Case C‑280/12 P

Council of the European Union

v

Fulmen and Fereydoun Mahmoudian

‛Appeal — Restrictive measures against the Islamic Republic of Iran with the aim of preventing nuclear proliferation — Freezing of funds — Obligation to substantiate the measure’

Summary — Judgment of the Court (Fifth Chamber), 28 November 2013

European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures against Iran — Measures taken in the campaign against nuclear proliferation — Scope of review

(Art. 275, second para., TFEU; Charter of Fundamental Rights of the European Union, Arts 41(2) and 47; Council Decision 2010/413/CFSP)

In a review of restrictive measures, the Courts of the European Union must ensure the review, in principle the full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the EU legal order, such as, inter alia, respect for the rights of the defence and the right to effective judicial protection.

The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union also requires that the Courts of the European Union are to ensure that the decision, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the allegations factored in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated. To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent EU authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination.

If the competent EU authority finds itself unable to comply with the request by the Courts of the European Union, it is the duty of those Courts to base their decision solely on the material which has been disclosed to them. If that material is insufficient to allow a finding that a reason is well founded, the Courts of the European Union shall disregard that reason as a possible basis for the contested decision to list or maintain a listing. If, on the other hand, the competent EU authority provides relevant information or evidence, the Courts of the European Union must determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person concerned.

Where overriding considerations pertaining to the security of the European Union or of its Member States or to the conduct of their international relations may preclude the disclosure of some information or some evidence to the person concerned, it is the task of the Courts of the European Union, before whom the secrecy or confidentiality of that information or evidence is no valid objection, to apply, in the course of the judicial review to be carried out, techniques which accommodate, on the one hand, legitimate security considerations about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need sufficiently to guarantee to an individual respect for his procedural rights, such as the right to be heard and the requirement for an adversarial process.

If the Courts of the European Union conclude that the reasons relied on by the competent EU authority do not preclude disclosure, at the very least partial disclosure, of the information or evidence concerned, they shall give that authority the opportunity to make such disclosure to the person concerned. If that authority does not permit the disclosure of that information or evidence, in whole or in part, the Courts of the European Union shall undertake an examination of the lawfulness of the contested measure solely on the basis of the material which has been disclosed. On the other hand, if it turns out that the reasons relied on by the competent EU authority do indeed preclude the disclosure to the person concerned of information or evidence produced before the Courts of the European Union, it is necessary to strike an appropriate balance between the requirements attached to the right to effective judicial protection, in particular respect for the principle of an adversarial process, and those flowing from the security of the European Union or its Member States or the conduct of their international relations. In order to strike such a balance, it is legitimate to consider possibilities such as the disclosure of a summary outlining the information’s content or that of the evidence in question. Irrespective of whether such possibilities are taken, it is for the Courts of the European Union to assess whether and to what the extent the failure to disclose confidential information or evidence to the person concerned and his consequential inability to submit his observations on them are such as to affect the probative value of the confidential evidence.

(see paras 58, 59, 64, 65, 68-70, 72-74)

Case C‑280/12 P

Council of the European Union

v

Fulmen and Fereydoun Mahmoudian

‛Appeal — Restrictive measures against the Islamic Republic of Iran with the aim of preventing nuclear proliferation — Freezing of funds — Obligation to substantiate the measure’

Summary — Judgment of the Court (Fifth Chamber), 28 November 2013

European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures against Iran — Measures taken in the campaign against nuclear proliferation — Scope of review

(Art. 275, second para., TFEU; Charter of Fundamental Rights of the European Union, Arts 41(2) and 47; Council Decision 2010/413/CFSP)

In a review of restrictive measures, the Courts of the European Union must ensure the review, in principle the full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the EU legal order, such as, inter alia, respect for the rights of the defence and the right to effective judicial protection.

The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union also requires that the Courts of the European Union are to ensure that the decision, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the allegations factored in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated. To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent EU authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination.

If the competent EU authority finds itself unable to comply with the request by the Courts of the European Union, it is the duty of those Courts to base their decision solely on the material which has been disclosed to them. If that material is insufficient to allow a finding that a reason is well founded, the Courts of the European Union shall disregard that reason as a possible basis for the contested decision to list or maintain a listing. If, on the other hand, the competent EU authority provides relevant information or evidence, the Courts of the European Union must determine whether the facts alleged are made out in the light of that information or evidence and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person concerned.

Where overriding considerations pertaining to the security of the European Union or of its Member States or to the conduct of their international relations may preclude the disclosure of some information or some evidence to the person concerned, it is the task of the Courts of the European Union, before whom the secrecy or confidentiality of that information or evidence is no valid objection, to apply, in the course of the judicial review to be carried out, techniques which accommodate, on the one hand, legitimate security considerations about the nature and sources of information taken into account in the adoption of the act concerned and, on the other, the need sufficiently to guarantee to an individual respect for his procedural rights, such as the right to be heard and the requirement for an adversarial process.

If the Courts of the European Union conclude that the reasons relied on by the competent EU authority do not preclude disclosure, at the very least partial disclosure, of the information or evidence concerned, they shall give that authority the opportunity to make such disclosure to the person concerned. If that authority does not permit the disclosure of that information or evidence, in whole or in part, the Courts of the European Union shall undertake an examination of the lawfulness of the contested measure solely on the basis of the material which has been disclosed. On the other hand, if it turns out that the reasons relied on by the competent EU authority do indeed preclude the disclosure to the person concerned of information or evidence produced before the Courts of the European Union, it is necessary to strike an appropriate balance between the requirements attached to the right to effective judicial protection, in particular respect for the principle of an adversarial process, and those flowing from the security of the European Union or its Member States or the conduct of their international relations. In order to strike such a balance, it is legitimate to consider possibilities such as the disclosure of a summary outlining the information’s content or that of the evidence in question. Irrespective of whether such possibilities are taken, it is for the Courts of the European Union to assess whether and to what the extent the failure to disclose confidential information or evidence to the person concerned and his consequential inability to submit his observations on them are such as to affect the probative value of the confidential evidence.

(see paras 58, 59, 64, 65, 68-70, 72-74)