Criminal proceedings against Mohsen Afrasiabi and Others.
Date: 2011-12-21
39. That preliminary comment having been made, it is necessary to point out that the prohibition laid down in Article 7(3) of Regulation No 423/2007 is framed in particularly broad terms, as evidenced by the use of the words ‘directly or indirectly’ (see, by analogy, Case C‑117/06 Möllendorf and Möllendorf-Niehuus  [2007] ECR I‑8361, paragraph 50, and Case C‑550/09 E and F  [2010] ECR I‑6213, paragraph 66).
40. In addition, the expression ‘made available’ in that provision has a wide meaning: rather than denoting a specific legal category of act, it encompasses all the acts necessary under the applicable national law if a person is effectively to obtain full power of disposal in relation to the asset concerned (see, by analogy, Möllendorf and Möllendorf-Niehuus , paragraph 51, and E and F , paragraph 67).
43. In that regard, it must be pointed out that, according to recital 3 in the preamble thereto, Regulation No 423/2007 ensures the implementation of Common Position 2007/140/CFSP, adopted to implement in the European Union the objectives of Resolution 1737 (2006), and thus seeks to implement that resolution (see, by analogy, Möllendorf and Möllendorf-Niehuus , paragraph 54, and E and F , paragraph 72). Accordingly, the wording and object of that resolution must be taken into account in order to interpret that regulation.
44. It is clearly apparent from the terms both of Resolution 1737 (2006), in particular paragraphs 2 and 12 thereof, and of Common Position 2007/140/CFSP, in particular recitals 1 and 9 in the preamble thereto, that the restrictive measures adopted against the Islamic Republic of Iran are intended to be preventive in that they seek to prevent a risk of proliferation-sensitive nuclear activities in that State. In accordance with the general scheme and purpose of both the international and European Union legislation, including Article 7(3) of Regulation No 423/2007, the existence of such a risk must be assessed at the time when the acts in question are committed.
47. Having regard to the fact that an asset, within the meaning of Article 1(i) of Regulation No 423/2007, in a situation such as that in the main proceedings, entails in itself a danger that it may be diverted in order to support proliferation-sensitive nuclear activities in Iran (see, by analogy, Case C‑340/08 M and Others  [2010] ECR I‑3913, paragraph 57, and E and F , paragraph 77), it is not therefore required, for the purposes of the application of Article 7(3) of that regulation, that such an asset be immediately ready for use upon completion of the act at issue.
60. In that regard, it must be borne in mind, firstly, that, by referring, in Article 7(4) of Regulation No 423/2007, to activities which have the direct or indirect object or effect of ‘circumventing’, in particular, the prohibition laid down in Article 7(3), the European Union legislature refers to activities which have the aim or result of enabling their author to avoid the application of that prohibition (see, by analogy, Case 33/74 van Binsbergen  [1974] ECR 1299, paragraph 13; Case 229/83 Association des Centres distributeurs Leclerc and Thouars Distribution  [1985] ECR 1, paragraph 27; and Case C‑23/93 TV10  [1994] ECR I‑4795, paragraph 21). Such activities are distinguished from acts which formally infringe the prohibition on making available an economic resource laid down in Article 7(3).
62. As the Generalbundesanwalt, the French and Italian Governments and the Commission submit, in essence, the prohibition laid down in Article 7(4) of Regulation No 423/2007 must therefore be understood as covering activities in respect of which it appears, on the basis of objective factors, that, under cover of a formal appearance which enables them to avoid the constituent elements of an infringement of Article 7(3) of the regulation (see, by analogy, Case C‑110/99 Emsland-Stärke  [2000] ECR I‑11569, parag raph 52, and Case C‑255/02 Halifax and Others  [2006] ECR I‑1609, paragraph 74 and 75), none the less they have, as such or by reason of their possible link to other activities, the aim or result, direct or indirect, of frustrating the prohibition laid down in Article 7(3).
63. As regards, secondly, the mental element of the participation referred to in Article 7(4) of Regulation No 423/2007, it must, firstly, be pointed out that, as the Italian Government and the Commission have stated, in accordance with settled case-law, it follows, in particular, from the need for uniform application of European Union law that the terms of a provision of that law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union (Case C‑34/10 Brüstle  [2011] ECR I‑0000, paragraph 25 and the case-law cited).
65. Thirdly, in view of the divergences noted by the national court between the language versions of Article 7(4) of Regulation No 423/2007, some of which, as the Advocate General noted in point 80 of his Opinion, use the term ‘wilfully’ or ‘deliberately’ in place of ‘intentionally’, it is appropriate, in order to ensure a uniform interpretation of that provision, to make that interpretation by reference to the purpose and general scheme of the rules of which it forms a part ( M and Others , paragraphs 44 and 49).