Judgment — ECLI:EU:C:2018:967
Date: 2018-11-29
Language of the case: English
Court formation: Fourth Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment;Appeal - unfounded

summary of reasons underpinning the contested acts, 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 those acts, is substantiated (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119; of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 42; and of 18 February 2016, Council v Bank Mellat, C‑176/13 P, EU:C:2016:96, paragraph 109). Moreover, it is for 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 (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 66). 40 In the present case, in order to establish that the reasons in the contested acts were well founded, the Council produced, inter alia, apart from the proposal by a Member State, a series of public documents, including a number of press articles listed in paragraph 65 of the judgment under appeal and the appellant’s annual report for 2014 cited in paragraph 108 of that judgment. On the basis of those documents, the General Court specifically examined, in paragraphs 87 to 89, 107 to 109, 111 and 112 of the judgment under appeal, whether those reasons were sufficiently supported by the Council, while taking into consideration the arguments presented by the appellant in support of the evidence which it provided, that is to say, the testimony of its managing director and a number of internal documents. 41 Thus, the view must be taken that the General Court did examine all the documents produced and arguments advanced by the Council and by the appellant. By concluding that the information provided by the appellant was not such as to cast doubt on the conclusions reached the Council about that evidence, the General Court did not in any way reverse the burden of proof or require the appellant to prove a negative. 42 Furthermore, the General Court’s finding in paragraphs 110 and 114 of the judgment under appeal that the Council could, without making an error of fact or a ‘manifest error of assessment’, conclude that the appellant financed various projects in the oil and gas sector is based, as is clear from paragraphs 85 to 109 of the judgment under appeal, on the General Court’s verification of the accuracy of the allegations made in the statements of reasons of the contested acts and on the carrying out of a complete review which it is required to do in accordance with the case-law cited in paragraphs 38 and 39 above. 43 In those circumstances, the appellant’s argument that the burden of proof was disregarded and reversed is in fact tantamount to contesting the General Court’s assessment of the facts and evidence, and of the value which it attributed to that information. In accordance with the case-law cited in paragraph 37 above, that assessment does not fall within the scope of review of the Court of Justice, save where the clear sense of that evidence has been distorted. 44 With regard to the distortion of the evidence relied on, it should be recalled that there is such distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect. However, such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment of 7 April 2016, Akhras v Council, C‑193/15 P, EU:C:2016:219, paragraph 68 and the case-law cited). Furthermore, where an appellant claims that the evidence has been distorted, it must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion (judgments of 3 December 2015, Italy v Commission, C‑280/14 P, EU:C:2015:792, paragraph 52, and of 19 October 2017, Yanukovych v Council, C‑598/16 P, not published, EU:C:2017:786, paragraph 46 and the case-law cited). 45 In the present case, with regard to the findings relating to the testimony of the appellant’s managing director in paragraphs 83 to 86 of the judgment under appeal and those based on that testimony, it should be pointed out that the appellant has not demonstrated in any way that those findings amount to an incorrect analysis on the part of the General Court, leading to a distortion. Furthermore, no distortion is readily apparent either from the press articles referred to in paragraphs 88 and 89 of the judgment under appeal, or from the General Court’s findings of fact in paragraphs 91 to 112 of the judgment under appeal. On the contrary, those findings show that the General Court did indeed take into account the testimony of the appellant’s managing director, while identifying the reasons why that testimony, which had to be acknowledged as having little probative value, did not undermine the conclusion, set out in paragraph 89 of the judgment under appeal, drawn from the documents submitted by the Council. 46 The appellant again suggests that the General Court distorted that testimony by taking the view that it could not be qualified as different from, and independent of, its own, that it has a low probative value because it was provided at the request of the appellant for the purposes of the action at first instance and that it originates from a person performing the duties of the appellant’s managing director. That claim is not intended to establish that a piece of evidence was distorted, but to challenge the General Court’s assessment of the facts and evidence, which is not admissible at the appeal stage. 47 It follows that the first and second grounds of appeal must be dismissed. The third ground of appeal – Arguments of the parties 48 By its third ground of appeal, which is divided into two parts, the appellant claims that the General Court was wrong to find that the contested reasons for its reinstatement on the lists at issue, even if they are proved, satisfied the listing criteria. 