Opinion of the Advocate General — ECLI:EU:C:2011:426
Date: 2011-06-28
Language of the case: French
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible

Summary of the Judgment 1. European Union law – Principles – Rights of the defence – Right to effective judicial protection – Restrictive measures against Iran (Art. 254(1) and (2) EC; Council Regulation No 423/2007, Arts 7(2) and 15(3)) 2. Acts of the institutions – Choice of legal basis – Regulation concerning restrictive measures against Iran (Arts 60 EC, 301 EC and 308 EC; Council Common Position 2007/140; Council Regulation No 423/2007) 3. Public international law – United Nations Charter – Security Council resolutions adopted pursuant to Chapter VII of the United Nations Charter – Duty of the Union to exercise its powers in compliance with those resolutions – Limits (Council Regulation No 423/2007, Art. 7(2)) 1. The principle of effective judicial protection means that the European Union authority which adopts an act imposing restrictive measures against a person or entity is bound to communicate the grounds on which that act is based, so far as possible, either when that measure is adopted or, at the very least, as swiftly as possible after it has been adopted in order to enable those persons or entities to exercise their right to bring an action. It is with a view to ensuring observance of that principle that Article 15(3) of Regulation No 423/2007 requires the Council to state individual and specific reasons for decisions taken pursuant to Article 7(2) of the regulation and make them known to the persons, entities and bodies concerned. The freezing of funds has considerable consequences for the entities concerned, for it may restrict the exercise of their fundamental rights. Although Regulation No 423/2007 does not state how reasons are ‘to be made known’ to the persons, entities and bodies concerned, publication in the Official Journal of the European Union is not sufficient. If the communication of individual and specific reasons could be regarded as accomplished through publication in the Official Journal, it is difficult to imagine why express reference is made to such communication, as in Article 15(3) of Regulation No 423/2007, since that decision to freeze funds must be published in any event, in accordance with Article 254(1) and (2) EC, having regard to its prescriptive nature. It follows that the Council is required to communicate a decision individually to satisfy the obligation imposed on it by that provision. However, although an individual communication is necessary in principle, Article 15(3) of Regulation No 423/2007 does not require communications to take a specific form, and refers only to the obligation to ‘make them known’. What matters is that useful effect should have been given to that provision, namely, effective judicial protection of the persons and entities concerned by the restrictive measures adopted pursuant to Article 7(2) of the regulation. That is the case where the communication has not been made by the Council, but where sufficient information has been sent to the addressee by a national banking authority and where the addressee was able to bring an action, since the fact that the Council did not communicate information did not have the effect of depriving the addressee of an opportunity of knowing, in good time, the reasons for the contested decision or of assessing the validity of the fund-freezing measure adopted in its regard. (see paras 47-52, 55-56) 2. According to its title, Regulation No 423/2007 concerns restrictive measures against the Islamic Republic of Iran. It is apparent from the recitals in the preamble thereto and from its provisions taken as a whole that the regulation is intended to prevent or slow down the nuclear policy of that State, in the light of the threat it poses, by means of restrictive economic measures. It is not nuclear proliferation in general which is being combated, but the risks inherent in the Iranian nuclear proliferation programme. The aim and content of the measure in question clearly being the adoption of economic measures against the Islamic Republic of Iran, it was not necessary to have recourse to Article 308 EC, since Article 301 EC constitutes a sufficient legal basis in that it provides for an action by the Community to interrupt or to reduce, in part or completely, economic relations with one or more third countries; that action may cover the freezing of funds of entities, such as a bank, which are associated with the regime of the third country concerned. As regards the necessity of including Common Position 2007/140 among the legal bases, it is contradicted by the very wording of Article 301 EC, which provides for the possibility of adopting Community measures when a common position or Community action adopted under the provisions of the EU Treaty, in the version before the Treaty of Lisbon, on the Common Foreign and Security Policy (CFSP) provides for Community action. The wording of that article indicates that the common position or Community action must exist in order for Community measures to be adopted, but not that those measures must be based on that common position or Community action. In any event, a common position cannot constitute the legal basis for a Community measure. Council common positions in the sphere of the CFSP, such as Common Positions 2007/140 and 2008/479, are adopted within the framework of the EU Treaty, in accordance with Article 15 thereof, whereas Council regulations, such as Regulation No 423/2007, are adopted within the framework of the EC Treaty. The Council could, therefore, adopt a Community measure only on the basis of the powers conferred on it by the EC Treaty, in this case Articles 60 EC and 301 EC. (see paras 68-72) 3. Security Council resolutions and Council common positions and regulations originate from separate legal orders. Equally, measures within the framework of the United Nations, on the one hand, and the Union, on the other, are adopted by organs with autonomous powers, granted to them by their basic charters, that is to say, the treaties that created them. In drawing up Community measures aimed at giving effect to a Security Council resolution referred to in a common position, the Community is to take due account of the terms and objectives of the resolution concerned. Similarly, account must be taken of the wording and purpose of a Security Council resolution when interpreting the regulation which seeks to give effect to that resolution. However, without the primacy of a Security Council resolution at the international level thereby being called into question, the requirement that the Community institutions should pay due regard to the institutions of the United Nations could not result in their abstaining from reviewing the lawfulness of Community measures in the light of the fundamental rights forming an integral part of the general principles of Community law. Thus, the power granted to the Council under Article 7(2) of Regulation No 423/2007 concerning restrictive measures against Iran is an autonomous power. In that regard, an obligation to ‘take due account’ of the wording and purpose of the resolution concerned in no way runs counter to the finding that the Council legislates autonomously within the limits of its own legal order. (see paras 100, 102-106)