JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

6 September 2013 (*)

(Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Legal basis – Infringement of international law – Obligation to state reasons – Rights of the defence – Right to effective judicial protection – Manifest error of assessment – Right to property – Proportionality – Equal treatment – Non-discrimination)

In Case T‑13/11,

Post Bank Iran, established in Tehran (Iran), represented by D. Luff, lawyer,

applicant,

v

Council of the European Union, represented by M. Bishop and A. Vitro, acting as Agents,

defendant,

supported by

European Commission, represented by F. Erlbacher and M. Konstantinidis, acting as Agents,

intervener,

APPLICATION, first, for annulment (i) of Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), as amended by Council Decision 2010/644/CFSP of 25 October 2010 (OJ 2010 L 281, p. 81), and of Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), in so far as they concern the applicant; (ii) of the decision in respect of the applicant ‘contained in’ a letter received on 29 October 2010; (iii) of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 (OJ 2011 L 319, p. 71) and of Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11), in so far as they may affect the applicant’s situation; (iv) of the decision in respect of the applicant ‘contained in’ a letter dated 5 December 2011; (v) of Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010 (OJ 2012 L 88, p. 1), in so far as it concerns the applicant; and (vi) of any future regulation or decision of the Council or of the Commission which would supplement or amend any of the measures contested in the present action; and, secondly, for a declaration that the following are inapplicable to the applicant: Article 20(1)(b) of Decision 2010/413; Article 16(2) of Regulation No 961/2010; Article 1(7) of Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413 (OJ 2012 L 19, p. 22); Article 23(2) of Regulation No 267/2012; Article 1(8) of Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413 (OJ 2012 L 282, p. 58); Article 1(11) of Council Regulation (EU) No 1263/2012 of 21 December 2012 amending Regulation No 267/2012 (OJ 2012 L 356, p. 34); and Article 1(2) of Council Decision 2012/829/CFSP of 21 December 2012 amending Decision 2010/413 (OJ 2012 L 356, p. 71),

THE GENERAL COURT (Fourth Chamber),

composed of I. Pelikánová (Rapporteur), President, K. Jürimäe and M. van der Woude, Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 5 March 2013,

gives the following

Judgment

 Background to the dispute

1.     Restrictive measures adopted against the Islamic Republic of Iran

1        The present case has been brought in connection with the restrictive measures introduced in order to apply pressure on the Islamic Republic of Iran to end its proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems (‘nuclear proliferation’).

2.     Restrictive measures concerning the applicant

2        The applicant, Post Bank Iran, is a company incorporated under Iranian law which provides post office banking services.

3        On 9 June 2010, the United Nations Security Council (‘the Security Council’) adopted Resolution S/RES/1929 (2010) (‘Resolution 1929’), which widened the scope of the restrictive measures imposed by the earlier Resolutions S/RES/1737 (2006) of 27 December 2006 (‘Resolution 1737’), S/RES/1747 (2007) of 24 March 2007 and S/RES/1803 (2008) of 3 March 2008, and introduced additional restrictive measures against Iran.

4        On 17 June 2010, the European Council adopted a declaration on Iran in which it underlined its deepening concern about Iran’s nuclear programme and welcomed the adoption of Resolution 1929. Recalling its Declaration of 11 December 2009, the European Council invited the Council of the European Union to adopt restrictive measures implementing those contained in Resolution 1929. In accordance with the European Council Declaration, the restrictive measures had to be applied in particular to further persons and entities, in addition to those designated by the Security Council or the committee established pursuant to paragraph 18 of Resolution 1737 (‘the Committee’), but using the same criteria as those applied by the Security Council or the Committee.

5        On 26 July 2010, the applicant was included in the list in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39).

6        Consequently, the applicant was included in the list in Annex V to Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1). That listing took effect on 27 July 2010. It resulted in the freezing of the applicant’s funds and economic resources (‘the freezing of funds’ or ‘fund-freezing’).

7        The inclusion of the applicant in the lists cited above was based on the following grounds:

‘[The applicant] has evolved from being an Iranian domestic bank to a bank which facilitates Iran’s international trade. Acts on behalf of Bank Sepah (designated under [Security Council Resolution] 1747), carrying out Bank Sepah’s transactions and hiding Bank Sepah’s connection with transactions in order to circumvent sanctions. In 2009 [the applicant] facilitated business on behalf of Bank Sepah between Iran’s defence industries and overseas beneficiaries. Has facilitated business with front company for [the Democratic People’s Republic of Korea’s] Tranchon Commercial Bank, known for facilitating proliferation-related business between Iran and the [Democratic People’s Republic of Korea].’

8        By letter dated 29 July 2010, the Council informed the applicant that it had been included in the lists in Annex II to Decision 2010/413 and in Annex V to Regulation No 423/2007. A copy of those measures was enclosed with the letter.

9        By letter dated 12 September 2010, the applicant requested that the Council reconsider its inclusion, in the light of information which it had communicated to the Council.

10      After reviewing the applicant’s situation, the Council maintained the applicant’s listing in Annex II to Decision 2010/413, as amended by Council Decision 2010/644/CFSP of 25 October 2010 (OJ 2010 L 281, p. 81), with effect from 25 October 2010.

11      When Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation No 423/2007 (OJ 2010 L 281, p. 1) was adopted, the applicant was included in the list in Annex VIII to that regulation with effect from 27 October 2010.

12      By letter dated 28 October 2010, received by the applicant on 29 October 2010 (‘the letter received on 29 October 2010’), the Council informed the applicant that, following a review of its situation in the light of the observations contained in the letter dated 12 September 2010, it had to remain subject to restrictive measures.

13      By letter dated 28 December 2010, the applicant denied the allegations made against it by the Council. For the purpose of exercising its rights of defence, it requested access to the file.

14      By letter dated 22 February 2011, the Council provided the applicant with the extracts concerning it from the listing proposals transmitted by the Member States, as included in Council cover notes 13413/10 EXT 5, 13414/10 EXT 5 and 6723/11.

15      By letter dated 29 July 2011, the applicant once more contested the veracity of the facts of which it was accused by the Council.

16      After reviewing the applicant’s situation, the Council maintained the applicant’s listing in Annex II to Decision 2010/413, as amended by Decision 2010/644, and in Annex VIII to Regulation No 961/2010, with effect from 1 December 2011, the date of the adoption of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 (OJ 2011 L 319, p. 71), and from 2 December 2011, the date of the publication in the Official Journal of the European Union of Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11), respectively.

17      By letter dated 5 December 2011, the Council informed the applicant that it would remain subject to restrictive measures.

18      By letter dated 13 January 2012, the applicant again requested access to the file.

19      Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413 (OJ 2012 L 19, p. 22) entered into force on the date of its adoption. Article 1(7) of Decision 2012/35 amended, as from that date, Article 20 of Decision 2010/413.

20      By letter dated 21 February 2012, the Council sent documents to the applicant concerning the ‘decision on 1 December 2011 to maintain restrictive measures in force against [it]’.

21      When Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1) was adopted, the applicant was included, on the same grounds as those already referred to in paragraph 7 above, in the list in Annex IX to Regulation No 267/2012 (together with the lists in Annex II to Decision 2010/413, as amended by Decision 2010/644, and in Annex VIII to Regulation No 961/2010, ‘the disputed lists’), with effect from 24 March 2012.

22      Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413 (OJ 2012 L 282, p. 58) entered into force on 16 October 2012. Article 1(8) of Decision 2012/635 amended, as from that date, Article 20 of Decision 2010/413.

23      Council Regulation (EU) No 1263/2012 of 21 December 2012 amending Regulation No 267/2012 (OJ 2012 L 356, p. 34) entered into force on 23 December 2012. Article 1(11) of Regulation No 1263/2012 amended, as from that date, Article 23(2)(c) and (d) and (4) of Regulation No 267/2012.

24      Council Decision 2012/829/CFSP of 21 December 2012 amending Decision 2010/413 (OJ 2012 L 356, p. 71) entered into force on 22 December 2012. Article 1(2) of Decision 2012/829 amended, as from that date, Article 20 of Decision 2010/413.

