Islamic Republic of Iran Shipping Lines and Others v Council of the European Union.
Date: 2019-01-31
30


As regards, in the first place, the legal interest in bringing proceedings, the Court of Justice has consistently held 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 the case-law cited).
31


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 (judgments of 29 November 2018, National Iranian Tanker Company v Council, C‑600/16 P, EU:C:2018:966, paragraph 33 and the case-law cited, and of 29 November 2018, Bank Tejarat v Council, C‑248/17 P, EU:C:2018:967, paragraph 29).
34


In so far as, in the second place, the Commission contends that the appeal is inadmissible on the ground that the appellants seek a mere re-examination of the pleas in law and arguments already relied on before the General Court, it must be borne in mind that, provided that the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgments of 19 January 2017, Commission v Total and Elf Aquitaine, C‑351/15 P, EU:C:2017:27, paragraph 31 and the case-law cited, and of 17 May 2017, Portugal v Commission, C‑337/16 P, EU:C:2017:381, paragraph 20).
37


That said, that conclusion does not in any way prejudice a consideration of the admissibility of certain grounds of appeal taken individually (judgments of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraph 34, and of 4 May 2017, RFA International v Commission, C‑239/15 P, not published, EU:C:2017:337, paragraph 20).
46


First of all, as correctly noted by the General Court in paragraph 183 of the judgment under appeal, 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 (judgments of 29 November 2018, National Iranian Tanker Company v Council, C‑600/16 P, EU:C:2018:966, paragraph 42, and of 29 November 2018, Bank Tejarat v Council, C‑248/17 P, EU:C:2018:967, paragraph 70).
47


In addition, it is settled case-law that res judicata attaches only to 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), as is apparent from paragraph 184 of the judgment under appeal.
52


In that regard, as the General Court correctly found in paragraph 186 of the judgment under appeal, IRISL’s reinstatement on the lists at issue is based on a criterion which differs from those underlying its listing by the decisions annulled by the judgment of 16 September 2013 and, therefore, on a different legal ground (see, to that effect, judgment of 29 November 2018, Bank Tejarat v Council, C‑248/17 P, EU:C:2018:967, paragraph 74).
53


In addition, the Court of Justice has held that illegality affecting acts by which a person or entity was included on a list of persons and entities whose assets are to be frozen, as a result of the lack of information provided by the Council in support of the factual basis of those acts, was not such as to prevent the Council, following a re-examination of the situation of the person or entity concerned, from adopting new restrictive measures on the basis of evidence that is already in existence or available (see, to that effect, judgments of 29 November 2018, National Iranian Tanker Company v Council, C‑600/16 P, EU:C:2018:966, paragraphs 45 and 56, and of 29 November 2018, Bank Tejarat v Council, C‑248/17 P, EU:C:2018:967, paragraphs 73 and 82).
57


As regards the principle of the protection of legitimate expectations, it should be borne in mind, as is apparent from paragraph 191 of the judgment under appeal, that, in accordance with the settled case-law of the Court of Justice, the right to rely on that principle extends to any person whom an institution of the European Union has caused, by giving him precise assurances, to entertain justified expectations. By contrast, a person may not plead breach 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).
59


As regards the principle non bis in idem, enshrined in Article 50 of the Charter, it suffices to note that restrictive measures are preventive (see, to that effect, judgments of 21 December 2011, Afrasiabi and Others, C‑72/11, EU:C:2011:874, paragraph 44, 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, paragraph 132), so that that principle, which relates to proceedings and penalties concerning an offence in respect of which a person has already been finally acquitted or convicted, cannot be relied upon in order to challenge the validity of such measures.
62


In that regard, it must be borne in mind that that article secures in EU law the protection afforded by Article 6(1) and Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. 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. However, 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 (see, to that effect, judgment of 29 November 2018, National Iranian Tanker Company v Council, C‑600/16 P, EU:C:2018:966, paragraphs 53 and 54). Accordingly, in the light of the considerations set out in paragraphs 53 and 54 above, that principle did not preclude the October 2013 and November 2013 contested acts from being adopted.
68


According to settled case-law, the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review (see, to that effect, judgments 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 138 and the case-law cited, and of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 50).
69


The statement of reasons must, however, be appropriate to the measure 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 that the statement of reasons specify all the relevant matters of fact and law, inasmuch as the adequacy or otherwise of the reasons is to be evaluated with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, judgments 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, paragraphs 139 and 140, and of 8 September 2016, Iranian Offshore Engineering & Construction v Council, C‑459/15 P, not published, EU:C:2016:646, paragraph 24).
71


The justification for the Council’s adoption of the criterion relating to the infringement of Resolution 1747 (2007), underlying IRISL’s reinstatement on the lists at issue, is, therefore, clearly apparent from the wording of the October 2013 contested acts. In addition, as the General Court correctly found in paragraph 68 of the judgment under appeal, the general rules of the European Union providing for the adoption of restrictive measures must be interpreted in the light of the wording and purpose of the Security Council resolutions they implement (see, to that effect, judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 297, and of 16 November 2011, Bank Melli Iran v Council, C‑548/09 P, EU:C:2011:735, paragraph 104).
83


