JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
9 June 2021(*)(1)
(Common foreign and security policy – Restrictive measures taken against Iran with the aim of preventing nuclear proliferation – Freezing of funds – List of persons, entities and bodies subject to the freezing of funds and economic resources – Retention of the applicant’s name on the list – Error of assessment – Article 266 TFEU)
In Case T‑580/19,
Sayed Shamsuddin Borborudi, residing in Tehran (Iran), represented by L. Vidal, lawyer,
applicant,
v
Council of the European Union, represented by V. Piessevaux and D. Mykolaitis, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment of Council Implementing Regulation (EU) 2019/855 of 27 May 2019 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2019 L 140, p. 1) in so far as it retains the name of the applicant on the list set out 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 (OJ 2012 L 88, p. 1),
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni, President, L. Madise and J. Martín y Pérez de Nanclares (Rapporteur), Judges,
Registrar: E. Artemiou, Administrator,
having regard to the written part of the procedure and further to the hearing on 3 December 2020,
gives the following
Judgment
I.      Background to the dispute
A.      Legal context of the Council’s decisions relating to restrictive measures against Iran
1        On 26 July 2010, on the basis of Article 29 TEU, the Council of the European Union adopted Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39). Annexes I and II to that decision list the persons and entities whose assets are to be frozen.
2        On 25 October 2010, on the basis of Article 215 TFEU, the Council adopted Regulation (EU) No 961/2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1). Annex VIII to Regulation No 961/2010 listed the persons and entities whose assets were to be frozen.
3        On 23 March 2012, on the basis of Article 215 TFEU, the Council adopted Regulation (EU) No 267/2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010 (OJ 2012 L 88, p. 1). Annex IX to Regulation No 267/2012 reproduced the list that was set out in Annex VIII to Regulation No 961/2010 and lists the persons and entities whose assets are to be frozen (the lists in Annex II to Decision 2010/413 and in Annex IX to Regulation No 267/2012 being below referred to together as ‘the lists at issue’).
4        On 14 July 2015, the five permanent members of the United Nations Security Council and the Federal Republic of Germany, supported by the High Representative of the Union for Foreign Affairs and Security Policy, concluded with the Islamic Republic of Iran a Joint Comprehensive Plan of Action on the Iranian nuclear issue (‘the JCPOA’). On 20 July 2015, the Security Council unanimously adopted Resolution 2231 (2015), by which it endorsed the JCPOA. In order to implement the JCPOA, the Council adopted, on 18 October 2015, Decision (CFSP) 2015/1863 amending Decision 2010/413 (OJ 2015 L 274, p. 174), and Regulation (EU) 2015/1861 amending Regulation No 267/2012 (OJ 2015 L 274, p. 1).
B.      The inclusion of the applicant’s name on the lists at issue
5        By Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 (OJ 2011 L 319, p. 71), the Council amended the latter decision in order to apply those restrictive measures to other persons and entities, whose names were added to the list in Annex II to the latter decision. The name of the applicant, Sayed Shamsuddin Borborudi, together with the date of inclusion of his name on that list, 1 December 2011, were added to Annex II to Decision 2010/413, with reference being made to the following grounds:
‘Deputy Head of [the United Nations] designated Atomic Energy Organisation of Iran, where he is subordinate to [the United Nations] designated Feridun Abbasi Davani. Has been involved in the Iranian nuclear programme since at least 2002, including as the former head of procurement and logistics at [the] AMAD [Plan], where he was responsible for using front companies such as Kimia Madan to procure equipment and material for Iran’s nuclear weapons programme.’
6        On 1 December 2011, the Council adopted Implementing Regulation (EU) No 1245/2011 implementing Regulation (EU) No 961/2010 (OJ 2011 L 319, p. 11). The applicant’s name and the same information and reasons as those set out in Decision 2011/783 were thus added to the list in Annex VIII to Regulation No 961/2010.
7        On 2 December 2011, the Council published in the Official Journal of the European Union a Notice for the attention of the persons and entities to which Articles 19(1)(b) and 20(1)(b) of Decision 2010/413 (Annex II) and Article 16(2) of Regulation No 961/2010 (Annex VIII) apply (OJ 2011 C 351, p. 15).
8        By letter of 11 December 2012, the Council notified the applicant of his inclusion on the lists at issue and informed him of the possibility of submitting observations, supported by documents, on his listing, before 31 January 2013. That letter was sent to the applicant at the post-office box of the Atomic Energy Organisation of Iran (AEOI).
9        By letter of 31 January 2013, the applicant sent the Council a petition for the removal of his name from the lists at issue (‘the letter of 31 January 2013’). In that letter, the applicant claimed, first of all, that the activities of the persons and entities referred to in the Annexes to Decision 2010/413 and Regulation No 267/2012 were peaceful and complied with obligations under international law. Next, he stated that the European Union’s intervention in that area was not justified. In addition, he submitted that the imposition of unilateral sanctions by the European Union infringed the fundamental principle set out in Article 4 of the Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature on 1 July 1968 in London, Moscow and Washington (United Nations Treaty Series, Vol. 729, p. 161), which provides for the inalienable right of all the parties to that treaty to develop research, production and use of nuclear energy for peaceful purposes. Lastly, he submitted that the lack of evidence and proof supporting the Council’s decisions imposing sanctions on persons and entities and the non-compliance with the rights of defence of the individuals subject to such measures constituted indications that the EU measures were contrary to certain legal principles and certain ‘human principles’ claimed by the European Union. In that regard, the applicant stated that proof of a cooperative relationship with Kimia Madan required the establishment of a link of employment, contract and membership of the board of directors or other legitimate positions. Thus, he took the view that the reasons given for including his name on the lists at issue were based on false information or mere conjecture that was far removed from reality.