 Procedure and forms of order sought by the parties

25      By application lodged at the Court Registry on 7 January 2011, the applicant brought the present action.

26      By document lodged at the Court Registry on 14 April 2011, the European Commission sought leave to intervene in the present proceedings in support of the form of order sought by the Council. By order of 9 June 2011, the President of the Fourth Chamber of the General Court granted the Commission leave to intervene.

27      On 18 May 2011, the Council lodged its defence. In annex thereto it produced the documents which had led it to include or maintain the applicant in the lists in Annex II to Decision 2010/413, as amended by Decision 2010/644, and in Annex VIII to Regulation No 961/2010.

28      By letter lodged at the Court Registry on 6 July 2011, the Commission stated that it agreed with the Council’s defence, fully supported it and, in the interest of procedural economy, waived the right to lodge a statement in intervention.

29      On 5 August 2011, the applicant lodged its reply.

30      On 14 November 2011, the Council lodged its rejoinder.

31      By documents lodged at the Court Registry on 16 February and 4 June 2012 respectively, the applicant amended the form of order sought and supplemented its arguments to take account, first, of the adoption of Decision 2011/783 and of Implementing Regulation No 1245/2011, and secondly, of the adoption of Regulation No 267/2012.

32      By decisions of 5 March and 12 June 2012, the General Court decided to add those documents to the file for the present proceedings and to obtain observations from the parties. By documents lodged at the Court Registry on 17 April and 4 July 2012, the Council submitted its observations. By documents lodged at the Court Registry on 3 April and 18 June 2012, the Commission indicated that it was waiving its right to submit observations.

33      Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, invited the applicant and the Council to answer certain questions in writing. They complied with that request within the prescribed time-limit.

34      The parties presented oral argument and replied to the Court’s oral questions at the hearing on 5 March 2013. At the hearing, the applicant stated that it was amending the form of order sought in order to take into account the decisions and regulations adopted by the Council in January, March, October and December 2012.

35      In the application, the documents amending the form of order sought and its oral submissions at the hearing, the applicant claims, in essence, that the Court should:

–        annul, first, Annex II to Decision 2010/413, as amended by Decision 2010/644, and Annex VIII to Regulation No 961/2010, in so far as they concern the applicant; secondly, the decision in respect of the applicant ‘contained in’ the letter received on 29 October 2010; thirdly, Decision 2011/783 and Implementing Regulation No 1245/2011, in so far as they may affect the applicant’s situation; fourthly, the decision in respect of the applicant ‘contained in’ the letter dated 5 December 2011; fifthly, Annex IX to Regulation No 267/2012, in so far as it concerns the applicant; and, sixthly, any future regulation or decision of the Council or the Commission which would supplement or amend any of the measures contested in the present action;

–        declare that Article 20(1)(b) of Decision 2010/413; Article 16(2) of Regulation No 961/2010; Article 1(7) of Decision 2012/35; Article 23(2) of Regulation No 267/2012; Article 1(8) of Decision 2012/635; Article 1(11) of Regulation No 1263/2012; and Article 1(2) of Decision 2012/829 are inapplicable to the applicant;

–        order the Council to pay the costs.

36      The Council, supported by the Commission, contends that the Court should:

–        dismiss as inadmissible, first, the claim for annulment of the decision ‘contained in’ the letter received on 29 October 2010 and, secondly, the claim for annulment of any future regulation or decision of the Council or the Commission which would supplement or amend any of the measures contested in the present action;

–        for the remainder, dismiss the action, as amended following the applicant’s amendment of its claims, as being unfounded, including the arguments based on the judgment in Joined Cases T‑439/10 and T‑440/10 Fulmen and Mahmoudian v Council [2012] ECR II‑0000; in the alternative, in the light of those arguments, stay the proceedings pending the outcome of the appeal (Case C‑280/12 P) brought against the judgment in Fulmen and Mahmoudian v Council;

–        order the applicant to pay the costs.

 Law

1.     Interpretation of the applicant’s claims

 Interpretation of the applicant’s claim that certain provisions should be declared inapplicable to it

37      Although the applicant did not, in the application initiating the proceedings, state the basis for the claim that certain provisions should be declared inapplicable to it, that claim cannot, having regard to the way in which it is formulated, be based on anything other than Article 277 TFEU. This provides that ‘any party may, in proceedings in which an act of general application adopted by an institution ... of the Union is at issue, plead the grounds specified in Article 263, second paragraph, in order to invoke before the [Courts of the European Union] the inapplicability of that act’. It is apparent from the pleadings of the Council, supported by the Commission, that this is how the Council understood the applicant’s claim. It must therefore be concluded that, by the present claim, the applicant intends to rely on pleas of illegality against Article 20(1)(b) of Decision 2010/413; Article 16(2) of Regulation No 961/2010; Article 1(7) of Decision 2012/35; Article 23(2) of Regulation No 267/2012; Article 1(8) of Decision 2012/635; Article 1(11) of Regulation No 1263/2012; and Article 1(2) of Decision 2012/829, in support of the claim for annulment.

38      Those pleas of illegality are indissociable from the seventh plea for annulment which is based essentially – in the light of the amendment, at the hearing, of the form of order sought (see paragraph 34 above) – on a breach of the principle of proportionality and on the illegality of the provisions cited in paragraph 37 above, inasmuch as those provisions themselves breach the principle of proportionality.

39      In so far as may be necessary for the outcome of the dispute, those pleas of illegality must be examined not independently but with the seventh plea for annulment. The same is also true of the plea of inadmissibility raised by the Council, supported by the Commission, against those pleas of illegality on the ground that the latter are not directed against provisions of general application which served as the basis for the measures whose annulment is sought, that is, essentially, the measures including the applicant, or after review maintaining its inclusion, in the disputed lists.

 Interpretation of the claim for annulment of the decisions in respect of the applicant ‘contained in’ the letter received on 29 October 2010 and the letter dated 5 December 2011

40      In paragraph 8 of the reply, the applicant stated that, ‘[o]n 25 October 2010, the Council adopted Decision 2010/644 … and Regulation … No 961/2010, which are the contested acts in the present case (Annex A-l and A-2 of the Application)’ and that ‘[t]he Council notified the contested act[s] to [it] by a short and standard letter dated 28 October, which indicated, among other usual sentences, that after considering [its] observations, “there [were] no new elements which would [have justified] a change in its position” (Annex C.1 of [the] Reply)’. In addition, in paragraph 6 of the first document amending the form of order sought, the applicant contended that, ‘[o]n 5 December 2011, the Council notified [its] lawyer, by a standard letter, that … [it] should remain subject to the freezing of its funds’ and that ‘[t]he contested acts of 1 December 2011 were attached to this letter’.

41      In that context, the present claim must not be interpreted as being directed at the letter received on 29 October 2010 and the letter dated 5 December 2011 as such, since they are only the documents whereby the Council communicated to the applicant the measures which included it, or after review maintained its inclusion, in the lists in Annex II to Decision 2010/413, as amended by Decision 2010/644, and in Annex VIII to Regulation No 961/2010, in addition to the grounds for those measures, in accordance with Article 24(3) of Decision 2010/413 and Article 36(3) of Regulation No 961/2010. On the contrary, the present claim must be interpreted as being directed at the abovementioned measures as communicated to the applicant by the letter received on 29 October 2010 and the letter dated 5 December 2011 (see, to that effect and by analogy, Case C‑521/06 P Athinaïki Techniki v Commission [2008] ECR I‑5829, paragraphs 1 and 30).

42      Interpreted in this way, the applicant’s present claim is not independent in scope from the claims essentially seeking annulment of the measures including the applicant, and after review maintaining its inclusion, in the disputed lists, claims which neither the Council nor the Commission contends are inadmissible in the present case.

