JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
6 September 2013 (*)(1)
(Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Obligation to state reasons – Rights of the defence – Right to effective judicial protection – Error of assessment)
In Case T‑493/10,
Persia International Bank plc, established in London (United Kingdom), represented initially by S. Gadhia and S. Ashley, Solicitors, D. Anderson QC and R. Blakeley, Barrister, and subsequently by S. Ashley and by S. Jeffrey and A. Irvine, Solicitors, D. Wyatt QC and R. Blakeley,
applicant,
v
Council of the European Union, represented by M. Bishop and A. Vitro, acting as Agents,
defendant,
supported by
European Commission, represented by S. Boelaert and M. Konstantinidis, acting as Agents,
intervener,
APPLICATION, first, for annulment of Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2010 L 195, p. 25), Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81), Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 (OJ 2011 L 319, p. 71), Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11), and 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 acts concern the applicant; and, secondly, for a declaration that Article 7(2)(d) of Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1), Article 16(2)(a) of Regulation No 961/2010 and Article 23(2) of Regulation No 267/2012 are inapplicable to the applicant,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová (Rapporteur), President, K. Jürimäe and M. van der Woude, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 3 July 2012,
gives the following
Judgment
Background to the dispute
1        The applicant, Persia International Bank plc, is a public limited company incorporated and having its registered office in the United Kingdom, and authorised and regulated by the Financial Services Authority (‘the FSA’). It began to carry on its banking activities in the United Kingdom in 2001, following the merger of the branches in that country of its two shareholders, Bank Mellat, which controls 60% of its share capital, and Bank Tejarat, which controls the remaining 40%.
2        The present case has been brought in connection with the restrictive measures introduced in order to apply pressure on the Islamic Republic of Iran to end proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems (‘nuclear proliferation’).
3        On 26 July 2010, Bank Mellat and the applicant were entered on the list of entities involved in Iranian nuclear proliferation in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39).
4        Consequently, Bank Mellat and the applicant were listed in Annex V to Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1) by means of Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation No 423/2007 (OJ 2007 L 195, p. 25). As a result of that listing, the funds and economic resources of the applicant were frozen.
5        In Decision 2010/413, the Council of the European Union gave the following reasons in respect of Bank Mellat:
‘Bank Mellat is a state-owned Iranian bank. Bank Mellat engages in a pattern of conduct which supports and facilitates Iran’s nuclear and ballistic missile programmes. It has provided banking services to [United Nations] and [European Union] listed entities or to entities acting on their behalf or at their direction, or to entities owned or controlled by them. It is the parent bank of First East Export Bank which is designated under [United Nations Security Council Resolution] 1929.’
6        The reasons stated in Implementing Regulation No 668/2010 in respect of Bank Mellat are, in essence, the same as those stated in Decision 2010/413.
7        Both in Decision 2010/413 and in Implementing Regulation No 668/2010 the applicant was identified as being ‘60% owned’ by Bank Mellat.
8        The Council informed the applicant by letter of 27 July 2010 that it had been included on the list in Annex II to Decision 2010/413 and on the list in Annex V to Regulation No 423/2007.
9        By letters of 19 and 27 August and 2 and 9 September 2010, the applicant asked the Council to provide it with the information and documents on which it had relied in adopting the restrictive measures against the applicant and against Bank Mellat.
10      In response to the applicant’s requests, the Council stated in its letter of 13 September 2010 that it considered the reference to the applicant being 60% owned by Bank Mellat to be sufficient, having regard to the applicable legislation. As regards access to the file, the Council enclosed with its letter copies of two proposals for the adoption of restrictive measures concerning Bank Mellat and the applicant submitted by Member States and relating, in particular, to the financial services provided by Bank Mellat to entities involved in nuclear proliferation. It also gave the applicant a deadline of 25 September 2010 for submitting its observations on the adoption of restrictive measures in its regard.
11      By letter of 24 September 2010, the applicant asked the Council to review the decision to include it on the lists in Annex II to Decision 2010/413 and Annex V to Regulation No 423/2007.
12      The listing of Bank Mellat and the applicant in Annex II to Decision 2010/413 was maintained by Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81). The reason concerning the applicant is the same as that stated in Decision 2010/413. The reasons stated in respect of Bank Mellat are as follows:
‘Bank Mellat engages in a pattern of conduct which supports and facilitates Iran’s nuclear and ballistic missile programmes. It has provided banking services to UN and EU listed entities or to entities acting on their behalf or at their direction, or to entities owned or controlled by them. It is the parent bank of First East Export Bank which is designated under [United Nations Security Council Resolution] 1929.’
13      Regulation No 423/2007 having been repealed by Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran (OJ 2010 L 281, p. 1), the Council included Bank Mellat and the applicant in Annex VIII to Regulation No 961/2010. Consequently, the applicant’s funds and economic resources were frozen pursuant to Article 16(2) of that regulation. The reason concerning the applicant is the same as that stated in Decision 2010/413. The reasons given for listing Bank Mellat are, in essence, the same as those stated in Decision 2010/644.
14      By letter of 28 October 2010, the Council replied to the applicant’s letter of 24 September 2010 stating that, following a review, it rejected the applicant’s request for its name to be removed from the lists in Annex II to Decision 2010/413 and Annex VIII to Regulation No 961/2010. It explained that the reason given in respect of the applicant was sufficient having regard to the applicable legislation and the case-law. Moreover, it stated that, in its view, the maintenance of the restrictive measures concerning Bank Mellat was justified for the reasons set out in the acts concerned.
15      By letter of 5 January 2011, the applicant claimed that, in its opinion, the review of the restrictive measures against it was vitiated by errors. In particular, it stated that the Council had failed in its letter of 28 October 2010 to give reasons to the requisite legal standard for maintaining those measures.