C.      Retention of the applicant’s name on the lists at issue
10      On 14 March 2014, the Council informed the applicant by letter of its decision, adopted following an annual review of the lists at issue, to maintain his name on those lists. The Council also informed the applicant that the observations in his letter of 31 January 2013 provided insufficient reasons for concluding that his name should be removed from those lists. In that regard, the Council claimed that the applicant, as Deputy Head of the AEOI, an entity designated by the United Nations Security Council as being involved in Iran’s nuclear programme, had an important share of responsibility for the actions of that organisation. Lastly, the Council informed the applicant of the possibility of submitting observations on his designation before 15 April 2014. That letter was sent to the applicant at the AEOI’s post-office box.
11      By letter of 15 April 2014, the applicant sent the Council a new petition for removal from the lists at issue (‘the letter of 15 April 2014’). The content of that new petition was, in essence, the same as that of the letter of 31 January 2013 referred to in paragraph 9 above. In that regard, in addition to the content of that latter letter, the letter of 15 April 2014 included a reference to the Joint Plan of Action concluded in Geneva (Switzerland) on 24 November 2013. The applicant claimed that, in the light of that plan, the AEOI expected the Council to reconsider its decision to impose restrictive measures on persons and entities involved in the Iranian nuclear programme. The applicant also claimed that he had no cooperation, whether as a consultant or administrator, with the companies or organisations under sanctions or entities related to the Iranian nuclear industry.
12      No exchange between the Council and the applicant took place after the letter of 15 April 2014 was sent until 27 May 2019, the date on which the Council adopted Decision (CFSP) 2019/870 amending Decision 2010/413 (OJ 2019 L 140, p. 90), following an annual review of the list of persons and entities set out in Annex II to Decision 2010/413, as provided for in Article 26(3) of that latter decision. Pursuant to Article 1 of Decision 2019/870, Annex II to Decision 2010/413 was amended as set out in the Annex to Decision 2019/870. The entry concerning the applicant in that annex was amended so as to add, in the column relating to the identifying information, the applicant’s date of birth, namely 21 September 1969.
13      On 27 May 2019, the Council also adopted Implementing Regulation (EU) 2019/855 implementing Regulation No 267/2012 (OJ 2019 L 140, p. 1, ‘the contested measure’). Under Article 1 of the contested measure, Annex IX to Regulation No 267/2012 was amended to take account of the amendments made to Annex II to Decision 2010/413 by Decision 2019/870. In particular, the applicant’s name appears in line 25 of Table A of Annex IX to Regulation No 267/2012 in respect of persons and entities involved in the nuclear or ballistic missile programme and persons and entities providing support to the Government of Iran.
II.    Procedure and forms of order sought
14      By application lodged at the Registry of the General Court on 20 August 2019, the applicant brought the present action.
15      By decision adopted on 17 October 2019, pursuant to Article 27(3) of the Rules of Procedure of the General Court, the President of the General Court reallocated the case to a new Judge-Rapporteur attached to the Fourth Chamber.
16      On 22 November 2019, the Council lodged its defence at the Registry of the Court.
17      The reply and rejoinder were lodged, respectively, by the applicant on 14 February 2020 and by the Council on 23 April 2020.
18      The oral part of the procedure was closed on 23 April 2020.
19      In the context of the measures of organisation of procedure provided for in Article 89(3)(a) of the Rules of Procedure, on 6 October 2020 the Court requested the parties to reply to a series of questions which they answered within the prescribed period.
20      The parties presented oral argument and replied to the questions put by the Court at the hearing on 3 December 2020.
21      The applicant claims that the Court should:
–        annul the contested measure, in so far as it concerns him;
–        order the Council to remove his name from Annex IX to Regulation No 267/2012;
–        order the Council to pay all the costs.
22      The Council contends that the General Court should:
–        reject the application as unfounded;
–        order the applicant to pay the costs.
III. Law
A.      The first head of claim
23      It should be noted that the applicant has not sought the annulment of Decision 2019/870, which was adopted at the same time as Implementing Regulation 2019/855.
24      According to Article 29 TEU, on the basis of which Decision 2010/413 was adopted, ‘the Council shall adopt decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the Union positions’.
25      Article 215(1) TFEU provides that ‘where a decision, adopted in accordance with Chapter 2 of Title V of the Treaty on European Union [in which Article 29 TEU appears], provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries, the Council, acting by a qualified majority on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission, shall adopt the necessary measures. It shall inform the European Parliament thereof’. Article 215(2) TFEU provides that, ‘where a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities’.
26      It is apparent from the case-law that decisions adopted on the basis of Article 29 TEU and regulations adopted on the basis of Article 215 TFEU are two types of act, the first declaring the Union’s position with respect to the restrictive measures to be adopted and the second constituting the instrument giving effect to those measures at Union level (judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 90).
27      In addition, the Court has held that a prerequisite for the validity of a regulation adopted on the basis of Article 215 TFEU is the prior adoption of a valid decision in accordance with the provisions relating to the common foreign and security policy (CFSP) (see, to that effect, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 55). In other words, the adoption of a regulation on the basis of Article 215 TFEU is subject to the adoption of a decision under Article 29 TEU.