49 In the first part, the appellant claims that the General Court erred in law in paragraphs 128 and 129 of the judgment under appeal in finding that it provided direct financial support to the Iranian Government and that, accordingly, the criterion laid down in Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012, which required such support, was satisfied. The claims made by the Council at most showed that this was a case of indirect financial support, since it was accused of offering financial resources and financing services for oil and gas development projects, some of which were carried out by subsidiaries of entities controlled by the Government of Iran. 50 In the second part, the appellant argues that the General Court erred in law by finding, in paragraph 133 of the judgment under appeal, that it was directly involved in the procurement of prohibited goods and technology and that the criterion laid down in Article 20(1)(b) of Decision 2010/413 and Article 23(2)(a) of Regulation No 267/2012 was satisfied, when it was not engaged in any way in any procurement of such goods or technology. 51 The Council contends that the third ground of appeal is unfounded. As regards the criterion relating to financial support to the Government of Iran, the appellant is wrong to claim that only direct support is capable of justifying the inclusion of an entity on the lists at issue, in particular in view of the objective pursued by Decision 2010/413 and Regulation No 267/2012. As regards the criterion relating to the procurement of prohibited goods and technology, it merely requires the involvement of the person or entity in that procurement. – Findings of the Court 52 With regard to the first part of the third ground of appeal, it should be pointed out that the General Court rightly recalled in paragraph 122 of the judgment under appeal that the criterion for support to the Government of Iran in Article 20(1)(c) of Decision 2010/413, as amended by Decision 2012/635, and in Article 23(2)(d) of Regulation No 267/2012, as amended by Regulation No 1263/2012, must be understood as meaning that it targets the relevant person or entity’s own activities which, even if they have no actual direct or indirect connection with nuclear proliferation, are nonetheless capable of encouraging it, by providing the Government of Iran with resources or facilities of a material, financial or logistic nature allowing it to pursue proliferation activities (see, to that effect, judgments of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraphs 80 and 81, and of 7 April 2016, Central Bank of Iran v Council, C‑266/15 P, EU:C:2016:208, paragraph 44). 53 As is apparent from paragraphs 81 and 82 of the judgment of 1 March 2016, National Iranian Oil Company v Council (C‑440/14 P, EU:C:2016:128), that criterion takes into account the ‘potential connection between Iran’s revenues derived from its energy sector and the funding of Iran’s proliferation-sensitive nuclear activities’, mentioned, in particular, in Resolution 1929 and in recital 22 of Decision 2010/413, in order to affect the funding of Iran’s nuclear programme by the Government of Iran. The connection between the energy sector and nuclear proliferation is thus established by the EU legislature itself. 54 In addition, it is clear from the case-law of the Court of Justice that that criterion, read in the light of the objectives pursued by the Council, is aimed at the forms of support to the Government of Iran, which by their quantitative or qualitative importance, contribute to the pursuit of Iran’s nuclear activities (see, to that effect, judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraph 83, and order of 4 April 2017, Sharif University of Technology v Council, C‑385/16 P, not published, EU:C:2017:258, paragraph 64). 55 In those circumstances, in view of the objective recalled in paragraph 52 above, the important question is whether the relevant person or entity’s own activities were capable of encouraging nuclear proliferation, as a result of their qualitative or quantitative significance, by providing the Government of Iran with resources or facilities of a material, financial or logistic nature allowing it to pursue proliferation activities. 56 In the present case, as is apparent from paragraphs 125 to 128 of the judgment under appeal, the General Court stated, on the basis of its findings of fact, that the appellant had been involved in the financing of several large-scale oil and gas projects in Iran, aimed at renovating certain facilities or establishing new ones, some of which would significantly increase the crude oil production and refining capacity of those facilities, and therefore the Islamic Republic of Iran. The appellant did not challenge the quantitative significance of that involvement before the General Court. 57 It follows that, in view of the appellant’s financial activity, consisting in financing several large-scale projects in a sector for which the connection between nuclear proliferation has been established by the applicable legislation, the General Court did not err in law in considering that the appellant provided support to the Government of Iran, so that the criterion in Article 20(1)(c) of Decision 2010/413, as amended by Decision 2012/635, and in Article 23(2)(d) of Regulation No 267/2012, as amended by Regulation No 1263/2012, was satisfied. Thus, the issue whether such support must be qualified as direct or indirect is irrelevant in the present case. 58 In those circumstances, in so far as the contested acts reinstated the appellant on the lists at issue on the ground that it provided support to the Government of Iran, the operative part of the judgment under appeal must be regarded as well founded. 