62010TJ0509
JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
25 April 2012 (
*1
)
‛Common foreign and security policy — Restrictive measures against the Islamic Republic of Iran with the aim of preventing nuclear proliferation — Freezing assets — Action for annulment — Admissibility — Power of the Council — Misuse of power — Entry into force — Non-retroactivity — Obligation to state reasons — Rights of the defence — Right to effective judicial protection — Error of law — Concept of support for nuclear proliferation — Error of assessment’
In Case T‑509/10,
Manufacturing Support & Procurement Kala Naft Co., Tehran, established in Tehran (Iran), represented by F. Esclatine and S. Perrotet, lawyers,
applicant,
v
Council of the European Union, represented by M. Bishop and R. Liudvinaviciute-Cordeiro, acting as Agents,
defendant,
supported by
European Commission, represented by M. Konstantinidis and É. Cujo, acting as Agents,
intervener,
APPLICATION 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), of 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), and of Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81), and of Council Regulation (EU) No 961/2010 of 25 October 2010 concerning restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), in so far as those measures concern the applicant,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová (Rapporteur), President, K. Jürimäe and M. van der Woude, Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 11 January 2012,
gives the following
Judgment
Background to the dispute
1
The applicant, Manufacturing Support & Procurement Kala Naft Co., Tehran, is an Iranian company owned by the National Iranian Oil Company and has the object of acting as the central purchasing body for the oil, gas and petrochemical divisions of the latter’s group.
Restrictive measures against the Islamic Republic of Iran
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
The European Union adopted Council Common Position 2007/140/CFSP of 27 February 2007 concerning restrictive measures against Iran (OJ 2007 L 61, p. 49) and Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1).
4
Article 5(1)(b) of Common Position 2007/140 provided for the freezing of all funds and economic resources which belong to certain categories of persons and entities. The list of those persons and entities was contained in Annex II to Common Position 2007/140.
5
As regards the powers of the European Community, Article 7(2) of Regulation No 423/2007 provided for the freezing of the funds of the persons, entities or bodies identified by the Council of the European Union as being engaged in nuclear proliferation as provided in Article 5(1)(b) of Common Position 2007/140. The persons, entities, and bodies to which a measure freezing funds pursuant to Article 7(2) of Regulation No 423/2007 applied were listed in Annex V to that document.
6
Common Position 2007/140 was repealed by Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran (OJ 2010 L 195, p. 39).
7
Article 20(1) of Decision 2010/413 provides for freezing of the funds of several categories of entities. That provision concerns, inter alia, ‘persons and entities … that are engaged in, directly associated with, or providing support for [nuclear proliferation] or persons or entities acting on their behalf or at their direction, or entities owned or controlled by them, including through illicit means …, as listed in Annex II’.
8
Article 24(2) to (4) of Decision 2010/413 provide as follows:
‘2.   Where the Council decides to subject a person or entity to the measures referred to in Articles 19(1)(b) and 20(1)(b), it shall amend Annex II accordingly.
3.   The Council shall communicate its decision to the person or entity referred to in [paragraph 2], including the grounds for listing, either directly, if the address is known, or through the publication of a notice, providing such person or entity an opportunity to present observations.
4.   Where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the person or entity accordingly.’
9
The list in Annex II to Decision 2010/413 was replaced by a new list adopted in Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81).
10
Regulation No 423/2007 was repealed by Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran (OJ 2010 L 281, p. 1).
11
According to Article 16(2) of Regulation No 961/2010:
‘All funds and economic resources belonging to, owned, held or controlled by the persons, entities and bodies listed in Annex VIII shall be frozen. Annex VIII shall include the natural and legal persons, entities and bodies … who, in accordance with Article 20(1)(b) of Decision [2010/413], have been identified as:
(a)
being engaged in, directly associated with, or providing support for Iran’s proliferation-sensitive nuclear activities … or being owned or controlled by such a person, entity or body, including through illicit means, or acting on their behalf or at their direction;
…’
12
According to Article 36 of Regulation No 961/2010:
‘2.   Where the Council decides to subject a natural or legal person, entity or body to the measures referred to in Article 16(2), it shall amend Annex VIII accordingly.
3.   The Council shall communicate its decision, including the grounds for listing, to the natural or legal person, entity or body referred to in [paragraph 2], either directly, if the address is known, or through the publication of a notice, providing such natural or legal person, entity or body with an opportunity to present observations.
4.   Where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the natural or legal person, entity or body accordingly.’
Restrictive measures concerning the applicant
13
From the adoption of Decision 2010/413 on 26 July 2010, the applicant was placed, by the Council, on the list of persons, entities and bodies in Table I of Annex II to the decision.
14
Consequently, the applicant’s name was placed on the list of persons, entities and bodies in Table I of Annex V to Regulation No 423/2007 by 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). The consequence of the adoption of Implementing Regulation No 668/2010 was the freezing of the applicant’s funds and economic resources.
