OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 3 September 2015 ( 1 )

Case C‑440/14 P

National Iranian Oil Company (NIOC)

v

Council

‛Appeal — Restrictive measures adopted against Iran — List of individuals and entities to whom the freezing of funds and economic resources applies — Inclusion of the appellant’s name — Legal basis — Article 215 TFEU — Article 291(2) TFEU — Plea of illegality — Legal interest in bringing proceedings’

1. This appeal has been brought against the judgment of the General Court dismissing the application for a declaration that the inclusion of NIOC in the list of individuals and entities whose assets have been frozen because of their support for a government against which restrictive measures have been taken within the framework of resolutions adopted by the United Nations Security Council is unlawful. The appellant, an Iranian public undertaking operating in the oil and natural gas sector, objects to the restrictive measure to which it has been made subject and advances six grounds of appeal in which it essentially complains, first, that the legal basis authorising the Council to adopt the provision pursuant to which that measure was applied to it is incorrect, and, second, that the criterion used to apply that measure to it is imprecise and vague.

2. Against that background, the Court has an opportunity of specifying the conditions on which, when a challenge is mounted against a restrictive measure, procedural defects or infringement of third party rights may be invoked in support of a plea that the general provision on which that measure is based is unlawful.

3. The Court is also provided with the opportunity of developing its case-law still at an early stage, on the implementing powers governed by Article 291 TFEU, on this occasion compared with the powers conferred on the Council by Article 215 TFEU.

I – Background and legislative framework

4. By Resolution 1929 (2010) of 9 June 2010, the United Nations Security Council broadened the scope of the restrictive measures laid down in Security Council Resolutions 1737 (2006), 1747 (2007) and 1803 (2008) and laid down additional restrictive measures against the Islamic Republic of Iran.

5. On 17 June 2010, the Council of Europe invited the Council of the European Union to take the measures necessary to implement the measures adopted in Resolution 1929 (2010) and other accompanying measures aimed at contributing to the response, through negotiation, to the concerns raised by Iran’s development of technologies related to its nuclear and ballistics programmes.

6. On 26 July 2010, the Council adopted Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP. ( 2 ) Annex II to that decision listed the names of persons and entities — excluding those designated at United Nations level — whose funds and economic resources had been frozen.

7. That decision was amended on 23 January 2012 by Decision 2012/35/CFSP, ( 3 ) recital 13 in the preamble to which states that ‘[t]he restrictions on admission and the freezing of funds and economic resources should be applied to additional persons and entities providing support to the Government of Iran allowing it to pursue proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems, in particular persons and entities providing financial, logistical or material support to the Government of Iran’.

8. Article 1(7)(a)(ii) of Decision 2012/35 provided for the addition of a subparagraph c) to Article 20(1) of Decision 2010/413, which provided for the freezing of funds of ‘other persons and entities not covered by Annex I that provide support to the Government of Iran, and persons and entities associated with them, as listed in Annex II’.

9. On 23 March 2012, the Council adopted Regulation (EU) No 267/2012, ( 4 ) Article 23(2) of which provides for the freezing of funds of the persons, entities and bodies listed in Annex IX who have been identified as ‘d) being other persons, entities or bodies that provide support, such as material, logistical or financial support, to the Government of Iran, and persons and entities associated with them’.

10. In accordance with Article 46(2) of that Regulation, ‘[w]here the Council decides to subject a natural or legal person, entity or body to the measures referred to in Article 23(2) and (3), it shall amend Annex IX accordingly’.

11. On 15 October 2012, the Council adopted Decision 2012/635/CFSP ( 5 ) (‘the contested decision’), recital 16 in the preamble to which states that ‘additional persons and entities should be included in the list of persons and entities subject to restrictive measures as set out in Annex II to Decision 2010/413/CFSP, in particular Iranian State-owned entities engaged in the oil and gas sector, since they provide a substantial source of revenue for the Iranian Government’.

12. Article 1(8)(a) of the contested decision amended Article 20(1)(c) of Decision 2010/413, including as persons who have been subject to restrictive measures ‘other persons and entities not covered by Annex I that provide support to the Government of Iran and entities owned or controlled by them or persons and entities associated with them, as listed in Annex II’.

13. Under Article 2 of the contested decision, the appellant’s name was included in table I of Annex II to Decision 2010/413, headed ‘Persons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of Iran’, and its entry is accompanied by the following note: ’State-owned and operated entity providing financial resources to the Government of Iran. The Minister of Oil is Director of the NIOC Board and the Deputy Minister of Oil is the Managing Director of NIOC.’

14. Also on 15 October 2012, the Council adopted Council Implementing Regulation (EU) No 945/2012 (‘the contested implementing regulation’) ( 6 ) implementing Regulation No 267/2012.

15. Under Article 1 of the contested implementing regulation, the appellant’s name was included in the table in Annex IX to Regulation No 267/2012, which lists ‘Persons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of Iran’, and its entry is accompanied by the following note: ’State-owned and operated entity providing financial resources to the Government of Iran. The Minister of Oil is Director of the NIOC Board and the Deputy Minister of Oil is the Managing Director of NIOC.’

16. On 16 October 2012, the contested decision and implementing regulation were notified to the appellant which, on 26 December 2012, challenged its inclusion in the list, requesting that the Council review its decision. The appellant also asked to be provided with the entire file on the basis of which the contested decision and implementing regulation were adopted, including the evidence on which its inclusion in the list was based and the Member States which had proposed it.

17. By letter of 12 March 2013, the Council sent to the appellant: (a) the proposals for inclusion in the list submitted by four Member States; (b) the minutes of the meeting of the ‘CONEM’ (Middle East/Gulf) working group of 9 October 2012 and (c) the notes of 11 and 12 October 2012 from the General Secretariat of the Council to the Committee of Permanent Representatives (Coreper)/Council and of 12 October 2012 from Coreper to the Council.

18. The Council did not reveal the identities of the Member States which had drafted the proposal, but stated that the proposal had been approved unanimously.

19. The appellant brought an action before the General Court for annulment of the contested decision and implementing regulation, pleading failure to state reasons, lack of legal basis, illegality, errors of law, fact and assessment, infringement of the rights of the defence, the right to sound administration and the right to effective judicial protection, and breach of the principle of proportionality and of the right to property.

20. The action was dismissed by judgment of the General Court of 16 July 2014. ( 7 )

II – The judgment of the General Court

21. The General Court grouped the pleas in law relied upon by the appellant into a total of six. As regards the first plea in law (failure to state reasons because the legal basis was not indicated), examined in paragraphs 39 to 44 of the judgment under appeal, the General Court held that the reference by the contested implementing regulation to Article 46(2) of Regulation No 267/2012 complies with the duty to indicate the legal basis authorising its adoption by the Council.

22. The alleged lack of legal basis, complained of in the second plea in law, was analysed by the General Court in paragraphs 46 to 86 of the judgment under appeal, which examine the lawfulness of Article 46(2) of Regulation No 267/2012, in conjunction with Article 215 TFEU and Article 291(2) TFEU, reaching the conclusion that measures on the freezing of funds could be adopted on the basis of the latter provision and that, in the case before the General Court, the relevant conditions were satisfied for the purposes of conferring implementing powers on the Council.

23. The third plea in law, concerning the illegality of Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012, was dealt with in paragraphs 90 to 132 of the judgment under appeal, which held, in succession, that there was no infringement of the values of the rule of law, of the right to property or of the principle of proportionality, and that the alleged lack of coherence in the way that the criterion at issue was framed by the applicable legislation had not been established.

