CELEX: 62015CC0045
Language: en
Date: 2016-09-08
Title: Opinion of Advocate General Mengozzi delivered on 8 September 2016.

OPINION OF ADVOCATE GENERAL
MENGOZZI
delivered on 8 September 2016 (1)

Case C‑45/15 P

Safa Nicu Sepahan Co.

v

Council of the European Union

(Appeal — Restrictive measures against the Islamic Republic of Iran to prevent nuclear proliferation — List of persons and entities subject to the freezing of funds and economic resources — Non-contractual liability — Sufficiently serious breach — Material damage — Non-material damage)

1.        The present case has been brought in connection with the restrictive measures introduced in order to apply pressure on the Islamic Republic of Iran to end proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems (‘nuclear proliferation’).

2.        The appellant in this case, Safa Nicu Sepahan Co., is an Iranian limited company which, for almost three years, appeared on the lists of entities involved in nuclear proliferation adopted by regulations of the Council of the European Union. Before the General Court of the European Union, it contested the lawfulness of its listing and sought compensation for the material and non-material damage which it claimed to have suffered as a result. By its judgment of 25 November 2014, Safa Nicu Sepahan v Council (T‑384/11, EU:T:2014:986; ‘the judgment under appeal’), the General Court annulled the acts relating to the inclusion of the appellant’s name on the lists concerned, dismissed the claim for compensation for material damage and ordered the Council to pay compensation of EUR 50 000 in respect of the non-material damage sustained by the appellant. (2)

3.        The present case concerns, on the one hand, an appeal brought by the appellant against the dismissal of its claim for compensation for material damage and the amount of compensation awarded in respect of non-material damage, and, on the other, a cross-appeal brought by the Council with a view to disputing the existence in this case of the conditions governing the incurring of non-contractual liability by the European Union and challenging the order requiring it to make reparation for the non-material damage caused to the appellant.
I –  The background to the dispute and the judgment under appeal

4.        The background to the dispute, set out in paragraphs 1 to 13 of the judgment under appeal, can be summarised as follows for the purposes of the present case.

5.        The name of an entity identified as ‘Safa Nicu’ was entered on the list of entities involved in nuclear proliferation set out in Annex II to Decision 2010/413/CFSP (3) by Decision 2011/299/CFSP, (4) and, consequently, on the list set out in Annex VIII to Regulation (EU) No 961/2010 (5) by Implementing Regulation (EU) No 503/2011. (6) In the statement of reasons for Decision 2011/299 and Implementing Regulation No 503/2011, that entity was described as a ‘communications firm that supplied equipment for the Fordow (Qom) facility built without being declared to the [International Atomic Energy Agency (IAEA)]’.

6.        By letter of 7 June 2011, the appellant requested the Council to amend Annex VIII to Regulation No 961/2010 either by correcting and amending the listing of the entity identified as ‘Safa Nicu’, or by removing it. Having received no reply, the appellant sent the Council a further letter on 23 June 2011.

7.        The listing was retained by Decision 2011/783/CFSP (7) and by Implementing Regulation (EU) No 1245/2011. (8) The reference to ‘Safa Nicu’ was nonetheless replaced by other references, and five addresses in Iran, the United Arab Emirates and Afghanistan were added as identifying information for the entity concerned.

8.        By letter of 5 December 2011, the Council informed the appellant that its name would continue to be listed in Annex II to Decision 2010/413 and in Annex VIII to Regulation No 961/2010. It stated that the observations submitted by the appellant on 7 June 2011 did not justify the lifting of the restrictive measures and explained that the listing of the entity identified as ‘Safa Nicu’ did indeed refer to the appellant. By letter of 11 December 2012, the Council notified the appellant of Regulation (EU) No 267/2012 (9) repealing Regulation No 961/2010 and informed it that its name had been retained on the list in Annex IX to the former regulation.

9.        By Decision 2014/222/CFSP, (10) the appellant’s name was removed from the list in Annex II to Decision 2010/413 and, by Implementing Regulation (EU) No 397/2014, (11) its name was therefore removed from the list in Annex IX to Regulation No 267/2012.

10.      On 22 July 2011, the appellant brought before the General Court an action seeking, first, the partial annulment of Regulations No 503/2011 and No 267/2012, in so far as they concerned the appellant and its affiliated companies, and, second, an order requiring the Council to pay it damages in the amount of EUR 7 662 737.40 together with interest at the rate of 5% per annum from 1 January 2013 by way of compensation for the material and non-material damage sustained as a result of the restrictive measures adopted against it.

11.      In support of its action for annulment, the appellant put forward three pleas in law alleging, first, infringement of the obligation to state reasons, second, an error of assessment and an ‘abuse of power’ and, third, infringement of its rights of defence and of its right to effective judicial protection. Having dismissed the first plea (12) and declared inadmissible the complaint raised under the second plea, alleging an ‘abuse of power’, the General Court, in paragraphs 32 to 39 of the judgment under appeal, considered and upheld the complaint raised under the second plea, alleging an error of assessment. Consequently, the General Court annulled the inclusion of the appellant’s name on the lists at issue without considering the third plea (paragraph 40 of the grounds and point 1 of the operative part of the judgment under appeal). (13)

12.      As regards the claim for damages, the General Court first of all held that the condition for the incurring of the European Union’s non-contractual liability relating to the unlawfulness of the Council’s alleged conduct was satisfied in this case, since the latter had incurred liability for a sufficiently serious breach of a rule of law intended to confer rights on individuals (paragraphs 49 to 69 of the grounds of the judgment under appeal).

13.      Next, it considered, in relation to the various heads of damage pleaded, the conditions relating to the fact that actual damage must have been suffered and to the existence of a causal link.

14.      As regards the non-material damage, the amount of which the appellant had last assessed at EUR 2 million, the General Court recognised that those conditions were satisfied in this case and, evaluating that damage ex aequo et bono, concluded that an award of EUR 50 000 constituted appropriate compensation (paragraphs 78 to 92 of the grounds and point 2 of the operative part of the judgment under appeal).

15.      However, the General Court dismissed the claim for compensation for the material damage alleged by the appellant. In relation to each head of damage, it concluded that the appellant had not adduced sufficient evidence either of the fact or extent of the damage purportedly sustained or of the existence of a causal link between that damage and the Council’s alleged conduct (paragraphs 93 to 148 of the grounds and point 4 of the operative part of the judgment under appeal).

16.      As regards the claim for interest, the General Court, first, found that there was no need to award interest in respect of the period preceding the date of delivery of the judgment under appeal and, second, concluded that the Council had to pay default interest from the date of delivery of the judgment under appeal until full payment of the compensation awarded (paragraphs 150 to 152 of the judgment under appeal and point 3 of the operative part).
II –  Forms of order sought by the parties

17.      In its appeal, the appellant asks the Court of Justice to set aside in part the judgment under appeal in so far as it failed to recognise and compensate the material damage the appellant claims to have sustained and in so far as it awarded only EUR 50 000 as compensation for non-material damage. The appellant asks the Court, moreover, to exercise its full jurisdiction and, principally, to award it an amount of EUR 5 662 737.40, plus interest, in respect of the material damage sustained and an amount of EUR 2 million, plus interest, in respect of the non-material damage sustained, and to order the Council to pay the costs, including those incurred in connection with the proceedings before the General Court. In the alternative, it asks the Court to award it an amount determined ex aequo et bono, plus interest, in respect of material damage and an amount not less than EUR 50 000, plus interest, in respect of non-material damage, and to order the Council to pay the costs, including those incurred in connection with the proceedings before the General Court. In the further alternative, the appellant asks the Court to refer the case back to the General Court so that the latter may re-examine the quantum of damages and deliver a new judgment in its favour.

18.      In its response to the Council’s cross-appeal, the appellant asks the Court to dismiss the cross-appeal as unfounded. It also reiterates the form of order sought in the principal appeal.

19.      In its cross-appeal, the Council asks the Court to set aside the judgment under appeal in so far as it ordered the Council to pay the appellant EUR 50 000 by way of compensation for non-material damage, to dismiss the appellant’s claim at first instance for compensation for that damage and to order the appellant to pay the costs, including those incurred in connection with the proceedings before the General Court.

20.      In its response to the principal appeal, the Council asks the Court to dismiss the appeal as unfounded, to replace the grounds of the judgment under appeal and to order the appellant to pay the costs, including those incurred in connection with the proceedings before the General Court.

21.      Having been granted leave to intervene in the oral procedure, the United Kingdom of Great Britain and Northern Ireland supports the form of order sought by the Council in the cross-appeal and in response to the principal appeal.
III –  Analysis

A –    Preliminary observations

22.      Some of the claims raised by the parties in the context of their submissions as to the form of order they are seeking call for a number of preliminary observations.

23.      The first observation concerns the claim for a substitution of grounds raised by the Council in its response to the principal appeal. The Council asks the Court to replace the grounds of the judgment under appeal on the basis of which the General Court proceeded to dismiss the claim for compensation for material damage made at first instance by the appellant. While endorsing that dismissal, the Council does not concur with the General Court’s finding that the first condition governing the incurring of the European Union’s non-contractual liability, relating to the existence of a sufficiently serious breach of a rule of law, was satisfied in this case. It should be noted that it is that finding which constitutes the premiss both for the recognition, in paragraphs 78 to 92 of the judgment under appeal, of the appellant’s right to be compensated for the non-material damage sustained, and for the order, made in point 2 of the operative part of the judgment under appeal, requiring the Council to pay the appellant compensation of EUR 50 000 in respect of that damage. It follows that this Court could not uphold the Council’s claim for a substitution of grounds without at the same time invalidating those parts of the judgment under appeal. Thus, despite its wording, that claim can be construed only as a claim for the setting-aside in part of the General Court’s judgment, and, as such, is inadmissible because it was made in the response to the principal appeal. (14) Nonetheless, since the arguments put forward by the Council in support of that claim are replicated word for word in its cross-appeal, the Court will have an opportunity to examine them when ruling on that cross-appeal.