15
In Decision 2010/413, the Council took account of the following grounds:
‘Trades equipment for oil and gas sector that can be used for Iran’s nuclear programme. Attempted to procure material (very hard-wearing alloy gates) which have no use outside the nuclear industry. Has links to companies involved in Iran’s nuclear programme.’
16
In Implementing Regulation No 668/2010, the following wording was used:
‘Trades equipment for oil and gas sector that can be used for Iran’s nuclear programme. Attempted to procure material (very hard-wearing alloy gates) which have no use outside the nuclear industry. Has links to companies involved in Iran’s nuclear programme.’
17
The Council informed the applicant that its name had been placed on the list in Annex II to Decision 2010/413 and on that in Annex V to Regulation No 423/2007 by letter of 29 July 2010, which the applicant states that it received on 25 August 2010.
18
By letter of 12 September 2010, the applicant asked the Council to reconsider the decision to place it on the list in Annex II to Decision 2010/413 and on that in Annex V to Regulation No 423/2007. It also asked the Council to inform it of the reasons for adopting restrictive measures against it.
19
The inclusion of the applicant’s name in Annex II to Decision 2010/413 was not affected by the adoption of Decision 2010/644.
20
Regulation No 423/2007 having been repealed by Regulation No 961/2010, the applicant’s name was placed, by the Council, in point 29 of Table B of Annex VIII to the latter regulation. Consequently, the applicant’s funds and economic resources were frozen pursuant to Article 16(2) of that regulation.
21
Regarding the inclusion of the applicant, Regulation No 961/2010 gives the following reason:
‘Trades equipment for oil and gas sector that can be used for Iran’s nuclear programme. Attempted to procure material (very hard-wearing alloy gates) which have no use outside the nuclear industry. Has links to companies involved in Iran’s nuclear programme.’
22
By letter of 28 October 2010, the Council replied to the applicant’s letter of 12 September 2010 stating that, after a review, it rejected the applicant’s request to have its name removed from the list in Annex II to Decision 2010/413 and that in Annex VIII to Regulation No 961/2010. It stated that, as the file did not contain any additional factors which justified a change in its position, the applicant was to remain subject to the restrictive measures laid down in those provisions.
Procedure and forms of order sought by the parties
23
By application lodged at the Registry of the Court on 20 October 2010, the applicant brought the present action.
24
By document lodged at the Registry of the Court on 3 February 2011, the European Commission applied to intervene in the present proceedings in support of the Council. By order of 11 March 2011, the President of the Fourth Chamber of the Court gave leave for the intervention.
25
In its application, the applicant claims that the Court should:
—
annul Decision 2010/413 and Implementing Regulation No 668/2010;
—
order the Council to pay the costs.
26
In its observations of 6 December 2011, submitted in response to a written question from the Court, the applicant extended its first head of claim by claiming that the Court should annul Decision 2010/644 and Regulation No 961/2010 in so far as those measures relate to the applicant.
27
The Council and the Commission contend that the Court should:
—
dismiss the action;
—
order the applicant to pay the costs.
Law
28
The applicant puts forward nine pleas in law. The first plea alleges illegality in connection with the entry into force of Decision 2010/413. This plea consists in essence of two parts. The first part alleges that the decision entered into force retroactively. The second part alleges that Article 4 of the decision is illegal when read in conjunction with Article 28. The second plea alleges failure in the obligation to state reasons. The third plea alleges violation of the applicant’s rights of defence and right to effective judicial protection. The fourth plea alleges breach of the principle of proportionality. The fifth plea alleges that the Council has no power to adopt the contested measures. The sixth plea alleges misuse of power. The seventh plea alleges an error of law with regard to the concept of involvement in nuclear proliferation. The eighth plea alleges error in the assessment of the facts relating to the applicant’s activities. The ninth plea, put forward in the alternative, alleges manifest error of assessment and breach of the principle of proportionality.
29
The Council and the Commission consider that the applicant’s pleas are unfounded.
30
In addition, the Council and the Commission submit that the Court has no jurisdiction to give a ruling on the second part of the first plea. Furthermore, at the hearing, they contended that the action was inadmissible in so far as it was based on alleged violation of the applicant’s fundamental rights.
31
First of all, it is necessary to examine the submissions of the Council and the Commission concerning the Court’s jurisdiction, then their submissions concerning the admissibility of certain pleas and, finally, the admissibility of the application for the annulment of Decision 2010/644 and Regulation No 961/2010, this application having been made in the applicant’s observations of 6 December 2011.
The Court’s jurisdiction to rule on the second part of the first plea
32
In the second part of the first plea, the applicant submits, in essence, that Article 4 of Decision 2010/413 is illegal in that it provides for prohibition measures the scope of which is not specified with sufficient precision.
