JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
6 September 2013 (*)
(Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Obligation to state reasons – Manifest error of assessment)
In Case T‑57/12,
Good Luck Shipping LLC, established in Dubai (United Arab Emirates), represented by F. Randolph QC, M. Lester, Barrister, and M. Taher, Solicitor,
applicant,
v
Council of the European Union, represented by V. Piessevaux and B. Driessen, acting as Agents,
defendant,
APPLICATION for annulment of, first, Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 319, p. 71), second, Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 319, p. 11) and, third, Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010 (OJ 2012 L 88, p. 1), in so far as those provisions concern the applicant,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and M. van der Woude, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 13 March 2013,
gives the following
Judgment
Background to the dispute
1        The applicant, Good Luck Shipping LLC, is a shipping agent based in Dubai (United Arab Emirates). It organises the docking of ships and cargo loading and unloading.
2        On 26 July 2010, 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). Article 20(1) of that decision provides for the freezing of the funds and economic resources of the persons and entities referred to on the lists in Annexes I and II to the decision.
3        On 25 October 2010, following the adoption of Decision 2010/413, 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). Article 16(2) of Regulation No 961/2010 provides that the funds and economic resources of the persons, entities and bodies listed in Annex VIII to that regulation are to be frozen.
4        On 1 December 2011, the Council adopted Decision 2011/783/CFSP amending Decision 2010/413 (OJ 2011 L 319, p. 71), whereby, inter alia, it added the applicant to the list in Annex II to Decision 2010/413.
5        On the same day, the Council adopted Implementing Regulation (EU) No 1245/2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11), by which, inter alia, it added the applicant to the list in Annex VIII to Regulation No 961/2010.
6        In Decision 2011/783 and in Implementing Regulation No 1245/2011, the Council set out the following evidence by way of justification for freezing the applicant’s funds and economic resources:
‘Company acting on behalf of IRISL [Islamic Republic of Iran Shipping Lines]. [The applicant] was established to replace the Oasis Freight Company alias Great Ocean Shipping Services, which was sanctioned by the EU and wound up by court order. [The applicant] issued false transport documents for IRISL and entities owned or controlled by IRISL. Acts on behalf of EU-designated HDSL [Hafize Darya Shipping Lines] and SAPID [Sapid Shipping] in the United Arab Emirates. Set up in June 2011 as a result of sanctions, to replace Great Ocean Shipping Services and Pacific Shipping.’
7        By letter of 5 December 2011, the Council notified the applicant that it had been included on the lists of persons and entities covered by the restrictive measures against Iran in Annex II to Decision 2010/413 and Annex VIII to Regulation No 961/2010, respectively.
8        By letter of 7 February 2012, the applicant requested the Council to provide the documents and evidence relating to the inclusion of its name on the lists referred to at paragraph 7 above and to review its inclusion. It also submitted its comments on the inclusion.
9        On 23 March 2012, the Council adopted Regulation (EU) No 267/2012 on restrictive measures against Iran and repealing Regulation No 961/2010 (OJ 2012 L 88, p. 1). Article 23(2) of Regulation No 267/2012 provides that the funds and economic resources of the persons, entities and bodies listed in Annex IX to the regulation are to be frozen. The applicant’s name appears on that list for the same reasons as those set out in paragraph 6 above which were given to justify its inclusion on the lists in Annex II to Decision 2010/413 and Annex VIII to Regulation No 961/2010, respectively (‘the lists at issue’).
10      By letter of 31 May 2012, the Council provided, in response to the applicant’s letter of 7 February 2012, first, extracts from two proposals for the inclusion of the applicant on the lists at issue from Member States and, second, two documents of a general nature relating to the adoption of restrictive measures, namely reports of meetings of a Council working group and a note from the General Secretariat of the Council to the Permanent Representatives Committee (Coreper).
Procedure and forms of order sought by the parties
11      By application lodged at the Registry of the General Court on 9 February 2012, the applicant brought the present action.