24.      The second observation is substantively the same as the first but this time concerns the form of order sought in the appellant’s response to the Council’s cross-appeal. The appellant asks the Court not only to dismiss that cross-appeal but also to set aside in part the judgment under appeal and to grant it adequate compensation for the material and non-material damage sustained, seeking the same form of order as it sought in its own appeal. Those claims must also be declared inadmissible inasmuch as they were made in the response to the cross-appeal. (15)

25.      Those clarifications having been made, I shall begin by examining the cross-appeal, by which, as already indicated above, the Council disputes, in particular, the existence in this case of a sufficiently serious breach of a rule of law intended to confer rights on individuals. After all, should that complaint prove to be well founded, the European Union would not have incurred non-contractual liability and all of the claims raised by the appellant in its principal appeal would have to be dismissed. I shall then examine the principal appeal.

B –    The cross-appeal

26.      In its cross-appeal, the Council raises two complaints against the judgment under appeal. By the first, it accuses the General Court of having erred in law ‘with regard to certain of the conditions for incurring non-contractual liability of the [European Union]’; by the second, it criticises the General Court’s finding that the annulment of the contested acts did not represent adequate reparation for the non-material damage allegedly suffered by the appellant.
1.      The first complaint, alleging an error of law with respect to the conditions governing the incurring of non-contractual liability by the European Union

27.      The Council, supported by the United Kingdom, claims that the General Court was wrong to consider it established in this case that there has been a sufficiently serious breach of a rule of law intended to confer rights on individuals, such breach being required in order for it to be possible to regard as fulfilled the first of the three conditions governing the incurring of non-contractual liability by the European Union, namely that the institutions’ alleged conduct must be unlawful. (16) The complaint is divided into two limbs.
(a)    The first limb, alleging an incorrect evaluation of the extent of the Council’s discretion

28.      The Council submits, in the first place, that the General Court erred in law by concluding, in paragraphs 59 to 61 of the judgment under appeal, that the Council did not enjoy any discretion with regard to the requirement for information or evidence substantiating the reasons for the appellant’s inclusion on the lists of designated persons and entities set out in the contested acts. That conclusion, the Council argues, is based on developments in case-law − in particular, the judgments of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), and of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518) − which post-dated the Council’s adoption of the acts including and retaining the appellant’s name on those lists, and were not foreseeable at the time when those acts were adopted, on 23 May 2011 and on 1 December 2011 and 23 March 2012, respectively. As proof, the Council refers to the Opinions of Advocate General Bot in Joined Cases Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:176) and in Council v Manufacturing Support & Procurement Kala Naft (C‑348/12 P, EU:C:2013:470), in which he took a view that differed from that ultimately adopted by the Court.

29.      I note first of all that, in accordance with the second paragraph of Article 340 TFEU, the European Union is to make good any damage caused by its institutions or by its servants in the performance of their duties. According to settled case-law, the right to compensation is recognised in EU law provided that three conditions are satisfied, namely, the conduct of which the institutions are accused must be unlawful, actual damage must have been sustained and there must be a causal link between the conduct and the damage pleaded. (17) In order for the first of those conditions to be satisfied, case-law requires that the rule of law infringed must be intended to confer rights on individuals and the breach must be sufficiently serious. (18) The Court has stated that the decisive test for finding that a breach of EU law is sufficiently serious is whether the EU institution manifestly and gravely disregarded the limits on its discretion. (19) Where that institution has only considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach. (20) It is also apparent from case-law that the measure of discretion left by the rule breached to the institutions depends on, inter alia, the clarity and precision of that rule, and that, in any event, a breach of EU law will clearly be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case-law of the Court on the matter, from which it is clear that the conduct in question constituted an infringement. (21)

30.      Next, as regards the grounds of the judgment under appeal on the basis of which the General Court proceeded to conclude, in paragraph 69 of that judgment, that, in this case, the Council had incurred liability for a sufficiently serious breach of a rule of law intended to confer rights on individuals, I would observe, first of all, that those grounds are not entirely unambiguous.

31.      In paragraph 49 of the judgment under appeal, the General Court refers to the analysis carried out in paragraphs 26 to 40 of the same judgment, on the basis of which it concluded that the Council had failed to substantiate the allegation that was the only reason relied on as against the appellant for adopting the restrictive measures against it, (22) thus infringing the provisions of Regulations No 961/2010 and No 267/2012, which ‘set forth exhaustively the conditions in which [such measures] are permitted’ and which ‘are, a contrario, intended essentially to protect the interests of the individuals concerned’. (23) It is apparent from those passages in the judgment under appeal that the Council is alleged to have acted unlawfully by infringing the appellant’s right not to have the measures in question imposed on it if the substantive conditions to which their adoption is subject are not satisfied. (24)

32.      However, when considering the question whether, in the present case, the Council enjoyed any discretion within the meaning of the case-law referred to in point 29 above, the General Court states that ‘the unlawfulness of the contested acts arises from the fact that the Council does not have any information or evidence which substantiates the restrictive measures concerning the applicant to the requisite legal standard and thatthe Council is consequently unable to produce such information or evidence before the Court’. (25) Referring to the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), it states that the Council’s obligation to substantiate the restrictive measures adopted arises from the requirement to observe the fundamental rights of the persons and entities concerned and, in particular, their right to effective judicial protection. There follows, in paragraphs 64 to 67 of the judgment under appeal, a reference to four judgments of the General Court — judgment of 14 October 2009, Bank Melli Iran v Council (T‑390/08, EU:T:2009:401); judgment of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council (T‑228/02, EU:T:2006:384); judgment of 23 October 2008, People’s Mojahedin Organization of Iran v Council (T‑256/07, EU:T:2008:461); and judgment of 4 December 2008, People’s Mojahedin Organization of Iran v Council (T‑284/08, EU:T:2008:550) — relating to the scope of the judicial review of the lawfulness of acts imposing restrictive measures. In paragraph 68 of the judgment under appeal, the General Court concludes that ‘an administrative authority, exercising ordinary care and diligence, would, in the circumstances of the present case, have realised, at the time the first of the contested acts was adopted, that the onus was upon it to gather the information or evidence substantiating the restrictive measures concerning the applicant in order to be able to establish, in the event of a challenge, that those measures were well founded by producing that information or evidence before the EU judicature’. In those passages of the judgment under appeal, the rule in the light of which the General Court examines the Council’s discretion with a view to establishing the existence of a sufficiently serious breach seems, rather, to be the appellant’s right to effective judicial protection.

33.      That ambiguity is probably due to the fact that the question as to the limits imposed on the Council’s discretion by the need to respect fundamental rights in the field of restrictive measures arose largely in relation to the right to effective judicial protection. After all, it is in the light primarily of the requirement to ensure that acts imposing such measures are open to judicial review that the Council’s obligation to produce evidence substantiating the reasons for the adoption of such measures, like the obligation to state the reasons for those acts, has, over the course of the judgments delivered by the EU judicature, gradually crystallised. (26) The foregoing must therefore serve as the backdrop for reading the grounds of the judgment under appeal which are being challenged under this first limb of the first ground of the cross-appeal and for analysing the arguments put forward by the Council in support of that plea.

34.      First of all, I would observe that the conduct, classified as an ‘error of assessment’, of which the Council was ultimately accused in the part of the judgment under appeal in which the application for annulment was examined was the Council’s inability to produce before the EU judicature any evidence on the basis of which the lawfulness of the restrictive measures adopted against the appellant could be assessed. According to paragraph 37 of the judgment under appeal, in response to a question from the General Court, the Council had stated that the only information available to it concerning the adoption and maintenance of the restrictive measures against the appellant was a listing proposal presented by a Member State and that the information in that proposal had been reproduced in the statement of reasons for the acts at issue. That omission by the Council made it impossible to carry out any judicial review of the validity of the reason given for adopting the restrictive measures against the appellant, thus rendering the contested listing decisions, on that ground also, unlawful. (27)

35.      The judgment under appeal does not therefore concern itself with any verification of whether the Council remained within the limits of its discretion in the evaluation of the information and evidence on the basis of which the appellant was included on the lists at issue or in the assessment of complex political situations that might call into question the limits of the judicial review. The Council’s reference to the Opinions of Advocate General Bot in Joined Cases Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:176) and in Council v Manufacturing Support & Procurement Kala Naft (C‑348/12 P, EU:C:2013:470), in which he argues that the Council should be accorded a wide discretion in matters relating to restrictive measures and that the judicial review should be ‘adjusted by the European Union judicature’, (28) is therefore irrelevant in these proceedings.

36.      It is the effectiveness of judicial review — if not, at an even more elementary level, the very principle of such a review — rather than the limits attaching to it which is at issue in the present case. After all, an institution which claims to be empowered to adopt and maintain restrictive measures against an individual or a legal person solely on the basis of information received by a Member State that is not accompanied by any evidence capable of substantiating or even supporting the plausibility of the allegations it contains, even after the person concerned has cogently argued that he had no part in the conduct attributed to him, not only disregards the provisions laying down the conditions for adopting and maintaining such measures, but also, fundamentally, denies the EU judicature any opportunity to review that institution’s actions.