59 With regard to the second part of the third ground of appeal, it should be noted that it seeks to establish that the General Court erred in law in considering that the reason for listing, to the effect that the appellant may be regarded as being involved in the procurement of prohibited goods and technology, satisfied the criterion laid down in Article 20(1)(b) of Decision 2010/413 and in Article 23(2)(a) of Regulation No 267/2012. 60 According to the case-law of the Court of Justice, with regard to the review of the lawfulness of a decision adopting restrictive measures, having regard to their preventive nature, if the Courts of the European Union consider that, at the very least, one of the reasons mentioned is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself a sufficient basis to support that decision, the fact that the same cannot be said of other such reasons cannot justify the annulment of that decision (judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 72 and the case-law cited). 61 In that regard, given that, as is apparent from paragraph 58 above, the operative part of the judgment under appeal must be regarded as well founded in so far as the contested acts reinstated the appellant’s name on the lists at issue on the ground that it provides support to the Government of Iran, an error on the part of the General Court regarding the reason relating to the procurement of prohibited goods and technology, even if it were established, could not lead to the annulment of the contested acts, meaning that the second part of the third ground of appeal must be rejected as ineffective. 62 Having regard to the foregoing, the third ground of appeal must be rejected. The fourth ground of appeal – Arguments of the parties 63 By its fourth ground of appeal, the appellant claims that the General Court erred in law in holding that the Council could adopt a decision to reinstate a name on the lists at issue on the basis of reasons which refer to historic conduct, and not to recent or recently discovered conduct, where those reasons could and should have been relied on in respect of its first listing. When a person or entity is reinstated on the lists of persons and entities under restrictive measures, the Council cannot just amend the reasons used as the basis for its initial listing. The General Court was thus wrong in holding, particularly in paragraphs 31, 32, 36 to 40, 45, 47 and 145 of the judgment under appeal, that the Council had not infringed Article 266 TFEU and the principles of res judicata, legal certainty and the finality of judicial decisions, but also the right to effective judicial protection and the principle of effectiveness, the rights conferred by Article 47 of the Charter and Articles 6 and 13 of the ECHR, and its rights to sound administration. 64 The appellant adds that its reinstatement on the lists at issue, in breach of Article 266 TFEU, is tantamount to replacing the initial listing, contrary to what the General Court held. In addition, the General Court should have concluded that the Council’s conduct had circumvented and deprived of any purpose the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, EU:T:2015:43), rendering the application for annulment ineffective and futile and amounting to an abuse of process. The appellant claims further that, in breach of Article 41 of the Charter, its situation has not been dealt with impartially, fairly, or within a reasonable time, given that the re-listing procedure may not be separated from the listings which preceded it. Finally, the appellant claims that, since those rights and principles have not been respected, its re-listing infringes its fundamental rights, in particular its right to property and the principle of proportionality. 65 The Council contends that, at the time of the appellant’s initial listing, it was not required to rely on all of the listing criteria and reasons which could be used and that, following a judgment annulling an initial listing, it is possible for it to adopt a re-listing decision provided that that new decision is not vitiated by the same procedural or substantive defects as those revealed in that judgment. – Findings of the Court 66 In the fourth ground of appeal, the infringement of the various principles of EU law and fundamental rights relied on by the appellant is based, in essence, on the argument that the General Court erred in law in taking the view that an entity which secured an annulment of restrictive measures taken against it could be reinstated on a list of entities whose assets are to be frozen, since the allegations contained in the new statement of reasons do not refer to recent or recently discovered conduct and therefore should have been put forward at the time of the first listing of that entity. 67 First of all, Article 266 TFEU provides that an institution of which an act has been declared void is to be required to take the necessary steps to comply with the judgment annulling that act. 68 Under that provision, when an act is annulled or declared invalid, the institutions which adopted that act are required only to take the measures necessary in order to comply with that judgment. Consequently, the institutions have broad discretion to decide the measures to put into effect in order to remedy the illegality established, it being understood that such measures must be compatible with the operative part of the judgment in question and the grounds that constitute its essential basis (see, to that effect, judgments of 28 January 2016, CM Eurologistik and GLS, C‑283/14 and C‑284/14, EU:C:2016:57, paragraphs 75 and 76, and of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 87). 