24. The fourth plea of law, in which the General Court grouped together the appellant’s claim of two errors of law, one error of fact and one error of assessment, was dismissed for the reasons set out in paragraphs 134 to 148 of the judgment under appeal. According to the General Court, it was not possible to uphold the appellant’s complaint of an error in the interpretation of Article 20(1)(c) of Decision 2010/413, an error of fact in stating that the appellant was an entity managed by the Iranian State, or an error of assessment in concluding that, precisely because it was managed by the Iranian authorities, the appellant provided funds for the Iranian Government.

25. The complaints concerning infringement of the duty to state reasons and breach of the rights of the defence, the right to sound administration and the right to effective legal protection were grouped into the fifth plea in law and all those complaints were dismissed by the General Court in paragraphs 151 to 166 of the judgment under appeal; in some cases this was on the grounds that they repeated pleas in law that had already been dismissed and in others because the factors justifying the appellant’s inclusion in the lists at issue were clearly set out in the contested acts and were supported by sufficient reasoning.

26. The sixth and final plea in law referred to alleged infringements of the principle of proportionality and the right to property. Paragraphs 173 to 177 of the judgment under appeal explain that the complaint in question repeats other complaints that have already been dismissed and that the lack of proportionality of the disputed measures could not be substantiated by relying upon events postdating their adoption.

III – The appeal and the procedure before the Court of Justice

27. The appeal is based on six grounds which the Council and the Commission claim should not be upheld for the reasons set out in their respective written observations.

28. NIOC, the Council and the Commission appeared at the hearing held on 28 April 2015, at which they were invited by the Court to answer the following questions: (a) Whether, as far as the Council’s implementing powers are concerned, Articles 24 TEU and 26 TEU, referred to in Article 291(2) TFEU, are relevant. (b) Whether recital 15 in the preamble to Regulation (EU) No 961/2010, ( 8 ) which refers to the Council’s power to amend the lists, could be relevant to the proceedings. (c) Whether the fact that the power of the Council provided for in Article 46(2) of Regulation No 267/2012 was proposed by the Commission and the High Representative has any effect, taking account of the fact that in the judgment in Syrian Lebanese Commercial Bank v Council, ( 9 ) the General Court expressed reservations about the applicant’s entitlement to raise a plea in law which essentially concerned an infringement of the Parliament’s rights and powers. (d) Whether it was necessary, in order to protect the appellant’s interests in the context of Article 277 TFEU, to invoke the fundamental rights of third parties, taking into account the judgment in Wöhrmann and Lütticke v Commission. ( 10 )

A – The grounds of appeal and the Council’s defence

1. First ground of appeal

29. NIOC begins by claiming that Regulation No 267/2012 does not properly indicate the legal basis authorising the Council to adopt the contested implementing regulation, in so far as Article 46(2) of that regulation does not lay down the legal form which the amendment of Annex IX thereto must take. Therefore, the General Court erred in law by finding that, in referring to that provision, the contested implementing regulation stated precisely what its legal basis was.

30. For its part, the Council, like the General Court, considers that the authorisation contained in Article 46(2) of Regulation No 267/2012 constitutes the appropriate legal basis for the contested implementing regulation, thereby satisfying the requirement to state reasons laid down in Article 296 TFEU; the reference in the first paragraph of that article to ‘the type of act to be adopted’ must be interpreted as meaning that only provisions which authorise one or more institutions to take action in a particular area by specifying the procedure to be followed for the adoption of the relevant acts may be used as a legal basis, without it being necessary to state specifically the legal form of such acts.

2. Second ground of appeal

31. In the first part of the second ground of appeal, the appellant claims that, in accordance with the judgment of the Court in Parliament v Commission, ( 11 ) Article 215(2) TFEU is the only possible legal basis for the adoption of individual restrictive measures.

32. The Council replies that the reference to that judgment has no bearing on the outcome of the present proceedings, for the question raised in that case was whether restrictive measures designed to combat terrorism must be adopted on the basis of Article 75 TFEU or whether they may also be adopted on the basis of Article 215(2) TFEU, and it was the latter option which the Court accepted. Further, the Council agrees with the approach to this point contained in paragraph 54 of the judgment under appeal.

33. In the second part of the second ground, the appellant claims, again relying on the judgment in Parliament v Commission, that the procedures referred to in Article 215 TFEU and Article 291 TFEU (implementing acts) are incompatible.

34. The Council stresses that that judgment is not relevant and, in its opinion, it cannot be accepted that the use without distinction of the two procedures means that individuals and entities subject to restrictive measures adopted under Article 215 TFEU enjoy a safeguard (which entails the requirement that the act making them subject to such measures should be the result of a joint proposal from the Commission and the High Representative) not enjoyed by those on whom restrictive measures are imposed on the basis of an act adopted under Article 291(2) TFEU. That is because the difference between the procedures is meant to offer safeguards to those persons to whom the acts in question are addressed, but rather to guarantee the right of initiative conferred by the Treaties upon the Commission and the High Representative.

35. In the alternative, the third part of the second ground sets out the reasons preventing recourse to Article 291 TFEU, arguing that Article 291(2) TFEU cannot be regarded as being capable of providing the Council with an additional legal basis to that constituted by Article 215(2) TFEU for the adoption of restrictive measures. The appellant relies on two reasons precluding the use of Article 291(2) TFEU. In the first place, the Council claims that that provision lays down a derogation from the principle of the power of Member States provided for in Article 291(1) TFEU and, therefore, must be interpreted strictly. In the second place, the appellant disputes the assertions in paragraph 55 of the judgment under appeal to the effect that the procedure provided for in Article 215 TFEU may be unsuitable for the adoption of mere implementing measures and that Article 291(2) TFEU reflects the wish of the drafters of the Treaty to provide for a more effective implementing procedure, adapted to the type of measure to be implemented.

36. The Council submits that the appellant has incorrectly interpreted paragraph 55 of the judgment under appeal, in which in the General Court concluded that recourse to Article 291(2) TFEU may be justified by reasons of effectiveness. At all events, the reasoning of the General Court in that paragraph is only for the sake of completeness and, therefore, irrelevant for the purposes of this appeal. Further, the Council rejects the argument advanced by NIOC to the effect that Article 291(2) TFEU constitutes a derogation from the principle that the Member States have implementing powers laid down in Article 291(1) TFEU.

3. The third ground of appeal, put forward in the alternative

37. In the alternative, if it should be held that recourse may be had to Article 291(2) TFEU as a basis for the adoption of individual restrictive measures, the appellant puts forward a third ground of appeal, divided into two parts, in which it emphasises that Article 291 TFEU is not a suitable basis for the adoption of the contested implementing regulation, arguing that, themselves being implementing measures, restrictive measures adopted under Article 215 TFEU do not require any implementing measures. That is proved by the list contained in the annex to Regulation No 267/2012, adopted on the basis of Article 215 TFEU.

38. By the first part of the third ground of appeal, the appellant, referring to the two cases provided for in Article 291(2) TFEU, claims, first, that Regulation No 267/2012 is unconnected to Articles 24 TEU and 26 TEU — and that, in addition, Decision 2012/35 was adopted on the basis of Article 29 TEU — and, second, that recourse to Article 291 TFEU cannot be regarded as ‘duly justified’ in this instance.

39. Contrary to the opinion of NIOC, the Council maintains that the obligation to state reasons for the grant of implementing powers to the Council under Article 291(2) TFEU is merely the expression of the general obligation to state reasons contained in Article 296 TFEU.

40. The second part of the third ground of appeal disputes that recital 28 and Article 23(2) of Regulation No 267/2012 warrant, as the General Court held, the inclusion of the restrictive measures within the implementing powers of the Council under Article 291(2) TFEU.