37.      However, the principle that acts by which the Council adopts restrictive measures against natural or legal persons must be subject to effective judicial review was asserted by the Court long before the judgments of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142) and of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518).

38.      In the judgment of 18 January 2007, PKK and KNK v Council (C‑229/05 P, EU:C:2007:32), concerning restrictive measures taken against persons and entities with a view to combating terrorism, the Court stated that the European Union ‘is a community based on the rule of law in which its institutions are subject to judicial review of the compatibility of their acts with the … Treaty ...’ and in which ‘individuals are … entitled to effective judicial protection’. In that same judgment, the Court also stated that, in matters relating to restrictive measures, it is particularly important that such protection should be effective given that those measures ‘have serious consequences’, since not only are all financial transactions and financial services thereby prevented in the case of a person, group or entity covered [by the legislation in question], but also their reputation and political activity are damaged. (29) The Court also stated that the evidence relied on as the basis of the listing decision at issue and the precise identification of the name(s) of the persons and entities concerned must be subject to review. (30)

39.      Those principles were confirmed, again within the sphere of restrictive measures adopted with a view to combating international terrorism, in the judgment of 29 June 2010, E and F (C‑550/09, EU:C:2010:382). It is true, as the Council noted at the hearing, that that judgment relates to the obligation incumbent on that institution to state the reasons for acts adopting restricting measures, while, in the present case, the issue, at least at the appeal stage, is not that the appellant’s inclusion on the lists concerned is vitiated by a failure to state reasons or by an inadequate statement of reasons. (31) In that judgment, however, the Court confirmed, in clear and unequivocal terms, both the requirement for such measures to be subject ‘[to] an adequate review of [their] substantive legality’ and the scope of that review, which must include, in particular, ‘the verification of the facts, and the evidence and information relied upon in support of [those measures]’. (32) Such a review may be frustrated not only by the lack of a statement of reasons for the act subject to it, but also by the lack of any evidence capable, even within the confines of a limited review, of establishing that those reasons are well founded.

40.      It follows from the foregoing that, contrary to the Council’s submission, at the time when the appellant’s name was included on the lists concerned for the first time, on 23 May 2011, there was no uncertainty in the Court’s case-law with respect to the obligation incumbent on the Council, when adopting decisions imposing restrictive measures on natural or legal persons, to comply with the requirements arising from respect for the right to effective judicial protection enjoyed by the persons concerned, or, therefore, with respect to its obligation to act on the basis of facts and evidence which enable the EU judicature to carry out a review — however limited that might be — of the legality of those decisions.

41.      Moreover, it should be noted that the existence of case-law establishing that the conduct of which the institution concerned is accused constitutes an infringement is not an indispensable condition of the classification of an infringement as a manifestly serious breach. It is apparent from the case-law cited in point 29 above that such a classification, which takes into account the extent of the discretion which the rule breached leaves to the institutions, depends, in particular, on how clear and precise that rule is. Given the importance that attaches to the protection of fundamental rights in a community based on the rule of law such as the European Union, there can in my view be no doubt that the EU institutions do not have any discretion with respect to their obligation to base the adoption and maintenance of restrictive measures against natural or legal persons on at least some evidence that will enable the EU judicature to carry out a review, however limited, of the substance — or even simply the plausibility (33) — of the allegations on the basis of which such measures were adopted.

42.      In the present case, as I explained in point 34 above and as the Council acknowledged in response to a request from the General Court and confirmed at the hearing in the present proceedings, the allegation on the basis of which the appellant’s name was included on the lists at issue and then retained there for almost three years was at no point substantiated by any evidence, thus making it impossible for the EU judicature to carry out any judicial review.

43.      In those circumstances, the General Court did not err in law in finding, in paragraph 69 of the judgment under appeal, that the conduct of which the Council was accused constituted a sufficiently serious breach of EU law within the meaning of the case-law cited in point 29 above.

44.      For the reasons given, the first limb of the Council’s complaint alleging an error of law with respect to the conditions governing the incurring of non-contractual liability by the European Union must, in my view, be rejected.
(b)    The second limb, alleging an incorrect evaluation of the level of complexity of the situation and of the difficulties as regards the application and interpretation of the rules infringed

45.      In the second place, the Council submits that the General Court erred in law in finding, in paragraph 62 of the judgment under appeal, that the rule requiring the Council to substantiate the restrictive measures adopted against the appellant did not relate to a particularly complex situation and did not give rise to difficulties as regards its application or interpretation. The Council notes that the difficulties associated with the communication of confidential information underpinning a listing decision for the purposes of its assessment by the General Court had been highlighted by Advocate General Sharpston in her Opinion in France v People’s Mojahedin Organization of Iran (C‑27/09 P, EU:C:2011:482) and that, in order to overcome such difficulties, a new Article 105 was inserted in the Rules of Procedure of the General Court in 2014, that is to say several years after the appellant was included on the lists at issue for the first time.

46.      I note that, according to settled case-law, the system of rules which the Court has worked out with regard to the second paragraph of Article 340 TFEU takes into account, inter alia, the complexity of the situations to be regulated, difficulties in the application or interpretation of the texts and the degree of clarity and precision of the rule infringed. (34)

47.      In the present case, it is sufficient to note that the Council did not at any point in the proceedings at first instance rely on the confidentiality of documents or information in its possession in order to object to their disclosure to the General Court. However, as has been noted a number of times above, the Council indicated to the General Court that the only information available to it in connection with the adoption and maintenance of the restrictive measures against the appellant had been reproduced in the statement of reasons for the listing decision. Accordingly, as the agent for the Council confirmed at the hearing in response to a specific question from the Court, there has never been any question in this case of transmitting confidential information to the EU judicature.

48.      In those circumstances, the Council has no reason to rely on the alleged procedural difficulties associated with such transmission at the time when the measures at issue were adopted in order to challenge the finding in paragraph 62 of the judgment under appeal that the rule requiring the Council to substantiate such measures ‘does not relate to a particularly complex situation’, ‘is clear and precise’ and ‘does not give rise to any difficulties as regards its application or interpretation’.

49.      For the reasons given, the second limb of the Council’s complaint alleging an error of law with respect to the conditions governing the incurring of non-contractual liability by the European Union must also be rejected.
2.      The second complaint, alleging an error of law with respect to the order requiring the Council to compensate the appellant for the non-material damage sustained

50.      By the second complaint of its cross-appeal, directed against paragraphs 87 to 92 of the judgment under appeal, the Council, supported by the United Kingdom, claims that the General Court erred in law in ordering it to pay the appellant a sum of EUR 50 000 for the non-material damage allegedly suffered by the appellant. In doing so, the General Court departed from the case-law to the effect that the annulment of a listing decision is capable of rehabilitating the person concerned and of constituting a form of reparation for the non-material damage suffered. According to the Council, considerations similar to those put forward by the General Court to justify its decision, that is to say, in particular, the seriousness of the allegation that an entity is associated with Iranian nuclear proliferation, also apply, mutatis mutandis, to other cases, including Sison v Council (judgment of 11 July 2007, Sison v Council, T‑47/03, not published, EU:T:2007:207), in which the General Court dismissed the applicant’s claim for compensation for non-material damage. The Council also notes that, in the present case, it decided to de-list the appellant in April 2014, in other words before the judgment under appeal was delivered.

51.      Before examining the Council’s arguments, it is appropriate to provide a brief summary of the reasoning followed by the General Court in the grounds of the judgment under appeal which are being challenged in the complaint under consideration.

52.      In paragraphs 80 and 85 of the judgment under appeal, the General Court points out, first of all, that, when an entity is the subject of restrictive measures because of the support it has allegedly given to nuclear proliferation, it is publicly associated with conduct which is considered a serious threat to international peace and security, as a result of which it becomes an object of opprobrium and suspicion (which thus affects its reputation) and is therefore caused non-material damage — distinct from any material loss resulting from an impact on its commercial relations — for which it is entitled to be compensated. Next, after observing that annulment of the contested acts is capable of constituting a form of reparation for that damage, since it entails a finding that the appellant’s association with nuclear proliferation is unjustified and, consequently, unlawful, the General Court finds that, in the circumstances of the present case, that annulment can only limit the amount of compensation to be awarded but cannot represent full reparation for the damage suffered. (35) The General Court sets out four grounds in support of that finding. First, the effects which triggered the non-material damage suffered by the appellant, in particular the way in which third parties, located for the most part outside the European Union, behaved towards it, ‘cannot be wholly offset by a subsequent finding that the contested acts are unlawful, given that the adoption of restrictive measures against an entity tends to attract more attention and provoke a greater reaction, in particular outside the European Union, than does their subsequent annulment’ (paragraph 88 of the judgment under appeal). Second, the allegation levelled by the Council at the appellant is particularly serious (paragraph 89 of the judgment under appeal). Third, that allegation ‘has not been substantiated by any relevant information or evidence’ (paragraph 90 of the judgment under appeal). Fourth, although the listing of the appellant’s name could have been withdrawn by the Council at any time, it was maintained for almost three years despite the appellant’s objections (paragraph 91 of the judgment under appeal).