12      By document lodged at the Court Registry on 30 April 2012, the applicant amended its heads of claim in the light of the adoption of Regulation No 267/2012.
13      On hearing the report of the Judge-Rapporteur, the General Court (Fourth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of the Rules of Procedure of the General Court, put a question to the Council, which replied within the prescribed time limit, and a question to the applicant, which it invited it to reply to its question at the hearing.
14      The parties presented oral argument and answered written and oral questions put by the Court at the hearing on 13 March 2013.
15      The applicant claims that the Court should:
–        annul Decision 2011/783, Implementing Regulation No 1245/2011 and Regulation No 267/2012, in so far as those measures affect the applicant;
–        order the Council to pay the costs.
16      The Council contends that the Court should:
–        dismiss the action as unfounded;
–        order the applicant to pay the costs.
Law
Admissibility of the first plea, as reformulated following the amendment of the heads of claim
17      As is clear from paragraph 9 above, since the application was lodged, Regulation No 961/2010 has been repealed and replaced by Regulation No 267/2012. The applicant’s name was included in Annex IX to Regulation No 267/2012 for the same reasons as those given in Decision 2011/783 and Implementing Regulation No 1245/2011. The applicant amended its original heads of claim within the period prescribed, so that they are now directed against Regulation No 267/2012, as well as against Decision 2011/783 and Implementing Regulation No 1245/2011 (together, ‘the contested measures’), which the Council has not contested in its written pleadings.
18      However, whilst it has not formally raised a plea of inadmissibility, the Council argued at the hearing that, by extending the first plea so that it now also claims that the Council failed to indicate which category of persons or entities targeted by Article 23(2) of Regulation No 267/2012 the applicant falls within, the applicant has introduced a new plea, which should be dismissed as inadmissible.
19      It must be borne in mind in this connection that, when a decision or a regulation of direct and individual concern to an individual is replaced, during the proceedings, by another measure with the same subject matter, this is to be considered a new factor allowing the applicant to amend its claims and pleas in law. It would be contrary to the principle of due administration of justice and to the requirements of procedural economy to oblige the applicant to make a fresh application. Moreover, it would be inequitable if the institution in question were able, in order to counter criticisms of a measure contained in an application brought before the European Union judicature against that measure, to amend the contested measure or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending his original pleadings to the later measure or of submitting supplementary pleadings directed against that measure (see, by analogy, Case T-256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II‑3019, paragraph 46 and case-law cited).
20      According to that case‑law, the parties must be allowed to reformulate their claims, pleas and arguments in the light of that new factor, which implies, for them, the right to submit supplementary claims, pleas in law and arguments (see, to that effect, People’s Mojahedin Organization of Iran v Council, paragraph 19 above, paragraph 47).
21      It follows that no valid criticism may be leveled at the applicant for raising a new plea as part of the amendment of its heads of claim.
22      In any event, it is important to note that it cannot be claimed that the applicant has raised a new plea alleging that the Council failed to indicate which category of persons or entities targeted by Article 23(2) of Regulation No 267/2012 it falls within. By letter of 30 April 2012, the applicant expressly requested the General Court to regard all its pleas as also being directed against Regulation No 267/2012. In the application, it made the same complaint concerning the persons and entities targeted by Articles 19(1)(b) and 20(1)(b) of Decision 2010/413 and Article 16(2) of Regulation No 961/2010.
23      The Council’s argument in that regard must, therefore, be rejected as unfounded.
Substance
24      The applicant puts forward four pleas in law in support of its action. These allege: (i) infringement of the obligation to state reasons; (ii) infringement of the criteria for compiling the lists at issue, manifest error of assessment or lack of adequate legal basis; (iii) infringement of its rights of defence and the right to effective judicial protection; and (iv) infringement of its right to property and its freedom to conduct business.
