoice for fees that the applicant submitted as an annex to the reply in order to justify the EUR 30 000 transaction costs in respect of which it is claiming compensation, the fact remains that, as the applicant itself acknowledged at the hearing, which was noted in the minutes, that document, which is undated, relates to accountant’s fees that had been paid to assess ‘the merits of investing in Codefa Connectique’, an investment which led to the applicant purchasing that company in 2009, thus a year before the measures at issue were adopted. Therefore, the transaction costs on which the applicant relies do not relate in any case to the sale of its shares in Codefa in November 2010, the sale in respect of which it is claiming compensation, but to the purchase of those shares in 2009. Accordingly, there being no need to rule on the admissibility of the abovementioned annex since it was not produced before the Court until the reply stage, it must be rejected as irrelevant with regard to the damage at issue here. It is clear from the foregoing considerations that the applicant has adduced no evidence of the alleged damage. 161 Secondly, and in any event, the applicant has also adduced no evidence of a causal link. It must be held that, at most, in paragraphs 94 and 97 of the application in which various factors are identified to support the finding that the difficulties encountered by Codefa resulted from the adoption of the acts at issue, the applicant refers to pages 24 and 25 of the accountant’s report and to Annex A.19 to the application. For the purposes of that finding, reference is made, in the footnotes on pages 24 and 25 of that report, to several pieces of evidence. However, that evidence is not attached to the accountant’s report. Moreover, the applicant does not specify whether it has adduced that evidence in the present proceedings. Therefore, the applicant has not demonstrated a causal link between the alleged damage and the conduct complained of. 162 For the sake of completeness, it should be noted that, although, as is clear from the title on the schedule of annexes attached to the application, Annex A.19 is composed of ‘copies of documents relating to Codefa’, the fact remains that the applicant does not refer to any of those documents even though a total of 114 pages have been reproduced in the file of annexes to the application. 163 First, as noted in paragraph 116 above, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based. This is particularly the case where an annex is similar to a file combining several documents relating to a subject or an individual, documents which are reproduced on a substantial number of pages. In such a case, in the absence of a specific reference, by the disclosing party, to the elements and parts of those annexes it wishes to highlight in order to prove the merits of its arguments, in the light of the case-law cited in paragraph 116 above, the evidential and instrumental value of such annexes is significantly reduced. 164 That is clearly the case, in the present proceedings, with regard to Annex A.19 to the application, which, as described by the applicant, is composed of ‘copies of documents relating to Codefa’, reproduced on pages 390 to 503 of the file of annexes to the application, thus a total of 114 pages. In the absence of a specific reference, in the application, to elements in those 114 pages of Annex A.19, it must be considered that the applicant has not proven that its arguments that are at issue in the present case are well founded. 165 Secondly, even if the Court, without searching for or identifying those elements in Annex A.19 to the application, merely analyses the first document attached in that annex, reproduced on page 390 of the annexes to the application, a document which consists of a registered letter with acknowledgement of receipt, sent on 2 September 2010 by the bank Société Générale to Codefa, it is true that its subject matter, entitled ‘Sixty days’ notice to close the account Termination of the C.T.C. credit account Account number: …’, and its wording appear to relate to the breakdown of the relationship between that bank and that company on which the applicant relies in paragraph 95 of the application. However, the fact remains that that letter does not state that the closure of the Codefa account with Société Générale and the cancellation of the EUR 80 000 overdraft facility that Codefa had with that bank resulted from the adoption of the acts at issue. 166 It follows from the foregoing considerations that the applicant has adduced no evidence of the damage and the causal link and therefore the claim for compensation for the damage resulting from the alleged forced sale of its shareholding in its subsidiary Codefa must be rejected as unfounded. 167 In the second place, with regard to the claim for compensation for the damage it states that it suffered as it was unable to recover the advance of EUR 2 828 370.44 that it had paid to the Austrian company SED to purchase equipment and products, from various European countries, that were essential for the continuation of the applicant’s activities, it assesses that damage to be the advance amount paid, plus EUR 262 266, calculated by applying a discount rate of 3% over three years, thus a total of EUR 3 090 636. 