33
In order to reach a decision on that plea, it is necessary to give a ruling on the Court’s jurisdiction.
34
Under Article 275 TFEU:
‘The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions.
However, the Court shall have jurisdiction to monitor compliance with Article 40 of the Treaty on European Union and to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.’
35
Article 4 of Decision 2010/413 provides as follows:
‘1.   The sale, supply or transfer of key equipment and technology for the following key sectors of the oil and natural gas industry in Iran, or to Iranian or Iranian-owned enterprises engaged in those sectors outside Iran, by nationals of Member States, or from the territories of Member States, or using vessels or aircraft under the jurisdiction of Member States shall be prohibited whether or not originating in their territories:
(a)
refining;
(b)
liquefied natural gas;
(c)
exploration;
(d)
production.
The Union shall take the necessary measures in order to determine the relevant items to be covered by this provision.
2.   It shall be prohibited to provide the following to enterprises in Iran that are engaged in the key sectors of the Iranian oil and gas industry referred to in paragraph 1 or to Iranian, or Iranian-owned enterprises engaged in those sectors outside Iran:
(a)
technical assistance or training and other services related to key equipment and technology as determined according to paragraph 1;
(b)
financing or financial assistance for any sale, supply, transfer or export of key equipment and technology as determined according to paragraph 1 or for the provision of related technical assistance or training.
3.   It shall be prohibited to participate, knowingly or intentionally, in activities the object or effect of which is to circumvent the prohibitions referred to in paragraphs 1 and 2.’
36
Decision 2010/413 was adopted on the basis of Article 29 EU, which is a provision concerning the common foreign and security policy within the meaning of Article 275 TFEU. It is therefore necessary to ascertain whether Article 4 of the decision fulfils the conditions set out in the second paragraph of Article 275 TFEU.
37
First, the prohibition measures laid down by Article 4 of Decision 2010/413 are of a general nature, their scope being determined by reference to objective criteria and not by reference to identified natural or legal persons. Consequently, as the Council and the Commission claim, Article 4 of Decision 2010/413 is not a decision providing for restrictive measures against natural or legal persons within the meaning of the second paragraph of Article 275 TFEU.
38
Secondly, the restrictive measures adopted in relation to the applicant arise from the implementation of Article 20 of Decision 2010/413 and not from Article 4. Therefore the latter cannot, in the present case, be the subject of a plea of illegality under Article 277 TFEU, read in conjunction with Article 263 TFEU.
39
Therefore it must be concluded that, under the first paragraph of Article 275 TFEU, the Court does not have jurisdiction to take cognisance of an action seeking to assess the legality of Article 4 of Decision 2010/413 and, thereby, to give a ruling on the second part of the first plea.
Admissibility of the application for annulment of Decision 2010/644 and Regulation No 961/2010
40
As is made clear in paragraphs 9 and 10 above, since the application was lodged, the list in Annex II to Decision 2010/413 has been replaced by a new list adopted in Decision 2010/644 and Regulation No 423/2007 has been repealed and replaced by Regulation No 961/2010. The applicant has sought leave to adapt its original claims so that its action seeks the annulment of those four measures (taken together, ‘the contested measures’).
41
It is to 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 adapt 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 to the European Union judicature, 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 decision (see, by analogy, Case T-256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II-3019, paragraph 46, and the case-law cited).
42
It is therefore appropriate in the present case, in accordance with that case-law, to allow the applicant’s request and to consider that, on the date on which the oral procedure was closed, its action sought annulment of Decision 2010/644 and Regulation No 961/2010, in so far as those measures concern it, and to allow the parties to reformulate their claims, pleas in law 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, by analogy, People’s Mojahedin Organization of Iran v Council, paragraph 41 above, paragraph 47).
The submissions of the Council and the Commission concerning the admissibility of the pleas alleging violation of the applicant’s fundamental rights
43
At the hearing, the Council and the Commission contended that the applicant should be regarded as a government organisation and, therefore, as an offshoot of the Iranian State, which could not plead the protection and safeguards connected with fundamental rights. The Council and the Commission therefore consider that the pleas concerning the alleged violation of those rights must be ruled inadmissible.
44
On that point, it must be observed, first, that the Council and the Commission do not dispute the right of the applicant itself to seek the annulment of the contested measures. The Council and the Commission deny only that it has certain rights upon which it relies in order to obtain annulment.
45
Secondly, the question of whether the applicant has or does not have the right which it pleads in support of a plea of annulment does not concern the admissibility of that plea, but its merits. Consequently, the argument of the Council and the Commission that the applicant is a government organisation must be dismissed in so far as it aims at a finding that the action is partly inadmissible.
