Judgment — ECLI:EU:T:2014:608
Date: 2014-07-03
Language of the case: English
Court formation: Seventh Chamber, Extended Composition
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - unfounded;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 (Kadi II, paragraph 119). 57 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 (Kadi II, paragraphs 121 and 122). 58 Secondly, as regards the argument advanced by the Council at the hearing, that the involvement of the applicant in the Iranian oil and gas sector, through its business in transporting crude oil and gas produced in Iran, is sufficient evidence in itself that the applicant provided financial support to the Government of Iran, it must be recalled that the listing of the applicant is based on the provision of financial support to the government of Iran, as a consequence of the ties maintained by the applicant’s shareholders with the Government of Iran. Yet the transport of oil is unrelated to the alleged existence of links between the applicant’s shareholders and that Government. According to the case-law, the legality of contested acts may be assessed only on the basis of the elements of fact and law on the basis of which they were adopted. The Court cannot accede to what is, in short, an invitation by the Council to replace the grounds on which those acts are based (see judgment of 12 November 2013 in Case T‑55/12 North Drilling v Council, not published in the ECR, paragraph 25 and case-law cited). 59 The Court must also disregard the explanations given by the Council at the hearing, to the effect that the applicant, which is a former subsidiary of the National Iranian Oil Company (‘NIOC’), remained after its privatisation under the control of that public undertaking, which is wholly owned by the Iranian State and is listed among the bodies subject to restrictive measures by reason of the provision of financial support to the Government of Iran. That argument, which amounts to the assertion that the financial support provided to the Government of Iran by the applicant is effected through a third company, namely NIOC, cannot be accepted. The grounds for the applicant’s listing do not refer to any indirect financial support resulting from links between the applicant and NIOC, but to financial support by the applicant to the Government of Iran by means of links between the applicant’s shareholders and the Government of Iran. 60 Further, and in any event, in so far as the aim of the abovementioned arguments of the Council is to establish that the applicant provides indirect financial support to Government of Iran, as a consequence of its business in transporting oil and gas by sea, it is clear that the applicable legislation lays down the criterion of the provision of financial support to the Government of Iran, not the criterion of the provision of indirect financial support. Contrary to what is claimed by the Council, the mere fact that, through its transport business, the applicant is involved in the Iranian oil and gas sector, which represents one of the Government of Iran’s main sources of revenue, cannot be regarded as being covered by the legal criterion of provision of financial support to the Government of Iran. 61 Thirdly, as regards its ownership structure, the applicant correctly states that the Council’s file does not contain any evidence. In particular, neither the proposals for its listing submitted by three Member States, dated 19, 24 and 28 September 2012, nor the other documents in that file identify the applicant’s shareholders or contain the slightest evidence capable of supporting the claims that the applicant is controlled by the Government of Iran or provided financial support to the Government of Iran through its shareholders, which are said to maintain ties with the government. The only material in the file which concerns the applicant consists in the claims which are essentially produced in the contested decision and regulation. 62 Consequently, the Council cannot, to support those claims, produced as the reasons for the listing of the applicant, validly invoke before the Court the factual arguments summarised in paragraphs 51 and 52 above, since those arguments were not part of its file and since, as a result, they were also not disclosed to the applicant, on its request, in the Council’s reply of 12 March 2013. If such arguments were to be taken into consideration, that would be contrary, first, to the principle that the legality of contested acts may be assessed only on the basis of the elements of fact and law on which they were adopted and, secondly, to the applicant’s rights of defence (Bateni v Council, paragraph 57). Since the new reasons were not disclosed to the applicant in good time, the applicant would be deprived of the opportunity effectively to state its point of view on those reasons within the administrative procedure. Further, the applicant would not be in a position to assess whether its listing was well founded and whether it was appropriate to bring an action. The principle of equality of arms before the Courts of the European Union would thereby be affected (see North Drilling v Council, paragraph 26 and case-law cited). 63 Likewise, the Council’s argument that the recent replacement, in March 2013, of the applicant’s Chairman confirms the close links between the applicant’s shareholders and Government of Iran is ineffective, since it is based on events which are subsequent to the adoption of the contested decision and regulation. 64 Consequently, the material which can be taken into consideration by the Court contains no evidence capable of supporting the Council’s claims that the applicant was controlled by the Government of Iran and provided financial support to the Government of Iran. 65 It follows that there is no justification for the listing of the applicant. 66 The first plea in law must therefore be upheld. 67 In the light of all the foregoing, without it being necessary to examine the third and fourth pleas in law, the contested decision and regulation must be annulled, in so far as they concern the applicant. The temporal effects of the annulment of the contested decision and regulation 68 The applicant claims that the annulment of the contested decision and regulation should take effect immediately. It claims that the Council’s decision to list it has the nature of an individual decision, and not a regulation, as is demonstrated by the fact that the Council is obliged to communicate the restrictive measures individually to the persons or entities concerned. The applicant relies on Bank Melli Iran v Council (paragraphs 86 and 87), where the Court held that a decision implementing Article 7 of Council Regulation (EC) No 423/2007 of 19 April 2007 concerning the adoption of restrictive measures against Iran (OJ 2007 L 103, p. 1) was not of an exclusively general nature but had the nature of an individual measure addressed to the persons or entities listed by means of that decision in Annex V to that regulation. 