The first plea, alleging infringement of the obligation to state reasons
25      The applicant submits that the Council is in breach of the obligation to state reasons. It relies, in essence, on four arguments. First, the applicant claims that the Council failed to indicate which category of persons or entities targeted by Article 19(1)(b) and Article 20(1)(b) of Decision 2010/413, Article 16(2) of Regulation No 961/2010 and Article 23(2) of Regulation No 267/2012 it falls within. Second, the Council failed to put forward the reasons justifying its view that the applicant was acting on behalf of, or controlled by, IRISL. Third, the Council failed to explain in what way the applicant was connected with the extension of Iran’s nuclear and ballistic programmes. Fourth, the Council cannot now, before the Court, put forward a new reason for the applicant’s name being added to the lists at issue.
26      The Commission contests the merits of the applicants’ arguments.
27      According to a consistent body of case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the European Union judicature and, second, to enable that judicature to review the legality of that act (see Case C‑417/11 P Council v Bamba [2012] ECR I‑0000, paragraph 49 and the case‑law cited).
28      The statement of reasons required by Article 296 TFEU and, in particular, in the present case, by Article 24(3) of Decision 2010/413, Article 36(3) of Regulation No 961/2010 and Article 46(3) of Regulation No 267/2012, must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review (see, to that effect, Council v Bamba, paragraph 27 above, paragraph 50).
29      The obligation to state reasons thus laid down constitutes an essential principle of European Union law which may be derogated from only for compelling reasons. The statement of reasons must therefore, in principle, be notified to the person concerned at the same time as the act adversely affecting him, for failure to do so cannot be remedied by the fact that the person concerned learns the reasons for the measure during the proceedings before the European Union judicature. Furthermore, observance of the obligation to state reasons is all the more important in the case of an initial decision freezing an entity’s funds, because it constitutes the sole safeguard enabling the party concerned to make effective use of the legal remedies available to it to challenge the lawfulness of that decision, given that it has no right to be heard before the decision is adopted (Case T‑390/08 Bank Melli Iran v Council [2009] ECR II‑3967, paragraph 80).
30      Therefore, unless overriding considerations to do with the security of the European Union or of its Member States or with the conduct of their international relations militate against the communication of certain matters, the Council is bound, by virtue of Article 24(3) of Decision 2010/413, to apprise the entity affected by a measure adopted under Article 20(1) of Decision 2010/413 of the actual specific reasons why it considers that provision to be applicable to it. It must therefore state the facts and points of law on which the legal justification of the measure is based and the considerations which led the Council to adopt it (see, to that effect, Bank Melli Iran v Council, paragraph 29 above, paragraph 81 and case-law cited).
31      The statement of reasons required by Article 296 TFEU must, however, be appropriate to the measure at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Council v Bamba, paragraph 27 above, paragraph 53 and the case‑law cited).
32      In particular, the reasons given for a measure adversely affecting a person are sufficient if it was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him (see Council v Bamba, paragraph 27 above, paragraph 54 and the case-law cited).
33      It is in the light of the above considerations that the first plea must be examined.
34      In the present case, as is apparent from the extract from the contested measures quoted at paragraph 6 above, the inclusion of the applicant on the lists at issue is based on the claim, referred to in the first sentence of that extract, that it acted on behalf of IRISL. Further information is provided in that regard in the third and fourth sentences of that extract, which state that the applicant, first, issued false transport documents for IRISL and entities owned or controlled by IRISL and, second, acted on behalf of HDSL and SAPID, which were themselves targeted by the restrictive measures against Iran. Moreover, according to the second and fifth sentences of the extract, the applicant was established in 2011 to replace the Oasis Freight Company, alias Great Ocean Shipping Services (wound up by court order), and Pacific Shipping, which were also targeted by the restrictive measures against Iran.