28      Despite the close connection between those two types of acts, the fact remains that they are two distinct and independent acts, so that there is nothing to prevent an applicant from challenging only an implementing regulation.
29      Thus, in the present case, the fact that the subject matter of the action is limited to an application for annulment of the contested measure in so far as it concerns the applicant and does not also relate to Decision 2019/870 does not preclude its examination, without prejudice to the consequences which possible annulment of the contested measure might have for that decision (see paragraph 91 et seq. below).
B.      The applicant’s second head of claim
30      By his second head of claim, the applicant claims that the Court should order the Council to remove his name from Annex IX to Regulation No 267/2012.
31      In response to a question put by the Court, the applicant submits, in essence, that, by his second head of claim, he is not requesting the Court to issue directions to the Council. According to the applicant, this head of claim must be interpreted as requesting the Court to annul Annex IX to Regulation No 267/2012 in so far as it concerns the applicant. In addition, he claims that, if the Court were to uphold his first head of claim, the rejection of the second would render such a decision ineffective because his name would continue to be included on the lists at issue.
32      In response to that same question, the Council submits, in essence, that it is not for the Court to issue directions to EU institutions and that, under Article 266 TFEU, it is for the institution from which the annulled act emanates to determine what measures must be taken in order to comply with the judgment.
33      In the light of the clarifications provided by the applicant, it must be concluded that the second head of claim seeks only that the Court annul the contested measure inasmuch as it concerns him in so far as that act amends Annex IX to Regulation No 267/2012. Thus, the applicant’s second head of claim is indissociable from the first head of claim and therefore has no independent scope.
34      As regards the applicant’s argument that, if the Court were to uphold his first head of claim, the rejection of the second would render such a decision ineffective, because his name would continue to be included on the lists at issue, it must be recalled that, as regards restrictive measures, where the General Court annuls acts which included or maintained a person or entity on the lists at issue, it is for the Council to undertake, on the basis of Article 266 TFEU, a re-examination of the facts in order to assess whether that name should be re-listed on the basis of new reasons that are supported to the requisite legal standard, or whether, on the contrary, in the light of the annulment judgment, it should be withdrawn (see, to that effect, judgment of 31 May 2018, Kaddour v Council, T‑461/16, EU:T:2018:316, paragraph 78). Thus, it is not for the Court to indicate to the Council whether, as a result of the annulment of such acts, it is necessary to re-list the person or entity concerned or, on the contrary, to remove that person or entity from the lists at issue.
C.      Substance
35      In support of his action, the applicant raises five pleas in law, alleging: (i) an error of assessment; (ii) an error of law; (iii) failure on the part of the Council to fulfil the obligation to substantiate the restrictive measures; (iv) failure on the part of the Council to fulfil the obligation to communicate the documents supporting the grounds for listing and (v) infringement by the Council of the principle of proportionality.
36      It is appropriate to begin by examining the first and third pleas together.
37      The applicant submits, in the context of the first plea in law, that the Council committed an error in its assessment of the facts, in the light of the absence of factual grounds for adopting restrictive measures against him. In the third plea, the applicant claims that the Council failed to fulfil its obligation to substantiate the restrictive measures.
38      In the first place, as regards his position as Deputy Head of the AEOI, the applicant argues that he ceased to work for that organisation in August 2013 and that he no longer has any relationship with it. The applicant adds that he no longer works under the supervision of Mr Feridun Abbasi Davani, who is the subject of sanctions imposed by the United Nations Security Council. Furthermore, he states that he now works exclusively in the private sector of the Iranian economy. He also claims, in essence, that the Council maintained his name on the lists at issue without proving that he was working for that organisation on the date of adoption of the contested measure.
39      In the second place, the applicant points out that, following the implementation of the JCPOA, the AEOI is no longer subject to the sanctions imposed by the United Nations Security Council. According to the applicant, the AEOI was also removed from the lists at issue pursuant to Council Implementing Regulation (EU) 2015/1862 of 18 October 2015 implementing Regulation No 267/2012 (OJ 2015 L 274, p. 161). The applicant submits, in essence, that the Council maintained his name on the lists at issue without proving that the AEOI was subject, on the date of adoption of the contested measure, to sanctions by the United Nations.
40      In the third place, as regards the applicant’s participation in the AMAD Plan, the applicant notes that the International Atomic Energy Agency (IAEA) stated in December 2015 that the AMAD Plan had been halted in 2003 and that the IAEA ‘ha[d] no credible indications of activities in Iran relevant to the development of a nuclear explosive device after 2009’.
41      Lastly, in the fourth place, the applicant argues that the Council did not provide any factual evidence which could enable him and the Court to verify, first, the ‘quantitative or qualitative’ significance of the alleged support that he might be providing to Iran’s nuclear programme, a programme repeatedly considered by the IAEA to be strictly civil since 2016, and, secondly, the applicant’s alleged relationship with Kimia Madan.
42      The Council disputes the applicant’s arguments.
1.      The grounds for listing
43      It will be recalled that the grounds for including the applicant’s name on the lists at issue are as follows:
‘Deputy Head of [the United Nations] designated [AEOI], where he is subordinate to [the United Nations] designated Feridun Abbasi Davani. Has been involved in the Iranian nuclear programme since at least 2002, including as the former head of procurement and logistics at [the] AMAD [Plan], where he was responsible for using front companies such as Kimia Madan to procure equipment and material for Iran’s nuclear weapons programme.’