43      Consequently, there is no need to adjudicate on the present claim or on the plea of inadmissibility raised by the Council, supported by the Commission, solely in respect of the claim for annulment of the decision regarding the applicant ‘contained in’ the Council’s letter received on 29 October 2010; the basis of that plea of inadmissibility was that that letter is a purely informative measure only which does not as such adversely affect the applicant independently from the measures including the applicant, and after review maintaining its inclusion, in the disputed lists.

2.     Admissibility of the claim for annulment of any future regulation or decision of the Council or the Commission which would supplement or amend any of the measures contested in the present action

44      The Council, supported by the Commission, also submits that the claim for annulment of any future regulation or decision of the Council or the Commission which would supplement or amend any of the measures contested in the present action should be rejected as inadmissible.

45      As the Council, supported by the Commission, correctly observes, the Court is not authorised to carry out a speculative review of the lawfulness of hypothetical acts which have not yet been adopted (see Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II-4665, paragraph 32 and the case-law cited). As it is, the claim under consideration seeks the annulment of hypothetical acts not adopted by the date on which the oral procedure was closed.

46      The Court must therefore uphold the plea of inadmissibility raised by the Council, supported by the Commission, and reject as inadmissible the claim for the annulment of any future regulation or decision of the Council or the Commission which would supplement or amend any of the measures contested in the present action.

47      It follows from the foregoing that the only claims which must be examined as to the substance are those seeking the annulment of Annex II to Decision 2010/413, as amended by Decision 2010/644; Annex VIII to Regulation No 961/2010; Decision 2011/783; Implementing Regulation No 1245/2011; and Annex IX to Regulation No 267/2012, in so far as they concern the applicant, that is in that they include the applicant, or after review maintain its inclusion, in the disputed lists (together, ‘the contested measures’).

3.     Substance

48      The applicant formally relies on nine pleas in law in support of its claims for annulment of the contested measures. The first plea in law alleges a manifest error of assessment and infringement of Article 20(1)(b) of Decision 2010/413 and of Article 16(2)(a) and (b) of Regulation No 961/2010. The second plea in law alleges breach of the principle of respect for the rights of the defence and of the right to effective judicial protection as well as a failure to provide an adequate statement of reasons. The third plea in law is based on infringement of Article 24(3) and (4) of Decision 2010/413 and of Article 36(3) and (4) of Regulation No 961/2010. The fourth plea in law alleges breach of the principle of sound administration. The fifth plea in law alleges breach of the principle of the protection of legitimate expectations. The sixth plea in law alleges infringement of the right to property. The seventh plea in law is based, essentially, on the unlawfulness of Article 20(1)(b) of Decision 2010/413 and of Article 16(2) of Regulation No 961/2010, in that they breach the principle of proportionality. The eighth plea in law alleges that Regulation No 961/2010 is unlawful in that it infringes Article 40 TEU and Article 215(2) and (3) TFEU. The ninth plea in law alleges breach of the principles of equality and non‑discrimination.

49      In the documents amending the form of order sought, the applicant relies on six supplementary pleas in law. With the exception of the fourth supplementary plea, those six supplementary pleas in law support the claims for annulment of the decision, in respect of the applicant, ‘contained in’ the letter dated 5 December 2011 and for the annulment, in part, of Decision 2011/783 and of Implementing Regulation No 1245/2011. The first supplementary plea in law alleges a manifest error of assessment of the facts and a misuse of power. The second supplementary plea in law alleges infringement of Article 26(3) of Decision 2010/413 and of Article 36(6) of Regulation No 961/2010. The third supplementary plea in law is based on breach of the obligation to state reasons. The fifth supplementary plea in law alleges breach of the rights of the defence. The sixth supplementary plea in law is based on breach of the right to effective judicial protection. The fourth supplementary plea in law supports the claim for annulment, in part, of Annex IX to Regulation No 267/2012 and of any future regulation or decision of the Council or the Commission which would supplement or amend any of the measures contested in the present action. It alleges an error of assessment of the facts, infringement of Regulation No 961/2010, as replaced by Regulation No 267/2012, and a lack of evidence of the conduct alleged.

50      In response to the written questions from the Court, the applicant confirmed that the amendment of the claim for the annulment of Annex IX to Regulation No 267/2012, in so far as that annex concerns the applicant, included amending the first plea in the action with a view to alleging an infringement of Article 23(2)(a) and (b) of Regulation No 267/2012 and amending the third plea in the action with a view to alleging an infringement of Article 46(3) of that regulation.

51      For reasons of the sound administration of justice, economy of procedure and convenience, it is appropriate to examine, in the first place, the second and third pleas in law and, in the second place, the first plea in law, as initially formulated and then supplemented by the claims amending the form of order sought by the applicant.

 The second plea in law, alleging breach of the principle of respect for the rights of the defence and of the right to effective judicial protection, as well as a failure to provide an adequate statement of reasons, and the third plea in law, alleging infringement of Article 24(3) and (4) of Decision 2010/413, Article 36(3) and (4) of Regulation No 961/2010 and Article 46(3) of Regulation No 267/2012

52      By those pleas, the applicant claims, in essence, that the contested measures were adopted without observance of the formal requirements which seek to guarantee respect for the rights of the defence and the right to effective judicial protection, namely the general obligation to state reasons, the specific obligations to communicate the reasons and to review the restrictive measures in the light of the observations of the persons concerned, as set out in Article 24(3) and (4) of Decision 2010/413, Article 36(3) and (4) of Regulation No 961/2010 and Article 46(3) of Regulation No 267/2012, the right to have access to the file and the right to a fair hearing.

53      The Council, supported by the Commission, contends that the applicant does not have, and cannot take advantage of, fundamental rights protection and guarantees. It contends specifically that the applicant cannot rely on the principle of respect for the rights of the defence. In any event, the Council takes the view that, in the present case, it fully respected the fundamental rights protection and guarantees invoked by the applicant.

 Whether the applicant may rely on the fundamental rights protection and guarantees which it invokes in the second and third pleas in law

54      The question whether the applicant possesses the rights which it invokes in the second and third pleas for annulment does not concern the admissibility of those pleas, but their merits.

55      In the present case, the Council, supported by the Commission, contends that, under European Union law, legal persons which are emanations of non-Member countries cannot rely on fundamental rights protection and guarantees. They claim that since the applicant is an emanation of the Iranian State, that rule applies to it.

56      In that regard, it must be observed that neither in the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389) nor in the Treaties are there any provisions which state that legal persons which are emanations of States are not entitled to the protection of fundamental rights. On the contrary, the provisions of the Charter which are relevant in the light of the pleas raised by the applicant, and in particular Articles 17, 41 and 47 thereof, guarantee the rights of ‘[e]veryone’ or ‘[e]very person’, a form of wording which includes legal persons such as the applicant.

57      None the less, the Council, supported by the Commission, relies, in this context, on Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), the effect of which is that applications submitted by governmental organisations to the European Court of Human Rights are not admissible.

58      First, Article 34 of the ECHR is a procedural provision which is not applicable to procedures before the Courts of the European Union. Secondly, according to the case-law of the European Court of Human Rights, the aim of that provision is to ensure that a State which is a party to the ECHR is not both applicant and defendant before that court (see, to that effect, judgment of the European Court of Human Rights of 13 December 2007, Islamic Republic of Iran Shipping Lines v. Turkey, no. 40998/98, § 81, ECHR 2007-V). That argument is not applicable to the present case.

59      The Council and the Commission also argue that the justification of the rule on which they rely is that a State is the guarantor of respect for fundamental rights in its territory but cannot qualify for such rights.

60      However, even if that justification were applicable in relation to an internal situation, the fact that a State is the guarantor of respect for fundamental rights in its own territory is of no relevance as regards the extent of the rights to which legal persons which are emanations of that same State may be entitled in the territory of other States.

61      In the light of the foregoing, it must be held that European Union law contains no rule preventing legal persons which are emanations of non-Member countries from taking advantage of fundamental rights protection and guarantees. Those rights may therefore be relied on by those persons before the Courts of the European Union in so far as they are compatible with their status as legal persons.