69 According to the applicant, the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union provides solely that a regulation — and not a decision — is to remain in force following the decision of the General Court declaring it to be void, until the expiry of the period for bringing an appeal or, if an appeal has been brought within that period, until the dismissal of that appeal by the Court of Justice, in order to limit the disruptive effects of the annulment by the General Court of general rules applicable throughout the European Union, where those rules may ultimately be upheld on appeal. 70 The Council contends that Article 60 of the Statute of the Court of Justice precludes the annulment with immediate effect of the contested regulation. The Council considers accordingly that the General Court should also order that the effects of any annulment of the contested decision should be suspended for the same period. 71 The Council refers to settled case-law, according to which the second paragraph of Article 60 of the Statute of the Court of Justice is applicable as regards the temporal effects of the annulment by the General Court of a regulation, such as Regulation No 267/2012, which imposes restrictive measures. The Courts of the European Union have, to date, held that Regulation No 267/2012, including Annex IX thereto, has the nature of a regulation, since 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 (Bateni v Council, paragraph 83, and Case T‑110/12 Iranian Offshore Engineering & Constructions v Council [2013] ECR, paragraph 74; see also, by analogy, Case C‑548/09 P Bank Melli Iran v Council [2011] ECR I‑11381, paragraph 45). 72 The applicant’s argument cannot be accepted. 73 There is no need to examine whether the decision to include the name of the applicant in the lists at issue has the nature of a regulation for the purposes of the second paragraph of Article 60 of the Statute, since it is sufficient to observe that under the second paragraph of Article 264 TFEU the Courts of the European Union may, in any event, state, where it is considered necessary, which of the effects of the act which it has declared void are to be considered as definitive. In that regard, it follows from the case-law that the General Court may decide, on the basis of that provision, the date when its annulling judgments are to take effect (see, to that effect, judgment of 12 December 2013 in Case T‑58/12 Nabipour and Others v Council, not published in the ECR, paragraphs 250 and 251). 74 In the circumstances of this case, the Court considers, for the reasons set out below, that it is necessary to suspend the taking effect of this judgment until the date of expiry of the period for bringing an appeal stated in the first paragraph of Article 56 of the Statute of the Court of Justice or, if an appeal has been brought within that period, until the dismissal of the appeal. 75 The nuclear programme pursued by the Islamic Republic of Iran is a source of serious concerns at both the international and European levels. That is the background to the Council’s gradual extension of the number of restrictive measures adopted against that State, in order to hinder the development of activities which jeopardise peace and international security, in the context of implementation of Security Council resolutions. 76 Consequently, the applicant’s interest in ensuring that this annulling judgment should take effect immediately must be weighed against the objective of general interest pursued by the European Union’s policy in relation to restrictive measures against the Islamic Republic of Iran. The adjustment of the temporal effects of the annulment of a restrictive measure may thus be justified by the need to ensure that the restrictive measures are effective and, in short, by overriding considerations to do with security or the conduct of the international relations of the European Union and of its Member States (see, by analogy with there being no obligation to inform the person or entity concerned beforehand of the grounds for an initial listing, Case C‑27/09 P France v People’s Mojahedin Organization of Iran [2011] ECR I‑13427, paragraph 67). 77 The annulment with immediate effect of the contested acts in so far as they concern the applicant would enable the applicant to transfer all or part of its assets outside the European Union, without the Council being able if appropriate to apply in good time Article 266 TFEU, with a view to correcting the irregularities identified in this judgment, and consequently the effectiveness of any freezing of assets in relation to the applicant which might, in the future, be decided on by the Council might be seriously and irreversibly prejudiced. As regards the application of Article 266 TFEU in this case, it must be observed that the annulment by this judgment of the applicant’s listing stems from the fact that the reasons stated for that listing are not supported by sufficient evidence (see paragraph 65 above). Although it is for the Council to decide on what measures to adopt to comply with this judgment, a further listing of the applicant cannot automatically be ruled out. In the course of a further review, the Council has the possibility of again listing the applicant on the basis of reasons which are supported to the requisite legal standard. 78 It follows that the effects of the contested decision and regulation must be maintained as regards the applicant until the date of expiry of the period for bringing an appeal or, if an appeal is brought within that period, until the dismissal of the appeal. Costs 79 Under Article 87(2) of the Court’s Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party’s pleadings. Since the Council has essentially been unsuccessful, it must be ordered to pay the costs of the present proceedings, in accordance with the form of order sought by the applicant. On those grounds, THE GENERAL COURT (Seventh Chamber, Extended Composition) hereby: 1. Annuls Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran, in so far as it listed National Iranian Tanker Company in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP; 2. Annuls Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran, in so far as it listed National Iranian Tanker Company in Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010; 3. Orders the effects of Decision 2012/635 and Implementing Regulation No 945/2012 to be maintained as regards National Iranian Tanker Company until the date of expiry of the period for bringing an appeal stated in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union or, if an appeal has been brought within that period, until the dismissal of the appeal; 4. Orders the Council of the European Union to bear its own costs and to pay the costs of National Iranian Tanker Company. Van der Woude Wiszniewska-Białecka Kancheva Wetter Ulloa Rubio Delivered in open court in Luxembourg on 3 July 2014. [Signatures] * Language of the case: English.