National Iranian Tanker Company v Council of the European Union.
Date: 2018-11-29
32


It is settled case-law that for an appellant to have an interest in bringing proceedings the appeal must be capable, if successful, of procuring an advantage to the party bringing it (judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 43 and case-law cited).
33


The Court has held that a person or an entity whose name has been included on the list of persons and entities whose assets are frozen continued to have at least a non-material interest in having that listing annulled in order to have the EU Courts recognise that it should never have been included on such a list, in view of the consequences for its reputation, even after the removal of its name from that list or the freezing of its assets has been suspended (see, to that effect, judgments of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraphs 70 to 72; of 8 September 2016, Iranian Offshore Engineering & Construction v Council, C‑459/15 P, not published, EU:C:2016:646, paragraph 12; and of 15 June 2017, Al-Faqih and Others v Commission, C‑19/16 P, EU:C:2017:466, paragraph 36).
42


First of all, as regards the principle of res judicata, it should be recalled that annulment judgments given by the EU Courts have the force of res judicata as soon as they become final. This applies not only to the operative part of the judgment annulling a decision, but also to the grounds which are its essential basis and are inseparable from it (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 49 and the case-law cited).
43


It is settled case-law that the force of res judicata extends only to the matters of fact and law actually or necessarily settled by a judicial decision (judgments of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 123, and of 13 September 2017, Pappalardo and Others v Commission, C‑350/16 P, EU:C:2017:672, paragraph 37).
45


It was therefore as a result of the lack of information provided by the Council in support of the factual basis of those acts that the Council’s acts were annulled by the judgment of 3 July 2014, National Iranian Tanker Company v Council (T‑565/12, EU:T:2014:608). It cannot be inferred from such a finding, to which the authority of res judicata extends in accordance with the case-law cited in paragraph 43 above, that the Council could not then rely on other evidence intended to attest the existence of financial support to the Government of Iran or to form the basis of another type of support to that government.
50


With regard to the principle of protection of legitimate expectations, it should be recalled that, in accordance with the settled case-law of the Court, the right to rely on that principle applies to any individual in a situation in which an institution of the European Union, by giving that person precise assurances, has led him to entertain well-founded expectations. However, a person may not plead infringement of that principle unless he has been given those assurances (see, to that effect, judgments of 13 September 2017, Pappalardo and Others v Commission, C‑350/16 P, EU:C:2017:672, paragraph 39, and of 21 February 2018, Kreuzmayr, C‑628/16, EU:C:2018:84, paragraph 46).
53


With regard to the right to an effective remedy as laid down in Article 47 of the Charter, which is relied on by NITC, it should be recalled that that article secures in EU law the protection afforded by Article 6(1) and Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms (judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 54 and the case-law cited). The first paragraph of Article 47 of the Charter requires everyone whose rights and freedoms guaranteed by EU law are violated to have the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article.
54


The principle of effective judicial protection cannot prevent the Council from reinstating a person or entity on the lists of persons and entities whose assets are to be frozen on the basis of reasons other than those on which the initial listing was based, or for the same reason based on other evidence. The purpose of that principle is to ensure that an act adversely affecting an entity may be challenged before the courts, and not to prevent the adoption of a new act adversely affecting that entity, based on different reasons or evidence.
55


As the Court of Justice has already held, where a decision of an EU institution being challenged in court is annulled, it is deemed to have never existed, and that institution, which intends to take a new decision, is entitled to undertake a full review and rely on reasons other than those on which the annulled decision was based (see, by analogy, judgment of 6 March 2003, Interporc v Commission, C‑41/00 P, EU:C:2003:125, paragraph 31).
56


It follows that an unlawful measure, such as the one established by the General Court in the judgment of 3 July 2014, National Iranian Tanker Company v Council (T‑565/12, EU:T:2014:608), at the time NITC was first included on the lists of persons and entities whose assets are to be frozen, does not prevent the Council, following a re-examination of the appellant’s situation, from adopting new restrictive measures on the basis of evidence that is already in existence or available.
67


In the second place, it should be pointed out that the General Court rightly recalled in paragraph 85 of the judgment under appeal that the criterion for support to the Government of Iran in Article 20(1)(c) of Decision 2010/413, as amended by Decision 2012/635, and in Article 23(2)(d) of Regulation No 267/2012, as amended by Regulation No 1263/2012, must be understood as meaning that it targets the relevant person or entity’s own activities which, even if they have no actual direct or indirect connection with nuclear proliferation, are nonetheless capable of encouraging it, by providing the Government of Iran with resources or facilities of a material, financial or logistic nature allowing it to pursue proliferation activities (see, to that effect, judgments of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraphs 80 and 81, and of 7 April 2016, Central Bank of Iran v Council, C‑266/15 P, EU:C:2016:208, paragraph 44).
69


In addition, it is clear from the case-law of the Court that that criterion, read in the light of the objectives pursued by the Council, is aimed at the forms of support to the Government of Iran which, by their quantitative or qualitative importance, contribute to the pursuit of Iran’s nuclear activities (see, to that effect, judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraph 83, and order of 4 April 2017, Sharif University of Technology v Council, C‑385/16 P, not published, EU:C:2017:258, paragraph 64).
70


With regard to the notion of ‘logistical support’, the Court has held that the term ‘logistical’ was not limited to the activities of transporting goods or people but encompassed activities essentially relating to the methods and means of organisation of an operation or process and to the making available of resources necessary for an activity or process to take place (see, to that effect, judgment of 8 September 2016, Iranian Offshore Engineering & Construction v Council, C‑459/15 P, not published, EU:C:2016:646, paragraphs 53 and 54).
76


In that regard, the principle of proportionality requires that measures implemented through provisions of EU law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not go beyond what is necessary to achieve them (judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 122 and the case-law cited).
77


The Court has held that the objective of Decision 2010/413 and Regulation No 267/2012, as was pointed out in paragraph 74 above, is to prevent nuclear proliferation and so to bring pressure to bear on the Islamic Republic of Iran to end the activities concerned. That objective, which forms part of a more general framework of endeavours linked to the maintenance of international peace and security, is legitimate (see, to that effect, judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 124 and the case-law cited).
78


The General Court’s interpretation of the listing criterion relating to ‘support for the Government of Iran’ in the present case, in accordance with the case-law cited in paragraphs 67 to 69 above, covers activities that are capable of encouraging nuclear proliferation by providing the Government of Iran with resources or facilities of a material, financial or logistical nature which allow it to pursue nuclear proliferation, without any activity amounting to such support, but only activities which, by their quantitative or qualitative importance, contribute to the pursuit of nuclear proliferation activities. In those circumstances, it does not appear that that criterion, as interpreted by the General Court in the present case, is inappropriate and goes beyond the limits of what is necessary to achieve that objective.
83


With regard to the right to property and the freedom to pursue an economic activity laid down in Articles 16 and 17 of the Charter, which are relied upon by NITC, the Court has held that those fundamental rights are not unfettered prerogatives. Consequently, the exercise of those rights may be restricted, provided that those restrictions correspond to objectives of public interest pursued by the European Union and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the rights thus guaranteed (see, to that effect, judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraphs 121 and 122 and the case-law cited).
86


In the light of those factors, the restrictions to NITC’s right to property and its freedom to conduct a business do not appear to be disproportionate to the ends sought. The same conclusion must be reached as regards the damage to its reputation (see, to that effect, judgment of 7 April 2016, Central Bank of Iran v Council, C‑266/15 P, EU:C:2016:208, paragraph 53).