69 That being so, Article 266 TFEU does not address, as such, the issue whether it is still possible for the Council to re-list on the basis of reasons other than those in the annulled acts. On the other hand, that issue, which requires a ruling on whether the annulment judgment limits the Council’s power to adopt re-listing acts, may be assessed having regard to the principle of res judicata. 70 With regard to that principle, it should be recalled that annulment judgments given by the EU Courts have the force of res judicata as soon as they become final. This applies not only to the operative part of the judgment annulling a decision, but also to the grounds which are its essential basis and are inseparable from it (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 49 and the case-law cited). 71 It is settled case-law that the force of res judicata extends only to the matters of fact and law actually or necessarily settled by a judicial decision (judgments of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 123, and of 13 September 2017, Pappalardo and Others v Commission, C‑350/16 P, EU:C:2017:672, paragraph 37). 72 In the present case, in the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, EU:T:2015:43), the General Court annulled the initial listing of the appellant by holding, in paragraph 60 of that judgment, that the contentions relied on by the Council could not support a finding that it had provided support for nuclear proliferation or helped other persons and entities to breach or avoid the restrictive measures to which they were subject. In the proceedings which gave rise to that judgment, as is apparent from paragraphs 40 and 41 of that judgment, in order to substantiate the restrictive measures concerning the appellant, the Council produced — apart from the proposal by a Member State — only a letter sent by the appellant, together with its attachment. 73 It was therefore as a result of the lack of information provided by the Council in support of the factual basis of those acts that the Council’s acts were annulled by that judgment. It cannot be inferred from such a finding, to which the authority of res judicata extends in accordance with the case-law cited in paragraph 71 above, that the Council could not then rely on other evidence intended to attest the veracity of the reasons relied upon, or that it could never demonstrate that the appellant provides support for nuclear proliferation or helps other persons and entities to breach or avoid the restrictive measures to which they were subject. 74 It must be stated that the appellant’s reinstatement on the lists at issue by the contested acts is based on listing criteria which differ from those underlying its initial listing, which was annulled by the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, EU:T:2015:43), and therefore on different legal grounds, as the General Court held in paragraph 36 of the judgment under appeal. In addition, the statements of reasons in the contested acts and in the acts which brought about the appellant’s initial listing, and the evidence submitted to the General Court are not the same. 75 The appellant, however, claims that, since evidence on which the Council based its decision to reinstate it on the lists at issue was already available at the time of the initial listing, the Council was obliged to use all of the information at its disposal and the legal classifications capable of justifying the imposition of restrictive measures on the appellant at the time of the first listing. 76 In that regard, suffice it to state that that complaint cannot lead to a finding of an infringement of the principle of res judicata, given that, since the information and legal classifications were not taken into account by the decision having the force of res judicata, by definition, they cannot constitute matters of law or fact actually or necessarily settled by that decision for the purposes of the case-law cited in paragraph 71 above. 77 It follows from the foregoing that the General Court did not err in law when it held that the Council did not infringe the principle of res judicata as it attaches to the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, EU:T:2015:43) by adopting the contested acts on the basis of reasons relating to support to the Government of Iran, referred to in paragraph 19 above. 78 With regard to the principle of legal certainty, it should be pointed out that, in its appeal, the appellant does not present any specific argument in support of its claim that, in the present case, that principle affords greater protection than that provided by the principle of res judicata to a person or entity which secured the annulment of its inclusion on the list of persons and entities whose assets are to be frozen against the adoption of new restrictive measures based on other listing criteria or reasons. 79 With regard to the principle of effective judicial protection, it is a general principle of law which is now reaffirmed by Article 47 of the Charter. That article secures in EU law the protection afforded by Article 6(1) and Article 13 of the ECHR (judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 54 and the case-law cited). The first paragraph of Article 47 of the Charter requires everyone whose rights and freedoms guaranteed by EU law are violated to have the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. 