168 First, as far as evidence of the damage is concerned, it is clear from the first paragraph of heading E.2.2.1 of the application, entitled ‘Loss of assets in Austria’, and paragraph 98 of the application that the applicant, which has merely reproduced almost in their entirety the relevant passages of pages 25 and 26 of the accountant’s report, claims that, on the date of its inclusion in the lists at issue, the amount of the advances it had paid to SED was EUR 2 828 370.44. 169 On page 25 of the accountant’s report, with regard to the amount stated in paragraph 168 above, reference is made, in a footnote, to a ‘recognition of SED receivables and statements of receivables made by Fulmen’. However, those documents are not attached to that report and the applicant does not specify whether it has submitted them in the present case. 170 Admittedly, it is not inconceivable that those elements may appear in Annex A.4 to the application, to which the applicant makes a general reference in a footnote under the title of heading E.2.2.1 of the application. 171 However, as noted in paragraph 116 above, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based. Again, Annex A.4 to the application, entitled ‘Documents relating to SED’ on the schedule of annexes attached to the application, consists of a number of documents that are reproduced on pages 36 to 71 of the file of annexes to the application. In the absence of a specific reference, in the application, to the elements and parts of that annex it wishes to highlight in order to prove the merits of its arguments, in the light of the case-law referred to in paragraph 116 above in particular, it must be considered that the applicant has not adduced proof that its arguments that are at issue in the present case are well founded. 172 In the light of the foregoing considerations, it must be concluded that the applicant has not established the fact of its claim against SED and, therefore, it has adduced no evidence of the damage. 173 Secondly, in any event, as far as evidence of a causal link is concerned, the fact remains that, contrary to what the applicant submits, it is not clear from the documents in the case file that the factor giving rise to the alleged damage, namely that it was unable to recover the advance it had paid to SED, stems from the applicant’s name being included in the lists at issue. As the applicant itself states in the application, in the first paragraph of heading E.1.1.1 of the application, ‘before the sanctions against the applicant were lifted, SED declared that it was insolvent and the advance paid by the applicant became irrecoverable following SED’s liquidation’. Therefore, the applicant has by no means adduced proof of the causal link between the conduct complained of and the alleged damage. 174 In the light of the foregoing considerations, the applicant has adduced no evidence of the damage and the causal link and therefore the claim for compensation for the damage resulting from it being unable to recover the advance it had paid to the Austrian company SED must be rejected as unfounded. 175 In the third place, with regard to the alleged damage in respect of the postponement of the applicant’s research and development activities that it had launched, since 2007, in cooperation with several European companies and which it estimated in the application at EUR 2 179 125, the following should be noted. In the context of the third measure of organisation of procedure, the Court invited the applicant to explain how, on the one hand, in paragraph 117 of the reply, it stated that it stood by its arguments set out in paragraphs 60 to 101 of the application, in the knowledge that paragraphs 99 and 101 thereof relate to the damage resulting from the postponement of its research and development activities, whereas, in paragraph 116 of the reply, it expressly stated that it had ‘chosen not to include it in the damage for which compensation is sought’. Taking the view that the applicant’s response to that question lacked clarity, the Court asked it the same question at the hearing. The applicant then acknowledged that the error of referring to paragraphs of the application had crept into paragraph 117 of the reply. That is when it stated that that paragraph was to be read as indicating that it ‘therefore [stood] by its arguments set out in paragraphs 60 [to] 98 of the application’ and not ‘in paragraphs 60 [to] 101 of the application’, which was noted in the minutes of the hearing. Accordingly, it must be held that the applicant has decided to abandon its claim for compensation for the damage resulting from the postponement of its research and development activities. 176 It follows from all of the findings above that the claim for compensation for the material damage allegedly sustained in Europe must be rejected as unfounded. 177 In the light of the conclusions drawn in paragraphs 156 and 176 above, the claim for compensation for the material damage allegedly sustained must be rejected as unfounded. (b) The non-material damage alleged and the existence of a causal link 178 The applicant submits that the adoption of the acts at issue and maintaining its name on the lists at issue, in so far as this affected its ‘personality rights’ and in particular its reputation, caused it significant non-material damage which it assesses ex aequo et bono at EUR 100 000. 179 In its reply to the question put to it in the context of the second measure of organisation of procedure regarding the consequences of the judgment of 30 May 2017, Safa Nicu Sepahan v Council (C‑45/15 P, EU:C:2017:402), for the present case, it takes the view that, here, in view of the aggravating circumstances resulting, in particular, from the misuse of power by the Council, the full reparation for its non-material damage must be greater than the amount agreed in the abovementioned judgment. 