53.      The Council’s arguments are based on a series of what I consider to be erroneous premisses.

54.      In the first place, contrary to what the Council suggests, the Court of Justice has not transposed to the sphere of restrictive measures the principle, which it established in the context of civil service litigation, that the annulment of an act of the administration, and therefore the recognition of its illegality, constitutes in itself adequate and, in principle, sufficient reparation for the non-material damage which that act caused to the official contesting it. (36) It is true, as the General Court recalls in paragraph 86 of the judgment under appeal, that, in paragraph 72 of the judgment of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331), the Court of Justice stated that recognition of the illegality of the contested act was capable of rehabilitating the applicant or constituting a form of reparation for the non-material harm which he had suffered by reason of that illegality. However, the Court of Justice made that statement when ruling on whether the applicant retained an interest in bringing proceedings after his name had been removed from the list at issue, and its finding must therefore be regarded as obiter dictum in the context of that judgment. Moreover, the Court confined itself to stating that the annulment of the act ‘[was] capable … of … constituting a form of reparation for the non-material harm’, (37) but did not reproduce the considerably more restrictive wording it had used in paragraph 26 of the judgment of 7 February 1990, Culin v Commission (C‑343/87, EU:C:1990:49) — to which it nonetheless referred — to the effect that the annulment of the contested act ‘constitutes appropriate reparation for any non-material harm which [the applicant] may have suffered’. (38)

55.      In the second place, even if the Court of Justice had transposed the principle referred to in point 54 above, it is apparent from the case-law that the application of that principle is not automatic, contrary to what the Council appears to imply. Thus, on the one hand, in order to assess whether the annulment of an unlawful act may have the effect of retroactively eliminating the non-material damage suffered by the applicant, account must be taken of all the circumstances of the case, (39) including the seriousness and duration of the infringement, (40) as well as the aggravating circumstances which characterised the specific situation of the person concerned. (41) On the other hand, the applicant may be able to show that he has suffered non-material damage which is separable from the unlawfulness justifying the annulment of the act and incapable of being entirely remedied by that annulment. (42) In this regard, the case-law states that serious accusations made publicly against the person concerned in an act adversely affecting him or in the course of proceedings culminating in such an act are capable of causing that person non-material damage separate from that act where they are prejudicial to his honour, dignity, self-esteem or reputation. (43) As the Court of Justice pointed out in the judgment of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331), persons covered by restrictive measures are publicly designated as being associated with conduct which raises opprobrium and suspicion. (44) As a result, they suffer non-material damage which is separable from that which is caused by the act itself and which, depending on the circumstances, may be incapable of being entirely remedied by the annulment of that act. (45)

56.      In the third place, contrary to what the Council suggests, the claim for compensation for the non-material damage allegedly suffered by the applicant in Sison v Council (judgment of 11 July 2007, Sison v Council, T‑47/03, not published, EU:T:2007:207) was dismissed on grounds other than a finding that annulment of the restrictive measures at issue was capable of entirely eliminating that damage. Paragraph 241 of that judgment, to which the Council refers, concerns only the damage caused by the failure to observe the applicant’s rights of defence, which the General Court found could be adequately compensated by annulment of the contested act, given that the rule infringed constituted a procedural guarantee. In paragraph 247 of that judgment, however, the General Court rules on the claim for compensation for the non-material damage caused, in particular, by the applicant’s being branded a ‘terrorist’ by dismissing that claim on the ground that there was no evidence of a direct causal link between that damage and the Community acts at issue.

57.      It follows from the foregoing considerations that the General Court did not make the errors alleged by the Council when it carried out, in the judgment under appeal, an assessment of the circumstances of the case in order to ascertain whether, and to what extent, the non-material damage pleaded by the appellant could be considered to have been entirely eliminated by the annulment of the acts at issue.
3.      Conclusion with respect to the cross-appeal

58.      On the basis of all the foregoing, I take the view that the Council’s cross-appeal is unfounded and must therefore be dismissed.

C –    The principal appeal

59.      The appellant raises two grounds in support of its appeal. By its first ground of appeal, directed against paragraphs 93 to 149 of the judgment under appeal, the appellant alleges that the General Court made various errors of law in dismissing its claim for compensation for the material damage it claims it suffered as a result of its inclusion on the lists at issue. The second ground of appeal, on the other hand, is directed against that part of the judgment under appeal in which the General Court ruled on the appellant’s claim for compensation for non-material damage.
1.      The first ground of appeal, alleging infringement of the second paragraph of Article 340 TFEU, Article 41(3) of the Charter of Fundamental Rights of the European Union and the principles of proportionality and equitable evaluation, denial of justice, distortion of the facts and defective and contradictory reasoning in relation to the claim for compensation for the material damage allegedly suffered by the appellant

60.      This ground of appeal is divided into several limbs.
(a)    The first limb, alleging a breach of the principle of full compensation laid down in the second paragraph of Article 340 TFEU and in Article 41(3) of the Charter of Fundamental Rights

61.      By the first limb of its first ground of appeal, the appellant complains that the General Court infringed its right to full compensation for the damage caused by the Council’s unlawful conduct, in accordance with the principles laid down in the second paragraph of Article 340 TFEU and Article 41(3) of the Charter of Fundamental Rights. It claims that the general principles common to the laws of the Member States to which those provisions refer include the principles of ‘proportionality’ and ‘equitable evaluation’, whereby, where the existence of damage has been proved but establishing the precise extent or quantum of that damage is difficult or burdensome, the General Court has a duty to determine the quantum of damages ‘in a fair and equitable manner or, alternatively, ex aequo et bono’, rather than dismissing the ‘obvious’ in its entirety. The appellant also submits that the grounds on which the General Court dismissed all of its claims for compensation for material damage, after it had acknowledged at various points in the judgment under appeal (46) that the Council’s conduct had indeed and ‘by definition’ caused such damage to the appellant, were illogical and contradictory.

62.      I would observe, as a preliminary point, that, since the above arguments are methodically and fully reproduced by the appellant in the other parts of its first ground of appeal, which concern those grounds of the judgment under appeal that address the various heads of damage alleged at first instance, it is legitimate to question the autonomy of the limb under consideration here within the context of that ground of appeal.

63.      Nonetheless, I note that the European Union’s non-contractual liability, within the meaning of the second paragraph of Article 340 TFEU, for the unlawful conduct of its institutions is subject to the satisfaction of a number of cumulative conditions, including the fact of damage and the existence of a causal link between the conduct of which the institutions are accused and the damage complained of. (47) Moreover, according to settled case-law, it is for the applicant to adduce conclusive proof both as to the existence and the extent of the damage he alleges. (48) It is also settled case-law that it is first and foremost for the party seeking to establish the European Union’s liability to establish the causal link between that damage and the conduct complained of on the part of the institutions. (49)

64.      Contrary to what the appellant seems to suggest, those principles also apply where the European Union’s non-contractual liability is put in issue in the context of the adoption of restrictive measures against natural or legal persons, that is to say measures designed to have an adverse impact on the legal or financial situation of the entities and individuals targeted by them so as to bring about a change in their conduct. The General Court cannot therefore be criticised for having carried out, on the basis of the evidence adduced by the appellant, an assessment both of the fact of the various heads of damage complained of by the appellant and of the extent of that damage, or for having verified, in relation to each head of damage alleged, the existence of a direct causal link with the unlawful conduct attributed to the Council. Consequently, the fact that, following such an examination, the General Court dismissed all the claims put forward by the appellant does not, in itself, and regardless of any finding that that examination was vitiated by errors, support the conclusion that the second paragraph of Article 340 TFEU and the principle laid down in Article 41(3) of the Charter of Fundamental Rights were infringed.

65.      As regards the complaint alleging that the grounds relied on were illogical and contradictory, I note, in common with the Council, that this is based on a selective reading of the judgment under appeal. First, the assertion in paragraph 88 of the judgment under appeal, to the effect that it is apparent from the documents before the Court that the allegation that the appellant was involved in nuclear proliferation affected the way in which third parties, located outside the European Union, behaved towards it, is contained in the grounds concerning the examination of the claim for compensation for non-material damage — in which the General Court states that those effects actually caused that damage — and cannot therefore be regarded as forming part of the assessment of the fact of the material damage alleged by the appellant. Second, it is true that, in paragraph 109 of the judgment under appeal, the General Court found, as the appellant notes, that ‘the termination of business relations by entities located in the European Union is an inevitable consequence of the adoption of restrictive measures’ and that, in the present case, the termination of the business relationship between Siemens AG and the appellant was the ‘direct result’ of the adoption of the measures at issue. At the end of the analysis that then follows, however, the General Court concluded that the appellant had not proved to the requisite legal standard that it had actually suffered the material damage alleged to have been consequent upon the termination of that relationship. Third, the assertion in paragraph 145 of the judgment under appeal that ‘the extracts from the applicant’s financial statements and the summary table in question in fact show a significant decrease in its turnover’ is accompanied by the finding that those documents ‘do not establish the reasons for that trend’, a fact which the appellant neglects to mention. The same is true of the assertion, in paragraph 147 of the judgment under appeal, that the restrictive measures concerned are ‘by definition … intended to limit the free exercise of the applicant’s business’, which is followed, later in that same paragraph, by the finding that the appellant did not produce evidence that enabled the extent of the damage sustained to be ascertained.

66.      Finally, the complaint alleging that the General Court has an obligation to award compensation ex aequo et bono where the existence of damage has been proved but the evaluation of the extent of that damage is a complex process should be examined in the context of the specific assessment of the various heads of damage pleaded by the appellant, which is the subject of isolated points of criticism in the other limbs of the ground of appeal under consideration. At this stage, it is sufficient to note that such an obligation cannot in any event exempt the EU judicature from its duty to ascertain, on a case-by-case basis, whether the conditions governing the incurring of non-contractual liability by the European Union, in particular those relating to the fact of the damage complained of and the causal link, have been satisfied.