44      In the light of that wording, there are, in essence, two grounds justifying the inclusion of the applicant’s name on the lists at issue, the first consisting of the applicant’s capacity as Deputy Head of the AEOI and the second consisting of the applicant’s involvement in Iran’s nuclear programme since at least 2002.
2.      The evidence
45      It is well-established case-law that the judicial review of the lawfulness of an act whereby restrictive measures are imposed on a person extends to the assessment of the facts and circumstances relied on as justifying it, and to the evidence and information on which that assessment is based. In the event of challenge, it is for the Council to present that evidence for review by the Courts of the European Union (judgments of 14 October 2009, Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraphs 37 and 107, and of 20 July 2017, Badica and Kardiam v Council, T‑619/15, EU:T:2017:532, paragraph 96).
46      It should be noted that, according to the case-law, the Council discharges the burden of proof borne by it if it presents a set of indicia sufficiently specific, precise and consistent to establish that there is a sufficient link between the person subject to restrictive measures and the activities that have given rise to those measures (see, to that effect, judgment of 20 July 2017, Badica and Kardiam v Council, T‑619/15, EU:T:2017:532, paragraph 99 and the case-law cited).
47      In the first place, the Council observed, in essence, that, on the date of adoption of the contested measure, the file of evidence concerning the applicant contained the COREU document bearing the reference CFSP/0466/11 COR 1 of 9 November 2011, classified as ‘CONFIDENTIAL EU’, including the proposal of a Member State to include the applicant’s name on the lists at issue (‘the listing proposal’).
48      In addition, the Council stated that the IAEA Report of 2 December 2015, bearing the reference GOV/2015/68 and entitled ‘Final Assessment on Past and Present Outstanding Issues regarding Iran’s Nuclear Programme’ (‘the 2015 IAEA Report’), produced by the Council in the context of the present proceedings, was also in its possession when the contested measure was adopted and that that report must be regarded as forming part of the Council’s file on the annual reviews of the restrictive measures taken against Iran from 2016 onwards.
49      In the second place, in response to a question put by the Court, the Council stated that, in November 2019, it added certain documents to the file concerning the applicant in order, inter alia, to corroborate the accuracy of the information contained in the listing proposal. These are, first, a study carried out by the Foundation for Defence and Democracies research institute entitled ‘A Key Missing piece of the AMAD puzzle’, of 11 January 2019, secondly, a screenshot from the Institute for Science and International Security’s website, consulted on 14 November 2019, describing Kimia Madan, thirdly, an article published on the BBC’s website on 9 May 2019, entitled ‘Iran nuclear deal: European powers reject “ultimatums”’ and, fourthly, an article published on the BBC’s website on 5 November 2019, entitled ‘Iran nuclear deal: Fordo uranium centrifuges to be injected with gas’.
50      According to settled case-law, the legality of an act may be assessed only on the basis of the elements of fact and law on which it was adopted and not on the basis of information which was brought to the Council’s knowledge after the adoption of that act, even if the latter takes the view that that information could legitimately be the basis for the adoption of that decision (see judgment of 26 October 2012, Oil Turbo Compressor v Council, T‑63/12, EU:T:2012:579, paragraph 29 and the case-law cited).
51      Since the contested act is dated 27 May 2019, there is therefore no need to take into account, in the context of the examination of its lawfulness, the evidence referred to in paragraph 49 above.
3.      The applicant’s capacity as Deputy Head of the AEOI
52      In the first place, it must be borne in mind that the applicant states that he ceased to work for the AEOI in August 2013 and that he no longer has any relationship with that organisation. In order to substantiate that assertion, the applicant produces, first, a certificate signed by the Director-General of the AEOI, dated 5 May 2019, according to which the applicant worked as the ‘Vice Chairperson of the [AEOI] in Executive Affairs and Administrative and Financial Deputy of the Organisation’ from 23 April 2011 to 31 August 2013. In response to the Council’s criticisms expressed in the defence, relating to the fact that the abovementioned certificate is of poor technical quality and is not certified, the applicant provided, when lodging the reply, a new certificate from the AEOI’s Director-General for Human Resources Development and Welfare of 22 January 2020. On that certificate, the content of which is the same as that of the certificate of 5 May 2019, it is stated that, after 31 August 2013, the applicant did not hold a position, employment or working relationship with the AEOI. Secondly, the applicant argues that his alleged position as Deputy Head of the AEOI is contradicted by a press release from the Foreign Office of the United Kingdom of 23 June 2019, according to which the Minister for the Middle East had had meetings with, inter alia, the Deputy Head of the AEOI, A. Thirdly, in the reply, the applicant notes that his name is not mentioned in any report of the IAEA. According to the applicant, however, the various reports of that organisation regularly mention the names of the legal representatives of the AEOI, in particular that of its Head. Fourthly and lastly, the applicant observes that since the signing of the JCPOA, the Iranian nuclear programme has been under the close supervision of the IAEA and the European Union. Consequently, according to the applicant, if he actually was still linked with the AEOI, the Council would have had evidence to prove this.
53      Despite the Council’s criticism of the certificate signed by the Director‑General of the AEOI of 5 May 2019, produced by the applicant, and despite the Council’s challenging some of the arguments raised by the applicant, it should be noted that, in the present proceedings, the Council does not in fact dispute the fact that the applicant ceased to work for the AEOI in August 2013.