180 The Council, supported by the Commission, contends that the claim for compensation for the non-material damage alleged must be rejected. 181 In that regard, the Council considers that, first of all, the applicant does not rely on any adverse effect on its economic activity other than those already covered by its claims for compensation for material damage. It states that the negative effects of the measures at issue on the applicant’s reputation, in so far as it has been stigmatised as being involved in the nuclear proliferation programme, have been sufficiently compensated for by the annulment of the measures at issue and the publicity that that annulment received, both in the publication in the Official Journal of the European Union and, in particular, in the broadcast of a report on the programme ‘sept à huit’ on the French television channel TF1. Since the applicant acknowledges that its economic activity has picked up since the measures at issue have been lifted, this demonstrates that the applicant’s reputation did not suffer damage that continued beyond the annulment of the acts at issue and therefore that annulment constitutes sufficient compensation. 182 Secondly, with regard to the non-material damage that goes beyond the sphere of the applicant’s current commercial interests, the applicant has not put forward any argument or submitted any evidence that is capable of establishing that that damage is actual and certain, and that there is a direct link between that damage and the acts at issue. 183 Finally, with regard to the extent of the alleged damage, the applicant does not specify the criteria or factors on which it bases its calculation as to the amount of compensation it is claiming, or what that amount seeks to redress. Account must be taken of the fact that, unlike the applicant in the case giving rise to the judgment of 30 May 2017, Safa Nicu Sepahan v Council (C‑45/15 P, EU:C:2017:402), in the present case, the applicant remains subject to the United States measures. 184 In the first place, it should be recalled that the measures at issue have substantial negative consequences and a considerable impact on the rights and freedoms of the persons covered (see, to that effect, judgment of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 70). In that regard, when an entity is the subject of restrictive measures because of the support it has allegedly given to nuclear proliferation, it is publicly associated with conduct which is considered a serious threat to peace and international security, with the result that it affects its reputation and, therefore, causes it non-material damage (judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 80). 185 First, the damage to the reputation of the entity concerned, provoked by restrictive measures such as the measures at issue, does not relate to the economic and commercial capacity of that entity but to its willingness to be involved in activities regarded as reprehensible by the international community. Thus, the effect on the entity concerned goes beyond the sphere of its current commercial interests (see, to that effect, judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 82). 186 Secondly, that damage is all the more serious since it is caused not by the expression of a personal opinion, but by an official statement of the position of an EU institution, which is published in the Official Journal of the European Union and entails binding legal consequences (judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 83). 187 In view of the foregoing, it must be held that, in the present case, the adoption of the acts at issue and maintaining the applicant’s name on the lists at issue caused it non-material damage, distinct from any material loss resulting from an impact on its commercial relations. Consequently, it must be recognised as having a right to receive compensation for that damage (see, to that effect, judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 85). 188 As regards the actual non-material damage allegedly suffered, it should be recalled that, concerning such damage in particular, if adducing or offering evidence is not necessarily held to be a condition for the recognition of that damage, it is for the applicant to at least establish that the conduct alleged against the institution concerned was capable of causing damage to it (see judgment of 16 October 2014, Evropaïki Dynamiki v Commission, T‑297/12, not published, EU:T:2014:888, paragraph 31 and the case-law cited; see also, to that effect, judgment of 28 January 1999, BAI v Commission, T‑230/95, EU:T:1999:11, paragraph 39). 189 Moreover, while the Court of Justice held, in the judgment of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331), that the annulment of unlawful restrictive measures was capable of constituting a form of reparation for non-material damage suffered, it does not follow from this that that form of reparation is necessarily sufficient, in every case, to ensure full reparation for such damage, every decision in that regard being required to be taken on the basis of an assessment of the circumstances of the case (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 49). 