16      As an annex to its rejoinder, the Council provided the applicant with a copy of a third proposal for the adoption of restrictive measures concerning Bank Mellat and the applicant submitted by a Member State and relating to the financial services provided by Bank Mellat to entities involved in nuclear proliferation.
17      By letter of 29 July 2011, the applicant asked the Council to review the decision to maintain it on the list in Annex II to Decision 2010/413 and on that in Annex VIII to Regulation No 961/2010.
18      The listing of Bank Mellat and the applicant in Annex II to Decision 2010/413 and in Annex VIII to Regulation No 961/2010 was unaffected by the entry into force of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 (OJ 2011 L 319, p. 71) and of Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11).
19      By letter of 5 December 2011, the Council informed the applicant that its name would continue to be listed in Annex II to Decision 2010/413 and Annex VIII to Regulation No 961/2010. It stated that the observations submitted by the applicant on 29 July 2011 did not justify lifting the restrictive measures against it, given that it was 60% owned by Bank Mellat.
20      By letter of 24 January 2012, the applicant claimed that, in its opinion, the review of the maintenance of the restrictive measures against it was vitiated by errors. In particular, the applicant stated that, in its opinion, the Council had failed in the letter of 5 December 2011 to give reasons to the requisite legal standard for the refusal to take into consideration the applicant’s observations of 29 July 2011.
21      Regulation No 961/2010 having been repealed by Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran (OJ 2012 L 88, p. 1), the Council included Bank Mellat and the applicant in Annex IX to Regulation No 267/2012. The reason concerning the applicant is the same as that stated in Decision 2010/413. The reasons given for listing Bank Mellat are, in essence, the same as those stated in Decision 2010/644. Consequently, the applicant’s funds and economic resources were frozen pursuant to Article 23(2) of Regulation No 267/2012.
Procedure and forms of order sought
22      By application lodged at the Court Registry on 7 October 2010, the applicant brought the present action.
23      By document lodged at the Court Registry on 5 November 2010, the applicant amended its heads of claim following the adoption on 25 October 2010 of Decision 2010/644 and Regulation No 961/2010.
24      By document lodged at the Court Registry on 14 January 2011, the European Commission sought leave to intervene in the present proceedings in support of the form of order sought by the Council. By order of 8 March 2011 the President of the Fourth Chamber of the General Court granted leave to intervene.
25      By document lodged at the Court Registry on 24 January 2012, the applicant amended its heads of claim following the adoption on 1 December 2011 of Decision 2011/783 and Implementing Regulation No 1245/2011, and requested that, if appropriate, the contested measures be annulled with immediate effect.
26      By document lodged at the Court Registry on 23 April 2012, the applicant amended its heads of claim following the adoption on 23 March 2012 of Regulation No 267/2012.
27      Upon hearing the report of the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for under Article 64 of the Rules of Procedure of the General Court, put questions to the parties in writing concerning the implications for the present case of the judgment in Case C‑380/09 P Melli Bank v Council [2012] ECR I‑0000, the number of directors of the applicant and how they are appointed, and the admissibility of the applicant’s fourth plea in law. The parties replied to the Court’s questions.
28      In its reply to the Court’s questions, lodged at the Court Registry on 8 June 2012, the applicant stated that it was no longer pursuing the third plea in law, by which it had claimed that Article 20(1)(b) of Decision 2010/413, Article 7(2)(d) of Regulation No 423/2007, Article 16(2)(a) of Regulation No 961/2010 and Article 23(2) of Regulation No 267/2012 were disproportionate and, therefore, unlawful.
29      The parties presented oral argument and answered the questions put by the Court at the hearing on 3 July 2012.
30      By order of the Court (Fourth Chamber) of 4 September 2012, the oral procedure was reopened in order to place in the file the applicant’s observations on the order of the President of the Court of Justice of 19 July 2012 in Case C‑110/12 P(R) Akhras v Council, not published in the ECR, and to obtain the observations of the other parties. The oral procedure was again closed on 4 October 2012.
31      The applicant claims that the Court should:
–        annul, with immediate effect, point 4 of Table B of Annex II to Decision 2010/413, point 2 of Table B of the annex to Implementing Regulation No 668/2010, point 4 of Table I.B of the annex to Decision 2010/644, point 4 of Table B of Annex VIII to Regulation No 961/2010, Decision 2011/783, Implementing Regulation No 1245/2011 and point 4 of Table I.B of Annex IX to Regulation No 267/2012, in so far as those acts concern the applicant;
–        declare that Article 7(2)(d) of Regulation No 423/2007, Article 16(2)(a) of Regulation No 961/2010 and Article 23(2) of Regulation No 267/2012 are inapplicable to the applicant;
–        order the Council to pay the costs.
32      The Council and the Commission contend that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
33      In its written pleadings, the applicant puts forward five pleas in law. The first plea is a claim of breach of the obligation to state reasons, of the principle of respect for the rights of the defence and of the right to effective judicial protection. The second plea is a claim of an error of assessment as to whether the applicant is owned or controlled by Bank Mellat. The third plea is a claim that Article 20(1)(b) of Decision 2010/413, Article 7(2)(d) of Regulation No 423/2007, Article 16(2)(a) of Regulation No 961/2010 and Article 23(2) of Regulation No 267/2012 are disproportionate and therefore unlawful. The fourth plea is a claim of an error of assessment as regards Bank Mellat’s involvement in nuclear proliferation. The fifth plea alleges breach of the principle of proportionality, of the applicant’s right to property and of its right to engage in an economic activity.
34      As is apparent from paragraph 28 above, the applicant abandoned its third plea during the proceedings. Since the plea of illegality which the applicant raised under the second head of claim in respect of Article 7(2)(d) of Regulation No 423/2007, Article 16(2)(a) of Regulation No 961/2010 and Article 23(2) of Regulation No 267/2012 is in fact indissociable from its third plea, that partial abandonment extends also to the plea of illegality.