41. The Council defends the General Court’s interpretation, relying in addition on recital 11 et seq. in the preamble to Regulation No 267/2012.

4. Fourth ground of appeal, put forward in the alternative

42. Again in the alternative, if recourse to Article 291 TFEU should be held to be lawful, the appellant maintains that the General Court erred in law by holding 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 would be enough to fulfil the obligation to state reasons as regards the indication of the legal basis of that provision. According to the appellant, Regulation No 267/2012 contains no reference to Article 291 TFEU, from which it follows that it must refer to Article 215(2) TFEU.

43. The Council claims that the General Court had regard to the case-law of the Court of Justice, pursuant to which failure to state the legal basis does not automatically lead to infringement of the obligation to state reasons, while, in the present case, it is beyond doubt that, under Article 46(2) of Regulation No 267/2012, the Council reserved to itself the power to implement individual restrictive measures.

5. Fifth ground of appeal, put forward in the alternative

44. Also in the alternative, the appellant claims that the General Court made a second error of law by holding that the Council had not infringed the obligation to state reasons by failing to refer to Article 291 TFEU.

45. The Council merely cites again the case-law relating to the possibility that the reference to the legal basis does not have to be explicit.

6. Sixth ground of appeal

46. By the first part of the sixth ground of appeal, the appellant claims that the General Court erred in law by holding that the power of assessment conferred on the Council is neither arbitrary nor discretionary, a conclusion which, according to the appellant, it reached as a result of ‘rewriting’ Article 23(2)(d) of Regulation No 267/2012.

47. The Council denies that the General Court ‘rewrote’ the provision in question, detailing the reasons why, in its view, the judgment under appeal cannot be interpreted in the terms proposed by NIOC.

48. By the second part of the sixth ground of appeal, the appellant complains that the ‘rewriting’ of Article 23(2)(d) of Regulation No 267/2012 infringed the rights of the defence.

49. For its part, the Council stresses that the General Court did not rewrite the criterion contained in that provision.

50. Finally, in the third part of the sixth ground of appeal, the appellant claims that the General Court contradicted itself by maintaining, on the one hand, that the criterion at issue refers to the forms of support which, because of their quantitative or qualitative importance, contribute to the continuation of Iranian nuclear activities (paragraph 119 of the judgment under appeal) and, on the other hand, that that criterion refers to all support which, while not having any direct or indirect connection to the development of nuclear proliferation, is nevertheless liable to encourage it because of its quantitative or qualitative importance (paragraph 140 of the judgment under appeal).

51. According to the Council, the contradiction complained of does not arise, for, in its view, in paragraph 140 of the judgment under appeal, the General Court summarises the line of reasoning developed in paragraphs 119 to 121.

B – The Commission’s position

52. The Commission entered an appearance in the proceedings and replied to the first five grounds of appeal together. It submits that Article 215 TFEU constitutes the appropriate legal basis for the adoption of the contested implementing regulation, which Article 291 TFEU does not, for the act of the legislature conferring the implementing powers does not reflect the aim of Regulation No 267/2012, that is to say, the imposition of restrictive measures against Iran. In that regard, the Commission states that there are many examples of regulations that confer implementing powers on the Commission and that Article 291 TFEU was not included as the legal basis in any of those cases.

53. The Commission further submits that Article 291 TFEU could also be applied in the context of restrictive measures, and claims in that connection that its settled practice, in relation to the joint proposals it adopts under Article 215 TFEU, is to propose the adoption of implementing acts for the amendment of annexes, including those relating to lists of persons subject to the freezing of funds.

54. As concerns the sixth ground of appeal, the Commission argues that Article 23(2)(d) of Regulation No 267/2012 must be read in context and in the light of all the applicable legislation, which, in the Commission’s opinion, is what the General Court did, from which it was a straightforward conclusion that the criterion at issue includes only those individuals and entities that provide the Iranian Government with support that is ‘qualitatively or quantitatively important’, as is the case of the appellant.

C – The parties ’ claims

55. NIOC concludes its appeal by requesting the Court to set aside the judgment under appeal, grant the forms of order sought before the General Court and order the Council to pay the costs of both sets of proceedings.

56. The Council and the Commission request that the appeal be dismissed and that the appellant be ordered to pay the costs.

IV – Assessment

A – Introduction

57. NIOC is an Iranian public undertaking which operates in the oil and natural gas sector. Its funds were frozen on 15 October 2012 pursuant to the contested decision and implementing regulation.

58. The criteria applied for the purposes of inclusion in the list of persons and entities subject to the freezing of funds have altered over time. At the beginning, the requirement was that such persons and entities must have been engaged in or directly associated with nuclear activities in Iran, ( 12 ) a criterion extended for the first time in 2010 ( 13 ) and, in so far as is important for the present purposes, extended again in 2012 under Regulation No 267/2012, Article 23(2) of which provides for the freezing of the funds of the persons, entities and bodies listed in Annex VIII to the regulation, who have been identified as ‘d) being other persons, entities or bodies that provide support, such as material, logistical or financial support, to the Government of Iran, and persons and entities associated with them’.

59. In addition, Article 46(2) of Regulation No 267/2012 provides that ‘[w]here the Council decides to subject a natural or legal person, entity or body to the measures referred to in Article 23(2) and (3), it shall amend Annex IX accordingly’.

60. NIOC brought an action before the General Court, seeking the annulment of the contested decision and implementing regulation and a declaration that Regulation No 267/2012 is inapplicable to the case. NIOC has now brought an appeal against the dismissal of its action by the General Court, based on six grounds which, in my opinion — and I agree with the Commission on this point — can be divided into two groups, concerning, respectively, the legal basis of the contested implementing regulation (the first to the fifth grounds of appeal) and the lawfulness of the extension of the criterion for inclusion in the list by Decision 2012/35 and Regulation No 267/2012 (the sixth ground of appeal).

B – The admissibility of the grounds of appeal

61. As stated in point 28, the Court invited the parties to answer several questions at the hearing, two of which concerned whether NIOC had the legal interest necessary to invoke those grounds of appeal that constitute pleas of illegality raised against Regulation No 267/2012. In particular, there was a discussion at the hearing as to whether (a) the alleged breach of the power of the Commission and the High Representative to put forward proposals and (b) the infringement of the fundamental rights of third parties might be put forward as a ground of appeal.

62. As far as the first question is concerned, that is to say, whether the breach of the power of the Commission and the High Representative to put forward proposals may be advanced as a ground of appeal, the Council stated that any error in identifying the legal basis would have affected only the balance between the Union institutions, for the raison d’être of the different procedures provided for in Article 291 TFEU and Article 215 TFEU is a specific definition of the respective positions of the Council, the Commission and the High Representative for Foreign Affairs, which would not lead to consequences from the point of view of the guarantees of individual rights.

63. As regards the possibility of invoking the rights of third parties, the Council maintained that, in so far as the challenge to the lawfulness of the designation criterion put forward by NIOC is based on the argument that, in the terms in which that criterion was defined by the EU legislature, its application would have an adverse effect on the rights of third parties, what NIOC seeks through its appeal is, in fact, to exercise abstract control over the provisions which it claims are unlawful.