In the first place, it must be borne in mind that as regards restrictive measures affecting individuals, respect for the rights of the defence and the right to effective judicial protection requires that the competent Union authority disclose to the individual concerned the evidence against that person available to that authority and which is relied on as the basis of its decision (judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 121 and the case-law cited).
88


In the second place, as to whether the General Court erred in law in finding, in paragraphs 173 to 181 of the judgment under appeal, that the Council had not infringed the appellants’ rights of defence when reinstating them on the lists at issue, it must be borne in mind that in the case of a subsequent decision to freeze funds by which the name of a person or entity is maintained on a list of persons or entities whose assets are to be frozen, the adoption of such a decision must, in principle, be preceded by notification of the incriminating evidence and by allowing the person or entity concerned an opportunity of being heard (see, to that effect, judgments of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 62, and of 7 April 2016, Central Bank of Iran v Council, C‑266/15 P, EU:C:2016:208, paragraph 32).
89


When sufficiently precise information has been disclosed, enabling the person concerned properly to state his point of view on the evidence adduced against him by the Council, the principle of respect for the rights of the defence does not mean that that institution is obliged spontaneously to grant access to all the documents in its file. It is only on the request of the party concerned that the Council is required to provide access to all non-confidential official documents concerning the measure at issue (see, to that effect, judgments of 16 November 2011, Bank Melli Iran v Council, C‑548/09 P, EU:C:2011:735, paragraph 92, and of 28 July 2016, Tomana and Others v Council and Commission, C‑330/15 P, not published, EU:C:2016:601, paragraph 66).
90


It must also be stated that, according to the case-law of the Court of Justice, the right to be heard prior to the adoption of acts which maintain restrictive measures against persons or entities already subject to those measures applies where the Council has admitted new evidence against those persons or entities and not where those measures are maintained on the basis of the same grounds as those that justified the adoption of the initial act imposing the restrictive measures in question (see, to that effect, judgments of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 63, and of 28 July 2016, Tomana and Others v Council and Commission, C‑330/15 P, not published, EU:C:2016:601, paragraph 67).
101


First of all, it must be pointed out that, in accordance with Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by it must be provided for by law, respect their essence and, subject to the principle of proportionality, limitations may be made to those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
102


Accordingly, as the General Court was fully entitled to point out, in paragraphs 204 and 205 of the judgment under appeal, the right to property enshrined in Article 17 of the Charter is not absolute. In addition, 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 (judgments 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, and of 29 November 2018, National Iranian Tanker Company v Council, C‑600/16 P, EU:C:2018:966, paragraph 76).
103


With regard to judicial review of compliance with the principle of proportionality, the Court of Justice has held that the EU legislature must be allowed a broad discretion, as the General Court correctly stated in paragraph 62 of the judgment under appeal, in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. It concluded from this that the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 120 and the case-law cited).
104


As regards the Council’s objective in adopting the October 2013 and November 2013 contested acts, which amended Decision 2010/413 and Regulation No 267/2012, the Court has held that the objective of that decision and that regulation is to prevent nuclear proliferation and 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 (judgment of 29 November 2018, National Iranian Tanker Company v Council, C‑600/16 P, EU:C:2018:966, paragraph 77 and the case-law cited).
108


As regards whether that criterion was necessary, contrary to what the appellants submit, the fact that it enables fund freezing measures to be adopted in the absence of a link between the persons or entities concerned and nuclear proliferation cannot lead to the conclusion that those measures go beyond the limits of what is necessary to achieve that objective, as the Court has held that a listing criterion, such as that for support to the Iranian Government, which enables the relevant person or entity’s own activities which, even if having no actual direct or indirect connection with nuclear proliferation, are nonetheless capable of encouraging it, to be targeted, did not appear to go beyond the limits of what is necessary to achieve that objective (see, to that effect, judgment of 29 November 2018, National Iranian Tanker Company v Council, C‑600/16 P, EU:C:2018:966, paragraph 78). It should also be stated that the large number of Security Council resolutions, as well as the various EU measures progressively adopted, reflect the need to broaden the range of the restrictive measures intended to achieve that same objective.
110


In that regard, the Court has held that where the funds of an entity providing support to the Iranian Government are frozen, there is a not insignificant danger that that entity may exert pressure on the entities it owns or controls in order to circumvent the effect of the measures applying to it, so that the freezing of the funds of those entities is necessary and appropriate in order to ensure the effectiveness of the measures adopted and to ensure that those measures are not circumvented (see, to that effect, judgment of 22 September 2016, NIOC and Others v Council, C‑595/15 P, not published, EU:C:2016:721, paragraph 89 and the case-law cited).
115


In the second place, the appellants have not adduced evidence capable of proving that the Council misused its powers in adopting the October 2013 contested acts. According to the Court’s case-law, a measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see, to that effect, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 135), as was correctly pointed out by the General Court in paragraph 92 of the judgment under appeal.
121


According to the Court of Justice’s settled case-law, the General Court has exclusive jurisdiction to find and appraise the relevant facts and, in principle, to examine the evidence it accepts 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 clear sense of the evidence has been distorted, that assessment does not, therefore, constitute a point of law which is subject as such to review by the Court of Justice (judgment of 7 April 2016, Akhras v Council, C‑193/15 P, EU:C:2016:219, paragraph 67 and the case-law cited).