35      The Council and the Commission contest the merits of the applicant’s pleas in law. Further, in its rejoinder the Council contended that the applicant was not entitled to plead a breach of its fundamental rights.
36      As a preliminary point, it is necessary to examine the admissibility of the fourth plea and of the Council’s arguments that the applicant is not entitled to rely on the fundamental rights.
Admissibility
Admissibility of the fourth plea: error of assessment as regards the involvement of Bank Mellat in nuclear proliferation
37      By its fourth plea, the applicant maintains that the adoption of restrictive measures with respect to Bank Mellat is not justified. It refers in that regard to the actions brought by Bank Mellat before the Courts of the European Union, and states that if Bank Mellat is no longer subject to restrictive measures at the time when judgment is delivered in this case, the measures to which the applicant is subject ought to be annulled.
38      That said, the applicant pleads no specific complaint in order to challenge the lawfulness of the restrictive measures against Bank Mellat. In particular the applicant expresses no view, with a sufficient degree of detail, on the reasons concerning the alleged involvement of Bank Mellat in nuclear proliferation, since the applicant does not even indicate whether it disputes the truth of the conduct alleged or the classification of such conduct as support for nuclear proliferation.
39      In those circumstances, notwithstanding the fact that the restrictive measures concerning Bank Mellat were annulled by the judgment of the Court in Case T‑496/10 Bank Mellat v Council [2013] ECR I‑0000, the Court is not in a position to rule on the fourth plea in law in the absence of sufficiently detailed argument from the applicant. Consequently, that plea in law must be declared inadmissible pursuant to Article 44(1)(c) of the Rules of Procedure, as, moreover, contended by the Commission.
Admissibility of the Council’s arguments on the admissibility of the pleas alleging breach of the applicant’s fundamental rights
40      In its rejoinder, the Council contended that the applicant should be regarded as an emanation of the Iranian State and therefore could not have the benefit of fundamental rights protection and safeguards. The Council therefore considers that the pleas in the action concerning an alleged breach of those rights must be declared inadmissible.
41      On that point, in the first place, it must be observed that the Council does not dispute the actual right of the applicant to seek the annulment of the contested measures. The Council denies only that the applicant has certain rights upon which it relies in order to obtain that annulment.
42      In the second place, the question whether the applicant does or does not have the right which it invokes in support of a plea for annulment does not concern the admissibility of that plea, but its merits. Consequently, the Council’s argument that the applicant is an emanation of the Iranian State must be rejected in so far as it is aimed at obtaining a declaration that the action is in part inadmissible.
43      In the third place, that argument was raised for the first time in the rejoinder, but the Council did not claim that it was based on matters of law or of fact which had come to light in the course of the procedure. Therefore, so far as the substance of the case is concerned, it is a new plea in law within the meaning of the first subparagraph of Article 48(2) of the Rules of Procedure, from which it follows that it must be declared inadmissible.
Substance
44      Following the applicant’s partial abandonment of its action and in the light of the inadmissibility of the fourth plea in law, it is necessary to examine only the first, second and fifth pleas.
The first plea: breach of the obligation to state reasons, of the principle of respect for the rights of the defence and of the right to effective judicial protection
45      By its first plea, the applicant maintains that the Council is in breach of the obligation to state reasons, its rights of defence and its right to effective judicial protection since (i) the statement of reasons in the contested measures is inadequate, (ii) the Council did not provide it with sufficient information to enable it to make effective representations on the adoption of restrictive measures against it and to afford it a fair hearing, and (iii) both the assessment prior to the adoption of the restrictive measures against it and the regular review of those measures are vitiated by a number of errors.
46      The Council, supported by the Commission, contests the merits of the applicant’s arguments. They maintain, in particular, that the applicant may not rely on the principle of respect for the rights of the defence.
47      In the first place, it must be borne in mind that the purpose of the obligation to state the reasons for an act adversely affecting a person, as provided for by the second paragraph of Article 296 TFEU and, more particularly in this case, by Article 24(3) of Decision 2010/413, Article 15(3) of Regulation No 423/2007, Article 36(3) of Regulation No 961/2010 and Article 46(3) of Regulation No 267/2012, is, first, to provide the person concerned with sufficient information to make it possible to determine whether the measure is well founded or whether it is vitiated by an error which may permit its validity to be contested before the Courts of the European Union and, secondly, to enable the latter to review the lawfulness of that measure. 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 state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the act during the proceedings before the Courts of the European Union (see, to that effect, Case T‑390/08 Bank Melli Iran v Council [2009] ECR II‑3967, paragraph 80 and the case-law cited).
48      Unless, therefore, overriding considerations pertaining to the security of the European Union or of its Member States or to the conduct of their international relations militate against the communication of certain matters, the Council is bound to apprise an entity that is subject to restrictive measures of the actual and specific reasons why it takes the view that they had to be adopted. It must thus state the facts and points of law on which the legal justification of the measures concerned depends and the considerations which led it to adopt them (see, to that effect, Bank Melli Iran v Council, paragraph 47 above, paragraph 81 and the case-law cited).
49      Moreover, the statement of reasons must be appropriate to the act at issue and to 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 statement of reasons to specify 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. 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 Bank Melli Iran v Council, paragraph 47 above, paragraph 82 and the case-law cited).
50      In the second place, according to settled case-law, the observance of the rights of the defence, especially the right to be heard, in all proceedings initiated against an entity which may lead to a measure adversely affecting that entity, is a fundamental principle of European Union law which must be guaranteed, even when there are no rules governing the procedure in question (Bank Melli Iran v Council, paragraph 47 above, paragraph 91).
51      The principle of respect for the rights of the defence requires, first, that the entity concerned must be informed of the evidence adduced against it to justify the measure adversely affecting it and, secondly, that it is afforded the opportunity effectively to make known its view on that evidence (see, by analogy, Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II‑4665, paragraph 93).