64. In my opinion, the grounds of appeal are all admissible.

1. NIOC’s legal interest in claiming that Regulation No 267/2012 is unlawful

65. The legal interest of NIOC — and therefore its entitlement to put forward the specific grounds on which it bases its appeal — must be considered from the perspective of the effects which a finding that Regulation No 267/2012 is unlawful might have on the validity of the contested decision and implementing regulation. In short, if the illegality of the former affects the validity of the latter, NIOC will be entitled to raise that plea of illegality on appeal. Further, NIOC will be entitled to do so regardless of what the grounds for the alleged illegality are. In so far as is important for the present purposes, whether the ground of illegality is formal or procedural or whether the ground of invalidity advanced relates to the subject-matter of the provision concerned, it is clear that NIOC cannot be denied the right to raise a plea of illegality which, if substantiated, would entail the inapplicability of the provisions and acts which concern it so immediately and directly, as is the case of the restrictive measures at issue.

66. I wished to emphasise the term ‘inapplicability’, in italics, for that is what is strictly and exclusively at issue. Article 277 TFEU is perfectly clear when it provides that ‘any party may, in proceedings in which an act of general application … is at issue … invoke before the Court of Justice of the European Union the inapplicability of that act’. That inapplicability must be based on ‘the grounds specified in Article 263 [TFEU], second paragraph’, that is on grounds of illegality. However, in the case of Article 277 TFEU, such grounds of illegality do not translate into the invalidity or illegality of the provision concerned but only into its inapplicability to the particular case. ( 14 )

67. In accordance with the Court’s case-law, the legality of a regulation may not be indirectly challenged in proceedings against decisions that do not constitute measures implementing that regulation. ( 15 ) However, in the present case, the validity of the provisions challenged in the proceedings depends directly on the validity of Regulation No 267/2012, with the result that this is not the same situation as that which gave rise to the judgment in Council v Chvatal, in which it was held that officials of the Court of Justice were not entitled to raise a plea of illegality against a regulation applicable only to the European Parliament, which, therefore, even if it were unlawful, could not have had the effect of providing a legal basis for the requests of the appellant officials. ( 16 )

68. Admittedly, as the Court pointed out to the parties, in Syrian Lebanese Commercial Bank v Council, the General Court expressed reservations about whether ‘the applicant [a bank in which a third country held an interest] is entitled to raise a plea in law which essentially concerns an infringement of the Parliament’s rights and powers’. ( 17 ) However, the Court has naturally accepted that it may do so in proceedings in which the dispute concerning the suitability of the legal basis which is used as the foundation for the legislation at issue ultimately involves a question of inter-institutional balance distinct, in principle, from the ‘subjective interest’ of the person contesting the applicability of that legislation. ( 18 )

69. The relevant subjective interest in the context of Article 277 TFEU is solely that of the inapplicability of a provision vitiated by a ground of illegality, while, as I have just pointed out, the inapplicability to which Article 277 TFEU refers may be invoked on ‘the grounds specified in Article 263[TFEU], second paragraph’, namely ‘lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers’. And that is, in short, what is at issue: not the declaration of invalidity of the provision against which the plea of illegality has been raised, but rather its inapplicability to the appellant’s particular case on grounds of illegality.

70. In the present case, it is clear that if Regulation No 267/2012 were unlawful because it conferred on the Council, in the terms stipulated in Article 46(2), the power to amend Annex IX to the regulation, the result would be that the inclusion of the appellant’s name in the list contained in that annex would lack a relevant legal basis and, as a consequence, would be vitiated by a defect which could lead only to the inapplicability of the regulation to the case and, accordingly, to the nullity of the inclusion of NIOC in that list.

71. Admittedly, as the Council has argued, the difference between the legal basis of Article 215 TFEU and that of Article 291(2) TFEU is simply a difference of procedure, the rationale for which is, ultimately, the wish to ensure, in the first case, a right of initiative of the Commission and the High Representative. However, that does not mean that the choice of one or other legal basis is less important than any harm to the institutional balance desired by the TFEU in providing for those two legislative procedures.

72. There is no doubt that recourse to the procedure laid down in Article 291(2) TFEU in a situation in which it follows from the TFEU that action must be taken in accordance with Article 215 TFEU would lead to the illegality of Regulation No 267/2012 and, consequently, to its inapplicability to the appellant’s case with the resulting invalidity of the decision pursuant to which it was included in the list at issue. Expressed in terms of interest, that of the Commission and the High Representative is that Regulation No 267/2012 should observe the Treaties, whereas NIOC’s interest lies in ensuring that that regulation should not be applied to it because it is unlawful. It is the latter interest which really matters for the purposes of Article 277 TFEU and which is, therefore, the only one which must be taken into account for the purposes of the admissibility of the grounds of appeal alleging the illegality of that regulation.

2. The interest of NIOC in invoking the illegality of the criterion applied in order to include it in the disputed list

73. As far as the plea of inadmissibility alleging the infringement of rights and interests of third parties is concerned, in other words the challenge mounted by NIOC to the substantive content of the criterion for inclusion in the list at issue, it is my opinion that the appellant merely invokes its own rights and interests. In reality, NIOC does not invoke the interests of Iranian citizens in general and instead, by pleading its own private interest as a company included in the list at issue, it complains that its inclusion results from the application of a criterion which permits anyone at all to be included.

74. Considered in those terms, the issue is not so much the admissibility of NIOC’s appeal as its substantive legal basis. In other words, whether the appellant is right to claim that the General Court ‘rewrote’ the criterion laid down in Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012, thereby detracting from what, in the appellant’s opinion, is its correct interpretation, namely the desire to enable the inclusion of any Iranian individuals or entities.

75. Accordingly, I believe that all the grounds of appeal put forward by the appellant should be declared admissible.

C – The grounds of appeal

1. Preliminary point

76. As stated in point 60, the six grounds of appeal put forward by the appellant can, as regards their subject-matter, be divided into two groups: first, the grounds concerned with the legal basis for the contested implementing regulation (the first to the fifth grounds); second, the sixth ground of appeal, which calls into question the legality of the criterion applied for the purpose of inclusion of NIOC in the list at issue. Moreover, three of the grounds (the first, second and sixth) are advanced as main grounds while the other three (the third, fourth and fifth) are advanced only in the event of the Court of Justice agreeing with the General Court that the appropriate legal basis in this case is that provided by Article 291 TFEU.

77. In relation to the legal basis for the contested implementing regulation, NIOC contends that Article 46(2) of Regulation No 267/2012 must, first, indicate the legal form which the Council decision amending the annex containing the list of persons subject to the freezing of funds must take (first ground of appeal which involves a plea of illegality against Regulation No 267/2012). Second, the appellant argues that the measures in question must be based on Article 215(2) TFEU ( 19 ) and not on Article 291 TFEU ( 20 ) (second ground of appeal, directed against the contested implementing regulation and also constituting a plea of illegality against Regulation No 267/2012).

78. Lastly, the appellant maintains, in the alternative, that if recourse to Article 291 TFEU is lawful, reasons ought to have been given for it (the third ground of appeal — which stresses the unlawfulness of recourse to Article 291 TFEU — and the fourth and fifth grounds of appeal, which also constitute a plea of illegality against Regulation No 267/2012).

79. As far as the legality of the criterion applied is concerned (sixth ground of appeal), the appellant argues that its legislative definition is too general and vague and that the General Court in fact proceeded to ‘rewrite’ that criterion when applying it to the case.

2. The first ground of appeal. Statement of the legal basis

80. The first ground of appeal put forward against Regulation No 267/2012 concerns the silence of Article 46(2) thereof with regard to the form which decisions on the amendment of Annex IX to the regulation must take, which, the appellant contends, means that that provision does not qualify as a legal basis for the contested implementing regulation.

81. The provision concerned simply provides that ‘[w]here the Council decides to subject a natural or legal person, entity or body to the measures referred to in Article 23(2) and (3), it shall amend Annex IX accordingly’.