62      It follows that fundamental rights protection and guarantees may be relied on by the applicant.

63      More specifically, the Council, supported by the Commission, disputes the applicability of the principle of respect for the rights of the defence to the present case, referring to Case T-181/08 Tay Za v Council [2010] ECR II-1965, paragraphs 121 to 123, on the ground that the procedure for the adoption of restrictive measures was initiated against Iran, and the applicant consequently cannot rely on the rights of the defence in the context of that procedure or, in any event, can do so to only a limited extent.

64      That argument cannot be accepted.

65      First, the judgment in Tay Za v Council, paragraph 63 above, cannot support the argument of the Council, supported by the Commission, since it was set aside by the judgment of the Court of Justice of 13 March 2012 in Case C‑376/10 P Tay Za v Council [2012] ECR I‑0000. Consequently, the findings made in Case T‑181/08 Tay Za v Council (paragraph 63 above) are no longer part of the legal order of the European Union and cannot properly be relied on by the Council, supported by the Commission.

66      Secondly, Article 24(3) and (4) of Decision 2010/413, Article 36(3) and (4) of Regulation No 961/2010 and Article 46(3) and (4) of Regulation No 267/2012 set out provisions to safeguard the rights of the defence of entities which are subject to restrictive measures adopted under those acts. Respect for those rights is subject to review by the Courts of the European Union (Case T‑390/08 Bank Melli Iran v Council [2009] ECR II‑3967, paragraph 37).

67      In those circumstances, it must be concluded that the principle of respect for the rights of the defence may be relied on by the applicant in this case.

68      For the same reasons as set out in paragraph 51 above, it is appropriate to begin by examining the alleged breach of the obligation to state reasons and infringement of Article 24(3) of Decision 2010/413, Article 36(3) of Regulation No 961/2010 and Article 46(3) of Regulation No 267/2012.

–       The obligation to state reasons and the alleged infringement of Article 24(3) of Decision 2010/413, Article 36(3) of Regulation No 961/2010 and Article 46(3) of Regulation No 267/2012

69      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 Case C‑417/11 P Council v Bamba [2012] ECR I‑0000, paragraph 49 and the case-law cited).

70      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 person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review (see Council v Bamba, paragraph 69 above, paragraph 50 and the case-law cited).

71      Where the freezing of funds has considerable consequences for the persons, entities and bodies concerned, for it may restrict the exercise of their fundamental rights (Case C‑548/09 P Bank Melli Iran v Council [2011] ECR I‑0000, paragraph 49), and, moreover, those persons, entities and bodies are not afforded the opportunity to be heard before the adoption of an initial fund-freezing measure, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling those persons, entities and bodies, at least after the adoption of the initial measure, to make effective use of the legal remedies available to them in order to challenge its lawfulness (see Council v Bamba, paragraph 69 above, paragraph 51 and the case-law cited).

72      The principle of effective judicial protection therefore means that the European Union authority which adopts the initial fund-freezing measure is bound to communicate the grounds for that measure to the person, entity or body in question, so far as possible, either when that measure is adopted or, at the very least, as swiftly as possible after it has been adopted, in order to enable that person, entity or body properly to exercise its right to bring an action (see Case C‑548/09 P Bank Melli Iran v Council, paragraph 71 above, paragraph 47 and the case-law cited). In addition, the statement of reasons for an act must be provided before the person, body or entity in question brings an action against it, since the failure to state the reasons cannot be remedied by the fact that that person, entity or body learns the reasons for the act during the proceedings before the Courts of the European Union (see, to that effect, Case T‑390/08 Bank Melli Iran v Council, paragraph 66 above, paragraph 80 and the case-law cited).

73      It is also with a view to compliance with the principle of effective judicial protection that Article 24(3) of Decision 2010/413, Article 36(3) of Regulation No 961/2010 and Article 46(3) of Regulation No 267/2012 require the Council to give individual and specific reasons which justify the fund-freezing measures taken under Article 20(1)(b) of Decision 2010/413, Article 16(2) of Regulation No 961/2010 and Article 23(2) and (3) of Regulation No 267/2012, and to make them known to the persons, entities and bodies concerned (see, to that effect and by analogy, Case C‑548/09 P Bank Melli Iran v Council, paragraph 71 above, paragraph 48). In accordance with the case-law, the Council is thus required to communicate a measure individually in order, in this case, to satisfy its obligation to state reasons (see, to that effect and by analogy, Case C‑548/09 P Bank Melli Iran v Council, paragraph 71 above, paragraph 52).

74      The statement of reasons required by Article 296 TFEU, Article 24(3) of Decision 2010/413, Article 36(3) of Regulation No 961/2010 and Article 46(3) of Regulation No 267/2012 must be appropriate to the provisions under which the measures for the freezing of funds were 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 Council v Bamba, paragraph 69 above, paragraph 53 and the case-law cited).

75      In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him (see Council v Bamba, paragraph 69 above, paragraph 54 and the case-law cited).

76      In the present case, it is apparent from the documents in the case that, by the letter received on 29 October 2010 and the letter dated 5 December 2011, the Council informed the applicant that it had been included, and after review maintained, in the disputed lists on the grounds set out in Decision 2010/413, as amended by Decision 2010/644, and in Regulation No 961/2010. A copy of those measures was annexed to the letter received on 29 October 2010, and they had, in any event, been published in the Official Journal of the European Union on 27 October 2010. The grounds are as follows:

‘[The applicant] has evolved from being an Iranian domestic bank to a bank which facilitates Iran’s international trade. Acts on behalf of Bank Sepah (designated under [Security Council Resolution] 1747), carrying out Bank Sepah’s transactions and hiding Bank Sepah’s connection with transactions in order to circumvent sanctions. In 2009 [the applicant] facilitated business on behalf of Bank Sepah between Iran’s defence industries and overseas beneficiaries. Has facilitated business with front company for [the Democratic People’s Republic of Korea’s] Tranchon Commercial Bank, known for facilitating proliferation-related business between Iran and the [Democratic People’s Republic of Korea].’

77      In answer to a written question from the Court, the Council stated that ‘Tranchon Commercial Bank’ must be understood as referring to the ‘Tanchon Commercial Bank’ which was included in the list in Annex I to Council Decision 2010/800/CFSP of 22 December 2010 concerning restrictive measures against the Democratic People’s Republic of Korea and repealing Common Position 2006/795/CFSP (OJ 2010 L 341, p. 32).

78      It is not disputed, as is apparent from paragraphs 25 and 26 of the defence, that the Council did not communicate any additional grounds to the applicant before the present action was brought.

79      Consequently, it is appropriate to respond to the complaint alleging breach of the obligation to state reasons by having regard to the grounds set out in the contested measures alone, as referred to in paragraph 76 above.

80      In paragraph 12 of the defence, the Council expressly stated that ‘the grounds given for the applicant’s designation satisfy the conditions of providing support for Iran’s proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems [by Iran] and assisting a listed person, entity or body in evading and violating the restrictive measures imposed, as referred to in Article 20(1)(b) of Decision [2010/413] and Article 16(2) of Regulation [No 961/2010]’. Thereafter, the Council did not at any stage relate those same grounds to another criterion or condition justifying the application of fund-freezing measures.

81      In that regard, it should be noted that the conditions for listing the name of a natural or legal person, entity or body are laid down in virtually identical terms in Article 20(1)(b) of Decision 2010/413, Article 16(2) of Regulation No 961/2010 and Article 23(2) of Regulation No 267/2012. Those provisions lay down alternative designation criteria.