52      Consequently, as regards an initial measure whereby the funds of an entity are frozen, unless there are overriding considerations pertaining to the security of the European Union or of its Member States or to the conduct of their international relations which preclude it, the evidence adduced against that entity should be disclosed to it either concomitantly with or as soon as possible after the adoption of the measure concerned. At the request of the entity concerned, it also has the right to make known its view on that evidence after the adoption of the measure. Subject to the same proviso, any subsequent decision to freeze funds must as a general rule be preceded by disclosure of further evidence adduced against the entity concerned and a further opportunity for it to make known its view (see, by analogy, Organisation des Modjahedines du peuple d’Iran v Council, paragraph 51 above, paragraph 137).
53      It must also be observed that, when sufficiently precise information has been communicated, enabling the entity concerned effectively to state its point of view on the evidence adduced against it by the Council, the principle of respect for the rights of the defence does not mean that the Council is obliged spontaneously to grant access to the documents in its file. It is only on the request of the party concerned that the Council is required to provide access to all non-confidential official documents concerning the measure at issue (see Bank Melli Iran v Council, paragraph 47 above, paragraph 97 and the case-law cited).
54      In the third place, the principle of effective judicial protection is a general principle of European Union law, stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, and in Article 47 of the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389). The effectiveness of judicial review means that the European Union authority in question is bound to communicate the grounds for a restrictive measure to the entity concerned, so far as possible, either when that measure is adopted or, at the very least, as swiftly as possible after its adoption, in order to enable the entity concerned to exercise, within the prescribed period, its right to bring an action. Observance of that obligation to communicate the grounds is necessary both to enable the persons to whom restrictive measures are addressed to defend their rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in their applying to the Courts of the European Union, and also to put the latter fully in a position to carry out the review of the lawfulness of the measure in question which is the duty of those courts (see, to that effect and by analogy, Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraphs 335 to 337 and the case-law cited).
55      In the light of that case-law, the Court considers that the arguments submitted by the parties in respect of the first plea in law should be examined in four stages, as follows. First, the Court must examine the preliminary argument of the Council and the Commission that the applicant cannot rely on the principle of respect for the rights of the defence. Secondly, it is appropriate to examine the arguments relating to the statement of reasons for the contested measures. Thirdly, the Court must examine the alleged breach of the applicant’s rights of defence and of its right to effective judicial protection as a consequence of the fact that it was not given sufficient information concerning the adoption of restrictive measures against it. Fourthly, the Court will address the arguments relating to the defects allegedly affecting the assessment prior to the adoption of the restrictive measures against the applicant and the regular review of those measures.
56      In that regard, it must also be observed that, since the adoption of the restrictive measures affecting the applicant is based on the fact that the applicant is owned by an entity involved in nuclear proliferation, the applicant may legitimately rely on breach of the obligation to state reasons as regards its parent bank’s alleged involvement in nuclear proliferation. Moreover, observance of the applicant’s rights of defence and of its right to effective judicial protection also entails, by analogy with the case-law cited in paragraphs 50 to 54 above, communication to the applicant of information relating to the adoption of the restrictive measures concerning its parent bank, and the opportunity to submit observations on that information.
–       Whether the applicant may rely on the principle of respect for the rights of the defence
57      The Council and the Commission dispute the applicability of the principle of respect for the rights of the defence to the present case. Referring to Case T‑181/08 Tay Za v Council [2010] ECR II‑1965, paragraphs 121 to 123, they claim that the applicant was not the subject of restrictive measures because of its own activities, but because of its membership of a general category of persons and entities which supported nuclear proliferation. Consequently, the procedure for the adoption of the restrictive measures was not initiated against the applicant within the meaning of the case-law cited in paragraph 50 above and the applicant consequently cannot rely on the rights of the defence or can do so to only a limited extent.
58      That argument cannot be accepted.
59      First, the judgment in Tay Za v Council, paragraph 57 above, was set aside on appeal, in its entirety, by the judgment of the Court of Justice of 13 March 2012 in Case C‑376/10 P Tay Za v Council [2012] ECR I‑0000. Consequently, the findings made in the former judgment are no longer part of the legal order of the European Union and cannot properly be relied on by the Council and the Commission.
60      Secondly, Article 24(3) and (4) of Decision 2010/413, Article 15(3) of Regulation No 423/2007, Article 36(3) and (4) of Regulation No 961/2010 and Article 46(3) and (4) of Regulation No 267/2012 set out provisions to safeguard the rights of the defence of entities which are subject to restrictive measures adopted under those acts. Respect for those rights is subject to review by the Courts of the European Union (see, to that effect, Bank Melli Iran v Council, paragraph 47 above, paragraph 37).
61      In those circumstances, it must be concluded that the principle of respect for the rights of the defence, as recalled in paragraphs 50 to 53 above, may be relied on by the applicant in this case.
–       The statement of reasons for the contested measures
62      The applicant submits that the statement of reasons for the contested measures is inadequate in that the Council’s claims regarding the alleged involvement of Bank Mellat in nuclear proliferation are overly vague and, moreover, the Council did not state why it considered that the applicant was owned by Bank Mellat.
63      The Council, supported by the Commission, contests the merits of the applicant’s arguments.
64      It must be observed at the outset that in order to assess whether the obligation to state reasons has been fulfilled, it is necessary to take into consideration not only the reasons stated in the contested measures, but the three proposals for the adoption of restrictive measures which the Council disclosed to the applicant.
65      First, it is apparent from those proposals, as disclosed to the applicant, that they were submitted to the delegations of the Member States in the context of the adoption of the restrictive measures affecting the applicant, and that those proposals therefore constitute evidence on which those measures are based.
