EN Official Journal of the European Union C 421/22

Appeal brought on 23 September 2014 by National Iranian Oil Company against the judgment delivered on 16 July 2014 in Case T-578/12 National Iranian Oil Company v Council

(Case C-440/14 P)

2014/C 421/33

Language of the case: French

Parties

Appellant: National Iranian Oil Company (represented by: J.-M. Thouvenin, avocat)

Other parties to the proceedings: Council of the European Union, European Commission

Form of order sought

— set aside the judgment of 16 July 2014 of the Seventh Chamber of the General Court of the European Union in Case T-578/12;

— grant the forms of order sought by the appellant in the proceedings before the General Court;

— order the defendant to pay the costs of both proceedings.

Pleas in law and main arguments

In support of its action, the appellant raises six grounds of appeal against the judgment of the General Court delivered on 16 July 2014.

As the first ground of appeal, the appellant claims that the General Court erred in law in paragraph 43 of the judgment under appeal by holding that by referring to Article 46(2) of Regulation (EU) No 267/2012 (1), Council Implementing Regulation (EU) No 945/2012 (2) must be considered to state clearly that its legal basis is constituted by Article 46(2) of Regulation No 267/2012. A legal basis lays down the legal form which the measure based on it must take; however, Article 46(2) does not lay down any legal form.

As the second ground of appeal, the appellant claims that the General Court erred in law in paragraphs 54 to 56 of the judgment under appeal, which is stated in the claim that ‘it is not apparent from Article 215(2) that the individual restrictive measures taken against natural or legal persons, groups or non-State entities must be adopted according to the procedure provided for in Article 215(1) TFEU’. First, Article 215(1), the only provision of the TFEU dealing with restrictive measures, lays down clearly that the procedure applicable with respect to such measures is the procedure provided for in that article, and does not provide for any other. Secondly, Article 291 TFEU is incompatible with Article 215(2) TFEU. Finally, in the alternative, Article 291(2) TFEU cannot be regarded as capable of providing the Council with a legal basis in addition to that constituted by Article 215(2) TFEU, for the adoption of restrictive measures.

As the third ground of appeal, which is put forward in the alternative in the event that it is held that recourse to Article 291(2) TFEU, as a basis for the adoption of individual restrictive measures, is legally possible in the context of a policy of adopting restrictive measures initially based on Article 215 TFEU, the appellant claims that the General Court erred in law by holding, in essence, in paragraphs 74 to 83 of its judgment, that the Council of the European Union, to reproduce the wording of Article 291(2), ‘duly justified’ the recourse to that procedure in derogation in this case. First, the justification requirement thus set out cannot be satisfied by a justification which is not express. Secondly, even if an implied justification is capable of satisfying that requirement, it is not fulfilled in this case, since the General Court interpreted the texts concerned wrongly.

As the fourth ground of appeal, which is put forward in the alternative in the event that it is held that recourse to Article 291(2) TFEU, as a basis for the adoption of individual restrictive measures, is legally possible in the context of a policy of adopting restrictive measures initially based on Article 215 TFEU, the appellant claims that the General Court erred in law by holding, in paragraph 86 of its judgment, that Article 46(2) of Regulation No 267/2012 ‘reserves to the Council the power to implement the provisions of Article 23(2) and (3) of that regulation’, which suffices to fulfil the obligation to state reasons concerning the statement of the legal basis of that provision, which is Article 291(2) TFEU. According to the appellant, the General Court came to that conclusion as a result of a legally flawed interpretation of Article 46(2) of Regulation No 267/2012.

As the fifth ground of appeal, which is put forward in the alternative in the event that it is held that recourse to Article 291(2) TFEU, as a basis for the adoption of individual restrictive measures, is legally possible in the context of a policy of adopting restrictive measures initially based on Article 215 TFEU, the appellant claims that the General Court erred in paragraph 87 of its judgment by holding that the obligation to state reasons for legal acts of the European Union did not oblige the Council to state expressly that Regulation (EU) No 267/2012 was based on Article 291(2) TFEU, as far as concerns the legal basis of Article 46(2) of Regulation No 267/2012.

As the sixth ground of appeal, the appellant claims that the General Court erred in law in paragraph 115 of its judgment by holding that the criterion set out in Article 23(2)(d) of Regulation (EU) No 267/2012 (the contested criterion) is compatible with the principles of the rule of law and more generally with EU law since it is ‘neither arbitrary nor discretionary’ and, in paragraph 123 of its judgment that ‘the contested criterion limits the Council’s power of assessment, by providing for objective criteria, and ensures the level of foreseeability required by EU law’. The General Court also infringed the appellant’s rights of defence. The appellant points out first that it is by rewriting the contested criterion that the General Court held it to be compatible with EU law, whereas its lawfulness should be assessed with reference to the way it is expressed in the regulation. It notes next that the fact that the General Court rewrote the contested criterion in order to hold that it is lawful adversely affects the rights of the defence by depriving it of the right to rely on that rewritten text for the purposes of its defence, since it was unaware of the meaning of that rewritten text at the time it developed that defence, while opposing it. Finally, the appellant alleges a lack of consistency in the General Court’s arguments which infringes its obligation to state reasons.

(1) Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1)

(2) Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 282, p. 16)