190 In the present case, it is true that the annulment of the acts at issue by the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), which found that the applicant’s association with nuclear proliferation is unjustified and, consequently, unlawful, is capable of constituting a form of reparation for the non-material damage the applicant has suffered and for which it seeks compensation in the present case. However, in the circumstances of the present case, that annulment cannot represent full reparation for that damage. 191 It follows from the case-law recalled in paragraph 184 above that the adoption of the acts at issue and, accordingly, the allegation that the applicant was involved in nuclear proliferation, resulted in its reputation being affected and, therefore, also the way in which third parties behaved towards it (see, to that effect, judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 88). 192 Those effects, which lasted for almost three and a half years and are the cause of the non-material damage suffered by the applicant, cannot be wholly offset by a subsequent finding, in the present case, that the acts at issue are unlawful for the following reasons. 193 First, the adoption of restrictive measures against an entity tends to attract more attention and provoke a greater reaction, in particular outside the European Union, than does their subsequent annulment (see, to that effect, judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 88). 194 Secondly, the allegation levelled by the Council at the applicant is particularly serious inasmuch as it associates it with nuclear proliferation, in other words, an activity representing, in the Council’s view, a threat to international peace and security (see, to that effect, judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 89). 195 Thirdly, as is clear from paragraph 22 above, that allegation has not been substantiated by any relevant information or evidence (see, to that effect, judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 90). 196 Fourthly, and in any event, although the listing of the applicant’s name, which was published in the Official Journal, could have been withdrawn by the Council at any time, or at the very least amended or supplemented, in order to remedy any possible unlawfulness which could invalidate it, it was maintained for almost three and a half years despite the applicant’s objections, in particular with regard to the lack of evidence regarding the allegation made against it. In that regard, the file does not contain anything which suggests that the Council, at any time or in any way, either on its own initiative or in response to the applicant’s objections, checked whether that allegation was well founded in order to limit the harmful consequences which it would entail for the applicant (see, to that effect, judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 91). 197 Such checks would in any event have been particularly justified in this case, following the delivery of the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), in the light of the severity of the unlawful conduct it found, on the basis of settled case-law. Although that judgment, at least in part, was capable of constituting reparation for the non-material damage suffered by the applicant, it cannot in any event have had any effect in that respect with regard to the period after it was delivered, a period of approximately one year and nine months during which the applicant’s name was maintained on the list. 198 Without in any way seeking to call into question the right of the institution concerned to bring an appeal against the General Court’s final decision or the deferral of the effects of that decision, arising from the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, it must be held that, in a Union governed by the rule of law, in the light of the severity of the unlawful conduct found by the Court, the institution concerned must, even if it is alongside bringing an appeal, check the findings that were penalised by the Court. The aim of such a requirement is not to force the institution concerned to have already executed the Court’s judgment, but, as is clear from paragraph 91 of the judgment of 25 November 2014, Safa Nicu Sepahan v Council (T‑384/11, EU:T:2014:986), to check whether, in the light of the conclusions drawn by the Court, the contested acts may, or even must, be withdrawn, replaced or amended in order to limit their harmful consequences. 199 The non-material damage thus caused, by maintaining the applicant’s name on the lists after the delivery of the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), as the applicant expressly alleges in the application, is different from the damage that occurred prior to the delivery of that judgment. Accordingly, in that judgment, the Court formally concluded, as the applicant submits, that the listing of its name was unlawful, in the light of settled case-law, as there was no evidence to support the allegation made against it. 200 In the present case, the Council was therefore able to assess whether maintaining the applicant’s name on the lists as it stands, namely without any evidence to support the allegation made against it, was justified, in particular in the light of the assessments made and conclusions reached by the Court in the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), without risking causing more damage than the applicant had already suffered on the date of delivery of that judgment. 