54      On the other hand, the Council contends that, in view of certain circumstances, it was not unreasonable for it to believe, on the date of adoption of the contested measure, that the applicant continued to be a Deputy Head of the AEOI. That resulted, in essence, first, from the fact that the applicant had not produced evidence in support of the claims contained in his letter of 15 April 2014, secondly, from the ambiguous content of that letter suggesting that the applicant had written it in his capacity as Deputy Head of the AEOI, thirdly, from the fact that the applicant had not communicated to the Council his address or contact details other than those of the AEOI, fourthly, from the fact that the applicant had not contacted the Council since that letter and, fifthly, that neither the AEOI’s website nor any other publicly available sources provided any information as to who held managerial positions within the AEOI, so that the only information on which it could rely in this situation was documentary evidence from the applicant.
55      In that regard, it should be noted that the Council cannot criticise the applicant, without reversing the burden of proof, for not having established that he had ceased all activity within the AEOI by requiring him to inform it of that fact and, still less, to submit evidence to the Council (see, to that effect, judgment of 3 July 2014, Alchaar v Council, T‑203/12, not published, EU:T:2014:602, paragraph 152 and the case-law cited). On the contrary, it is for the Council, in the context of the annual review of restrictive measures provided for in Article 26(3) of Decision 2010/413 and Article 46(7) of Regulation No 267/2012, to examine carefully the evidence substantiating the inclusion of the applicant’s name on the lists at issue. That does not prevent the applicant from submitting, at any time, observations or new evidence, in accordance with Article 24(4) of Decision 2010/413 and Article 46(5) of Regulation No 267/2012. However, this is a power vested in the applicant which cannot relieve the Council from the burden of proof incumbent on it.
56      That cannot be called into question by the Council’s argument that the content of the letter of 15 April 2014 is ambiguous. In that regard, it must be stated that the applicant ends that letter by stating that ‘[he had] no cooperation, whether as a consultant or administrator, with the companies or organisations under sanctions or entities related to [the] nuclear industry of the Islamic Republic of Iran’.
57      It should be noted, moreover, that no provision of Decision 2010/413 or of Regulation No 267/2012 requires the applicant to communicate to the Council his new address or new contact details.
58      In the second place, it is necessary to examine whether, on the date of adoption of the contested measure, the Council was entitled to take the view that it was apparent from the evidence concerning the applicant that he was a Deputy Head of the AEOI or, at the very least, whether that evidence constituted a set of indicia within the meaning of the case‑law cited in paragraph 46 above.
59      First, it should be noted that, on the one hand, the listing proposal, a non-confidential extract of which was produced by the Council in the present proceedings, was out of date as regards the applicant’s situation as Deputy Head of the AEOI.
60      In that regard, according to the case-law, in order to justify retaining a person’s name on the lists in question, the Council is not prohibited from basing its decision on the same evidence justifying the initial inclusion, re-inclusion or previous retention of the applicant’s name on the lists in question, provided that (i) the grounds for inclusion remain unchanged and (ii) the context has not changed in such a way that that evidence is now out of date (judgment of 23 September 2020, Kaddour v Council, T‑510/18, EU:T:2020:436, paragraph 99). That context includes not only the situation of the country in respect of which the system of restrictive measures was established, but also the applicant’s particular situation. (see, to that effect, judgment of 23 September 2020, Kaddour v Council, T‑510/18, EU:T:2020:436, paragraph 101).
61      In the present case, in response to a question put by the Court, the Council indicated, in essence, that the grounds for including the applicant’s name on the lists at issue have remained unchanged since his initial listing. However, the fact, which is not disputed by the Council, that the applicant ceased to work for the AEOI in August 2013 constituted such a change in the situation of the person concerned that it made the listing proposal obsolete as regards the first ground for listing.
62      On the other hand, it should be noted that, in any event, the non-confidential extract of the listing proposal contains only one paragraph, the wording of which coincides with that contained in the grounds for inclusion on the lists at issue. It is not accompanied by any evidence to substantiate the ground that the applicant is a Deputy Head of the AEOI.
63      Secondly, it should be borne in mind that the Council states that it was in possession of the 2015 IAEA Report when the contested measure was adopted and that that report must be regarded as forming part of the Council’s file on the annual reviews of the restrictive measures taken against Iran from 2016 onwards.
64      Should the Council intend to rely on the 2015 IAEA Report in order to substantiate the merits of the first ground for listing, namely that the applicant is a Deputy Head of the AEOI, it must be stated that that report does not mention the applicant or, a fortiori, that the applicant is a Deputy Head of the AEOI.
65      It follows from the foregoing that the Council has not established that, on the date of adoption of the contested measure, it was entitled to take the view that the applicant was a Deputy Head of the AEOI. Consequently, the first ground for including the applicant’s name on the lists at issue is unfounded.
4.      The applicant’s involvement in the Iranian nuclear programme
66      It is necessary to examine whether it is apparent from the evidence concerning the applicant that he was involved, on the date of adoption of the contested measure, in the Iranian nuclear programme or, at the very least, whether that evidence constitutes a set of indicia within the meaning of the case-law cited in paragraph 46 above. It should be recalled that, according to the second ground for listing, the applicant had been involved in the Iranian nuclear programme since at least 2002, in particular by being responsible for using front companies such as Kimia Madan to procure equipment and material for Iran’s nuclear weapons programme when he was head of procurement and logistics at the AMAD Plan.