46
Thirdly, the argument was raised for the first time at the hearing, but neither the Council nor the Commission claimed that it was based on matters of law or 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 of the General Court, from which it follows that it must be ruled inadmissible.
Substance
47
The Court considers that the applicant’s pleas should be examined in the following order:
—
fifth plea: the Council has no power to adopt the contested measures;
—
sixth plea: misuse of power;
—
first plea, first part: retroactive entry into force of Decision 2010/413;
—
second plea: failure in the obligation to state reasons;
—
third plea: violation of the applicant’s rights of defence and right to effective judicial protection;
—
seventh plea: error of law with regard to the concept of involvement in nuclear proliferation;
—
eighth plea: error in the assessment of the facts relating to the applicant’s activities;
—
fourth plea: breach of the principle of proportionality;
—
ninth plea, put forward in the alternative: manifest error of assessment and breach of the principle of proportionality.
Fifth plea: the Council has no power to adopt the contested measures
48
The applicant submits that the Council had no power to adopt the contested measures. First, it claims that the legal basis of the contested measures is the Declaration on Iran of the European Council of 17 June 2010 (‘Declaration of 17 June 2010’). Secondly, according to the applicant, the Declaration merely provides for the Council to implement Resolution 1929 (2010) of the United Nations Security Council (‘Resolution 1929 (2010)’) and the adoption of accompanying measures, but does not provide for the freezing of independent funds. Thirdly, Resolution 1929 (2010) does not contain measures relating to the Iranian oil and gas industry or to the applicant. The applicant concludes that the Council has no power to adopt restrictive measures against it on the basis of the Declaration of 17 June 2010.
49
The Council, supported by the Commission, disputes the merits of the applicant’s arguments.
50
First of all, it must be observed that the Council adopted restrictive measures in relation to the applicant because of the support allegedly given by the applicant to nuclear proliferation and not merely because the applicant operated in the oil, gas and petrochemical sectors. Consequently, the fact that Resolution 1929 (2010) contains no specific measures relating to the last sector is irrelevant.
51
In addition, Resolution 1929 (2010) aims to prevent nuclear proliferation, particularly by securing compliance with the earlier United Nations Security Council resolutions on the subject. Therefore implementation of the resolution is likely to be accompanied by restrictive measures in relation to entities which have supported nuclear proliferation.
52
Consequently, the wording of point 4 of the Declaration of 17 June 2010, which states that the Foreign Affairs Council is invited ‘to adopt measures implementing those contained in [Resolution 1929 (2010)] as well as accompanying measures’ covers the adoption of restrictive measures such as those relating to the applicant.
53
In addition, point 4 of the Declaration of 17 June 2010 contains a passage stating that new visa bans and asset freezes should be extended to members of the Islamic Revolutionary Guard Corps. Contrary to the applicant’s argument, that wording provides for the possibility of adopting restrictive measures, including independent measures.
54
Therefore it must be found that the Council, by adopting restrictive measures in relation to the applicant, complied with the first subparagraph of Article 26(2) [EU], according to which the Council is deemed to act ‘on the basis of the general guidelines and strategic lines defined by the European Council’.
55
It must consequently be found that the Council had power to adopt restrictive measures in relation to the applicant and the fifth plea must be dismissed as unfounded.
Sixth plea: misuse of power
56
The applicant submits that the Council misused its power by adopting restrictive measures in relation to the applicant without having proof of its involvement in nuclear proliferation and without taking account of its procedural rights. According to the applicant, this means that the Council in fact attempted to misuse the restrictive measures’ system connected with nuclear proliferation in order to target the Iranian oil, gas and petrochemical industry.
57
The Council, supported by the Commission, disputes the merits of the applicant’s arguments.
58
According to case-law, a measure is vitiated by misuse of powers only if it appears on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see Case T-390/08 Bank Melli Iran v Council [2009] ECR II-3967, paragraph 50, and the case-law cited).
59
In the present case, the applicant has not shown that such evidence exists. It has not adduced evidence suggesting that the circumstances to which it refers, assuming them to be proved, were not due to ordinary errors on the part of the Council, but arose from an intention to achieve aims other than that of preventing nuclear proliferation.
60
Consequently, the sixth plea in law must be dismissed as unfounded.
First plea, first part: retroactive entry into force of Decision 2010/413
61
The applicant submits that Decision 2010/413 is illegal in so far as Article 28 provided that the decision would enter into force on the date of adoption, which preceded the date of publication in the Official Journal of the European Union.
62
The Council and the Commission dispute the merits of the applicant’s arguments.
63
The second subparagraph of Article 297(2) TFEU provides as follows:
‘Regulations and directives which are addressed to all Member States, as well as decisions which do not specify to whom they are addressed, shall be published in the Official Journal of the European Union. They shall enter into force on the date specified in them or, in the absence thereof, on the 20th day following that of their publication.’