201 That conclusion cannot be altered in the light of the judgment of 28 November 2013, Council v Fulmen and Mahmoudian (C‑280/12 P, EU:C:2013:775). In that judgment, the Court of Justice only examined and dismissed the appeal brought by the Council against the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), annulling the acts. It was unable to give a ruling on the compensation for the non-material damage caused by maintaining the applicant’s name on the lists at issue after that latter judgment was delivered. 202 In the light of the foregoing considerations and, in any event, of the considerations in paragraphs 196 to 200 above, it must be concluded that the annulment of the listing of the applicant’s name by the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), did not constitute full reparation for the non-material damage suffered by the applicant. 203 In the second place, it is necessary to examine whether, as the applicant claims, certain additional factors may have contributed to exacerbating the non-material damage it suffered and, therefore, should be taken into account when evaluating the compensation for the damage it has suffered. 204 First of all, with regard to the alleged protraction and exacerbation of the non-material damaged suffered by the applicant, on the ground that the Council, first, exhausted the remedies available to it under the FEU Treaty, in particular by bringing an appeal against the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), and, secondly, put forward for the first time before the Court of Justice a number of pleas or arguments in support of that appeal, including by referring, without having sent it however, to confidential material in the acts at issue, that argument cannot succeed. In the same way and for the same reasons that it was held in paragraphs 72 to 78 above that such circumstances cannot constitute a factor that makes the unlawful act committed by the Council worse, they cannot also, in principle, be the cause of any non-material damage that may give rise to non-contractual liability on the part of the European Union. 205 Secondly, as regards the broadcast of the report on the programme ‘sept à huit’ by the French television channel TF1, far from stating, as the applicant alleges, on account of its content, that it suffered greater non-material damage, that programme, which is available on the internet, rather contributes to restoring the applicant’s reputation. In particular, it publicises the annulment of the acts at issue by the EU Courts. However, with regard to the particularly serious allegation levelled by the Council at the applicant, the broadcast of that programme cannot, as the Council submits, be regarded as capable of counteracting the negative effects of the measures at issue on the applicant’s reputation. 206 Finally, with regard to the non-material damage alleged, which is said to stem from the United States measures, damage for which the European Union is said to be liable, on the ground that the United States measures were adopted on the basis of the acts at issue, such arguments cannot succeed. It is readily apparent that the United States measures, as they have been produced as an annex to the reply, make no reference to the acts at issue or even to any action that may have been taken by the European Union against the applicant. Therefore, each of the restrictive measures adopted by the European Union and in the United States respectively produce independent effects. Thus, even if the United States measures could have caused damage to the applicant, since those measures are independent from the acts at issue, the European Union cannot be held liable for any possible non-material damage that they may have caused the applicant. However, also in the light of the fact that the United States measures are independent, the Council is wrong to take the view that the evaluation of the amount of the non-material damage sustained by the applicant must take into account the fact that the applicant remained subject to the United States measures after the acts at issue were annulled. 207 Accordingly, evaluating the non-material damage suffered by the applicant ex aequo et bono, the Court considers that an award of EUR 50 000 would constitute appropriate compensation. 208 To conclude, the present action for compensation must be upheld and, accordingly, the applicant must be awarded compensation of EUR 50 000 in respect of the non-material damage it has suffered. However, its claim for compensation for material damage is rejected. IV. Costs 209 Under Article 134(2) of its Rules of Procedure, where there is more than one unsuccessful party, the General Court must decide how the costs are to be shared. 210 In the present case, the Council was unsuccessful in respect of the claim for compensation for the non-material damage suffered by the applicant, whereas the applicant was unsuccessful in its claim for compensation for material damage. In those circumstances, each party should bear its own costs. 211 In accordance with Article 138(1) of the Rules of Procedure, institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Commission must bear its own costs. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Orders the Council of the European Union to pay Fulmen compensation of EUR 50 000 in respect of the non-material damage suffered; 2. Dismisses the action as to the remainder; 3. Orders Fulmen, the Council and the European Commission to bear their own respective costs. Delivered in open court in Luxembourg on 2 July 2019. [Signatures] Table of contents * Language of the case: French