67      In the first place, as was stated in paragraph 62 above, the non‑confidential extract of the listing proposal produced by the Council in these proceedings contains only one paragraph, the wording of which coincides with that contained in the grounds for inclusion on the lists at issue. It is not accompanied by any evidence to substantiate the applicant’s involvement in the Iranian nuclear programme.
68      In the second place, as regards the 2015 IAEA Report, the Council submits that the reference in that report to the Green Salt Project links the AMAD Plan (and the applicant as head of procurement for that plan) to Kimia Madan. In order to establish the existence of such a link between the AMAD Plan and Kimia Madan, the Council relies on the information referred to in paragraph 49 above published on the Institute for Science and International Security’s website.
69      Moreover, the Council maintains that the fact that, according to the IAEA Report, the Islamic Republic of Iran had initially denied the existence of the AMAD Plan and the fact that the analysis contained in the 2015 IAEA Report was undertaken on the basis of the information available to the IAEA do not necessarily mean that the activities of the AMAD Plan indeed ceased in ‘2003-2004’. Furthermore, according to the Council, the study carried out by the Foundation for Defence and Democracies research institute referred to in paragraph 49 above indicates that, in the light of new evidence, the IAEA’s statements with respect to AMAD being a purely scientific project which did not advance beyond the stage of feasibility studies may not be accurate.
70      First of all, as was established in paragraph 51 above, it is not necessary to take into account, in the context of the examination of the lawfulness of the contested measure, the information published on the Institute for Science and International Security’s website or the study carried out by the Foundation for Defence and Democracies research institute referred to in paragraph 49 above.
71      Next, it is apparent from paragraph 29 of the 2015 IAEA Report that the Green Salt project formed part of the preliminary activities aimed ‘at the production of uranium salts that would have been suitable either for conversion into material for uranium enrichment or into material for the direct reduction of uranium salts to pure uranium metal’. It is also apparent from that paragraph that ‘the information [that these preliminary activities for the production of uranium salts were undertaken] stemmed from the alleged studies documentation and other information, from Member States, and indicated that these activities ceased when the AMAD Plan was brought to a halt in late 2003’.
72      In that regard, according to footnote 31 of the 2015 IAEA Report, the ‘alleged studies’, on the basis of which that report was undertaken, are defined in the Annex to the Report of the Director-General of the IAEA of 11 November 2011, entitled ‘Implementation of the [Nuclear Proliferation Treaty] Safeguards Agreement and relevant provisions of Security Council resolutions in [Iran]’, as follows: ‘[the] clarification of issues with respect to the scope and nature of Iran’s nuclear programme, particularly in light of Iran’s admissions concerning its contacts with the clandestine nuclear supply network, information provided by participants in that network and information which had been provided to the [AIEA] by [an AIEA] Member State’ (paragraph 6) and ‘a large volume of documentation (including correspondence, reports, view graphs from presentations, videos and engineering drawings), amounting to over a thousand pages. The information reflected in that documentation is of a technically complex and interconnected nature, showing research, development and testing activities over time. It also contains working level correspondence consistent with the day to day implementation of a formal programme. Consistent with the [IAEA]’s practice, that information has been carefully and critically examined. The [IAEA] has also had several meetings with the [IAEA] Member State to clarify the information it had provided, to question the Member State about the forensics it had carried out on the documentation and the information reflected in it, and to obtain more information on the underlying sources’ (paragraph 12).
73      Finally, it is apparent from paragraph 87 of the 2015 IAEA Report that ‘a range of activities relevant to the development of a nuclear explosive device were conducted in Iran prior to the end of 2003 as a coordinated effort, and some activities took place after 2003’. It is also stated in that report that ‘these activities did not advance beyond feasibility and scientific studies, and the acquisition of certain relevant technical competences and capabilities’. Lastly, it is stated that the IAEA has no ‘credible indications of activities in Iran relevant to the development of a nuclear explosive device after 2009’.
74      It therefore follows from paragraphs 71 and 72 above that the IAEA Report was drawn up on the basis of information coming not only from the Member States of that organisation but also from participants in a clandestine nuclear supply network. Furthermore, the IAEA states that it carefully and critically examined that information and asked for clarification on certain points. Moreover, it must be stated, as the Council observes, that the 2015 IAEA Report itself indicates that the Islamic Republic of Iran had initially denied the existence of the AMAD Plan. Accordingly, the conclusion in that report that the AMAD Plan ceased at the end of 2003 must be regarded as credible
75      In the third place, it should be noted that, as the Council rightly observes, the applicant did not dispute, in his pleadings, his involvement in the AMAD Plan. Nevertheless, at the hearing, the applicant expressed his strong opposition to the second ground for listing. In any event, since the AMAD Plan ceased at the end of 2003, the applicant’s involvement in it, even if proved, does not mean that he was still involved, more than 15 years later, on the date of adoption of the contested measure, in the Iranian nuclear programme.
76      It follows from the foregoing that the Council has not demonstrated that the applicant was involved, on the date of adoption of the contested act, in Iran’s nuclear programme. Consequently, the second ground for including the applicant’s name on the lists at issue is unfounded.