35      In the first place, with regard to Decision 2011/783 and Regulation No 267/2012, the claim that the applicant acted on behalf of IRISL is expressly linked to the rule set out in Article 20(1)(b) of Decision 2010/413 and Article 23(2)(e) of Regulation No 267/2012, respectively, which provide, inter alia, that all the funds and economic resources of the legal persons, entities or bodies identified as acting on behalf of IRISL are to be frozen. Moreover, the fact that the applicant was included on the lists in Annex II to Decision 2010/413 and Annex IX to Regulation No 267/2012 – in Title III of those provisions respectively – confirms that the applicant was included on the lists at issue as an entity targeted by Article 20(1)(b) of Decision 2010/413 and Article 23(2)(e) of Regulation No 267/2012.
36      Furthermore, with regard to the inclusion of the applicant in Annex VIII to Regulation No 961/2010 by Implementing Regulation No 1245/2011, it should be noted that Regulation No 961/2010 makes no specific provision for freezing the funds and economic resources of persons and entities acting on behalf of IRISL. However, Article 16(2)(a) of Regulation No 961/2010, along with Article 20(1)(b) of Decision 2010/413 and Article 23(2)(a) of Regulation No 267/2012, lay down a general rule requiring the freezing of all the funds and economic resources belonging to the persons, entities or bodies identified as acting on behalf of a person or entity engaged in, directly associated with, or providing support for Iran’s proliferation-sensitive nuclear activities or for the development of nuclear weapon delivery systems (‘nuclear proliferation’).
37      It can be readily understood from the reasons given in Implementing Regulation No 1245/2011 that the inclusion of the applicant on the lists at issue is based on the general rule set out at paragraph 36 above. As mentioned at paragraph 34 above, the inclusion of the applicant is based on the claim that it acted on behalf of IRISL. As is apparent from point 26 in Table B of Annex VIII to Regulation No 961/2010, IRISL was included on the list in that annex essentially because of its links with nuclear proliferation.
38      The applicant was, therefore, wrong to claim that the category of persons and entities targeted by the restrictive measures within which it falls was not identified in the contested measures. Accordingly, that argument must be rejected as unfounded.
39      In second place, with regard to the question whether the grounds relied on by the Council to justify the applicant’s inclusion on the lists at issue, as set out at paragraph 34 above, give the actual specific reasons for that inclusion, within the meaning of the case‑law cited at paragraph 30 above, it has been held that, where the Council bases its decision to adopt restrictive measures against a person or entity on the premiss that such person or entity acts on behalf of IRISL, within the meaning of Article 20(1)(b) of Decision 2010/413 and Article 23(2)(e) of Regulation No 267/2012, it is required to specify the activities carried out by that person or entity on behalf of IRISL which justify the adoption of restrictive measures against that person or entity (see, to that effect, Case T‑562/10 HTTS v Council [2011] ECR II‑0000, paragraph 38).
40      Similarly, where the Council adopts restrictive measures against a person or entity on the ground that such person or entity acts, within the meaning of Article 20(1)(b) of Decision 2010/413, Article 16(2)(a) of Regulation No 961/2010 and Article 23(2)(a) of Regulation No 267/2012, on behalf of a person or entity identified as engaged in, directly associated with, or providing support for nuclear proliferation, it is required to specify the activities carried out by the former person or entity on behalf of the latter person or entity which justify the adoption of restrictive measures against the former.
41      In the present case, first of all, it should be observed that the third sentence of the statement of reasons for the contested measures indicates that the activities carried out by the applicant on behalf of IRISL consisted in issuing false transport documents for IRISL and entities owned or controlled by IRISL. It is true that that sentence does not provide any details regarding either the dates on which such activities were carried out or the entities, other than IRISL, for which false documents were issued. On the other hand, first, given that it is explained in the last sentence of the statement of reasons that the applicant was established in 2011 and its name was included on the lists in Annex II to Decision 2010/413 and Annex VIII to Regulation No 961/2010 for the first time on 1 December 2011, the period in which it is claimed the activities took place is quite short. Second, the Council clearly identified at least one beneficiary of those activities, namely IRISL. Accordingly, it must be concluded that the ground relied on by the Council is, in itself, sufficient for the purpose of specifying, in accordance with the requirements set out at paragraphs 39 and 40 above, the nature of the activities carried out by the applicant on behalf of IRISL.
