Council of the European Union v Bank Mellat.
Date: 2016-02-18
39


As the Advocate General noted at points 32 and 33 of her Opinion, while the terminology used to designate the time limits laid down in Article 51 of the Rules of Procedure is a reminder that those time limits were intended to compensate for the time required by the postal services depending on physical distance from the Court, those time limits have been single fixed periods since the amendments to the Rules of Procedure of the Court of Justice of 28 November 2000 (OJ 2000 L 322, p. 1) (see, to that effect, judgment in Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 63).
45


It asserts that the General Court also erred in law when it found that there was no evidence to show that Bank Mellat does actually constitute a governmental organisation. In this regard, the Council refers to:





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the case-law of the European Court of Human Rights, according to which the specific factual and legal context must be carefully assessed in order to determine whether an entity is a governmental organisation or entity or a non-governmental one;








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the work of the United Nations International Law Commission, and in particular the commentaries relating to Article 2(b) of the United Nations Convention on Jurisdictional Immunities of States and their property, adopted on 2 December 2004, according to which the concept of ‘agencies or instrumentalities of the State or other entities’ may include State enterprises or other entities established by the State performing commercial transactions; and








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the case-law of the Court of Justice on State aid (judgment in France v Commission, C‑482/99, EU:C:2002:294, paragraph 55).
48


It must be pointed out that the action brought by Bank Mellat falls within the scope of the second paragraph of Article 275 TFEU (judgment in Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 50).
49


Bank Mellat puts forward pleas alleging an infringement of its rights of defence and its right to effective judicial protection. Such rights may be invoked by any natural person or any entity bringing an action before the Courts of the European Union.
50


The same applies to pleas alleging an infringement of essential procedural requirements, such as that alleging an infringement of the obligation to state the reasons for a measure.
51


As regards pleas alleging a manifest error of assessment or a breach of the general principle of proportionality, it must be noted that the question whether a State entity is entitled to invoke them is one that relates to the merits of the case (judgment in Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 51).
74


According to a consistent body of case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, secondly, to enable those Courts to review the legality of that act (see judgment in Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 49 and the case-law cited).
75


The statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment in Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 53 and the case-law cited). The reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him (judgment in Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 71).
76


As regards restrictive measures, without going so far as to require a detailed response to the comments made by the person concerned, the obligation to state reasons laid down in Article 296 TFEU entails in all circumstances, not least when the reasons stated for the EU measure represent reasons stated by an international body, that that statement of reasons identifies the individual, specific and concrete reasons why the competent authorities consider that the person concerned must be subject to restrictive measures. The Courts of the European Union must, therefore, in particular determine whether the reasons relied on are sufficiently detailed and specific (see, to that effect, judgment in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 116 and 118).
109


Regarding the material used to justify Bank Mellat’s listing and the evidence that that listing was well founded, it must be borne in mind that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires, in particular, that the Courts of the European Union ensure that the decision, which affects that person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (see, to that effect, judgments in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119; Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 64; Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 73; Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 45; Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 46; and Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 42).
110


To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent EU authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see judgments in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 120, and Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 65).
111


If the competent EU authority finds itself unable to comply with the request by the Courts of the European Union, it is then the duty of those Courts to base their decision solely on the material which has been disclosed to them (see judgments in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 123, and Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 68).
112


With regard to the fourth reason, concerning the fact that FEE, a wholly owned subsidiary of Bank Mellat, is covered by Resolution 1929 (2010), the General Court found, in paragraph 117 of the judgment under appeal, that it was based on mere allegations. The Council did not produce any evidence that would have enabled the General Court to determine whether that reason was well founded. In such a situation, it is impossible for the Courts of the European Union — which are called upon to review whether the grounds for listing are well founded in fact, taking into consideration any observations and exculpatory evidence produced by the person concerned and the response of the competent EU authority to those observations — to find that those reasons are well founded, and consequently those reasons cannot be relied on as the basis for the contested listing decision (see, to that effect, judgment in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 137).
116


As regards the confidentiality of the evidence, it must be noted that that argument has been relied on for the first time at the stage of the appeal. As it is, in accordance with settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea and arguments which it did not raise before the General Court would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is thus confined to review of the findings of law on the pleas argued before the General Court (judgment in Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 126 and the case-law cited).