5.      The past nature of the applicant’s activities set out in the grounds for listing
77      The Council argues that nothing prevents it from adopting restrictive measures with respect to certain behaviour that took place in the past, despite the lack of evidence to show that the perpetrator of the act in question is presently committing or participating in such behaviour. In that regard, according to the Council, even if the applicant succeeds in demonstrating that he is no longer the Deputy Head of the AEOI or that the AMAD Plan has ended, the continued inclusion of his name on the lists at issue was justified. To that effect, the Council, citing the two press articles published on the BBC’s website referred to in paragraph 49 above, observes that, despite the EU’s efforts to preserve the JCPOA, the Islamic Republic of Iran has recently scaled back the commitments under that plan by undertaking activities which are directly related to uranium enrichment. Therefore, according to the Council, there is a not insignificant risk that the skill-set of the applicant may again become important for the Iranian authorities.
78      As regards whether the grounds for including the applicant’s name on the lists at issue refer to the applicant’s present or past activities, the Council acknowledged at the hearing that the first ground for listing, namely that the applicant is a Deputy Head of the AEOI, is drafted in the present tense. By contrast, the Council submitted, in essence, that the second ground for listing, namely that the applicant is involved in Iran’s nuclear programme, is drafted in the past tense, with the result that it does not relate to the applicant’s involvement in that programme on the date of adoption of the contested measure, but to the fact that he was involved in it, which implies a risk that he might be involved in it in the future.
79      That argument of the Council cannot succeed. It must be stated that both grounds for listing are drafted in the present tense so that it must be understood that, by those grounds, the Council was referring to the applicant’s activities taking place on the date of adoption of the contested measure. As regards the second ground for listing, contrary to what the Council claims, the use, in English, of the present perfect tense (‘has been involved in the Iranian nuclear programme since at least 2002’) does not mean that the applicant’s involvement in the Iranian nuclear programme is limited to the past. The use, in other language versions of the contested act/measure, including in particular the French version, of the present indicative (‘participe au programme nucléaire iranien depuis 2002 au moins’) confirms that conclusion.
80      By claiming that the retention of the applicant’s name on the lists at issue is justified by his past activities, the Council replaces the grounds on which the contested measure is based, which the Court cannot accept (see, to that effect, judgment of 26 October 2012, Oil Turbo Compressor v Council, T‑63/12, EU:T:2012:579, paragraph 29 and the case-law cited).
81      In any event, it should be borne in mind that, according to the case-law, the criterion for inclusion on the lists in question, relating to the provision of support for Iran’s proliferation-sensitive nuclear activities, implies that the existence of a direct or indirect link is established between the activities of the person or entity concerned and nuclear proliferation (judgment of 25 March 2015, Central Bank of Iran v Council, T‑563/12, EU:T:2015:187, paragraph 66).
82      Furthermore, it has been held that the various provisions of Decision 2010/413 and Regulation No 267/2012 providing for funds to be frozen are worded in general terms (‘are engaged in, directly associated with, or providing support’) and make no reference to conduct prior to a decision to freeze funds (judgment of 28 November 2013, Council v
Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 85).
83      In addition, it must be borne in mind that the restrictive measures against Iran are aimed at preventing the development of nuclear proliferation by applying pressure on the Islamic Republic of Iran to end its proliferation-sensitive nuclear activities. It is apparent from both the scheme and the general purpose of Decision 2010/413, Regulation No 961/2010 and Regulation No 267/2012 that their objective is to prevent proliferation-sensitive nuclear activities in that state and that the fund‑freezing measures imposed on the basis of them are intended to be preventive (see, to that effect, judgment of 21 December 2011, Afrasiabi and Others, C‑72/11, EU:C:2011:874, paragraph 44).
84      It follows that the adoption of restrictive measures against a person does not presuppose that that person has actually previously acted reprehensibly; the risk that that person may do so in the future may be sufficient (see, to that effect, judgment of 28 November 2013, Council v
Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 84).
85      Thus, while actual involvement in Iran’s nuclear programme prior to the adoption of the restrictive measures cannot be required, the existence of a direct or indirect link between a person’s activities and nuclear proliferation is a condition for the inclusion of that person’s name on the lists in question (see, to that effect, judgment of 7 March 2017, Neka Novin v Council, T‑436/14, not published, EU:T:2017:142, paragraph 30).
86      In the present case, taken in isolation, the applicant’s previous employment with the AEOI and, assuming it is proved, his former involvement in Iran’s nuclear programme, cannot justify the inclusion of his name on the lists at issue. If the Council wished to rely on the applicant’s previous employment and on his former involvement in Iran’s nuclear programme, and on the risk that, in the light of his knowledge and skills, the applicant might provide support for Iran’s proliferation-sensitive nuclear activities, it was for the Council to put forward sound and consistent evidence from which it might reasonably be inferred that the applicant maintained links with the AEOI and with Iran’s nuclear programme, or, more generally, with proliferation-sensitive nuclear activities, on the date of adoption of the contested measure, justifying the inclusion of his name on the lists at issue, after the termination of his employment with that organisation and after the end of his involvement in Iran’s nuclear programme (judgment of 18 February 2016, Jannatian v Council, T‑328/14, not published, EU:T:2016:86, paragraph 40).
87      However, it must be held that the Council has not submitted any evidence to that effect. In that regard, as was established in paragraph 51 above, there is no need to take into account, in the context of the examination of the lawfulness of the contested measure, the articles published by the BBC referred to in paragraph 49 above. In any event, it should be noted that those articles refer generally to the situation of Iran with regard to the JCPOA and do not mention the applicant.