67.      On the basis of all the foregoing considerations, I take the view that the first limb of the first ground of the principal appeal must be dismissed as unfounded so far as concerns those parts of it which do not overlap with the other limbs of the same ground of appeal.
(b)    The second limb, alleging various errors of law vitiating the dismissal of the claim for compensation for damage purportedly suffered by the appellant as a result of the termination of the contract for the refurbishment of the Derbendikhan (Iraq) electrical substation and the closure of its bank accounts
i)      The claim for compensation for the damage associated with the termination of the contract for the refurbishment of the Derbendikhan electrical substation

68.      By the second limb of its first ground of appeal, the appellant claims, in the first place, that the General Court, acting arbitrarily and contrary to the principles of proportionality and ‘equitable evaluation’, refused to grant it any compensation for the damage it suffered as a result of the termination of the contract for the refurbishment of the Derbendikhan (Iraq) electrical substation.

69.      It submits that the General Court recognised, in paragraph 102 of the judgment under appeal, that that contract, which was entered into between the appellant and the authorities of Iraqi Kurdistan, had been terminated by those authorities because the appellant had not been able to obtain a payment made by the World Bank, as it had been blocked by a European intermediate bank, and, moreover, in paragraph 104 of the judgment under appeal, that that payment had been blocked shortly after the adoption of the restrictive measures against the appellant. However, the General Court did not draw from those findings the obvious conclusion that the only plausible explanation for the blocking of the payment was the appellant’s inclusion on the lists at issue.

70.      As regards the assertion in paragraph 104 of the judgment under appeal that the fact and extent of the damage pleaded had not been established, the appellant argues that it produced before the General Court the information needed to enable the value of the contract, the expenditure incurred in its preparation and the anticipated profit margin to be assessed, thus providing a detailed justification for the amount claimed as compensation for the damage suffered. The appellant submits that the General Court unlawfully dismissed or distorted that evidence.

71.      It should be noted that, after finding, in paragraph 103 of the judgment under appeal, that the evidence available to it did not expressly show that the blockage of the payment by the European intermediate bank was the result of the adoption of the restrictive measures against the appellant, the General Court went on to state that, even if a causal link between that blockage and those measures had been established, the appellant had not in any event established the fact and extent of the damage pleaded. By its arguments, the appellant challenges that assertion by calling into question the General Court’s assessment of the evidence produced before it.

72.      I would point out in this regard that, in accordance with settled case-law, since the appeal is limited to points of law, the General Court has exclusive jurisdiction to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to assess the evidence adduced. The findings of fact and the assessment of that evidence do not therefore, save where they have been distorted, constitute a point of law which is subject as such to review by the Court of Justice. (50) It also follows from the case-law that there is distortion of the clear sense of the evidence where, without recourse to new evidence, the General Court’s assessment of the existing evidence appears to be clearly incorrect. That is the case, in particular, where the inferences drawn by the General Court from certain documents are not consistent with the meaning and implications of those documents read as a whole. (51)

73.      In the present case, although the appellant alleges that the clear sense of the evidence produced at first instance was distorted, it does not explain precisely how it was distorted, but confines itself to making general references to passages from its pleadings before the General Court and the annexes to them. So far as this point is relevant, I note that paragraphs 71 to 77 of the reply before the General Court, to which the appellant refers, contain only a summary of the circumstances in which the contract in question was terminated. It is only in paragraph 76 of that reply that the appellant gives an account of the damage sustained, claiming a loss of 10% of the contract price by way of expenditure incurred in the preparation of the contract and 20% of the contract price by way of anticipated profit margin. In that context, the appellant refers to Annex A-5 to the application at first instance and to Annexes A-25-a and A-25-b to the reply before the General Court. The first of those annexes consists of a table listing those of the appellant’s projects that were affected and the tenders lost as a result of the sanctions adopted against it, while the second and third consist of a copy of the contract in question and the special conditions annexed to it. Although they provide information on the value of the contract in question, those documents are not such as to prove that the expenditure which the appellant claims to have incurred in connection with that contract was actually incurred, or the extent of the profit margin which it could reasonably have expected to achieve from the performance of that contract. As regards the answers to questions 7 and 8 put by the General Court as part of the measures of organisation of procedure of 14 January 2014, to which the appellant responded by document lodged at the General Court Registry on 31 January 2014, I note that the first of those answers concerns only the purported causal link between the blockage of the payment in question and the restrictive measures against the appellant, while the second merely contains allegations concerning the costs which it incurred and the lost earnings resulting from the termination of the contract in question. As the General Court held in paragraph 106 of the judgment under appeal, those claims are not supported by statements of the costs incurred or any precise information concerning the appellant’s own general profitability ratio or that of the industry in which it operates. (52)

74.      In the absence of substantiation of the claim that the General Court distorted the evidence submitted to it, the complaints which the appellant has raised with regard to the conclusion that it did not prove the fact and extent of the damage allegedly caused by the termination of the contract for the refurbishment of the Derbendikhan electrical substation must be declared inadmissible.

75.      Given that the conditions relating, in particular, to the fact of the damage complained of and the causal link between that damage and the conduct of which the institutions are accused are cumulative, and that, if any of those conditions is not satisfied, the European Union cannot have incurred non-contractual liability, there is no need to rule on the complaint that the General Court was wrong to conclude that there was no such link in respect of the head of damage concerned.

76.      Moreover, in so far as, on the one hand, the General Court, without committing the faults alleged by the appellant, concluded that there was no evidence of the fact and amount of the damage pleaded, and, on the other hand, the appellant has not argued that it was impossible or even difficult for it to quantify the damage, the complaints alleging infringement of the principles of proportionality and ‘equitable evaluation’ cannot in any event be upheld.
ii)    The claim for compensation for damage associated with the closure of the appellant’s bank accounts

77.      In the second place, the appellant claims that the General Court, acting arbitrarily, on the basis of illogical and contradictory grounds and in such a way as to distort the evidence, refused to award any compensation for the damage it suffered as a result of the closure of its bank accounts by the Emirate National Bank of Dubai.

78.      It should be noted that, in paragraphs 95 and 96 of the judgment under appeal, the General Court found, on the basis of the letter from the Emirate National Bank of Dubai to the appellant informing it of the closure of its bank accounts, that that closure was a consequence of the adoption, a short time before, of the restrictive measures against the appellant. However, in the further grounds of that judgment, the General Court stated, with regard to the fact and extent of the damage pleaded, first, that theEmirate National Bank of Dubai had not frozen the funds in the appellant’s accounts but had returned them to the appellant (paragraph 97 of the judgment under appeal); second, that the appellant had not put forward any material showing that it was not able to obtain the financial services previously provided by the Emirate National Bank of Dubai from another bank (paragraph 98 of that judgment); third, that it had not put forward any specific matters to show that the closure of its accounts or the suspension of its payments had affected its relations with its business partners or with other persons or entities (paragraph 99 of that judgment); and, fourth, that it had not produced any material substantiating the amount of the damage it had allegedly sustained (paragraph 100 of that judgment).

79.      As regards, first of all, the finding in paragraph 99 of the judgment under appeal that the impact which the suspension of the financial services in question had had on the appellant’s business relations had not been demonstrated, the appellant simply states that that finding is not reasoned and alleges that the facts were distorted. However, apart from making general assertions to the effect that ‘[that suspension] led to the paralysis of [its] business and its [economic] activities’, the appellant does not adduce any specific evidence to substantiate such an impact which the General Court neglected to consider, distorted or dismissed without proper reasoning.

80.      Next, contrary to what the appellant claims, the General Court’s assertion in paragraph 96 of the judgment under appeal, that the refusal of the Emirate National Bank of Dubai to continue to provide financial services to the appellant was probably due to the adoption of the restrictive measures at issue and to the bank’s fear that it would itself be the subject of such restrictive measures does not amount to an admission that the appellant would unquestionably have received the same refusal from any other bank to which it might have been able to redirect its payments. The General Court did not therefore contradict itself in finding, in paragraph 98 of that judgment, that the appellant had fallen short of proving that it was unable to obtain the same financial services from another bank. Moreover, it is not evident from the appellant’s written submissions before the General Court that it had taken steps to obtain from other banking institutions the financial services previously provided by the Emirate National Bank of Dubai and that it had been met with a refusal. In those circumstances, there is nothing to indicate that the General Court’s finding is based on a distortion of the facts or evidence.

81.      Finally, as regards the finding in paragraph 100 of the judgment under appeal that the appellant did not substantiate the amount of the damage allegedly sustained, the appellant, once again, simply argues that the facts were distorted without substantiating that argument with anything more than general assertions to the effect that the closure of the accounts in question had the ‘inevitable and undeniable consequence’, ‘in accordance with the ordinary course of events’, of causing it ‘considerable financial [damage]’. (53)
(c)    The third and fourth limbs, alleging various errors of law vitiating the dismissal of the claim for compensation for damage allegedly sustained by the appellant as a result of the termination of contracts and relations with its business partners

82.      By the third and fourth limbs of the first ground of appeal, the appellant claims that the General Court infringed the second paragraph of Article 340 TFEU, Article 41(3) of the Charter of Fundamental Rights and the principles of proportionality and equitable evaluation, by refusing to award it any compensation for the EUR 2 000 000 loss it sustained as a result of the termination of its contracts and business relations with its most important partners, namely Siemens and Mobarakeh Steel Co. (‘Mobarakeh’). The appellant submits that the General Court’s reasoning is also illogical and contradictory and based on a distortion of facts and a denial of the obvious.