66      Secondly, it is true that the third proposal was disclosed to the applicant both after the action was brought and after the amendment – consequent on the adoption of Decision 2010/644 and Regulation No 961/2010 – of the form of order sought. Consequently, it cannot properly supplement the reasons stated for Decision 2010/413, Implementing Regulation No 668/2010, Decision 2010/644 and Regulation No 961/2010. It may, however, be taken into consideration in the assessment of the legality of the later measures, namely Decision 2011/783, Implementing Regulation No 1245/2011 and Regulation No 267/2012.
67      As regards, in the first place, the statement of reasons concerning Bank Mellat’s alleged involvement in nuclear proliferation, the contested measures mention the following four reasons:
–        according to Decision 2010/413 and Implementing Regulation No 668/2010, Bank Mellat is a State-owned Iranian bank (‘the first reason’);
–        Bank Mellat engages in a pattern of conduct which supports and facilitates Iran’s nuclear and ballistic missile programmes (‘the second reason’);
–        Bank Mellat has provided banking services to United Nations and European Union listed entities or to entities acting on their behalf or at their direction, or to entities owned or controlled by them (‘the third reason’);
–        Bank Mellat is the parent bank of First East Export Bank which is designated under United Nations Security Council Resolution 1929 (‘the fourth reason’).
68      The first of the two proposals for the adoption of restrictive measures, which was notified on 13 September 2010, partly overlaps with the second reason provided in the contested measures. It adds the following reasons:
–        Bank Mellat provides banking services to the Atomic Energy Organisation of Iran and to Novin Energy Company, which are subject to restrictive measures adopted by the United Nations Security Council (‘the fifth reason’);
–        Bank Mellat manages the accounts of officials of the Aerospace Industries Organisation and an Iranian procurement agent (‘the sixth reason’).
69      The second proposal for the adoption of restrictive measures, also notified on 13 September 2010, essentially overlaps with the statement of reasons in the contested measures. There is one additional reason: that Bank Mellat has facilitated the movement of millions of dollars for the Iranian nuclear programme since at least 2003 (‘the seventh reason’).
70      The third proposal for the adoption of restrictive measures, which is annexed to the rejoinder, contains no additional information concerning Bank Mellat as compared with the contested measures and the two proposals notified on 13 September 2010.
71      The first reason is sufficiently detailed since it enables the applicant to appreciate that the Council relied on the fact that part of Bank Mellat’s share capital is held by the Iranian State.
72      On the other hand, the second and third reasons are overly vague in that they do not specify either the conduct alleged against Bank Mellat or the other entities concerned.
73      The fourth reason is set out sufficiently clearly, since it enables the applicant to appreciate that the allegation made against Bank Mellat by the Council concerns the control Bank Mellat exercises over First East Export.
74      The same is true of the fifth reason, which identifies the entities to which the financial services at issue were allegedly provided.
75      Lastly, the sixth and seventh reasons are not sufficiently detailed, since the sixth does not identify the persons concerned and the seventh contains no details of the entities and transactions concerned.
76      As regards, in the second place, the statement of reasons concerning the applicant itself, the Council stated, both in the contested measures and in the proposals for the adoption of restrictive measures, that the applicant was 60% owned by Bank Mellat. Contrary to what is claimed by the applicant, that statement of reasons is sufficient to enable it to appreciate that the Council relied on the fact that part of its share capital is held by Bank Mellat and on the influence that stems from that holding.
77      In the light of the foregoing, it must be held that the Council breached the obligation to state reasons as regards the second, third, sixth and seventh reasons concerning Bank Mellat’s involvement in nuclear proliferation. By contrast, those obligations were fulfilled as regards the other reasons relating to Bank Mellat and as regards the statement of reasons relating to the applicant itself.
–       Breach of the applicant’s rights of defence and of its right to effective judicial protection as a consequence of the fact that it was not given sufficient information concerning the adoption of restrictive measures against it
78      The applicant claims that, notwithstanding repeated requests for information, it did not receive sufficient information concerning the adoption of restrictive measures against the applicant and against Bank Mellat, nor, in particular, did it receive any evidence relating to the alleged involvement of Bank Mellat in nuclear proliferation. It emphasises in that context the inadequacy of the proposals for the adoption of restrictive measures notified by the letter of 13 September 2010 and of that disclosed in the annex to the rejoinder, as well as the delay in the disclosure of the latter proposal.
79      The applicant concludes that the disclosure of that information did not allow it to make effective representations on the adoption of restrictive measures against it and against Bank Mellat, and was not such as to afford it a fair hearing.
80      The Council, supported by the Commission, contests the merits of the applicant’s arguments. It states, in particular, that it disclosed the proposals for the adoption of restrictive measures to the applicant as soon as it had obtained the agreement of the Member States from which they originated.
81      In the first place, it is apparent from the review carried out in paragraphs 62 to 77 above that the first, fourth and fifth reasons on which the Council relied with respect to Bank Mellat, and the statement of reasons concerning the applicant itself, as evidenced by the contested measures and the proposals for the adoption of restrictive measures disclosed to the applicant, are sufficiently detailed. By contrast, the vagueness of the second, third, sixth and seventh reasons given by the Council with respect to Bank Mellat constitutes a breach of the applicant’s rights of defence and of its right to effective judicial protection.
82      In the second place, it must be observed that the proposals for the adoption of restrictive measures notified on 13 September 2010 were notified before the deadline of 25 September 2010 which the Council gave the applicant for the submission of observations, and therefore no breach of the rights of the defence can be established as regards those proposals.
83      On the other hand, the proposal annexed to the rejoinder was disclosed after the deadline mentioned in paragraph 82 above.
84      In that regard the Council’s argument concerning the need to obtain the agreement of the Member State concerned cannot be accepted. Where the Council intends to rely on information provided by a Member State in order to adopt restrictive measures affecting an entity, it is obliged to ensure, before adopting those measures, that the entity concerned can be notified of the information in question in good time so that it is able effectively to make known its point of view.