42      Next, according to the fourth sentence of the statement of reasons, the applicant acted on behalf of HDSL and SAPID. Those companies are themselves targeted by the restrictive measures on the basis that they are subsidiaries of IRISL and act on its behalf, as is apparent, with regard to HDSL, from point 1(b) of Table B in Title II of Annex II to Decision 2010/413, point 26(b) of Table B in Annex VIII to Regulation No 961/2010 and point 1(b) of Table B in Title III of Annex IX to Regulation No 267/2012, and, with regard to SAPID, point 1(q) of Table B in Title III of Annex II to Decision 2010/413, point 26(q) of Table B in Annex VIII to Regulation No 961/2010 and point 1(q) of Table B in Title III of Annex IX to Regulation No 267/2010. Therefore, even though, taken individually and in the absence of more specific detail concerning the nature of the activities carried out on behalf of HDSL and SAPID, the ground set out in the fourth sentence of the statement of reasons for the contested measures would not be sufficient justification for those measures with regard to the applicant, it must be regarded, in the present case and in view of the findings made in the previous paragraph, as constituting specific detail concerning the activities carried out by the applicant on behalf of IRISL.
43      Lastly, the second and fifth sentences of the statement of reasons for the contested measures, which state that the applicant was set up to replace two entities subject to restrictive measures, also constitute specific detail concerning the links between the applicant and IRISL, even though they would be insufficient, in themselves, to justify the adoption of the contested measures against the applicant. Indeed, those entities were themselves subject to restrictive measures because of their links with IRISL, as is apparent, with regard to Oasis Freight Agency, from point 1(p) of Table B in Title III of Annex II to Decision 2010/413, point 26(p) of Table B in Annex VIII to Regulation No 961/2010 and point 1(p) of Table B in Title III of Annex IX to Regulation No 267/2012 and, with regard to Pacific Shipping, point 130 of Table B in Title III of Annex II to Decision 2010/413, point 243 of Table B in Annex VIII to Regulation No 961/2010 and point 130 of Table B in Title III of Annex IX to Regulation No 267/2012.
44      It follows from the above that, contrary to the applicant’s claims, the contested measures specify the nature of the activities which it carried out on behalf of IRISL, in accordance with the requirements set out at paragraph 39 and 40 above, and that the Council thus provided in those measures the actual specific reasons, within the meaning of the case‑law cited at paragraph 30 above, which led it to adopt restrictive measures against the applicant. Accordingly, the Council complied with the obligation to state reasons for the contested measures.
45      The conclusion set out at paragraph 44 is not called into question by the applicant’s other arguments.
46      First, with regard to the argument that the Council failed to explain the reasons why it takes the view that the applicant was controlled by IRISL, it is sufficient to note that there is nothing in the statement of reasons for the contested measures to suggest that the Council based its decision on the ground that the applicant was controlled by IRISL. That argument must therefore be rejected as ineffective.
47      Second, the applicant submits that the Council failed to explain in what way it was connected with the extension of Iran’s nuclear and ballistic programmes. It is sufficient to observe in that regard, first, that it was found at paragraph 44 above that the Council provided in the contested measures the actual specific reasons for which it took the view that the applicant acted on behalf of IRISL. Second, it is apparent from the application that the applicant was aware of the circumstances in which the restrictive measures were adopted. Accordingly, it must be concluded that the applicant was in a position to understand in what way it was alleged to be connected with the extension of Iran’s nuclear and ballistic programmes. The applicant’s argument must, therefore, be rejected as unfounded.