83.      It should be recalled that, in paragraph 109 of the judgment under appeal, the General Court recognised the existence of a direct causal link between the termination of the business relationship between Siemens and the appellant and the adoption of the restrictive measures concerning the appellant. In paragraph 110 of that judgment, the General Court, ruling on the existence of damage, acknowledged that the termination of relations with major suppliers disrupts a company’s business, but stated that a refusal to supply products does not, in itself, constitute damage, since damage arises solely where the refusal has an impact on the financial results of that company.

84.      It then considered the various items of evidence adduced by the appellant to show that it had suffered damage as a result of the termination by its European suppliers of all business relations with it. Those items relate to the termination of the contract with Mobarakeh (paragraphs 112 to 117 of the judgment under appeal), the repercussions of that termination on the performance of the contracts for the modernisation of the electrical equipment at the Euphrates Dam in Syria (paragraphs 118 to 125 of that judgment) and the construction of electrical sub-stations in Kunduz (Afghanistan) and Baghlan (Afghanistan) (paragraphs 126 to 132 of that judgment), and other foreign projects allegedly affected (paragraphs 133 to 148 of that judgment).
i)      The termination of the contract with Mobarakeh

85.      The appellant submitted before the General Court that, because of Siemen’s refusal to ship certain equipment, it had been unable to fulfil its contractual obligations to Mobarakeh, which terminated the contract in question and excluded the appellant from its future projects. In paragraph 116 of the judgment under appeal, the General Court concluded that the adoption of the restrictive measures concerning the appellant had not been the determining and direct cause of the termination of the contract in question.

86.      According to the appellant, that conclusion is based on a distortion of the meaning of the letter which Mobarakeh sent to it on 3 September 2011 to notify it of the termination of the contract. Contrary to what the appellant submits, it is not apparent from that letter that the adoption of the restrictive measures against it was the ‘crucial and decisive’ reason for the decision to terminate the contract, Mobarakeh having placed more emphasis on the appellant’s delay in performing its obligations in relation to the contractual delivery time of 15 months, which expired on 15 November 2010, that is to say, as the General Court pointed out in paragraph 114 of the judgment under appeal, more than six months before the appellant’s inclusion on the lists concerned. The General Court did not therefore distort the meaning of that letter. (54)
ii)    The losses allegedly suffered by the appellant in connection with the contracts for the modernisation of the electrical equipment at the Euphrates Dam in Syria

87.      The appellant submitted before the General Court that, because its European suppliers had severed all business relations with it, it was not in a position to provide the bulk of the equipment, accessories and materials necessary for the modernisation of the electrical equipment at the Euphrates Dam in Syria, as a result of which it suffered a loss amounting to at least 30% of the value of the portion of the contract concerned which had to be subcontracted, that is, EUR 1 425 000 in respect of preparatory work undertaken and profit margin (see paragraph 118 of the judgment under appeal). The General Court dismissed the appellant’s claim for compensation on that ground after having found that there was no evidence of the existence of a causal link between the Council’s alleged conduct and the loss pleaded (paragraphs 119 to 121 of that judgment), on the one hand, or of the loss pleaded (paragraphs 122 to 124 of that judgment), on the other.

88.      As regards, in the first place, the causal link, in paragraph 119 of the judgment under appeal, the General Court recognised, on the basis of the documents produced by the appellant, that the start and the schedule of the works commissioned from the appellant had been deferred and that the appellant had been authorised to use ‘secondary contractors’. However, in paragraph 120 of that judgment, the General Court found that the material produced by the appellant did not prove that the reason for the delay in carrying out the project and for the use of ‘secondary contractors’ was the adoption of the restrictive measures concerning the appellant.

89.      The appellant disputes that finding.

90.      It should be recalled that, so far as the non-contractual liability of the European Union is concerned, the question as to whether there is a causal link between the wrongful act and the damage is a question of law which, as a consequence, is subject to review by the Court of Justice. (55) However, that review may not call into question the General Court’s findings and assessments of facts. (56)

91.      In the present case, most of the appellant’s arguments have the effect of calling into question the General Court’s assessment of the evidence but do not allege that that evidence was distorted. Those arguments must therefore be declared inadmissible.

92.      A complaint which is admissible, however, inasmuch as it seeks to criticise the General Court for not having carried out a correct legal characterisation of the facts, is that alleging that the General Court erred in failing to recognise the existence of a causal link on the basis of the ‘plausibility’, in the light of the circumstances of the case, of the appellant’s allegations. In that regard, I note that, according to the case-law, there is a causal link for the purposes of the second paragraph of Article 340 TFEU where there is a certain, direct causal link between the fault committed by the institution concerned and the damage pleaded, the burden of proof of which lies upon the applicant. (57) Consequently, the General Court cannot be criticised for having confined itself to finding that there was no evidence of such a causal link without determining whether the appellant’s allegations were ‘plausible’. Moreover, the appellant cannot rely on the plausibility of its interpretation of the relevant facts in order to mitigate its failure to produce evidence proving to the requisite legal standard that such a causal link exists.

93.      As regards, in the second place, the General Court’s finding that the appellant did not adduce evidence proving the damage alleged, it should be noted that the appellant’s arguments simply call into question the General Court’s assessment of the evidence, without claiming that that evidence was distorted, and must therefore be declared inadmissible.
iii) The damage allegedly sustained by the appellant in connection with the contract for the construction of the electrical sub-stations in Kunduz and Baghlan

94.      The appellant submitted before the General Court that, because its European suppliers had severed all business relations with it, it was not in a position to provide some of the machines and equipment necessary for the construction of electrical sub-stations in Kunduz and Baghlan, and that it had suffered a loss of at least 10% of the value of the portion of the project which had to be subcontracted, that is, EUR 729 210.80.

95.      In paragraphs 129 to 132 of the judgment under appeal, the General Court found, first, that it did not have at its disposal any evidence showing that the terms of the contract for the construction of the electrical sub-stations in Kunduz and Baghlan had had to be amended following the adoption of the restrictive measures against the appellant, in particular as regards the use of subcontractors; second, that the appellant had not proved that, following Siemens’ cancellation of an order, it had become impossible for it to perform the contract concerned without having recourse to subcontractors; and, third, that the appellant had also not specified the type of damage suffered or put forward any evidence of the amount represented by the portion of the contract that was allegedly subcontracted.

96.      Almost all the arguments raised by the appellant against the findings reproduced above seek to call into question the General Court’s appraisal of the facts and evidence or amount to mere assertions, often based on a selective reading of the judgment under appeal.

97.      The only admissible complaint, in my view, is that alleging that the General Court distorted the facts and evidence by stating that the appellant had not proved that, following the cancellation of the Siemens order, it had become impossible for it to perform the contract in question without having recourse to subcontractors. The appellant submits, in that regard, that the General Court should have known that it is not a manufacturer and that it is therefore dependent on suppliers and subcontractors. That complaint seems to me, however, to be based on a misreading of paragraph 130 of the judgment under appeal. I take the view that the General Court did not mean to say that the appellant could have manufactured the equipment and machines under the contract itself, but rather that it could, if necessary, have acquired those materials from suppliers other than Siemens, for example, from non-European suppliers, rather than subcontracting the procurement of those materials. The distortion alleged by the appellant, which is the only complaint raised by the appellant in respect of that paragraph of the judgment under appeal, has not therefore been established.
iv)    The other matters assessed by the General Court in the context of the claim for compensation for the damage purportedly suffered by the appellant as a result of the termination of contracts and relations with its business partners

98.      The appellant submits, first, that in paragraph 133 et seq. of the judgment under appeal, the General Court found that there was no evidence of facts which the General Court itself had regarded as established at other points in that judgment.

99.      I note, in that regard, that, in the abovementioned paragraphs of the judgment under appeal the General Court examined a series of documents produced by the appellant and concluded, in relation to each of them, that they did not provide sufficient evidence of the existence of a causal link between the Council’s alleged conduct and the damage which the appellant claimed to have suffered as a result of the termination of business relations with its European suppliers or of the fact that that damage had been sustained. In paragraphs 88 and 109 of the judgment under appeal, to which the appellant refers, the General Court stated that ‘the applicant[’s involvement] in nuclear proliferation affected the way in which third parties, located for the most part outside the European Union, behaved towards it’ (paragraph 88 of that judgment) and that ‘the termination of business relations by entities located in the European Union is an inevitable consequence of the adoption of restrictive measures’ (paragraph 109 of that judgment). Contrary to what the appellant appears to claim, those passages do not constitute an acknowledgement of the fact of the damage which the appellant claimed to have suffered as a result of the termination of those relations, or of the existence of a causal link between that damage and the restrictive measures. On the contrary, in paragraph 110 of the judgment under appeal, the General Court stated very clearly that ‘a refusal to supply products does not, in itself, constitute damage’.

100. Next, the appellant submits that, in the ‘usual course of events’, it is ‘normal’ that damage would result from the termination of business relations by a company’s suppliers, and, more generally, that restrictive measures are adopted with the aim of inflicting maximum economic and financial harm on the targeted entity, a fact which, in the appellant’s contention, the General Court attempts to deny, not least by placing on it a burden of proof which is impossible to discharge.