82      On the one hand, Article 20(1)(b) of Decision 2010/413, Article 16(2)(a) of Regulation No 961/2010 and Article 23(2)(a) of Regulation No 267/2012 provide, inter alia, that all funds which belong to persons, entities or bodies providing support for nuclear proliferation, including through the involvement in procurement of prohibited goods and technology, are to be frozen. The implementation of those provisions therefore requires that the entity concerned provide support for nuclear proliferation (see, to that effect, Case T-390/08 Bank Melli Iran v Council, paragraph 66 above, paragraph 57) (‘the first criterion’). In addition, it is clearly apparent from both the scheme and general purpose of Decision 2010/413, Regulation No 961/2010 and Regulation No 267/2012 – which seek to prevent a risk of nuclear proliferation in Iran (see, to that effect and by analogy, Case C‑72/11 Afrasiabi and Others [2011] ECR I‑0000, paragraph 44) – that, in the context of those provisions, ‘prohibited goods (items, materials and equipment) and technologies’ must be understood as referring to the following: goods (items, materials and equipment) and technologies, whether or not originating in the European Union, included in the lists cited in or annexed to the measures at issue which set out the goods and technologies capable of contributing to nuclear proliferation, and whose sale, supply, transfer or export, whether directly or indirectly, to any Iranian person, entity or body or for use in Iran is, in principle, prohibited by those same measures.

83      On the other hand, Article 20(1)(b) of Decision 2010/413, Article 16(2)(b) of Regulation No 961/2010 and Article 23(2)(b) of Regulation No 267/2012 provide, in essence, that all funds belonging to the persons, entities and bodies that have assisted a designated or listed person, entity or body to infringe or evade the provisions of Resolutions 1737, 1747, 1803 and 1929, Decision 2010/413, Regulation No 961/2010 or Regulation No 267/2012 are to be frozen. The implementation of those provisions requires that the entity concerned have assisted a designated or listed person, entity or body in evading or avoiding the restrictive measures (‘the second criterion’).

84      In addition to indicating the legal basis of the measure adopted, the obligation to state reasons by which the Council is bound relates precisely to those facts (see, by analogy, Case T-390/08 Bank Melli Iran v Council, paragraph 66 above, paragraph 83).

85      In the present case, it is unequivocally clear from the contested measures, in particular from the heading under which the applicant was included in the disputed lists, that the listing was carried out on the basis of Article 20(1)(b) of Decision 2010/413, Article 16(2) of Regulation No 961/2010 and Article 23(2) of Regulation No 267/2012. However, it is not apparent from those measures that the listing is in fact based on the first and second criteria which the Council claims to have applied.

86      It must in that regard be recalled that the failure to refer to a precise provision need not necessarily constitute an infringement of essential procedural requirements when the legal basis for the measure may be determined from other parts of the measure. However, such explicit reference is indispensable where, in its absence, the parties concerned and the Courts of the European Union are left uncertain as to the precise legal basis (Case 45/86 Commission v Council [1987] ECR 1493, paragraph 9).

87      Consequently, it must be examined whether the statement of reasons for the contested measures refers expressly to the first and second criteria, or at least to one of them, and whether, as the case may be, that statement of reasons may be regarded as sufficient to enable the applicant to ascertain whether the contested measures are well founded and to defend itself before the Court, and the Court to exercise its power of review.

88      The first sentence of the statement of reasons reads ‘[the applicant] has evolved from being an Iranian domestic bank to a bank which facilitates Iran’s international trade’. That sentence refers to the role played by the applicant in facilitating Iran’s international trade. By contrast, it does not refer to support provided for nuclear proliferation or the procurement of prohibited goods and technology. Nor does it refer to designated or listed persons, entities or bodies, nor, a fortiori, to assistance provided to such persons, entities or bodies. That first sentence may not therefore be regarded as a ground referring expressly to the first and second criteria or, consequently, as a ground explaining the reasons which led the Council to adopt the contested measures. It may at most be understood as a description of the applicant and its activities.

89      The second and third sentences of the statement of reasons read: ‘[The applicant a]cts on behalf of Bank Sepah (designated under [Security Council Resolution] 1747), carrying out Bank Sepah’s transactions and hiding Bank Sepah’s connection with transactions in order to circumvent sanctions. In 2009 [the applicant] facilitated business on behalf of Bank Sepah between Iran’s defence industries and overseas beneficiaries.’ Both sentences must be read together, since they refer to the same factual circumstances, namely the connection between the applicant and Bank Sepah. They refer expressly to the second criterion. In those sentences, reference is made to ‘action’ and ‘transactions’ or ‘business’ by the applicant ‘on behalf of Bank Sepah (designated under [Security Council Resolution] 1747)’, some of which, ‘[i]n 2009’, involved ‘Iran’s defence industries’, and action by the applicant with a view to ‘hiding Bank Sepah’s connection with transactions in order to circumvent sanctions’. In so doing, the Council expressly alleges that the applicant assisted Bank Sepah, designated under Resolution 1747, to evade or avoid the restrictive measures taken against it, in particular in the context of business in 2009 between Iran’s defence industries and overseas beneficiaries.

90      The statement of reasons for the contested measures is sufficient in that regard. It refers to (i) an identified person, eighth on the list in Annex I to Resolution 1747, Bank Sepah, (ii) business identifiable by reference to the person on whose behalf it was carried out and even the period of that business, 2009, and (iii) the other types of persons involved, in this case Iran’s defence industries and overseas beneficiaries. Even in the absence of any other details, the statement of reasons may be regarded as sufficient to identify, if necessary, the action, transactions or business carried out by the applicant and targeted by the Council. Consequently, it must be held that the statement of reasons provided enabled the applicant to ascertain, with regard to the second criterion, whether the contested measures were well founded and to defend itself before the Court, while enabling the latter to exercise its power of review.

91      By contrast, it cannot be considered that the second and third sentences of the grounds for the contested measures in the annexes containing the lists of persons, entities or bodies concerned refer also to the first criterion. No connection is established between, on the one hand, the applicant’s action, transactions or business in question and, on the other, support provided for nuclear proliferation or, more specifically, for the procurement of prohibited goods and technology. Moreover, neither the object of the action, transactions or business nor the connection between them and nuclear proliferation are even stated. In any event, the statement of reasons could not be regarded as sufficient, because it is too imprecise and general to have enabled the applicant to ascertain with regard to the first criterion whether the contested measures were well founded and to defend itself before the Court, and the latter to exercise its power of review.

92      The fourth sentence of those same grounds states that ‘[the applicant] has facilitated business with front company for [the Democratic People’s Republic of Korea’s Tanchon] Commercial Bank, known for facilitating proliferation-related business between Iran and the [Democratic People’s Republic of Korea]’. That fourth sentence cannot be interpreted as referring to the second criterion. Admittedly, Tanchon Commercial Bank, also known as Changgwang Credit Bank and Korea Changgwang Credit Bank, was designated, in April 2009, by the Sanctions Committee established pursuant to Security Council Resolution 1718 (2006) of 14 October 2006, to be subject to the measures imposed on the Democratic People’s Republic of Korea pursuant to that resolution. Consequently, it was included, on 24 April 2009, in the list in Annex I to Decision 2010/800, on the ground that it constituted the ‘[m]ain … financial entity [of the Democratic People’s Republic of Korea] for sales of conventional arms, ballistic missiles, and goods related to the assembly and manufacture of such weapons’. However, Tanchon Commercial Bank has not to date been designated or included in the lists concerning restrictive measures against Iran. Moreover, the Council in no way relied on the inclusion of Tanchon Commercial Bank or front companies in those lists, the opposite of its approach in the case of Bank Sepah.

93      By contrast, the fourth sentence may readily be interpreted as referring to the first criterion. It establishes a connection between the applicant and nuclear proliferation, through Tanchon Commercial Bank. It states that Tanchon Commercial Bank is ‘known for facilitating [nuclear] proliferation-related business between Iran and the [Democratic People’s Republic of Korea]’ and, moreover, that the applicant ‘[h]as facilitated business with front company for [the Democratic People’s Republic of Korea’s Tanchon] Commercial Bank’. Therefore, it may readily be inferred from that sentence that, by facilitating the business of Tanchon Commercial Bank, the applicant is alleged to have indirectly facilitated nuclear proliferation in Iran.