85      However, it must be held that the belated disclosure of a document on which the Council relied in order to adopt or maintain the restrictive measures concerning an entity does not constitute a breach of the rights of the defence that would justify the annulment of acts adopted previously unless it is established that the restrictive measures concerned could not have been lawfully adopted or maintained if the document belatedly disclosed had to be excluded as inculpatory evidence.
86      As is apparent from paragraphs 70 and 76 above, the proposal annexed to the rejoinder contains no additional information as compared with the contested measures and the proposals notified on 13 September 2010, which means that its exclusion as inculpatory evidence is not capable of affecting the validity of the adoption and maintenance of the restrictive measures concerning the applicant. In those circumstances, the belated disclosure of that proposal does not justify the annulment of Decision 2010/413, Implementing Regulation No 668/2010, Decision 2010/644 and Regulation No 961/2010.
87      In the third place, as regards the failure to disclose evidence, it must be observed that, according to the principle of respect for the rights of the defence, the Council is not required to disclose information other than that contained in its file. In the present case, the Council states, without contradiction by the applicant, that its file contains no additional evidence concerning Bank Mellat’s involvement in nuclear proliferation or concerning the applicant itself. That being the case, the Council cannot be accused of having breached the applicant’s rights of defence and its right to effective judicial protection by its failure to disclose such evidence.
–       The defects in the assessment prior to the adoption of the restrictive measures concerning the applicant and the regular review of those measures
88      The applicant claims that the Council did not carry out a genuine assessment of the circumstances of the case, but did no more than adopt the proposals submitted by Member States. That defect affects both the assessment prior to the adoption of the restrictive measures concerning the applicant and the regular review of those measures.
89      Further, according to the applicant, it is clear from diplomatic cables, made public through the Wikileaks organisation (‘the diplomatic cables’), that Member States, in particular the United Kingdom of Great Britain and Northern Ireland, were subject to pressure from the Government of the United States of America to ensure the adoption of restrictive measures against Iranian entities. That fact, it is claimed, casts doubt on the lawfulness of the measures adopted and of the procedure for their adoption.
90      The Council, supported by the Commission, contests the merits of the applicant’s arguments. It contends, in particular, that no account should be taken of the diplomatic cables.
91      In the first place, it must be observed that acts which establish restrictive measures against an entity allegedly involved in nuclear proliferation are acts of the Council, which must, therefore, ensure that their adoption is justified. Consequently, when adopting an initial act establishing such measures, the Council must assess the relevance and the validity of the information and evidence submitted to it, pursuant to Article 23(2) of Decision 2010/413, by a Member State or by the High Representative of the Union for Foreign Affairs and Security Policy. When adopting subsequent acts affecting the same entity, the Council is required, in accordance with Article 24(4) of that decision, to review the need to maintain those measures in the light of observations submitted by that entity.
92      In the present case, the incorrect statement in Decision 2010/413 and in Implementing Regulation No 668/2010 that Bank Mellat was a State-owned bank, the inaccuracy of which is not denied by the Council, serves to demonstrate that the Council did not check the relevance and the validity of the evidence concerning Bank Mellat that was submitted to it before the adoption of those acts. Given that the adoption of the restrictive measures against the applicant is based on the argument that it was 60% owned by Bank Mellat, it must be concluded that the Council’s failure to have regard to its obligation to check the relevance and validity of the evidence concerning Bank Mellat also vitiates the adoption, by Decision 2010/413 and by Implementing Regulation No 668/2010, of the restrictive measures against the applicant.
93      Moreover, with regard to the adoption of the later contested measures, the information in the file suggests that the Council reviewed the circumstances of the case in the light of the applicant’s observations. Thus, it stated in the letter of 28 October 2010 that it was still of the opinion that the restrictive measures concerning the applicant were justified by the fact that it was 60% owned by Bank Mellat, which was involved in nuclear proliferation. It reiterated that stance in the letter of 5 December 2011. Moreover, it is not disputed that the Council deleted the reference to Bank Mellat being State-owned.
94      In the second place, it must be observed that, contrary to the Council’s and the Commission’s contention, the diplomatic cables may be taken into consideration.
95      As regards the evidence which may be relied on, the prevailing principle of European Union law is the unfettered evaluation of evidence (see, by analogy, Case T‑50/00 Dalmine v Commission [2004] ECR II‑2395, paragraph 72). In the present case, since the applicant was not involved in the disclosure of the diplomatic cables, the possibly unlawful nature of that disclosure cannot be held against it. Further, the evidence in question is relatively credible since its authenticity has not been disputed by the United States Government.
96      That said, as regards the content of the diplomatic cables, the fact that some Member States may have been subject to diplomatic pressure does not imply, by itself, that such pressure affected the contested measures which were adopted by the Council or the assessment carried out by the Council when they were adopted.
97      In those circumstances, the Court must uphold the applicant’s arguments relating to the defects affecting the assessment and the review carried out by the Council in relation to Decision 2010/413 and Implementing Regulation No 668/2010, but must reject those arguments for the remainder.
98      In the light of the foregoing, it must be observed that, when adopting Decision 2010/413 and Implementing Regulation No 668/2010, the Council did not comply with the obligation to assess the relevance and the validity of the information and evidence against the applicant submitted to it, thereby rendering those measures unlawful (see paragraphs 92 and 97 above).
99      Moreover, the Council breached the obligation to state reasons, the applicant’s rights of defence and its right to effective judicial protection as regards the second, third, sixth and seventh reasons given by the Council with respect to Bank Mellat (see paragraphs 77 and 81 above). None the less, taking into account the fact that the various reasons on which the Council relied with respect to Bank Mellat are independent of each other and that the other reasons are sufficiently detailed, that fact does not justify the annulment of Decision 2010/644, Regulation No 961/2010, Decision 2011/783, Implementing Regulation No 1245/2011 and Regulation No 267/2012.