101. In that regard, it is indeed true, as the General Court itself acknowledges in paragraph 147 of the judgment under appeal, that restrictive measures are intended to limit the free exercise of the business of the entities concerned with a view to bringing about a change in their conduct to reflect the objectives pursued. However, that self-evident fact does not support the presumption that those measures specifically caused the person concerned to suffer actual and certain damage and cannot therefore exempt that person from the obligation incumbent on him in an action to establish the non-contractual liability of the European Union to prove not only the unlawfulness of the conduct of which the Council is accused, but also the fact and extent of the damage complained of and the causal link between that damage and that conduct. After all, as the Court of Justice has already had occasion to point out, the existence of actual and certain damage cannot be considered in the abstract by the EU judicature but must be assessed in relation to the specific facts characterising each particular case in point. (58)Moreover, in accordance with the second paragraph of Article 340 TFEU, it is for the European Union to make good only such damage as is the consequence of the conduct of its institutions or servants, for which purposes there must be a sufficiently direct causal nexus between that conduct and the damage pleaded. (59) In the present case, moreover, there is nothing to indicate that the General Court placed on the appellant a burden of proof which was abnormal or impossible to discharge.

102. The remaining arguments put forward by the appellant call into question the General Court’s assessment of the evidence and must therefore be dismissed as inadmissible.
v)      The complaint alleging that the General Court failed to carry out an equitable evaluation of the damage sustained by the appellant

103. In the alternative, the appellant complains that the General Court did not carry out an ex aequo et bono evaluation of the damages to be awarded to it for the termination of relations with its business partners, relying in this regard, in particular, on the significant decrease in its turnover and its large-scale redundancy programme, but instead dismissed all of its claims for compensation.

104. In that regard, it is sufficient to observe that, in order for an obligation on the part of the General Court to carry out such an evaluation to be capable, if appropriate, of being established, the appellant would at the very least have had to provide evidence of the fact of the damage pleaded and of the existence of a causal link, which the General Court, without being legitimately challenged in this regard, found that it had not done.

105. In so far as the appellant refers to the extracts from its financial statements, I would observe that, in paragraph 145 of the judgment under appeal, the General Court held, in the exercise of its exclusive jurisdiction to assess the evidence, that, although those extracts did show a significant decrease in its turnover, they did not establish the reasons for that trend, with the result that ‘it [was] impossible to determine whether — and if so, to what extent — that decrease [was] accounted for by the adoption and maintenance of the restrictive measures concerning the applicant rather than by other factors such as general developments in the economic climate’.
(d)    Conclusion with respect to the first ground of appeal

106. On the basis of the foregoing considerations, the first ground of the principal appeal directed against the dismissal of the claim for compensation for the material damage allegedly sustained by the appellant must, in my view, be dismissed.

107. In so far as it is apparent from the foregoing that the conditions relating to the fact and extent of the damage and/or the causal link between that damage and the conduct of which the Council is accused are not satisfied in relation to all the heads of damage pleaded by the appellant in its claim for compensation for material damage, the appellant’s request that the Court, exercising its unlimited jurisdiction, make an equitable determination of the amount of those damages cannot in any event be granted.
2.      The second ground of appeal, alleging infringement of the obligation to state reasons and of the principle of proportionality in relation to the claim for compensation for non-material damage sustained by the appellant

108. According to the appellant, the amount of EUR 50 000 awarded by the General Court for non-material damage, which it considers to be negligible, was determined in an arbitrary and unreasoned fashion and in breach of the principle of proportionality.

109. As regards the complaint alleging failure to state reasons, I note that, according to settled case-law, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the reasoning of the General Court, so that the persons concerned can ascertain the reasons for the decision taken and the Court of Justice can exercise its power of review. (60) In this case, the General Court was sufficiently clear, in paragraphs 86 to 91 of the judgment under appeal, the content of which is summarised in point 52 above, as to the considerations and material on the basis of which it determined the amount of compensation to be awarded to the appellant.

110. As regards the complaint alleging infringement of the principle of proportionality, the arguments put forward by the appellant do not, in my view, successfully demonstrate that the General Court’s assessment is vitiated by such an error.

111. First, in so far as the appellant states that the General Court did not take appropriate account either of the extent of the damage it suffered or of the seriousness of the Council’s infringements, it is in fact asking the Court of Justice to carry out a new assessment of the amount determined by General Court. According to the case-law, however, once the General Court has found that actual damage has been sustained, it alone has jurisdiction to assess, within the confines of the claim, the most appropriate compensation. (61)

112. Second, in so far as the appellant criticises the General Court for having considered that the damaging effects of its inclusion on the lists concerned lasted for almost three years, when it is in fact still suffering the negative consequences of its listing, it is sufficient to note, as the Council does, that the European Union can be held liable only for damage which is the direct consequence of infringements committed by its institutions and servants. Neither the fact, alleged by the appellant, that its name is still to this day associated with those sanctions on Internet sites, nor the damage purportedly caused by that fact, can be regarded as constituting such a direct consequence, since the appellant’s name was removed from the lists concerned on 16 April 2014 and the judgment annulling that listing was delivered on 25 November 2014.

113. For the foregoing reasons, the second ground of appeal must, in my view, be dismissed.
3.      Conclusion with respect to the principal appeal

114. On the basis of the foregoing considerations, I take the view that the principal appeal must be dismissed in its entirety.
IV –  Conclusion

In the light of all the foregoing considerations, I propose that the Court:
–        dismiss in their entirety both the principal appeal lodged by Safa Nicu Sepahan Co. and the cross-appeal lodged by the Council of the European Union; and
–        order Safa Nicu Sepahan Co., the Council of the European Union and the United Kingdom of Great Britain and Northern Ireland to bear their own costs, in accordance with Article 138(2) and (3) and Article 140(1) of the Rules of Procedure of the Court of Justice.

1      Original language: French.

2      I note that the acts annulled by the General Court were adopted on the basis of Article 215 TFEU and, therefore, outside the framework of the common foreign and security policy (CFSP). Consequently, those acts fall within the general jurisdiction of the EU judicature under Article 19 TEU (see, to that effect, Opinion of Advocate General Wathelet in Rosneft (C‑72/15, EU:C:2016:381, point 48)). The General Court therefore had jurisdiction to hear the action for damages brought by the appellant with a view to obtaining compensation for the damage sustained as a result of the adoption of those acts, a fact, moreover, which the Council has not at any time disputed either before the General Court or the Court of Justice.

3      Council Decision of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39).

4      Council Decision of 23 May 2011 amending Decision 2010/413 (OJ 2011 L 136, p. 65).

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

6      Council Regulation of 23 May 2011 implementing Regulation No 961/2010 (OJ 2011 L 136, p. 26).

7      Council Decision of 1 December 2011 amending Decision 2010/413 (OJ 2011 L 319, p. 71).

8      Council Regulation of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11).

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

10      Council Decision of 16 April 2014 amending Decision 2010/413 (OJ 2014 L 119, p. 65).

11      Council Regulation of 16 April 2014 implementing Regulation No 267/2012 (OJ 2014 L 119, p. 1).

12      The General Court noted that the appellant no longer disputed that it was designated by the listing at issue and concluded that there was therefore no longer any need to consider the first plea (paragraphs 23 to 25 of the judgment under appeal).

13      The claim for annulment of the listing of the names of the appellant’s ‘affiliated companies’, on the other hand, was dismissed as inadmissible (paragraphs 41 to 44 of the judgment under appeal).

14      Under Article 174 of the Rules of Procedure of the Court, ‘a response shall seek to have the appeal allowed or dismissed, in whole or in part’.

15      Under Article 179 of the Rules of Procedure, ‘where a cross-appeal is brought, the applicant at first instance … may submit a response, which must be limited to the pleas in law relied on in that cross-appeal’.

16      See point 29 of this Opinion.

17      See, inter alia, judgment of 9 September 2008, FIAMM and Others v Council and Commission (C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 106 and the case-law cited).

18      See, inter alia, judgments of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 51); of 4 July 2000, Bergaderm and Goupil v Commission (C‑352/98 P, EU:C:2000:361, paragraphs 41 and 42); of 10 December 2002, Commission v Camar and Tico (C‑312/00 P, EU:C:2002:736, paragraph 53); and of 10 July 2003, Commission v Fresh Marine (C‑472/00 P, EU:C:2003:399, paragraph 25).

19      See judgments of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 55); of 4 July 2000, Bergaderm and Goupil v Commission (C‑352/98 P, EU:C:2000:361, paragraph 43); of 10 December 2002, Commission v Camar and Tico (C‑312/00 P, EU:C:2002:736, paragraph 54); and of 10 July 2003, Commission v Fresh Marine (C‑472/00 P, EU:C:2003:399, paragraph 26).

20      See judgments of 4 July 2000, Bergaderm and Goupil v Commission (C‑352/98 P, EU:C:2000:361, paragraph 44); of 10 December 2002, Commission v Camar and Tico (C‑312/00 P, EU:C:2002:736, paragraph 54); and of 10 July 2003, Commission v Fresh Marine (C‑472/00 P, EU:C:2003:399, paragraph 26).