94      None the less, that part of the statement of reasons is insufficient, because it is too imprecise and general to have enabled the applicant to ascertain, with regard to the first criterion, whether the contested measures were well founded and to defend itself before the Court, and to enable the latter to exercise its power of review. First, the Council does not provide any details concerning the business in question, such as dates, subject-matter or mechanisms. Secondly, the only information provided relates to the persons involved, that is ‘front company for [the Democratic People’s Republic of Korea’s Tanchon] Commercial Bank’. However, the concept of a ‘front company’ is in itself too vague and imprecise to enable the persons or entities actually targeted by the Council to be identified with any certainty. It follows that the business referred to by the Council is neither identified nor identifiable solely from the statement of reasons provided in the contested measures.

95      Since the grounds alleging that the applicant assisted Bank Sepah (designated under Resolution 1747) to evade or avoid the restrictive measures taken against it – in particular in the context of business in 2009 between Iran’s defence industries and overseas beneficiaries – provide an independent and sufficient statement of reasons for the contested measures, and, consequently, the inadequacy of the grounds alleging that the applicant facilitated Iran’s international trade and business with front companies for Tanchon Commercial Bank cannot result in the annulment of the contested measures, the complaint alleging an inadequate statement of reasons for those measures must be rejected.

96      It follows from all the foregoing that, inasmuch as they provide an independent and sufficient statement of reasons for the contested measures, only the grounds alleging that the applicant assisted Bank Sepah, designated under Resolution 1747, to evade or avoid the restrictive measures taken against it, in particular in the context of business in 2009 between Iran’s defence industries and overseas beneficiaries, may be taken into consideration when the other pleas in the action are examined.

–       The principle of respect for the rights of the defence

97      According to settled case-law, the observance of the rights of the defence, especially the right to be heard, in all proceedings initiated against a person or entity which may lead to a measure adversely affecting that person or entity, is a fundamental principle of European Union law which must be guaranteed, even when there are no rules governing the procedure in question (see Case T‑390/08 Bank Melli Iran v Council, paragraph 66 above, paragraph 91 and the case-law cited).

98      The principle of respect for the rights of the defence requires that the person or entity concerned must be informed of the evidence adduced against it to justify the measure adversely affecting it. It must be afforded the opportunity effectively to make known its view on that evidence (see, by analogy, Organisation des Modjahedines du peuple d’Iran v Council, paragraph 45 above, paragraph 93).

99      It should be recalled that, in accordance with the case-law, as regards an initial measure whereby the funds of a person or an entity are frozen, the evidence adduced against that person or entity should be disclosed either concomitantly with or as soon as possible after the adoption of the measure concerned. At its request, the person or entity concerned also has the right to make known its view on that evidence after the adoption of the measure (see, to that effect and by analogy, Case T‑390/08 Bank Melli Iran v Council, paragraph 66 above, paragraphs 92, 93, 98 and 99).

100    It must also be observed that, when sufficiently precise information has been disclosed, enabling the person or entity concerned effectively to state its point of view on the evidence adduced against it by the Council, the principle of respect for the rights of the defence does not mean that the Council is obliged spontaneously to grant access to the documents in its file. It is only on the request of the person or entity concerned that the Council is required to provide access to all non-confidential official documents concerning the measure at issue (see Case T‑390/08 Bank Melli Iran v Council, paragraph 66 above, paragraph 97 and the case-law cited).

101    In the present case, first, as regards the disclosure of the evidence against the applicant, the grounds for the applicant’s inclusion in the lists in Annex II to Decision 2010/43 and in Annex V to Regulation No 423/2007, which were subsequently reproduced in all the contested measures, were initially disclosed individually to the applicant by the letter dated 29 July 2010.

102    In so far as the applicant complains that the statement of reasons provided is vague and general, the Court notes that examination of the alleged breach of the obligation to state reasons and infringement of Article 24(3) of Decision 2010/413, Article 36(3) of Regulation No 961/2010 and Article 46(3) of Regulation No 267/2012 has made it possible to establish that the grounds alleging that the applicant assisted Bank Sepah, designated under Resolution 1747, to evade or avoid the restrictive measures taken against it, in particular in the context of business in 2009 between Iran’s defence industries and overseas beneficiaries, provide an independent and sufficient statement of reasons for the contested measures.

103    Consequently, it must be held that the Council did not breach the applicant’s rights of defence as regards the initial disclosure of the evidence against it.

104    Secondly, the applicant submits that it was not able to gain access to the evidence and information concerning it in the Council’s file. The Council contends, however, that it was not until the letter dated 28 December 2010 that the applicant made such a request – which the applicant does not deny – and that, in response to that letter, it provided the applicant with all the evidence against it in its possession, namely the extracts of the Council’s cover notes 13413/10 EXT 5, 13414/10 EXT 5 and 6723/11 concerning the applicant (see paragraph 14 above).

105    In that regard, it is apparent from the file that, in the letter dated 28 December 2010, the applicant expressly requested access to the evidence and information in the file which justified the applicant’s inclusion, or after review the maintenance of its inclusion, in the lists in Annex II to Decision 2010/413, as amended by Decision 2010/644, and in Annex VIII to Regulation No 961/2010. By the letter dated 22 February 2011, the Council provided the applicant with all the evidence and information concerning the applicant that was held in its file, in this case the extracts from the Council’s cover notes 13413/10 EXT 5, 13414/10 EXT 5 and 6723/11.

106    In addition, the Council responded to the request for access to the evidence and information in the file justifying the applicant’s inclusion in the list in Annex VIII to Regulation No 961/2010, made by the applicant in the letter dated 13 January 2012. By the letter dated 21 February 2012, the Council provided the applicant with all the evidence and information concerning it that had recently been added to the file, that is the extracts from the minutes of the meetings of the Council’s COMEM/CONOP group (group responsible for non-proliferation issues for the Middle East) dated 10 and 16 November 2011 and I/A item notes of the Council’s Committee of Permanent Representatives (Coreper) dated 28 November and 1 December 2011 relating to the applicant.

107    Those communications were timely enough to enable the applicant to take note of them and, so far as necessary, to adapt its arguments in the course of the proceedings. In any event, the documents communicated did not contain any fresh information useful to the applicant’s defence, since they did not disclose anything new concerning the applicant. Moreover, the applicant referred to those documents merely to support its arguments, which had already been presented, that the Council’s file was ‘void of substance’.

108    Consequently, the applicant’s rights of defence were not breached, in the present case, as regards access to the evidence in the file.

109    Thirdly, as regards the applicant’s right effectively to make known its view on the evidence against it, it must be noted that, after the grounds for the contested measures had been communicated for the first time by the letter dated 29 July 2010, the applicant sent the Council the letter dated 12 September 2010 in which, in essence, it denied that the fund-freezing measure concerning it was well founded, on the ground that it had never engaged, as a bank, in any form of illegal activity. The Council rejected those contentions by the letter received on 29 October 2010. Subsequently, the applicant and the Council took part in several exchanges concerning the grounds justifying the applicant’s listing or the maintenance thereof. In addition, in response to the communication, by the letters dated 22 February 2011 and 21 February 2012 respectively, of the evidence and information in the file justifying the applicant’s inclusion, or after review the maintenance of its inclusion, in the disputed lists, the applicant submitted its observations in the letter dated 29 July 2011 and in the second supplementary document amending its claims. In those documents, it disputed that the fund‑freezing measure adopted against it was well founded, contending that the Council’s file was ‘void of any substance’. The Council rejected those arguments by the letter dated 5 December 2011 and in its observations lodged at the Court Registry on 4 July 2012 in response to the applicant’s amendment of its claims.

110    Contrary to the applicant’s contentions, it is apparent, in particular from the Council’s observations lodged at the Court Registry on 4 July 2012, that the Council did examine the arguments put forward by the applicant, but took the view that they had to be rejected on the ground that, in the circumstances of the present case, it was not possible for the Council to request from the Member State seeking the applicant’s inclusion in the disputed lists the specific, concrete evidence and information supporting that inclusion, since that evidence and information came from confidential sources.