100    In the light of all the foregoing, the Court must uphold the first plea in law to the extent that it relates to the annulment of Decision 2010/413 and Implementing Regulation No 668/2010 in so far as those acts concern the applicant, and reject that plea as to the remainder.
The second plea: error of assessment as to whether the applicant is owned or controlled by Bank Mellat
101    The applicant claims that it is not owned by Bank Mellat and that it does not belong to Bank Mellat for the purposes of Article 7(2)(d) of Regulation No 423/2007, 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.
102    As a preliminary point, it must be observed that the Court’s examination is confined to the fact that Bank Mellat holds 60% of the applicant’s share capital. It is true that, since 24 January 2012, Bank Tejarat, the applicant’s other shareholder, has also been subject to the restrictive measures adopted pursuant to Decision 2010/413, Regulation No 961/2010 and Regulation No 267/2012. However, the Council pleaded that point for the first time at the hearing, and in particular it is not included in the statement of reasons for the contested measures. Consequently, it cannot be taken into consideration in the review of the lawfulness of those measures.
103    According to the case-law, when the funds of an entity identified as being engaged in nuclear proliferation are frozen, there is a not insignificant danger that that entity may exert pressure on the entities it owns or controls or which belong to it, in order to circumvent the effect of the measures applying to it. Consequently, the freezing of the funds of such entities, as imposed by the Council by Article 7(2)(d) of Regulation No 423/2007, Article 20(1)(b) of Decision 2010/413, Article 16(2) of Regulation No 961/2010 and Article 23(2)(a) of Regulation No 267/2012, is necessary and appropriate in order to ensure the effectiveness of the measures adopted and to ensure that those measures are not circumvented (see, to that effect and by analogy, Melli Bank v Council, paragraph 27 above, paragraphs 39 and 58).
104    Likewise, where an entity is wholly owned by an entity regarded as being engaged in nuclear proliferation, the ownership test contained in Article 20(1)(b) of Decision 2010/413 and in Article 16(2)(a) of Regulation No 961/2010 is satisfied (see, by analogy, Melli Bank v Council, paragraph 27 above, paragraph 79). The same conclusion must apply to the concept, to be found in Article 23(2)(a) of Regulation No 267/2012, of an entity ‘belonging’ to an entity considered to be involved in nuclear proliferation.
105    That said, it is not disputed that Bank Mellat holds only 60% of the applicant’s share capital.
106    In those circumstances, contrary to the Council’s and the Commission’s contention, the rule developed in the case-law cited in paragraph 104 above is not applicable, since a 60% holding in the applicant’s share capital does not mean, by itself, that the test of ‘ownership’ or of ‘belonging’ laid down in the provisions referred to in paragraph 104 above is satisfied.
107    Consequently, the Court must examine whether, in the light of the circumstances of this case, and in particular of the degree of ownership by Bank Mellat, there is a not insignificant danger that the applicant may be led to circumvent the effect of the restrictive measures applying to it (see, to that effect and by analogy, Melli Bank v Council, paragraph 27 above, paragraph 40).
108    The Council, supported by the Commission, contends that that is the case, since, as the majority shareholder holding 60% of the applicant’s share capital, Bank Mellat can appoint and dismiss the applicant’s directors.
109    In that regard, it is evident from the information in the file that the applicant has seven directors, two of whom are independent non-executive directors.
110    It is true that, in accordance with the applicable legislation of the United Kingdom and the applicant’s articles of association, the applicant’s directors are appointed by ordinary resolution in a general meeting, adopted by a simple majority of the votes.
111    However, in the first place, it is clear from the evidence provided by the applicant, the accuracy of which is not disputed by the other parties, that, in accordance with an agreement between its shareholders, only four of the applicant’s current directors were nominated by Bank Mellat, the other three having been nominated by Bank Tejarat.
112    Furthermore, one of the four directors nominated by Bank Mellat is an independent non-executive director. As is apparent from the evidence adduced by the applicant, the condition of independence – compliance with which is checked by the FSA under the procedure for the approval of a company’s directors – means, inter alia, that that director is not associated in any way with the applicant’s shareholders, including Bank Mellat.
113    In those circumstances, it must be held that Bank Mellat is capable of exerting influence over, at most, three of the applicant’s seven current directors, that is to say, over a minority of them.
114    At the hearing the Council also contended in that regard that the independent directors did not take part in the day-to-day management of the applicant, since they did not carry out executive functions.
115    However, it must be observed that, so far as the collective decisions taken by the directors are concerned, the applicant’s articles of association make no distinction between the executive and non-executive directors as regards the conditions for a quorum or voting rights. Accordingly, in that context, the position of the non-executive directors is equivalent to that of the executive directors.
116    Moreover, in so far as the Council’s arguments must be construed as relating to the influence that may be exerted individually by certain directors of the applicant nominated by Bank Mellat in the context of their executive functions, they cannot be taken into consideration for two reasons. First, that point was not raised in the statement of reasons of the contested measures. Secondly, the arguments in question are not sufficiently detailed, the Council having neither identified the directors concerned nor their precise functions, nor the specific danger thereby represented with respect to the effectiveness of the restrictive measures affecting Bank Mellat.
117    In the second place, it must be observed that it is clear from the information in the file that the appointment of any new director of the applicant is subject to approval by the FSA. Accordingly, Bank Mellat is not in a position freely to alter the number or nature of the applicant’s directors, inter alia by removing the posts of the independent directors.
118    In the light of all the foregoing, it must be held that, in the particular circumstances of the present case, it cannot be concluded from the fact that Bank Mellat holds 60% of the applicant’s share capital that the test of ‘ownership’ or of ‘belonging’ laid down in Article 7(2)(d) of Regulation No 423/2007, Article 20(1)(b) of Decision 2010/413, Article 16(2) of Regulation No 961/2010 and Article 23(2)(a) of Regulation No 267/2012 is satisfied.
