Judgment — ECLI:EU:T:2015:634
Date: 2015-09-15
Language of the case: English
Court formation: Second Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - successful

summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (judgment of 18 July 2013 in Commission and Others v Kadi, C-584/10 P, C-593/10 P and C-595/10 P, ECR, ‘Kadi II’, EU:C:2013:518, paragraph 119). 43 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. If that material is insufficient to allow a finding that a reason is well founded, the Courts of the European Union shall disregard that reason as a possible basis for the contested decision to list or maintain a listing (judgment in Kadi II, cited in paragraph 42 above, EU:C:2013:518, paragraphs 121 to 123). 44 In the present case, it must be observed that, whereas the applicant had requested the Council, by letter of 12 February 2013, then, in the absence of a reply from the Council, by letter of 13 March 2013, to provide the documents justifying the inclusion of its name on the lists in question, the Council only provided those documents on 10 June 2013, namely two months after the expiry of the period for bringing an action and almost four months after the initial request. Furthermore, the Council maintains, in essence, that it provided the proposals concerning the applicant as soon as it received the consent of the Member States which presented them. 45 Without it being necessary to rule on the admissibility of the documents referred to in paragraph 15 above, it suffices, in any event, to note that the documents provided by the Council to the applicant, upon the latter’s request, in its letter of 10 June 2013, contain no information or additional elements to corroborate or even to substantiate the content of the contested acts. The meeting document MD 229/12 ADD 1 REV 1 RELEX and the notes of the Council Secretariat General to Coreper and to Coreper and the Council (documents 17795/12 and 17523/12 ADD 1 REV 1) do not mention anything other than what is produced in the reasons stated in the contested acts. The extracts from the meeting reports of the ‘COMEM’ Working Party (document 10246/13) do not contain any information specific to the applicant, while the extract from the proposal by a Member State concerning the listing of Iralco (document 9869/13 EXT 2, point 3) was made confidential so that no specific information concerning the applicant appears. Moreover, the Council does not state that those documents contain additional information to substantiate the contested acts. 46 In those circumstances, in so far as the statement of reasons for the listing of the applicant consists of the assertions contested by the applicant and where the Council has not adduced any evidence for them, it must be held that that listing is based on unsubstantiated assertions. 47 That conclusion cannot be invalidated by the arguments put forward by the Council in paragraph 23 of the defence, to the effect that ‘[t]he Iranian nuclear programme requires special metals including aluminium, with specifications which are difficult for Iran to procure from other countries due to the international sanctions imposed against it’ and ‘[t]herefore local Iranian metal companies such as the applicant are in high demand for special metals for use in Iran’s military, ballistic missile and nuclear programmes’. 48 The mere fact that Iranian metal companies are ‘in high demand for special metals’ does not necessarily mean, given that there is no prima facie evidence at all in that regard, that the applicant is actually supplying those metals, or that it is likely to supply them in practice, particularly as it is not disputed that the applicant’s business is, in principle, of an entirely civil nature. 49 In that respect, the Council adduces no tangible evidence to show that the applicant is capable of producing aluminium ‘with specifications’ and that it produces this in practice. 50 Accordingly, the arguments set out by the Council in paragraph 23 of the defence do not give any information concerning the contract referred to, which, according to the Council, was signed with TESA in mid-2012, while this is the only reason in the contested decision, on account of its being individual, specific and concrete, which would be capable of justifying the sanctions concerned (see, by analogy, judgment in Kadi II, cited in paragraph 42 above, EU:C:2013:518, paragraph 116). 51 In those circumstances, those arguments are not sufficient to justify a restrictive measure such as that at issue. 52 It follows that the Council has not discharged the burden of proof which rested on it under Article 47 of the Charter of Fundamental Rights, as interpreted by the Court of Justice in its judgment in Kadi II, cited in paragraph 42 above (EU:C:2013:518, paragraph 121). 53 Accordingly, the applicant’s listing must be held to be vitiated by an error of assessment. 54 In the light of all the foregoing, the contested acts must be annulled, in so far as they concern the applicant, and there is no need to examine the other pleas in law raised in support of the action. The temporal effects of the annulment of the contested acts 55 As regards Implementing Regulation No 1264/2012, it must be remembered that under the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void are to take effect only as from the date of expiry of the period 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 (see judgment of 6 September 2013 in Persia International Bank v Council, T-493/10, ECR (Extracts), EU:T:2013:398, paragraph 122 and the case-law cited). 56 The second paragraph of Article 60 of the Statute of the Court of Justice is therefore applicable in this case (judgment of 6 September 2013 in Persia International Bank v Council, cited in paragraph 55 above, EU:T:2013:398, paragraph 127). 57 That being the case, the Council has a period of two months, extended on account of distance by 10 days, as from the notification of this judgment, 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 Implementing Regulation No 1264/2012 does not appear sufficiently great, having regard to the considerable impact of those measures on the applicant’s rights and freedoms, to warrant the maintenance of the effects of that regulation in relation 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 judgment in Persia International Bank v Council, cited in paragraph 55 above, EU:T:2013:398, paragraph 128 and the case-law cited). 58 Finally, as regards the temporal effects of the annulment of Decision 2012/829, it must be recalled that, under the second paragraph of Article 264 TFEU, the 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 date when the annulment of Implementing Regulation No 1264/2012 takes effect were to differ from the date up to which the effects of the abovementioned decision are regarded as definitive, that would be likely seriously to jeopardise legal certainty, since the contested acts impose identical restrictive measures on the applicant. The effects of that decision must therefore be maintained as regards the applicant until the annulment of Implementing Regulation No 1264/2012 takes effect (see, to that effect, judgment in Persia International Bank v Council, cited in paragraph 55 above, EU:T:2013:398, paragraph 129 and the case-law cited). Costs 59 Under Article 134(1) of the Court’s 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 of the present proceedings, in accordance with the form of order sought by the applicant. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1) Annuls Council Decision 2012/829/CFSP of 21 December 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran, in so far as it listed Iranian Aluminium Co. (Iralco) in Annex II to 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 1264/2012 of 21 December 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran, in so far as it listed Iralco 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 2012/829 to be maintained as regards Iralco until the annulment of Implementing Regulation No 1264/2012 takes effect; 4) Orders the Council of the European Union to bear its own costs and to pay the costs of Iralco. Martins Ribeiro Gervasoni Madise Delivered in open court in Luxembourg on 15 September 2015. [Signatures] * Language of the case: English.