82. As NIOC points out, that silence leaves the door open to two possible legal forms: (a) a decision adopted under Article 215 TFEU, or (b) an implementing regulation adopted under Article 291 TFEU. In the present case, the form finally adopted was that of an implementing regulation, the argument being that Article 46(2) of Regulation No 267/2012 could refer specifically to the procedure laid down in Article 291 TFEU.

83. In my opinion, there was definitely some justification for that interpretation of Article 46(2) of Regulation No 267/2012, for the power it conferred on the Council was already included in other provisions adopted in the context of the policy of imposing restrictive measures on Iran.

84. That is the case of Regulation (EC) No 423/2007 ( 21 ) and Regulation (EU) No 961/2010. Thus, Article 15(2) of Regulation No 423/2007 provided that ‘[t]he Council, acting by qualified majority, shall establish, review and amend the list of persons, entities and bodies referred to in Article 7(2) and in full accordance with the determinations made by the Council in respect of Annex II to Common Position 2007/140/CFSP. The list in Annex V shall be reviewed in regular intervals and at least every 12 months’.

85. For its part, Article 36(2) of Regulation No 961/2010 provided that ‘[w]here 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’.

86. Moreover, in both cases the legislature was careful to state the reasons for conferring that implementing power on the Council. In the case of Regulation No 423/2007, the reasons were set out in recital 6 in the preamble thereto, which was worded as follows: ‘As regards the procedure for establishing and amending the list referred to in Article 7(2) of this Regulation, the Council should exercise the corresponding implementing powers itself in view of the objectives of UNSCR 1737 (2006), notably to constrain Iran’s development of sensitive technologies in support of its nuclear and missile programmes, and the proliferation-sensitive nature of the activities undertaken by the persons and entities supporting these programmes.’

87. As regards Regulation No 961/2010, the statement of reasons was set out in recital 15 thereto, in accordance with which ‘[t]he power to amend the lists in Annexes VII and VIII to this Regulation should be exercised by the Council, in view of the specific threat to international peace and security posed by Iran as manifested by the deepening concern about its nuclear programme underlined by the European Council on 17 June 2010, and to ensure consistency with the process for amending and reviewing Annexes I and II to Decision 2010/413/CFSP’.

88. As concerns Regulation No 267/2012, after the hearing before the General Court, ( 22 ) a corrigendum was published in the Official Journal of the European Union ( 23 ) including a recital 27a which reads as follows: ‘The power to amend the lists in Annexes VIII and IX to this Regulation should be exercised by the Council, in view of the specific threat to international peace and security posed by Iran’s nuclear programme, and to ensure consistency with the process for amending and reviewing Annexes I and II to Decision 2010/413/CFSP.’

89. Afterwards, on 22 July 2014, ( 24 ) that new recital was corrected again [in certain language versions but not in English] so that it provided that ‘the power to amend the lists in Annexes VIII and IX to this Regulation is to be exercised by the Council’.

90. In my opinion, Regulation No 267/2012 must be considered in the context of all the restrictive measures adopted by the European Union against Iran, which, as such, constitute a unit of meaning which, in so far as is relevant for the present purposes, appropriately serves the objective pursued by the duty to state reasons which underlies the obligation to indicate the legal basis of every act intended to produce legal effects.

91. It is settled case-law that ‘the obligation under Article 253 EC [Article 296 TFEU] to give reasons requires all the measures concerned to contain a statement of the reasons which led the institution to adopt them, in order that the Court may exercise its power of review and that the Member States and the third parties concerned may learn of the conditions under which the Community institutions have applied the Treaty’. ( 25 )

92. In that regard, ‘the obligation to indicate the legal basis of a measure is related to the duty to state reasons’, ( 26 ) in the same way as ‘the requirement of legal certainty means that the binding nature of any act intended to have legal effects must be derived from a provision of Community law which prescribes the legal form to be taken by that act and which must be expressly indicated therein as its legal basis’. ( 27 )

93. As one of the series of measures adopted against Iran, Regulation No 267/2012 is not unconnected to the reasons given as justification for the adoption of the regulations that preceded it. It is true that, when each of those regulations entered into force, it repealed its predecessor, and so Regulation No 267/2012 repealed Regulation No 961/2010.

94. However, to my mind, it is precisely because of the substantive continuity discernible between all those regulations that the formal repeal effected by Regulation No 267/2012 does not mean that the statement of reasons which explicitly justified Regulation No 961/2010 — and before it Regulation No 423/2007 — cannot implicitly justify Regulation No 267/2012 itself.

95. Inasmuch as that regulation confers upon the Council the same implementing power as that previously conferred upon it by the earlier regulations, it must be inferred, failing any explicit statement of reasons on the subject, that the reason for conferring that power is implicitly the same as that explicitly referred to in the earlier regulations. That fulfils, albeit implicitly, the obligation to state reasons laid down in Article 296 TFEU, which, as stated, pursues the objective of ensuring ‘that the Court can exercise its power of review and that the Member States and the third parties concerned may learn of the conditions under which the Community institutions have applied the Treaty’. ( 28 )

96. In short, I believe that Regulation No 267/2012 provides a sufficient statement of the reasons for the power conferred on the Council to amend the list at issue and that that power is that provided for in Article 291(2) TFEU. To my mind, that is apparent from the fact that the regulations that preceded Regulation No 267/2012 state that it is necessary for Council, for the purposes of amending the lists, to ‘exercise the corresponding implementing powers’ ( 29 ) (recital 6 in the preamble to Regulation No 423/2007) and point out that it is necessary ‘to ensure consistency with the process for amending and reviewing’ other lists ( 30 ) (recital 15 in the preamble to Regulation No 961/2010), immediately bringing to mind the wording used in Article 291 TFEU, that is to say, that of the implementing powers conferred on the Union institutions under the conditions provided for in paragraph 2 of that article.

97. Whether Regulation No 267/2012 abode by the Treaties in taking this approach is a different question, which will be examined below. However, as far as the first ground of appeal is concerned, it must be concluded that the appellant is wrong to claim that Article 46(2) of Regulation No 267/2012 does not lay down the legal form which the Council decision amending Annex IX to the regulation must take. Although that provision does not do so explicitly, it does do so implicitly and sufficiently, for the reasons set out above. That being so, it must next be examined whether the appropriate legal basis for the amendment of that annex was in fact Article 291(2) TFEU.

98. For the reasons set out above, I believe that the first ground of appeal should be dismissed.

3. Second ground of appeal. Appropriate legal basis for the adoption of the contested implementing regulation

99. The appellant disputes that Article 291(2) TFEU was the appropriate legal basis for amendment of Annex IX to Regulation No 267/2012, arguing that Article 215 TFEU alone could be the legal basis. In the first part of this ground, the appellant submits that, in accordance with the judgment in Parliament v Commission, ( 31 ) Article 215(2) TFEU is the only possible legal basis for the adoption of individual restrictive measures. In the second part of this ground, the appellant submits, also relying on Parliament v Commission, that the procedures in Article 215 TFEU and Article 291 TFEU are incompatible. Finally, in the alternative, the appellant sets out the reasons which, in its view, preclude recourse to Article 291 TFEU in this case.

100. I believe that the three parts of the second ground of appeal may be examined together because, from their different perspectives, they have as their common purpose the question of the appropriate legal basis for the adoption of the contested implementing regulation.