64
On the one hand, it must be observed that a fundamental principle in the European Union legal order requires that a measure adopted by the public authorities shall not be applicable to those concerned before they have the opportunity to make themselves acquainted with it. On the other hand, as a general rule, the principle of legal certainty precludes a European Union measure from taking effect from a point in time before its publication, save exceptionally where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected (Case 99/78 Weingut Decker [1979] ECR 101, paragraphs 3 and 8).
65
In the present case, it is not disputed that, whereas Decision 2010/413, which does not indicate an addressee, was adopted on 26 July 2010, it was not published in the Official Journal of the European Union until the next day.
66
Moreover, the Council does not even put forward any grounds which would justify allowing retroactive effect to Decision 2010/413.
67
In those circumstances, Article 28 of Decision 2010/413 must be annulled in so far as it concerns the applicant and the decision must be deemed to have entered into force on the 20th day following its publication in the Official Journal of the European Union.
68
However, the applicant puts forward no argument to show that those circumstances are such as to affect the legality of the other provisions of Decision 2010/413 in so far as they concern the applicant.
69
Therefore the first part of the first plea must be upheld in so far as it seeks the annulment of Article 28 of Decision 2010/413 and must be dismissed as ineffective with regard to the remainder.
Second plea: failure in the obligation to state reasons
70
The applicant submits that the Council did not state to the requisite legal standard the reasons for the contested measures, so that the applicant is not in a position to ascertain the matters alleged against it and to verify or refute the merits of the reasons given.
71
The Council, supported by the Commission, disputes the merits of the applicant’s arguments. The Council contends that the reasons given relate to the applicant’s support for nuclear proliferation. The Council adds that the contested measures were adopted in a context of which the applicant was aware.
72
The purpose of the obligation to state the reasons for an act adversely affecting a person, as laid down in the second paragraph of Article 296 TFEU, and, more particularly in the present case, in Article 24(3) of Decision 2010/413, Article 15(3) of Regulation No 423/2007 and Article 36(3) of Regulation No 961/2010, is, first, to provide the person concerned with sufficient information to make it possible to determine whether the act 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 those courts to review the lawfulness of the act. 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 and a 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, Bank Melli Iran v Council, paragraph 58 above, paragraph 80, and the case-law cited).
73
Consequently, unless there are compelling reasons touching on the security of the European Union or of its Member States or the conduct of their international relations which prevent the communication of certain information, the Council is required, under Article 24(3) of Decision 2010/413, Article 15(3) of Regulation No 423/2007 and Article 16(2) of Regulation No 961/2010, to inform the entity covered by a measure adopted under, respectively, Article 24(3) of Decision 2010/413, Article 15(3) of Regulation No 423/2007 or Article 16(2) of Regulation No 961/2010 of the actual and specific reasons why it considers that that provision is applicable to the entity concerned. It must thus state the matters of fact and law which constitute the legal basis of the measure and the considerations which led it to adopt that measure (see, to that effect, Bank Melli Iran v Council, paragraph 58 above, paragraph 81, and the case-law cited).
74
Moreover, the statement of reasons must be appropriate to the measure 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 matters of fact and law, since the question whether the statement of reasons is adequate 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 decision are sufficient if it was adopted in circumstances known to the party concerned which enable him to understand the scope of the measure concerning him (see Bank Melli Iran v Council, paragraph 58 above, paragraph 82, and the case-law cited).
75
In the present case, it is clear from the reasons stated in the contested measures that the Council relies on three independent grounds justifying the adoption of restrictive measures in relation to the applicant. Consequently, they must be examined one by one.
76
Regarding the first ground, which is that the applicant trades in equipment for the oil and gas sector that can be used for Iran’s nuclear programme, it must be admitted, as the applicant claims, that the reasons given are very general as they do not specify the nature or the categories of the equipment in question and the nature of the activities alleged against the applicant.
77
However, in view of the explanations given during the hearing, it must be found that the reasons are sufficient. It appears from the Council’s reply to a question from the Court that the first ground is not based on specific purchases of goods which were actually used for purposes of nuclear proliferation, but on the general circumstance that the goods purchased by the applicant belonging to the gas, oil and petrochemical sectors could be used for those purposes. That circumstance is known to the applicant, which has expressly admitted that to be the case in its written pleadings but, in the seventh plea, it denies that that is relevant to the concept of involvement in nuclear proliferation. Accordingly it must be found that the reasons given enabled the applicant to verify whether the contested measures are well founded, to defend itself before the Court and to enable the Court to review the legality of the measures.
78
Regarding the second ground, namely that the applicant attempted to purchase hard-wearing alloy gates used only in the nuclear industry, it must be observed that the reasons given specify the type of goods in question, thus enabling the applicant to dispute the alleged attempt to purchase and to allege that the hard-wearing alloy gates used by it are not intended solely for the nuclear industry.
