Opinion of the Advocate General — ECLI:EU:C:2015:545
Date: 2015-09-03
Language of the case: French
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment;Appeal - unfounded

Summary — Judgment of the Court (Grand Chamber) 1 March 2016 1. Acts of the institutions — Statement of reasons — Obligation — Scope — Regulation authorising the adoption of restrictive measures — No obligation to state the legal nature of the acts that may be adopted (Art. 296 TFEU; Council Regulation No 267/2012, Art. 46(2)) 2. Common foreign and security policy — Restrictive measures against Iran — Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation — Power of the Council, in matters concerning restrictive measures based on Article 215 TFEU, to have recourse to the procedure laid down in Article 291(2) TFEU (Arts 215 TFEU and 291 TFEU) 3. Institutions of the European Union — Exercise of powers — Implementing power conferred on the Commission or on the Council for the adoption of implementing acts — Enforcement — Concept — Adoption of acts of individual application — Included (Art. 291(2) TFEU) 4. Common foreign and security policy — Restrictive measures against Iran — Legal basis — Restrictive measures adopted on the basis of Article 215 TFEU or Article 291 TFEU — Distinction between the procedures for the adoption of acts —Adoption under Article 291 TFEU not contingent on a joint proposal of the High Representative and the Commission — No breach of the principle of equal treatment (Arts 215 TFEU, 263, fourth para., TFEU and 291(2) TFEU) 5. Acts of the institutions — Regulations — Regulation concerning the adoption of restrictive measures against Iran — Implementing powers reserved by the Council — Lawfulness — Conditions — Specific and reasoned cases (Arts 291(2) TFEU and 296 TFEU; Council Decision 2010/413/PESC; Council Regulation No 267/2012, Art. 23(2) and (3)) 6. Acts of the institutions — Statement of reasons — Obligation — Scope — Obligation to mention the legal basis — None where determination by reference to other elements (Art. 296 TFEU) 7. Common foreign and security policy — Restrictive measures against Iran — Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation — Measures adopted pursuant to an implementing power —Interpretation of the implementing act in accordance with the basic act — Taking into account of the context of the legislation at issue (Art. 215(2) TFEU; Council Regulation No 267/2012) 1. Although the citations in the preamble to a regulation concerning the adoption of restrictive measures must clearly indicate the legal basis empowering the competent institution to adopt such measures against a person or entity, it is however not necessary to indicate, in the provision referred to as constituting the legal basis, the legal nature of the acts that may be adopted on the basis of that provision in order for the reference to that provision to constitute an adequate statement of the legal basis of that regulation. (see para. 19) 2. It is clear from the wording of Article 215 TFEU that that provision does not preclude a regulation adopted on the basis of that provision from conferring implementing powers on the Commission or the Council under the conditions laid down in Article 291(2) TFEU, where uniform conditions for the implementation of certain restrictive measures provided for in that regulation are necessary. In particular, it is not apparent from Article 215(2) TFEU that the individual restrictive measures taken against natural or legal persons and groups or non-State entities must be adopted according to the procedure laid down in Article 215(1) TFEU and cannot be adopted on the basis of Article 291(2) TFEU. Moreover, there is no provision in the FEU Treaty which provides that Part Six thereof, relating to the institutional and financial arrangements, would not be applicable to the restrictive measures. Relying on Article 291(1) TFEU is thus not precluded, provided that the conditions in that provision are met. (see paras 34, 35) 3. The concept of ‘implementation’, set out in Article 291(2) TFEU comprises both the drawing-up of implementing rules and the application of rules to specific cases by means of acts of individual application. (see para. 36) 4. Given its significant negative impact on the freedoms and fundamental rights of the person or of the entity concerned, any inclusion in a list of persons or entities subject to restrictive measures, whether based on Article 215 TFEU or on Article 291(2) TFEU, allows that person or entity access to the Courts of the European Union, in that it is similar, in that respect, to an individual decision, in accordance with the fourth paragraph of Article 263 TFEU for the purposes of, inter alia, verifying whether that individual decision complies with the general listing criteria laid down in the basic act. Moreover, the difference between the procedure under Article 215 TFEU and that under Article 291(2) TFEU reflects the intention of establishing a distinction, on the basis of objective criteria, between the basic act and an implementing act in the area of restrictive measures. In that context, the requirement laid down in Article 215(1) TFEU relating to a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission is a condition inherent in the procedure provided in that provision, and not a procedural guarantee which would have to be afforded, in general, to any person or entity subject to inclusion in a list relating to restrictive measures, no matter what its basis. Therefore, in the context of the exercise of implementing powers based on Article 291(2) TFEU, the fact that the adoption of restrictive measures is not contingent on the presentation of such a joint proposal, contrary to what is the case in the procedure laid down in Article 215(1) TFEU, cannot be regarded as a breach of the principle of equal treatment in respect of inclusion in such a list. (see paras 44, 45) 5. The requirements of consistency, coordination and speed when adopting the fund-freezing measures justify listing measures adopted on the basis of the FEU Treaty at the same time as listing measures in the framework of the Common Foreign and Security Policy being regarded as falling within specific cases within the meaning of Article 291(2) TFEU, which justify exceptions being made to the principle that it is the Commission that, in the normal course of events, is responsible for exercising that power. Thus the Council is properly entitled to reserve for itself the implementing power. Moreover, as regards the condition relating to the justification of the conferral of competence on the Council, the act in question must be regarded duly justified, within the meaning of Article 291(2) TFEU, when, having regard to the existence of the clause reserving implementing power to the Council and its justification in the regulations predating the act in question, the existence of that power of the Council can be understood as forming part of the context in which the act at issue was adopted. (see paras 56, 58, 60, 64) 6. Failure to refer to a precise provision of the FEU Treaty in the statement of reasons of an act need not constitute infringement of essential procedural requirements if the legal basis for a measure may be determined from other parts of the measure. (see para. 66) 7. A regulation providing for restrictive measures against Iran must be interpreted in the light not only of the decision adopted in the framework of the Common Foreign and Security Policy referred to in Article 215(2) TFEU, but also of the historical context in which the provisions were adopted by the European Union, that regulation being one such provision. The same applies to a decision adopted in the area of the common foreign and security policy, which must be interpreted taking into account the context in which it is adopted. (see para. 78)