101. Before I examine this question, I think it helpful to point out that the dispute that has arisen between the parties has, strictly, to do with whether Article 291(2) TFEU is appropriate to serve as the legal basis for a legislative provision which, in the appellant’s view, can be based only on the legal basis provided by Article 215 TFEU. Thus, it is clear that the present case is concerned with recourse to so-called ‘secondary legal bases’, that is to say, the legislative technique involving the creation of an ad hoc legislative procedure, differing from those provided for in the Treaties, which the Court forbade in the judgment of 6 May 2008, Parliament v Council. ( 32 ) The procedures at issue in the present case are exclusively procedures provided for in primary law and, accordingly, the question is which of them was required for the amendment of Regulation No 267/2012.

102. Regulation No 267/2012 was adopted on the legal basis of Article 215 TFEU. In that regard, the legislature paid scrupulous heed to the principle that ‘Article 215(2) TFEU may constitute the legal basis of restrictive measures, including those designed to combat terrorism, taken against natural or legal persons, groups or non-State entities by the Union when the decision to adopt those measures is part of the Union’s action in the sphere of the CFSP.’ ( 33 ) Therefore, the question is whether the amendment or repeal exclusively of Annex IX to Regulation No 267/2012 rather than of the regulation in its entirety, solely in order to ‘subject a natural or legal person, entity or body to the measures referred to in Article 23(2) and (3)’ of the regulation — as provided for in Article 46(2) thereof — may be effected only by means of the procedure established in Article 215(1) TFEU.

103. Although Article 215 TFEU establishes the specific procedure for adoption of the necessary measures for effecting the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries agreed under a CFSP decision, it must be borne in mind that, in accordance with the first paragraph of Article 40 TEU, ‘[t]he implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the [TFEU]’. Therefore, as stated in paragraph 54 of the judgment under appeal, it cannot be argued that a regulation adopted on the basis of Article 215 TFEU is incapable of granting implementing powers to the Commission or the Council under the conditions stipulated in Article 291(2) TFEU.

104. The foregoing is perfectly consistent with the observation of the Court at paragraph 65 of Parliament v Commission transcribed above, to the effect that ‘Article 215(2) TFEU may constitute the legal basis of restrictive measures … taken against natural or legal persons, groups or non-State entities by the Union when the decision to adopt those measures is part of the Union’s action in the sphere of the CFSP’. That is because it is one thing to lay down the measures and define the individuals and entities subject to those measures (matters in relation to which the only decisions possible are those adopted on the basis of Article 215 TFEU), but quite another to restrict the circle of individuals and entities concerned if that operation is effected strictly by an implementing act, that is to say, an act that simply applies the principles and criteria laid down in the measure adopted under Article 215 TFEU.

105. Inasmuch as Article 215 TFEU does not itself expressly exclude that possibility, there is nothing to preclude, in accordance with the principle laid down in the first paragraph of Article 40 TEU, recourse to the common procedures laid down in the Treaties, in particular the procedure provided for in Article 291 TFEU for situations in which implementing powers must be conferred upon the institutions.

106. The amendment of Annex IX to Regulation No 267/2012 to include an individual or entity in the list of persons whose assets are subject to freezing would have to be adopted by means of the procedure laid down in Article 215 TFEU if Regulation No 267/2912 did not stipulate precisely and in detail the criteria to be applied in order to decide on the inclusion of an individual or entity in that list. However, it is a fact that the power granted to the Council in Article 46(2) of Regulation No 267/2012 does not confer upon that institution absolute discretion for the purpose of deciding to include a person in the list; rather, the Council must satisfy the criteria set out in Article 23(2) of Regulation No 267/2012.

107. In accordance with those criteria, the Council may include only those who ‘have been identified as: (a) being engaged in, directly associated with, or providing support for Iran’s proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems by Iran, including through involvement in the procurement of prohibited goods and technology, 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; (b) being a natural or legal person, entity or body that has assisted a listed person, entity or body to evade or violate the provisions of this Regulation, Council Decision 2010/413/CFSP or UNSCR 1737 (2006), UNSCR 1747 (2007), UNSCR 1803 (2008) and UNSCR 1929 (2010); (c) being a member of the Islamic Revolutionary Guard Corps or a legal person, entity or body owned or controlled by the Islamic Revolutionary Guard Corps or by one of more of its members, or natural or legal persons acting on their behalf; (d) being other persons, entities or bodies that provide support, such as material, logistical or financial support, to the Government of Iran, and persons and entities associated with them; (e) being a legal person, entity or body owned or controlled by the Islamic Republic of Iran Shipping Lines (IRISL), or acting on their behalf’. ( 34 )

108. In my opinion, Regulation No 267/2012 is, in that respect, precise enough to constitute an appropriate framework for the exercise of an implementing power, namely, to authorise either the Commission or the Council to update the list in Annex IX by means of implementing regulations adopted under Article 291 TFEU. ( 35 ) It is also important to bear in mind the reasoning provided by the General Court at paragraph 55 of the judgment under appeal, to the effect that the procedure laid down in Article 291(2) TFEU enables ‘more effective implementation, adapted to the type of measure to be implemented and the capacity to act of each institution’.

109. In consequence, I believe that the second ground of appeal should be dismissed, given that, in my opinion, Article 291(2) TFEU is the appropriate legal basis for the amendment of Annex IX to Regulation No 267/2012.

4. Third ground of appeal, put forward in the alternative, concerning fulfilment of the conditions laid down by Article 291(2) TFEU

110. In the alternative, the appellant claims that, at all events, the conditions laid down in Article 291(2) TFEU for conferring the power of implementation at issue upon the Council have not been satisfied.

111. Article 291(2) TFEU being the appropriate legal basis for the adoption of the contested implementing regulation, the question now arising is, therefore, whether the conditions laid down in that provision for conferring implementing power upon the Council were satisfied.

112. In accordance with Article 291(1) TFEU, it falls to the Member States to adopt ‘measures of national law necessary to implement legally binding Union acts’. ( 36 ) Nevertheless, under Article 291(2) TFEU, where such acts need ‘uniform conditions for [implementation] … those acts shall confer implementing powers on the Commission, or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 [TEU], on the Council’.

113. As observed at paragraph 59 of the judgment under appeal, the Council maintained that the implementing power in Article 23(2) and (3) of Regulation No 267/2012 was lawfully reserved to it, inasmuch as ‘this was a duly justified case’. That being so, of the two cases in which, under Article 291(2) TFEU, implementing powers may be granted to the Council and not the Commission, the legislator of Regulation No 267/2012 relied upon the first, rejecting that of the cases provided for in Articles 24 TEU and 26 TEU which, according to the Commission and the appellant, would not have been appropriate in the circumstances of the proceedings either.

114. I believe, however, in line with the position taken by the Council at the hearing, that Article 291(2) TFEU reserves to the Council, as appropriate, the power to implement provisions adopted in the sphere of the CFSP, meaning that the reference to the cases ‘provided for in Articles 24 and 26 [TEU]’ includes the amendment of Annex IX to Regulation No 267/2012, that is a legislative act drawn up on the basis of Article 215 TFEU, on the grounds that it is ‘a decision adopted in accordance with Chapter 2 of Title V of the [TFEU]’.

115. That interpretation of the scheme of Article 291(2) TFEU is the best suited to the positions of the Council and the Commission in the sphere of the CFSP, where the Commission plays a subordinate role to that of the Council, which is clearly the main player in that context, as the General Court acknowledges at paragraph 63 of the judgment under appeal. ( 37 ) However, that does not necessarily have to mean that it is prohibited, in principle, to grant implementing powers to the Commission in the sphere of the CFSP, as the judgment under appeal also observes at paragraph 64, but rather that such a grant of powers to the Commission must be ‘duly justified’; for example, on the grounds that the implementation concerns matters which are strictly technical or are subject to such stringent conditions that there is no discretion when it comes to their implementation, which, as we have seen, is the case of Article 45 of Regulation No 267/2012.