88      It is true that the second ground for listing refers to the applicant’s status as former head of procurement and logistics at the AMAD Plan, where he was responsible for using front companies such as Kimia Madan. In other words, according to the second ground for listing, those circumstances no longer obtain. Nevertheless, the Council, in the second ground for listing, refers to those circumstances in order to support the finding that the applicant was involved, on the date of adoption of the contested measure, in Iran’s nuclear programme. Moreover, in any event, the Council has not put forward any evidence to demonstrate, for the purposes of the case-law cited in paragraph 81 above, that the applicant had, on the date of adoption of the contested measure, links with the AMAD Plan, which had, moreover, been discontinued at the end of 2003, and with Kimia Madan.
89      It follows from all of the foregoing that the Council erred in its assessment of the facts in taking the view that, on the date of adoption of the contested measure, the applicant was Deputy Head of the AEOI and that he was involved in Iran’s nuclear programme.
90      Accordingly, the contested measure must be annulled without there being any need to examine the other arguments put forward by the applicant in the context of the first and third pleas. It is not moreover necessary to examine the other pleas raised by the applicant in support of his action.
D.      The consequences of the present judgment for Decision 2019/870
91      In response to a question put by the Court, the applicant submits, in essence, that if the Court annuls the contested measure, the Council should withdraw Decision 2019/870.
92      In response to that same question, the Council observes that the applicant sought annulment of the contested measure only in so far as it concerns him. In addition, it indicated that, if the Court were to annul that measure, the annulment would apply only to the latter. It also contended that the General Court was bound by the form of order sought by the applicant and that it could not rule beyond it. Lastly, the Council stated that Decision 2019/870 had been replaced by Decision (CFSP) 2020/849 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2020 L 196, p. 8).
93      It should be noted that the present judgment seeks only the annulment of the contested measure, namely Implementing Regulation 2019/855. It cannot therefore automatically lead to the annulment of Decision 2019/870.
94      However, Decision 2019/870’s remaining applicable even if the contested measure is annulled is liable seriously to jeopardise legal certainty, since those two acts impose on the applicant measures which are identical (judgment of 17 April 2013, TCMFG v Council, T‑404/11, not published, EU:T:2013:194, paragraph 43).
95      Furthermore, in order to comply with the present judgment and to implement it fully, the Council is required to have regard not only to the operative part of that judgment but also to the grounds constituting its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the grounds for including the applicant’s name on the lists at issue held to be illegal in so far as they are vitiated by errors of assessment and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the Council must take into account (see, to that effect, judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 60 and the case-law cited).
96      However, although a finding of illegality emerging from the grounds of a judgment annulling a measure primarily requires the institution which adopted the measure to eliminate that illegality in the measure intended to replace the annulled measure, it may also, in so far as it relates to a provision with specific scope in a given area, give rise to other consequences for that institution (see judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 61 and the case-law cited).
97      In cases such as this, concerning the annulment of an implementing regulation amending the list in Annex IX to Regulation No 267/2012 – a list which must be reviewed at regular intervals pursuant to Article 46(7) of Regulation No 267/2012 – the institution which adopted the measure is first of all under an obligation to ensure that subsequent fund-freezing measures adopted after the annulling judgment and governing periods subsequent to that judgment are not vitiated by the same illegalities (see, to that effect, judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 62 and the case-law cited).
98      It is in addition to be acknowledged that, by virtue of the retroactive effect of annulling judgments, the finding of unlawfulness takes effect from the date on which the annulled measure entered into force (see judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 64 and the case-law cited). It follows that in the present case the Council may also be under an obligation pursuant to Article 266 TFEU to eliminate from the provisions already adopted when the annulling judgment was delivered the grounds for including the applicant’s name with the same effect as the grounds held to be unlawful, if those grounds are substantiated by the same evidence as that examined by the General Court in the present judgment (see, by analogy, judgment of 26 April 1988, Asteris and Others v
Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 30). That therefore applies to provisions subsequent to the adoption of the contested measure containing grounds for listing which are identical to those held to be unlawful in the present annulment judgment and which are based on the same evidence (see, by analogy, judgment of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 31), as in the case of Decision 2019/870, whose date of entry into force is the same as that of the contested measure, provided that it contains grounds identical to those held to be unlawful in the present judgment for annulment and that it is based on the same evidence.
IV.    Costs
99      Under Article 134(1) of the 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.
100    Since the Council has been unsuccessful, it must be ordered to bear its own costs and to pay those of the applicant, in accordance with the form of order sought by the latter.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.      Annuls Implementing Regulation (EU) 2019/855 of the Council of the European Union of 27 May 2019 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran in so far as it concerns Mr Sayed Shamsuddin Borborudi;
2.      Orders the Council to pay the costs.
Gervasoni
Madise
Martín y Pérez de Nanclares
Delivered in open court in Luxembourg on 9 June 2021.
E. Coulon
S. Papasavvas
Registrar
President
Table of contents
I. Background to the dispute
A. Legal context of the Council’s decisions relating to restrictive measures against Iran
B. The inclusion of the applicant’s name on the lists at issue
C. Retention of the applicant’s name on the lists at issue
II. Procedure and forms of order sought
III. Law
A. The first head of claim
B. The applicant’s second head of claim
C. Substance
1. The grounds for listing
2. The evidence
3. The applicant’s capacity as Deputy Head of the AEOI
4. The applicant’s involvement in the Iranian nuclear programme
5. The past nature of the applicant’s activities set out in the grounds for listing
D. The consequences of the present judgment for Decision 2019/870
IV. Costs
*      Language of the case: English.
1      This judgment is published in extract form.