79
By contrast, the third ground, which is that the applicant maintains links with the companies taking part in Iran’s nuclear programme, is insufficient in so far as it does not explain what kind of relations it is actually alleged to have with what entities, so that it is unable to verify whether the allegation is well founded and to challenge it with the slightest degree of precision.
80
Consequently, on the one hand, the second plea must be dismissed as unfounded in so far as it relates to the first and second grounds stated by the Council. On the other hand, the second plea must be upheld so far as the third ground is concerned and therefore the contested measures must be annulled.
81
As the three grounds concerned are independent, that finding does not entail the annulment of the contested measures in so far as they introduce restrictive measures in relation to the applicant. However, the third ground cannot be taken into consideration when the other pleas of the application are examined, particularly the eighth plea relating to erroneous assessment of the facts.
Third plea: violation of the applicant’s rights of defence and right to effective judicial protection
82
The applicant claims that the Council, by adopting Decision 2010/413 and Implementing Regulation No 668/2010, violated the applicant’s rights of defence, which also entails a violation of its right to effective judicial protection.
83
The Council, supported by the Commission, disputes the merits of the applicant’s arguments. First, it submits that the applicant cannot plead the principle of respect for the rights of the defence. Secondly, the Council considers that it has in any case respected that principle and also the applicant’s right to effective judicial protection.
– The rights of the defence
84
According to settled case-law, 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 58 above, paragraph 91).
85
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. Secondly, it must be 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).
86
As a preliminary point, 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 contend that the applicant was not subject to restrictive measures by reason of its own activities, but by reason of its membership of a general category of persons and entities. Consequently, the proceedings for the adoption of the restrictive measures were not initiated against the applicant within the meaning of the case-law cited in paragraph 84 above and it cannot, therefore, rely on the rights of the defence, or can rely on those rights only to a limited extent.
87
That argument cannot be accepted.
88
First, it is clear from the reasons stated in the contested measures that the imposition of restrictive measures on the applicant is justified, in particular, by the transactions which it attempted to carry out and the links which it maintained with certain entities. Unlike the persons concerned in Tay Za v Council, paragraph 86 above, the applicant is subject to the restrictive measures because it is presumed to be involved in nuclear proliferation, and not because it belongs to a general category of persons and entities associated with the Islamic Republic of Iran.
89
Consequently, the reasoning in paragraphs 121 to 123 of Tay Za v Council, paragraph 86 above, is not transposable to the present case.
90
Secondly, in any event, Article 24(3) and (4) of Decision 2010/413, Article 15(3) of Regulation No 423/2007 and Article 36(3) and (4) of Regulation No 961/2010 set out provisions to safeguard the rights of 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 (Bank Melli Iran v Council, paragraph 58 above, paragraph 37).
91
In those circumstances, it must be concluded that the principle of respect for the rights of the defence can be relied on by the applicant in the present case.
92
According to the case-law, as regards an initial measure whereby the funds of an entity are frozen, the evidence adduced against that entity should be notified 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 (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, paragraph 342, and Organisation des Modjahedines du peuple d’Iran v Council, paragraph 85 above, paragraph 137).
93
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 institution 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 58 above, paragraph 97, and the case-law cited).
94
In the present case, first, with regard to the disclosure of the evidence against the applicant, the applicant was individually informed by letter of 29 July 2010 of the adoption of Decision 2010/413 and of Implementing Regulation No 668/2010.
95
Regarding the content of the letter, the applicant complains that the statement of reasons was vague, with the result that the applicant was obliged to adduce negative proof.
96
However, it is clear from the examination of the second plea above that the reasons stated in the contested measures were to the requisite legal standard in the case of the first and second grounds put forward by the Council.
97
Therefore it must be found that the Council did not violate the applicant’s rights of defence in relation to the original notification of the evidence against it.
98
Secondly, the applicant submits that it was not given access to the evidence and information concerning it in the Council’s file notwithstanding the express request in the letter of 12 September 2010. The Council denies that any such request was made.
99
The letter of 12 September 2010 contains the following passage:
‘In addition, in order for [the applicant] to be able to exercise its rights, the Council is asked to inform the company, with a reasonable level of detail, regarding:
(i)
the alleged attempts to purchase very hard-wearing alloy gates;
(ii)
the alleged links with companies, organisations and institutions connected with the nuclear programme;
(iii)
the nature of the equipment that could be used for Iran’s nuclear programme.’
100
The Council did not reply to that request in its letter of 28 October 2010.
101
Therefore it must be found that the Council violated the applicant’s rights of defence by not replying to the request for access to the file which was made by the applicant in good time.