116. Accordingly, on the basis of the principle that the implementing power conferred by Article 46(2) of Regulation No 267/2012 concerns a provision adopted in the context of the CFSP, the institution authorised to exercise that power must be the Council and it is, therefore, unnecessary that the power should be ‘duly justified’, something which otherwise — that is to say, outside the scope of the CFSP — the grant of an implementing power to the Council would have required.

117. In so far as the General Court held that the implementing powers conferred on the Council fell within the scope of ‘duly justified specific cases’ and not that of ‘cases provided for in Articles 24 and 26 [TEU]’, the judgment under appeal erred in law. Nevertheless, it should be noted that, according to settled case-law, ‘if the grounds of a judgment of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the annulment of that judgment, and a substitution of grounds must be made’. ( 38 )

118. In the present case, there is no difficulty in showing that the operative part of the judgment under appeal is well founded by means of the application to the case of Article 291(2) TFEU, in so far as that provision refers to the cases provided for in Articles 24 TEU and 26 TEU, because, for the reasons stated, the present proceedings are concerned with those cases, with the result that the error of law identified cannot lead to annulment of the judgment under appeal.

119. On those grounds, I believe that the third ground of appeal should be dismissed.

5. Fourth and fifth grounds of appeal

120. For the reasons on which the proposed dismissal of the first ground of appeal was based, ( 39 ) I believe that it is also necessary to dismiss the fourth and fifth grounds of appeal by which the appellant alleges, in the alternative, that the obligation to indicate, and state reasons for, the legal basis of the contested implementing regulation was not properly fulfilled.

6. Sixth ground of appeal. The lawfulness of the criterion for inclusion in the list and the interpretation of that criterion by the General Court in the judgment under appeal

121. NIOC claims, essentially, that the criterion used by the Council makes it permissible to impose sanctions arbitrarily on any Iranian taxpayer, official or lawyer, relying on the argument that they support or provide financial support in some way to the Iranian State. Given that the General Court rejected that argument, responding that the criterion in question is concerned solely with forms of support which, owing to their quantitative or qualitative importance, ( 40 ) contribute to the development of Iranian nuclear activities, the appellant submits that the General Court ‘rewrote’ that criterion.

122. As we saw above when examining whether this ground of appeal was inadmissible, ( 41 ) I believe that in putting forward this ground the appellant does not invoke rights and interests of third parties or seek from the Court a review in abstracto of the provision against which it raises a plea of illegality. What NIOC does is challenge the effects which application of the criterion concerned have had on it, meaning that, far from proposing a review in abstracto, it merely seeks — legitimately — a ruling in concreto on the lawfulness of the criterion applied to its case.

123. By the first of the three parts into which this final ground of appeal is divided, the appellant contends that the General Court erred in law in finding that the power of assessment conferred on the Council by the criterion for designation set out in Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012 is neither arbitrary nor discretionary and ensures the proper degree of foreseeability. According to the first part of the sixth ground of appeal, NIOC takes the view that the General Court could reach that conclusion only by interpreting Article 23(2)(d) of Regulation No 267/2012 in a way which, by contradicting its wording and its meaning, led to the ‘rewriting’ of that provision. According to the second part of the sixth ground, the appellant considers that this led to the infringement of its rights of defence, for when it challenged its inclusion in the list at issue it was, necessarily, unaware of the criterion resulting from that ‘rewriting’. Finally, by the third ground of appeal, the appellant contends that the General Court contradicted itself in paragraphs 119 and 140 of the judgment under appeal, given that, on the one hand, the General Court maintains that the criterion at issue refers to forms of support which contribute to the continuation of Iran’s nuclear activities, while, on the other, the General Court states that that criterion is concerned with support that is not directly or indirectly connected to such activities.

124. As regards the first part of this ground of appeal, it is settled case-law of the Court of Justice that the Council has broad discretion for defining the general criteria for the purpose of inclusion in the lists of persons subject to restrictive measures. ( 42 ) The General Court draws attention to this at paragraph 107 of the judgment under appeal, stating directly that, although this entails some limitation of the judicial review of the assessment of the considerations of appropriateness on which those measures are based, ‘the courts of the Union must ensure that there is, in principle, a full review of the lawfulness of all acts of the Union from the point of view of the fundamental rights’. ( 43 )

125. In my view, the General Court conducted a full examination of the contested provisions and, moreover, reached the correct conclusion.

126. I can agree with the appellant’s assertion that clearly the criterion for designation set out in Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012 is general and vague. Nevertheless, what NIOC describes as the ‘rewriting’ of the provision by the General Court is merely the latter’s interpretation in conformity with the requirements of primary EU law, in particular, the fundamental rights guaranteed by the Charter. To my mind, that interpretation is correct.

127. The interpretation given by the General Court cannot be classified as ‘rewriting’ if by that is meant, as NIOC contends, the creation of a criterion which differs from that laid down by the legislature in the provision interpreted. In my opinion, the General Court did not introduce into the provision concerned a criterion differing from that which is clear from the wording of the provision. The General Court did not create a rule which is, so to speak, non-existent in the wording of the provision, but rather it interpreted that provision in conformity with EU law, in such a way that it is possible to infer from its wording a criterion for inclusion in the list at issue which satisfies all the requirements linked to the principle of legal certainty and the safeguards of the rule of law.

128. Admittedly, in the interests of the principle of legal certainty and observance of the wishes of the legislature, any interpretation in conformity with EU law requires not only a qualified interpretation but also express recognition that the provision in question can be regarded as being in conformity with EU law only to the extent that, by going beyond — but in no circumstances contradicting — its strict wording, it can be given a meaning compatible with the requirements of the provisions to which it is subordinate.

129. In the present case, the wording of Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012 includes an obviously general and vague criterion which, nevertheless, without having to be contradicted, may satisfy the requirements of EU law in so far as they allow an interpretation in conformity, that is to say, by going beyond the wording of the criterion in order to give it a meaning that satisfies the requirements of precision and clarity imposed, in this context, by observance of the appellant’s fundamental rights.

130. That is what the General Court did in the judgment under appeal. In my view, it would have been desirable for the General Court to make it quite clear that its interpretation involved a qualified interpretation which is a feature of any interpretation in conformity with EU law. Nevertheless, the grounds of its judgment are well reasoned, comprehensive and sound enough to ensure that, when applied to the specific circumstances of the case, they lead to a result consistent with EU law.

131. In that regard, I can only agree with the considerations set out by the General Court at paragraph 118 of the judgment under appeal, where it states that the disputed criterion falls within a legal framework clearly defined by the aims pursued by the legislation governing restrictive measures against Iran, which is the context in which that criterion must be interpreted. In that connection, reference should be made to Decision 2012/35/CFSP, recital 13 in the preamble to which states that ‘[t]he restrictions on admission and the freezing of funds and economic resources should be applied to additional persons and entities providing support to the Government of Iran allowing it to pursue proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems, in particular persons and entities providing financial, logistical or material support to the Government of Iran.’ ( 44 ) In addition, Article 23(2)(d) of Regulation No 267/2012 specifies that such support may be ‘material, logistical or financial’.

132. Therefore, as argued at paragraph 119 of the judgment under appeal, it is clear that the support in question is not any kind of support whatsoever, but that which, ‘owing to its quantitative or qualitative importance’, contributes to the continuation of Iranian nuclear activities. Contrary to the appellant’s contention in the third part of this ground of appeal, that assertion is not incompatible with the assertion in paragraph 140 of the judgement under appeal, which simply states that such support does not have to be expressly related to the development of nuclear proliferation as such and that instead it is sufficient for it to entail the supply to the Iranian Government of material, financial or logistical resources which enable it to continue with that development.