119    Consequently, Bank Mellat’s ownership of 60% of the applicant’s share capital does not, by itself, justify the adoption and maintenance of the restrictive measures concerning the applicant.
120    Since Bank Mellat’s ownership of 60% of the applicant’s share capital is the only fact which the Court may take into consideration (see paragraph 102 above), the Court must uphold the second plea and, accordingly, annul Decision 2010/644, Regulation No 961/2010, Decision 2011/783, Implementing Regulation No 1245/2011 and Regulation No 267/2012 in so far as they concern the applicant, and there is no need to examine the other arguments relied on by the applicant in the context of the second plea or, moreover, the fifth plea.
The temporal effects of annulment of the contested measures
121    As regards the temporal effects of the annulment of the contested measures, it must be noted, first, that Implementing Regulation No 668/2010, which amended the list in Annex V to Regulation No 423/2007, no longer has any legal effect following the repeal of Regulation No 423/2007 by Regulation No 961/2010. Likewise, Regulation No 961/2010, as amended by Implementing Regulation No 1245/2011, has itself been repealed by Regulation No 267/2012. Consequently, the annulment of Implementing Regulation No 668/2010, Regulation No 961/2010 and Implementing Regulation No 1245/2011 concerns only the effects which those measures produced between the date of their entry into force and the date of their repeal.
122    Next, as regards Regulation No 267/2012, it must be noted that, under the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, 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 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).
123    Referring in that regard to the order in Akhras v Council, paragraph 30 above, the applicant maintains that Regulation No 267/2012 amounts, as far as it is concerned, to a decision in the form of a regulation, rather than to a true regulation. Consequently, the second paragraph of Article 60 of the Statute is not applicable to this case.
124    That argument cannot be accepted.
125    First, in paragraph 29 of the order in Akhras v Council, paragraph 30 above, the President of the Court of Justice did not examine in detail the applicability of the second paragraph of Article 60 of the Statute to the regulations imposing restrictive measures, in so far as he did no more than state that, while the arguments submitted on that point by the applicant in Case C‑110/12 P(R) did not appear to be ‘unfounded’, they were none the less ineffective.
126    Secondly, having regard to the case-law of the Court of Justice, it must be held that Regulation No 267/2012, including Annex IX thereto, has the nature of a regulation, since the second paragraph of Article 51 thereof provides that it is to be binding in its entirety and directly applicable in all Member States, which corresponds to the effects of a regulation as provided for in Article 288 TFEU (see, by analogy, Case C‑548/09 P Bank Melli Iran v Council [2011] ECR I‑0000, paragraph 45).
127    The second paragraph of Article 60 of the Statute of the Court of Justice is therefore applicable in this case.
128    That being the case, the Council has a period of two months, extended on account of distance by 10 days, as from the notification of this judgment, to remedy the infringements established by adopting, if appropriate, new restrictive measures with respect to the applicant. In the present case, the risk of serious and irreparable harm to the effectiveness of the restrictive measures imposed by Regulation No 267/2012 does not appear sufficiently great, having regard to the considerable impact of those measures on the applicant’s rights and freedoms, to warrant the maintenance of the effects of that regulation with respect to the applicant for a period exceeding that laid down in the second paragraph of Article 60 of the Statute of the Court of Justice (see, by analogy, Kadio Morokro v Council, paragraph 122 above, paragraph 38).
129    Lastly, as regards the temporal effects of the annulment of Decision 2010/413, as amended by Decision 2010/644 and 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 as definitive. In the present case, if the dates when the annulment of Regulation No 267/2012 and that of Decision 2010/413, as amended by Decision 2010/644 and Decision 2011/783, take effect were to differ, that would be likely seriously to jeopardise legal certainty, since those two acts impose on the applicant measures which are identical. The effects of Decision 2010/413, as amended by Decision 2010/644 and Decision 2011/783, must therefore be maintained as regards the applicant until the annulment of Regulation No 267/2012 takes effect (see, by analogy, Kadio Morokro v Council, paragraph 122 above, paragraph 39).
Costs
130    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 largely unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
131    Under the first subparagraph of Article 87(4) of the Rules of Procedure, institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Commission shall bear its own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.      Annuls the following measures, in so far as they concern Persia International Bank plc:
–        point 4 of Table B of Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP;
–        point 2 of Table B of the annex to Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran;
–        point 4 of Table I.B of the annex to Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413;
–        point 4 of Table B of Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation No 423/2007;
–        Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413;
–        Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010;
–        point 4 of Table I.B of Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010;
2.      Orders the effects of Decision 2010/413, as amended by Decision 2010/644 and Decision 2011/783, to be maintained as regards Persia International Bank until the annulment of Regulation No 267/2012 takes effect;
3.      Dismisses the action as to the remainder;
4.      Orders the Council of the European Union to bear its own costs and to pay those incurred by Persia International Bank;
5.      Orders the European Commission to bear its own costs.
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
Law
Admissibility
Admissibility of the fourth plea: error of assessment as regards the involvement of Bank Mellat in nuclear proliferation
Admissibility of the Council’s arguments on the admissibility of the pleas alleging breach of the applicant’s fundamental rights
Substance
The first plea: breach of the obligation to state reasons, of the principle of respect for the rights of the defence and of the right to effective judicial protection
– Whether the applicant may rely on the principle of respect for the rights of the defence
– The statement of reasons for the contested measures
– Breach of the applicant’s rights of defence and of its right to effective judicial protection as a consequence of the fact that it was not given sufficient information concerning the adoption of restrictive measures against it
– The defects in the assessment prior to the adoption of the restrictive measures concerning the applicant and the regular review of those measures
The second plea: error of assessment as to whether the applicant is owned or controlled by Bank Mellat
The temporal effects of annulment of the contested measures
Costs
* Language of the case: English.
1 This judgment is published in extract form.