102
Thirdly, with regard to the applicant’s right to assert its point of view effectively regarding the evidence concerning it, it must be observed that, following the adoption of the first measures whereby the applicant’s funds were frozen on 26 July 2010, it sent a letter to the Council on 12 September 2010 setting out its point of view and asking for the restrictive measures against it to be lifted. The Council replied by letter of 28 October 2010.
103
In the same context, the applicant complains that it had only a very short period within which to submit to the Council a request for a review, given the delay in sending the letter informing it of the adoption of the restrictive measures against it.
104
First, the period in question, from 25 August to 15 September 2010, was almost three weeks, which must be considered sufficient, taking account of the circumstances of the case and, in particular, the limited amount of information referred to by the Council. Secondly, in any case, the applicant merely makes a general allegation, without explaining the specific impact of the limited period on its defence. Consequently, its argument on that point cannot be accepted.
105
In view of the foregoing, it must be found that the applicant’s right to put forward its point of view effectively in that connection was upheld.
– The right to effective judicial protection
106
It has consistently been held that 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 in Rome on 4 November 1950. 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 that decision, in order to enable the entity concerned to exercise, within the periods prescribed, 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, Kadi and Al Barakaat International Foundation v Council and Commission, paragraph 92 above, paragraphs 335 to 337, and the case-law cited).
107
In the present case, it is clear from the examination of the second plea that the applicant had sufficiently exact information in good time concerning the first two grounds put forward by the Council to justify the adoption of restrictive measures against the applicant. However, as found in paragraphs 98 to 101 above, the Council did not reply to the applicant’s request for access to the information in the file, which was made before the expiry of the time-limit for bringing an action.
108
In principle, that is likely to have affected the applicant’s defence before the Court and therefore results in a violation of the applicant’s right to effective judicial protection.
109
In view of all the foregoing, the third plea must be upheld and the contested measures must be annulled in so far as they concern the applicant.
110
However, in its written pleadings before the Court, the Council confirmed, in essence, that its file did not contain evidence or information other than that reproduced in the statements of reasons for the contested measures. In those circumstances, for the sake of procedural efficiency and in the interest of the sound administration of justice, it is necessary to examine the seventh and eighth pleas alleging an error of law with regard to the concept of involvement in nuclear proliferation and an error in the assessment of the facts relating to the applicant’s activities. Such examination may avoid a further action, as the case may be, before the Court based on the same arguments as those in the present case.
Seventh plea: error of law with regard to the concept of involvement in nuclear proliferation
111
The applicant claims that the Council erred in law in relying on the first ground, alleging that the applicant trades in equipment for the oil and gas sectors that can be used for Iran’s nuclear programme. The applicant claims that that circumstance alone does not justify the adoption of restrictive measures.
112
The Council, supported by the Commission, disputes the merits of the applicant’s arguments. The Council contends that the fact that the applicant may procure, for members of the National Iranian Oil Company group, equipment which may be used in connection with Iran’s nuclear programme constitutes support for nuclear proliferation.
113
As appears from paragraph 77 above, the first ground put forward by the Council is not based on specific acts of the applicant involving it in nuclear proliferation. It is based on the finding that the applicant presents a particular risk of being involved in it by reason of its position as the central purchasing body of the National Iranian Oil Company group.
114
Article 20(1) of Decision 2010/413 provides for freezing of the funds of ‘persons and entities … providing support’ for nuclear proliferation. Likewise, Article 7(2) of Regulation No 423/2007 and Article 16(2)(a) of Regulation No 961/2010 refer, inter alia, to entities identified as ‘providing support’ for nuclear proliferation.
115
The wording used by the legislature implies that the adoption of restrictive measures against an entity on account of the support which it has allegedly given to nuclear proliferation presupposes that it has literally done so previously. By contrast, if it has not actually done so, the mere risk that the entity concerned may provide support for nuclear proliferation in the future is not sufficient.
116
It must therefore be found that the Council erred in law by adopting a contrary interpretation of Article 20(1) of Decision 2010/413, Article 7(2) of Regulation No 423/2007 and Article 16(2)(a) of Regulation No 961/2010.
117
On that point, the Council also claims that it is authorised, under Article 215(1) TFEU, to interrupt completely economic and financial relations with a third country and to adopt restrictive measures against specific sectors of that country.
118
However, that does not apply in the present case. The provisions forming the basis of the restrictive measures against the applicant and listed in paragraph 116 above do not provide for such general or sectoral measures, but individual measures.
119
In view of the foregoing, the seventh plea must be upheld and, consequently, the contested measures must be annulled in so far as the first ground is concerned.
Eighth plea: error in the assessment of the facts relating to the applicant’s activities
120
First of all, it must be recalled that, in view of the outcome of the examination of the second and seventh pleas above, examination of the present plea is limited to the second ground put forward by the Council, alleging that the applicant attempted to procure very hard-wearing alloy gates which have no use outside the nuclear industry.
