Case C-585/13 P: Appeal brought on 19 November 2013 by Europäisch-Iranische Handelsbank AG against the judgment of the General Court (Fourth Chamber) delivered on 6 September 2013 in Case T-434/11: Europäisch-Iranische Handelsbank AG v Council of the European Union
Date: 2013-11-19
Institutions: Court of Justice
Subjects: Germany, Iran, central bank, international sanctions, principle of legal certainty, principle of proportionality








C_2014015EN.01001101.xml










18.1.2014   


EN


Official Journal of the European Union


C 15/11





Appeal brought on 19 November 2013 by Europäisch-Iranische Handelsbank AG against the judgment of the General Court (Fourth Chamber) delivered on 6 September 2013 in Case T-434/11: Europäisch-Iranische Handelsbank AG v Council of the European Union
(Case C-585/13 P)
2014/C 15/16
Language of the case: English

Parties


Appellant: Europäisch-Iranische Handelsbank AG (represented by: S. Jeffrey, Solicitor, S. Ashley, Solicitor, A. Irvine, Solicitor, H. Hohmann, Rechtsanwalt, D. Wyatt QC, R. Blakeley, Barrister)

Other parties to the proceedings: Council of the European Union, European Commission, United Kingdom of Great Britain and Northern Ireland

Form of order sought

The appellant claims that the Court should:






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Set aside the Judgment of the General Court in the detailed respects indicated in this Appeal;










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Annul the Contested Measures immediately in so far as they apply to EIH;










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Order that the Council pay EIH's costs of the proceedings before the General Court and before this Court on Appeal.




and

Pleas in law and main arguments







1.


The General Court erred in law and reached a conclusion incompatible with the pleadings in concluding that EIH conceded that it carried out the transactions relied upon by the Council to justify its designation:






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EIH did not concede that it carried out the transactions contained in the Council’s statement of reasons.










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EIH's denial that it had carried out the transactions in the statement of reasons was sufficiently pleaded in its written pleadings and was, therefore, admissible.














2.


The General Court erred in law in finding that the substantive criteria for designation were met:






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EIH did not concede that it carried out the transactions relied upon by the Council to justify its designation and the Council failed to provide evidence to the contrary.










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The transactions referred to in EIH's Application did not correspond to the transactions relied upon by the Council to justify designation.










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EIH's submission that certain transactions were excluded from the scope of the EU sanctions regime (viz., payments into frozen accounts) was sufficiently substantiated and accordingly admissible.










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EIH did not fail to provide evidence of authorisations under Articles 8-10 of Council Regulation (EU) No 423/2007 (1) or sufficient evidence of authorisations under Article 21 of Council Regulation (EU) No 961/2010 (2) for transactions which took place after 2 September 2010.










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The so-called Third Way transactions were approved by the competent national authority responsible for enforcing sanctions in Germany and for supervising EIH (the Bundesbank), and the General Court was wrong to hold that the Bundesbank had exceeded its powers, and wrong to hold that EIH should have questioned the authority of the Bundesbank to give the approvals which it gave.














3.


The General Court erred in law in dismissing EIH’s legitimate expectations/legal certainty ground:






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The General Court adopted an incorrect characterisation of the facts on the Court file and was wrong to hold that EIH should have foreseen that it would be designated for complying with the binding assurances of the Bundesbank.










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The General Court was wrong to hold that EIH could not rely on the principle of protection of legitimate expectations because the Bundesbank had exceeded its powers, because it did not exceed its powers, and even if it had, this would not preclude reliance upon the principle of legitimate expectations.










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The General Court erred in law in holding that the relevant rules pursuant to which EIH was designated were unambiguous.














4.


The General Court erred in law in holding that EIH could not rely upon Article 32(2) of Council Regulation (EU) No 961/2010 in contesting its designation and in holding that the sanctions imposed on EIH ensured a preventative effect that could not be achieved by the Bundesbank no longer approving the Third Way or authorising such transactions:






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On the hypothesis (which is denied) that EIH acted unlawfully, Article 32(2) precluded the designation of EIH, because EIH acted in accordance with the advice and directions of the Bundesbank in every respect and did not know nor did it have reasonable cause to suspect that it had acted unlawfully.










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The imposition of restrictive measures on EIH was disproportionate because more proportionate measures existed, since if the Council considered that the German regulatory regime required review and perhaps modification, it could have suggested such a review to the German authorities, and the German authorities would have been bound to cooperate under their duty of sincere cooperation, which the General Court wrongly failed to take into account.










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The General Court also erred in law and reached a conclusion inconsistent with the documents in the file in concluding that the restrictive measures were proportionate because in EIH’s case the relevant transactions only came to light after the event. In the first place, the Bundesbank approved the Third Way before EIH acted in accordance with that approval. In the second place, if a review of its approval of Third Way transactions by the Bundesbank had led to a change in the Bundesbank’s position that would have had a preventative effect for all future transactions.










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

(2)  Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007
OJ L 281, p. 1