111    In the light of the foregoing, it must be held that the applicant’s right effectively to make known its point of view was observed.

112    Accordingly, the complaint alleging a breach of the principle of respect for the rights of the defence must be rejected in its entirety.

–       The right to effective judicial protection

113    The principle of effective judicial protection is a general principle of European Union law, stemming from the constitutional traditions common to the Member States, which has been enshrined in Article 47 of the Charter of Fundamental Rights and in Articles 6 and 13 of the ECHR (Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 37).

114    The effectiveness of judicial review – which it must be possible to apply to the lawfulness of the grounds for the decisions imposing restrictive measures as in the present case – means that the European Union authority in question is bound to communicate the grounds for the restrictive measures to the entity or person concerned by them, so far as possible, either when those measures are adopted or, at the very least, as swiftly as possible after their adoption, in order to enable the entity or person concerned to exercise, within the periods prescribed, its right to bring an action. Observance of that obligation to communicate the grounds is necessary both to enable the persons to whom restrictive measures are addressed to defend their rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in their applying to the Courts of the European Union, and also to put the latter fully in a position to carry out the review of the lawfulness of the measure in question which is the duty of those courts (see, to that effect and by analogy, Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraphs 335 to 337 and the case-law cited).

115    In the present case, it is apparent from the examination of the alleged breaches of the obligation to state reasons and of the principle of respect for the rights of the defence that the grounds alleging that the applicant assisted Bank Sepah, designated under Resolution 1747, to evade or avoid the restrictive measures taken against it, in particular in the context of business in 2009 between Iran’s defence industries and overseas beneficiaries, provide an independent and sufficient statement of reasons for the contested measures. It is also apparent that the applicant’s rights of defence have been observed, whether as regards the statement of reasons for the contested measures, access to the file or the right to be heard.

116    In those circumstances, it is clear that the Court is fully in a position to carry out its review of the lawfulness of the contested measures.

117    Consequently, the complaint alleging a breach of the right to effective judicial protection must be rejected as unfounded, as must, consequently, the second and third pleas in law taken as a whole.

 The first plea in law, alleging a manifest error of assessment and infringement of Article 20(1)(b) of Decision 2010/413, of Article 16(2)(a) and (b) of Regulation No 961/2010 and of Article 23(2)(a) and (b) of Regulation No 267/2012

118    The applicant submits, essentially, that the Council based the contested measures on an erroneous assessment of the facts of the case in so far as it took the view that the applicant had assisted Bank Sepah, designated under Resolution 1747, to evade or avoid the restrictive measures taken against it, in particular in the context of business in 2009 between Iran’s defence industries and overseas beneficiaries. The applicant denies that it assisted Bank Sepah in evading sanctions and submits that the Council’s contentions in that regard stem from an incorrect inference drawn from its entry into the Iranian international banking market, where Bank Sepah was one of the main operators. It also denies that it provided banking services, such as the issuing of letters of credit, in the context of business transactions with the defence industries and the corresponding finance agreements.

119    The Council, supported by the Commission, contends before the Court that the applicant has carried out transactions on behalf of Bank Sepah.

120    According to the case-law, the judicial review of the lawfulness of a measure whereby restrictive measures are imposed on an entity or person extends to the assessment of the facts and circumstances relied on as justifying it, and to the evidence and information on which that assessment is based. In the event of challenge, it is for the Council to present that evidence for review by the Courts of the European Union (see, to that effect, Case T‑390/08 Bank Melli Iran v Council, paragraph 66 above, paragraphs 37 and 107).

121    In the present case, the Council contended at the hearing that the applicant ought to have denied the specific facts alleged against it, in the letter dated 12 September 2010.

122    In that regard, it must be noted that, in the letter dated 12 September 2010, the applicant denied that the measure freezing its funds was well founded, on the ground that, as a bank, it had never engaged in illegal activities. It has at no point conceded, either in that letter or subsequently, that it acted as an intermediary for Bank Sepah or provided banking services in the context of business in 2009 between Iran’s defence industries and overseas beneficiaries. In the light of those findings, it cannot be held, as the Council contends, that the applicant waived any challenge as to the assistance which it is alleged to have provided to Bank Sepah or the banking services which it is alleged to have provided in the context of business transactions with the defence industries and the corresponding finance agreements.

123    In addition, although, in the first plea in law in the application, the applicant conceded that it ‘[had provided] routine banking services and engage[d] in international banking activities’ in the context of ‘the increased development of Iran’s economy’, it also stated that ‘[t]he specific reasons for [its] listing [were] fundamentally wrong’ and that there were no activities of the type of which it was accused by the Council, namely, ‘acting on behalf of Bank Sepah or … facilitat[ing] the business of defense industries or prohibited activities’. In the reply, the applicant states that it had ‘consistently and repeatedly denied all the accusations, both in its detailed letter to the Council of 12 September 2011 and in its application’.

124    It must therefore be held that, contrary to the Council’s contentions, the applicant did formally deny that it had assisted Bank Sepah, designated under Resolution 1747, to evade or avoid the restrictive measures taken against it, in particular in the context of business in 2009 between Iran’s defence industries and overseas beneficiaries. It was therefore for the Council, in the present case, to adduce evidence that the assistance in question existed.

125    In that regard, it is apparent from the documents before the Court that the Council took as its basis the grounds communicated to it by a Member State, as set out in English in the extracts of Council cover notes 13413/10 EXT 5, 13414/10 EXT 5 and 6723/11 in relation to the applicant.

126    Admittedly, the Council claims that it cannot be required to produce the evidence and information supporting the grounds for restrictive measures when the evidence and information comes from confidential sources and is, as such, kept by the Member States holding it, or even by third countries with which those States are cooperating, with a view to protecting the sources. In that case, the Council contends that the Court should limit itself to a review of whether the grounds relied on are ‘plausible’. Consequently, the Council requests the Court to reverse its approach in the judgment in Joined Cases T‑439/10 and T‑440/10 Fulmen and Mahmoudian v Council (paragraph 36 above), or, in the alternative, to stay the present proceedings pending the outcome of the appeal (Case C‑280/12 P) brought against the judgment in Fulmen and Mahmoudian v Council.

127    The Council’s arguments concerning the level of the review by the Courts of the European Union and the evidence and information to be produced before them cannot be upheld, for the same reasons as those already set out in the judgment in Joined Cases T‑439/10 and T‑440/10 Fulmen and Mahmoudian v Council (paragraph 36 above). Moreover, given that the measures in question affect the applicant’s right to property and its right to the free exercise of economic activity considerably, there is no need in the present case to grant the Council’s request for the proceedings to be stayed pending the outcome of the appeal (Case C‑280/12 P) brought against the judgment in Fulmen and Mahmoudian v Council.

128    First, the fact that the restrictive measures imposed on the applicant were adopted at the request or on the proposal of a Member State, in accordance with the procedure provided for in Article 23(2) of Decision 2010/413, in no way detracts from the fact that the contested measures are measures taken by the Council, which must, therefore, ensure that their adoption is justified, if necessary by requesting the Member State concerned to submit to it the evidence and information required for that purpose (Joined Cases T‑439/10 and T‑440/10 Fulmen and Mahmoudian v Council, paragraph 36 above, paragraph 99).

129    Secondly, the Council cannot rely on a claim that the evidence concerned comes from confidential sources and cannot, consequently, be disclosed. While that circumstance may, possibly, justify restrictions in relation to the communication of that evidence to the applicant or its lawyers, the fact remains that, taking into consideration the essential role of judicial review in the context of adoption of restrictive measures, the Courts of the European Union must be able to review the lawfulness and merits of such measures without it being possible to raise objections that the evidence and information used by the Council is secret or confidential. Further, the Council is not entitled to base an act adopting restrictive measures on information or evidence in the file communicated by a Member State, if that Member State is not willing to authorise its communication to the Court of the European Union whose task is to review the lawfulness of that decision (see Joined Cases T‑439/10 and T‑440/10 Fulmen and Mahmoudian v Council, paragraph 36 above, paragraph 100 and the case-law cited).

