EN Official Journal of the European Union C 49/13

Judgment of the Court (Third Chamber) of 21 December 2011 (reference for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Criminal proceedings against Mohsen Afrasiabi, Behzad Sahabi, Heinz Ulrich Kessel

(Case C-72/11) (1)

(Common foreign and security policy - Restrictive measures against the Islamic Republic of Iran to prevent nuclear proliferation - Regulation (EC) No 423/2007 - Article 7(3) and (4) - Supply and installation of a sintering furnace in Iran - Concept of ‘indirectly making available’ an ‘economic resource’ to persons, entities and bodies listed in Annexes IV and V to that regulation - Concept of ‘circumvention’ of the prohibition on making that resource available)

2012/C 49/21

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties in the main proceedings

Mohsen Afrasiabi, Behzad Sahabi, Heinz Ulrich Kessel

Re:

Reference for a preliminary ruling — Oberlandesgericht Düsseldorf — Interpretation of Article 7(3) and (4) of Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1) — Delivery of equipment referred to in Annex II of Regulation (EC) No 423/2007 in an unusable condition to an Iranian legal person not referred to in Annexes IV and V of that regulation — Equipment allegedly intended for later production for an entity referred to in those two annexes — Scope of the prohibition on making available economic resources to the persons listed in Annexes IV and V of the aforesaid regulation — Concept of ‘making available indirectly’ — Simultaneous application of the provisions prohibiting the making available of economic resources, on the one hand, and the contravention of the latter prohibition, on the other hand

Operative part of the judgment

1. Article 7(3) of Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran must be interpreted as meaning that the prohibition on indirectly making available an economic resource, within the meaning of Article 1(i) of that regulation, encompasses acts relating to the supply and installation in Iran of a sintering furnace in working condition but not yet ready to use for the benefit of a third party which, acting on behalf, under the control or on the instructions of a person, an entity or a body listed in Annexes IV and V to that regulation, intends to use that furnace to manufacture, for the benefit of such a person, entity or body, goods capable of contributing to nuclear proliferation in that State;

2. Article 7(4) of Regulation No 423/2007 must be interpreted as meaning that: — it covers activities which, under cover of a formal appearance which enables them to avoid the constituent elements of an infringement of Article 7(3) of the regulation, none the less have the object or effect, direct or indirect, of frustrating the prohibition laid down in that provision; — the terms ‘knowingly’ and ‘intentionally’ imply cumulative requirements of knowledge and intent, which are met where the person participating in an activity having such an object or such an effect deliberately seeks that object or effect or is at least aware that his participation may have that object or that effect and he accepts that possibility.

(1) OJ C 252, 27.8.2011.