21      See judgment of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 57).

22      See paragraph 38 of the judgment under appeal.

23      Paragraphs 56 and 57 of the judgment under appeal.

24      See also paragraph 58 of the judgment under appeal.

25      Paragraph 59 of the judgment under appeal (emphasis added).

26      See, in particular, judgments of 18 January 2007, PKK and KNK v Council (C‑229/05 P, EU:C:2007:32, paragraphs 109 to 111); of 29 June 2010, E and F (C‑550/09, EU:C:2010:382, paragraph 57); of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142, paragraphs 96 and 97); of 13 March 2012, MelliBank v Council (C‑380/09 P, EU:C:2012:137, paragraph 46); of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 142); and of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council (T‑228/02, EU:T:2006:384, paragraph 159). It is interesting to note that, in the judgment of 18 February 2016, Council v Bank Mellat (C‑176/13 P, EU:C:2016:96), the Court confirmed the Council’s obligation to produce information and evidence to substantiate the validity of the restrictive measures adopted so as to enable the EU judicature to review their lawfulness (paragraphs 109 to 112), although it did state that, at least on the initial adoption of a listing decision, the Council is not required to assess the relevance and the validity of that information and evidence where that information and evidence is submitted to it by a Member State or by the High Representative of the Union (paragraphs 88 to 91).

27      Paragraph 38 of the judgment under appeal.

28      Point 171 of the Opinion in Council v Manufacturing Support & Procurement Kala Naft (C‑348/12 P, EU:C:2013:470); see also points 172 and 174 of that Opinion.

29      Paragraphs 109 and 110 of that judgment.

30      See paragraphs 109 to 111 of that judgment.

31      The question of the statement of reasons, which concerns an essential procedural requirement, is obviously, as the Court has pointed out on many occasions, separate from that of the evidence of the alleged conduct, which concerns the substantive legality of the act in question and involves assessing the truth of the facts set out in that act and the characterisation of those facts as evidence justifying the use of restrictive measures against the person concerned; see, inter alia, judgment of 15 November 2012, Council v Bamba (C‑417/11 P, EU:C:2012:718, paragraph 60).

32      See paragraph 57 of that judgment (emphasis added). In the same paragraph, the Court added that the possibility of an adequate review by the courts was indispensable if a fair balance between the requirements of the fight against international terrorism, on the one hand, and the protection of fundamental liberties and rights, on the other, was to be ensured. To the same effect, in the judgment of 3 September 2008, Kadiand Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461), the Court had already stated, in particular, that restrictive measures such as those at issue in the case giving rise to that judgment did not escape all review by the EU judicature purely because the act laying them down concerns sensitive areas such as national security and the fight against terrorism (see, in particular, paragraph 343; see also paragraphs 281, 326, 350 to 351 of that judgment).

33      This was the position adopted by the Council notably in Council v Manufacturing Support & Procurement Kala Naft (see Opinion of Advocate General Bot in that case, C‑348/12 P, EU:C:2013:470, point 88).

34      See, inter alia, judgment of 4 July 2000, Bergaderm and Goupil v Commission (C‑352/98 P, EU:C:2000:361, paragraph 40).

35      See paragraphs 86 and 87 of the judgment under appeal.

36      See, in particular, judgments of 9 July 1981, Krecké v Commission (59/80 and 129/80, not published, EU:C:1981:170, paragraphs 73 and 74); of 7 October 1985, van der Stijl v Commission (128/84, EU:C:1985:395, paragraph 26); of 9 July 1987, Hochbaum and Rawes v Commission (44/85, 77/85, 294/85 and 295/85, EU:C:1987:348, paragraph 22); of 6 July 1999, Séché v Commission (T 112/96 and T 115/96, EU:T:1999:134, paragraph 281); of 16 December 2004, De Nicola v EIB (T 120/01 and T 300/01, EU:T:2004:367, paragraph 73); and of 18 September 2015, Wahlström v Frontex (T 653/13 P, EU:T:2015:652, paragraphs 82 to 85).

37      Emphasis added.

38      Emphasis added. The same form of words is used, sometimes with slight variations, in all civil service cases in which the principle in question is applied.

39      See, for example, judgments of 26 October 1993, Caronna v Commission (T‑59/92, EU:T:1993:91, paragraph 107), and of 10 June 2004, François v Commission (T‑307/01, EU:T:2004:180, paragraph 110).

40      See judgments of 11 October 1995, Baltsavias v Commission (T‑39/93 and T‑553/93, EU:T:1995:177, paragraph 86), and of 16 June 2000, C v Council (T‑84/98, EU:T:2000:156, paragraph 101).

41      See judgment of 24 November 2005, Marcuccio v Commission (T‑236/02, EU:T:2005:417, paragraphs 234 and 237).

42      See, to that effect, judgments of 7 February 1990, Culin v Commission (C‑343/87, EU:C:1990:49, paragraphs 27 and 28), and of 6 June 2006, Girardot v Commission (T‑10/02, EU:T:2006:148, paragraph 131).

43      See judgments of 7 February 1990, Culin v Commission (C‑343/87, EU:C:1990:49, paragraphs 27 to 28); of 23 March 2000, Rudolph v Commission (T‑197/98, EU:T:2000:86, paragraph 98); of 10 June 2004, François v Commission (T‑307/01, EU:T:2004:180, paragraph 110); of 9 December 2010, Commission v Strack (T‑526/08 P, EU:T:2010:506, paragraph 108); and of 2 October 2012, Q v Commission (F‑52/05 RENV, EU:F:2012:139, paragraph 273).

44      See paragraph 70 of that judgment.

45      Contrary to what is held in the judgment under appeal, in the judgment of 18 February 2016, Jannatian v Council (T‑328/14, not published, EU:T:2016:86, paragraphs 62 to 66), the General Court, having assessed all the circumstances of the case, concluded, in the grounds included for the sake of completeness, that the annulment constituted adequate reparation for all the non-material harm suffered by the applicant.

46      The appellant refers to paragraphs 88, 109, 145 and 147 of the judgment under appeal.

47      See, inter alia, judgment of 9 September 2008, FIAMM and Others v Council and Commission (C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 106 and the case-law cited).

48      See judgments of 16 September 1997, Blackspur DIY and Others v Council and Commission (C‑362/95 P, EU:C:1997:401, paragraph 31), and of 16 July 2009, SELEX Sistemi Integrati v Commission (C‑481/07 P, not published, EU:C:2009:461, paragraph 36).

49      See judgments of 21 May 1976, Roquette Frères v Commission (26/74, EU:C:1976:69, paragraphs 22 and 23), and of 16 September 1997, Blackspur DIY and Others v Council and Commission (C‑362/95 P, EU:C:1997:401, paragraph 31).

50      See, inter alia, judgment of 3 December 2015, PP Nature-Balance Lizenz v Commission (C‑82/15 P, not published, EU:C:2015:796, paragraphs 26 and 27).

51      See, inter alia, judgment of 18 July 2007, Industrias Químicas del Vallés v Commission (C‑326/05 P, EU:C:2007:443, paragraphs 60 and 63).

52      With regard, in particular, to the burden of proof incumbent on the appellant in relation to the anticipated profit margin, I note that, where it is necessary to determine the value of a lost opportunity to make money, and therefore the value of hypothetical economic transactions, it can be difficult, even impossible, for the applicant to put an exact figure on the loss which it claims to have sustained, but that does not relieve the applicant entirely of the obligation to adduce evidence of the loss claimed. Although the value of a lost opportunity to make money is necessarily a hypothetical fact which must be estimated, since it cannot be calculated with certainty, the fact remains that the data on which that estimate is based can — and must, in so far as is possible — be proved by the party relying on it (see judgment of 28 April 2010, BST v Commission, T 452/05, EU:T:2010:167, paragraphs 167 and 168).

53      The appellant also refers to the significant decrease in its turnover and profitability, as well as to the large-scale redundancy programme and other unforeseen costs.

54      Although the appellant has not raised a complaint alleging an erroneous classification of the facts so far as concerns the General Court’s conclusion that the causal link between the Council’s alleged conduct and the termination of the contract with Mobarakeh had not been established, I would nonetheless point out that, according to the case-law, direct damages are those which derive from the unlawful act of the subject responsible and which do not depend on the intervention of other causes, whether positive or negative (see Opinion of Advocate General Trabucchi in Compagnie Continentale France v Council (169/73, not published, EU:C:1974:32, point 4)), since the conduct complained of must be the determining cause of the damage (see order of 31 March 2011, Mauerhofer v Commission, C‑433/10 P, not published, EU:C:2011:204, paragraph 127).

55      Judgment of 16 July 2009, Commission v Schneider Electric (C‑440/07 P, EU:C:2009:459, paragraph 192).

56      Judgment of 16 July 2009, Commission v Schneider Electric (C‑440/07 P, EU:C:2009:459, paragraph 193).

57      Judgment of 30 January 1992, Finsider and Others v Commission (C‑363/88 and C‑364/88, EU:C:1992:44, paragraphs 24 and 25).

58      See judgment of 15 June 2000, Dorsch Consult v Council and Commission (C‑237/98 P, EU:C:2000:321, paragraph 25).

59      See judgments of 19 May 1982, Dumortier and Others v Council (64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79, not published, EU:C:1982:184, paragraph 21); of 18 March 2010, Trubowest Handel and Makarov v Council and Commission (C‑419/08 P, EU:C:2010:147, paragraph 53); and of 10 May 2006, Galileo International Technology and Others v Commission (T‑279/03, EU:T:2006:121, paragraph 130 and the case-law cited).

60      See, inter alia, judgment of 8 May 2013, Eni v Commission (C‑508/11 P, EU:C:2013:289, paragraph 74 and the case-law cited).

61      See judgment of 1 June 1994, Commission v Brazzelli Lualdi and Others (C‑136/92 P, EU:C:1994:211, paragraph 66).