80 The principle of effective judicial protection cannot prevent the Council from reinstating a person or entity on the lists of persons and entities whose assets are to be frozen on the basis of reasons other than those on which the initial listing of that person or that entity was based. The purpose of that principle is to ensure that an act adversely affecting an entity may be challenged before the courts, and not to prevent the adoption of a new act adversely affecting that entity, based on different reasons. 81 As the Court of Justice has already held, where a decision of an EU institution being challenged in court is annulled, it is deemed to have never existed, and that institution, which intends to take a new decision, is entitled to undertake a full review and rely on reasons other than those on which the annulled decision was based (see, by analogy, judgment of 6 March 2003, Interporc v Commission, C‑41/00 P, EU:C:2003:125, paragraph 31). 82 In those circumstances, an unlawful measure, such as the one established by the General Court in the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, EU:T:2015:43) at the time the appellant was first included on the lists of persons and entities whose assets are to be frozen, is not such as to prevent the Council, following a re-examination of the appellant’s situation, from adopting new restrictive measures on the basis of evidence that is already in existence or available. 83 It should also be pointed out that, in the proceedings giving rise to the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, EU:T:2015:43), which has now become final, the appellant sought and secured the annulment of the restrictive measures adopted in 2012, which have therefore been expunged from the EU legal order, as the General Court observed in paragraph 45 of the judgment under appeal. It follows that the appellant may rely on that judgment in support of its action for damages brought before the General Court and registered as Case T‑37/17. In addition, the appellant has the option, which it has exercised, of bringing a new action before the Courts of the European Union in order to review the legality of a re-listing decision with a view to being restored to its initial position, if appropriate, and to obtaining compensation. 84 It follows that, in the present case, the General Court did not err in law in holding that the adoption of the contested acts did not constitute an infringement of the principle of effective judicial protection, as is clear from paragraph 47 of the judgment under appeal. 85 Furthermore, the appellant did not produce any evidence capable of demonstrating an infringement of the principle of sound administration, laid down in Article 41 of the Charter (see, to that effect, judgments of 8 May 2014, N., C‑604/12, EU:C:2014:302, paragraph 49, and of 17 July 2014, YS and Others, C‑141/12 and C‑372/12, EU:C:2014:2081, paragraph 68). The right of every person to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions of the European Union when any individual measure that would affect him or her adversely is taken, which stems from that principle, is not intended to ensure that the Council will not adopt new restrictive measures in the future, based on different reasons. 86 Nor has the appellant provided evidence capable of establishing a misuse of powers on the part of the Council. According to the case-law of the Court of Justice, a measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaties for dealing with the circumstances of the case (judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 135 and the case-law cited). In addition, the General Court found, in paragraph 144 of the judgment under appeal, that the reinstatement of the appellant on the lists at issue was aimed at implementing the objectives of the provisions of Decision 2010/413 and of Regulation No 267/2012. Thus the General Court was correct to reject, in paragraph 146 of the judgment under appeal, the plea alleging misuse of powers and infringement of the principle of sound administration. 87 Finally, the appellant claims that, since the principles and rights which it relied on in support of its fourth ground of appeal have not been respected, its reinstatement on the lists at issue infringes its fundamental rights, in particular its right to property and the principle of proportionality. It is clear from the foregoing considerations that the rights and principles relied on by the appellant have not been infringed. Moreover, the appellant does not take issue with paragraphs 147 to 165 of the judgment under appeal, in which the General Court rejected its plea alleging that the Council’s decision to reinstate it on the lists at issue was an infringement of its fundamental rights, in particular its right to property and the principle of proportionality. 88 In view of the foregoing, the fourth ground of appeal is rejected, and the appeal is dismissed in its entirety. Costs 89 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 90 Since the Council has applied for costs and the appellant has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Council. On those grounds, the Court (Fourth Chamber) hereby: 1. Dismisses the appeal; 2. Orders Bank Tejarat to bear its own costs and to pay those incurred by the Council of the European Union. von Danwitz Jürimäe Lycourgos Juhász Vajda Delivered in open court in Luxembourg on 29 November 2018. A. Calot Escobar K. Lenaerts Registrar President * Language of the case: English.