48      Third, the applicant maintains that the Council cannot, at the stage of the present proceedings, seek to identify a new reason for its inclusion on the lists at issue. While it is true that, as established by the case‑law cited at paragraph 29 above, failure to provide a statement of reasons cannot be remedied by the fact that the person concerned is apprised of the reasons for the measure during the proceedings before the European Union judicature, it is none the less clear that, as was held at paragraph 44 above, the reasoning provided in the contested measures complies with the requirements pertaining to the obligation to state reasons incumbent on the Council. Accordingly, the applicant’s argument in that regard must be rejected as ineffective.
49      In the light of the foregoing considerations, the first plea must be rejected as in part ineffective and in part unfounded.
The second plea, alleging infringement of the criteria for listing, a manifest error of assessment, or lack of an adequate legal basis
50      By the second plea, the applicant submits that the Council infringed the criteria applicable to listing and committed a manifest error of assessment or that the contested measures are vitiated by the lack of an adequate legal basis. In essence, it puts forward three complaints in that regard. First, there is no basis for its inclusion on the lists at issue, given that the adoption of restrictive measures against IRISL was unjustified and unlawful, for the reasons relied on by IRISL in its application in Case T‑489/10 IRISL and Others v Council. Second, the Council did not carry out an assessment of the circumstances of the case in order to examine whether the applicant is owned or controlled by IRISL or, in the alternative, it disregarded the criteria applicable to listing. Furthermore, the reasons relied on against the applicant are incorrect given, in particular, that it did not act on behalf of IRISL and did not assist in circumventing the restrictive measures against that company and, moreover, there is not a sufficiently close connection between the applicant and nuclear proliferation. Third, the applicant adds, in the reply, that the Council has failed to put forward any evidence establishing that it acted on behalf of IRISL.
51      The Council contends in its written pleadings that the first two complaints set out in paragraph 50 are unfounded and that the third complaint constitutes a new plea, which is inadmissible under Article 48(2) of the Rules of Procedure, since it was not raised in the application.
52      Furthermore, at the hearing, in response to the Court’s questions concerning the admissibility of the applicant’s first complaint, as set out at paragraph 50 above, the Council submitted that that complaint is inadmissible under Article 44(1)(c) of the Rules of Procedure.
53      It is necessary to examine, first of all, whether the applicant’s first and third complaints, set out at paragraph 50 above, are admissible, before going on to examine whether the second plea is well founded.
–       Whether certain complaints raised by the applicant are admissible
54      First of all, with regard to the admissibility of the complaint that the adoption of restrictive measures against IRISL is unlawful, it should be recalled that, since the conditions for the admissibility of an action and of the complaints set out therein are a matter of public policy, the Court may examine them of its own motion, in accordance with Article 113 of the Rules of Procedure (see, to that effect, the order of the Court of Justice of 15 April 2010 in Case C‑517/08 P Makhteshim-Agan Holding and Others v Commission, not published in the ECR, paragraph 54, and Case T‑437/05 Brink’s Security Luxembourg v Commission [2009] ECR II‑3233, paragraph 54 and the case‑law cited).
55      Under Article 21 of the Statute of the Court of Justice of the European Union and Article 44(1)(c) of the Rules of Procedure of the General Court, each application is required to state the subject matter of the proceedings and give a summary of the pleas in law on which the application is based.
56      According to case‑law, the information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the General Court to decide the case. The same considerations apply to all claims, which must be accompanied by pleas and arguments enabling both the defendant and the Court to assess their validity (Case T-43/92 Dunlop Slazenger v Commission [1994] ECR II‑441, paragraph 183). Moreover, a general reference in the application to the pleas and arguments relied on in support of an action brought by another applicant in a related case does not meet that requirement (see, to that effect and by analogy, the judgment of 24 March 2011 in Case T‑376/06 Legris Industries v Commission, not published in the ECR, paragraph 32).