121
On that point, the applicant claims that, contrary to the Council’s declaration in the statements of reasons for the contested measures, the gates which it procures are not used exclusively by the nuclear industry, but also in the gas, oil and petrochemical sectors.
122
The Council, supported by the Commission, disputes the merits of the applicant’s arguments. It claims that the applicant has not shown that it never attempted to procure gates used only in the nuclear industry.
123
It has consistently been held that the judicial review of the lawfulness of a measure whereby restrictive measures are imposed on an entity extends to the assessment of the facts and circumstances relied on as justifying it, and to the evidence and information on which that assessment is based. In the event of challenge, it is for the Council to present that evidence for review by the Courts of the European Union (see, to that effect, Bank Melli Iran v Council, paragraph 58 above, paragraphs 37 and 107).
124
In the present case, the Council has produced no information or evidence concerning the second ground, going beyond the reasons stated for the contested measures. As the Council itself admits, in essence, it has relied on mere unsubstantiated allegations that the applicant had attempted to procure very hard-wearing alloy gates which have no use outside the nuclear industry.
125
In those circumstances, it must be held that the Council has not adduced proof of the allegations relied on in the context of the second ground.
126
Consequently, the eighth plea must be upheld in so far as it relates to the second ground put forward by the Council and the contested measures must be annulled so far as the second ground is concerned.
127
In view of all the foregoing, the action must be upheld and the contested measures must be annulled in so far as they concern the applicant.
128
As regards the time factor in relation to 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, ceased to have legal effect after Regulation No 423/2007 was repealed by Regulation No 961/2010. Consequently, the annulment of Implementing Regulation No 668/2010 concerns only the effects which it produced between entering into force and repeal.
129
Next, in respect of Regulation No 961/2010, it must be recalled 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 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. The Council therefore has a period of two months, extended on account of distance by 10 days, as from the notification of this judgment, to remedy the infringement established by the General Court 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 961/2010 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, judgment of 16 September 2011 in Case T‑316/11 Kadio Morokro v Council, not published in the ECR, paragraph 38).
130
Lastly, as regards the time factor in relation to the annulment of Decision 2010/413, as amended by Decision 2010/644, 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 961/2010 and that of Decision 2010/413, as amended by Decision 2010/644, take effect were to differ, that would be likely seriously to jeopardise legal certainty, since those two acts impose on the applicants measures which are identical. The effects of Decision 2010/413, as amended by Decision 2010/644, must therefore be maintained as regards the applicant from the date of its entry into force on the 20th day following its publication in the Official Journal of the European Union until the annulment of Regulation No 961/2010 takes effect (see, by analogy, on the latter point Kadio Morokro v Council, paragraph 129 above, paragraph 39).
Costs
131
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. As the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
132
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.
Declares that the Court has no jurisdiction to give a ruling on the second part of the first plea;
2.
Annuls the following measures in so far as they concern Manufacturing Support & Procurement Kala Naft Co., Tehran:
—
Council Decision 2010/413/CFSP of 26 July 2010, concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP,
—
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,
—
Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413,
—
Council Regulation (EU) No 961/2010 of 25 October 2010 concerning restrictive measures against Iran and repealing Regulation (EC) No 423/2007;
3.
Orders that the effects of Decision 2010/413, as amended by Decision 2010/644, be maintained as regards Manufacturing Support & Procurement Kala Naft Co., Tehran, from the date of its entry into force on the 20th day following its publication in the Official Journal of the European Union until the annulment of Regulation No 961/2010 takes effect;
4.
Orders the Council of the European Union to pay, in addition to its own costs, those of Manufacturing Support & Procurement Kala Naft Co., Tehran;
5.
Orders the European Commission to bear its own costs.
Pelikánová
Jürimäe
Van der Woude
Delivered in open court in Luxembourg on 25 April 2012.
[Signatures]
Table of contents
Background to the dispute
Restrictive measures against the Islamic Republic of Iran
Restrictive measures concerning the applicant
Procedure and forms of order sought by the parties
Law
The Court’s jurisdiction to rule on the second part of the first plea
Admissibility of the application for annulment of Decision 2010/644 and Regulation No 961/2010
The submissions of the Council and the Commission concerning the admissibility of the pleas alleging violation of the applicant’s fundamental rights
Substance
Fifth plea: the Council has no power to adopt the contested measures
Sixth plea: misuse of power
First plea, first part: retroactive entry into force of Decision 2010/413
Second plea: failure in the obligation to state reasons
Third plea: violation of the applicant’s rights of defence and right to effective judicial protection
– The rights of the defence
– The right to effective judicial protection
Seventh plea: error of law with regard to the concept of involvement in nuclear proliferation
Eighth plea: error in the assessment of the facts relating to the applicant’s activities
Costs
(
*1
)	Language of the case: French.