Bank Tejarat v Council of the European Union.
Date: 2018-11-29
29


The Court of Justice has held that a person or an entity whose name has been included on the list of persons and entities whose assets are to be 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).
37


According to settled case-law, in an appeal, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the Rules of Procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the evidence adduced before the General Court has been distorted, that appraisal therefore does not constitute a point of law which is subject to review by the Court of Justice. However, the jurisdiction of the Court of Justice to review the findings of fact by the General Court extends, inter alia, to the question whether the rules relating to the burden of proof and the taking of evidence have been observed (judgments of 18 January 2017, Toshiba v Commission, C‑623/15 P, not published, EU:C:2017:21, paragraph 39, and of 14 June 2018, Makhlouf v Council, C‑458/17 P, not published, EU:C:2018:441, paragraph 57).
39


The effectiveness of the judicial review guaranteed by Article 47 of the Charter requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include a person’s name on the list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails, in this instance, a verification of the factual allegations in the summary of reasons underpinning the contested acts, 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 those acts, is substantiated (see, to that effect, judgments 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 119; of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 42; and of 18 February 2016, Council v Bank Mellat, C‑176/13 P, EU:C:2016:96, paragraph 109). Moreover, it is for the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (judgments 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 121, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 66).
70


With regard to that principle, 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).
73


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 that judgment. 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 71 above, that the Council could not then rely on other evidence intended to attest the veracity of the reasons relied upon, or that it could never demonstrate that the appellant provides support for nuclear proliferation or helps other persons and entities to breach or avoid the restrictive measures to which they were subject.
74


It must be stated that the appellant’s reinstatement on the lists at issue by the contested acts is based on listing criteria which differ from those underlying its initial listing, which was annulled by the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, EU:T:2015:43), and therefore on different legal grounds, as the General Court held in paragraph 36 of the judgment under appeal. In addition, the statements of reasons in the contested acts and in the acts which brought about the appellant’s initial listing, and the evidence submitted to the General Court are not the same.
82


In those circumstances, an unlawful measure, such as the one established by the General Court in the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, EU:T:2015:43) at the time the appellant was first included on the lists of persons and entities whose assets are to be frozen, is not such as to 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.