133. Accordingly, I do not believe that the General Court ‘rewrote’ the criteria laid down in Regulation No 267/2012, as the appellant contends, but rather that it clearly confined itself to applying those criteria to the circumstances of the case on the basis of its interpretation in conformity with primary EU law and in the legislative context in which those criteria acquire their correct and proper meaning.

134. In short, I do not believe that the General Court infringed the law, because, in substantive terms, its interpretation of the provision concerned led to a lawful conclusion that cannot be regarded as unreasonable or arbitrary, for there appears to be no doubt that NIOC, the national oil undertaking whose director of the board and managing director are the Iranian minister and deputy minister for oil, respectively, is a source of significant financial support to the Iranian Government and, in that sense, provides quantitatively important material and financial support for the development of the nuclear activities sponsored by that government, which, moreover, is an issue on which the appellant declined to elaborate.

135. That being so, the criterion actually applied, in so far as it is can be interpreted in conformity with EU law, is not so open and vague as to enable the inclusion of any individual in the list in Annex IX; nor can the application of that criterion to the appellant be regarded as unjustified or unusual in the context of the EU legislation on the freezing of funds. It follows from the foregoing that the application of that criterion to the case could not have led to the denial of the rights of defence complained of by the appellant.

136. On those grounds, I believe that the sixth and final ground of appeal too should be dismissed.

V – Costs

137. In accordance with Article 138(1) of the Rules of Procedure, applicable to the appeal proceedings under Article 184(1) thereof, I propose that the Court should order NIOC to pay the costs.

138. Under Article 140(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings must bear their own costs. Accordingly, the Commission must bear its own costs.

VI – Conclusion

139. In the light of the foregoing considerations, I propose that the Court should: — Dismiss the appeal. — Order NIOC to pay the costs. — Order the Commission to bear its own costs.

( 1 ) Original language: Spanish.

( 2 ) OJ 2010 L 195, p. 39.

( 3 ) OJ 2012 L 19, p. 22.

( 4 ) Regulation concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1).

( 5 ) OJ 2012 L 282, p. 58.

( 6 ) OJ 2012 L 282, p. 16.

( 7 ) Judgment in National Iranian Oil Company v Council, T‑578/12, EU:T:2014:678; ‘the judgment under appeal’.

( 8 ) Council Regulation of 25 October 2010 on restrictive measures against Iran and repealing Regulation No 423/2007 (OJ 2010 L 281, p. 1).

( 9 ) Judgment in Syrian Lebanese Commercial Bank v Council, T‑174/12 and T‑80/13, EU:T:2014:52, paragraphs 161 and 162.

( 10 ) Wöhrmann and Lütticke v Commission, 31/62 and 33/62, EU:C:1962:49, p. 979.

( 11 ) Judgment in Parliament v Commission, C‑130/10, EU:C:2012:472, paragraph 65.

( 12 ) Article 7(2) of Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1).

( 13 ) Article 16(2) of Regulation No 961/2010 (OJ 2010 L 88, p. 1).

( 14 ) See, in that connection, the early judgment in Wöhrmann and Lütticke v Commission, 31/62 and 33/62, EU:C:1962:49, p. 979.

( 15 ) Judgment in Council v Chvatal, C‑432/98 P and C‑433/98 P, EU:C:2000:545, paragraphs 28 to 33.

( 16 ) Judgment in Council v Chvatal, C‑432/98 P and C‑433/98 P, EU:C:2000:545, paragraph 31.

( 17 ) Judgment in Syrian Lebanese Commercial Bank v Council, T‑174/12 and T‑80/13, EU:T:2014:52, paragraph 162.

( 18 ) Judgment in Belgium v Commission, C‑110/03, EU:C:2005:223, paragraphs 76 to 80.

( 19 ) Article 215(2) TFEU: ‘Where a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities.’

The procedure in paragraph 1 requires a qualified majority of the Council on a joint proposal from the High Representative for Foreign Affairs and Security Policy and the Commission.

( 20 ) A provision which confers implementing powers on the Commission ‘or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 of the Treaty on European Union, on the Council’.

( 21 ) Council Regulation of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1).

( 22 ) On 6 March 2014.

( 23 ) OJ 2014 L 93, p. 85.

( 24 ) OJ 2014 L 216, p. 5.

( 25 ) Judgment in Commission v Council, C‑370/07, EU:C:2009:590, paragraph 37.

( 26 ) Judgment in Commission v Council, C‑370/07, EU:C:2009:590, paragraph 38.

( 27 ) Judgment in Commission v Council, C‑370/07, EU:C:2009:590, paragraph 39.

( 28 ) Judgment in Commission v Council, C‑370/07, EU:C:2009:590, paragraph 37.

( 29 ) Emphasis added.

( 30 ) Emphasis added.

( 31 ) Judgment in Parliament v Commission, C‑130/10, EU:C:2012:472.

( 32 ) Judgment in Parliament v CouncilC‑133/06, EU:C:2008:257. In that connection, see Masson, F., ‘Les conditions de validité des bases juridiques dérivées à la suite de l’arrêt du 6 mai 2008’, Cahiers de Droit Européen, vol. 44, 2008, pp. 157 to 173; Garzón Clariana, G., ‘Los actos delegados en el sistema de fuentes de Derecho de la Unión Europea’, Revista de Derecho Comunitario Europeo, No 37, 2010, pp. 721 to 759 (734 to 738); Navarro Batista, N., ‘Bases jurídicas derivadas, delegación legislativa y poder de ejecución: el equilibrio institucional en la sentencia del TJUE de 6 de mayo de 2008, Parlamento Europeo c. Consejo’, Revista General de Derecho Europeo, 18, 2009.

( 33 ) Parliament v Commission, C‑130/10, EU:C:2012:472, paragraph 65.

( 34 ) Article 23(2) of Regulation No 267/2012.

( 35 ) The same can be said in relation to the amendment of Annex II to Regulation No 267/2012, which sets out the goods and technology subject to restrictive measures and the amendment of which, according to Article 45(1) of the regulation, is entrusted to the Commission ‘on the basis of determinations made by either the United Nations Security Council or the Sanctions Committee or on the basis of information supplied by Member States’.

( 36 ) It is an undisputed principle that the substantive implementation of Union provisions is normally the responsibility of the Member States (for example, Jacqué, J.P., Droit institutionnel de l’Union européenne, 6th ed., Dalloz, Paris, 2010, marginal notes 581 to 584). The basic legislative expression of the vesting of implementing powers in the Member States is contained in Article 4(3) TEU, pursuant to which ‘[t]he Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’. On the distribution of implementing powers in the European Union, see, Fuentetaja Pastor, J.Á., ‘Actos delegados, actos de ejecución y distribución de competencias ejecutivas en la Unión Europea’, Revista Española de Derecho Administrativo, No 149, 2011, pp. 55 to 89 (57 to 63).

( 37 ) In that connection, see Ruffert, M., ‘Art. 291 AEUV’, in Callies, Ch./Ruffert, M., EUV/AEUV Kommentar, C.H. Beck, Munich, 4th ed., 2011, marginal note 10.

( 38 ) Judgment in Comitato Venezia vuole vivere and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 118 and the case-law cited.

( 39 ) Points 80 to 97.

( 40 ) Paragraph 119 of the judgment under appeal.

( 41 ) Points 73 and 74 above.

( 42 ) For example, the recent judgments in Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 41, and Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 42 and the case-law cited.

( 43 ) Paragraph 108 of the judgment under appeal.

( 44 ) Emphasis added.