57      In the present case, it is clear that no argument has been put forward to substantiate the complaint that the restrictive measures against IRISL are unlawful. Furthermore, it should be noted that, in addition to the fact that the applicant does no more than refer to the pleas and arguments put forward by IRISL in its application in Case T‑489/10 IRISL and Others v Commission, the applicant claims that it is not required to repeat those pleas and arguments in the present case.
58      In those circumstances, that complaint must be rejected as inadmissible under Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure.
59      Second, as regards the admissibility of the complaint that the Council has not furnished proof of the allegations made against the applicant, it is apparent from Article 48(2) of the Rules of Procedure that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.
60      In the present case, it is common ground that the complaint that no evidence has been furnished was raised for the first time at the reply stage. However, it was not until 31 May 2012, that is, during the proceedings before the General Court, that the applicant became aware that the Council had decided to add its name to the lists at issue without being in possession of any evidence. Indeed, as stated at paragraphs 8 and 10 above, the applicant requested the Council to provide evidence relating to its inclusion on the lists of persons and entities targeted by the restrictive measures against Iran by letter of 7 February 2012, to which the Council replied by letter of 31 May 2012. The Council’s letter contains, first, extracts from two proposals from Member States that the applicant be included on the lists at issue and, second, documents of a general nature, namely reports of meetings of a Council working group and a note to Coreper. However, that letter does not contain any evidence justifying the inclusion of the applicant on the lists at issue. Similarly, the lack of evidence became apparent to the applicant with the service of the defence, also dated 31 May 2012, since the Council did not put forward any material evidence in its defence to justify the contested measures, the merits of which were disputed in the application.
61      In those circumstances, even though the complaint relating to the lack of evidence was raised only at the reply stage, the Court finds that it is admissible.
–       Whether the complaints alleging incorrect assessment of the facts and lack of evidence are well founded
62      As pointed out at paragraph 50 above, the applicant maintains, inter alia, that the grounds relied on against it are incorrect and the Council has failed to prove that it acted on behalf of IRISL.
63      The Council contends that those submissions are unfounded. It argues, in particular, first, that the applicant acknowledges in its written pleadings that there is a connection between the applicant and the persons responsible for nuclear proliferation. Second, in the rejoinder and at the hearing, the Council referred to new evidence demonstrating the connections alleged to exist between the applicant, on the one hand, and Great Ocean Shipping Services and IRISL on the other.
64      In that regard, it must be recalled that, according to case‑law, judicial review of the lawfulness of a measure whereby restrictive measures have been imposed on an entity extends to the assessment of the facts and circumstances relied on as justifying the measure, 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 European Union judicature (see, to that effect, Bank Melli Iran v Council, paragraph 29 above, paragraphs 37 and 107).
65      In the present case, it is clear that the Council has not furnished any evidence in support of its claim that the applicant acted on behalf of IRISL.
66      First, in response to the applicant’s request to provide documents and information relating to the inclusion of its name on the lists at issue, the Council simply sent to the applicant, by letter of 31 May 2012, two kinds of document. First of all, it forwarded to the applicant two proposals for inclusion from Member States. However, in addition to the fact that those proposals do not fully address the grounds relied on as regards the applicant in the contested measures, it was found, at paragraph 60 above, that no evidence was furnished justifying the inclusion of the applicant on the lists at issue. Second, the Council’s file contains documents of a general nature, namely reports of meetings of a Council working group and a note to Coreper. While those documents concern restrictive measures, they contain neither specific details nor evidence pertaining to the applicant.
67      Second, in the present proceedings, the Council has relied, for the purpose of rebutting the applicant’s submissions, on unsubstantiated general statements.
68      Accordingly, it must be concluded that the Council has failed to substantiate the facts alleged against the applicant. It was therefore wrong to include the applicant’s name on the lists at issue in the contested measures.