130    Thirdly, the Council is incorrect in its claim that it cannot be expected to adduce proof of the involvement of a person or entity in nuclear proliferation, taking into consideration the clandestine nature of the conduct concerned. The mere fact that the adoption of restrictive measures is proposed pursuant to Article 23(2) of Decision 2010/413 presupposes that the Member State concerned or the High Representative of the Union for Foreign Affairs and Security Policy, as the case may be, are in possession of evidence or information demonstrating, in their opinion, that the person or entity concerned is involved in nuclear proliferation. Further, difficulties which may be encountered by the Council when attempting to prove that involvement may, in some cases, have an effect on the standard of proof required of it. On the other hand, the effect of such difficulties cannot be that the Council is entirely relieved of the burden of proof which rests on it (see, to that effect, Joined Cases T‑439/10 and T‑440/10 Fulmen and Mahmoudian v Council, paragraph 36 above, paragraphs 102 and 103 and the case-law cited).

131    In the present case, the Council has produced no information or evidence in support of the grounds relied on in the contested measures. As the Council itself essentially admits, it has relied on mere unsubstantiated allegations that the applicant assisted Bank Sepah, designated under Resolution 1747, to evade or avoid the restrictive measures taken against it, in particular in the context of business in 2009 between Iran’s defence industries and overseas beneficiaries.

132    Accordingly, it must be held that the Council has not proved the facts of which it accuses the applicant, and the first plea in law must therefore be upheld.

133    In the absence of evidence substantiating the necessary findings under Article 20(1)(b) of Decision 2010/413, Article 16(2)(b) of Regulation No 961/2010 and Article 23(2)(b) of Regulation No 267/2012, the Council could not properly establish, in the contested measures, that the applicant had assisted a listed person to evade or violate the fund-freezing measures to which it was subject, within the meaning of those provisions.

134    Consequently, in deciding otherwise, the Council infringed Article 20(1)(b) of Decision 2010/413, Article 16(2)(b) of Regulation No 961/2010 and Article 23(2)(b) of Regulation No 267/2012.

135    Therefore, the first plea in law must be upheld and, without its being necessary to rule on the other pleas in law, complaints and objections of illegality raised in support of the action, the contested measures must be annulled.

4.     The temporal effects of annulment of the contested measures

136    As regards the temporal effects of the annulment of the contested measures, it must be noted, first, that Annex VIII to Regulation No 961/2010, as amended in particular by Implementing Regulation No 1245/2011, no longer has any legal effect following the repeal of Regulation No 1245/2011 by Regulation No 267/2012. Consequently, the annulment of Annex VIII to Regulation No 961/2010, as amended in particular by Implementing Regulation No 1245/2011, in so far as it concerns the applicant, relates only to the effects in respect of the applicant which that annex produced between the date of its entry into force and the date of its repeal.

137    Next, as regards Annex IX to Regulation No 267/2012, it must be noted that, under the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void are to take effect only as from the date of expiry of the period for appeal referred to in the first paragraph of Article 56 of that statute or, if an appeal has been brought within that period, as from the date of dismissal of the appeal. The Council therefore has a period of two months, extended on account of distance by ten days, as from the notification of this judgment, to remedy the infringement established by the General Court by adopting, if appropriate, new restrictive measures with respect to the applicant.

138    In the present case, the risk of serious and irreparable harm to the effectiveness of the restrictive measures imposed by Regulation No 267/2012 does not appear sufficiently great, having regard to the considerable impact of those measures on the applicant’s rights and freedoms, to warrant the maintenance of the effects of that regulation with respect to the applicant for a period exceeding that laid down in the second paragraph of Article 60 of the Statute of the Court of Justice (see, by analogy, the judgment of 16 September 2011 in Case T‑316/11 Kadio Morokro v Council, not published in the ECR, paragraph 38).

139    Lastly, as regards the temporal effects of the annulment of Annex II to Decision 2010/413, as amended by Decision 2010/644 and then by Decision 2011/783, in so far as it concerns the applicant, it must be recalled that, under the second paragraph of Article 264 TFEU, the General Court may, if it considers it necessary, state which of the effects of the act which it has declared void are to be considered as definitive.

140    In the present case, if the dates when the annulment of Annex IX to Regulation No 267/2012 and that of Annex II to Decision 2010/413, as amended by Decision 2010/644 and then by Decision 2011/783 – in so far as those acts concern the applicant – take effect were to differ, that would be likely seriously to jeopardise legal certainty, since those acts impose on the applicant restrictive measures which are identical. The effects of Annex II to Decision 2010/413, as amended by Decision 2010/644 and then by Decision 2011/783, must therefore be maintained as regards the applicant until the annulment of Annex IX to Regulation No 267/2012 takes effect, in so far as Annex IX concerns the applicant (see, by analogy, Kadio Morokro v Council, paragraph 138 above, paragraph 39).

 Costs

141    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

142    Under the first subparagraph of Article 87(4) of the Rules of Procedure, institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Commission shall bear its own costs.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1.      Declares the action inadmissible, in so far as it seeks the annulment of any future regulation or decision of the Council of the European Union or of the European Commission which would supplement or amend any of the measures contested in the present action;

2.      Declares that there is no need to adjudicate on the claim for annulment of the decisions in respect of Post Bank Iran ‘contained in’ the letter from the Council received on 29 October 2010 and the letter from the Council dated 5 December 2011, or on the plea of inadmissibility raised by the Council, supported by the Commission, solely in respect of the claim for annulment of the decision regarding Post Bank Iran ‘contained in’ the letter from the Council received on 29 October 2010;

3.      Annuls, in so far as they concern Post Bank Iran, Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, as amended by Council Decision 2010/644/CFSP of 25 October 2010; Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007; Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413; Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010; and Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010;

4.      Orders the effects of Annex II to Decision 2010/413, as amended by Decision 2010/644 and subsequently by Decision 2011/783, to be maintained as regards Post Bank Iran until the annulment of Annex IX to Regulation No 267/2012 takes effect, in so far as Annex IX concerns Post Bank Iran;

5.      Orders the Council to bear its own costs and to pay those incurred by Post Bank Iran;

6.      Orders the Commission to bear its own costs.

Pelikánová Jürimäe Van der Woude

Delivered in open court in Luxembourg on 6 September 2013.

[Signatures]

Table of contents

Background to the dispute

1.  Restrictive measures adopted against the Islamic Republic of Iran

2.  Restrictive measures concerning the applicant

Procedure and forms of order sought by the parties

Law

1.  Interpretation of the applicant’s claims

Interpretation of the applicant’s claim that certain provisions should be declared inapplicable to it

Interpretation of the claim for annulment of the decisions in respect of the applicant ‘contained in’ the letter received on 29 October 2010 and the letter dated 5 December 2011

2.  Admissibility of the claim for annulment of any future regulation or decision of the Council or the Commission which would supplement or amend any of the measures contested in the present action

3.  Substance

The second plea in law, alleging breach of the principle of respect for the rights of the defence and of the right to effective judicial protection, as well as a failure to provide an adequate statement of reasons, and the third plea in law, alleging infringement of Article 24(3) and (4) of Decision 2010/413, Article 36(3) and (4) of Regulation No 961/2010 and Article 46(3) of Regulation No 267/2012

Whether the applicant may rely on the fundamental rights protection and guarantees which it invokes in the second and third pleas in law

–  The obligation to state reasons and the alleged infringement of Article 24(3) of Decision 2010/413, Article 36(3) of Regulation No 961/2010 and Article 46(3) of Regulation No 267/2012

–  The principle of respect for the rights of the defence

–  The right to effective judicial protection

The first plea in law, alleging a manifest error of assessment and infringement of Article 20(1)(b) of Decision 2010/413, of Article 16(2)(a) and (b) of Regulation No 961/2010 and of Article 23(2)(a) and (b) of Regulation No 267/2012

4.  The temporal effects of annulment of the contested measures

Costs

* Language of the case: English.