69      The conclusion set out in the above paragraph cannot be called into question by the Council’s arguments.
70      First, the Council’s argument that the applicant acknowledged in its written pleadings that a connection exists between the applicant and the persons responsible for nuclear proliferation cannot succeed. Even if the applicant had accepted that such a connection existed, it must be recalled that the reason given in the contested measures for the inclusion of the applicant on the lists at issue is that acted on behalf of IRISL. In those circumstances, in the absence of any reference to a connection between the applicant and those responsible for nuclear proliferation in the grounds of the contested measures, the Court cannot, in assessing whether the restrictive measures adopted against the applicant are well founded, take account of the existence of such a connection without substituting its own assessment for that of the Council.
71      Second, the evidence put forward by the Council in the rejoinder and at the hearing to illustrate the close connection between the applicant, on the one hand, and Great Ocean Shipping Services and IRISL on the other, cannot be accepted. That evidence was submitted at a late stage in the proceedings, without the Council explaining why it had been unable to refer to that evidence earlier in the proceedings. That evidence is, therefore, inadmissible under Article 48(2) of the Rules of Procedure. In any event, it must be observed that the Council merely formulated simple allegations, the evidence in question being wholly unsubstantiated.
72      In view of all the foregoing considerations, the complaints relating to the error of assessment and the absence of evidence must be upheld. It follows that the second plea must upheld and the contested measures annulled, in so far as concerns the applicant, without there being any need to examine the third and fourth pleas.
The effects of the annulment
73      It should be noted, first, that Implementing Regulation No 1245/2011, which amended the list in Annex VIII to Regulation No 961/2010, ceased to have legal effect after the repeal of Regulation No 961/2010 by Regulation No 267/2012. As a consequence, the annulment of Implementing Regulation No 1245/2011 concerns only the effects which that measure produced between the date of its entry into force and the date of its repeal.
74      Next, as regards Regulation No 267/2012, it must be recalled that, under the second paragraph of Article 60 of the Statute of the Court of Justice, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void are to take effect only as from the date of expiry of the period for bringing an appeal referred to in the first paragraph of Article 56 of that Statute or, if an appeal has been brought within that period, as from the date of dismissal of the appeal (see, by analogy, judgment of 16 September 2011 in Case T‑316/11 Kadio Morokro v Council, not published in the ECR, paragraph 38).
75      Lastly, as regards the temporal effects of the annulment of Decision 2011/783, it must be recalled that, under the second paragraph of Article 264 TFEU, the General Court may, if it considers it necessary, state which of the effects of the act which it has declared void are to be considered definitive.
76      In the present case, if the date when the annulment of Regulation No 267/2012 and that of Decision 2011/783 take effect were to differ, that would be likely to seriously jeopardise legal certainty, since both acts impose identical measures on the applicant. The effects of Decision 2011/783 must therefore be maintained as regards the applicant until the annulment of Regulation No 267/2012 takes effect.
Costs
77      Under Article 87(2) 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. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.      Annuls the following measures, in so far as they concern Good Luck Shipping LLC:
–        Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran;
–        Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran;
–        Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010;
2.      Orders that the effects of Decision 2011/783 be maintained as regards Good Luck Shipping until the annulment of Regulation No 267/2012 takes effect;
3.      Orders the Council of the European Union to bear its own costs and to pay the costs incurred by Good Luck Shipping.
Pelikánová
Jürimäe
Van der Woude
Delivered in open court in Luxembourg on 6 September 2013.
[Signatures]
Table of contents
Background to the dispute
Procedure and forms of order sought by the parties
Law
Admissibility of the first plea, as reformulated following the amendment of the heads of claim
Substance
The first plea, alleging infringement of the obligation to state reasons
The second plea, alleging infringement of the criteria for listing, a manifest error of assessment, or lack of an adequate legal basis
– Whether certain complaints raised by the applicant are admissible
– Whether the complaints alleging incorrect assessment of the facts and lack of evidence are well founded
The effects of the annulment
Costs
* Language of the case: English.